31 Haw. 376 | Haw. | 1930
Lead Opinion
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 *378 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 and 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,
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 of the ahupuaa within *381
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,
The consideration of this point becomes necessary because of the two alternative claims of the Territory in asserting title to the waters which are being diverted by the respondents. Those claims are, first, that the ilis of Koula and Manuahi were "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,
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 `Hanapepe 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. *383
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 mahi") 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 *384
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 often involved in litigation and which 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,
That ruling (
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 Makaweli. If an injunction were granted, the waters would be used in aid of cultivation of cane lands in Hanapepe.
The "general principle" declared in Davis v. Afong,
But on behalf of the Territory it is contended that a contrary conclusion was reached in Carter v. Territory,
Perhaps what has been said would in itself suffice to *392 show that both under Carter v. Territory and under theWailuku 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 waters. What precise line is to be drawn in practice between the higher normal flows and the smaller freshets is not easily apparent. It would seem that after a period of comparative drought the first waters to come can well be those of a storm. In such an event, could it be said that all of the onrushing waters which the dams could divert would be waters of the normal flow and that all waters going over the dams would be freshet waters? 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 water seeps or drains into or otherwise reaches "the bed of the Koula stream" below the two dams "and above the southerly boundary of respondents' property and into the Hanapepe river below respondents' ilis" may tend to show that, like many other areas of Hawaii's ancient lava fields, the land there is highly porous or full of subterranean passages through which waters flowing in the stream above the dams pass under the dams and come to the surface lower down and may also tend to show that rain falls below the two dams forming little streams which feed the main stream of Koula; but it does not show that *393 the waters which are or can be diverted by the two dams are not, in whole or in part, waters of floods or freshets.
It is my opinion that there is no distinction in history, in principle, or in law between surplus waters of the normal flow and surplus waters which come in freshets as a result of storms. As above stated, the term "surplus waters" is here used to designate all waters not required for the satisfaction of prescriptive or appurtenant rights in lower kuleanas or other lands. It was in that sense that the term was used in H.C. S.Co. v. W.S. Co.,
If a distinction is to be drawn between freshet waters *394 and normal surplus waters, 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 waters cannot be diverted. That, however, does not seem to me to be well founded in fact. Freshet waters, 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 waters will flow in the ditch and not downstream. The mere statement ought to suffice, of course, that if the waters of a stream, whether freshet waters or those of an ordinary flow, are allowed by the konohiki of the upper ahupuaa to pass downstream to other ahupuaas, such waters are "wild," as it were, and are subject to capture by whoever can capture them. In the nature of things the waters, once they pass beyond the confines of his land, no longer belong to the konohiki of the upper ahupuaa. This, however, does not militate against the possibility of capture and diversion by the upper konohiki of all of the waters of smaller freshets and of some at least of the waters of extraordinary freshets which do not destroy and carry away the dams.
The ruling in the Carter case that "where a stream flows through one ahupuaa into another each ahupuaa is entitled to a reasonable use of the surplus water of the stream according to the principles applicable to riparian rights at common law," even construed, as it should be, as referring to freshet surplus and not to normal surplus, should, I think, be disapproved. It is not in keeping with the earlier decision in H.C. S. Co. v. W.S.Co.,
Water for domestic purposes on a lower ahupuaa is in any event assured under Hawaiian law. Every portion of land, large or small, ahupuaa, ili or kuleana, upon which people dwelt was, under the ancient Hawaiian system whose retention should, in my opinion, continue unqualifiedly, entitled to drinking water for its human occupants and for their animals and was entitled to water for other domestic purposes. At no time in Hawaii's judicial history has this been denied. Whenever it is proven that people dwelt, at the time of the award of the land commission, upon a piece of land awarded, it will 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 konohiki which have remained unawarded would be similarly treated. These rights to water for drinking purposes and for other domestic uses are included in the ancient appurtenant 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 *396 appurtenant rights, which latter include rights to water for domestic purposes.
