*1 COMPANY, LIMITED, McBRYDE SUGAR Plaintiff-Appellant, Cross-Appellee, F. AYLMER
ROBINSON, al., et Defendants-Appellees,
Cross-Appellants.
No. 4879 10, 1973 January C.J., Richardson, Marumoto, Abe, Ogata JJ., Levinson, and Circuit Judge J., in Place of Kobayashi, Disqualified *3 ABE, OPINION OF THE COURT BY J.
This is from the of the Circuit appeal judgment Circuit, Court the of Fifth which determined the water of who are owners of land situated in the parties the trial on Island Kauai. The lasted Valley Hanapepe from The record of this May through August com- case includes witnesses testimony transcript 5,485 and ex- voluminous documentary prising pages hibits. decision, first deter- trial court
In at its the arriving of land owned mined the number of acres respec- at cultivation been under taro had tive parties, im- from time Land Commission Award the time of the memorial, water and thus entitled to rights. appurtenant Next, of water court determined average quantity taro, it termed acre used growing day per per 50,050 “duty gallons. water” to be After the determina- factors, McBryde tion of these two the court found that 4,915,400 State, gallons day; was entitled to per 4,167,650 gallons; Gay & Robinson Koula (below 1,555,050; landowners, Manuahi) and the other collec- 1,456,950. tively, trial court McBryde by
The also concluded that 2,084,600 adverse use had acquired rights to prescriptivе gallons, thereby McBryde could divert seven million gallons day of water per (4,915,400 appurtenant Inasmuch prescriptive). prescriptive 2.084.600 against could not be government, deemed court held that the amount of prescriptive right to water should be deducted from or charged against the water rights Gay &Robinson. Gay record that both 8c shows diverting from the River Hanapepe
Robinson are water basin, so much so that the mouth of the River dry year. throughout Accordingly judg- practically Gay entered to leave ordering ment was Robinson gallons day in the river for per 12.624.600 owners, of the other above indicated. use McBryde, Gay & The three Robin- principal parties, son, each the judgment and the State from appealed urging different on points appeal. APPLICATION OF
I. TERRITORY v. GAY. trial
The first basic issue before us is whether Chief adopting opinion court was correct Perry Gay, in Terr. v. (1930). Haw. Justice *4 res that the case is urges & Robinson decision of that Gay as between the State and & Robinson. judicata The rule of that case is that 8cRobinson was of Koula owner of the ilis1 or ilis independent kupono section, importance mean interpreted 1 An Hi has been a “land next Elbert, Pukui ahupuaa usually ahupuaa.” subdivision of an Chinen, Land Dictionary Titles (1971) Original Hawaiian at 91 . See also Jon (1961) in Hawaii at 51 . 178 Manuahi; that under ancient law konohikis2 of ilis
kupono were independent of the konohiki of the ahu- puaa3 him; and paid no tribute to though he sub- servient and paid directly tribute King, to the and that as owner of such ilis Gay & kupono, Robinson was owner of the normal surplus water. existing
Under the final judicata doctrine of res “an merits, judgment rendered or upon the without fraud collusion, by a court of is conclu- competent jurisdiction, issue, rights, sive of and facts in as to the questions, parties and their privies, all other actions same other tribunal judicial of concurrent jurisdiction.” 560, Glover v. Fong, Haw. 573 (1958). 42 This recognized general doctrine principle by formulated based on the obvious judiciary practical role necessity of reason and to promote justice, fairness, stability and social and expediency, economic “ftjhis words, society. our In general other rule very demanded have object for which civil courts established, been which is to peace repose secure society by the settlement capable judicial of matters 574, determination.” Glover Fong, suрra quoting v. at Southern States, Railroad Co. United 168 U.S. v. Pacific 1, 49 (1897). doctrine
Some courts have held that inasmuch as the rule of res is adhered to the courts judicata if do so rigidly should not be so justice, applied an in will to defeat the ends of or to work justice 23, Mather, 1 v. Cal. justice. 2d P.2d Greenfield ; Lauderdale, City Universal Const. Co. v. Fort (1948) ; Somerville, (1953) People 68 So. 2d 245 N.E.2d 461, Ill. Motor Accident Indem (1969); Vehicle 2d Co., 19 Grange v. National Ins. Corp. Mutual nification 367 (1967). N.Y.2d 278 N.Y.S.2d “a head division” id. ahupuaa 2 Konohiki means man of at see also Chinen at 53. extending means “a land 3 Ahupuaa usually uplands division from the the sea . id. at . see also Chinen at *5 courts, by other we rule enunciated In spite such inap- res as judicata to treat the doctrine of are reluctant &Gay between the State and in this case as plicable Robinson, There- though may be justice even subserved. fore, Gay, hold rule of Terr. v. Haw. we that the binding on in this case. is the State Robinson,
However, Gay 8c McBryde between and State, not faced with and and we are parties, of res these doctrine as between judicata, v is we the rule Terr. question whether will follow Gay, 31 Haw. under doctrine of stare decisis. fully these We discussed differentiated between two doctrines in Haw. Glover v. at Fong, 42 follows:
“The res is concerned with judicata doctrine of a or an and the cause action issue adjudication a action subsequent effect of such in adjudication involving same parties between record decisis cause of issue. doctrine of action or stare may legal relates to the extracted principle from action or an issue adjudication cause of in a application and the of such principle subsequent involving strangers action the record between * * * say similar action or we cause of issue. When record, were to the we mean who parties persons adjudication the action parties made; record, mean say strangers to the when we we not in such action. persons parties who were There no element of the doctrine estoppel is be- only in of stare because it actions applies decisis tween If is a strangers to there contention record. strangers in an action between record errone- prior principle for decision is stands interest, ous, or operates unjustly against public such contention is otherwise objectionable, taken, the decision well the court which rendered * * * overruled, it When a decision overrule it.
does mean that the adjudication of the obligations nullified; parties the record is *6 it only legal means that the principle contained in the decision will not be applied the determination of a cause of action or issue in an action between strangers to the record.” (Citations omitted.) And as the United States Supreme Court said in Helver (1940): ing 106, v. Hallock, 309 U.S. 119
“We recognize that stare decisis embodies an im- portant social policy. It an element represents law, continuity in and is rooted in the psychologic satisfy need to reasonable expectations. But stare decisis is a principle and not a policy mechanical * * formula for adherence to the latest decision 210, Reeves, See also Humthlett v. Ga. 85 S.E.2d 25 (1954). court, Court,
This like the United States Supreme has “rejected disability a doctrine of at self-correction.” Helvering Hallock, v. at supra believe that the We doctrine of stare legal decisis is subordinate to reasons justice unduly we should not be hesitant overrule a former decision bring when to do so would other, about what is the considered manifest In justice.4 words, there necessity no sound legal reason to perpetuate error under the of stare decisis. doctrine we should not course, hand, Of on the other change case just change. law for the of a sake II. STATE OR SOVEREIGN RIGHTS.
