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Show 720 GROUND WATER RIGHTS IN SELECTED STATES part of the gravel bed made necessary by the reduced level of the stream during the day, with a resulting lag in movement of the water downstream. The downstream users who had night-time rights were entitled to begin diverting at 4 P.M., so that any substantial lag in the flow had a material bearing upon exercise of their rights. Respondent was restrained "from diverting water through the Maniania ditch by day at such time as to prevent the entire water in the Wailuku stream from being at 4 P.M. where it would be but for such diversion at Maniania." In reaching this decision the court did not declare or expound any broad principles with respect to the "underflow" of a stream. The case was decided on the general principle, long established, that a change in exercise of a water right is permissible only to the extent that the change does not result in impairing the rights of others. Ground Waters not Flowing in Defined Streams Considered under this general heading are all ground waters-including both artesian and nonartesian waters-other than those flowing in what the evidence in a case would show to be "definite underground streams." Nonartesian "percolating" waters.- Four cases in the Supreme Court of Hawaii have dealt more or less directly with ground waters that were not indicated in the opinions as being under artesian pressure, and that were not shown by the evidence to be flowing in "definite underground streams." In the absence of proof to the contrary, these waters are considered to be so-called percolating waters. Three of these cases, previously considered in connection with defined underground streams, bear likewise upon the present topic.238 Another case that was discussed concerning the underflow of a surface stream involved as a minor point the use of water developed from a tunnel.239 In the Davis case, the court upheld a prescriptive right to water flowing from springs into an auwai (ditch), the water of one of the springs being augmented by the overflow from a higher spring. The surface flow from the higher to the lower spring was in a "known and ascertained channel." The court quoted principles to the effect that the rules of law that apply to subterranean percolating waters are not the same as those that govern surface and ground waters in known stream channels. Apparently the court approved of the doctrine that "rights cannot be acquired in subterranean, unknown, percolating water." In the Wong Leong case, owners of springs claimed an alleged flow of seepage from higher land. There was no showing as to the course of the seepage ""Davis v. Afong, 5 Haw. 216, 222-224 (1884); Wong Leong v. Irwin, 10 Haw. 265, 270 (1896); Palolo Land & Improvement Co. v. Territory of Hawaii, 18 Haw. 30 (1906). 239Hawaiian Commercial & Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675, 680, 691-692 (1904). |
