# Appendix — Robinson v. Hawaii > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1824%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1974 - **Citation:** 417 U.S. 976 ## Text AIOE PD RBA OH A Pao eaee eee re er lens i TABLE OF CONTENTS Appendix Page NE eae aaa ware ue sig Ga be MCh Sea Ree i Amended Decision of the Cireuit Court of the Fifth Oe EE i 5 kd ahes Kawecsduncenns 1 Opinion of the Supreme Court of the State of Hawaii 66 Motion for Leave to File, as Amicus Curiae, a Peti- tion for Rehearing or a Brief in Support of a Eos Sas wae cease eas eek ea ena’ 102 DD ere eae 104 Motion for Partial Vacation of Opinion or For Oppor- tunity to Present Evidence and Argument ...... 105 i i cc an nn gaans kek CAR aa eRK 107 Order [to file simultaneous briefs] ................. 108 Order [granting motion of Olokele Sugar Company,. Pn. Ca ae ves esnea We aes oa 110 Motion to Have Official Reporter Present at Oral Argu- DCR L eke rinks wees anes seOnces sana wereav ans 111 rr i cy cha c kwh sea bene ker oxen 113 Opinion of the Supreme Court of the State of Hawaii CC. coy se ciaw et cass ae arse nernaek 114 Judgment of the Supreme Court of the State of Hawaii 159 ELIE POE AE PTET ETE OP eTeT 160 [Appendix page numbers appear at the top center of each page. The two opinions of the Supreme Court of the State of Hawaii have been reproduced from the official State reporter. } CO a AN eT NLM —— LALO LOTR a eT PSP FMD BALE PLETE RENT PEAS ORR ae ee Decision as Amended S. P. No. 108 In the Circuit Court of the Fifth Circuit State of Hawaii At Chambers McBryde Sugar Company, Limited, Plaintiff, Vs. ; Aylmer F. Robinson, et al., Defendants. 7 Action To Determine Water Rights DECISION Jurisdiction and Pleadings This is a civil action for the determination of water rights. The land and water rights, the subject of this litigation, are situated on the island of Kauai within the jurisdiction of this Court. Jurisdiction is vested inthe judge of the Fifth Cireuit Court sitting as com- missioner of private ways and water rights under Part IIL of Chapter 234, to wit, Sections 234-30 through 234-36, R.L. Hawaii 1955. The complaint was filed by MeBryde Sugar Com- pany, Limited (hereimatter called **MeBryde”) Mareh 24,1959 and amended April 22, 1960. Answers were filed by the State of Hawaii (hereinafter called ‘‘the 564 » ihe oa | 2 State”), Kiyoshi Kimata, Toshio Komaki, Marcelling Francisco, Hideo Nonaka, Yuji Shimomura, Junichj Kano, Chee Kung Fui Society, Gay and Robinson and the individual partners (hereinafter called ‘‘G&R”) and Olokele Sugar Co., Ltd. On September 13, 193 default was entered as to all persons who had not appeared. The devisees of Alice Robinson and Sin. clair Robinson were substituted as parties (Probate Nos. 1880 and 1991, 5th Cir. Ct.). This is a water commissioner proceeding, and the pleadings filed herein are suffcient for adjudication of rights between all parties, without need for formal cross-pleadings between the several defendants. History of Prior LAtigation In 1927 the Territory of Hawaii brought action in the First Circuit Court against G&R, Hawaiian Sugar Company (hereinafter called ““HS Co.”), McBryde and the other owners of land in Hanapepe. Since it was brought in the wrong circuit it was dismissed with leave to bring it in the proper court. Territory uv. Gay, Eq. 2856, 32 Haw. 404. While that action was pending in the trial court the Territory brought a second action in the First Cireuit Court, in which GER and HS Co. were the sole respondents. This was tried on the merits before Cristy, J., to determine the ownership of the surplus flow and whether the Territory was entitled to an i- junction against the maintenance of the dams. Ter- ritory v. Gay, Eq. 2911, 31 Haw. 376, 52 F. 2d 356, cert. denied 284 U. S. 677. 3 The gist of the above proceeding challenged the right of GER to maintain the dams and the owner- ship in the surplus waters. There was left open the rights of the several owners of the lower valley en- titled to water. The decision of Judge Cristy adjudi- cated the rights to ‘‘normal] surplus” water between the State and G&R and contained 21 findings of fact (Exh. M-J-6, pp. 45-73). These findings are res judi- cata between the State and G&R. On appeal of the above entitled case the Supreme Court of Hawaii affirmed the judgment below. The court was divided on the question whether there was any distinction between ‘‘storm surplus” and ‘‘normal surplus” and divided on the question whether the rule laid down in Carter v. Territory, 24 Haw. 47, should be overruled. Chief Justice Perry could see no dis- tinction, in history, in principle, or in law between surface waters of the normal flow and surface waters which come in freshets as a result of storms, and felt that the Carter case, to the extent that it decides that storm surplus should be governed by the common-law riparian doctrine should be overruled. Parsons, J., was of the opinion that storm surplus was not in issue and accordingly the rule laid down in the Carter ease should not be disturbed. Banks, J., while agree- ing with the Chief Justice that the ownership of all surface waters, whether it be normal or storm, should be governed by the same rule, concluded that the rule announced in the Carter case is not inconsistent with preceding decisions of our supreme court, and the common-law riparian doctrine should be applied to normal as well as to storm surplus waters. oo Fs Wa & &. S&S i I A) a, - a el a eet SEE PPL ea er aay ke ES ee Oe Te ee ee ee at ae + Issues The first phase of the trial was concerned with the determination of which lands owned by the respective parties were ancient taro lands or lands having ancient appurtenant water rights. The next phase of the trial involved the question of rights by adverse user or by prescription. On this issue, both McBryde and G&R agreed that rights by prescription or ad- verse user could not be had against the State, but that the State could acquire such rights against others, The final phase of the trial dealt with the question of water duty. Findings of Fact General Background 1. The watershed of the Hanapepe River is about fifteen miles long and from two to five miles in width. At the upper or north portion the annual rainfall is between 400 and 500 inches, The annual rainfall de creases as the valley goes toward the sea, and at the sea the rainfall is comparatively negligible. The Koula stream joins the Manuahi stream about half way to the sea to form the Hanapepe River. [Territory v. Gay, 52 F. 2d 356, 357 (9th Cir. 1931), Map Exh. G&R-F-42, Rainfall charts Exh. M-E-16] 2. The Ahupuaa of Hanapepe, on the island of Kauai, formerly a crown land, is now one of the pub lie lands of the State of Hawaii. [Exh. M-J-6: Finding No. 1 of Chisty, J., Eq. 2911, p. 49] 5 3. The ilis kupono of Manuahi and Koula, owned by defendants G & R, adjoin each other and together exclusively occupy all of the area of land comprising the northerly and mwuntainous region within the boundaries of the mauka portion of the ahupuaa of Hanapepe. Those ilis comprise the entire watershed and source of supply of all waters which would, if not diverted, find their way into the Hanapepe River makai of the junction of the Manuahi and Koula streams at the southerly boundary of those ilis. [Exh. M-J-6: Findings Nos. 3 and 5 of Cristy, J., Eq. 2911, p. 50; Pretrial Order par. 5a, S. P. 108, 5th Cir. Ct.] 4. The ilis of Eleele and Kuiloa are ilis kupono, and are owned by McBryde; the State is the owner of the ahupuaa of Hanapepe; and the other lands within the outer boundaries of the ahupuaa of Hana- pepe having water rights from the Hanapepe stream, are as set forth in Court’s Exhibit **1” attached hereto and made a part hereof. [Pre-trial Order, par. 5a, S. P. 108] 5. G&R owns kuleanas designated LCA 10458 to Alaiki, LCA 8035 to Alaiki, LCA 10457 to Namoki, all within the boundaries of Koula and LCA 9654 to Koikoi within the boundaries of Manuahi. [Exh. G&R-C-1 through C-4] Except for possible recurrent slight use on said bottom land for wet agriculture, the water arising in Manuahi Valley in the ili of Manuahi is not diverted, hut flows out of the ili into the Hanapepe River near 6 the southerly boundary of the ili at the junction of the Koula Stream. [Exh. M-J-6: Finding No. 7 of Cristy, J., p. 51] River Flow 6. ‘‘Total water available” as used in these find- ings means the amount of water that would flow through the Hanapepe River if no diversions at all were made. For the period 1934-48, the total water available may be determined by adding the amount of water flowing in the river at the junctions of Koula and Manuahi streams to the amount of water in the Koula Ditch, both of which figures are reported in the USGS Water Supply Papers. [USGS—Water Supply Papers, Exh. M-D-12 through M-D-33] 7. The mean total water available in the years 1934-48 was 78,400,000 gallons per day. [Exh. M-D-18 through M-D-33] 8. The maximum flow reported in the Hanapepe River below the Koula-Manuahi junction is 25,200; 000,000 gallons per day on April 15, 1968. [Exh. M-D-46, p. 18 notes] 9. Total water available is 32 million gallons per day or less ten per cent of the time. Total water avail- able is 145 million gallons or more per day another ten per cent of the time. During the remaining eighty per cent of the time, the total water available is be tween 32 million and 145 million gallons per day. [Exh. G&R-I-12, Curve B] 7 10. During the ten per cent of the time in the years 1934-1949, when total water available was 32 million gallons per day or less, the flow in the river below the junction of Koula and Manuahi streams was 11 million gallons per day or less. The difference of 21 million gallons per day was diverted by the old Koula ditch, which was the only diversion above the junction. [Exh. G&R-I-12 comparison of Curves B and A; Exh. M-D-59] The Dam, HS Co. Lease, Ete. 11. On October 24, 1889 G&R leased to W. R. Watson certain described premises (high table lands) in Makaweli and Hanapepe and agreed to give to the lessee the right to “take and use all the water in and of the Koula and Hanapepe and Makaweli rivers for irrigating cane and for fluming, and for mill and Plantation purposes, but only for the demised prem- ises .. .”, provided that a portion of the water taken was delivered free to G&R. [Exh. G&R-M-1(b)] 12. On November 4, 1889 W. R. Watson assigned the lease to HS Co. [Exh, GER-M-3(b) ] 13. Pursuant to its rights under the Watson lease and water agreement, HS Co. built dams and a system of ditches and flumes to take water from the Koula stream and certain tributaries and deliver it outside the Hanapepe Valley to the lands leased by it from ee eS " 20 Seen PENIS BE ATT 8S TE eT Tg ee Oe MATT ETM PEORM TT NUM Eee TT Ee NT UST Wr Tee ee Thor ee Ree aT | 8 GER for HS Co.’s use and to GER for their use This was completed in 1891. [Exh. M-J-6: Finding No. 13, Cristy, J., Eq, 2911, ist Cir. Ct.; Exh. G&R-M-1(b); Exh, G&R-E-1891; Exh. G&R-F-8] 14. A portion of the water arising in the Koula Valley from a watershed lying within part of the ili of Manuahi and the remainder within the ili of Koula is impounded by dams, approximately five feet. high, across the two main tributaries of the Koula strean, together with a lesser dam and a series of flume eatch- ments under the falls on other tributaries of the Koula stream in the same vicinity (hereinafter eol- lectively called ‘‘the dams”) about three miles north of the southerly boundary of the ili of Koula and sit- uated wholly within the ili of Koula. [Exh. M-J-6: Finding No. 8, Cristy, J., Eq. 2911, Ist Cir. Ct., p. 51; View of area] 15. A portion of the water impounded by the dams and eollected by the flume collection system built by HS Co. was until Mareh 30, 1949 diverted from the watershed of the Hanapepe River by means of a system of ditches, piping and flumes, originally con- sisting of 1,017 feet of tunneling, 16,100 feet of ditch- ing, 12,300 feet of fluming, and 5,570 feet of 40-inch piping from the head dam to the point of crossing out of the Hanapepe Valley, a distance of 634 miles. Of the ditching, about two miles were orignally «tt through solid reck, the rest in rotten rock and earth. This ditch, flume, tunel and pipe water diversion system was generally known as the ‘‘HIlanapepe 9 ditch,” though called the ‘‘Koula ditch” by G&R, and was physically situated inside the palis and along the course of the Koula Stream and Hanapepe River from the head dam to its point of crossing out of the Hanapepe Valley through the makai siphon located immediately down stream from L.C.Aw. 9265 to Kipani. fExh. G&R-F-8; Exh. G&R-E-1891; Exh. M- C-7; Exh. M-1)-57; Test., R. H. Cox] 16. The development of the Koula water by HS Co. with the assistance of GER, was begun and main- tained openly under a claim of right and title to such waters, over and above prescriptive rights, by reason of the ownership by GER of fee simple title to the area comprising the watershed. [Exh. M-J-6: Finding No. 17, Cristy, J.] 17. The development of the diversion of waters, as continuously maintained in Koula Valley, was the result of very substantial capital expenditure on the part of both G&R and HS Co.; that the development of water supply was a necessary condition precedent to creating this sugar plantation; and that the gov- ernment has continually collected taxes from G&R and HS Co. on the hasis of the enhancement of values of their holdings attributable substantially to the de- velopment and use of irrigation from the Koula Dams. [Exh. M-J-6: Finding No. 20, Cristy, J.] 18. The diversion system built by HS Co. leaked substantial amounts of water from shortly after its construction to the time of discontinuance of its use it ice WR GR AGO SEAL Rice a Na ceoemaneahs heii coaltateac? 