Bearing always in mind that in the Carter case all of the waters of the normal surplus were declared and decreed to be the property of the owner of the ahupuaa 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 ahupuaa 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 theCarter 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 undiminished in quantity except in so far as made necessary by the reasonable use of others above. In other words, some of the characteristics of riparian rights under the common law of England were as follows: they arise from and depend upon the fact that the land is on thebank of a natural stream. The word "riparian" *397
is derived from the Latin word "ripa" which means a bank. It is a right to use first for domestic purposes and, second, for what are termed "artificial" purposes, which latter include mining, mechanical uses and irrigation. For 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 while 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,
In passing, it may not be out of place to note that in the case at bar the riparian system would not be preferable to the ancient Hawaiian system. The evidence shows *398 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 few acres in Koula valley. Since this discussion applies only to surplus waters, 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 wasted. For it must be remembered in this connection that nonriparian lands will not be entitled, either primarily or by grant, to share *399 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 few of the subdivided lots which are patented or agreed to be patented to homesteaders and which actually abut on the stream will be riparian and will be entitled to riparian rights. All other lots, nonadjacent to the stream, will have no riparian rights whatever and even larger quantities of water will thus go to waste 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 western states of the mainland the doctrine of riparian rights was discarded as unsuited to conditions and the doctrine of prior appropriation was 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 would have water. Many of our largest and most fertile tracts of land are nonriparian and would have no water 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, were nonriparian and would never have been entitled and would not now be entitled under that system to any water from the streams. The system devised and wisely provided by the ancient kings and *400 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 ahupuaa 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 appurtenant 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 weeks. They permitted all the water in some of the ditches to be taken during the prescribed hours or parts of days even though during those periods of time no water remained to flow down the stream to other lands on the banks. The water appurtenant to each land belonged to the owner of the land and was severable therefrom and was transferable either with or without grant to other lands irrespective of whether such other lands were riparian or nonriparian (provided only that no injury was by the diversion made to the rights to other lands). There was no limitation to "a reasonable use" for the lands entitled to take from any of the ditches. The admeasurement was by time and by nature and size of dams and ditches. There was no limitation in favor of lands within the same watershed or valley. It could be *401 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
After a careful reexamination of all Hawaiian cases relating to water law I find none except the Carter case, supra, which makes any award of riparian rights as such. All the reported Hawaiian 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 waters that come in freshets. All Hawaiian cases on the subject, including the Carter case, award water of the normal surplus to the konohiki of the land of origin. *403
It is far more logical and more desirable to correct now the one partial error of the Carter case in respect to freshet surplus, thus leaving the whole 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 whole Hawaiian system and perhaps eventually the system itself.
In City Mill Co. v. Hon. S. W. Com.,
For these reasons the decree appealed from, which denies the injunction sought and dismisses the bill, should, in my opinion, be affirmed.
Dissenting Opinion
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,
The trial judge in conclusion held: "That the respondents at bar are legally entitled, by reason of their fee simple ownership of the sources of the water 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 owners in Hanapepe valley for domestic purposes and for wet agricultural use." The case below, therefore, presented no issue upon the question of rights to surplus storm and freshet waters; the judge expressly refused to consider that subject and his decision, as above set forth, dealt exclusively with the normal daily surplus.
In Carter v. Territory, supra, however, the question above referred to was directly involved and was 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 *406 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 lower 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 lower of its just proportion under existing circumstances." That what was said in the passage last above quoted, in applying the common-law rule of riparian rights to surplus water, referred to surplus storm and freshet waters only is shown 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 follows: "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 *407 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 *408 foregoing it is apparent that this court in the Carter case (a) did not apply the riparian rule to surplus normal flow and (b) did apply that rule to surplus storm and freshet waters.
In view of the fact that the right to surplus storm and freshet waters was directly in issue in the Carter case and of the fact that such right is not directly in issue in the case at bar, without expressing any view as to how the question should be ultimately determined I cannot concur in that portion of the opinion of the chief justice in the present case which, if concurred in, would overrule the Carter case in the particulars above set forth.
Dissenting Opinion
As I understand the opinion of the chief justice, he thinks that the owner of an independent ili upon which water has its source and which flows by gravity through a natural channel onto the land of another person, such person, unless he has appurtenant or prescriptive rights, has no rights whatever in the water, whether normal or storm surplus, which the owner of the ili must respect. In other words, the substance of his opinion is that the owner of such an ili, except as to those who have appurtenant or prescriptive rights, is the absolute owner of the water, of whatever character, to do with as he pleases regardless of the necessities of others through whose lands the water, if undiverted, would flow.
