
    TERRITORY OF HAWAII, BY C. T. BAILEY, COMMISSIONER OF PUBLIC LANDS, v. FRANCIS GAY, ET AL.
    No. 1921.
    Argued March 6, 1930.
    Decided April 28, 1930.
    Perry, C. J., Banks and Parsons, JJ.
   OPINION OP

PERRY, C. .T.

This is a suit in equity instituted by the Territory of Hawaii for the purpose of restraining a diversion by the respondents of certain waters from the valley of Koula by means of dams, ditches and pipelines to the arid lands of Makaweli, on the Island of Kauai. The Territory as owner or as representative of the United States of America is in control of the ahupuaa of Hanapepe whose boundaries were settled and determined by a commissioner of boundaries for that island. Within the outer boundaries of this ahupuaa are two valleys, called respectively Koula and Manuahi, and a third land called Kano. Koula and Manuahi are the property of the respondents Aubrey Robinson and Alice Robinson and Kano is the property of Aubrey Robinson. All three lands are under the control of the'respondents who compose the partnership of Gay & Robinson (the respondent Francis Gay has died since the commencement of this suit). The respondent, the Hawaiian Sugar Company, Limited, is the lessee under Gay & Robinson of certain lands at Makaweli used for the purposes of a sugar cane plantation and of certain water rights, and as' such lessee has participated in the diversion complained of.

The trial judge held that the respondents Gay & Robinson are the owners of the waters which are being diverted and entered a decree dismissing the bill. From that decree the case comes by appeal to this court.

The Island of Kauai is composed of a central mountain mass called Waialeale, with valleys or gulches radiating in all directions and reaching to the sea. On the summit of this central dome, 5240 feet in height at its highest, point, is a large area of swampy land called the Alakahi swamp. The rainfall of Waialeale was thought until quite recently to be the heaviest on this earth, but another-place, in India, has now been found with a heavier rainfall. However, from four hundred to five hundred inches; of rain per annum fall on the Alakahi swamp. Reaching-up into this central dome and swamp are the two lands of Koula a,nd Manuahi, both of which share in the very heavy rainfall just referred to. Together these two lands form the whole of the mauka or upper part of the ahupuaa of Hanapepe. Their streams, if unrestrained by man, would, flow through the valley and ahupuaa of Hanapepe to the-ocean and, as it is, all of their waters in so far as undiverted by the respondents flow through the valley of Hanapepe to the sea except as used, in comparatively small quantities, upon kuleanas and other lower lands entitled thereto in Hanapepe. The land of Kano likewise contributes some waters to the Hanapepe stream, but only in very slight quantities, — in “negligible” quantities, one of the witnesses said.

The land of Koula has an area of 5520 acres. Judging-from a map in evidence, the area of the land of Manuahi is about one-half of that of Koula, and the area of Kano' would seem to be about one-fourth of that of Manuahi. These three lands together comprise by far the greater-part of the ahupuaa of Hanapepe.

In Territory v. Gay, 26 Haw. 382, in which the parties; were the same as those in the case at bar, it was found and declared by this court that Koula was an ili and that though situated within the„ ahupuaa of Hanapepe it was never a part of that ahupuaa. At the trial in the case at bar it was expressly stipulated by the parties and admitted by the Territory that the lands of Manuahi and Koula “are independent ilis, otherwise known as ilis kupono” and that anciently each had “its separate konohiki.” At the argument in this court, however, it was claimed on hehalf of the Territory that an “ili kupono” is “of a lesser degree” in dignity than an ahupuaa. Counsel who advanced this claim admitted that that characterization of an ili was not' to be found in the books and cited in support of it a statement by the late Mr. C. J. Lyons, an official of the survey department of the government of Hawaii, that “except in rare cases the ilis owed some small tribute (the traditional peppercorn) to the ahupuaa.” The late W. D. Alexander, head of the survey department and the superior in office of Mr. Lyons, said in his “Brief History of Land Titles” that the ili kupono “generally did not pay tribute to its chief” and the late Sanford B. Dole, who held the offices of governor of Hawaii and of associate justice of the supreme court, in his report as governor in 1901 said: “Notwithstanding the allotment of the ahupuaa to the chief, the sovereign retained the right to carve out an ili ku” (an abbreviated form of expression for ili kupono) “which paid no tribute to the chief, but made its returns to the sovereign direct.” More important still, the late Chief Justice Judd, who occupied that position for eighteen years, speaking fifty-three years ago (March, 1877,) in the case of Harris v. Carter, 6 Haw. 195, 206, 207, said: “I think that erroneous opinions have sometimes prevailed as to what are ‘ahupuaas’ and ‘ilis.’ An ahupuaa has been called the ‘unit’ of land in this country; but it is by no means a measure of area, for ahupuaas vary exceedingly as to size. Many ahupuaas are divided into ilis; other aliupuaas have no ilis in them, as for instance, Kualoa and Waiinanalo on this island. There are two kinds of ilis. One, the ili of the ahupnaa, a mere subdivision of the ahupnaa for the convenience of the chief holding the ahupnaa, as for instance, the ilis of Lihue and Waimanalo, in the ahupnaa of Honouliuli. The konohikis of such iliainas as these brought their revenues to the chief holding the ahupnaa. The other class were the 'ili kupono’ (shortened into 'ili ku’). These were independent of the ahnpuaa, nor did they pay general tribute to it. In some cases these iliainas are very numerous, absorbing the larger part of the ahupuaas. A well-known case is the ahupnaa of 'Waimea,’ Hawaii, of which the ilis of Waikoloa’ and 'Puukapu’ form about nine-tenths. * * * The ilis in question in this suit are not distinctly named 'ili kuponos,’ this name not being preserved in the mahele; but all the ilis that were recognized and treated in the mahele and awarded by the commission were undoubtedly 'ili kuponos.’ This name was dropped, for, when separated from the ahupuaa by mahele and subsequent award, its necessity was gone. All other ilis went with the ahupnaa in which they were situated, and were not further distinguished. The inquiry just gone into is pertinent to the case before us, as . showing that the 'iliaina’ was a well-known division of land with its own identity, and I cannot see how the mahele or the award of the ahupuaa of Kailua carried with it an ili having its own distinct identity — unless clearly expressed or manifestly intended, and it is not so expressed, for the mahele calls for the 'ahupnaa’ only.”

Without some further and distinct authority than that cited by the appellant, we would not be justified in disturbing the long accepted view that an ili kupono, in the system of land tenures prevailing prior to the great mahele of 1845, was wholly independent bf the ahupnaa' within whose outer boundaries it was situated and that it owed no tribute to the konohiki of the ahupuaa and that its konohiki was subservient directly to the king. The statement by Chief Justice Judd admits of no exception or qualification as to the independence of the ili kupono. The express stipulation of the Territory at the trial that Koula and Manuahi were ilis kupono, coinciding with and reinforced by the finding and ruling of this court in Territory v. Gay, 26 Haw. 382, 388, an ejectment case in which the title to Koula was in issue, carries with it the view and the conclusion that prior to the mahele those two lands were wholly independent of the ahupuaa.

The consideration of this point becomes necessary because -of the two alternative claims of the Territory in asserting title to the Avaters which are being diverted by the respondents. Those claims are, first, that the ilis of Koula and Manuahi Avere “of lesser degree” and inferior to and a part of the ahupuaa of Hanapepe and that, therefore, the Territory, as the owner of the ahupuaa, was the owner of all of the surplus waters of the Hanapepe stream; and, second, that if it should be held that the ilis of Koula and Manuahi were not of less degree and dignity than the ahupuaa of Hanapepe they were at least not superior in degree or kind to the ahupuaa of Hanapepe or .to any other ahupuaa and that, therefore, under the ruling in Carter v. Territory, 24 Haw. 47, 70, 71, the surplus waters should be apportioned between the ilis on the one hand and the ahupuaa on the other “in just proportions in accordance with existing circumstances” and that, the only relevant circumstances being that there are no arable lands in the íavo ilis above which have not primary water rights of their own or which need irrigation and that there are nineteen hundred acres of arid arable lands in the ahupuaa of Hanapepe requiring water and capable of fruitful production with the aid of water, the same result would be reached, to-wit, that the ahupuaa would be entitled to all of the surplus waters. The view above stated of the historical independence of ilis kupono and, therefore, of the ilis of Koula and Manuahi disposes of the first contention, adversely to the Territory, but leaves the second contention for consideration.