In
v.
31 Haw.
this court concluded
Gay,
Terr.
Gay & Robinson was the owner of Koula
that as
Manuahi,
kupono,
both deemed ilis
and therefore
such
Abellano,
4 See
Yoshizaki v. Hilo
50 Haw.
384, 441
Hospital,
P.2d
(1968).
Haw.
Let us review controlling of “normal Gay, supra Terr. v. on the issue daily water.” surplus
In Peck 8 Haw. court Bailey, said: had King Ahupuaa,
“While the owned this he land he apply pleased, water to what made, but after the water courses more especially were immemorial, con- being after veyance in use from time his them, same as of the land would include conveyance his on the bordering Wailuku river, river will include the in said which had not granted.” been before *7 However, reads: “The owner syllabus or headnote the it to belonging the water to apply of Ahupuаa rule land he and this has been held the pleases,” what of the case. case, assuming
Even that it is the rule of the it controversy among grantees dictum because the was of from had original the konohiki whom each of them of the land in the portions ahupuaa title acquired Wailuku.
It is stated in Haw. Com. & Co. Sugar v. Wailuku ancient Co., 15 Haw. that under Sugar (1904), as he was King “the sole owner of the water law the land and could or both as the rest of do with either been years, In later to have he the rule pleased. seems for except him not to their lands dispossess for tenants of extent, not have cause he would perhaps, their lands deprived cultivators of the water to limitation, far as we by usage were entitled. But no as learn, exist to his can ever existed supposed or was to use the saw fit.” We believe surplus waters as he power Ha- correctly under ancient the statement the law states waiian law.
Based on this premise, Haw. Com. & Sugar Co. case concluded that surplus water was the property the konohiki or chief to whom an had ahupuaa been maheled5 and he could do with it he This pleased. as also was dictum controversy as the involved in the сase was between owners of portions of an and did ahupuaa rights involve the against rights konohiki of others with lesser water interest.
In Carter v. Territory, Haw. court said a through single stream flows “[w}here it ahupuaa has been decided that between ahupuaa therein, and kuleanas6 con- portions ahupuaa veyed rights without surplus surplus waters of the stream belong to the ahupuaa.”
On the issue as to the parties surplus waters of stream which flows from one into ahupuaa another, this court applied principle riparian rights and said “each entitled ahupuaa is to reasonable water, first, use of such for domestic use upon upper then for ahupuaa, upon the like use ahupuaa, lower and, lastly, for artificial each purposes upon ahupuaa, the upper having to use the flow surplus with- diminishing out it to such an extent deprive as to existing lower of its under circum- just proportion Territory, Carter at Of course in supra stances.” only that case the issue related to storm and freshet water However, against claimed the state. plaintiff say only to be not be too restrictive to the rule was to storm freshet water would applicable *8 to normal water. surplus applicable reasoned that Gay, supra, This court Terr. When at Mahele Dictionary other. at in land between the 165; 5 The term mahele means to divide 6 Kuleanas are small Chinen at used Chinen at 54. of at see page 7; which See also Wells context King on one hand and parcels accomplished infra. H. of land Chinen, Hutchins, of land within an titles, Original or the The Hawaiian apportion. division of reference is the chief Land Titles in ahupuaa. Pukui System the undivided interest usually konohikis Elbert, of Pukui & Elbert Hawaii at 55. Water to the Hawaiian Rights on Great the generally the had held three cases aforementioned water, surplus to konohikis of were entitled ahupuaa therefore, of an ili which ili was kupono, konohiki the of and owed no tribute to independent ahupuaa the normal konohiki of the likewise entitled to ahupuaa was daily reaching In this conclusion it stated water. surplus an ili that a konohiki of an ahupuaa of tri- or a of the owed ahupuaa, mere of subdivision part hand, other bute the konohiki of the On the ahupuaa. to of kupono, indеpendent konohiki of ili which was the of the no tribute to the konohiki owed ahupuaa, king.” directly but to the ahupuaa, “was subservient However, assuming factors, under even these (p. 381) reasoning Gay, both the konohikis supra, the Terr. v. the Manuahi and Koula would be subservient of ilis of being Hanapepe, the konohiki of the of he ahupuaa to himself, having been King ahupuaa Hanapepe of Thus, land. not King as Crown would retained indepen- follow that the ilis of Manuahi Koula were been dent of have ahupuaa Hanapepe, not of had Hanapepe so if the konohiki of ahupuaa King been the himself. tract very large
Also, the is a ahupuaa Hanapepe It River. abutting adjoining of land or Hanapepe least, King who very say to for would be foolish convey transfer retained ahupuaa the konohikis rights King surplus his of the ilis to all Thus, in “kupono” Koula Manuahi. intent, it should expressed the absence such by mahele his King deemed that the transferred held it should be to the and therefore surplus subse- Manuahi that the mahele of Koula and Royal Land Commission Award and issuance quent water. King’s right surplus not transfer the Patent did Further, an ili that the ili Koula was finding mahele by the record. is not substantiated kupono Koula was maheled that one half of record shows *9 184
Paniani and one half of Koula by King was retained 1, on February 7, 1848. Subsequently Act of June 1848, land, one designated half of Koula was public change from Crown land. It is clear to us that the designation “y2 of of Koula ili no Hanapépe”7 shows that at least one half of Koula an was intended to be kupono ili and therefore independent of the ahupuaa of Hanapepe, but of or a part subdivision of Hanapepe. Thus, when one half of Koula conveyed by was Ha- government 30, waiian May on by Royal 1853 Patent 1108, Grant conveyance such of an of ili should not have made the whole Koula ili of an kupono, assuming even one of half Koula had been maheled Thus,
Paniani as ili kupono. the State would entitled to one half or much so of the of the Koula surplus Stream, as owner of the of of ahupuaa Hanapepe, one half of Koula was a part.
