| OCR Text |
Show 248 HAWAII 3. Surface Waters The waters of a "watercourse" in Hawaii include the tributary sources of supply, since these waters appear to have been viewed in a legal context as part of the common supply. Also, there exist many ancient ditches (auwais) in Hawaii, but in determining the rights from these ditches the Hawaii Supreme Court has not distinguished between natural and artificial watercourses, but has applied the same legal principles to both. This result follows custom, because in determining rights to these sources under ancient custom no differ- entiation was made between natural and artificial watercourses.30 3.1 Method of Acquiring Rights As noted at the outset of this chapter, the Hawaiian system of water rights is unique. The appropriation doctrine has never been recog- nized in Hawaii and the riparian doctrine has been adopted only to a limited degree. Rights to use water may be generally classified as follows: (a) Ancient rights of the major land divisions (ahupuaas and ilis kupono); (b) ancient appurtenant rights; (c) rights con- veyed by owner of land; (d) riparian rights; (e) statutory rights; and (f) prescriptive rights. Each of the foregoing classes of rights is discussed below.31 a. ANCIENT RIGHTS OF THE MAJOR LAND DIVISIONS The ancient water rights in Hawaii relate to land areas and can only be understood in relation to the land titles. These rights are based upon and are an outgrowth of ancient Hawaiian customs. The water initially belonged to the King as the owner of the land. The King allocated portions of his lands, and upon the creation of the Republic of Hawaii, title to all lands not in private ownership passed to the Republic as successor of the Kingdom. However, the character of the right to the use of water depends upon the character of the ancient land unit. The primary and largest division of land is an ahupuaa-the next subdivision below the ahupuaa is the ili kupono. For purposes of the present discussion these two units will be discussed together because the water right principles involved are applicable to both. The only other land unit involved in this discussion is the kuleana, which means a small tract of land within a larger tract claimed by another. The term was commonly used to designate the small, cultivated tracts of land of the native tenants.32 With regard to an ahupuaa or ili kupono, the owner of such prop- erty had the right to the use of surplus water of streams located entirely within such land. Surplus water is considered to be that in excess of quantities necessary for the satisfaction of established rights of individuals.33 The latter included ancient appurtenant rights, pre- scriptive rights, and rights conveyed by deed. But, subject to estab- 30 HutcMns, The Hawaiian System of Water Rights, 65-67 (1946). 31 Hutchins, Background and Modern Developments in State Water-Rights Law, 1 Waters and Water Rights, 64-65 (Clark ed. 1967). 32 Hutchins, The Hawaiian System of Water Rights, 38-42, 77-78, 84-85 (1946). 33Hawaiian Commercial & Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675 (1904). |