9 otha aoenet dae SNe aes ean ed, BE nes i AR sere Oink OE AND 3 en ME esbiie / 10 by G&R on March 30, 1949. Much of that leakage found its way back into the Koula Stream and Han. apepe River. [Test., Ah Yet Dang; Exh. M-J-20, pp. 19, 36: Exh. M-C-7; Exh. M-D-57; Test., C. Chris. topher; Test., Doak Cox; Exh. M-K-56, p. 1; Exh. G&R-E-1910, pp. 7-8; Exh. G&R-E. 1914, p. 9; Exh. G&R-E-1925, p. 16; Exh. G&R-E-1930, p. 5; Exh. G&R-E-1932, p. 4] 19. The proportion of the Hanapepe Ditch waters which G&R were entitled to receive free under G&R’s agreement with HS Co. was to be determined by the ratio between the G&R and the HS Co. sugar cane lands. [Exh. G&R-M-1(b); Exh. G&R-M-5(b) ; Test., Aylmer Robinson, August 3, 1965] 20. (a) Prior to December 31, 1938 G&R were entitled to receive as their share slighly less than one-third of the waters delivered by the Hanapepe Ditch into Makaweli; (b) Between January 1, 1939 and December 31, 1941 G&R were entitled to receive as their share slightly more than one-third of the waters delivered by the Hanapepe Ditch into Maka- weli. [Exh. G&R-M-1(b); Exh. G&R-M-5(b), and: (a) Exh. G&R-E-1987, pp. 5, 7; (b) Exh. G&R-E-1989, pp. 6, 8] 21. After December 31, 1941, G&R operated and controlled the Hanapepe Ditch, and leased land and water to Olokele Sugar Company, Limited, retaining 11 to itself 43% of that water; such lease providing that in ease the water of the Koula Ditch was reduced as a “result of litigation”, an alternate supply would be developed by G&R for use by Olokele. [Exh. M-I-27, pp. 25, 28] 22. By the agreement entered into on February 21, 1930, a substantial revision was made with respect to control and ownership of the waters in the Koula stream below the dams. [Exh. G&R-M-24] 23. All waters in the Koula stream below the dams, however arising (whether from springs, rain- fall, tributary streams, water never impounded by the dams, or water returning to the stream through seepage or leakage from the Hanapepe Ditch), were an indistinguishable part of the flow of that stream. Such waters, to the extent that the same were claimed by G&R to be normal daily surplus, were under the contro] and ownership of G&R; and any right that HS Co. may have had prior to February 21, 1930 to terminate such control and ownership by taking such waters below the dam for use upon the premises leased to them at Makaweli was relinquished to GER on that date. [Exh. G&R-M-24] 24. The practical effect of the agreement of Feb- ruary 21, 1930 was a relinquishment by HS Co. of its right to terminate G & R’s control and ownership over any waters flowing in the Koula stream below the dam, since G&R was acknowledged to have the és Rope | ad Aine AC etie ta Lae ates 0 woes pa ET ey ea Da kee Te Fite dale RAL acti ate tet Leer hh th" 6 “ 4 12 right to develop any of such waters flowing [in the Koula stream below the dam. [Exh. G&R-M-24] 25. G&R’s lease and water agreement with HS (+, (the Watson lease) expired by its terms on December 31, 1938. [Exh. G&R-M-1(b) ] 26. On June 17, 1937, substantial amendments and changes were made in the terms of the Watson lease, and the lease was extended for an additional two-year term from the expiration of the original term thereof, [Exh. G&R-M-25; G&R-E-1937, pp. 10, 11] 27. On March 3, 1939 the Watson lease was fur- ther extended for one year from the expiration of the first extension thereof. [ Exh. G&R-B-3] 28. The HS Co. lease (Watson lease) was ex- tended unto December 31, 1941 (Exh. G&R-M-25, and G&R-B-3 and G&R-B-4). In 1941 GER assumed con- trol and operation of the ditches and flumes of the old Koula Ditech and of the dams. 29. The old Koula Ditch as built and operated by HS Co. passed along the west side of Koula Valley, then crossed to the east side, where it passed through lands belonging to G&R and lands belonging to the Territory lying to the east of Hanapepe Valley, to a point where it was siphoned across Hanapepe Val- ley to Government lands lying to the west of the val- ley, and then entered Makaweli a short distance east of Hanonui Valley. 13 G&R’s Diversions 30. From 1945 through 1949 G&R and Olokele realigned stretches of the old Koula Ditch so as to eliminate all portions lying on lands belonging to others than G&R, some of which were leaky and deteriorated. The realigned ditch consists of 1) an upper stretch which was the upper part of the old Koula ditch; 2) a new middle stretch, consisting principally of a tunnel through the ridge between Manuahi and Koula, a siphon across Manuahi, and a tunnel through the hills to the southwest of Manuahi, and 3) a lower stretch, which was the lower portion of the old Koula ditch on Makaweli. The new system of tunnels, sometimes referred to as the “Hanonui tunnel system”, runs solely along and through the lands of GER. On March 28, 1949, GER opened for use this new Hanonui tunnel system for diversion and delivery to its land at Makaweli (in part leased to Olokele Sugar Company) of waters of the Koula and Manuahi streams and their tributaries impounded by its dams in Koula. 31. The old Koula ditch could and did carry at least 40,000,000 gallons per day (gpd). The re aligned Koula Ditch has a capacity of 65,000,000 gpd (Exh. M-D-56). Since the dams which divert water into it are the same identical dams which fed the old Koula ditch, the greater capacity of the new ditch effects an increase in the amount it actually carries only at times of high water. 32. Since the opening for use of G&R’s Hanonui tunnel system on March 28, 1949, the amount of water SNS aits Ora edy erect | nected & J ee ar ak Sites SN a, Fast iat elds ass hea a WNT EAP ELD Cane ee ee aT 14 effectively taken by GER from the Hanapepe River and its tributaries has been substantially increased, and McBryde has been unable to take from the stream the amounts of water which it had taken continuously under an alleged claim of right for the measured period January 1, 1934 through March 30, 1949. 33. The County of Kauai diverts an average of about 225,000 gpd from the Hanapepe River at its water works about 1200 yards below the Koula. Manuahi junction. 34. Major ancient ditch systems which are still partly in use in the lower part of Hanapepe Valley are (reading from mauka to makai according to the position of the intake from the Hanapepe River): (a) The Keana-a Ditch, sometimes called Keahi Ditch, on the east or Wahiawa side of the river; (b) The Kaauwaikahi or Auwaikahi Ditch on the west or Makaweli side of the river; and (ce) The Kapili Ditch on the east side of the river. For many years MeBryde has been one of the per- sons taking water from the Keana-a, Kasnwaihen and Kapili ditches. 35. In 1959, McBryde made substantial changes in these ditches. It enlarged and realigned the Keana- Ditch and built a new dam and intake for it somewhat makai of its old dam and intake. This enlarged and realigned Keana-a Ditch is now known as the “Hanz- pepe Intake Ditch”. It also built a ditch and siphon across the river, known as the “Farmers’ Ditch’, which feeds water from the Hanapepe Intake Ditech 15 into the Kaauwaikahi Ditch. The Kapili Ditch is also connected to the Hanapepe Intake Ditch. 36. McBryde constructed and maintained three pumps in the Hanapepe Valley on the east side of the river, known as Pumps 1, 2 and 3, the numbers running from makai to mauka. The present diversion dams across the river and its tributaries, reading from mauka to makai, are: (a) G&R’s dams in Koula referred to above, built in or before 1900. (b) MeBryde’s Hanapepe Intake Ditch dam, built in 1959. This dam diverts all the water which reaches it when the flow of water reaching it is 50,000,000 to 60,000,000 gpd or less. (ec) MeBryde’s Pump 2 dam, built before 1934. It diverts whatever water reaches it in dry weather. (d) MeBryde’s Pump 1 dam, built about 1900. A road crosses the river on top of this dam, which is sometimes referred to as the “Kailiili Crossing”. It diverts whatever water reaches it in dry weather. Below this dam the river is tidal and its surface is at sea level. [Exh. M-D-58] 37. On June 29, 1965, the day on which this Court visited Koula, the “total water available” was 66,800,000 gallons, of which 44,200,000 flowed in G&R’s realigned Koula Ditch and 22,600,000 in the river at the Koula-Manuahi junction. (Test., Russell Smith, July 20). Only a relatively small quantity was passing over the Koula dams (View by Court; Exh. G&R-K-28), from which the Court concludes Paced hate ita SD jie lh wy ee he ka eh D Dh alli» Aaah am tes 4A aval te — ~~ = 16 that the Koula dams divert whatever water reache them up to about 30,000,000 to 40,000,000 gpd, the exact amount depending on whether the flow reache them at an even rate throughout the day or not. For instance, the total diversion in one day would be greater if the water reached the dams at an even rate of 2,000,000 gallons per hour (equivalent to 48,000,000 gpd) for twenty-four hours than if the same total amount of water reached them at 1,000,000 gallons per hour (equivalent to 24,000,000 gpd) for twelve hours and 3,000,000 gallons per hour (equivalent to 72.000,000 gpd) for the next twelve hours. 38. On November 11, 1964, total water available was 115,500,000 gallons, of which 45,500,000 flowed in G&R’s realigned Koula Ditch, and 70,000,000 in the river at the Koula-Manuahi junction. A comparison with the figures for June 29, 1965, shows that the difference in the amount of water diverted into the ditch was 1,300,000 gallons, or 2.7% of the 48,700,000 difference in total water available. The Court, there- fore, concludes that when the water reaching the Koula dams rises above them, they divert about 2.7% of the additional water into the realigned Koula Ditch. 39. The total water carried by the realigned Koula Ditch is limited by its capacity of 65,000,000 gpd. The Court, therefore, concludes that the realigned Koula Ditch diverts the first 30,000,000 to 40,000,000 gpd that reach the Koula dams, plis 2.7% of any addi- tional water that reaches them, up to a total diver-; sion of 65,000,000 gpd. 17 40. MecBryde’s Pumps 1, 2 and 3 pump water up the east pali of Hanapepe Valley to McBryde’s lands lying as far away as Lawai. [Test., R. C. Cox, July 1-2, 1965; Exh. M-D-58] 41. MeBryde’s Pumps 2 and 3 pump water which comes from the Hanapepe River via the Hanapepe Intake Ditch. Me Bryde’s Pumps 1 and 2 have intakes directly from the Hanapepe River. [Exh. M-D-58] 42. McBryde’s pumps are connected with under- ground tunnels as well as the river (Exh. G&R-F-49). As originally built, these tunnels drew water from the alluvial soil and gravel in the bottom of Hanapepe Valley, which probably reduced the flow in the river to some extent. However, in about 1930, the extension of these tunnels into the “country rock” to the east of Hanapepe Valley struck a lava tube which sup- plies a large propertion of the water which is pumped by pumps 1, 2 and 3. [Test., R. C. Cox, Doak Cox: Exh. G&R-F-49] 45. Beeause the “country roek” is hard and rela- tively inipervious, very little. if any, of the water in the lava tube woeakd naturally reach the [anapepe River. After the tapping of the lava tube, Me Bryde’s tumels were sealed so that they draw water only from the lava tube. and net from the alluvial fill of the valley. [Test., R. C. Cox, Doak Cox: Exh. G&R-F-49] 4. Tn Addition to the water which it takes from the Hanapepe Intake Ditech throngh Pumps 2 and 3, McBryde takes water from the Hanapepe Intake a ross : - . PONS Oe Gree oe ree -S has) a i inane ersonialcala sel 18 Ditch, both directly, and through the Farmers’ Dite) and Kaauwaikahi Ditch, to irrigate its sugar lands in Hanapepe Valley. [Test., R. C. Cox] 45. Certain farmers take water from the Hana. pepe Intake Ditch and the Kaauwaikahi Ditch to ir- rigate their lands for taro and other crops. Certain of these lands are owned by the State and G&R. 46. In the years 1934-1959, the water supply sys- tem in the lower Hanapepe Valley was generally the same as the present system described above, except that the Keana-a and Kapili ditches were used instead of the Hanapepe Intake Ditch, and Kaauwaikahi Ditch drew its water directly from the Hanapepe River. 47. There is no evidence of the respective quanti- ties of water drawn by McBryde and the farmers for use in Hanapepe Valley, either before or after 1959. 48. The fact that McBryde was taking waters from Hanapepe stream for use in part on its planta tion outside Hanapepe Valley was a matter of com- mon knowledge in the community during the measured period, 1934-March, 1949. 49. Over the measured period 1934-March, 1%9, McBryde took waters daily from Hanapepe stream [Exh. M-E-9] 50. McBryde’s takings of water varied with the needs of its plantation, more water being taken in the drier summer months than in the wetter winte months. [ Exh. M-E-14] 19 §1. Actual notice of McBryde's claim of ownership of water was given to G&R by the service of Mc- Bryde’s Crossbill in Eq. 2856 on G&R in 1927. [Exh. M-J-2] 52. In 1927, in its Petition for Perpetuation of Testimony (S. P. 23, Fifth Cireuit Court) G&R ad- mitted that McBryde claimed an interest in the nor- mal surplus-waters of Koula and Manuahi antago- nistie to the claim of ownership and right of posses- sion, control and use of said waters by G&R. [Exh. G&R-G-3, petition, par. IV] 53. Actual notice of McBryde's claim of ownership by prescription of all the water it was then and had been taking was again given on June 8, 1938 and again on June 30, 1938 by the delivery to G&R’s at- torney of letters from the attorney for McBryde, which letters were received a few days after their respective dates by G&R. [Exh. M-M-4, June 8, 1938 attachment; Exh. M-M-5; Test., Aylmer Robinson, August 2, 1965] 54. McBryde claimed to be the alleged owner of and entitled to take all the waters it actually took over the measured period 1934-March, 1949. [Exh. M-J-2; Exh. M-M-4, June 8, 1938 at- tachment ; Exh. M-M-5] — — = a Diversions 1934 through 1949 55. Daily records of diversions from the river by G&R and McBryde were introduced in evidence for the years 1934-1948, and January-March 1949. [Exh. M-D-18 through 34 and M-E-9] > ee eee a eT ww teers ung mei dix, Debs ity we BARN cg OL ie a Bet te CN AAW ahi Se Ot 0b BG AAO Fe BE GS EK 20 These diversions were summarized in graphs known as “‘duration discharge curves” showing the amounts of water available and the amounts diverted during each percentage of the period 1934—March, 1949, These curves show that during the percentage of this period of time shown in column (a) below, flow and diversions were at least the figure shown opposite that percentage in the other columns. Per- Total Water Koula River Total centage Available Ditch USGS McBryde Diversions (a) (b) (c) (d) (e) (f) 100 20 15.5 45 2.0 175 95 29.5 19.5 10 8.6 28.1 90 32 21 11 10.0 31 80 36 22 I+ 12.3 34.3 70 40.5 24 16.5 14.7 38.7 60 45 25 20 17.0 42.0 50 50 25 25 19.6 44.6 40 60 27.5 32.5 22.0 49.5 30 70 26.5 43.5 25.0 51.5 20 85 20 65 28.3 48.3 10 145 30 115 33.0 63.0 G&R-I-12. Column G&R-I-12 M-E-1fa} Column Curve B- (b)-(d) Curve A (e) +(e) For example, total water available was at least 4 million gallons per day (mgd) 60% of the time, The figures for 100¢c of the time are close approximations for MeBrvde’s and G&R’s ditches were shut down on a very few days in this period. Column (c) shows the amount of water in the river at the USGS gauge below the Koula-Mannahi june- tion, and represents the total water available after the Hawaiian Sugar Co.