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Show DETERMINATION OF CONFLICTING WATER RIGHTS 189 the surplus floodwaters of a stream and not to the surplus normal flow. DETERMINATION OF CONFLICTING WATER RIGHTS Water rights have been established in Hawaii in the course of controversies over water, in proceedings originating in tribunals from which appeals could be and in many cases were taken to the supreme court. The decrees in such controversies had the effect of adjudicating the water rights so established.96 Throughout the period of land reform in the middle of the 19th century it was implicit that water privileges should go hand in hand with other privileges of land use. The land commission was directed by the statute that created it to make its decisions in accordance with civil code principles regarding the occupancy and use of land, specifically relating, among other things, to "water privileges."97 The land commission apparently made few, if any, awards of water privileges as such; but in making its awards of land the commission undoubtedly gave full consideration to appurtenant water privileges and intended them to pass with the awarded lands as appurtenances. Water rights in Hawaii have been established and controversies over their exercise have been settled: (1) In special statutory proceedings before commissioners of water rights. These officials originally were appointed to hear and determine controversies respecting rights of way, jurisdiction over water controversies being added later.98 Early in the present century, jurisdiction in the statutory controversies was transferred from persons appointed as commissioners of private ways and water rights to the circuit judges within their respective circuits.99 (2) Before the circuit judges at chambers sitting as courts of equity. Jurisdiction in equity, in a proper case for equity, exists concurrently with jurisdiction under the "commissioner" statutes.100 Hence the circuit judge hears and determines water controversies relating to property within his circuit under the statutory procedure,101 and still has general equity powers when the parties are without remedy at law.102 (3) Before the circuit courts in actions at law for damages.103 96 This subject is discussed in the State Summary for Hawaii in the appendix and in Hutchins, supra note 55, at 48-65. "Haw. Laws 1846, p. 107; Laws 1854, p. 21. 98Haw. Laws 1856, p. 16; Laws 1860, p. 12. "Haw. Laws 1907, Act 56, Rev. Stat. § § 664-31 to -37 (1968). 100 Wailuku Sugar Co. v. Cornell, 10 Haw. 476,477-480 (1896). 101 Haw. Rev. Stat. § § 664-31 to -37 (1968). 102McBryde Sugar Co. v. Koloa Sugar Co., 19 Haw. 106, 116-119 (1908); Territory of Hawaii v. Gay, 32 Haw. 404, 410-414, 418 (1932). 103Mele v.Ahuna, 6 Haw. 346, 347-349 (1882). |