As I understand the opinion of Mr. Justice Parsons, he agrees with the chief justice, so far as normal surplus water 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 two opinions, it is that the chief justice thinks there is no difference, so far as the ownership of *409 water is concerned, between normal surplus and storm surplus and that Carter v. Territory, to the extent that it decides that storm surplus should be governed by the common-law riparian doctrine, should be overruled, while Mr. Justice Parsons thinks that storm surplus, not being definitely involved in the present case, the rule laid down in the Carter case should not at this time be disturbed.
I fully agree with the chief justice that the ownership of all surplus water, whether it be normal or storm, should be governed by the same rule. Our disagreement arises out of what that rule should be. He thinks that the rule of the absolute ownership of such water (subject to prescriptive and appurtenant rights) in the owner of an independent ili or ahupuaa was established by the decisions of the supreme court of Hawaii long prior to theCarter case and should be adhered to, the Carter case notwithstanding, while I think the rule announced in the Carter case is not inconsistent with preceding decisions and should be applied to normal as well as to storm surplus. This rule is so inherently just in its regulation of the use of an element that is vital to the well-being of mankind and is so consonant with natural rights and human necessities that I think it should be finally adopted as the law of this Territory.
Under the rule which the chief justice thinks should be adhered to, the owner of an independent ili or the owner of an ahupuaa could divert from its natural channel all the water that might originate on his land and utterly waste and squander it and the owner of lands lying below, through which the water would naturally flow, 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 with a pronouncement of the law under which it would be possible to accomplish such a disaster. It *410 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.,
I can perceive no just reason for applying the correlative rights rule, which is epitomized in the maxim sic utere tuo utalienum non laedas, to subterranean waters upon which all superjacent lands are dependent for necessary moisture and not applying it to surface waters, that flow through natural channels, and to which lower adjacent lands must look for necessary moisture. It cannot be said with reason or justice that so long as the waters remain imprisoned underneath the surface of an independent ili or ahupuaa the owner of the land is not their absolute owner 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 flow through natural channels to lower levels, the owner of the ili or ahupuaa upon which they first appear becomes their absolute owner, to do with them as he pleases even to the utter ruin of others who are dependent on them. (Miller v. Bay Cities Water Co.,
The ruling in the Carter case that "where a stream flows 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 law" is, I think, a sound and wholesome doctrine.
Nor do I believe it to be incompatible with the law as it was declared in the earlier cases which are cited in the opinion written by the chief justice. Without reviewing *413 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 Carter case and that is before the court in the instant case. Take, for instance, what may be termed the WailukuRiver cases. Each one of them dealt with conflicting rights in the waters of the Wailuku River, which rises and flows to the sea within the ahupuaa of Wailuku. The quarrels that arose, therefore, were between the owners of different portions of the same ahupuaa and related to their apportional interests in the water. They were not, as in the Carter case, disputes between the owners of adjacent ahupuaas through whose lands the water ran in a natural channel to the sea.
In H.C. S. Co. v. Wailuku Sug. Co.,
Davis v. Afong,
So far as springs that have no natural outlet and do not form watercourses are concerned, the common-law 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 was not involved in any preceding case and therefore had not been decided, said that it was *415 one of first impression and should be 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, whereas under the former rule all of the water would 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 Makaweli lands from using all the surplus water would be so much greater by comparison than the injury to the Hanapepe lands from not getting any 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 view the law these reasons are legally insufficient. The true test of whether a rule should receive judicial sanction is not whether in its application it will benefit more people than it will injure but whether in its application it will 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 ownership rule, even between 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,
It is suggested in the chief justice's opinion that the application of the riparian rule to normal surplus water *417 would endanger the 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 likewise be innocuous.
It is, I trust, not impertinent to notice in this connection that the instant suit was not brought by an individual to whom selfish motives might be attributed, but by the government itself, which is the guardian of the interests of all its citizens and is supposed to act at all times in accordance with their welfare.
What, after mature reflection, I cannot sanction is a rule of law that gives to the owner of an ahupuaa or an independent ili upon which flowing water originates such complete dominion over the water that he may at his will use or misuse it in such a manner as will work irreparable injury and discomfort to others who, but for such arbitrary control, would in the very course of nature have their necessities supplied. It seems to me that the rights of adjoining ahupuaas to the water that flows by natural channel through both of them are correlative, and, I think, the support given this view 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. *418