More importantly, can it be said that because King was the sole owner of all in the Hawaiian Kingdom water, and also con sоle owner of the which is land, part sidered and because do he could what ever he conveyed wanted with he surplus when konohikis, parcels of land to King such of surplus water became the of konohikis as inti property mated dicta of court Bailey, this in Peck v. 8 Haw. Haw. Com. & Sugar Co. Wailuku 675, Sugar Co., 15 Haw. answer (1904)? To question it is required that we review the Great Mahele and the implemented laws which mahele. Mahele,8
By the mahele or III Great Kamehameha waii’s Appendix, Frear, of his land. delivered Hanapepe” in the same 8 Prior to the mahele the King permitted 7 Act Magna Carta J. The Evolution June p. “In (meaning year the Rev. William 2152, 7, [June 1848, 2174, Yz adopted securing course of lectures on L. °£ Koula 1839] the Hawaiian Koula, 1848, Richards p. ili of the designated 22; Declaration of C.C. Judiciary, all to the chiefs at chiefs, etc., ahupuaa p. to wit: 374 RLH science pp. Rights, aptly person "Yz use certain parcels Hanapepe). their 1925, government (1894) and property.” Koula, request Volume called . ili no Ha was II, sharing lands in proclaimed he was *10 Kingdom generally Hawaiian with his It is rec- people. ognized that the mahele did transfer parcels title to of land which had been The Land Commission maheled. Act9 has the mahele. This Act created the implemented Commission, Board of Land mission, Land Com- often called the authority titles and it defines quiet and function of the Land Commission. The object the law “investigation was to have the commission make and final ascertainment all rejection or claims individuals, private foreigners, whether natives or King- landed property acquired” in the Hawaiian dom. The awards of the commission were to be deemed final and binding all upon parties appealed. unless carry
To out its duties the Land Commission on 1846, 20, August by to be adopted principles followed it in title to quieting land. Both the Nobles and Rep- 26, Legislative resentatives in the Council October on approved by resolution. The principles resolu- tion also provided that “all claims for landed property * * * by according shall tested those principles, to them be confirmed or rejected.” acts, duty
As indicated these object the Land Commission reject was either to confirm or parcels claims of individuals to of land in the Hawaiian Kingdom and title to lаnd be con- so confirmed was to veyed by Royal Patent In- issued the Minister of terior.11
The principles specifically emphatically and most only indicated the Land authorized Commission was p. Apendix, also L. Rights, February time to time. 68. 9 This 11 L. 10 L.1847 1854, provided June 1846 at p. law was enacted p. 7, 21, at 2120. 1846; L. for 1839. 81, CC. 1848, The RLH Laws the confirmation of titles to land under Declaration RLH 1959, p. power of 46, 1846, p. on December CC, 1859, 415; (Appendix, p. (Appendix, 107 and L. 1854, p. Land 402; 10, Vol. appears p. Vol. Commission was L. 1845 and became effective 25, II) 1853, II) CC. at at p. 1959, R.L.H. 26, ff. CC. p. extended from 1925, 416; 1959, provisions L. Vol. p. 1892, 410; on II, convey King’s rights certain of the in land which had him, been bestowed to wit: upon individuals feudatory right as an individual private “{H]is sovereign pre- not his participant ownership, rogatives head of Among pre- the nation. these rogatives following: which affect lands are the JZ. JZ. JZ.
J*. encourage the usu- “3rd. To and even enforce * * fruct good of lands for common # [*] [*] # duties, Maj his “These prerogatives, power not, esty ergo, cannot Hence ought he surrender. *11 titles following the of the board and confirmations subject them must be consequent upon understood II, 85; 1925, to conditions.” RLH Vol. these 2124, L. p. most the right bеlieve that to water one of the
We lands, us it clear to appears usufruct of and important right was by foregoing that limitation the to water the of definitely reserved for the specifically people and grants.12 of good Hawaii for their common in all the by Mahele and Land Commis- subsequent Thus the Royal right Patent to water sion Award and issuance of be, be, and not trans- not to could not was intended was principles cognizant of the first (1847), ground, Also, moors, “Land. — nent buildings.” 3 Kent’s according 12 Itshould be noted thing as trees, wherein objects; in case which is attached waters, adopted by Corporeal Blackstone, soil, herbage, Comm. of Wood to the all Lord it also or earth marshes, furzes, common law [401] and hereditaments Coke includes not De Luxe v. Stark the mentioned Blackstone and here that “corporeal water, may whatsoever; Land to the be Edition, reported rule at and heath.” comprehendeth Commission the leaders hereditaments by earth, consist as it in the Hawaiian the only is stated whether hand of arable wholly of the Hawaiian time the in 1845. are confined to in meadows, ground at Kent commentaries. of substantial and of man, by its 732: the the legal signification This is as houses Reports, or enactment of course of pastures, soil, Kingdom indicated land, which but and 1 Haw. nature, perma- woods, every- other were the in [9] 187 in awardee, and water ferred to the the ownership watercourses, and remained in streams rivers natural Therefore, common of Hawaii for their good. people be- and and we hold that as between State McBryde, Robinson, is the tween and & State Gay McBryde in Koula Stream and of the water owner River. to It this Act was that similar Eng- very appears time, which had that
lish rules evolved common law in that water no one running property acquire watercourse; water was that natural flowing publici used it was common juris; property it, water- had of access to as usufruct all who Adol., Hill, Mason v. 5 Barn. course.13 See Eng. Rep. (1833).
III. APPURTENANT RIGHTS. not does mean holding foregoing & Robinson are not the use of water entitled to Waud, Eng. 13 In Exc. Rep. Wood
English court stated:
are,
sense,
air,
light
‘publici juris.’
well
“Flowing
as
one
all,
only in
mode
They are a boon from Providence to
and differ
their
directions,
water
Light
flowing
all
enjoyment.
and air are diffused in
established,
enjоy
each
had the
property
some. When
one
over,
through,
flowing
portion
air
light and
diffused
and the
him;
belonging
property
the water itself was
soil
it,
through
only
but
the use
proprietor
passes,
of the land
along,
incidental
enjoymeiu
as it
for the
his
passes
property,
*12
to it.
