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Show HAWAII 253 monly applicable to appropriative rights in the western United States. a. ABANDONMENT In order for a right to be abandoned, there must be nonuse of the water coupled with an intent on the part of the owner to voluntarily give up or forsake the right. The mere nonuse of the water for an extended duration does not constitute an abandonment of the right.72 b. prescription The loss of a water right by prescription is discussed in section 3.1 of this chapter, relating to the acquisition of water rights. C. RESTRICTIONS IMPOSED BY SUBSEQUENT USES Return flow or excess water from upstream irrigation often consti- tutes part of the water supply for downstream water users. Where, under the water use practice of the upper irrigator, water has seeped and returned to the watercourse or flowed onto the lands of the user and the lower user has established a right to this water supply, the upper user will be enjoined from diverting this water elsewhere and thus depriving the lower user of his water supply.73 3.5 Springs The owner of the land upon which a spring is located is generally considered to be the owner of the water from the spring. However, the rights of the owner of the land are subject to any rights which may have been acquired by others in the spring.74 The surplus water over and above the needs of the landowner may be acquired by others.75 Both prescriptive and ancient rights have been recognized in the surplus water from springs.76 Also, where a spring constitutes a part of the source of supply for a watercourse, the rights of the users from the watercourse extend to the spring.77 3.6 Diffused Surface Waters While it does not appear that the question of the right to use dif- fused surface water has been squarely decided in Hawaii, one writer has suggested that there is no apparent reason why the owner of the land upon which such water originates should not be entitled to its use.78 With regard to the drainage of water from upper lands, the Hawaii Supreme Court has stated that the upper landowner may drain his surface water into a natural watercourse, even though this causes the stream to overflow and damage lower property. This right is qualified in that the upper landowner may not increase the burden 73 Carter v. Territory of Hawaii, 24 Haw. 47 (1917). 73 KahookieMe v. Keanini, 8 Haw. 310 (1891) ; Palolo Land d Improvement Co. v. Wong Quai, 15 Haw. 554 (1904). ™ Davis v. Afong, 5 Haw. 216 (1884) ; Liliuokalani v. Pang Sam, 5 Haw. 13 (1883). ™ KahookieMe v. Keanini, 8 Haw. 310 (189.1). ™ Davis v. Afong, 5 Haw. 216 (1884) ; Mele v. Ahuna, 6 Haw. 346 (1882). ™ KahookieMe v. Keanini, 8 Haw. 310 (1891). 78Hutchlns, The Hawaiian System of Water Bights, 82 (1946). |