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Show 184 THE ANCIENT HAWAIIAN WATER RIGHTS Very few water rights cases involving questions of estoppel have reached the Supreme Court of Hawaii.72 In the cases that have come to the attention of the author, actual losses of water rights by estoppel have not been adjudged. However, principles and limitations of estoppel should be applicable here as in other jurisdictions. The surface water law of Hawaii does not include loss of water rights by statutory forfeiture, which applies to appropriative rights in most Western States. Prescriptive Rights In the published opinions in some of the earlier court decisions of Hawaii, the term "prescriptive" implies ancient appurtenant rights as well as those acquired by uses strictly adverse.73 (The latter is a usual requirement for prescriptive rights in other States. See chapter 14.) The clear legal distinction between a right to the use of water acquired adversely and one based upon a use always permissive was disregarded. But the ancient uses of water in Hawaii by taro (kalo) cultivators were not hostile to the konohiki; they were made with his permission, on a mutual business basis, with water supplied through systems which he controlled. The ripening into legal rights of the enjoyment of such privileges as against the konohiki evolved from the land reform policy of vesting in native tenants the "rights" that equitably were theirs by ancient custom, even though related to and based upon uses that had been essentially permissive. Finally, in the Wailuku (lao) cases on the Island of Maui, this use of the term "prescription" in relation to "ancient" rights was in issue.74 The court pointed out the historical inaccuracy in confusing the terms; and as a result of the clarification, the tendency in the later decisions has been to observe the distinction.75 "We deem it to be well settled in this Kingdom that the right to use water for irrigation purposes can be acquired by adverse and continuous use for twenty years."76 The 20-year limitation period was changed to 10 years in 1898.77 To establish a prescriptive title to a water right, there must have been "Compare Carter v. Territory of Hawaii, 24 Haw. 47, 54-57 (1917); Richards v. Ontai, 19 Haw. 451, 460461 (1909), 20 Haw. 335, 342 (1910). For general principles, see also Nahaolelua v. Kaaahu, 10 Haw. 18, 21 (1895); Peabody v. Damon, 16 Haw. 447, 456 (1905). "This was done repeatedly in Peck v. Bailey, 8 Haw. 658, 661, 665, 666, 671, 672 (1867), the earliest reported water rights decision, and in various other cases during the remainder of the century. 74Hawaiian Commercial & Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675, 683, 16 Haw. 113,115-117 (1904). 75 See Territory of Hawaii v. Gay, 31 Haw. 376, 383-384 (1930). 76Heeia Agric. Co. v. Henry, 8 Haw. 447,448 (1892). "Haw. Laws 1870, ch. 22, § 1, Laws 1898, Act 19, § 1, Rev. Stat. § 657-13 (1968). |