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Show WATER RIGHTS IN SURFACE WATERCOURSES 187 questions other than riparian rights, the court mentioned the principle decided in Hawaii that where a stream flows in a single ahupuaa the surplus waters belong to the konohiki thereof, and stated that the question here presented, as to surplus waters of a stream that flows from one ahupuaa to another, "is one of first impression. We think it must be settled according to the principles applicable to riparian rights at common law."88 The definite holdings in this case accorded (1) to the owner of the upper ahupuaa (the Territory) the entire ordinary or normal flow of the stream, subject to vested appurtenant rights that attached thereto, and (2) to the owners of the two ahupuaas the reasonable use of the surplus flood and freshet waters according to the principles applicable to riparian rights at common law.89 The court said with respect to riparian rights that "each ahupuaa is entitled to a reasonable use of such water, first, for domestic use upon the upper ahupuaa, then for the like use upon the lower ahupuaa, and, lastly, for artificial purposes upon each ahupuaa, the upper having the right to use the surplus flow without diminishing it to such an extent as to deprive the lower of its just proportion under existing circumstances."90 There was no further riparian rights decision until 1930.91 The stream in the Gay case of 193092-on the Island of Kauai-arose on privately owned ilis kupono, which occupied the inland portion of an ahupuaa owned by the Territory, and flowed thence across the seaward portion to the coast. The owner of the ilis diverted water from the stream within one of them and conveyed it to another ahupuaa for irrigation of sugarcane; and the Territory brought suit to restrain the diversion. At issue was title to the "normal daily surplus" of water in the stream-the only waters dealt with at the trial. Interference with ancient appurtenant rights was not involved. The supreme court held that the ilis kupono were of no less degree and dignity than the ahupuaa, nor inferior to it in the matter of water rights. Hence the ilis kupono had the same rights as against the ahupuaa that it would have if it were itself an ahupuaa. Each of the three justices filed an opinion, no one of which was designated as the opinion of the court. The differences of opinion were confined to the relation of riparian rights to surplus waters. (1) The opinion of Chief Justice Perry devoted considerable space to a discussion of the riparian doctrine and to his disapproval of its application in the Carter case. He felt that the ruling in the Carter case with respect to freshet wId. at 70. 69Id. at 70-71. 90Id. at 70. See note 60 supra, regarding the court's distinction between domestic or natural uses and artificial uses of water. 24 Haw. at 66. 91A passing reference to the subject was made in a case which did not involve claims of riparian rights in any way. Foster v. Waiahole Water Co., 25 Haw. 726,734 (1921). 92 Territory of Hawaii v. Gay, 31 Haw. 376 (1930), affirmed, 52 Fed. (2d) 356 (9th Cir. 1931), certiorari denied, 284 U.S. 677 (1931). |