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Show HAWAII 249 lished rights, the owner of the ahupuaa or ili kupono may use sur- plus water as he desires, either within or without the ahupuaa or ili kupono, as these waters are not appurtenant to any particular land.34 When a stream extends through two or more units of land, the surplus normal flow water belongs to the owner of the land within which arise.35 However, the surplus waters of flood, freshet, or storm flows are subject to use by the owners of the various units of land in accordance with the common law principles of riparian rights.86 b. ANCIENT APPURTENANT RIGHTS As previously noted, under ancient custom the King as owner of the land controlled all water privileges, some of which were allo- cated through chiefs to the various tenants. But a tenant could be deprived of all his privileges, including the land and water, at the will of the King. This situation subsequently changed with the di- vision of the land between the King and the chiefs. This transaction, which occurred in 1847, is called the Mahele.37 Insofar as water usage is concerned, the Hawaii Supreme Court has held that lands which have had a historical use of water are entitled to the water as a matter of right.88 These ancient rights apply in many cases to kuleana land, and also to any portion of the ahupuaa that was irrigated in ancient times.93 These rights will be protected against interference, and the rights of kuleana holders cannot be diminished by the grant of additional water rights to others by the owner of the ahupuaa.40 The measure of these ancient rights is the quantity of water which was customarily used and which was necessary to the use being made.41 In addition to irrigation, these rights have been recognized for domestic purposes.42 It appears that although these ancient rights have a preference over new rights, they are on equal footing with each other with respect to the use of the available water supply. In other words, the time at which the use of the water began (priority) has not been a factor in apportioning the available water supply. C. EIGHTS CONVEYED BY OWNER OF AN AHUPUAA OR ILI KUPONO The owner of an hupuaa or ili kupono is likewise the owner of all of the natural resources on the land. With respect to water, the owner of the land may convey title to the use of the surplus water to others for use outside the ahupuaa or ili kupono, since water falling in this category is not appurtenant to the land.43 Of course, in determining the available surplus water, ancient appurtenant rights, prescriptive rights, and prior grants of water must be considered and protected. In the case of prior grants, if the owner of the land conveyed a 84 Foster v. Waiahole Water Co., 25 Haw. 726 (1921) ; Hawaiian Commercial d Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675 (1904). » Territory of Hawaii v. Gay, 31 Haw. 376 (1930). *¦ Carter v. Territory of Hawaii, 24 Haw. 47 (1917). ""Hutching, The Hawaiian System of Water Bights, 28-29, 102-110 (1946). &Loo Ohit Sam v. Wong Kim, 5 Haw. 130 (1884) ; Ing Choi v. Ung Sing & Co., 8 Haw. 498 (1892). »Territory of Hawaii v. LiliuoJtalani, 14 Haw. 88 (1902); Carter v. Territory of Hawaii, 24 Haw. 47 (1917). *°Maikai v. A. Hasting & Co., 5 Haw. 133 (1884). « Carter v. Territory of Hawaii, 24 Haw. 47 (1917). ^Kaalaea Mill Co. v. Steward, 4 Haw. 415 (1881). ** Foster v. Waiahole Water Co., 25 Haw. 726 (1921). |
