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Show HAWAII 251 An easement to use a ditch to convey water can be acquired by a prescriptive right as well as the water right itself.52 3.2 Nature and Limit of Rights a. NATURE OF RIGHT ACQUIRED The Hawaii Supreme Court has characterized the right to use water as an easement in favor of the land. This includes the right to the uninterrupted flow to which the user is entitled at his point of diversion. The right to the use of water will be protected against infringement just as any other property right.53 b. MEASURE OF THE RIGHT Individual water rights are limited by the nature of the right acquired. For instance, ancient and prescriptive rights are conditioned on the use of only a portion of the available water supply at the user's point of diversion. The quantity of water is that amount which was customarily used and necessary for the particular use.54 How- ever, as discussed above, the rights of the owner of an ahupuaa or ili kupono are not so limited. He may use the entire surplus supply of a stream located within his property. A user may not alter his manner or method of use in such a way as to result in injury to other rights from the same system, and he like- wise is entitled to the same protection for his right. Where each user is entitled to a specific proportion of the available water, if there is insufficient water for all needs each user must take a proportionate reduction in his water supply.55 The general propositions stated above are subject to some qualifi- cation. In times of shortage, domestic use is accorded a preference over other uses.58 Also, some users, in effect, gain a priority because of their location on the stream. For example, an upper user is en- titled to divert the entire stream if it can be shown that because of drought conditions no water would reach the lower users.57 Or, if an upper user has historically diverted all the normal flow, the lower user is only entitled to the overflow and seepage.58 C. RELATION TO LAND Both ancient and prescriptive rights are regarded as being appur- tenant to the land for which the rights were acquired.59 But the right of the owner of an ahupuaa to the surplus water is not appur- tenant to any particular tract of land.60 While a water right is appurtenant to the land upon which it is used, it is not an inseparable appurtenance. It may be severed from ™ Davis v. Ajong, 5 Haw. 216 (1884). **Peck v. Bailey, 8 Haw. 658 (1867) ; Appeal of A. S. Cleghorn, 3 Haw. 216 (1870). 64 Carter v. Territory of Hawaii, 24 Haw. 47 (1917) ; Hawaiian Commercial & Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675 (1904). *&Peck v. Bailey, 8 Haw. 658 (1867). & Carter v. Territory of Hawaii, 24 Haw. 47 (1917). 87 Carter v. Territory of Hawaii, 24 Haw. 47 (1917). B8Ohun Lai v. Mang Young, 10 Haw. 183 (1895). •» Hawaiian Commercial & Sugar Co. v. Wailuku Sugar Co., 16 Haw. 113 (1904). 60 Hawaiian Commercial & Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675 (1904). |