Kent,
439,
‘Every
Com.
thus:
laid down
Chancellor
in
by
The law is
3
naturally
equal
a river
an
proprietor of
on the
has
lands
banks
itself, but
property
He
no
in the water
the use of
water.
as
...
has
currere,’
currit,
passes along.’ ‘Aqua
usufruct
it
and Mr.
et debet
is
simple
law;
Story
Tyler
in
v. Wilkinson Mason
language
(4
Justice
Easements,
131,
down
p.
lays
on
Whatley
cited in Gale
397),
U.S.R.
the
law.”
same
353,
Owen,
Also,
Eng.
155
Embrey
in
Rep.
Exc.
English court held that:
lowing
juris,
water
not in the
that
bonum
publici
sense
ais
“[F]
vacans,
but
occupant may acquire
right,
which
the first
exclusive
reasonably
in
public
that it is
use it who
and common
sense
that all
only,
may
it,
a right
have
that
have any property
access to
none can
itself,
in
except
particular portion
the water
which
choose
he
Koula
Stream and Hanapepe River. It
gen
eral law of this jurisdiction that when land
by
allotted
the Mahele was confirmed to the
by
awardee
the Lаnd
Commission
Royal
when
Patent was issued based
and/or
award,
on such
conveyance
such
of the parcel
land
carried with it the appurtenant
right to water for taro
growing. Peck v. Bailey,
8 Haw.
661 (1867); Wai
luku Sugar Co.
;
v. Widemann,
In its the trial court found each party’s “appurtenant rights” by calculating the number of acres of by land owned the respective parties which had been under taro cultivation at the time of the Land Award, Commission and multiplying the number of acres the average quantity of water used per day per acre in taro, growing 50,050 which the court found to be gallons. Both and the argue State trial court failed to include acreage they certain claim was in cultivation of taro from “time immemorial” at the time of the Land They Commission Awards. also claim that reduction of taro acreage by third ac- one count for fallowing was an error. The trial court’s deter- mination of the amount of acreage taro cultivation at the time оf the necessarily awards was a complex task, factual issue and very difficult requiring weighing of conflicting testimony. expert task,
The trial sitting court’s as Commissioner of Ways Private Rights,14 Water was to determine as precisely as possible the amount of actually water that was being used for taro cultivation at the time of the Land
-flows 14 SeeHRS 664-31 the adjacent to abstract the time through it.” § from the stream and his possession only: et has the seq. see B. & take into the usufruct of the stream his Ad. possession, But each proprietor during
189 Commission Awards. The burden of was on the proof right. person asserting The fact in earlier later times other land was in taro cultivation is irrelevant. a fallowing And reduction for should be made properly when it that at time of the Land Commission appears Awards not being water was used to cultivate certain Also, acreage.15 difficulty due to the complexity the task it would reasonable to not expect parties favored the findings of trial court to attack such findings. commissioner,
The Circuit sitting Court pursuant 664, III, to HRS Ch. subject Part is to Hawaii’s Rule of Civil Procedure because such proceeding is not ex Here, ceptеd under HRCP Rule 81 after review (a). record, we are not convinced that mistake has 238, been committed. Peine v. Murphy, 46 Haw. ; 377 (1963) Klein Kaimana, P.2d Inc. v. Hotel 268, 269, Haw. Thus, under (1969). P.2d. HRCP Rule 52(a) finding of the trial court as appurtenant water rights clearly not erroneous therefore it not be set aside.
Therefore, we affirm the trial finding court’s 4,915,400 entitled gallons day; per water State, 4,167,650 gallons day; per Robin- son, 1,533,050 gallons day per for of land 30.63 acres that it owned below Koula and Manuahi as appurtenant rights. water
The court found that Gay & also Robinson was en- titled appurtenant rights water to 90 acres of Koula and Manuahi based on Judge Cristy’s statement Court, First Equity Circuit and re- appealed Gay, as Terr. v. ported 31 Haw. 376 No such (1930). finding was made in that case necessary and it 15 It a bit quaint age does seem determining this to be on land happened basis what to be in taro cultivation in 1848. Surely Nevertheless, system other must be more sensible. is the law in Hawaii, and we are bound legislature to follow it. We invite the to conduct thorough re-examination of the area. *14 finding
to make such because the issue was sole to “daily of the normal waters.” As ownership surplus rights, Gay claim 8c water Robinson appurtenant had the burden of but no was intro- proof, evidence by Gay duced 8c Robinson to meet this burden. The Gay failure of 8cRobinson to meet burden also is acknowledged Findings of Facts and Conclusions (item 64), of Law wherein is stated: “Gay & entitled Robinson is also to appurtenant for land and Manu- rights water 90 acres of in Koula ahi, which quantity can not determined duty the absence evidence to the water.” as (Emphasis added.) Thus, finding of the trial court as to appurtenant land rights water of 90 acres of in Koula and Manuahi reversed and set aside. right to
There
no
that
water
question
appurtenant
taro land
title
confirmed
attached to the
when
land
conveyed
Land
Commission Award and title
However,
Royal
the issuance of
it does not follow
Patent.
4,915,400
gallons
that
to
because
is entitled
1,533,050
Gay
gallons
appurtenant
and
& Robinson to
them
by each of
rights
water
of land owned
parcels
Valley, they may
therefore divert
the Hanapepe
that amount of water without
transport
by them
Valley to be used on other
owned
parcels
indi-
“appurtenant”16
elsewhere. As the use of the word
cates,
or annexed
rights
pertain
it is water
сonveyed by
original
that
of land
particular parcel
nexed or
estate —used
sary
to land or
ing
realty,
16 Webster’s Third
Words
Black’s
to;
for the full
accessory
means
belonging legally
&
Law Dictionary,
of certain
building);
Phrases —
enjoyment
incident
includes all
“Appurtenances
profits
New
b. Incident
International
Revised Fourth Edition:
to some
or
to;
easements .
adjunct,
property conveyed.”
to and
more
as used with reference to
appended,
Dictionary:
.
important
.”
interest
passing
or annexed to.”
in other
"appurtenant
“Appurtenant.
thing
possession
property
(a
right-of-way
conveyance
with
Belong-
a:
neces-
real
an
government. Peck v
King
or Hawaiian
grant from
;
v.Co.
Bailey,
(1867)
Sugar
8 Haw.
Wailuku
;
Widemann,
&
Co.
