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Show 182 THE ANCIENT HAWAIIAN WATER RIGHTS It is well settled that a water right shown to be an easement appurtenant to particular land will pass by a grant of the land, without express mention of the easement or the appurtenances. This includes public grants as well as awards of the land by and through the land commission.57 The principal uses of water involved in controversies that reached the supreme court were the ancient uses for drinking and other domestic purposes and for irrigation. Most of them concerned irrigation. In one case, use of water for a fishpond was approved.58 In another, use of water for generating electricity was involved, but the fact that a water right might be acquired or exercised for such purpose was not questioned.59 Domestic use of water was held to be a superior use in connection with ancient appurtenant rights.60 Each individual water right may be exercised only on certain conditions which are peculiar to it. The use of water under an ancient or prescriptive right is conditioned on the diversion of a certain quantity of water, or a certain proportion of the available supply, at a given point, either continuously or in rotation under a certain schedule. Konohiki rights carry greater privileges, extending as they do to the entire supply of surplus water which the konohiki may do with as he pleases, the chief limitation being in situations concerning the use of surplus floodwaters in which two or more konohiki units are riparian to the same stream.61 The water right holder may not alter the conditions of his right to the injury of others, but he may require others to respect such conditions. The several rights of use in a common supply of water are necessarily reciprocal. In a leading water rights decision, Carter v. Territory of Hawaii, the supreme court said that "It has been held that water appurtenant to land for household purposes may be put to a different use; that water appurtenant to one piece of land may be used on another piece provided no one's rights are infringed by the change; and that improved methods for diverting water may be made use of upon like conditions."62 The condition that no injury be inflicted on other rights is essential to the validity of all such changes in exercise of a water right. 51 Carter v. Territory of Hawaii, 24 Haw. 47, 58, 63-64 (1917). For a discussion of water rights claims under leases of land, see Hutchins, supra note 55, at 122-125. 58KaalaeaMill Co. v. Steward, 4 Haw. 415,416417 (1881). S9Cross v.Hawaiian Sugar Co., 12 Haw. 415 (1900). 60 Carter v. Territory of Hawaii, 24 Haw. 47, 62, 66, 69,70-71 (1917). "It is well established at common law that the ordinary and natural use of water for household purposes, i.e., for drinking, washing, cooking, and for watering domestic animals, is a superior right to the use of water' artificially, i.e., for mining, agricultural and commercial purposes.... And we have no doubt that such is the law of this Territory." Id. at 66. 61 See "Riparian Rights: Limited Application," infra; Hutchins, supra note 55, at 60,77, 106,114,125-127. 62Carter\. Territory of Hawaii, 24 Haw. 47, 69 (1917). |