Appendix — Robinson v. Hawaii

Supreme Court brief1974

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TABLE OF CONTENTS

Appendix

Page

ee and wea bee i

Amended Decision of the Cirenit Court of the Fifth

eee 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

SEE a RES pe act ar 102

Order Denying Motion ...................... aaa 104

Motion for Partial Vacation of Opinion or For Oppor-

tunity to Present Evidence and Argument ...... 105

rr ee cen keedadewsnseenenecs 107

Order [to file simultaneous briefs] ................. 108

Order [granting motion of Olokele Sugar Company,.

ee ee awwenanwe 110

Motion to Have Official Reporter Present at Oral Argu-

ESE A 2 ARE esa ae 111

ERS EES Ae ee a a 113

Opinion of the Supreme Court of the State of Hawaii

ee ebay eh ase eee 114

Judgment of the Supreme Court of the State of Hawaii 159

aa ea lad aewkee awe «xe 160

[Appendix page numbers appear at the top center of each

ge. The two opinions of the Supreme Court of the State

of Hawaii have been reproduced from the official State

reporter. |

fC RS ROMAN ELEANOR SF URTL EN cet OOH GE MONLY AY LIM SRI PS RMSE NEEL MIN! FR ID

— Rae hid

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.

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

in the judge of the Fifth Cireuit Court sitting as ¢om-

missioner of private ways and water rights under

Pat ILL 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 (hereinafter called **MeBryde”) March

24,1959 and amended April 22, 1960. Answers were

filed by the State of Hawaii (hereinafter called ‘the

State”), Kiyoshi Kimata, ‘Toshio Komaki, Marcelling

Francisco, Hideo Nonaka, Yuji Shimomura, Junichi

Kano, Chee Kung Fui Society, Gay and Robinson and

the individual partners (hereinafter called ‘‘G&R”)

and Olokele Sugar Co., Ltd. On September 13, 1963

default was cutered 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 GER, 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

u. Gay, Eq. 2856, 32 Haw. 404.

While that action was pending in the trial cowt

the Territory brought a second action in the First

Circuit 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

tlow and whether the Territory was entitled to an in-

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.

The gist of the above proceeding challenged the

right of G&R 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. ‘he 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

cout 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,

Sebi hwis aid Bibi ncie BO

ae > nN NRO A onkiaelh

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 MeBryde

and G&R. agreed that rights by prescription or ad-

verse user could not be had against the State, but that

the State could aequire 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

Kowa 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-

lic lands of the State of Hawaii.

[Exh. M-J-6: Finding No. 1 of Chisty, J., Eq.

2911, p. 49]

Hy)

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 mountainous region within § the

houndaries of the mauka portion of the ahupuaa of

Hanapepe. Those ilis comprise the entire watershed

and souree of supply of all waters which would, if

not diverted, find their way into the Hanapepe River

makai of the junetion 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,

but flows out of the ili into the Hanapepe River near

Met.

EDN E pest beat

CRA Bae RRL in

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-1D-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, 1963.

[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]

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 GE&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, G&R-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 fiumes to take water from the Koula

stream and certain tributaries and deliver it outside

the Hanapepe Valley to the lands leased by it from

to pti. a

G&R for HS Co.’s use and to G&R 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 stream,

together with a lesser dam and a series of flume eateh-

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 collected by the flume collection system built by

HS Co. was until March 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-ineh

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 «ut

through solid reck, the rest in rotten rock and earth.

This ditch, flume, tunnel and pipe water diversion

system was generally known as the ‘‘JLanapepe

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-F-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, hy reason

of the ownership by G&R 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 GER 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

arate ae —

Clo 6 ccsdhitie witb hare

ee eT ee

—

by G&R on March 30, 1949. Much of that leakage

found its way back into the Koula Stream and Hap.

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-B.

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-1937, 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

-~=Cs

to itself 43% of that water; such lease providing that

in case 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]

93. 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

control 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

aah NE Lat TL

Dusen at ails halk ay Soi

ee SPN Re ee Te A TN

right to develop any of such waters flowing jin the

Koula stream below the dam.

