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Show WATER RIGHTS IN SURFACE WATERCOURSES 179 lands productive, and tenants available, distribution of water to the general area and thence to the subunits of kalo patches was an established procedure. In some cases kalo patches were laid out in terraces, into the highest of which water was turned from the ditch, the overflow entering lower terraces successively. The practice in other areas was to supply all kalo patches directly from ditches. In either instance, the method of distribution of water was such as to perpetuate its use on a given tract. As a result of these practices the use of water was originally attached by custom to the irrigated tract, subject of course to severance by the konohiki. This land relationship which originated in custom eventually ripened into a legal appurtenance, or easement, or incident to the land-that is, the ancient use of water, where continued down to the period of land reform and existing at the time of confirmation of land titles in tenants, became the basis of a valid water right. And the use of water on a tract at the time title was acquired, even though not literally ancient, became the basis of an equally valid right. These are all included in the term "ancient appurtenant rights." These ancient water rights applied in many cases to "kuleanas"-homesteads of the common people-a term that now is used to designate the small tracts of cultivated lands awarded to native tenants.32 However, the right of any part of an ahupuaa which, by ancient use, was irrigated land would be on an equality with that of irrigated kuleana land.33 Rights of kuleana holders to the use of water appurtenant to their awarded lands are paramount to the landlord's (konohiki's) right to make further disposal of water privileges pertaining to the ahupuaa that would infringe these established individual rights. This results from the principle that the konohiki has no further claim upon the kuleana waters; he now has title to only the surplus waters of the ahupuaa-waters in excess of the ancient appurtenant and prescriptive rights of individual hoaainas. Necessarily, his further disposal rights are limited to the surplus. (See "Ahupuaas and His Kupono," above.) Ancient kula or dry (unirrigated) land, as stated above, had no water right.34 Water to the use of which one is entitled in connection with certain land cannot be transferred to kula land if others are manifestly injured by the change.35 But absent such injury, one may transfer to kula land the same quantity of water to which he is entitled by immemorial usage on kalo land.36 Water titles were adjudicated by courts to owners of land to which the use of water was appurtenant by ancient custom. In determining these questions, land commission records were important. For example, in an award, the description of a kuleana as kalo land or cultivated land would be evidence that 32 See Territory ofHawaii v. Liliuokalani, 14 Haw. 88, 95 (1902). 33Carter v. Territory of Hawaii, 24 Haw. 47, 58 (1917). ^SeeLoo Chit Sam v. Wong Kim, 5 Haw. 200, 201 (1884). 3SKahookiekie v. Keanini, 8 Haw. 310, 312 (1891). 36 Wong Leong v. Irwin, 10 Haw. 265, 269 (1896). |