-G&R diversions. Comparison of the above figures, and the duration discharge curves from which they are read, reveals that during the 30% of the time when the total water available was 70 mgd or less, MeBryde’s diversions took nearly all the water left in the river after the Koula ditch diversions. Thus, during this 30% of the time, the Koula ditch diversions effectively limited the amount McBryde was able to take. During the remaining 70% of the time, total water available was sufficient to satisfy the diversions of G&R and Me- Bryde, with a substantial quantity left over. It is evident that in times of low water during 1934-49, HS Co., and later G&R, diverted a substan- tial quantity of water thereby cutting the water avail- able to MeBryde to less than 7 mgd. Evidence of five such periods in the years 1934-49 was pointed out. (G&R-I-18 through I-22 McBryde Diversion Exh. G&R-I-18 Date Exh. M-E-9 through I-22 June 11-18, 1935 10.5- 6.5 mgd 9.5- 9.7 mgd June 9-16, 1936 10.5- 7.5 mgd 9.5- 8.6 med September 29-October 5, 1939 9.5- 7.0 mgd 9.5- 8.3 mgd April 21-30, 1941 8.5-10.0 mgd 10.4- 9.6 mgd March 3-7, 1942 10.0- 9.0 mgd 10.2- 7.7 mgd Each of these five periods has the following char- acteristics, namely, that rainfall in the Makaweli and McBryde sugar plantation areas, as reported by the United States Department of Agriculture, always averaged less than half, and usually much less, of the rainfall to be expected in those places at that time of year on the basis of many vears’ records. (G&R-I-2 ODOR MET | pal, sit Mabie LANES SSRN tReet ta ea Noid a st aS et aa vee Fe rE ne a Ta O72 LN re Bn 4 Dit sien egy’ hinted hail 9 iris it 22 through I-3, I-5 through I-9, I-18 through I-22). This demonstrates that these were periods when the need was particularly pressing. Lands Having Appurtenant Water Rights 56. The parties actively participating in the trial (McBryde, the State, and G&R) agreed on the areas of wet land entitled by appurtenant right to water for taro cultivation which are found within certain parcels of land in Hanapepe Valley and its tributa- ries. The Court finds these figures are correct. Under each party’s name is listed the designation or descrip- tion of the parcel of land, and the area of wet land in which the named party owns appurtenant water rights is set forth below. McBryde Lands Item No. (Exh. Ancient Taro M-C-53(a)) Description Acreage 1 L.C.Aw. 10016 Apana 2 to Lono 0.65 acre 2 L.C.Aw. 9232 Apana 1 to Kaaaaoloa 0.58 acre 3 L.C.Aw. 7631 Apana 1 to Kelemoku 1.20 acres (portion) - L.C.Aw. 8182 to Heau 0.70 acre 5 L.C.Aw. 8254 Apana 1 to Haoleki 0.43 acre 6 Portion L.C.Aw. 8254 Apana 2 _.to Haoleki 0.53 acre Portion L.C.Aw. 7321B to Kualeho 0.81 acre L.C.Aw. 10922 to Ula 2.48 acres 9 L.C.Aw. 7922 to Kapaehaa 6.96 acres ll Kam IV to Aihoi Apana 2 0.53 23 McBryde Lands Item No. (Exh. Ancient Taro M-0-53(a)) Description Acreage 12 L.C.Aw. 3284 Apana 1 to Wahineaea 1.30 acres 13 L.C.Aw. 5572 Apana 3 to Kaaha (Ili of Kuiloa) Section A 1.20 acres Section B 5.80 acres Section C 3.00 acres 14 L.C.Aw. 3284 Apana 4 to Wahineaea 1.13 acres 16 L.C.Aw. 9029 to Kaohulihau 0.91 acre 17 L.C.Aw. 8198 to Kamano 0.70 acre 18 L.C.Aw. 8036 to Aihoi 1.20 aeres 19 L.C.Aw. 3284 Apana 3 to Wahineaea 1.95 acres 21 L.C.Aw. 7712 Apana 5 to Kekuanaoa (Li of Eleele) Section G 6.71 acres Section H 4.53 acres Section | 2.13 aeres Section h 2.32 acres Section R 0.90 aere 23 Und. Int. L.C_Aw. 5309 to Kanakamaikai Und. Int. L.C_Aw. 5447 Apana 1 to Nuanua Und. Int. L.C.Aw. 5447 Apana 3 to Nuanua L.C.Aw. 7928 Apana 1 to Maluaikoo $8.00 eesen L.C.Aw. 7928 Apana 2 to Maluaikoo Und. Int. L.C.Aw. 9135 Apana 1 to Kalepona L.C.Aw. 10010 to Makahiki L.C.Aw. 10526 to Naloheelua M. Aw. 19-B to Kanehiwa 59.68 acres Fa Ng PGB ee Poe eh eee oor Nib NE se Trent Cab tie biaets PMI cin 5 ee. Y, 7 ate. a i ~ a, ‘en Pah ted. nate SS ENT SAR EIR NE G20 aew ne is ea ee 24 State Lands Government Ancient Tar Lot No. Acreage Exh. No. 32(a) 4 1.10 acres 5 3.00 acres 6A 1.10 acres 6B (Gr. 1149) 0.26 acre 7 4.10 acres 8 2.50 acres 9 7.50 acres 1l 2.00 acres 14 1.00 acre 15 0.70 acre 18 1.00 acre 19 P 1.14 acres 21 4.25 acres 22 4.10 acres Exh. No. 32(b) 24 5.60 acres 25 2.20 acres Exh. No. 32(c) 26 3.30 acres 27 6.20 acres 28 0.70 aere 30 1.70 acres 31 1.80 acres 35 0.40 acre 36 0.90 acre Exh. No. 32(e) 39 3.50 acres 40 1.30 acres Exh. No. 32(f) 47 1.16 acres 48 0.10 acre 50 0.25 acre Exh. No. 32(a) 54B Gr. 10832) 0.14 acre 55 (SSA 54910) 0.41 acre LCA 9116:1 0.24 acre 63.65 acres eS eee a ae ee ee ee ee ee ee G&R Lands Wet Land Designation Acreage LCA 5447 :3 to Nuanua 0.75 acre LCA 7993 :1 to Pala 0.79 acre LCA 8020:1 to Asa Kapoi (G&R portion) 0.49 acre LCA 8077 :2 to Hii 1.21 acres LCA 8123 to Holeka 0.47 acre LCA 9135 :1 to Kalepona 0.57 acre LCA 9142:1 to Kapekue (G&R portion) 0.43 acre LCA 9190 :1 to Kupia (G&R portion) 1.70 acres (G&R reserved water rights portion) 0.89 acre LCA 9283 :2 to Keliinui 0.56 acre LCA 10069 to Maluihi .0.80 acre LCA 10274 to Palahe 0.83 aere LCA 10312:1 to Namaielua 1.14 acres LCA 11011 to Makaiku 1.00 acre 11.63 acres [Tr. pp. 1044-45 and 1062] 57. The three parties represented at the trial also agreed that the wet land areas of other private owners totaling 29.11 acres shown in Court’s Exhibit “2” which is hereto attached and made a part hereof, and as shown In G&R Exhibit G-4 under the heading “Erhibii EF Tare Land of Other Private Owners”, are correct. The Court tinds these figures are correct. oo. MebBryde and G&R agreed and G&R*s witness Rosweli Towili testified that the area of wet lands with appurtenant water rights for taro belonging to G&R within certain parcels of land is as follows: eet: Se a es saints Babi het Lead eT aed ys BEARD AILS SIGN Ee tendered Pelee Oar NEE EMAAR 26 G&R Lands Wet Land Designation Acreage LCA 3284:2 to Wahineaea 1.95 acres LCA 5309 to Kanakamaikai 0.93 acre LCA 5447 :1 to Nuanua 0.32 acre LCA 5447 :2 to Nuanua 0.21 acre LCA 6578 :2 to Paele 1.39 acres LCA 7919 to Kaiahauna 3.06 acres LCA 8020 :2 to Asa Kapoi (G&R portion) 0.63 acre LCA 8077 :3 to Hii 0.46 acre LCA 9265 to Kipani 3.10 acres LCA 10275 to Makaino 0.39 acre LCA 10349 to Nakapa 3.93 acres LCA 10678 :1 to Pua 0.78 acre LCA 11068 to Wailele : 1.85 acres While the State did not join in this agreement, it introduced no evidence to contradict these areas which the Court finds correct. 59. The evidence shows that there is a substantial area of wet land in Koula and Manuahi valleys having appurtenant water rights for the cultivation of taro. The only evidence giving the total acreage of this wet land is Findings of Fact No. 6 of Cristy, J. in Territory v. Gay (1st Cir.) Eq. 2911, which places the acreage at ‘‘approximately 90 acres.” This finding was made in litigation between the predecessors in interest of the State and G&R, and was introduced in evidence in this proceeding by McBryde. There is no evidence tending to contradict it, and this Court adopts it as its finding. 60. [As amended R7-251-250] The remaining areas claimed by McBryde, and the State, as their wet lands having appurtenant water rights for taro cul- tivation, were disputed by G&R. For the sake of con- 27 sistency in the matter of the standard of proof re- quired, and taking into consideration the probable standard of proof adopted by Judge Cristy for the determination of taro lands in formulating his Find- ing No. 6 in Territory v. Gay (1st Cir.) Eq. 2911, as shown in Finding No. *‘59” above, and also taking into consideration the standard fixed herein as being the right to water in the quantity which was cus- tomarily used on the land at and immediately before the date of the award or grant, the Court finds that the following disputed lands are wet land taro areas: McBryde Lands Item No. (Exh. Ancient Taro M-C-53(a)) Description Acreage 13 L.C.Aw. 5572 Apana 3 to Kaaha (Ili of Kuiloa) Section E 4.00 acres 15 Portion L.C.Aw. 10271 Apana 1 to Makailio 2.49 acres 20 L.C.Aw. 11011 Apana 1 to Palama 1.17 acres 21 L.C.Aw. 7712 Apana 5 to Kekuanaoa (Ili of Eleele) Section J 8.33 acres Section L (portion) 4.68 acres Section M 4.30 acres Section N 6.22 acres Section O 5.99 acres Section P 0.47 acre Section Q 0.88 acre 38.53 acres State Lands Government Lot 10 9.80 acres Government Lot 12A 3.30 acres Government Lot 13 2.00 acres Government Lot 37 4.02 acres Government Lot 45 0.50 acre 19.62 acres Sora atcrnd POLAT e J 4 a a . 2 * 3 ; F EN a Wy S X “ a Ny + ra * 28 61. [As amended R7-249] There is not sufficient evidence to support a finding by this Court that any of the other disputed areas were cultivated in wet land taro at about the time of the Land Commission awards or Mahele. In summary, the lands of the various parties en- titled to appurtenant water rights are: McBryde 98.21 acres State 83.27 acres G&R Koula & Manuahi 90.00 acres Below Koula & Manuahi 30.63 acres Others 29.11 acres 331.22 acres The figures set forth in above findings represent the Court’s findings of the areas of wet taro land at and immediately before the time of the Land Com- mission Awards in Hanapepe, which occurred in the years 1851-1855. In arriving at these findings, the Court has found that the relevant evidence has vary- ing degrees of probative value. For the purpose of determining which lands were entitled to appurtenant water rights. MeBryde, the State and G&R, through their expert witmesses, namely, surveyors for the respective parties, sed the same guide lines. Differences of opinion were pri- marily on the weight to be given to each of these guide lines. The areas of dispute eentered on the questions of whether the arxwars shown on Govern- ment Registered Map, Exh. M-C-7, were ancient auwais as elaimed by MeBrvde and the State, or new aeiwais as claimed by Ge as having been built by Chinese rice planters. i ae Aw = 29 At the conference of surveyors (representing McBryde, the State, and G&R), as well as during the course of the trial wherein each of the surveyors representing the parties at the trial testified, all par- ties, in nearly all cases, used the following guide lines for the proof of ancient taro lands: (1). Land Commission Awards and Royal Pat- ents. The descriptions in the land commission awards were based on surveys by the Land Commission sur- veyors and the testimony before the Commission. The land commission awards also describe the use of lands adjoining the lands awarded. These descriptions are part of the metes and bounds descriptions, and are based on the survey by the Commission’s surveyors and the testimony before it. They are thus eyewit- ness descriptions made either contemporaneously with the awards of the adjoining lands, or within four years of them, and are entitled to great weight. Where the descriptions in these documents called for “‘aina kalo”, taro land; ‘‘loi”, taro patch; ‘‘koele”, taro lands of the konohikis where hooinas had to labor for certain periods; ‘‘auwai”, ditch; or ‘‘moo”, agricultural land'; the subject land and the adjoining lands were conceded to be taro lands. (2). Auwats. The ancient. taro patches being irri- gated by a system of ditches, where the auwai was identified, described, sketched or called for in a Land Commission Award or Royal Patent, all parties gen- 'Though such lands were not necessarily taro land, the sur- veyors were in agreement that in Ilanapepe Valley ‘‘moo’’ meant wet taro lands. ee Rec “ eee en | oh eon ot aeedbubdse SRD a eet eden sit EVIL, «ene BY 0. bh eesti ANY adel « 30 erally conceded that lands adjoining thereof wer ancient taro lands. Proof of ancient auwais were also sought by the use of testimonies of kamaainas perpetuated in 1997 on Kauai in contemplation of Hanapepe water rights litigation. All of these witnesses were called by G&R. (3). Topography. Where the land was level. fertile, and at an elevation where water from auwais and adjoining lois was available, the parties gener. ally conceded the lands to be ancient taro lands. The dispute regarding this guide line was whether the auwai was an ancient auwai and whether the land was at such an elevation so that it was capable of being irrigated by an ancient auwat. (4). Perpetuation of Kamaaina Testimony of 1927. Gé&R in contemplation of a suit to determine water rights in Hanapepe Valley, by order of the presiding judge of the Fifth Cireuit Court, held hear- ings from July 7 to July 16, 1927, for the purpose of perpetuating the testunony of seven persons. The survevors involved all made extensive use of the kamaaina testimony of 1927. Where the kamaai- nas in 1927 referred to the land as taro land, the parties did not dispute the fact. Primarily, the dis- pute regarding such testimony was on the ~:se of the word kula. G&R claimed that when the kamaainas referred to a land as ‘*kula”, dry land, they meant that the land was never devoted to taro culture in ancient times, hence the land had no appurtenant water rights. The State and McBryde, on the other 31 band, claimed that by ‘‘kula” the kamaainas meant that the land was not in taro cultivation at the time they first were familiar with the land. This Court sustains the contention made by McBryde and the State that the term “‘kula” was used by the kamaai- nas to mean “‘uncultivated”. (5). Government Registered Maps. Government registered maps put in evidence by the State as Ex- hibits 32(a) to (f) inclusive, which are the same as McBryde Exhibits 1 to 6 inclusive, and the compila- tion of these 6 maps put in evidence as MeBryde Exhibit M-C-7, show the various ancient auwats and by broken lines or dash lines show /uaunas or taro patch banks. (6). Historical Data. Writings of Captain Van- couver, Hiram Bingham and other early explorers and writers of early Hawaiian history, including cor- respondence found in the State Archives, generally show that the Hanapepe Valley area was a fertile valley of taro patches. (7). Other Method of Proof of Ancient Taro Lands. (a) Dr. E. S. Craighill Handy, eminent authority on Hawaiian anthropology and ethnology, testified for McBryde to the effect that Hanapepe was one of the finest areas for taro cultivation that he observed; that before depopulation became serious in Hawaii, there was no land to which they could get water for irrigation which was neglected by the Hawaiians. He also testified regarding the ingenuity and skill of the Hawaiians in building irrigation systems. (Em- phasis supplied.) 