24 Haw. 47 | Haw. | 1917
OPINION OF THE COURT BY
This is a proceeding brought under the statute (R. L. 1915, Ch. 165) for the purpose of determining water rights in the Waikoloa stream, at Waimea, Island of Hawaii. The petition, which was filed on June 13, 1914, named as respondents the Territory of Hawaii and about sixty-two individuals. Many of the respondents made no appearance and an order of default was entered against them. The petitioner’s claims were contested only by the Territory, and both the Territory and the petitioner have appealed from the decision and decree of the commissioner. Respective counsel agree that the rights of those respondents who presented their claims and who have not appealed are not in issne in this court, and that the contest has narrowed down to one between the petitioner and the Territory only. In the petition the petitioner’s ownership of certain lands was alleged and the right to the quantities of water claimed as appurtenant thereto for irrigation purposes by immemorial custom was stated as follows: An area of 94.3 acres at Kaomaloo, within and a part of the ili of Waikoloa, through the ditch known as the “Lyons” ditch, not less than 940,000 gallons per day; three huleanas in the government land of Waikoloaiki, comprising an area of about nine acres, through a ditch (called Lanakila), not less than 95,000* gallons per day; five huleanas in the government land of Lalamilo (adjoining Waikoloa), and a grant (R. P. 1157) of a parcel of land containing an area of 250 acres at Lihue (stipulated to be a portion of the “land or so-called ahupuaa” of Waimea), not less than 2,000,0000 gallons per day through the ditch known as the “Akona” ditch. Also water for domestic use upon a parcel of land described in a deed from Kamehameha IV
Tbe commissioner held, as we understand from bis opinion, that tbe lands mentioned in tbe petition for which irrigation rights were claimed were in fact entitled to such. As to tbe land at Libue, be held that it was “entitled to water as of tbe date of application” for its purchase by Macy and Louzada. He also held that tbe government land makai of Libue was entitled to water from tbe ditches which reached it through Kaomaloo and Libue, meaning, Ave infer, that tbe Avater was formerly used by the inhabitants there for irrigation as well as domestic use; that tbe government’s right to irrigation water is still existent; and that since there has been a large decrease in tbe available water supply the petitioner’s irrigation rights would have proportionately decreased if they bad not been lost. Tbe commissioner held, however, that tbe evidence was so indefinite and unsatisfactory that it was impossible to say what quantity of water was appurtenant to any particular piece of land, and be further held that by reason of long non-user coupled with the fact that tbe petitioner as well as tbe individual respondents, by inaction, bad acquiesced in tbe installation by tbe Territory of its dam and pipe system, bad abandoned their rights to water for irrigation ; and that as section 471 of tbe Revised Laws, relating to tbe rights of tbe people on lands awarded to “landlords,” is declaratory of ancient rights and of tbe common law of HaAvaii, tbe petitioner and tbe individual respondents are entitled to water for domestic use from tbe
The case was exhaustively tried; a large number of witnesses were examined; and the transcript of testimony covers about 3400 pages. Elaborate briefs filed by respective counsel show much contrariety of opinion as to the law as Avell as upon the facts. So far as the facts found by the commissioner depended upon conflicting testimony they will not be disturbed under the ruling made in the case of Hilo Boarding School v. Territory, 23 Haw. 595.
The ahupuaa of Waimea in the district of South Kohala, Island of Hawaii, though mostly taken up by the ilis of Waikoloa and Pnnkapn (Harris v. Carter, 6 Haw. 195, 207), the former being now owned by the petitioner in this case, gives its name to the general locality in which this controversy arose. The Waikoloa stream, which flows partly upon government land, partly upon land of the petitioner, and for some distance along the boundary between the two, has from time immemorial been tapped by a number of ditches or amcais the three principal of which have in modern times been known by the names of Lyons,
We do not sustain the finding made by the commissioner that the right to water for irrigation purposes appur
Except as to the land at Lihue, which will be considered presently, the case is free from any claim on either side of prescriptive rights by adverse user. The principal questions are as to what effect the fact of a greatly diminished supply of water in the stream has upon the rights of the parties, and as to the right of the Territory to make a new use of a portion of the water. Private water rights in this Territory are governed by the principles of the common law of England except so far as they have been modified by or are inconsistent with Hawaiian statutes, custom or judicial precedent. R. L. 1915, Sec. 1. The law of priority of appropriation which prevails in the arid sections of the mainland of the United States has never been recognized in this jurisdiction. The diversion of water from natural streams by means of artificial ditches for domestic and agricultural use was practiced by the HaAvaiians before the advent to these islands of the white man. The ancient ditch systems connected with running
Where ditches are shown to have been entitled by ancient use to take from a stream a definite proportion of the water normally flowing therein the' same division is to be maintained in times of diminished flow. Peck v.
With reference to the land at Lihue some special points are to be considered. On behalf of the petitioner it is claimed that the evidence shows that at and for some years
It is well established at common law that the ordinary and natural use of water for household purposes, i. e., for drinking, washing, cooking, and for watering domestic animals, is a superior right to the use of water artificially, i. e., for mining, agricultural and commercial purposes. Gould on Waters (3d ed.) Sec. 205; 2 Farnham on Waters, Sec. 467. And we have no doubt that such is the law of this Territory. The ruling made in Kaalaea Mill Co. v. Steward, 4 Haw. 415, to the effect that where land has a water right the owner may use the water for any purpose he sees fit is not to the contrary. The question whether in case of diminished flow the right to water for artificial purposes would have to yield to the right for domestic use was not before the court in that case. We affirm the ruling made by the commissioner that the petitioner and the individual respondents, other than those against whom the order of default was entered, are entitled to water for domestic use, but not upon the ground upon which it was put. Section 471 of the Revised Laws, which was invoked by the commissioner, provides, mter alia, that
While the Territory is the riparian proprietor both above and beloAV the points at which Avater is diArerted to the lands of the petitioner it is obvious that the diversion by it of water to sell to the homesteaders is not the exercise of its riparian right. Such use, though a highly beneficial one, is a ne,AV and different use which could not be exercised to the detriment of the pre-existing vested rights of others. The evidence shoAved that the maximum capacity of the Territory’s pipe system is 700,000 gallons per twenty-four hours, and that the average quantity actually
We hold therefore, that' subject to the vested appurtenant rights of the petitioner and the individual respondents (who were not defaulted) to water for domestic use upon their respective lands, and subject further to the right of the petitioner to water for artificial purposes as below stated, the Territory is the owner of all the waters of the Waikoloa stream to the extent of the ordinary or normal flow; that the Territory lawfully maintains the dam and pipe system whereby it diverts water from the stream for the purpose of supplying the homesteaders and villagers of Waimea with Avater for domestic purposes not exceeding 700,000 gallons per tAventy-four hours; that the lands of the petitioner and the individual respondents are en
A decree conforming to the foregoing views may be entered.