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Show HAWAII 717 of law governing uses of waters of definite underground streams are not the same as those that apply to other ground waters. It would also appear that one who asserts a right in a definite underground stream must prove the existence of such stream by competent testimony, although under some circumstances a presumption may arise that a defined channel underlies a surface channel. The court has not intimated whether proof would necessarily include, not only the existence but also the extent, location, and characteristics of the subterranean channel within reasonable limits. Except in one case involving underflow, the existence of such a subterranean stream was not proved in any case that reached the supreme court, so that the general rules that apply to such streams have not been definitely announced. However, there is a strong intimation that the holders of established rights in a spring fed by a definite underground stream would be protected against interference with this source of supply of the spring. (1) Supreme court decisions. The first case in which this general question was considered was decided in 1884.230 Counsel contended that the opposing party had no right to the accretion to a spring by subterranean percolation or by surface flow from another spring. The court found that water from one spring flowed into another spring, and that water came from the springs into an auwai (ditch) in known and ascertained channels. Evidently only surface channels were involved. And apparently what the court actually decided was that a prescriptive right had been acquired to water flowing from a spring into an auwai in a known and ascertained channel, regardless of the suggestion that some of the spring water may have come by subterranean percolation from another spring. The court quoted principles to the effect that rights to subterranean waters not in known or defined courses are not the same as those governing surface and ground waters in known stream channels. Washburn on Easements was quoted as follows: The controlling circumstance is not whether the stream was above or below ground, but whether it was or was not ascertained and defined as a stream. If there is a natural spring, the water from which flows in a natural channel, it cannot be lawfully diverted by anyone to the injury of riparian proprietors. If the channel or course underground is known, it cannot be interfered with. A few years later, the supreme court stated, "Subterranean waters, to be the subject of rights, must, like surface waters, in general flow in known and well defined channels."231 It was not shown that the seepage from upstream lands that was claimed as an increment to lower springs would follow the course of the surface drainage, or if so, that it would reappear in the lower springs, 230 Davis v.Afong, 5 Haw. 216, 222-224 (1884). 231 Wong Leong v. Irwin, 10 Haw. 265, 270 (1896), referring inter alia, to Davis v. Afong, 5 Haw. 216(1884). |