3 3 € ¥ 7 A ; : 2 2 3 j : S 2 > : . 4 he AN RE Ss Te A ER lit ie ce den 32 (b) Dr. Kenneth Emory, staff anthropologist a the Bishop Museum since 1920, likewise testified re garding the skill and ingenuity of the early Hawai- ians to bring water from distant places to grow taro, Relative to Hanapepe Valley, he stated that every bit of available land at the time of maximum pomulation was under cultivation, with all of the ingenuity the Hawaiians had in bringing land into maximum best productivities through their skills in irrigation and so forth. (Emphasis supplied.) The theory that all land which could have heen irrigated was cultivated in wet land taro is not neces sarily established by the evidence. As pointed out br both Dr. Handy and Dr. Emory, the above statement is correct if confined to the time of maximum popr- lation or before depopulation set in in all of the islands including Kauai. There had been a tremendous decrease in population throughout the Hawaiian Is lands, including Kauai and Hanapepe, at about the time of the Mahele. After reviewing the various authorities and em- dence herein in the matter of ancient Hawaiian tan culture, this Court feels that the. area of taro land lying fallow would equal at least one-half of that in actual cultivation, which means that out of all wet taro lands under cultivation ahout the time of the Mahele, at least one-third of such land would lie fallow at all times. At about the time of the Mahele, the Hawaiians had no use for taro except to eat it. Theirs was a subsistence agriculture, and any theory that the need 35 for taro was so great that all irrigable land was used for taro cultivation in 1851-1855, or about the time of the Mahele, is not supported by the evidence. Only such irrigable land as there was need for was used for taro cultivation. Taro Water Duty 62. [As amended R7-269] The parties on both sides have submitted into evidence reports of certain experiments as bases for expert opinions. MeBryde relies principally on the scientific experiment reported in McBryde’s Exh. M-K-59 and supplemental reports, and accordingly, its chief witnesses, Joel B. Cox and Keith Tester, based their opinion testimonies on such experiment and reports. G&R rely on two reports, namely, the preliminary report of H. A. R. Austin & Associates, Ltd., (Exh. G&R-G-1), and report of George Robert Ewart, Jr. (Exh. GER-H-12a). G&R’s Exh. GER-G-1 is considered to be merely a preliminary report. Thus, Mr. Russell Smith, who testified for GER, was unable to express any opinion based on that report alone. Ile has taken the position that, although he admittedly has no personal and direct knowledge as to how each of the other reported experiments was conducted, he is basing his opinions on all the reports submitted in this ease. A cursory examination of the report and _ testi- monies will show that different approaches and methods are reflected in the different experiments. Thus, the Court, in attaching appropriate weight to 4 Tage TOY Ne i es Oe Rie ade Sent 34 the several opinion testimonies, has considered (a) whether, and to what extent, each experiment has attempted and succeeded in its attempt to simulate the ancient Hawaiian practice of taro cultivation, and (b) to what extent each experiment affords ae. curate data on which opinion testimony of water duty may be based. Ewart’s report and Austin & Associates’ exper- ment show no attempt made on behalf of G&R to simulate ancient Hawaiian taro cultivation. There was a general agreement between Mr. Jod B. Cox and Mr. Russel] Smith yelative to Hanapepe Valley as containing three broad areas, namely, mauka, middle and makai, representing three rather separate geological conditions, and that the middle area can be expected to be much more porous than the other two areas. There is a pattern to the enormous variation in water consumption, which together with the indica- tions derived from moisture equivalent readings and observations of field conditions, provides the best basis for determining a reasonable estimation of water duty for Hanapepe Valley. The moisture equir- alent method is an indication of | ermeability. It was precisely this basis that was emp oyed by the State and McBryde experimenters. Although Mr. Joel B. Cox admit.~d that a com plete simulation of the ancient Ha» :aiian practic was impossible or utterly impracticabk extensive ¢- forts were made by the State-MceBryde steers AQ pourg 44 ACT FUEN *M A4oaly YW eyxLUEN ooptyH INun4ywy eSTNoOT Jo sstrory @ FNUNNQY OJs00D SEnunysy weyougy ‘Inunyoy Stato ‘Enunyoy “yy AOTatyg "2199 *w Aty ‘tnueyry o%2005 FRINeeY “Y *P JD Suzey % *4p ftnuexey: *H LeTTT Ty 4ousoH *y epr eyeuty TYysocty Bainuwowtys TuoTTy Bung *y PerzzTty, y FHeWOY *y ATIT ‘tTHeWOY oTYSO] CXBUON OSPTH B NeTyeey *y zeqrty Aausoy *y Epr FIEY *y Izeqoy FIeY *N LUy Teney jo f4uno9 FyeweY *y ATIT @ Bung *y pesstty ERED 29) IE AEE IE Oe, L0~€0-g-T Le 2 92°20-6-T O2 *49e-2T-6-T 6-2T~6-T 6T 2 GT-TO~6-T 62 *4od=£O-g-T 6e- ge~ 2T~€0-6-T 92 *€% *TI-£0-6-T Roy xe yodey wey T FOxTY euelTeuey nyowe Tay oyeTeny enueny “ " aruey eorouTyey SISTIO AQ pourg eee ee an NuNONOUNOUN le «dy «dy *dy *uod dy *dy *uod *dy *s0od *dy *sod sdy “aod *dy *aod TIL *a0d o4no° Tto0g $262 £262 0262 LL9L TE92 a-Tt2el L775 1S9€ 1S9€ 1S9E "EZE *MYOTS 45 yeney yo Aqunog CHEUON OSPTH BF NeTpPeey *¥ wWoaQTy aaysnay *Buo0ay Suty tel Yoanyd Mey UTS Fed W4eq AYO *H “@ YOTOH B NYO *f AsudH teney jo Aqunog Ayatoos tng Juny axay9 Teney jo Aqunog Zuo tetnny *[e 3a suvieg *y sptuuRy gueyd *k yseqeztTy Tyoey *y Tayoey Jo S4toH nug *H °@ uesTeyH Fy nUS “Pf Asus; Bung enaylts tte] ouey *f WT44ueyY Y OUFY TYOTUNL zeney yo Azuncg SXUON TWEITH B EyeUK TYoTOTTYUS OATH ee boptd Yedelsn, seeet ? 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TWOLTH ?W Bxeuoy TYOTHSITYS SeyeuoN OeMT EHEUOF TySO{esey Seyeuon Oapty feyeuoy o354e] eyeusy; onzey T/T - EARLON OUTER] 02°? LT~TC4ST neTTeey *y WteqTy 8 SXPUON I9PTH $e°T T2-2T6T Teney jo £3uno9 $2°O O@-TT6T neTTeey *y wWeqtTy 2 SXeuSN OsPty €€°O CTWTTET Buon, TaTany 75°O GT *40d~ZT6T JausoH "y BLT 66°0O 62 *45d-£0gT TNUEYRY *H paeusog | fpnusyey *y udesop *tnueyey *q (2236qg ‘pnueyey °7T ettne fear fynuexey “Hy WETTItTm ‘tnuexey *y cy ITOTA $2°0 6~-S0ET TaumMp Boly pue] hoy xeL o41e] “oH Ydusop “PnuEMEs © Mai oR ete ee i i Be Be Bq WY esoy aToewEuUeN eTeueng eTewend QuUTeYLy; TTrevey ne ian oe 9692 *49 (¥-7$ 297) €99L °2y YOTI49g UoTIIOd $6S0T €6S0t TTcot $L20T 20 Conclusions of Law Burden of Proof The burden of proof is upon McBryde to establish the allegations of its complaint, specifically the areas it must prove by credible evidence what lands it has which are entitled to appurtenant water rights and the consumption of water of such lands. It has the burden of establishing by competent evidence each and every element of its adverse possession, prescrip- tion or adverse use claims; that its takings of water (over and above its appurtenant water rights) were actual, open, notorious, continous, hostile, exclusive and adverse to the true owner. Adverse use is to be taken strictly and every presumption is in favor of a use in subordination to the rightful owner. Territory v. Pai-a, 34 Haw. 722; Lalakea v. Haw’n. Irrig. Co., 36 Haw. 692; Tagami v. Meyer, 41 Haw. 484. Appurtenant Water Rights 1. When land was awarded by the Land Commis- sion or granted by the King or government, the award or grant included the right to water in the quantity which was customarily used on the land at and immediately before the date of the award or grant. Carter v. Territory, 24 Haw. 47, at page 64: ‘* . . Like the rights which passed to lands awarded by the land commission, it was a right to such quantity of water as was customarily used on the land at and immediately before the LONE A. date of the grant so long as that quantity con- tinued to be available. .. .” See also: Territory v. Gay, 31 Haw. 376, at page 383: ‘6 | 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 com- mission, enjoying the use of water for the culti- vation of taro or for garden purposes or for domestic purposes, the land has been held to have had appurtenant to it the right to use the quan- tity of water which it had been customarily using at the time named... .” Hutchins, The Hawatian System of Water Rights, pp. 104-106. 2. Earlier cases holding that the awards carried with them a right. to the water which the lands used by ‘immemorial custom” are consistent with Carter v. Territory and Territory v. Gay, supra. An imme- morial custom at the time of the Land Commission would be one which had then existed for as long as anyone could remember. Black’s Law Dictionary, 4th ed., p. 884, ‘‘immemo- rial usage” : ‘“*A practice which has existed time out of mind.” Accord: 20 Words and Phrases 211 ‘‘immemorial use” : ‘**Tmmemorial use is a use time out of mind, or from a time whereof the memory of man is not to the contrary.’ ” SAA cae le CR » —* on 3. One of the reported cases using the word “im. memorial” is Peck v. Bailey, 8 Haw. 658 (before Allen, C. J., sitting alone 1867) : “There can be no difference of opinion that the complainants were entitled to all the water rights which the lands had by prescription at the date of their title. By the deed, the water courses were conveyed and a right to the water age. customed to flow in them. The same principle applies to all the lands conveyed by the King, or awarded by the Land Commission. If any of the lands were entitled to water by immemorial usage, this right was ineluded in the conveyance as an appurtenanee. . .. (p. 661) ‘6. . Each grantee will hold all that has been eonveyed to him, unless it should conflict. with a previous convevanee. This includes the water courses on their lands, and all the water which the lands had enjoyed from time immemo- rial... .” (p. 662) Two other cases Davis v. Afong, 5 Haw. 216, 224, and Mele v. Ahuna, 6 Haw. 346, 349, refer to water which had been used ‘*from ancient times.” Such ref- erences to the use of water which had persisted fron time immemorial or ancient times are in no way in eonflict with the holding of Carter v. Territory and Territory v. Gay, supra, that the use must persist vuntil “at and immediately before” the Land Con- mission award if it is to be transformed into a vested right by that award. Prior to the Mahele the King was the owner of all the land and all water rights. The title vested in private ownership upon the isst- ance of the award or grant and not before. (Emphasis supplied.) This Court holds that when our Supreme Court uses the expression ‘“‘from time immemorial”, it means the condition of the land and its continuous use as long as anyone can remember up to the date of the award. It does not mean some use that may have existed in the days of the first diseovery which did not continue right up to the date of the deter- mination by the land commission. 4, The traditional method of deseribing the quan- tity of water rights, and of decrecing their appor- tionment has been in terms describing the dams, ditches and time schedule of diversion: Wilfong v. Bailey, 3 Haw. 479; Wong Kim v. Kioula, 4 Haw. 504; Loo Chit Sam v. Wong Kim, 5 Haw. 130; Mele v. Ahuna, supra; Peck v. Bailey, supra; Lonoaea v. Wailuku Sugar Co., 9 Haw. 651; Chun Lai v. Mang Young, 10 Haw. 133; Horner v. Kumultilti, 10 Haw. 174; See Yick Wat Co. v. Ah Soong, 13 Haw. 378. Apportionment by time schedule is expressly au- thorized by the statute governing water commissions. R.L. 1955, §234-33. However, there is precedent for a decree framed in terms of gallons per day. Hilo Boarding School v. Territory, 23 Haw. 595. 5. [As amended R7-248] Each of the parties hav- ing appurtenant. water rights shall receive a continuous flow of water equal to the acreage of taro land found above (Findings Nos. 56 through 61, as amended) times the typical duty of water found above of 50,050 gallons per acre per day (Findings Nos. 63 and 64). o+ The above conclusion, however, does not apply to the lands of G&R in Koula and Manuahi, which the Court has found ineludes 90 acres entitled to water rights, without satisfactory evidence of their duty of water. (Findings 63A and 64). This leaves unde cided the quantity of water to which said 90 acres may be entitled. Surplus Water Rights 6. The normal surplus waters rising and flowing from Koula and Manuahi streams belong to G&R. Territory v. Gay, supra, affirmed 52 F. 2d 356, cert. denied 284 U. S. 677. 7. Surplus waters are those of a stream in excess of the quantities required to satisfy established rights including ancient appurtenant rights, prescriptive rights, and rights conveyed by deed. Hawaiian Com- mercial & Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675; Hutchins, The Hawaiian System of Water Rights, 70-74. 8. The division of surplus water into “normal surplus” and “storm or freshet” surplus originated in Carter v. Territory, supra, at page 70, in which it was decided that “storm or freshet” waters of a stream which flows through two or more ahupuaas must be apportioned between them according to riparian law. 9. Some language in Carter v. Territory, supra, applied literally to all surplus water, although the Supreme Court was only dealing with storm surplus. (There was no surplus in that stream except in times of storm or freshet.) In Territory v. Gay, supra, the ») court held that the normal surplus of a stream be- longed to the konohiki of the land on which it arose. 