In his written opinion the trial judge said that he had “consented to hear the cause on the condition that the issue be confined to the sole question of title to the normal daily surplus of waters arising and flowing in Tlanapepe valley’ above the southerly junction of Manuahi and Koula valleys;” that it was “alleged in the petition and conceded in the answers that there is a normal daily surplus of waters in this valley;” that it was “assumed for the purposes of this case that the diversion complained of by the petitioner does not interfere with the ancient rights of riparian owners of the lands lying below and south of the ilis owned by the respondents;” and that “if there be any interference with the ancient rights as a matter of fact, such questions are left open to the determination of the appropriate water commissioner.” Similarly in this court the parties are agreed that there is normally a surplus of water flowing in the stream over and above the quantity required to satisfy the needs of certain lower kuleanas and other lands in the ahupuaa of Hanapepe which have become entitled to water by prescription or to which water rights were appurtenant at the time when the land commission awards thereof were made. They are agreed that this suit is not intended to settle conflicts, if there are any, between the respondents and the owners of the kuleanas or other lower lands entitled to water by prescription or by appurtenance and that the decision of this court will relate only to the surplus of water not required for such lower prescriptive or appurtenant rights. I shall, therefore, so regard the issue.

In litigation in these islands concerning water the term “prescriptive rights” has been often used, and correctly, to denote those rights which, although not owned by certain lands originally, were acquired, without conveyance, by the actual, open, notorious, continuous and hostile use of those waters for the statutory period of limitations. The same term has, however, sometimes been used to denote or to include rights not shown to have been acquired adversely or by prescription but which were being'enjoyed by and were regarded as appurtenant to certain lands at the date when those lands first passed into private ownership by the generosity of the king and with the administrative assistance of the land commission. Whenever it has appeared that a kuleana or perhaps other piece of land was, immediately prior to the grant of an award by the land commission, enjoying the use of water for the cultivation of taro or for garden purposes or for domestic purposes, that land has been held to have had appurtenant to it the right to use the quantity of water which it had been customarily using at the time named. In some instances a mere reference to the land in the award or in the records of the land commission as “taro land” (“aina kalo” or “loi kalo”) or as “cultivated land” (“aina maki”) has sufficed to lead to and to support an adjudication that that land was entitled to use water for agricultural purposes. Sometimes the testimony of witnesses who appeared before the land commission in the hearings leading up to the award that the land was taro land or cultivated land, or other statements substantially to that effect, have sufficed to support a similar adjudication. In these latter instances the adjudication that the lands had water rights was not dependent upon any use with continuity or hostility for any particular period of time but merely followed from the fact that just prior to the grant of the awards water was being used on those lands, presumably by right. These are the rights which in this opinion are called “appurtenant” as distinguished from “prescriptive.” The prescriptive rights and these appurtenant rights are the two classes which have been most of ten-involved in litigation and Avhich are most often referred to in our reports of decided cases. In the course of a series of controversies concerning water rights in the ahupuaa of Wailuku another class of rights came to be considered, to-wit, the rights to the surplus water of an ahupuaa, meaning by “surplus water” all water not required for the satisfaction of the prescriptive or the appurtenant rights just described. This series of cases is to be found reported in Peck v. Bailey, 8 Haw. 658; Lonoaea v. Wailuku Sugar Co., 9 Haw. 651; H. G. & S. Co. v. W. S. Co., 14 Haw. 50; H. C. & S. Co. v. W. S. Co., 15 Haw. 675; and H. C. & S. Co. v. W. S. Co., 16 Haw. 113. In the first of these five cases prescriptive rights and appurtenant rights only were adjudicated. In the second prescriptive rights were considered; but the court in the introductory paragraphs of its opinion said: “So, also, when the rains, either those falling in the mountains only, or when they were general, made freshets in the river, the Wailuku plantation would run off into reservoirs surplus Avater that otherwise would run into the ocean. This conseiwation of storm water was free to all who desired to appropriate it and we see no valid objection to its practice being continued. It would become objectionable if the plantation or any party by the creation of immense reservoirs or other mechanical structures should take all the storm water and deprive others of an opportunity to do the same.” Lonoaea v. W. S. Co., 9 Haw. 651, 659. In the third it was claimed that in the second the court had rendered a decision relating to the rights of the parties in the surplus waters of the stream. In a carefully considered and exhaustive opinion the court (in the same third case) stated its conclusion that there had been, in the second opinion, no decision relating to the surplus waters. In the fourth (the same suit as the third) the court devoted itself to a decision of the question of the- ownership of surplus waters, a question which until that day had remained undecided in this jurisdiction. Defining for itself the term “surplus water” as meaning “the water, whether storm water or not, that is not covered by prescriptive rights and excluding also riparian rights, if there are any,” the court said: “Surplus water. This, in our opinion, is the property of the konohiki, to do with as he pleases, and is not appurtenant to any particular portion of the ahupuaa. By ancient Hawaiian custom this was so. Originally the King was the sole owner of the water as he was of the rest of the land and could do with either or both as he pleased. In later years, the rule seems to have been for him not to dispossess tenants of their lands except for cause and to that extent, perhaps, he would not have deprived cultivators of the water to which their lands were by usage entitled. But no limitation, so far as we can learn, ever existed or was supposed to exist to his power to use the surplus Avaters as he saAv fit. There is no reason for supposing that such Avater was regarded as appurtenant to one portion of the arable land of an ahupuaa and not to another portion or for supposing that it Avas appurtenant to the arable land and not to the remainder of the ahupuaa. During recent years konohikis have in many instances diverted from the ahupuaa the surplus Avater either Avhollv or in large part. An argument based upon public policy or upon the necessity or wisdom of encouraging the cultivation of the soil upon a scale unknown and impossible in ancient times, cannot be of assistance, for a determination that the surplus water belongs, in accordance Avith ancient HaAvaiian custom, to the konohiki is not less in favor of an enlarged measure of cultivation than would be a determination that such Avater belongs to the present holder of a particular portion of the ahupuaa.” H. C. & S. Co. v. W. S. Co., 15 Haw. 675, 680, 681. It added in support of its conclusion: “This Avas the view entertained by Chief Justice Allen thirty-seven years ago and expressed by him relative to this very ahupuaa in the suit of Peck v. Bailey (8 Haw. 658, 661, 662, 663, 671), the parties in which were the predecessors in interest of the present respondent. ‘There can be no difference of opinion,’ said that judge, ‘that the complainants Avere entitled to all the water rights Avhich the lands had by prescription at the date of their title. By the deed, the Avater courses Avere conveyed and a right to the water accustomed to Aoav in them. The same principle applies to all the lands conveyed by the king, or awarded by the land commission. If any of the lands Avere entitled to water by immemorial usage, this right Avas included in the conveyance as an appurtenance. An easement appurtenant to land Avill pass by a grant of the land, Avithout mention being made of the easement or the appurtenances. But if lands had no such rights, and no additional grant of water rights Avas made, it certainly could take nothing by having been a portion of the ahupuaa. * * * The complainants contend that they have the right of lord paramount to the Wailuku river. The grantor of a large portion of the complainants’ land had the same right as his ancestor, avIio Avas the konohiki of this ahupuaa, subject to the rights of tenants, which were aftenvards confirmed by the land commission. These rights were certain taro patches and the Avater necessary for their cultivation. This Avas a limitation to the entire control of the river. The grantor of complainants has conveyed portions of this ahupuaa to several persons. Each grantee Avill hold all that has been conveyed to him, unless it should conflict Avith a previous conveyance. This in-eludes the water courses on their lands, and all the Avater Avhich the lands had enjoyed from time immemorial. The deeds to defendants Avere from the same source originally and conveyed similar rights and privileges as appurtenant. So it appears by the deeds to the complainants and defendant, that a large part of the alxupuaa has been . conveyed to them by the konohild, Avith all the rights and privileges appertaining. By the evidence it appears that there are large valuable water rights appurtenant to these lands. It is very evident, therefore, that the complainants cannot be lords paramount OArer the Wailuku river, but they have certain valuable rights of Avater as an appurtenance to the land conveyed to them, and nothing more. They cannot claim any rights except Avhat they have acquired by their deeds and leases, and the defendant is in the same category. Both are limited in their rights of Avater, and there is not the slightest ground for declaring either as lord paramount; as much reason, as a matter of principle, in the one case as the other. The difference consists merely in the far greater possessions of the complainants. * * * The Avater courses on this aliupuaa have existed from time immemorial, and Avere doubtless made by the order of some ancient king, and Avlien the late king conveyed these lands to the proprietors, the rights of the Avater courses, in their full enjoyment, Averé included as an appurtenance. While the king OAvned this almpuaa, he had a right to apply the Avater to AAdiat land he pleased, but after the Avater courses Avere made, more especially after being in use from time immemorial, his conveyance of the land Avould include them, the same as his conveyance of the land bordering on the Wailuku river Avill include the rights of Avater in said river, Avhich had not been before granted.’ ” Ih.} 681, 682.

