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Show HAWAII 719 the proposition that subterranean streams flowing through known and definite channels are governed by the same rules that apply to surface streams."235 It is believed that the Supreme Court of Hawaii has not yet passed judgment upon actual adjudications of rights in defined underground streams. However, there appears to be nothing in ancient Hawaiian water law or custom that would mitigate the application of the above principle. Underflow of surface stream.-The underflow or subflow of a surface stream, in mainland legal contemplation, is that portion of a whole watercourse found in pervious material over which the surface stream flows, and that occurs within reasonably well defined limits which, however, may confine laterally a space substantially wider than that occupied by the surface portion of the stream. Where these surface and subsurface flows are found to be components of a single watercourse, and not to constitute two independent watercourses, it is held not only that the underflow is governed by the same rules of law that apply to the surface stream, but that rights in the underflow are included in rights in the surface stream as incident thereto.236 In Hawaiian Commercial & Sugar Company v. Wailuku Sugar Company, the Supreme Court of Hawaii decided a point concerning water which probably would conform to the mainland concept of "underflow," although it did not use this term.237 A question was the extent to which respondent had exceeded its adjudicated rights by diverting water at. Maniania dam, at which point no water was being diverted at the time of adjudication but at which water had since been taken1 pursuant to a transfer upstream of certain day-time rights held by respondent. It was found that the bed of the stream from above Maniania dam to the sea was underlain by a stratum estimated as 25 to 40 feet thick, composed of loose boulders, sand, and gravel, and resting on a practically impervious substratum. It was clearly established that in the absence of ordinary surface flow, no seepage or spring water ever had been known to appear in the stream bed; hence the respondent's theory (that the water in the gravel stratum passed underground to the sea without reappearing at any point in the river bed) was considered the correct one. A brief comment on the importance of the gravel stratum to the downstream night-time rights in this case appears earlier under "Occurrences of Ground Water in Hawaii-Physical and Legal Interrelationships." Day-time rights had been transferred upstream to Maniania. After completing a diversion there each evening and returning the water into the stream, it required an appreciable period of time to flow down to the diversions for night-time rights. In addition, delay of part of the released water was occasioned by saturation of 235Los Angeles v. Pomeroy, 124 Cal. 597, 632, 57 Pac. 585 (1899). 236 See Wiel, supra note 233, at § § 1078-1081; Kinney, supra note 233: at § § 1161-1165; Smith, G. E. P., "Groundwater Law in Arizona and Neighboring States," Ariz. Agric. Expt. Sta. Tech. Bull. 65, pp. 64-70 (1936). 231Hawaiian Commercial & Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675, 693-694 (1904). |