10. The trial court in Territory v. Gay, Ist Cir. Kg. 2911, affirmed 31 Haw. 376, had found that the ownership of the storm or freshet surplus was moot, since none of its was being diverted by G&R. On ap- peal, a majority of the Supreme Court (Perry, C. J. and Parsons, J.), held that normal surplus belonged to GER. However, no decision was reached as to storm or freshet waters. Perry, C. J. would have over- fF ruled Carter v. Territory, supra, and awarded all surplus water, both normal and storm or freshet, to G&R. Parsons, J. took the view that the correctness of Carter v. Territory, supra, should not be reviewed until the issue was squarely presented. Banks, J. would have adopted riparian law in place of our tra- ditional water law. ll. None of these decisions define “normal”, “storm”, or “freshet” surplus. The one thing that is clear is that these terms are meant to be comple- mentary; “normal” surplus leaves off where “storm or freshet™ surplus begins. 12. In neither Carter v. Territory nor Territory vt. Gay, supra, did the Supreme Court compute the dividing line between “normal” and “storm or freshet” surplus, nor indicate how it is to be done. 13. It is uncertain whether the rule of Carter ’. Territory, supra, is still theSaw of Hawaii. Terri- tory v. Gay, supra, invites reconsideration of the rule but only if the facets require it. Tn this case, the water measurements are such that the Court finds a6 that both normal surplus as well as storm and freshet surplus waters are involved, and this Court must de termine who are entitled to them. Perry, C. J. in Yerritory v. Gay, supra, at pages 393-403, reviewed the objections to applying the law of riparian rights to “storm or freshet surplus” aceu- rately and at length. They are concurred in by Hutchins, The Hawaiian System of Water Rights, pp. 94-98. This Court holds that all the surplus waters of Koula and Manuahi streams, without dis- tinction between “normal” and “storm or freshet” surplus, belong to GER on whose land they rise. It is unnecessary to repeat the cogent reasons of Perry, C. J. and Hutchins, except to point out that they are substantiated with particular force here: (a) The Chief Justice’s prediction that it would be difficult to determine “what precise line is to be drawn in practice between the higher normal flows and the smaller freshets” (Perry, C. J., 31 Haw. 392) is demonstrated by the evidence in this case; (b) Under the rule as expressed in Carter v. Ter- ritory, supra, at page 70, the “storm or freshet sur- plus” must be used on the ahupuaas or ilis kupono through which the stream passes. This is because of the riparian rule which limits the use of water to lands on the “ripa” or bank of the river. Territory r. Gay, supra, at pages 396-7. These riparian lands already have ample water rights sufficient for sugar cultivation, and the important economic use for the storm and freshet waters is for the irrigation of dry kula lands outside the Hanapepe Valley. Much of the OTE BROS Nae I Oe Se RI ~~ oe ae ees so-called riparian lands already has appurtenant water rights as herein determined by the Court. (c) Riparian rights vary from time to time, Hutehins, The Hawauan System of Water Rights 97, according to many factors, including the use which other riparian owners may wish to make of the water. Irrigation systems of the sugar plantations involved in this case show that large capital investments are necessary for the use of this water. The upkeep and expansion of these systems will be discouraged if those who make the investments know that their rights to the water may be changed whenever other riparian owners develop a new potential use for the water. The policy of the statute creating water com- missions is tou determine water rights so that they may be relied on by their owners. This objective would be defeated if water rights are subject to periodic revision. Prescriptive Rights 14. The above conclusions as to the quantity of appurtenant and surplus water rights describes those rights as created by the Land Commission awards, It remains to be considered whether they have been al- tered by adverse use or prescription. Elements of Prescription. In order to establish a prescriptive title to a water right, there must have heen an “actual, open, notorious, continuous and hos- tile use” of the water against the rightful holder for the period prescribed by the statute of limitations, to wit, See. 241-30, R. L. H. 1955. Territory v. Gay, supra, at p. 383. The use must also have been under SSO OC SS WIS OO. meen Hidh bol 1 38 a claim of right. Davis v. Afong, supra, at page 221. Wong Leong v. Irwin, 10 Haw. 265, 271; Kaneohe Ranch Co. v. Kaneohe Rice Mill Co., 20 Haw. 658, 666. Continuity of Use. The general principle is that use of the water shall have been continuous during the statutory period. This necessarily does not mean that the water must have been taken and used in- cessantly; the use is adverse if water is taken when- ever required for the purpose for which the right is claimed, and this need not be done at regular periods. Davis v. Afong, supra, at page 221. The continuity of use necessary to support a pre scriptive title is interrupted if the rightful owner diverts the water for his own use during a fraction of the prescriptive period and thus prevents tlie use by the adverse claimant at a time when needed. Kohala Sugar Co. v. Wight, 11 Haw. 644, at 649-654 A use of water made without resistance during the times when the supply was adequate for all claim- ants, but forcibly and successfully resisted when the water supply was short, could not be the basis of an adverse right, for no one was injured by the us which was actually made during the time of ample water supply. See Yick Wai Co. v. Ah Soong, supra, at page 382; Palolo Land & Improvement Co. t. Wong Quai, 15 Haw. 554, 560, 562. The general principle that the statute of limite tions does not run against the government, such a the State of Hawaii, has been recognized in Hawaii, as elsewhere. PRR Puree i ee ee yee 7, Bol > i- fr & s-PeTeebene Fe YF FSET BR? ii, a9 Adverse Use or Prescriptive Cluims of McBryde 15. During the years 1934-1949, McBryde diverted 7 million gallons per day or more from the river for a period of more than 10 years. 16. The days during this period on which Mc- Bryde’s recorded takings were less than 7 million gallons per day were so few, and generally explicable by the absence of need or the failure of pumps or measuring devices, that they do not amount to dis- continuance of diversion. 17. Attempts by McBryde to take more than 7 million gallons per day were interrupted by HS Co.’s and later G&R’s diversions of so much water that McBryde was unable to take more than 7 million gallons per day. These interruptions each lasted sev- eral days, and make at least three interruptions in any 10-year period, as shown in finding “55” herein. The Court thus concludes that McBryde’s diversions of water from the Hanapepe River were actual and continuous only up to 7 million gallons per day. 18. As shown in finding “64” herein, by reason of their ownership of lands having appurtenant water rights, the parties are entitled to total appurtenant water rights as follows: McBryde 4,915,400 gpd (rounded) The State 4,167,650 gpd (rounded) Other Land Owners 1,456,950 gpd (rounded) G&R (b#iO6wManuahi & Koula) 1,533,050 gpd (rounded) G&R (Manuahi & Koula) Unknown McBryde during these periods took as much water as there was in the river. The County of Kauai, a aati Rr AMO it ii Mb 60 political subdivision of the State, took 225,000 gpd (Finding No. 33), leaving 4,167,950—225,000—3,942,. 650 which was either wholly or partially taken hy McBryde. McBryde can aequire no right to this water against the State, since prescription does not run against the sovereign, or against anyone else, since the water was the State’s. 19. There is no evidence about the diversions of the “others” during this period, although since Me- Bryde was diverting as much water as passed the USGS station at the junction of Koula and Manuahi, it is unlikely that the “others” were taking any. 20. The original lease to Watson, assigned six days later to HS Co., gave the lessee the right to take “all” the waters of Koula, but did not require it tov do so. HS Co. was free to build such dams and ditches as it deemed appropriate, in such locations as it pleased, and to take whatever quantity of water it wanted, limited only by the appurtenant rights of downstream owners. See Cross v. Hawaiian Sugar Co., 12 Haw. 415. G&R’s right to any part of this water was limited to a proportion of the water which was in fact diverted. 21. A supplementary agreement was made between G&R and HS Co. on February 21, 1930, giving G&R the right to divert water from its “wet (taro) lands” in Koula, Manuahi and Hanapepe, but not “above the intakes of the present Koula and Olokele ditches.” Nothing in this agreement impaired the right of HS Co. to the first chance at the waters; all it conferred on G&R was the right to take HS Co.’s leftovers. HS 61 Co. remained in control of the waters, having the upper hand because it had the upper dam. 22. Whether the waters taken by McBryde from the Hanapepe stream were those leased to HS Co. hy G&R or not, the taking constituted an injury to G&R’s inheritance for which G&R could have brought an action at common law or in equity throughout the measured period 1934-March 1949, or a statutory pro- ceeding before the Commission of Private Ways and Water Rights to prevent McBryde from taking more waters than those to which it was entitled at all times during the measured period, 1934-March 1949. Wong Leong v. Irwin, supra, at page 271; Long v. Wai Fong, 9 Haw. 628. As a reversioner, being the lessor of HS Co., GER had a cause of action during the measured period 1934-March 1949 for an injury to their inheritance because of the possibility of McBryde’s acquiring prescriptive rights against the reversion. 23. Since, as shown in conclusion “15” herein, Me- Bryde diverted 7 million gallons or more of water per day for a period of more than 10 years under a claim of right and such use was actual, open, notori- ous, continuous and hostile against the owners of such water, it has acquired title to such water by adverse use or prescription to the extent of the difference between 7 million gallons and the quantity of water to which it has appurtenant rights, to wit: 7,000,000 gallons per day (quantity diverted) Less 4,915,400 2,084,600 gallons per day 62 Prescriptive Claim of McBryde for Rice Lands 24. The lands for which McBryde claims a pre- scriptive use of water for rice lie in its ilis of Kuiloa and Eleele and LCA 3284:4. In each ili, and in LCA 3284:4, the lands so claimed is less than the land in that ili or award having appurtenant water rights. The owner of water rights may use that water on any of his land, and is not limited to using it on the land to which it originally appertained. Peck v. Bailey, supra, at pages 665-6, 672; Lonoaea v. Wai- luku Sugar Co., supra, at page 665; Wong Leong v. Irwin, supra; Foster v. Waiahole Water Co., Lid., 25 Haw. 726; Territory v. Gay, supra. Such a transfer does not create additional water rights, even if continued for the prescriptive period. Hawaiian Commercial & Sugar Co. v. Wailuku Sugar Co., supra, at page 686: “... Where water has been transferred to kula land from ancient taro lands, the proprietor, after the use on the kula lands has continued for the statutory period, is too likely to be led to indulge in the view that the kula has acquired a pre scriptive right to the water and that the taro lands have at the same time retained their an- cient right and not lose it by abandonment. That, of course, is a mistaken view. Water rights can- not be doubled in that way... .” In this case it may even be an exaggeration to say that the water was transferred, since it was used, not on other awards, but simply on another part of the same Land Commission award. In addition, once pias Oe . Ree eye in SS IS 63 Kuiloa, Eleele and LCA 3284:4 came into McBryde's hands (as they were in most of the period by which it claims prescription) water could be transferred to them from McBryde’s other lands having appurte- nant rights. The evidence does not show that Kuiloa, Eleele, and LCA 3284:4, or any of them, was using more water in the claimed prescriptive period than it was entitled to by appurtenant rights. In the absence of such evidence, the claim of adverse use or prescrip- tion is not. established. Summary of Findings of Fact and Conclusions of Law Upon a thorough review of the law and the evi- dence above, the Court finds and concludes as follows: 1. The lands of the various parties entitled to appurtenant water rights in Hanapepe Valley are as follows: McBryde 98.21 acres State 83.27 acres G&R Koula & Manuahi 90.00 acres Below Koula & Manuahi 30.63 acres Others 29.11 acres Total 331.22 acres 2. The duty of water (quantity of water custom- arily used and necessary to grow an average crop of taro) in Hanapepe Valley below the junction of Koula and Manuahi streams at or immediately prior to the award or grant is 50,050 gallons per acre per day. (Ss SR a a acta IFN LL ET IEP OE ITLL LE METS rr wa are WOT AR a6 Se | Secnene ahi 64 3. [As amended R7-246] By reason of their own- ership of lands in Hanapepe Valley having appurte- nant water rights, the parties are entitled to the fol- lowing appurtenant water rights: McBryde 4,915,400 gpd (rounded) State 4,167,650 gpd (rounded) Other Land Owners 1,456,950 gpd (rounded) G&R (below Manuahi & Koula) 1,533,050 gpd (rounded) (Manuahi & Koula) Unknown 4. McBryde has acquired title to water in the Hanapepe River by adverse use or prescription to the extent of 2,084,600 gallons per day. [Conclusion 23] 5. The evidence herein does not show that any of the rice lands for which MeBryde claims prescriptive rights was using more water in the claimed ‘preserip- tive period than it was entitled to by appurtenant rights. In the absence of such evidence, the claim of adverse use or prescription is not established. [ Conelusion 24] 6. This Court holds that all the surplus waters of Koula and Manuahi streams, without distinction be- tween ‘“‘normal” or ‘‘storm or freshet” surplus, belong to G&R on whose land they arise. [Conclusion 13] 7. The Court having fixed the appurtenant water rights of MeBryde, the State, other land owners, and G&R as shown in conclusion “3” above, and also the prescriptive water rights acquired by MeBryde, as shown in conclusion “4” above, and also by reason of GE&R’s being entitled to all surplus waters, as shown A a a Agel ooh iad 6d in conclusion “6” above, it follows that G&R are en- titled to all waters in excess of such waters to which the above named parties are entitled by reason of the ownership of their respective appurtenant water rights and prescriptive water rights. 