That ruling (15 Haw. 675, 680, 681) is as applicable to the surplus Avaters of an ili kupono as it is to those of an ahupuaa. .The konohiki of an ili kupono (independent ili) bore the same relation to the king as did the konohiki of an ahupuaa. The ili kupono was his to enjoy to the same degree and subject to the same limitations only as was an ahupuaa with reference to its konohiki. So, also, the ruling is as applicable to the surplus waters of an ahupuaa which, if undiverted, would Aoav in their course to the sea through two or more ahupuaas as it is to those which Avould flow in their whole course to the sea through one ahupuaa only. . No difference in history or in principle is discernible. To hold that the loAver ahupuaas are entitled of right to a share of the Avaters Avould be to hold that those Avaters do not belong wholly to the konohiki of the ahupuaa of origin to do Avitli as he pleases. In the Wailulcu case it AAras held that the surplus Avaters are not appurtenant to any particular part of the ahupuaa or to any particular part of the arable lands. Hoav can it consistently be held that a part of them is appurtenant to lands, tillable or nontillable, of other' ahupuaa,s ? I think that it cannot be.

As in the Wailuku case, so in this case no argument of convenience or in aid of production of crops can be successfully urged, for the diversion sought to be enjoined is in aid of cultivation of cane lands at MakaAveli. If an injunction were granted, the Avaters would be used in aid of cultivation of cane lands in Hanapepe.

The “general principle” declared in Davis ac Afong, 5 Haw. 316, 221, that “a landowner is entitled to the use of the Avater originating upon his land, subject only to the rights Avhich others may acquire by prescription,” if it is applicable to a flowing stream in an ahupuaa Avould lead to the same result. My conclusion, liOAvever, in the case at bar is based solely, as Avas the decision in H. C. & S. Co. v. W. S. Co., 15 Haw. 675, upon the historical considerations there recited.

But on behalf of the Territory it is contended that a contrary conclusion was reached in Carter v. Territory, 24 Haw. 47. The court there said: “There remains to be considered only the claim of the petitioner to the right to storm or freshet waters of the Waikoloa stream on the ahupuaa of Ouli. Where a stream flows through a single ahupuaa it has been decided that as between the ahupuaa and kuleanas therein, or portions of the ahupuaa conveyed without rights to surplus water, the surplus waters of the stream belong to the ahupuaa. Peck v. Bailey, and Haw. C. & S. Co. v. Wailuku S. Co., supra. The question here presented, as to the rights in the surplus waters of a stream which flows from one ahupuaa into another, is one of first impression. We think it must be settled according to the principles applicable to riparian rights at common law. That is to say, each ahupuaa is entitled to a reasonable use of such water, first, for domestic use upon the upper ahupuaa, then for the like use upon the lower ahupuaa, and, lastly, for artificial purposes upon each aliivpuaa, the upper having the right to use the surplus flow without diminishing it to such an extent as to deprive the lower of its just proportion under existing circumstances. Gould on Waters (3d ed.) Secs. 206 et seq.; 3 Earnham on Waters, Sec. 600 et seq.” The respondents’ reply to this contention is that the court in that case actually awarded to the Territory as owner of the lands on which the stream arose all of the waters of the “normal surplus” and that the decision relating to a division between the ahupuaa of origin and a lower ahupuaa related merely to the “surplus freshet waters.” In that case the contest related to the waters of the Waikoloa stream which had its source upon the ahupuaa of Waimea of which the Territory was the owner and in the position of konohiki. The petitioner was the owner of the ili of Waikoloa, through which the stream flowed, but which contributed practically no Avater to its Aoav. The stream, AA'hen there Avas sufficient Avater in it, floAved to the sea through a loAver ahupuaa called Ouli, the latter being OAvned by the petitioner. Prescriptive rights and appurtenant rights (in the sense above defined) Avere claimed by the petitioner on behalf of various parcels of land OAvned by it. The petitioner had replaced a dam, originally composed of earth and rocks, Avith a concrete structure and claimed the right to divert Avater from the stream by means of various ancient ditches. The Territory had constructed a dam across the Waikoloa stream at a point higher than that of petitioner’s dam and by means of that dam and of pipelines Avas distributing Avater to a number of homesteaders in Waimea for domestic purposes. Many issues Avere presented to the commissioner and on appeal to this court for adjudication, issues relating to ancient appurtenant rights, to prescriptive rights, to nonuser and abandonment, to the quantities of Avater to Avhich each land AAras originally entitled or had later become entitled by prescription, and perhaps to other subsidiary and yet more or less important subjects. This court, Avhile finding that the petitioner OAvned various lands Avhich Avere entitled to some Avater, Avas unable upon the evidence adduced to determine the precise quantities to which those lands were entitled. For that reason, and evidently in part also because the petitioner, towards the conclusion of the trial before the commissioner and in this court, had stipulated that “we do not ask the court to remove the dam,” (meaning the Territory’s dam) “Ave are willing that the system” (meaning the Territory’s system) “remain there subject to an acknoAvledgment of petitioner’s right to the water up to AAdiatever amount the court decrees. We Avant title to the Avater and Avant those people to be in a position to be compelled to recognize it. * * * We Avill ask leave to amend the prayer so that Ave do not seek to remove this dam,” — for these reasons, apparently, the court, without any statement of its reasoning in that connection, declared, inter alia, in its concluding paragraph that “the Territory is the OAvner of all the Avaters of the Waikoloa stream to the extent of the ordinary or normal floAV.” Undisputed evidence had made it clear that within the memory of man the rainfall in the district of Waimea had gradually and greatly lessened, that the Waikoloa stream in times of earliest recollection had normally carried large quantities of Avater sufficient for the needs of the very numerous inhabitants of that district and sufficient to supply the extensive netAvork of major and minor ditches through miles of territory, remnants of which ancient ditches Avere still plainly visible at the time of the trial; but that owing to the diminution of the rainfall the stream at the time of the trial was carrying markedly smaller quantities of Avater, not sufficient in normal times for all or any very large part of the district originally covered by the ditch system and that there Avas no normal floAV in the stream in excess of such quantities as the petitioner and the Territory were more recently in the habit of diverting. And yet there Avas no finding or adjudication in the opinion under review that the Avaters Avhich the Territory Avas diverting by its dam and pipe system Avere Avaters which the Territory could divert under any claim or right other than that of owner of the normal surplus floAV. The unambiguous language used by the court in its ultimate conclusion Avas that, subject only to the prescriptive and appurtenant rights (undetermined as to quantities) of the lands of the petitioner, “the Territory is the owner of all the Avaters of the Waikoloa stream to the extent of the ordinary or normal flow.” To this extent the conclusion there reached Avas in accord with the ruling in H. C. & S. Co. v. W. S. Co., 15 Haw. 675.

