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Show 722 GROUND WATER RIGHTS IN SELECTED STATES of ground water law in City Mill Company v. Honolulu Sewer & Water Commission240 does not strengthen the apparent earlier view that "rights" do not obtain with respect to nonartesian percolating waters. The reasonable conclusion appears to be that the question of ownership and rights of use of nonartesian percolating waters was not settled. Artesian waters.-(I) Cases involving artesian waters but not fundamental rights of use. The use of water from artesian wells was involved in some cases dealing with the construction of land leases.241 However, down to the time of the 1929 decision in the City Mill case, discussed immediately below, there was apparently no decision of the Supreme Court of Hawaii with respect to the fundamental character of the right to divert artesian water occurring in one's land. (2) The City Mill case, defining the "ownership" of artesian waters. The decision in this case242 proved to be of great importance in the water law of the Territory, particularly with respect to the ground water supply of the City of Honolulu. The opinion of the court was quite lengthy, without dissenting opinion. No appeal was taken to the Federal courts. No subse- quent decision of the Territorial or State courts upon the points of water law involved in this case has been reported. The case went to the Supreme Court of Hawaii on appeal from a ruling by the Honolulu Sewer and Water Commission, predecessor of the present Board of Water Supply, denying an application of the City Mill Company for a permit to drill a new artesian well on property owned by it within the District of Honolulu. The water was to be used for domestic purposes in certain buildings belonging to the company near the well, in an amount then being supplied from the city mains. The application was denied because of possible danger to the existing artesian water supply in the basin by opening up a new well. On appeal, the supreme court reversed and set aside the Commission's order. The court announced principles in its decision along the following lines: (a) The question whether the territory might prohibit the boring of any new well while leaving users of existing wells alone was a new one in the jurisdiction. (b) The Territory, as a landowner in the basin, has the same rights as a private owner; but it does not own all artesian waters in the Territory. (c) If the doctrine of ownership of ground waters favored in this case is correct, it has been so since the establishment of titles in individuals. (d) The so-called common law doctrine of absolute ownership of waters in one's land is unsound, has never been the rule in Hawaii, and does not 240City Mill Co. v. Honolulu Sewer & Water Comm'n, 30 Haw. 912 (1929). ^Richards v. Ontai, 19 Haw. 451, 453-454 (1909), 20 Haw. 335, 340-342 (1910); Tsunoda v. Young Sun Kow, 23 Haw. 660 (1917). 242City Mill Co. v. Honolulu Sewer & Water Comm'n, 30 Haw. 912 (1929). |