8. The Court has thoroughly reviewed other is- sues raised during the course of the trial, but these findings of fact and conclusions of law cover all per- tinent issues raised by the parties for the determina- tion of water rights in Hanapepe Valley. y, A judgment determining the rights of the par- ties will be entered. Counsel are directed to submit a form of such judgment not later than January 15, 1969. Dated: Lihue, Kauai, Hawaii, December 10, 1968. /s/ Benjamin M. Tashiro Presiding Judge Attest : Barbara Haruki Clerk 66 174 SUPREME COURT OF HAWAII Syllabus McBRYDE SUGAR COMPANY, LIMITED, Plaintiff-Appellant, Cross-Appellee, v. AYLMER F. ROBINSON, et al., Defendants-Appellees, Cross-Appellants. No. 4879 ApPEAL From FirtuH Circuit Court HONORABLE BENJAMIN M. TAsHIRO, JUDGE January 10, 1973 RICHARDSON, C.J., MARUMOTO, ABE, LEVINSON, J] J., AND Circuit JUDGE OGaTA IN PLACE OF KoBAYASHI, J., DISQUALIFIED JupGMENT—res judicata. Under the doctrine of res judicata, an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent juris- diction, is conclusive of rights, questions, and facts in issue, as to the arties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. Courts—stare decisis. The doctrine of stare decisis relates to the legal principle that may be extracted from an adjudication of a claim for relief or an issue and the —— of such principle in a subsequent action between strangers to the record involving a similar claim for relief or issue. The doctrine, how- ever, is subordinate to legal reasons and justice and a court will overrule a former decision when the result is manifest justice. WATER AND WATERCOURSE—natural watercourses—title to water rights—Great Mahele. oa Even assuming that the King ~ his mahele granted ilis of Manuahi and Koula to the awardees as ilis kupono, the King, having retained the ahupuaa of Hanapepe fed by the Koula Stream and Hanapepe River, in the absence of an expr intent on his part to convey Ris right to surplus water, should not be deemed to have transferred such right. REAL pRoPERTY—ili kupono. Where one half of an ili kupono was maheled to a konohiki and the other half was retained by the King as crown land, a conveyance of the King’s half to the government, and the government's subsequent conveyance does not make the whole of the ili an ili kupono. WATER AND WATERCOURSE—natural watercourses—title to water rights—Great Mahele and Land Commission Awards. Right to water was not intended to be, could not be, and was not trans- 67 McBRYDE SUGAR CO. v. ROBINSON _ 175 Opinion of the Court ferred to an awardee by the Great Mahele and subsequent Land Com- mission Award and issuance of Royal Patent. SAME—same—same. The ownership of water in natural watercourses, streams and rivers remained in the people of Hawaii for their common good. SaAME—same—appurtenant water rights—Great Mahele and Land Commission Awards. It is the gencral law of this jurisdiction that when land allotted by the mahele was confirmed to an awardee by the land commission and/or when a royal patent was issued based on such award such conveyance of the parcel of land carried with it the appurtenant right to water for taro growing. SamE—same—same—burden of proof. The burden of proving the amount of water actually being used for taro cultivation at the time of the Land Commission Award is on the per- son claiming appurtenant water rights. SaME—same—same—determination. In determining appurtenant water rights, the trial court, sitting as Commissioner of Private Ways and Water Rights, shall determine as precisely as possible the amount of water that was actually being used for taro cultivation at the time of the Land Commission Awards. The extent of land under taro cultivation in earlier or later time is irrelevant. SaME—same—same—fallowed taro land. A reduction in acreage for fallowing should be made in the determina- tion of appurtenant water rights when it appears that at the time of the Land Commission Awards water was not being used to cultivate taro on certain acreage. Civit PROCEDURE—water rights case—applicability of Hawaii Rules of Civil Procedure. Proceedings before the circuit court sitting as Commissioner of Public Ways and Water Rights pursuant to HRS Ch. 664, Part III are subject to the Hawaii Rules of Civil Procedure. HRCP Rule 81 (a) . APPEAL AND ErRRoR—review—findings of fact. The trial court's determination of the parties’ “appurtenant water rights” will not be set aside unless clearly erroneous. HRCP Rule 52 (a). WATER AND WATERCOURSE—natural watercourse—appurtenant water rights-- extent of right to use water. The right to the use of water acquired as an appurtenant right may only used in connection with the particular parcel of land to which the right is appurtenant, and any contrary indication in Hawaii case law is overruled. SAME—same—riparian rights. The “right to drinking and running water" guaranteed by the “Enact- ment of Further Principles,” Laws 1850, RLH 1925 (Appendix, Vol. 2, 2141 et 7) see also HRS § 7-1, secured for a proprietor of land adjoin- ing natural watercourses riparian water rights. RNA ain OFF eer ee ¥ kon Petite 6s 176 SUPREME COURT OF HAWAII Opinion of the Court SAME—same—same—extent of right to use water. Riparian water rights include the right to use water flowing on land adjoining natural watercourses without prejudicing the riparian rights of others, or the right of others to the natural flow of the watercourse without substantial diminution and in the shape and size given it by nature. SAME—Same—same—riparian owners. Riparian rights belong only to land adjoining a natural watercourse for its own use. PRopERTY—adverse use—state ownership. One may not claim title to or interest in state-owned property by adverse use. WATERS AND WATERCOURSES—natural watercourse—riparian —rights—normal daily surplus water. “Normal daily surplus water’ contemplates an excess of water after all the owners of land adjoining a natural watercourse have their water rights determined. Since the recognition of riparian water rights entitle owners of land adjoining natural watercourses to have the flow of a watercourse in the shape and size given it by nature, there can be no quantity of water deemed “normal daily surplus water.” SAME—same—same—storm and freshet waters. Since water was reserved to the State for the common good when parcels of land were allotted to awardees under the mahele, storm and freshet water is the property of the State and Carter v, Hawaii, 24 Haw. 47 (1917) is overruled. OPINION OF THE COURT BY ABE, J. This is an appeal from the judgment of the Circuit Court of the Fifth Circuit, which determined the water rights of parties who are owners of land situated in the Hanapepe Valley on the Island of Kauai. The trial lasted from May 5 through August 17, 1965. The record of this case includes transcript of testimony of witnesses com- prising 3,483 pages and voluminous documentary ex- hibits. In arriving at its decision, the trial court first deter- mined the number of acres of land owned by the respec: tive parties, which had been under taro cultivation at the time of the Land Commission Award from time im- memorial, and thus entitled to appurtenant water rights. Next, the court determined the average quantity of water used per day per acre in growing taro, which it termed PO aN A RR Ait OTE 69 McBRYDE SUGAR CO. v. ROBINSON _ 177 Opinion of the Court “duty water’’ to be 50,050 gallons. After the determina- tion of these two factors, the court found that McBryde was entitled to 4,915,400 gallons per day; the State, 4,167,650 gallons; Gay & Robinson (below Koula and Manuahi) 1,533,050; and the other landowners, collec- tively, 1,456,950. The trial court also concluded that McBryde by adverse use had acquired prescriptive rights to 2,084,600 gallons, and thereby McBryde could divert seven million gallons of water per day (4,915,400 appurtenant and 2,084,600 prescriptive). Inasmuch as the prescriptive right could not be deemed against the government, the court held that the amount of prescriptive right to water should be deducted from or charged against the water rights of Gay & Robinson. The record shows that both McBryde and Gay & Robinson are diverting water from the Hanapepe River basin, so much so that the mouth of the Hanapepe River is practically dry throughout the year. Accordingly judg- ment was entered ordering Gay & Robinson to leave 12,624,600 gallons of water per day in the river for the use of the other owners, as above indicated. The three principal parties, McBryde, Gay & Robin- son, and the State appealed from the judgment each urging different points on appeal. I, APPLICATION OF TERRITORY v. GAY. The first basic issue before us is whether the trial court was correct in adopting the opinion of Chief Justice Perry in Terr. v. Gay, 31 Haw. 376 (1930). Gay & Robinson urges that the decision of that case is res judicata as between the State and Gay & Robinson. The rule of that case is that Gay & Robinson was the owner of the independent ilis’ or ilis kupono of Koula An ili has been interpreted to mean a “land section, next in importance to ahupuaa and usually a subdivision of an ahupuaa.” Pukui & Elbert, Hawaiian Dictionary at 91 (1971) . See also Jon Chinen, Original Land Titles in Hawaii at 51 (1961). SP tesa eri deadly BA abs et 4 70 178 SUPREME COURT OF HAWAII Opinion of the Court and Manuahi; that under ancient law konohikis* of jlis kupono were independent of the konohiki of the ahu- puaa* and paid no tribute to him; though he was sub- servient and paid tribute directly to the King, and that as owner of such ilis kupono, Gay & Robinson was owner of the normal surplus water. Under the doctrine of res judicata “an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclu- sive of rights, questions, and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.” Glover v. Fong, 42 Haw. 560, 573 (1958) . This doctrine is recognized as a general principle formulated by the judiciary based on the obvious and practical role of reason and necessity to promate justice, fairness, expediency, and social and economic stability in our society. In other words, “[tjhis general rule is demanded by the very object for which civil courts have been established, which is to secure the peace and repose of society by the settlement of matters capable of judicial determination.” Glover v. Fong, supra at 574, quoting Southern Pacific Railroad Co. v. United States, 168 US. 1, 49 (1897). Some courts have held that inasmuch as the doctrine of res judicata is adhered to by the courts as a rule of justice, it should not be applied so rigidly if to do so will be to defeat the ends of justice or to work an in- justice. Greenfield v. Mather, 32 Cal. 2d 23, 194 P.2d 1 (1948) ; Universal Const. Co. v. City of Fort Lauderdale, 68 So. 24-366 (1953) ; People v. Somerville, 245 N.E.2d 461, 42 Ill. 2d 1 (1969) ; Motor Vehicle Accident Indem- nification Corp. v. National Grange Mutual Ins. Co., 19 N.Y.2d 115, 278 N.Y.S.2d 367 (1967) . *Konohiki means “a head man of an ahupuaa land division” id. at 153, see also Chinen at 53. *Ahupuaa means “a land division usually extending from the uplands to the sea . . .” id. at 8, see also Chinen at 48. 71 McBRYDE SUGAR CO. v. ROBINSON _ 179 Opinion of the Court In spite of such rule enunciated by other courts, we are reluctant to treat the doctrine of res judicata as inap- plicable in this case as between the State and Gay & Robinson, even though justice may be subserved. There- fore, we hold that the rule of Terr. v. Gay, 31 Haw. 376, is binding on the State in this case. However, as between McBryde and Gay & Robinson, and McBryde and the State, we are not faced with the doctrine of res judicata, and as between these parties, the question is whether we will follow the rule of Terr. v Gay, 31 Haw. 376, under the doctrine of stare decisis. We fully discussed and differentiated between these two doctrines in Glover v. Fong, 42 Haw. at 575 as follows: “The doctrine of res judicata is concerned with the adjudication of a cause of action or an issue and the effect of such adjudication in a subsequent action between parties to the record involving the same cause of action or issue. The doctrine of stare decisis relates to the legal principle that may be extracted from an adjudication of a cause of action or an issue and the application of such principle in a subsequent action between strangers to the record involving similar cause of action or issue. * * * When we say parties to the record, we mean persons who were parties in the action in which the adjudication was made; when we say strangers to the record, we mean persons who were not parties in such action. There is no element of estoppel in the doctrine of stare decisis because it applies only in actions be- tween strangers to the record. If there is a contention in an action between strangers to the record that a principle for which a prior decision stands is errone- ous, Operates unjustly or against public interest, or is otherwise objectionable, and such contention is well taken, the court which rendered the decision may overrule it. * * * When a decision is overruled, it RRNA > tae Bt 24 SA erst? RB Perrces PE 2 RD lp ee 7c 72 180 SUPREME COURT OF HAWAII Opinion of the Court does not mean that the adjudication of the rights and obligations of the parties to the record is nullified: it only means that the legal principle contained in the decision will not be applied in 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- ing v. Hallock, 309 U.S. 106, 119 (1940) : “We recognize that stare decisis embodies an im- portant social policy. It represents an element of continuity in law, and is roofed in the psychologic need to satisfy reasonable expectations. But stare decisis is a principle of policy and not a mechanical formula for adherence to the latest decision * * *.” See also Humthlett v. Reeves, 211 Ga. 210, 85 S.E.2d 25 (1954) . This court, like the United States Supreme Court, has “rejected a doctrine of disability at self-correction.” Helvering v. Hallock, supra at 121. We believe that the doctrine of stare decisis is subordinate to legal reasons and justice and we should not be unduly hesitant to overrule a former decision when to do so would bring about what is the considered manifest justice.