Perhaps AArhat has been said would in itself suffice to show that both under Carter v. Territory and under the Wailulcu case last referred to the result in the case at bar must be that the respondents are the owners of the normal surplus flow of the Koula and Manuahi streams and that an injunction cannot be granted. But such a disposition of the matter would be unsatisfactory and probably misleading, first, because that method of treatment might well carry with it the implication that in my opinion there is a distinction between surplus waters of the normal flow and surplus freshet waters and, second, because there is no evidence in the record tending to show that the two dams which are being maintained by the respondents in Koula do not or cannot divert freshet Avaters. What precise line is to be drawn in practice between the higher normal flOAArs and the smaller freshets is not easily apparent. It' would seem that after a period of comparative drought the first Avaters to come can Avell be-those of a storm. In such an event, could it be said that all of the onrushing Avaters AAdiich the dams could diArert would be Avaters of the normal floAV and that all Avaters going over the dams would be freshet Avaters? It is to be doubted that any such distinction in practice could be successfully asserted.

The fact that, as found by the trial judge, even in dry weather Avater seeps or drains into or othenvise reaches “the bed of the Koula stream” below the tAVO dams “and above the southerly boundary of respondents’ property and into the Hanapepe river beloAV respondents’ ilis” may tend to sIioav that, like many other areas of Hawaii’s ancient lava fields, the land there is highly porous or full of subterranean passages through AAdiich Avaters flowing in the stream above the dams pass under the dams and come to the surface loAver doAvn and may also tend to show that rain falls beloAV the íavo dams forming little streams AAdiich feed the main stream of Koula; but it does not show that the waters which are or can be diverted by the two dams are not, in whole or in part, Avaters of floods or freshets.

It is my opinion that there is no distinction in history, in principle, or in laAV between surplus Avaters of the normal Aoav and surplus Avaters which come in freshets as a result of storms. As above stated, the term “surplus Avaters” is here used to designate all Avaters not required for the satisfaction of prescriptive or appurtenant rights in lower kuleanas or other lands. It Avas in that sense that the term AAras used in H. C. & S. Co. v. U. S. Co., 15 Haw. 675. In that case the term Avas expressly defined to include storm and freshet Avaters. The court there said that for its purposes “surplus Avater” Avas “the Avater, whether storm water or not, that is not covered by prescriptive rights and excluding also riparian rights, if there are any.” Counsel for the respondents urged at the oral argument, referring to the Lonoaea decision, that it had been there held that storm and freshet Avaters Avere divisible between the various lands through which they passed. As pointed out above, the statement by the court in that case that the “conservation of storm water Avas free to all Avho desired to appropriate it and Ave see no valid objection to its practice being continued,” Avas expressly held, upon the plea in bar (14 Haw. 50), not to liaAre been a judicial adjudication but to have been “merely general introductory. observations such as are frequently made in Avater cases,” and “not intended to fix the rights of the parties.” The net result of that series of cases Avas, first, that in the Lonoaca case there was no adjudication relating to storm water and, second, that in 15 Haw. 675 it Avas expressly held that storm water Avas a part of surplus Avater, as clearly so as a normal surplus Avould be, and that all of the surplus, “whether storm water or not,” Avas the property of the konohiki to do Avitlx as he pleased.

If a distinction is to be draAvn between freshet Avaters and normal surplus Avaters, there must be a reason for it. None occurs to me. The only reason suggested in answer to a question from the bench was that in practice freshet Avaters cannot be diverted. That, hoAvever, does not seem to me to be well founded in fact. Freshet Avaters, at least those of some freshets, can be diverted. If the dams are made large enough and strong enough, and if the ditch and pipe system is of sufficient capacity, the Avaters Avill floAV in the ditch and not doAvnstream. The mere statement ought to suffice, of course, that if the Avaters of a stream, Avliether freshet Avaters or those of an ordinary floAV, are allowed by the konoliiki of the upper ahupuaa to pass doAvnstream to other ahupuaas, such Avaters are “Avild,” as it Avere, and are subject to capture by whoever can capture them. In the nature of things the Avaters, once they pass beyond the confines of his land, no longer belong to the konoliiki of the upper ahupuaa. This, Iioavever, does not militate against the possibility of capture and diversion by the upper konoliiki of all of the Avaters of smaller freshets and of some at least of the Avaters of extraordinary freshets Avhich do not destroy and carry aAvay the dams.

The ruling in the Carter case that “where a stream floAVS through one ahupuaa into another each ahupuaa is entitled to a reasonable use of the surplus Avater of the stream according to the principles applicable to riparian rights at common laAV,” even construed, as it should he, as referring to freshet surplus and not to normal surplus, should, I think, be disapproved. It is not in keeping Avith the earlier decision in H. C. & S. Co. v. W. S. Co., 15 Haw. 675. While it is, perhaps, technically true that, as stated in tlie Carter case, “private Avater rights in Hawaii are governed by the principles of the common law of England except so far as they have been modified by or are inconsistent Avith HaAvaiian statutes, custom or judicial precedent,” that statement is of very little, if any, consequence or significance in view of the widely prevailing Hawaiian customs and the judicial precedents long since established with reference to water rights in this Territory. Our system of Avater rights is based upon and is the outgrowth of ancient HaAvaiian customs and the methods of HaAvaiians in dealing Avitli the subject of water. No modifications of that system have been engrafted upon it by the application of any principles of the common laAV of England. To apply the principle of riparian rights to the matter of surplus freshet waters as Avas done in the Carter case is entirely at variance Avith preceding history and judicial precedents.

Water for domestic purposes on a loAver ahupuaa is in any event assured under HaAvaiian law. Every portion of land, large or small, ahupuaa, ili or kuleana, upon Avhich people dAvelt Avas, under the ancient HaAvaiian system Avhose retention should, in my opinion, continue unquali- • fiedly, entitled to drinking Avater for its human occupants and for their animals and Avas entitled to Avater for other domestic purposes. At no time in Hawaii’s judicial history has this been denied. Whenever it is proven that people dAvelt, at the time of the aAvard of the land commission, upon a piece of land aAvarded, it Avill be easily found and adjudicated that that piece of land was and is entitled to water for all domestic purposes. Under similar circumstances lands of the king or of any other konoliiki which have remained unaAvarded would be similarly treated. These rights to water for drinking purposes and for other domestic uses are included in the ancient appur- ■ tenant rights hereinabove referred to. As already stated, the surplus water, whether normal or freshet, which is the subject of controversy and adjudication in the case at' bar does not include, but by exclusion provides for, ancient «appurtenant rights, which latter include rights to water for domestic purposes.

Bearing always in mind that in the Carter case a.ll of the waters of the normal surplus were declared and decreed to be the property of the owner of the aliupuaa of origin, the riparian rule to the extent that it was adopted in that case, i. e., merely with reference to freshet waters, would not be the means of averting disaster or inconvenience to any lands in a lower aliupuaa which were not otherwise entitled to water. Storms and freshets, it is generally known, are the exception and not the rule. They come at intervals that are both long and irregular. No crops can be grown which are dependent solely on freshet waters.

