OCR Text |
Show 252 HAWAII the land and sold separately.61 However, where a water right is ap- purtenant to a particular tract of land, it will pass with a grant of land if the deed is silent concerning the water right or the appur- tenances.62 d. PURPOSE OF USE Since water rights originate in Hawaii as an incident to the owner- ship of land, there has been no statutory or judicial limitation on the purpose for which the water may be used. However, most of the cases decided by the Hawaii Supreme Court have involved domestic and irrigation uses. The right to use water to maintain a fish pond was recognized in one early case,63 and the use of water for power generation was sustained in another action.64 e. PREFERENCE AMONG USES As between riparian landowners appurtenant to a water source, domestic use is recognized as having a preferential and superior status over other uses.65 3.3 Changes, Sales, and Transfers As a general proposition, a water user is entitled to change his point of diversion, place, or nature of use. This right is subject to the condition that the proposed change will not injure other existing water rights.66 Again, under the Hawaiian system, there is no statu- tory procedure governing such changes. It has been held that a user's method of diverting water may be altered and improved if others are not injured.67 It is also the rule in Hawaii that even though the water is appurtenant to the land, the holder of the water right may change the place of use of the water, provided, of course, that the rights of others are not impaired.68 The measure of the right which can be transferred is the quantity of water that was depleted from the stream at the original place of use and not the area of land irrigated.69 In other words, the water right of the user cannot be enlarged through the change. The burden is upon the party making the change to prove that it can be accomplished without injury to the rights of others.70 Users are allowed to exchange or consolidate their water supply with one another so long as the rights of others are not injured.71 3.4 Loss of Rights Water rights may be lost in Hawaii by abandonment and prescrip- tion, but there is no statutory forfeiture of water rights, as is com- 81 In re Taxes, Waiahole Water Co., 21 Haw. 679 (1913). M Peck v. Bailey, 8 Haw. 658 (1867). <*Kaalaea Mill Co. v. Steward, 4 Haw. 415 (1881). M Cross v. Hawaiian Sugar Co., 12 Haw. 415 (1900). « Carter v. Territory of Hawaii, 24 Haw. 47 (1917). 96 Carter v. Territory of Hawaii, 24 Haw. 47 (1917). « Lenoaea v. Wailuhu Sugar Co., 9 Haw. 651 (1895). **Peck v. Bailey, 8 Haw. 658 (1867). <®Lenoaea v. Wailuku Sugar Co., 9 Haw. 651 (1895). ™ Hawaiian Commercial & Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675 (1904). n Homer v. Kumuliilii, 10 Haw. 174 (1895). |