* In other. words, there is no necessity or sound legal reason to perpetuate an error under the doctrine of stare decisis. Of course, on the other hand, we should not change a case law just for the sake of a change. II. STATE OR SOVEREIGN RIGHTS. In Terr. v. Gay, 31 Haw. 376, this court concluded that as Gay & Robinson was the owner of Koula and Manuahi, both deemed ilis kupono, and therefore as such ‘See Yoshizaki v. Hilo ital, 50 Haw. 150, 483 P.2d 220 (1967) ; State v. Abellano, 50 Haw. 384, 441 P.2d 333 (1968) . 73 McBRYDE SUGAR CO. v. ROBINSON _ 181 Opinion of the Court owner it was also entitled to “normal daily surplus water. Let us review the three cases which were held in Terr. v. Gay, supra as controlling on the issue of “‘normal daily surplus water.” In Peck v. Bailey, 8 Haw. 658, 671 (1867) , this court said: “While the King owned this Ahupuaa, he had a right to apply the water to what land he pleased, but after the water courses were made, more especially after being in use from time immemorial, his con- veyance of the land would include them, the same as his conveyance of land bordering on the Wailuku river will include the rights of water in said river, which had not been before granted.” However, the syllabus or headnote reads: “The owner of an Ahupuaa may apply the water belonging to it to what land he pleases,” and this has been held the rule of the case. Even assuming that it is the rule of the case, it is dictum because the controversy was among grantees of the original konohiki from whom each of them had acquired title to portions of the land in the ahupuaa of Wailuku. It is stated in Haw. Com. & Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675, 680 (1904) , that under ancient law “the King was the sole owner of the water as he was the rest of the land and could do with either or both as he pleased. In later years, the rule seems to have been for him not to dispossess tenants of their lands except for cause and to that extent, perhaps, he would not have deprived cultivators of the water to which their lands were by usage entitled. But no limitation, as far as we can learn, ever existed or was supposed to exist to his power to use the surplus waters as he saw fit.” We believe the statement correctly states the law under ancient Ha- waiian law. ?S oe ee ee © ee Bree hee oe ee 114 650 SUPREME COURT OF HAW U1 Ss llabu-~ McBRYDE SUGAR COMPANY. LIMITED. Plaintiff- Appellant. Cross- Appellee. r. AYLMER F. ROBINSON, et al.. Defendants- Appellees. Cross-Appellants. NO. 1879 APPEAL FROM FIFTH CIRCUIT COURT HONORABLE BENJAMIN VL TASHIRO. JUDGE ON REHEARING DECEMBER 20. 1973 RICHARDSON, C.J... MARU MOTO. ABE. LEVINSON, JJ.. AND CIRCUIT JUDGE OGATA IN PLACE OF KOBAY ASHE J. DISQUALIFIED Per Curiam. Subsequent to the filing of the decision in this case on January 10, 1973 (54 Haw. 17-4. 504 P.2d 133001973»), petitions for rehearing were filed by some of the parties. By order of this court dated June 18, 1973. all the parties were requested to file supplementary briefs directed to the issues (1) whether HRS § 7-1! was material te the determination of the water rights of the parties. and (2) whether owners of parcels of land in the Hanapepe Valley. who were entitled to appurtenant water rights for tare raising at the time of the Mahele or the Land Commission Award, were entitled to apply the appurtenant water rights to parcels of land other than that to which the court found the right was appurtenant. Arguments of the parties were heard at the rehearing had on September 18, 1973. After careful consideration of the briefs and arguments presented at the rehearing. we find no reason to change the decision filed herein. J. Russell Cades and Robert B. Bunn (Cades, Schutte. Fleming & W right of counsel) for McBryde Sugar Co.. Ltd.. plaintiff-appellant. cross-appellee. * The pertinent pertion of HRS § 7-1 read-: The people shall alse have a right to drinking water, and running water, and the right of way. The springs of water. running water. and reads shall be free t all, on all lands granted in fee simple: provided. that this shall net be applicable t» wells and water-courses, which individuals have made for their own use.” a line 115 SUPREME COURT OF HAW ALL2 261 Opinion of the Court John H.R. Plews (Anthony, Hoddick. Reinwald & O'Connor of counsel) for Selwyn A. Robinson, et al.. defen- dants-appellees, cross-appellants. Andrew S.O. Lee, Deputy Attorney General (George Pai. Attorney General, of counsel for State of Hawaii. defen- dant-appellee, cross-appellant. William F . Quinn (Goodsill, Anderson & Quinn of comm- sel) for Olokele Sugar Co.. Ltd... defendant. Clinton Shiraishi( Shiraishi & Yamada of counsel) for Ida Albarado, et al.. petitioners. DISSENTING OPINION OF MARUMOTO, 3. This phase of the case is limited to two points mentioned in the foregoing per curiam, the points being: first. whether HRS § 7-1 was material to the determination of the water rights of the parties. and, second, whether the landowners in Hanapepe Valley. who were entitled to appurtenant water rights, had the right to divert such appurtenant water to watersheds beyond the Hanapepe Valley. I discussed my view on the second point in my dissent reported at 54 Haw. 201, 504 P.2d 1356, and it is the view presented in the supplementary briefs with more elaboration. I did not discuss the first point in my dissent. for the reason that I did not think that it was an issue en appeal. However, assuming that it was a preper issue on appeal. | think that HRS § 7-1 does not support the holding of the court in Part Hl of the opinion of the court at 54 Haw. 180, 501 2d 1335, that it reserved the title to flowing water te the State for the commen good. On the peint. | concur in the hi--orical analysis in the dissenting opinion of Mr. Justice Lew ason, DISSENTING OPTNION OF LEVENSON, j Although 1 voted with the majority ef this cea: in WeBryde Sugar Co.1. Robinson. 5A Naw. 174.504 PLoS 30 (1973) [hereinafter referred toas VeBrydel |. lamecons 2 ved to recant that position in view of my current vadersiar ‘ins of the problems of this case. In light of the arguments ae -iceced We late Sete Ry Seb NT AA Nhe) Mas tial iach a eed S La WARS sates ee ee ee Pl Cen ee 1i6 52 SUPREME COURT OF HAW ALL—3 Opinion of the Court on rehearing, historical evidence discovered upon further research subsequent to the court’s previous decision in this case, and a reappraisal of the reasoning supporting that deci- sion, itis my opinion that the court committed error in holding that all surplus water belongs to the State and that private water rights, however acquired, may not be transferred to nonappurtenant land. Because of the importance of this case to the development of the law on the subject of Hawaii's water resources, | have undertaken to present a detailed analysis explaining why WeBryde / is not in keeping with long estab- lished and unique principles of Hawaiian water law. Precisely because WeBryde | is such a radical departure from these principles as they have been heretofore understood. more- over, | have concluded that McBryde 1 effectuates an unconstitutional taking of the appellant's and cross- appellants” property without just compensation and should be reversed on this ground as well. As Mr. Justice Frankfurter stated in his famous dissenting opinion in Henslee v. Union Planters National Bank, 335 U.S. 595. 600 (1949): *“Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”" | regret that the wisdom to correct the errors of McBryde | has not come to a majority of this court in time to restore continuity to the body of water law that has evolved in Hawaii over the course of more than a century. 1. THE BACKGROUND OF TH® CONTROVERSY This case arises out of acontress:sy among owners of land located in the Hanapepe Valley on the island of Kauai re- specting their relative rights in the surface waters -of the valley.! The action commenced on March 24, 1959, when a ! The uncontested findings of the trial judge below. sitting as Commissioner of Private Ways and Water Rights under HRS §§ 664-31 to 37. as to the nature of surface waters in the Hanapepe Valley were as follows: The watershed of the Hanapepe River is about fifteen miles long and from two to five miles in width. At the upper or north portion the annual rainfall is between 100 and 500 inches. The annual rainfall decreases as the valley goes toward the sea, and at the sea the rainfall is comparatively negligible. The Koula stream joins the Manuahi stream about halfway to the sea to form the Hanapepe River. McBryde Sugar Co. v. Robinson, S.P. No. 108, Decision at 4 (5th Cir. Ct. of Hawaii, December 10, 1968). complaint was filed by McBryde Sugar Company, Limited, ‘hereinafter referred to as McBryde, the owner of the ilis kupono? of Eleele and Kuiloa, situated in the southeastern portion of the valley. The defendants fell into three cate- gorits: (1) the Territory (now the State) of Hawaii, the owner of the ahupuaa of Hanapepe, located in the southwestern portion of the valley; (2) the partnership of Gay and Robinson and its individual partners, hereinafter referred to as Gay and Robinson, owners of the ilis kupono of Manuahi and Koula. located in the northwestern and northeastern portions of the valley, respectively, and; (3) all other owners of the lands in the Hanapepe Valley, hereinafter referred to as Small Own- ers, The two principal users of water in the Hanapepe Valley 117 SUPREME COURT OF HAWAII—4 263 Opinion of the Court * The Hawaiian terms ili kupono, ili, ahupuaa and kuleana are peculiar to the ancient Hawaiian system of land tenure and were explained as follows in Territory vy. Bishop Trust Co., 41 Haw. 358, 361-62 (1956): _ [Ujnder the ancient Hawaiian system all land belonged to the king or ruljng chief who allotted tracts of land from time to time to the principal chiefs, subject to revocation at will: upon the death of the king each principal chief derived his lands anew, gave them out tw an inferior order of chiefs or first of rank, by whom they were subdivided again and again from the king down to the lowest class of tenants. The unit of land was the ahupuaa, usually running from the mountains to the sea. Within the ahupuag were a number of subdivisions, each of which’ was c an ili [or ili of the ahupuaa). This division was for the convenience of the chief, administered by akonohiki or agent appointed by the chief. (It is only in the . later statutes that the chiefs or landlords are referred to as konohikis.) It had no ‘existence separate from that of the ahupuaa, except the so-called ili ku [ili kupono) or independent i{i, although the independent ili paid tribute to the king. were also kuleanas, meaning a tract of land within the larger tract. The term kuleana originally referred to a right of property in any business or other matter but afterwards was applied to the land holding of the tenant or hoagina residing in the ahupwaa. See generally J. CuineN, THE GREAT MAHELE: Hawaii's Lanp Division oF 1848, at 1-8 (1958); W. HutcHins, THE HaWAuAN System OF WATER RicHTs 39-42 (1946) (hereinafter cited as Hutcuins]. On the facts of this case, although it is possible that the konohiki of the ahupuaa of Hanapepe exercised plenary control over the entire Hanapepe Valley in ancient times, at some point in history the king created fully independent ilis kupono within the geographical boundaries‘of the ahupuaa. These ilis kupono were of equal rank and dignity with the ahupuaa from which they were created, and upon their kono- hikis devolved all the rights and appurtenances customegrily associated with the stewardship of such land Gnits on behalf of the king. See Territory v. Gay, 31 Haw. 376,376-81 (1930), aff'd, $2 F.2d 356 (Mth Cir.), cert. denied, 284 US. 677 (1931 ) Vee ee ee PL ea ee ee i Ss Sidon tiltha ut Seadile tutes Detaodeh bat sat mail ee ER ee 1is 64 SUPREME COURT OF TEAW ALI—5 Opinion of the Court are McBryde and Gay and Robinson, both of which tor along period of time have availed themselves of substantial amounts of the surface waters of the valley for sugar cane irrigation beth within and without the Hanapepe watershed.’ The instant controversy was kindled in 1949 when Gay and Robinson implemented a greatly improved ditch and tunnel system for the transportation of water for irrigation purposes to the lands at Makaweli, a substantial portion of which is cultivated by the Olokele Sugar Company. outside and to the west of the Hanapepe watershed. Although this system ena- bled Gay and Robinson to appropriate significantly increased amounts of water from the Koula stream, such an increase was toe the detriment of downstream landowners such as MeBryde who thereafter were unable te take from the Hana- pepe River the amount of water they had theretofore been taking. After an exhaustive trial on the merits, on January 30, 1969 the trial court filed amendments to its decision of De- cember 10, 1968 delineating the rights of the parties with respect to appurtenant water. prescriptive water.> normal 3 The evidence showed that McBryde had been appropriating water for irrigation at least since 1934. see MeBryde Sugar Co... Robinson, S.P. Ne. 108, Decision at 11-12 Sth Cir. Ct. of Hawaii, December 10, 1968), and that Gay and Rebinsen had been doing se since [891 See id. at 6-7. See also Territory +. Gay. 92 F.2d 356 19h Cir.). cert. denied, 284. U.S. 677 (1931), aff “g 31 Haw. 376 (1930). 4 Appurtenant water rights have been defined as follows: Whenever it has appeared that a kuleana or perhaps other prece of land was. immediately prior te the grant of an award by the land commission, enjoving the use ‘of water for the cultivation of tare er for garden purposes or tor domestic purposes. that land has been held to have had appurtenant to it the right to use the quantity ofavater which it had been customarily using at the time named. Territory v. Gay, 31 Haw. 376, 383 (1930). 