It is said that the common-law doctrine of riparian rights is so inherently just, sound and wholesome that it ought to be adopted as the law in Hawaii. Save only as to one feature of the Carter case, that relating to freshet waters, it is not and never has been the law in Hawaii. It is utterly inconsistent with the system which from time immemorial has been recognized and enforced in these Islands. Its adoption now with reference to normal surplus waters would alter established rights. The riparian doctrine, as I understand it, is that owners of lands adjacent to a natural stream are entitled to correlative rights in the waters of that stream, — that each is entitled to a reasonable use of those waters and to so use them that other owners on the banks of the same stream may have a like reasonable use of the same- waters, unaffected in quality and undiminislied in quantity except in so far as made necessary by the reasonable use of others above. In other Avords, some of the characteristics of riparian rights under the common law of England were as foIIoavs : they arise from and depend upon the fact that the land is on the bank of a natural stream. The word “riparian” is derived from the Latin word “ripa” which means a hank. It is a right to use first for domestic purposes and, second, for what are termed “artificial” purposes, which ] after include mining, mechanical uses and irrigation. Eor all of these artificial purposes the use must be reasonable and correlative, that is, with due regard to the equal rights of all other riparian lands on the same stream. No precise definition has been attempted, applicable to all cases, as to what is “a reasonable use.” That has been held to depend on the circumstances of each particular case and to be determinable by the jury. While for the drinking purposes of men and animals all water in the stream may if necessary be taken, nevertheless, for irrigation and other artificial purposes no one riparian land can take all the water from the stream. All unused water diverted must be returned to the stream. The owner of the riparian land does not own the water. He has merely a usufruct Avliile it passes along. He cannot separate the water from the riparian land and sell it or lease it, apart from the land, for use on a nonriparian land. Stockport v. Potter, 3 H. & C., 300, 324, 326 (159 Eng. Repr. 545, 555, 556); Lake Superior Co. v. Emerson, 38 Minn. 406, 408; 1 Farnham, Waters & Water Rights, 609; Atchison v. Peterson, 20 Wall. 507, 512; United States v. Rio Grande Irrigation Co., 174 U. S. 690, 702. If the owner of a riparian land conveys a part of it Avhich does not abut on the stream, the conveyance does not carry Avith it any riparian right to water. The land conveyed in-such an instance becomes nonriparian. Lands not on the bank of a stream have none of these rights. Lands beyond the “divide” or “in another Avaterslied” are not riparian to the first stream. 3 Farnham, Waters & Water Rights, 1903.

In passing, it may not be out of place to note that in the. case at bar the riparian system Avould not be preferable to the ancient HaAvaiian system. The evidence sIioavs that about 1900 acres of land, tillable in cane, is a part of the complainants’ ahupuaa of Hanapepe. This tract of tillable land does not immediately adjoin the stream but is situated on higher land some little distance away from the stream. It may be assumed, however, for the purposes of this opinion that under present conditions it is to be regarded as being on the bank of the river and therefore riparian. The evidence also shows that for many years last past the waters diverted from Koula by the Gay & Robinson ditch system, which diversion is the one here sought to be enjoined, have actually watered a total of 5200 acres of cane lands, and have been sufficient to water over 7000 acres of cane lands, situate at Makaweli. The Makaweli lands, however, are not, within the meaning of the doctrine, on the banks of the Koula stream or of the Hanapepe river below. Between the Koula stream and the Makaweli lands are the Manuahi valley and stream and one or more other valleys and streams. There are less than 50 acres of tillable lands in Koula valley, probably most of them having ancient appurtenant rights to water and not needing, therefore, surplus water. If the doctrine of riparian rights is to be applied to the Koula stream and its continuation down the Hanapepe stream, the practical result will be the discontinuance of the use of its waters on the 5200 acres or more of Makaweli lands and the substitution of a use on 1900 acres of cane lands in Hanapepe, plus possibly a feAV acres in Koula valley. Since this discussion applies only to surplus Avaters, and. ancient appurtenant and prescriptive rights in favor of any and all lands are excepted and provided for by the very definition of the term “surplus waters,” a large quantity of water would have to be allowed to flow unrestrained into the ocean, unused and Avasted. For it must be remembered in this connection that nonriparian lands Avill not be entitled, either primarily or by grant, to share in the enjoyment of these waters. The mere fact that a taking, for use on Makaweli lands, of water not needed for the 1900 acres in Hanapepe might be held to be damnum absque injuria, would not render the taking lawful or bring it within the authorization or scope of the doctrine. It is to be remembered, in addition, that even the use on the 1900 acres could continue at best only as long as they remained in one ownership. If, as is generally supposed in this community, it is the purpose of the Territory to subdivide that tract into comparatively small lots for homesteading purposes, only those feAV of the subdivided lots Avliich are patented or agreed to be patented to homesteaders and Avhich actually abut on the stream will be riparian and Avill be entitled to riparian rights. All other lots, nonadjacent to the stream, aat.11 have no riparian rights whatever and even larger quantities of Avater aatII thus go to Avaste in the sea.

The doctrine itself, in my opinion, irrespective of the results of its application to the lands and the facts of the case at bar, is not suited to conditions in this Territory. As in some or all of the Avestern states of the mainland the doctrine of riparian rights Avas discarded as unsuited to conditions and the doctrine of prior appropriation Avas adopted, so here, as it seems to me, both of those doctrines have been and should continue to be discarded as unsuited to our conditions. Under the English system only riparian lands Avonld have Avater. Many of our largest and most fertile tracts of land are nonriparian and Avonld have no Avater and no agricultural development under that system. Even of the kuleanas awarded in 1845 or thereabouts to the common people, the poorer people, a great many, and perhaps most of them, Avere nonriparian and Avonld never have been entitled and Avonld not now be entitled under that system to any Avater from the streams. The system devised and Avisely provided by the ancient kings and chiefs permitted of the construction and maintenance of a large network of artificial ditches, some larger and some smaller, leading out from the main streams and spreading with their auxiliaries so as to reach most, if not all, of the little holdings of the common people, as well as all of the portions of larger lands which the konohikis showed themselves able and willing to cultivate. That system provided for' every kuleana, ili and aliupuaa fed by those ditches more water and greater rights than those which would have been available under the riparian system, even as to those lands which were themselves riparian. I am referring to well established law, set forth in numerous reported decisions. To lands now having prescriptive rights no reference is here made, for they have more than they were anciently entitled to. But the ancient appui’tenant rights themselves gave to the lands receiving water from any of these ditches all of the water, in many instances, for prescribed periods of time, as for certain hours on each day or for certain days or nights in each week or in each two or three Aveeks. They permitted all the Avater in some of the ditches to be taken during the prescribed hours or parts of days even though during those periods of time no Avater remained to Aoav doAvn the stream to other lands on the banks. The Avater appurtenant to each land belonged to the OAvner of the land and Avas severable therefrom and Avas transferable either Avitli or Avitliout grant to other lands irrespective of whether such other lands Aver.e riparian or nonriparian (provided only that no injury Avas by the diversion made to the rights to other lands). ..There Avas no limitation to “a reasonable use” for the lands entitled to take from any of the ditches. The admeasurement Avas by time and by nature and size of dams and ditches. There Avas no limitation in favor of lands Avithin the same Avatershed or valley. It could be diverted to other watersheds subject only to the same proviso already stated above.

To my mind, the ancient Hawaiian system provided more liberally than did the English system, in favor of riparian lands and in favor of nonriparian lands and is far better suited to the development of the agricultural lands of this Territory.

Water rights, it need hardly be added, have financial value. The legal possibility that some of the water may be wasted by an owner is no justification for depriving him of his right thereto without due compensation. Such a possibility, moreover, is more theoretical than it is actual. As long as fertile lands are available upon which surplus waters may be used, the owner of those waters, even though an individual as distinguished from the state, can be depended upon to take the water to the land or to permit others to do so for a just compensation. Human selfishness and good, sound, human judgment sufficiently insure this.

Chief Justice Allen, who rendered the decision in Peck v. Bailey, reported in 8 Haw. 658, did say at page 662: “A riparian proprietor has the right to enjoy the benefits of a floAV of Avater as an incident to his estate, and he can use the Avater for irrigation, Avatering his cattle, and other domestic purposes, provided he does not materially diminish the supply of Avater or render useless its application by others.” But he made no application of that doctrine to the facts of the case before him. He made no adjudication or aAvard of any riparian rights to any riparian lands. He stated that it appeared from the evidence that a part, “a small portion,” of the land of the complainants Avas “bounded by the river;” but he did not award any additional Avater to the complainants by reason of the proven location of some of the complainants’ land on the bank of the river. On the contrary he said (p. 661) : “How far tliis would affect its riparian rights, is not material in this case, for the reason that the right which it enjoys by the Kalaniauwai is far more than its riparian right.” And at page 670, referring generally to all the claimants before him, he further said: “The counsel on both sides have made frequent reference to the rights of riparian proprietors at common law. The principles which govern them have very little practical application to this case. A riparian proprietor has a qualified property in the soil to the thread of the stream, with all of the privileges annexed thereto by law. He has a right to divert the water for irrigation, but it can only be done so as not to injure other proprietors. It is often a nice question Avhere the right ends and the wrong begins in the scale of admeasurement of such diversion. If it is made only of such Avater as the complaining party could not have used for a beneficial purpose, and made in a reasonable manner and for a proper purpose, an action Avill not lie. If the rights of these parties were limited to those of riparian proprietors, they would be much less than they are ” In other Avords, such consideration as he gave to the subject of riparian rights Avas intended merely to sIioav the inapplicability of the doctrine and the greater advantage to the parties before him of their ancient appurtenant, as Avell as prescriptive, rights.

