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Show 606 OTHER WATERS AT THE SURFACE land on which the spring originated, and claimants to the use of that portion of the spring water flowing away to other land, in excess of the quantity consumed in crop production on the land of origin. It appears to be settled that the owner of land on which a spring is located has the "ownership" or at least the right to the use of such spring, qualified to the extent of specific easements that may have been acquired by others.207 In a case in which water originating in springs was divided into two streams, water was taken from one of them (Kaluaolohe) through a canal to irrigate land of the owner of the springs; but he subsequently placed a dam on the other (Kamoiliili) stream to irrigate his land. The court held that it was error for the commissioners to rule that the later dam on the Kamoiliili was not entitled to water from that stream. It was stated that the change did not affect the rights of others, and that the latter were not concerned as to the stream from which the upper land received its water supply originating in these springs.208 While the landowner is entitled to use water sufficient for his needs, from a spring that originates on his land, it is equally well settled that rights in the surplus over his needs may be acquired by others.209 Such rights may have been acquired by prescription against the konohiki (landlord), on the part of holders of kuleanas (hoaainas, or native tenants), through a sufficiently long and adverse use of water that flowed from a pond supplied by a spring into an auwai (ditch) constructed to carry overflow away for irrigation.210 Or such right may have been established from ancient usage and an award therefor as a result of the great land reform in the first half of the nineteenth century.211 Similarly, in a case in which the overflow from kalo (taro) patches, supplied by springs on the land of the owner, constituted part of the source of supply of a natural watercourse, a prescriptive right against the owner of the land on which the springs arose has been recognized in favor of the party using water from the watercourse; and to protect the right of this downstream user in the continuance of the overflow from the kalo patches, the owner of the latter was ordered to remove a flume by means of which he was diverting the flow elsewhere.212 A case decided in 1899, in which the testimony was voluminous, involved a water head which appeared to be a hole in which water collected from a large area of swampy ground above it. Although the court stated the water head was not strictly a "spring" (in the sense that the water came perennially to the surface from invisible subterranean sources), the court called it a spring. The 201Davis v. Afong, 5 Haw. 216, 221-222 (1884); Kahookiekie v. Keanini, 8 Haw. 310, 312 (1891); Kohala Sugar Co. v. Wight, 11 Haw. 644, 651 (1899). 208Liliuokalani v. Pang Sam, 5 Haw. 13 (1883). 209Kahookiekie v. Keanini, 8 Haw. 310, 312 (1891). 210Davis v. Afong, 5 Haw. 216, 221, 224 (1884). 2ilMele \.Ahuna, 6 Haw. 346, 349 (1882). 212Kahookiekie v. Keanini, 8 Haw. 310, 311-312 (1891). |