Sugar
Haw. Com.
(1876)
IV. RIPARIAN RIGHTS. State, Robinson,
McBryde, and owners Valley, may of land in have wаter other than rights. water This court in Terr. appurtenant Gay, recognized right such a Haw. and said: ahupuaa
“Water for domestic on lower purposes Every is in event assured under law. Hawaiian land, small, portion large ili or kule- ahupuaa, ana, was, dwelt ancient upon people under the should, my system Hawaiian whose retention in drinking continue entitled to opinion, unqualifiedly, water for its human and for their animals occupants for domestic pur- and was entitled to water other history this At no time in Hawaii’s has poses. judicial been denied.” right to water recognized
This court and included this ancient purposes part appurtenant for domestic rights. Now, Hawaiian or ancient what is this Hawaiian law acknowledg- This system mentioned the decision? believe, water, right ment we of the to domestic right in “Enactment recognition guaranteed Further Principles,” enacted Hawaiian Govern- 6, 1850, ment on August 202,17 Laws p. the perti- nent portion of which provides:
“The people [meaning also have owners shall land] a right water, to drinking water, running the right way. water, The springs running all, and roads shall be free to they should need them, on granted Provided, all lands simplе: fee shall not be applicable to wells water courses which individuals have made their for own use.” then,
Section 577 of RLH the effective statute contained the provision guaranteeing the drink- right “to ing water and to running crystal It water.” clear that the statute reserves to land right owners the to both “drinking Now, water” and “running water.” what is right “running guaranteed water” landowners? As the to “drinking water and running water” in artificial watercourses constructed individuals for their statute, own is excepted by use “running the term watercourses, water” must mean flowing water in natural such as streams and rivers. We also believe that the to “running water” as contained land owner the same flow of guarantees therein a stream or river mahele, as at the time of the without substantial diminu- *16 tion, or the right to flow of a stream in the form and size A portion own use.” plicable to wells and use. from the land on which on all lands way. 17 The entire Act also have a titles to their not have a now appears “Building Where the right of this statute has been on our springs right right to take granted lands, as materials, water, landlords HRS appears to take such drinking water, firewood, watercourses, § in fee simple; provided, 7-1 people they in RLH have running live, water, articles on each house-timber, obtained, reads: etc.; for which individuals have made for their landlords’ their of their lands shall not be books since its (Appendix, Vol. running sell for own and roads shall be free to may aho private titles hereafter profit. cord, water, this shall not be subject original use, thatch, II) The and the obtain, but at people to 2141, or ki enactment they deprived right allodial tenants’ 2142. shall shall leaf, ap- all, of in connection with may be right This by nature. it given bathing, etc. swimming, canoeing, laundering, right of his for reason the possible consider next We shall missionaries, that the are the law. We aware enactment only Massachusetts, not from came many of whom people, the Hawaiian religion to the Christian brought law common English them the brought with but also Also, history shows recognized Massachusetts. the leaders among influence had tremendous
missionaries
Kingdom.18
the Hawaiian
Alden,
the Mas
(1811)
v.
Massachusetts court had land natural watercourse adjoining farm; however, held it also his irrigate use the water to from natural that he not divert such water could In an owner of land below. channel to the detriment of , Mas Anthony (1827) Mass. Lapham, 22 man, “[ejvery through whose sachusetts court said water passes, watering irrigat use it for his cattle or land, ing way his but he must use it in latter so do the possible injury neighbor least to his who has It right.” interesting the same to note that on this the court as point footnote 1 refers to 3 Kent’s Com 439, 444. (13th mentaries ed.)
In 3 Kent’s Commentaries (13th ed.) stated:
“Every lands on the banks of proprietor naturally an river has to the use of equal lands, flows in the stream adjacent water which to his (currere to run solebat), as it wont without 18 See footnote
diminution or alteration. No proprietor has water, to use the to the prejudice of other proprietors, him, above or below unless he a right has to divert it, or a title to some exclusive enjoyment. He no has property itself, in the water but a simple usufruct while it passes along. Aqua currit et debt ut currere currere solebat is language Though of the law. he use the water while it runs over his land as land, incident to the he unreasonably cannot it, detain give direction, it another and he must return it to ordinary its channel when it leaves his estate. Without the consent of the adjoining proprie- tors, he cannot divert or diminish the quantity water which would otherwise descend to propri- below, etors nor throw the water back upon pro- * * prietors above In Tyler Wilkinson, 4 Mason 400 (1827), in a case involving River, of the Pawtucket which forms a boundary between the States of Massa- Island, chusetts and Rhode Story stated: Justice every “Prima proprietor upon each bank facie of a land, river is entitled to the covered with bank, in front of his to the thread of the middle stream, or, as it is commonly expressed usque filum aquae. In virtue of he has a ownership the use of the water flowing it in natural over its current, But, without diminution or obstruction. strictly speaking, he no has water it- property self; but a it, simple along. use while it passes is, consequence of this principle propri- no a right etor has to use the water to the prejudice immaterial, another. It wholly whether the party below, proprietor above or in the cоurse of the river; right being common to all the proprietors river, on the no one has a right to diminish the will, current, quantity which according to the natural *18 below, a upon throw back a or to it flow to proprietor stream, existing natural above. . . . The proprietor the benefit of the by bounty Providence for the of annexed, flows, an incident land which it through law, I by speak of the itself. to When operation understood, right, of I do not mean this common doctrine, diminu- that there can be no holding as tion the whatsoever, impediment no obstruction whatsoever, of by in the use riparian proprietor, a may a the There be diminution water as flows .... of or a acceleration retardation or the quantity, general current for the indispensable
natural water, consistent valuable use the with perfectly right. . . The maxim of the common . existence tuo, sic laedas.” utere ut non alienum applied, Howard,10 In v. 1 & Stuart Wright Simons Chancery English said: Court “Prima of each bank of stream proprietor facie, by half is the the land covered proprietor stream, Every but there is no the water. property right has proprietor equal to use the water stream; and, consequently, flows in the no proprietor can have the right prejudice to use the water to other the consent of the proprietor. Without by opera- other who be affected his proprietors, can proprietor quantity tions no either diminish would, water, descend to the pro- otherwise below, nor throw back prietors upon the water above.” proprietors Adol, Eng. Hill, v. Rep.