After a careful reexamination of all HaAvaiian cases relating to Avater laAV I find none except the Carter case, supra, which makes any aAvard of riparian rights as such. All the reported HaAvaiian cases with that exception recognize and enforce the ancient Hawaiian system and that case also recognizes and enforces that system in all respects save only in relation to the subject of surplus Avaters that come in freshets. All HaAvaiian cases on the subject, including the Carter case, award Avater of the normal surplus to the konohiki of the land of origin;'

Marguerite K. Ashford (Thompson, Beebe cG Winn Avitli her on the briefs) for the Territory.

A. G. M. Robertson (Robertson & Castle on the briefs) for Gay & Robinson.

It is far more logical and more desirable to correct now tlie one partial error of the Carter case in respect to freshet surplus, thus leaving the Avliole body of our decisions Consistent and favorable to the best interests of our agricultural lands and giving due recognition to the principle of stare decisis, than to upset the unvarying decisions concerning normal surplus and to endanger the foundations of the AAdxole HaAvaiian system and perhaps eventually the system itself.

In City Mill Co. v. Hon. S. & W. Com., 30 Haw. 912, only artesian Avaters Avere involved. The first artesian Avell in this Territory, then Kingdom, Avas dug in the late seventies of the last century. The ancient HaAvaiians had none and kneAV nothing of them and therefore had no customs, rules or regulations concerning their use or their OAvnersliip. Hence the necessity in the case last cited of looking elseAAdiere for principles Avhich Avould be applicable and just. With reference to surface Avaters the ancient HaAvaiians did have customs, rules and regulations amounting to laAV (the Avord “kanaAvai” iioav meaning hiAvs originally meant rules relating to Avater). I can see no justification for discarding ancient HaAvaiian vieAVS and rules relating to the poAVer and privileges of the konohiki concerning the narroAver subject of surplus freshet Avaters or concerning the broader subject of all surplus Avaters, Avhether of storm Avaters or not, AAdiile at the same time adhering to the ancient HaAvaiian system in all of its other methods and provisions.

For these reasons the decree appealed from, AAdiich denies the injunction sought and dismisses the bill, should, in my opinion, be affirmed.

B. B. Anderson (Prosser, Anderson cG Marx on' the brief) for the Hawaiian Sugar Co.

OPINION OF PARSONS, J.,

CONCURRING IN PART AND DISSENTING IN PART.

I concur in the foregoing opinion, both in its reasoning and in its conclusion in so far as the same refers to respondents’ rights in the normal surplus waters of Koula stream; and I concur in the affirmance of the decree appealed from which denies the injunction sought and dismisses the bill. I do not, however, concur in that part of the opinion which disapproves of Carter v. Territory, 24 Haw. 47, 71, to the extent that the latter case applies the common-law rule of riparian rights to surplus flood and freshet waters — and this for the sole reason that such disapproval is not necessary to a determination of the issues before us. In defining the issues before him the circuit judge in his decision said in part: “Moreover, the evidence clearly shoAved that the diversion maintained by respondents did not attempt to impound the entire Avater supply even of Koula valley. * * * The evidence clearly shoAved that even in dry weather Avater seeped into or drained into or otherwise got into the bed of Koula stream below the diversion dams and above the southerly boundary of respondents’ property and into the Hanapepe river below respondents’ ilis. Hence no question arises in this proceeding as to the appropriate diversion, if any, of abnormal or freshet surpluses. The only question which this court Avill attempt to decide is the right of the respondents to continue to maintain the diversion of a part or all of the normal daily surplus of Avaters arising above the junction of the Manuahi and' Koula streams north of the southerly boundaries of the ilis of Manuahi and Koula.” In his finding of facts the trial judge said among other things: “There is no evidence to show that the respondents have attempted to appropriate the storm or freshet waters.” This appears to be the understanding of the respondents themselves. In their first brief (p. 22) the respondents Gay & Robinson said: “We are not dealing with storm or freshet waters in the case at bar.” The respondent, the Hawaiian Sugar Company, Limited, in its brief (p. 16) said: “The size of the dam further illustrates that the only waters which are diverted are the normal surplus waters, the dam being insufficient to retain any part of freshet or storm waters. This fact is further substantiated by the testimony of Francis Kanaliele.” Quoting further from the last named brief (p. 23) : “We submit that the konohiki of the ili has the title to the surplus waters in question and further that the doctrine of the Carter v. Territory case, in so far as it applies to storm or freshet Avater, has no application here.”

The trial judge in conclusion held: “That the respondents at bar are legally entitled, by reason of their fee simple OAvnership of the sources of the Avater supply arising in the ilis of Manuahi and Koula to divert and use as their own, all the normal daily surplus of waters of the Koula stream, so long as this diversion under that claim of ownership does not interfere with the established prescriptive rights of lower land OAvners in Hanapepe valley for domestic purposes and for wet agricultural use.” The case beloAV, therefore, presented no issue upon the question of rights to surplus storm and freshet Avaters; the judge expressly refused to consider that subject and his decision, as above set forth, dealt exclusively Avith the normal daily surplus.

In Carter v. Territory, supra, however, the question above referred to was directly involved and Avas decided by this court. The claims of the petitioner are set forth in the opinion on pages 49 and 50 of the above cited report. Quoting from the top of page 50: “The right to the surplus freshet water of the stream as it flows into and upon the ahupuaa of Ouli * * * was claimed.” This claim was disposed of as follows (quoting from p. 70) : “There remains to be considered only the claim of the petitioner to the right to storm or freshet waters of the Waikoloa stream on the ahupuaa of Ouli. Where a stream flows through a single ahupuaa it has been decided that as between the ahupuaa and kuleanas therein, or portions of the ahupuaa conveyed without rights to surplus water, the surplus waters of the stream belong to the ahupuaa. * * * The question here presented, as to the rights- in the surplus waters of a stream which flows from one ahupuaa into another, is one of first impression. We think it must be settled according to the principles applicable to riparian rights at common law. That is to say, each ahupuaa is entitled to a reasonable use of such water, first, for domestic use upon the upper ahupuaa,' then for the like use upon the loAver ahupuaa, and, lastly, for artificial purposes upon each ahupuaa, the upper having the right to use the surplus flow without diminishing it to such an extent as to deprive the loAver of its just proportion under existing circumstances.” That what Avas said in the passage last above quoted, in applying the comm’on-law rule-of riparian rights to surplus water, referred to surplus storm and freshet waters only is shoAvn by its introduction above set forth, by the court’s above-quoted recital of the claims of the petitioner and by the concluding statement on pages 70 and 71 of the report, which, omitting parts hereto inapplicable, is as foIIoavs : “We hold, therefore, that subject to the vested appurtenant rights of the petitioner and the individual respondents (who AVere not defaulted) to Avater for domestic use upon their respective lands, and subject further to the right of the petitioner to water for artificial purposes as beloAV stated, the Territory is the OAvner of all the Avaters of the Waikoloa stream to the extent of the ordinary or normal flow; * * * that the petitioner is entitled to the surplus normal flow, if any, after all domestic requirements are satisfied, for artificial purposes to the extent of the quantity to which the lands owned by him were entitled for such purposes by custom at the time the lands first passed, into private ownership, whatever that quantity was; * * * and that the surplus flood and freshet waters of the Waikoloa stream are subject to the reasonable use of both the government and the petitioner as owners respectively of the ahupuaas of Waimea and Ouli, for the purposes and in the manner above stated.” (The italics are mine.) Thus a clear distinction is made between the rule applicable to the surplus normal flow and that applicable to the surplus flood and freshet waters.

