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Show 178 THE ANCIENT HAWAIIAN WATER RIGHTS way. On all such lands the springs, running water, and roads are free to all, except as to wells and watercourses provided by individuals for their own use. This enactment, according to a practically contemporaneous decision of the supreme court, was designed to protect the tenants in the enjoyment of the rights so enumerated as against the sweeping operation of the konohikis' allodial titles.27 Ancient Appurtenant Rights Water rights of this class,28 although relating to a very small percentage of the lands involved in the Mahele, have had judicial attention in many cases. Throughout the royal, republican, and Territorial regimes, it was consistently held-as a fundamental principle of Hawaiian water law-that lands which from time immemorial have enjoyed the use of water are entitled to that use as a matter of right.29 The probable area in taro (kalo) necessary to supply the large early native population is considered to have covered many thousands of acres, of which the "dry" or nonirrigated upland plantings were probably as important as those on the "wet" or irrigated lowlands.30 However, both the native Hawaiian population and the area in taro have greatly decreased, whereas sugarcane has become the most important crop grown under irrigation. The present importance of ancient taro irrigation water rights is out of proportion to the very small percentage of all irrigated land in Hawaii now represented by this crop. The original kuleana water rights applied chiefly or wholly to taro culture, but many of them have since become used for sugarcane.31 Regardless of their present place or purpose of use these ancient kalo or taro water rights are vested rights of a high order. The general custom of early landlords was to authorize the continued delivery of water to wet kalo (taro) lands for the service of which distribution systems had been built, because continued cultivation was in their interest as well as that of their tenants. So long as the water supply continued dependable, "Oni v. Meek, 2 Haw. 87, 91-95 (1858). These statutory rights of tenants are distinguished from the ancient appurtenant rights incident to particular lands, considered immediately below. See Carter v. Territory of Hawaii, 24 Haw. 47, 67 (1917). "See Hutchins, supra note 5, at 102-110. 29See Loo Chit Sam v. Wong Kim, 5 Haw. 130, 132, 200, 201 (1884); Ing Choi v. Ung Sing & Co., 8 Haw. 498 (IS92); Peck v. Bailey, 8 Haw. 658, 661 (1867); Wailuku Sugar Co. v. Hale, 11 Haw. 475, 476 (1898); Kohala Sugar Co. v. Wight, 11 Haw. 644, 651 (1899); Palolo Land & Improvement Co. v. Wong Quai, 15 Haw. 554, 563 (1904). 30 Whitney, L. D., Bowers, F. A. I., and Takahashi, M., "Taro Varieties in Hawaii," Haw. Agric. Expt. Sta. Bull. 84, p. 7 (1939). 31 Rice irrigation was important for a time. Loo Chit Sam v. Wong Kim, 5 Haw. 200, 201 (1884). But after the first decade of the present century this culture rapidly declined. |