[ Exh. G&R-M-24]

25. G&R’s lease and water agreement with HS (Cy,

(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 fiumes of the

old Koula Ditch and of the dams.

29. The old Koula Ditech as built and operated br

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 Yal-

ley to Government lands lying to the west of the val-

ley, and then entered Makaweli a short distance east

of Hanonui Valley.

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 hetween

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

waite

a es aA

effectively taken by G&R 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 Ditech on the east side of the river.

For many years MeBryde has been one of the per-

sons taking water from the Keana-a, eaenaicenen

and Kapili ditches.

35. In 1959, McBryde made substantial changes in

these ditches. It enlarged and realigned the Keana-a

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 “Hana-

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 Ditch

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) McBryde’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.

(ce) 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

that the Koula dams divert whatever water reaches

them up to about 30,000,000 to 40,000,000 gpd, the

exact amount depending on whether the flow reaches

them at an even rate throughout the day or not. For

instance, the total diversion in one day would hp

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

GE&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%

j 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, plus 2.7% of any addi-

tional water that reaches them, up to a total diver-

sion of 65,000,000 gpd.

40. MeBryde’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. MeBryde’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 THanapepe

Valley, which probably reduced the flow in the river

to some extent. However, in about 1950, the extension

of these tunnels into the “country reck” 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: Iixh. G&R-F-49]

43. Beeause the “country roek” is hard and rela-

tively iaipervious, very little. if any, of the water in

the lava tube would naturally reach the Tfanapepe

River, After the tapping of the lava tube, McBryde's

tunnels were sealed so that thev draw water only

from the lava tube. and not from the alluvial fill of

the valley,

[Test., R. C. Cox, Doak Cox: Exh. G&R-F-49]

44. 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

AAR So HEAR,

et ete CE ee

ae RRNA aR Mclean Se ak TInt ese

—.

Ditch, both directly, and through the Farmers’ Ditch

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, 1949,

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 winter

months.

[Exh. M-E-14]

51. Actual notice of McBryde’s claim of ownership

of water was given to G&R by the service of Me-

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 Circuit 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. TV]

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]

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]

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) (e) (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

RU 36 22 14 12.3 34.3

7 40.5 24 16.5 14.7 38.7

60 45 25 20 17.0 42.0

50 50 25 25 19.6 46

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&RI-12 Column G&R-1-12 M-E-l(a) Column

Curve B- (b)-(d) Curve A (¢)+(e)

For example, total water available was at least 4

million gallons per day (mgd) 60% of the time. The

figures for 100° 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.

Columm (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, McBryde’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 McBryde 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 med 9.5- 9.7 med

June 9-16, 1936 10.5- 7.5 med 9.5- 8.6 med

September 29-October 5, 1939 9.5- 7.0 med 9.5- 8.3 med

April 21-30, 1941 8.5-10.0 med 10.4- 9.6 med

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

Bierce th 1 este Mitten ts hw elation art hah el COD ah he OA A le a ih ite Pa A A cate Aa ale ate atte bint Gale ae —ws

through I-3, I-5 through I-9, I-18 through I-22). This

demonstrates that these were periods when the neq

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 ficures are correct. Under

each party’s name is listed the designation or deserip-

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

Ttem No.

(Exh. Ancient Taro

M-O-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)

7 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

7 Portion L.C.Aw. 7321B to Kualeho 0.81 acre

8 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

McBryde Lands

Item No.

(Exh. Ancient Taro

M-0-53(a)) Description Acreage

12 L.C.Aw. 3284 Apana 1 to Wahineaea 1.30 aeres

13 L.C.Aw. 5572 Apana 3 to Kaaha

(Ti of

Kuiloa) Section A 1.20 aeres

Section B 5.80 acres

Section C 3.00 acres

14 L.C.Aw. 3284 Apana 4 to Wahineaea 1.13 aeres

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 acres

19 L.C.Aw. 3284 Apana 3 to Wahineaea 1.95 acres

21 L.C.Aw. 7712 Apana 5 to Kekuanaoa -

(Di of

Eleele ) Section G 6.71 acres

Section H 4.53 acres

Section | 2.13 aeres

Section h 2.32 aeres

Section R 0.90 acre

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 _.