This distinction is still further emphasized in the decree which treats in separate paragraphs, among other things, (a) of the normal flow, (b) of the surplus normal flow and (c) of the surplus flood and freshet waters. Paragraph I of the decree holds that, subject to the rights set forth in the above-quoted decision, “the Territory of Hawaii is the owner of all the waters of the Waikoloa stream * * * to the extent of the ordinary or normal flow;” paragraph VI decrees, among others things, “that the lands named in said schedule ‘A’ aforesaid of the said petition are respectively entitled to the surplus normal flow waters, if.any, of the said Waikoloa stream,” after requirements elsewhere decreed are satisfied; and paragraph IX decrees “that the surplus flood and freshet waters (not the ordinary or normal flow waters) of the Waikoloa stream are subject to the reasonable use of both the Territory of Hawaii and the said petitioner as owners respectively of the ahupuaas of Waimea * * * and Ouli,” in conformity with the rule of riparian rights set forth as hereinabove quoted from the decision. From the foregoing it is apparent that this court in-the Carter case (a) did not apply tlie’riparian rule to surplus normal flow and (b) did apply that rule to surplus storm and freshet Avaters.

In vieAV of the fact that the right to surplus storm and freshet Avaters Avas directly in issue in the Garter case and of the fact that such right is not directly in issue in the case at bar, without expressing any vieAV as to Iioav the question should be ultimately determined I cannot concur in that portion of the opinion of the chief justice in the- present case Avhich, if concurred in, Avould overrule the Garter• case in the particulars above set forth.

DISSENTING OPINION OF

BANKS, J.

As I understand the opinion of the chief justice, he thinks that the owner of an independent ili upon which Avater has its source and Avhich ííoavs by gravity through a natural channel onto the land of another' person, such person, unless he has appurtenant or prescriptive rights, has no rights Avhatever in the AArater, whether normal or storm surplus, Avhich the OAArner of the ili must respect. In other Avords, the substance of his opinion is that the OAvner of such an ili, except as to those Avho have appurtenant or prescriptive rights, is the absolute owner of the Avater, of Avhatever character, to do Avith as he pleases regardless of the necessities of others through AAdiose lands the Avater, if 'undiverted, Avould floAV.

As I understand the opinion of Mr. Justice Parsons, he agrees with the chief justice, so far as normal surplus Avater is concerned, but he thinks storm surplus water is not involved in the instant case and therefore reserves his opinion on that subject.

-To restate in somewhat different 'words' my understanding of the tAvo opinions, it is that the chief justice thinks there is no difference, so far as the OAvnersliip of water is concerned, between normal surplus and storm surplus and tlxat Carter v. Territory, to tlie extent that it decides that storm surplus should be governed by the common-law riparian doctrine, should be overruled, Avhile Mr. Justice Parsons thinks that storm surplus, not being definitely involved in the present case, the rule laid doAvn in the Carter case should not at this time be disturbed.

I fully agree with the chief justice that the OAvnership of all surplus water, whether it be normal or storm, should be governed by the same rule. Our disagreement arises out of Avlxat that rule should be. He thinks that the rule of the absolute OAvnership of such AArater (subject to prescriptive and appurtenant rights) in the OAvner of an independent ili or ahupuaa Avas established by the decisions of the supreme court of HaAvaii long prior to the Carter case and should be adhered to, the Carter case notwithstanding, Avhile I think the rule announced in the Carter case is not inconsistent with preceding decisions and should be applied to normal as Avell as to storm surplus. This rule is so inherently just in its regulation of the use of an element that is vital to the Avell-being of mankind and is so consonant Avith natural rights and human necessities that I think it should be finally adopted as the laAV of this Territory.

Under the rule which the chief justice thinks should be adhered to, the owner of an independent ili or the OAvner of an ahupuaa could divert from its natural channel all the water that might originate on his land and utterly Avaste and squander it and the owner of lands lying beIoav, through which the water Avould naturally Aoav, would (unless he had prescriptive or appurtenant rights) have no legal right to complain, although he might be in dire need of a sufficient quantity to irrigate his crops. I cannot agree Avith a pronouncement of the laAV under Avhich it Avould be possible to accomplish such a disaster.' It could not be accomplished under the riparian rule ¿which received the sanction of this court in the Carter case either by wasting the water or by diverting it to distant lands which have no riparian relation to the stream. Under the common law the rights of riparian proprietors are not absolute and exclusive but are correlative. “All the riparian owners through or by the side of whose land a stream naturally flows may enjoy the privilege of using it. Hence it follows that rights which are enjoyed by an indefinite number of persons cannot be absolute as to any particular right but must be relative or correlative as to all the owners on the stream.” 1 Kinney on Irrigation and Water Rights, Sec. 455, p. 770.

In City Mill Co. v. Honolulu Sewer and Water Com., 30 Haw. 912, this court, in a very able opinion written by the present chief justice, decided that, as to subterranean waters lying in an artesian basin, the rule of correlative rights should be applied. In refusing to adopt the cujus est solum doctrine of the common laAV, the court said (pp. 923-925) : “The so-called ‘common-laAV doctrine’ seems to us to be unsound. It purports to be based upon the ancient maxim, cujus est solum, ejus est usque ad eoelum et ad inferos/ or ‘lie Avho OAvns the land is the owner of it, even to the heavens above and to the loAvest depths beloAV.’ Prom that beginning it proceeds upon the theory that the Avater found in the land is a part of the land. When applied, however, to an artesian basin and to artesian Avells, this view clearly runs counter to the facts. It may, or it may not, be applicable to Avaters merely oozing in or seeping through soil, but it certainly is not applicable-to artesian Avaters Avliich are known to flow freely and rapidly through broken rock or other materials permitting of easy passage. No artesian basin is ever found, complete in itself, under and Avithin the boundaries of any one person’s city lot. They exist usually, and the particular basin under consideration in the case at bar exists, subjacent to large areas of land, — hundreds, and perhaps thousands, of acres. It cannot be said with any regard for the truth that an owner of a city lot or other small portion of the land over an artesian basin who, with a powerful pump takes from his artesian well all of the water that can thus be obtained therefrom is thus drawing only water which is a part of his own soil or land. The water of the whole basin will unavoidably flow towards its lowest level, that is, where the greatest suction is being-applied. To permit an owner of a comparatively small portion of the land to draw water therefrom without limit would be to permit him to take water which clearly was subjacent in a large degree to the property of others. A much closer approach to adherence to the ancient maxim above quoted, that he who owns a piece of land owns it to the center of the earth, is to regard all of the owners of the land under which an artesian basin lies as owners of the. waters of that basin. If a person or other entity should purchase all of a large tract of land under which an artesian basin exists, it would be easy to take the view, we think, that that owner of the land would be the sole owner of the water underneath it. If two persons or other entities should purchase each a half of that tract it would seem to be equally fair and rational to regard the two owners of the land as owners in equal shares of all of the waters. Why not, upon the same reasoning, regard all the owners of all of the many portions of such an area as co-owners of the waters in the basin? We think that they should be so regarded and that this is the vieAV that most nearly effectuates justice and coincides with early concepts of the laAV as to the ownership of the soil and all Avithin it. Their rights are correlative. Each should so exercise his right as not to deprive others of their rights in Avhole or in part. In times of plenty greater freedom of use probably can be permitted and ordinarily Avould be permitted without question. In times of greater scarcity or of threatened scarcity or deterioration in quality of the Avaters, all Avould be required under this view to so conduct themselves in their use of the water as not to take more than their reasonable share.”

I can perceive no just reason for applying the correlative rights rule, which is epitomized in the maxim sic utere tu,o ut alienum non laedas, to subterranean Avaters upon Avhich all superjacent lands are dependent for necessary moisture and not applying it to surface Avaters, that Aoav through natural channels, and to Avhich lower adjacent lands must look for necessary moisture. It cannot be said Avith reason or justice that so long as the Avaters remain imprisoned underneath the surface of an independent ili or ahupuaa the OAvner of the land is not their absolute OAvner but has only a correlative right to their use, but that if perchance they break away from their imprisonment and find their way to the surface and there manifest themselves in springs or ponds or lakes, from which they floAV through natural channels to lower levels, the owner of the ili or ahupuaa upon which they first appear becomes their absolute OAvner, to do with them as he pleases even to the utter ruin of others Avho are dependent on them. (Miller v. Bay Cities Water Co., 157 Cal. 256.)

