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Show WATER RIGHTS IN SURFACE WATERCOURSES 185 an "actual, open, notorious, continuous and hostile" use of the water for the statutory period of limitations,78 under a claim of right.79 Additional aspects of prescriptive rights in Hawaii are discussed in chapter 14. Riparian Rights: Limited Application The doctrine of riparian rights has been engrafted upon the ancient Hawaiian system of water rights to a limited extent. Adoption of the Common Law In 1892 the Hawaiian legislature formally adopted the common law, subject to judicial precedents and Hawaiian national usage.80 Before that time the courts were generally friendly to common law principles and usually followed them when applicable, but felt free to reject them when the circumstances so indicated.81 This 10-year limitation statute is the statute that governs the acquisition of titles to land by adverse possession and use, which has been applied by analogy to water rights to the extent it is applicable. In such cases the actual use of water for the statutory period by the claimant of an adverse title is the foundation of the right. Hut chins, supra note 55, at 111-120. "Territory of Hawaii v. Gay, 31 Haw. 376, 383 (1930). "See WongLeongv.Irwin, 10 Haw. 265, 271 (1896); Kohala Sugar Co. v. Wight, 11 Haw. 644, 648-650 (1899); Kaneohe Ranch Co. v. Kaneohe Rice Mill Co., 20 Haw. 658, 666 (1911). 80Haw. Laws 1892, ch. 57, § 5. 81 In a 1901 case, the Hawaii Supreme Court said: "The New Englanders who early settled here did not come as a colony or take possession of these islands or bring their body of laws with them, though they exercised a potent influence upon the growth of law and government. The ancient laws of the Hawaiians were gradually displaced, modified and added to. The common law was not formally adopted until 1893 and then subject to judicial precedents and Hawaiian national usage. Prior to that time the courts were at first without statutory suggestion as to what law they should follow in the absence of statutes, and later were expressly permitted by statute to appeal to 'natural law and reason, or to received usage, and *** the laws and usages of other countries' and 'to adopt the reasonings and principles of the admiralty, maritime, and common law of other countries, and also of the Roman or civil law, so far as *** founded in justice, and not in conflict with the laws and customs' of this country. See Civ. Code, Sees. 14,823. The courts usually followed the common law when applicable. But they felt free to reject it, and did as a rule when, as in the present case, it was based on conditions that no longer exist, and when it had come to be generally recognized as merely technical and subversive of justice or the intentions of the parties to instruments and when it had in consequence been generally altered or abrogated by statute elsewhere. The question here, unlike that in the United States, was not whether the court should decline to follow a rule, but whether it should adopt a rule." Branca v.Makuakane, 13 Haw. 499, 504-505 (1901). |