Mason 5 Barn. (1833), is case where issue was whether the defen water, by diverting twenty dants for a than period less years, appropria first acquired had tion so been denied plaintiff that the who had flow of holding, interesting 10 It is 3 Kent similarity note the o£ courts’ Wilkinson, supra, which are all contem Tyler Commentaries at 439 poraneous. water in a through natural watercourse which flowed his field could damages. English recover court said Commentaries, Blackstone’s “2 a move- p. ‘Water is wandering thing, necessity able and must of continue nature; common only law of so that I can have transient, therein; temporary, usufructuary property if a body wherefore my of water runs out into pond ” man’s, I another have no it.’ (p. 700) reclaim Then it said: authorities,
“From these it seems that the Roman vacans, running law considered bonum not as a *19 any in might one but acquire property; common, or public only, might in it, sense that all this it, necessary drink to the apply purposes of life; any supporting and that no one had property itself, in the water except in particular portion, that stream, might which he have abstracted from of which he had the during the time possession; possession only. such think ought
We that no other to interpretation Blackstone, be in put upon and that the passage to, dicta of the Judges learned referred in above which water is said to are not be publici juris, to sense; any in understood other than and it ap- law, nor, authority to pears us there is no in our as far know, however, as we no in the (which, Roman law authority in (though the first ours), occupant may any he above) be the of the land has proprietor stream, right by diverting the the owner deprive to below, of the land the special advantage benefit and natural Eng. flow of water therein.” 110 Rep. at 701. 692
In Embrey Eng. v. Exc. Rep. Owen, 6 579 English court said: (1851) the right “The the stream in its natural have to flow state diminution or alteration is an incident without it through passes; in the land to the property the sense flowing juris, but water is not in publici vacans, occupant that it a bonum which the first may right, public but that it is exclusive acquire only, may rea- common this sense that all it, that sonably use who have a of access itself, any none can property except have which he choose particular portion abstract from the stream and take into possession, his only: during and that see possession the time of his adjacent 5 B. & Ad. But each proprietor land has the to the usufruct of the stream which through flows it.” said law court also principle Howard, Hill, by Wright supra,
established v. v. Mason Waud, supra, Wood v. and cases decided Amer- supra, ican also courts. It cites 3 Kent’s 439-445.20 Commentaries Gilmour, Eng.
In Miner XII Moore P.C. Rep. from involving case Canada claims of water between owners of on the property river, opposite English banks of court applying riparian rights doctrine of said did appear “[i]t that, case, for the purposes of this material distinc- tion exists between the and English French law.”
It appear light would that in history and his- *20 background torical Kingdom, of the provi- Hawaiian the 6, sion of the lаw enacted in August 1850 reserves which to owners property the “right drinking water water,” running statutory was a codification or enact- ment of rights the doctrine of riparian recognized part as by English common law and Massachusetts courts.21 therefore hold
We that under the statute a proprietor paragraph. The ed., Kent’s 20 Then at 21 On at Commentaries, 439, point page fact quotation [586] it should be the entire 13th ed. it quotes section on noted that extensively appears there is the same Running from rule of 3 Kent’s Water McNaughten’s Commentaries, excepting the as the text in 3 Case, 13th first [10] 198 water riparian natural watercourses has
of land adjoining
Robinson,
State,
Gay &
McBryde,
Thus,
rights.
Hanapepe
adjoining
of
of land
parcels
owners
as
— right to
Stream have such
River or Koula
prejudicing
flowing therein without
use water
flow
and the
to the natural
rights of others
riparian
of the stream without
and in the
diminution
substantial
right is
by
incapable
nature. This
given
and size
shape
day. Of
gallons per
number of
of measurement
into
course,
only
adjoin-
right appertains
the riparian
a natural
for its use.
ing
watercourse
RIGHTS
V. PRESCRIPTIVE
McBryde
entitled
that
was
trial court also found
day
pre
2,084,600
adverse
water
gallons
per
claim
not
general
is that one
use. Thе
law
scriptive
title to or
use.
by adverse
property
in state-owned
interest
537, 552,
Title,
Hawaii, 49
425
Land
State
Haw.
Re
357,
;
Kioloku, Haw.
In re Title
(1967)
P.2d
;
Rec
Puahi,
(1908).
See Clark a defense HRS & Fin. § 703-4. a criminal case, Eng. Rep. codified Hawaiian recognized insanity Kingdom in *21 VI. “NORMAL DAILY SURPLUS WATER” Gay,
In 31 Haw. it decided (1930) Terr. v. daily Gay & Robinson was entitled to “normal sur- assump- water.”22That decision was based plus upon may tion that there would be of water which quantity daily be deemed “normal water” after the water surplus Valley all rights of the owners of land in the Hanapepe determined; however, time, were at that determina- no rights tion as to the water parcels owners of of land in Valley had been made. In Hanapepe sense, the decision was made in a vacuum. Both State and McBryde owning land abutting the River Hanapepe rights are entitled to riparian water over and above the court, appurtenant under as determined trial and they doctrine are riparian entitled to amount of flow of water in both the Koula Stream Hanapepe River as water flowed in river stream and at the time of the award without diminution. substantial words, In they other are entitled to have flow of water given River in the size shape Thus, by nature. there can be no quantity of water may water,” daily deemed surplus “normal &: nothing ruling Robinson is entitled under that case.
Also, Gay may ap- Robinson not claim the propriate purtenant rights ap- adverse to the State’s riparian
because one not claim interest or title to State use. or interest adverse property, VII. AND RIGHTS TO “STORM
FRESHET” WATER holding We reiterate our II that title to under point good water was reserved to the State for the common by the trial court and question 22 This was the sole issue decided Supreme Hawaii Court.
when land parcels of were allotted to thе awardee under Thus “storm and prop- mahele. freshet” water is the erty Hawaii, of the State and we overrule Carter v. (1917). Haw.