The ruling in the Carter case that “Avhere a stream, floAvs through one ahupuaa into another each ahupuaa is entitled to a reasonable use of the surplus waters of the stream according to the principles applicable to riparian rights at common laAv” is, I think, a sound and wholesome doctrine.

Nor do I believe it to be incompatible Avith the laAv as it Avas declared in the earlier cases Avhich are cited in the opinion Avritten by the chief justice. Without reviewing in detail those cases, it seems to me that all of them dealt with situations quite different from the situation that was before the court in the Garter case and that is before the court in the instant case. Take, for instance, what may be termed the Wailuku River cases. Each one of them dealt with conflicting rights in the Avaters of the Wailuku River-, which rises and Aoavs to the sea within the ahupuaa of Wailuku. The quarrels that arose, therefore, Avere between the owners of different portions of the same ahupuaa and related to their apportional interests in the Avater. They were not, as in the Carter case, disputes betAveen the owners of adjacent aliupuaas through Avliose lands the Avater ran in a natural channel to the sea.

In H. C. & S. Co. v. Wailuku Sug. Co., 15 Haw. 675, the court said (p. 680) : “The Avaters in controversy may be divided into three classes: (1) those of the ordinary floAV of the Wailuku stream; (2) those of ordinary (small) freshets, which come about once in ten days; and (3)' storm Avaters (large freshets). These again may be divided into íavo classes: (a) surplus AArater, meaning thereby, as defined in 14 Haw. 61, the water, whether storm Avater or not, that is not covered by prescriptive rights and excluding also riparian rights, if there are any, and (b) Avater which is covered by prescriptive rights.” The meaning of this language, so far as it refers to riparian rights, is made clear by the first clause of the syllabi, wherein it is said: “The surplus Avater of an ahupuaa, meaning thereby the Avater, whether storm Avater or not, that is not covered by prescriptive or riparian rights, is the property of the konohiki, to do with as he pleases, and is not appurtenant to any particular portion of the ahupuaa.” I think it may be reasonably inferred from the foregoing language that the court intended to reserve for future discussion the very question that arose later in the Carter case, otherwise the reference to “riparian rights” would appear to be without significance.

Davis v. Afong, 5 Haw. 216, also cited in the opinion written by the chief justice, was a water controversy between a number of owners of taro patches and the defendant, a Chinese, who was interrupting by drains and a pump the flow of water in certain ancient ditches which ran from springs located on the defendant’s land upon lands which were owned by the plaintiffs and used for the cultivation of taro. In speaking of this case the court said, in City Mill Co. v. Honolulu Sewer and Water Com., supra (p. 937): “There was no similarity in the facts of that case to those of the case at bar. What the court decided in that case was, as stated by it in its own syllabus, that ‘by the rules of ancient Hawaiian agriculture the taro patches of the konohiki are entitled to Avater from springs on the land.’ ” This characterization is correct. ' That is all that Avas decided in the Davis case except that prescriptive rights can be acquired in a spring of water that floAvs in an artificial channel. There Avas no question of surplus Avaters involved. Of course prescriptive rights can be acquired in anything and where an artificial channel is constructed from a spring the only rights that could be acquired therein adverse to the OAvner of the land where the spring is located Avould be. prescriptive rights or rights by adverse use. They could never exist under the riparian rule.

So far as springs that have no natural outlet and do not form watercourses are concerned, the commondaAV rule is that they are owned by the owner of the land on which they arise. (3 Farnham, Water and Water Rights, Sec. 948, pp. 2738-2739.)

The court in the Carter case, evidently realizing that the question before it Avas not involved in any preceding ■ case and therefore had not been decided, said that it Avas one of first impression and should he determined according to the principles of the common law.

As I understand the opinion of the chief justice, one of the reasons given for thinking that the absolute ownership rule rather than the riparian rule should be applied in the instant case is that under the latter rule much of the water in question would be wasted because of the comparatively small area of Hanapepe lands to be irrigated, Avhereas under the former rule all of the Avater Avould be put to a beneficial use because of the larger area of the Makaweli lands. In other words, that because the benefits resulting to the MakaAveli lands from using all the surplus water Avould be so much greater by comparison than the injury to the Hanapepe lands from not getting airy of it the rule of absolute ownership should be applied.

Whatever may be said in favor of the economic reasons for applying the absolute ownership rule, as I vieAV the laAV these reasons are legally insufficient. The true test of whether a rule should receive judicial sanction is not Avliether in its application it will benefit more people than it Avill injure but Avhether in its application it Avill deprive a single individual of a right to which he is entitled. Of course, if the riparian rule has never received sound judicial sanction in this Territory and the absolute OAvnership rule, even betAveen the owners of adjoining ahupuaas, has been consistently applied, there are.no riparian rights. I am not convinced, however, that this is the state of the law.

In Peck v. Bailey, 8 Haw. 658, the court said in its syllabus: “A riparian proprietor has a right, as an incident to his estate, to use the water for irrigation and domestic purposes, provided he does not materially diminish the supply of Avater or render useless its application by others; but his riparian rights are subject to the prescriptive rights of others.” This is a succinct statement of the riparian rule and is clearly a recognition of it. The riparian rule was also recognized in the Carter case and, as I have already observed, seems to have been in the mind of the court in H. C. & S. Co. v. Wailuku Sugar Co., supra. Furthermore, the waste of water suggested in the chief justice’s opinion would, I believe, not follow even though the riparian rule should be applied in the instant case. If the diversion of the water to the Makaweli lands did not deprive the Hanapepe lands of water which they needed I am inclined to think that under the riparian rule the diversion would not be unlawful. If there was no injury to the Hanapepe lands by the diversion the proprietor of these lands would have no sufficient ground upon which to complain. In other words, if the Hanapepe lands received all the Avater they needed despite the diversion the diversion Avould be damnum absque injuria. In Lonoaea v. Wailuku Sugar Co., 9 Haw. 651, the court said in its syllabus: “Water may be transferred from land to Avhich it is an easement to land not entitled to it, providing .no one is injured thereby.” I believe this is the riparian rule. Speaking of the right to the use of Avaters, Kinney, in his Avork on Irrigation and Water Rights, says (Vol. 1, p. 842): “All the common laAV authorities concur that, when the amount abstracted perceptibly or materially diminishes the quantity of the stream, so that injury results to those beloAV, such a use of it by a riparian owner is unreasonable, and an infringement on the rights of other riparian OAvners, for which the laAV furnishes redress. Neither does necessity make any difference. As was said by Black, J., in Wheatley v. Chrisman: ‘The necessities of one man’s business can not be the standard of another’s rights in a thing which belongs to both.’ ”

It is suggested in the chief justice’s opinion that the application of the riparian rule to normal surplus water would endanger tlie entire Hawaiian water system. The Carter case, which applied the riparian rule to the storm surplus water that flows through one ahupuaa into another, was decided in -1917. Since the water system of the islands, so far as I know, has not been injuriously affected by the Carter decision it would seem that the application of the riparian rule to normal surplus water as well, which, so far as the law is concerned, is on the same footing as storm surplus, would likeAvise be innocuous.

■ It is, I trust, not impertinent to notice in this connection that the instant suit Avas not brought by an individual to AAdiom selfish motives might be attributed, but by the government itself, Avliich is the guardian of the interests of all its citizens and is supposed to act at all times in accordance Avitli * their welfare.

What, after mature reflection, I cannot sanction is a rule of laAV that gives to the OAvner of an ahupuaa or an independent ili upon which floAving water originates such complete dominion over the Avater that he may at his Avill use or misuse it in such a manner as Avill Avork irreparable injury and discomfort to others avIio, but for such arbitrary control, Avould in the very course of nature haATe their necessities supplied. It seems to me that the rights of adjoining almpuaas to the water that Aoavs by natural channel through both of them are correlative, and, I think, the support given this vieAV by the Carter case should not be withdrawn.

For the foregoing reasons I most respectfully dissent from the conclusion reached by the court that the decree appealed from should be affirmed.  