5 As stated by Mr. Hutchins: In order to establish a prescriptive title to a water right, there must have been an “actual, open, netorious, continuous and hostile use of the water tor the statutory period of limitations [(20 years), and tthe use must also have been made under a claim of right. He rentnvs Li l:see Territery v. Gay. 31 Haw. 376, 383 (1930): Kohala Sugar Co. ¥. Wight. 11 Taw. 644, 618-50 (1899). 119 SUPREME COURT OF HAWAII—6 265 Opinion of the Court surplus water,® and storm and freshet surplus water’ in the Hanapepe Valley. The trial court’s process of reasoning and conclusions in this regard are reported in McBryde Sugar Co. v. Robinson, supra at 176-77, 504 P.2d at 1333-34. Integral to the trial court’s judgment were two principles of Hawaiian water law, which it considered to be solidly bottomed in Hawaiian judicial precedent and which were unquestioned by any of the parties: (1) that all normal surplus water belongs to the konohiki of the ahupuaa or ili kupono on which it origi- nates, see, e.g., Territory v. Gay, 31 Haw. 376, 387-88 (1930), and; (2) that water rights however acquired are freely trans- ferable to any land within or without the watershed on which they arose, so long as the water rights of others are not thereby deleteriously affected. See, e.g., Wong Leong v. Irwin, 10 Haw. 265, 270-72 (1896). On appeal to this court by McBryde, the State, and Gay and Robinson, many issues were raised, including, among other things, the correctness of the trial court’s adjudications of the quantum of appurtenant water rights of the parties, the amount of water, if any, to which McBryde was entitled by prescriptive use, and the proper disposition of storm and freshet surplus water. This court upheld the findings of the trial court with respect to the amount of- appurtenant water belonging to the State, McBryde, and the Smal! Owners, McBryde Sugar Co. v. Robinson, supra at 187-89, 504 P.2d at 1339-40, and affirmed in part and reversed in part the findings of the trial court as to the amount of appurtenant water to which Gay and Robinson was entitled. Jd. at 189-90, 504 P.2d at 1340. This court also reversed the finding below that Mc- Bryde had acquired title to over two million gallons of water | per day by prescriptive use. Jd. at 198, 504 P.2d at 1344-45. * Normal surplus water is all water in a stream or river “not required for the satisfaction of . . . prescriptive or . . . appurtenant rights,*’ Territory v. Gay, 31 Haw. 376, 384 (1930), excluding only storm and freshet water as defined in note 7 infra. Storm and freshet surplus water is that amount of water above the normal flow of a stream ar river which is intermittently caused by storm precipitation. See Hewaiian Commercial & Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675, 680 (1904); Hutcuins 74-77. PE DE APL LEN SY tee VO ee 2 We SOS TA On ok a 7 120 266 SUPREME COURT OF HAW AL—7 Opinion of the Court At this point, however, this court departed radically in two major respects from the reasoning of the trial court and the positions taken by the various parties. First. it held that all surplus water in the State, including normal and storm and freshet surpluses.® is the property of the State and not the property of the konohihi of the ahupuaa or ili kupono on which the water originates. /d. at 180-87. 504 P.2d at 1335-39. This holding was grounded entirely on a specific portion of the Principles Adopted by the Board of Commissioners to Quiet Land Titles in Their Adjudication of Claims Presented to Them, adopted by the Land Commission on August 20, 1846 and approved by resolution in the Legislative Council on October 26, 1846, RLH 1925, Vol. I, 2124. 2128 (originally enacted as L. 1847, at 81. 85) [herginafter cited as Land Commission Principles], which announced that the Mahele left unimpaired the king's power “"[t]o encourage and even to enforce the usufruct of lands for the common good.**? This provision, it was held, reserved to the kind and. through subsequent governments, to the State, the control of all sur- plus surface waters in Hawaii for the common welfare of the Hawaiian people. . i 4 j 4 = 3 3 Pw) { B: 3 7 * = : 3 Aa % 2 = 2 2 % 7 | F ? Fi 3 3 a a 2 4 ¥ % v4 5 PU > 3 # 4 § See notes 6 and 7 supra. é 3 ais % ° The-court stated: 3 The principles specifically and most emphatically indicated that the Land : Commission was only authorized to convey certain of the King’s rights in land Maw. at 221. 127 SUPREME COURT OF HAWAII—14 7: -“~ Opinion of the Court to all of the storm and freshet surplus water in the stream. The court acknowledged that “[wJhere a stream flows through a single ahupuaa . . . the [normal] surplus waters of the stream belong to the ahupuaa.”* Id. at 70. However, it went on to hold that the ownership of storm and freshet water which passes through twoahupuaas must be divided between them on the basis of the common law doctrine of riparianism.'* See Territory rv. Gay, 31 Haw. 376, 404 (1930) _ (Parsons, J.. concurring in part and dissenting in part). Whatever the wisdom of the Carter court in adopting the riparian doctrine with respect to this class of surphis water, a necessary element of its holding in this regard was that such water was subject to private ownership and was not the property of the government. See Foster v. Baiahole Water Co., 25 Haw. 726, 734 (1921) (surplus water is the “class of water which originally the chief or konohiki could dispose of at will irrespective of the rights of the other owners and tenants”’). The overruling of this aspect of Carter in UcBryle ! was ill-advised, especially in light of the reliance on that case earlier in the court's opinion for the proposition that the water law of this State is governed by riparian doctrine. See 54 Haw. at 182, 504 P.2d at 1336. Finally, Territory rv. Gay, supra, held unequivocally that the normal surplus water of a stream was the private property of the konohiki of the ahupuaa or ili kupono on which it originates. This was a suit by the Territory to enjoin diversions by Gay and Robinson (both parties here) of sur- plus water from the Koula stream. The Territory argued that as owner of the ahupuaa of Hanapepe it was entitled to all the surplus water originating in the valley, even though the source of that water was in the ilis kupono of Koula and Manuahi, owned by Gay and Robinson. The court; however. reasoned that an i/i kupono was co-equal in dignity with an ahupuaa, and that at least as to normal surplus water which originated on an ili kupono the konohiki thereof had title paramount to that of the konohiki of a downstream See pt. 1.D.2. infra. ee ee ee ee eee Tabet. * 128 274 SUPREME COURT OF HAW ALL—15 Opinion of the Court ahupuaa.” UcBryde | gave a grudging acceptance toGay by helding that as between the State and Gay and Robinson the case was res judicata. 54 Haw. at 177-79, 504 P.2d at 133135, However. the court preceeded to sap that precedent of its force by helding that under established Hawaiian water law there is ne such thing as “normal daily surplus water.” /d. at 19 308 P.2d at 1345. In doing se, the court ignored the well-defined and often reiterated meaning acquired by the term “surplus water” over the course of more than a century of Hawaiian law. riz. all water in a stream not required to satisfy appurtenant or prescriptive rights. See HUTCHINS 69 & v.15 and cases cited therein: note 6 supra. It follows that the Gay case awarded to Gay and Rebinsen real and substan- tial water rights in accordance with this meaning. See UeBrvde Sagar Co. vr. Robinson, supra at 206, 504 P.2d at 1348 (Marumoto, J.. concurring and dissenting). The foregeing judicial pronouncements, even standing alone. are highly persuasive authority for the proposition that title te the surplus waters of maheled land passed into the private hands of the honohikis. As stated in )oshizaki v. Hile Hospital, 50 Haw. 150, 153, $33 P.2d 220, 222-23 (1967). this court is net “as free mm deciding cases in the area of real property as in the area of torts.” even if it is assumed, for the sake of argument. that the above-mentioned line of precedent projects a consistently erroneous line of reasoning. /n re fustin, 33 Haw. 832. 839 (1936) (the doctrine of stare decisis has a special force in the area of land law: even theugh prior decisions may be unsound, if they are “long established and conformed te . . . such decisions should net be ! The Gay court was split three ways. Perry. CJ... telt that aff the sarpla~ water ef a stream, nermal and term and freshet. belongs ge the honehrhe, and thu~ would have overruled Carter +. Territory. sapra. Banks. J.. would have held that all the surples watet of a stream belong~ te owners of land along the pa thereet ace ering te the principles of commen law ciparianism, and theretore would have extended the Carter holding te include both storm and treshet sarplas water and nermal -arple water, Parsons. J. agreed with Vir, Chiet Justice Perry that nermal ~ur plus water belong~ te the hemehihs. but concluded that on the record the questjen of tthe t term and treshet surplus was net presented, and therefore expressed ine epimen ot the question ef whether Carter should be overruled. 129 SUPREME COURT OF HAWAII—16 275 Opimoon of the Court : overturned *).2° The very substantial agricultural industry of this state exists in its present configuration only by virtue of great expenditures made for the development of irrigation systems. See McBryde Sugar Co. v. Robinson, supra at 201, 208, 504 P.2d at 1346, 1349 (Marumote, J.. concurring and dissenting). These systems are designed to deliver vast amounts of water which, under prior decisions of this court. was thought to be the subject of private ownership and de- velopment. See, e.¢., WADSWORTH150-58. See generally 3 KUYKENDALL 62-70: R. KUYKENDALL & A. Day, Hawa: A History 128, 153-54 (rev. ed. 1948). I discuss the constitutional ramifications of the court's sudden about-face from these decisions in pt. IV of this opinion. But I need not rest the judgment that the court erred in McBryde I as a matter of state law solely on a re-evaluation of prior case law and ancient Hawaiian usage. There is other historical evidence which lends final force to that judgment. D. The 1917 Report of the WU ater Commission of the Territery of Hawaii to the Gevernar In 1915, the Legislature of the Territory of Hawaii, con- cerned about providing for the optimum utilization of the water resources within the territory under then existing laws, passed An Act to Provide for the Appointment of a Com- mission to Examine into the Water Resources and Water Laws of the Territory. L. 1915, Act 36. The first section of the statute provided as follows: The governor is hereby authorized to appoint a com- mission of three persons, one or more cf whom shall be a member or members of the legal profession, which shall serve without pay, and which shall collect and examine available data and information relative to the water re- sources, both underground and surface, and both pri- vately and publicly owned or controlled, in the Territory of Hawaii: ' See Langenegger v. State, 64 N.M. 218. 222. 326 P.2d 1098. 1101 (1958) ("The tule that these drainage waters are private has become a rule of property, and it is now too late te change it. even if we were inclined so to do”). CR A 0 6 9 ace 7 ve nie cs : 2T6 SUPREME COURT OF HAW AH—I7 Opinien of the Court j Which shall also examine and make a study of eristing : laws pertaining to the diverting, developing, using, con- 5 serving. holding. and wasting of water: i Which shall. if deemed necessary. employ the services : of legal and technical experts: ; Which shall have the power to visit. examine and ; measure all existing water sources. channels. ditches, ; wells. tunnels or other structures used for transporting or 3 utilizing water: and : Which shall make such recommendations and draft | such legislation as may by it be deemed necessary to serve the best interests of the people of the Territory of Hawaii. and shall embody the same in a report te the governor on ; or before January 1. 1917. : (Emphasis added). As the italicized portions of the statute 5 indicate. the mandate of the Commission was far-ranging. - and included no less than an invitation to propose a complete ‘ revision of the water laws of the territory should such a : change be found necessary. ; Soon after the passage of the Act. the governor appointed Messrs. G. Larrison. A. Smith tthen the first Deputy Attorney : General of the Territory) and T. Sedgwick as commissioners te undertake the study. They were assisted in this regard by \. Chandler. a member of the State Water Commission of California and a foremost authority on water law. After nearly ; two years of preparation, the Commission issued its : recommendations in the form ef a Report of the Rater Com- j mission of the Territory of Hanaii to His Excellency the j Governor of Hawaii January 13. 1917) [hereinafter cited as j Beater Commission Report}. The Commission recommended the adoption of a detailed : code relating to the deve lopment and husbandry of under- : ground artesian water. because in large measure the use of such seurces of water had begun relatively late in Hawaii's : history. see 3 KUYKENDALL 66-70. and hence a tested and well-reasoned system of artesian water regulation had not had time to evolve. See HUTCHINS 178-79 and cases cited therein. The Legislature adopted virtually rerbatim the -pecific legislation drafted by the Commission. RLH 1955 ch. ee ee eee 131 SUPREME COURT OF HILAWAII—18 Zt Opinion of the Cour 10] (originally enacted as L. 1917 ch. 156). However, with respect to surface waters, the Commission reported as follows: We have come to the conclusion that we do not care to recommend any legislationconcerning surface waters. As is stated by Mr. Chandler in his report to the Commission dated November 4, 1916. . . we already have a very good workable method for the determination of rights to surface waters: and the law relative thereto has been fairly defi- nitely settled by a series of decisions. There are, it is tru [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1824%3A03. Public record. Not legal advice.