VIII. SUMMARY
1. McBryde, McBryde As between the and State and Gay Robinson, and & the State is the owner of the water flowing in the Koula Stream and How- River. Hanapepe ever, land, the owners having riparian either or both or appurtenant rights, right water have the use water, of the but no itself. property the water State, McBryde have Gay & 2. Robinson both in con- appurtenant riparian rights to water nection with How- Valley. land within the Hanapepe ever, McBryde under claim neither nor rights, of such Gay may & Robinson water to another transport watershed. rights,
3. Under the doctrine of riparian owners adjoining right natural watercourse have given flow of a river or stream in shape size Thus, under “normal nature. such there can be no daily surplus” water. McBryde
4. has prescriptive no one claim owned against no title or interest property by the State. “Storm and freshet” property water
State. any right
Neither has nor Robinson to divert from the Hanapepe Koula Stream and Valley into other watersheds. River out of Affirmed in reversed in part; part. Cox (Cades Cades and Robert B. Bunn Russell
J. ér fоr Fleming Wright counsel) plaintiff-ap- Schutte pellant, cross-appellee. (Anthony H. Plews Anthony Garner R. John
J. cross- defendants-appellees, for Waddoups counsel) ir appellants. (Bert General Deputy Attorney Lee,
Andrew S. O. General, for Attorney briefs), Kanbara, with him on Hawaii, cross-appellant. defendant-appellee, State MARUMOTO, OF DISSENTING AND CONCURRING OPINION J. *23 para- I the decision forth last dissent from set that neither foregoing of the the court graph opinion of the McBryde any right to divert Gay Robinson nor has to flowing Hanapepe and River water in Koula Stream beyond valley. watersheds the Hanapepe the That has no whatsoever to decision relation case, in and neither appealed from is with- judgment this nor in the issues raised and tried in the circuit court within the to court. questions presented argued and this case, of my
In the view the following statement of the I will refer to of court in case as opinion the the in opinion; majority sitting the the majority justices of my the the the case as the discussion of view as majority; dissent, the my it contains concurrence with although matters; G&R; and Gay on some & Robinson majority numbered of VIII of subparagraphs Paragraph 1, 2, 3, 4, as items and 5. majority opinion Reports There are two cases Hawaii which They Territory Gay, to are related this case. are v. 25 Territory and (1920), (1922); Haw. 651 Haw. 26 382 Gay, (9th 1931), 356 Cir. Haw. F.2d denied U.S. 677 I to (1931). cert. will refer I, Gay and the II. Gay earlier case later case as turn, II, was, Gay This case to sequel I, represents to and the final of the the Gay phase sequel controversy various regarding parties of Manuahi, originating on the lands of Koula water litigation has been for more than one-half of a century filing since the of I. parties controversy principal at the present State, G&R,
time are the McBryde. The State stands in Territory, of the as the place successor in interest of the konohiki the ahupuaa Hanapepe, within which the kupono ilis of Koula Manuahi are located.
G&R is the successor in interest konohiki the ilis kupono of Koula and Manuahi. the owner of the ilis of Eleele kupono Kuiloa, and certain downstream in the kuleanas
Hanapepe valley, which are entitled to take appurtenant water from River. I,
In Gay Territory challenged the ownership G&R of a major portion the land of A Koula.1 decision in favor of Territory would hаve the chal- placed lenged portion in ahupuaa of The Ter- Hanapepe. ritory then would have been the owner of the surplus water of that portion the land under the deci- prior sions recognized of this court which surplus a stream having its source belonging in an ahupuaa as the konohiki of the ahupuaa.
This court determined the land of entire Koula *24 be an ili kupono belonging to G&R. There never has been challenge to the title of G&R to the ili kupono Thus, date, of Manuahi. at this can there be no question regarding by ownership G&R of lands of Koula and Manuahi. II,
In Gay Territory, I, having lost in chal- lenged the ownership G&R of the of surplus water Koula Stream and Manuahi Stream.
The Territory vehicle which the used in the chal- lenge was an diverting suit to equity G&R from enjoin 5,520 acres, 1 The land of Koula Royal contains covered Grant 1108 and Patent 6998 predecessors issued to the in G&R. title of Grant 1108 covers portion containing in 740 acres the lower Territory The did chal corner. not lenge the G&R ownership by portion. of that lands of the arid of the two streams water surplus However, of right of the owner Makaweli. G&R, it from to divert Territory it be
whether
made
origin to other watersheds was
the watershed
solely
Territory
its case
rested
an issue in the case.
degree
are
a less
that ilis
kupono
on the contention
right
primary
than an
and that the
dignity
ahupuaa
of the
is in the owner
arising
water
such ilis
to the
are located.
in which the ilis
ahupuaa
the water
right
that the
of the owner of
It is obvious
watersheds
origin
it from the watershed of
to other
divert
an
case for the reason
issue
was not raised
a closed
ques
existence of
was deemed to be
such
to Peck v.
going
tion under the
court
back
prior
decisions
v.
(1867),
by Horner
Bailey,
The circuit court limited decision to the its daily and Manuahi water of Koula Stream surplus Stream, by G&R attempt that there was no finding streams, the storm freshet water appropriate sought by denying and entered a decree the injunction Territory. affirmed the decree in Upon split this court appeal, decision, being the view that dissenting justice case, to the applicable the doctrine of riparian with normal storm surplus both respect freshet water.
I do not any think can there question that Gay II established following: the (1) the ownership G&R of the normal surplus water of Koula Stream and Stream; Manuahi (2) right of G&R to divert such surplus water to beyond areas valley. the Hanapepe
IIGay judicata only res as between the State However, G&R. party no other Territory than the ever challenged the ownership G&R of the normal surplus water of the two streams. Nor has party ever ques- tioned of G&R to divert such water from the Hanapepe valley to areas outside valley.
It appears reasons, that one of the principal if not reason, only McBryde caused institute that, instant II, proceeding began after G&R diverting the water deemed to be storm and freshet and also some of the water deemed appurtenant to be the lands downstream in the valley, by making changes in the facilities for the diversion of the Makaweli, which increased carrying capacity of such 40,000,000 facilities from gallons 65,000,000 day to per gallons per dаy. case,
The issues in this raised and tried in circuit court, were: (1) the quantity of water of Koula Stream and Manuahi McBryde Stream to entitled as appurtenant to its lands in valley; the Hanapepe (2) of such quantity water to which the State is entitled as appurtenant to its valley; (3) lands the quantity of such water which other valley owners of lands in the lands; are entitled as appurtenant to their (4) the quan- tity of such water which is entitled to take under of in claim right; prescriptive (5) G&R, State, McBryde, and other lands owners of valley to the storm and freshet water of Koula issues, Stream and Manuahi Stream. Those also were the issues, only and the presented argued to this court on the present appeal.
The circuit court made its determinations on the
205 issues, and first three also determination of the quantity by of water to the lands owned G&R in the appurtenant valley. Those determinations are set forth in that majority opinion. majority they The holds were correctly I in that holding. made. concur issue,
On the fourth the circuit court determined 2,084,600 McBryde that right has to take prescriptive gallons day, against per charged water surplus which G&R is entitled to retain and divert. The majority holds, 4, McBryde in item that does such have also, right. I in prescriptive holding concur but not given for the reason therefor item 4.
I think that right has no prescriptive be cause taking its was not right adverse to the G&R the normal water surplus of Koula Stream and Manuahi McBryde’s Stream. intake are points below the diversion point of In the right G&R. establishment of prescriptive water, adverse use does not run upstream. Wellsville East Field Irrigation Lindsay Co. v. Land & Livestock ; Co., 104 Utah (1943) Day Hill, v. P.2d Ore. 406 P. 148 (1965). 2d issue,
On the fifth and last the circuit court deter- mined that the storm and freshet of Koula Stream and Manuahi belonged Stream part to G&R surplus water which the owner of the land on stream has its source is entitled appropriate. In item majority holds that ownership of storm and freshet water inis I State. do not concur in that hold- I
ing; agree nor do with the determination of the circuit court on the issue.
I would follow Carter Territory, Haw. 47 v. case, on the matter. In that this court divided surplus water of a stream into normal surplus water and storm and freshet held the doctrine of riparian applicable was to the latter. holding
I think that the Carter on Territory storm and freshet water was proper. to storm and freshet an issue in no wаter was the case. But show- made ing regarding any usage was therein Hawaiian on situation, the matter. In the of the issue disposition governed statutory by provision presently com- 1-1, in HRS the common law of piled declares § England, sions, English and American deci- as ascertained Hawaii, to be law of as other- except the common fixed judicial precedent wise by Hawaiian or established usage. Hawaiian
The decision set forth paragraph last *27 opinion of the doctrine majority involves consideration G&R, of res a considera- judicata upon in its effect tion the of of stare insofar principle prevents decisis as McBryde to diverting from the water its appurtenant in for valley lands the use its lands be- upon yond valley. the body
The in the of majority recognize to professes Gay II reluctantly, the albeit that majority opinion, G&R, res that judicata between the State and holds However, binding it is decision effec- on the State. the tively nullifies that it denies holding that to the extent water of the normal right surplus to divert G&R the Makaweli. and Manuahi Stream to Koula Stream 23, 194 Mather, Cal. P.2d 2d Greenfield that the for majority proposition is cited rigidly so “will be applied judicatа the doctrine res considera- important justice to defeat the ends policy.” tions of imperative, is an judicata
I think that res agree I with any exception. without adherence commands in Green- in his dissent Traynor, who stated Mr. Justice throws res judicata “a from departure v. Mather that field and thus finality judgment into question long run in the infinitely injustice more bound to cause case”; and with Mr. in conceivably avert it can than same Edmonds, in stated his dissent who Justice more funda- in case, the law is follows: “No doctrine orderly and it to administration of mental is vital * * * against should a policy Courts stand firm justice. litigation nothing endless is ever decided certainty.” with decisis, of stare which is principle involved McBryde portion of the decision which from prevents
diverting the water to lands in Hana- appurtenant its valley require for in other use areas does not strict pepe adherence to as in of res prior judicata. decisions the case Nevertheless, it counsels adherence to precedents, partic- ularly relating with precedents to to respect property reasoning on rights, that “it is better adhere fixed, though, they might oncе principles originally, not have free perfectly objection, been from all than to law, unsettle the order to render it more consistent with dictates sound Washington, reason.” J., Marine Insurance Co. v. (7 Tucker, Cranch U.S.) 357 (1806).
In deciding no has divert the water appurtenant its lands in valley, the Hanapepe majority deems court prior decisions rec- ognizing owners of water to divert the from one area to other areas were based upon er- *28 legal roneous reasoning, Helvering Hallock, cites 309, U.S. in which the court declined precedent a urged follow to be applicable.
In Helvering v. Hallock the court stated that it had “from the beginning a rejected disability doctrine self-correction,” and, further, at that “stare a decisis is principle of policy not a formula mechanical However, adherence to latest the decision.” careful reading of that case that shows stare principle the decisis was not followed there precedent because urged upon the court involved with prior “collision doctrine more embracing in intrinsically its scope, sounder, by and verified experience,” and also because precedent did not contain “rules of decision around affairs,
which, by accretion time and the response o£ interests have established themselves.” substantial Hawaii, I think that in around the court deci- prior sanctioning sions the diversion of water from one area areas, them- to other substantial interests have established “by accretion time and of affairs.” response selves The record in that water diverted this case shows from Koula Stream and Manuahi Stream G&R irrigating sugar Sugar in used cane fields Olokele Limited, Makaweli, and that the water Company, is used in by McBryde diverted from Hanapepe River irrigating sugar its cane fields in Lawai and other areas beyond valley. There is also evidence II, that, G&R subsequent the case to the decision in $788,800, $119,000 and Olokele spent approximately system on the for the diversion respectively, Makaweli, and of Koula Stream and Manuahi Stream to $558,000 for McBryde spent pumping equipment $226,000 for ditches and valley, siphons in the Hanapepe valley, beyond its cane fields water to transport for the construction of reservoir to storе $60,000 water. hand, at
Although I do have information specific case, that, are there parties I besides the presume economy of Hawaii segments agricultural other their the cultivation of irrigation for depend upon constructing sums in substantial expended have crops, court deci- prior reliance upon irrigation facilities in decision sions, affected adversely and will be today. announced South in United States v. Stone stated
Chief Justice : Assn., (1944) U.S. Underwriters eastern policy rule blind adherence give “To would is to be overruled this Court no decision of of the Court many decisions overrule itself to *29 of stare But the rule that view. accept do not a because is often policy wise decisis embodies than that a law be settled more rule of important * * * not right. that it be then is question settled overruled, ever be decision should whether an earlier And ought to but whether a decision be. particular duty a overruling case it is the precedent before certain harm of the Court to make that more will rule retaining than in of even be done rejecting validity.” dubious dissenting made opinion.
That statement was in a this, that, However, it provides I in case such as think guide to follow. proper