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

tees igre s) ee alae Al a —

«0s oD

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

ll 2.00 acres

14 1.00 acre

15 0.70 acre

18 1.00 acre

19 7 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 acre

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

Sdaaagredad °F

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 aere

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 acre

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

“Exhibit FE Taro Land of Other Private Owners”,

are correct. The Court tinds these figures are correct.

3. MeBryde and G&R agreed and G&R*s witness

Roswell Towili testtfied that the area of wet lands

with appurtenant water mights for taro belonging to

GER within certain parcels of land is as follows:

Aisha vs nails Mid viticd cas tro P ee aie

G&R Lands

Designati

LCA 3284 :2 to Wahineaea

LCA 5309 to Kanakamaikai

LCA 5447 :1 to Nuanua

LCA 5447 :2 to Nuanua

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

19.00 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-

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

(li 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 5; 2.00 acres

Government Lot 37 4.02 acres

Government Lot 45 0.50 acre

19.62 acres

Poenrenns _— , . ™

ee " “T8 ESE SR La Ee

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 witnesses,

namely, surveyors for the respective parties, used the

same guide lines. Differences of opinion were pri-

marily on the weight to he given to eacn of these

guide lines. The areas of dispute centered on the

questions of whether the axwais shown on Govern-

ment Registered Map, Exh. M-C-7, were ancient

auwais as claimed by McBryde and the State, or

new auwats as claimed by G&R as having been built

by Chinese rice planters.

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 hefore 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 survevors

and the testimony before it. They are thus eyewit-

ness descriptions made either contemporaneously with

the awards of the adjoiming 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.

LY abn tose at iranaaeinaunaieiilll

PAT a LO

Wikia vrais Bahay ones!

AMER RS A veoh aa ead aelicnl aaa shoot

erally conceded that lands adjoining thereof were

ancient taro lands.

Proof of ancient auwats were also sought by the

use of testimonies of kamaainas perpetuated in 1927

on Kauai in contemplation of Hanapepe water rights

litigation. All of these witnesses were called by Gé&R,

(3). Topography. Where the land was level,

fertile, and at an elevation where water from auwais

and adjoining Jois 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. GE&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 testimony 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 use 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

hand, 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 auwais and

by broken lines or dash lines show /ruaunas or taro

patch banks.

(6). Historical Data, Writings of Captain Van-

ecouver, 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. 8. 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.)

SOTA MEY

FA ee OR ik

(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 hit

of available land at the time of maximum population

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 been

irrigated was cultivated in wet land taro is not neces.

sarily established by the evidence. As pointed out by

both Dr. Handy and Dr. Emory, the above statement

is correct if confined to the time of maximum popt-

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 ew-

dence herein in the matter of ancient Hawaiian tam

eulture, 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 about 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

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 Jand 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. McBryde

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. G&R-H-12a).

G&R’s Exh. G&R-G-1 is considered to be merely a

preliminary report. Thus, Mr. Russell Smith, who

testified for G&R, was unable to express any opinion

based on that report alone. Tle 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

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’ experi-

ment show no attempt made on behalf of G&R to

simulate ancient Hawaiian taro cultivation.

There was a general agreement between Mr. Joel

B. Cox and Mr. Russell 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 equiv-

alent method is an indication of permeability. It was

precisely this basis that was employed by the State

and MecBrvde experimenters.

Although Mr. Joel B. Cox admitted that a com-

plete simulation of the ancient Hawaiian practice

was impossible or utterly impracticable, extensive ef-

forts were made by the State-McBryde experimenters

to achieve as close a simulation of ancient conditions

as possible. Very careful thought and consideration

was given by such experimenters to the way their

attempted simulation necessarily differed from the

ancient Hawaiian practice. They took pains to choose

methods which would tend to reduce consumption

rather than increase it when confronted with the ne-

cessity to divert from the ancient practice, and the

taro crops in 1930 were cultivated after all possible

efforts were taken to simulate ancient Hawaiian taro

cultivation within the realm of practicability.

It goes without saying that the ideal method of

determining the average consumption of water

throughout Hanapepe Valley would have been to ac-

tually measure the consumption of every parcel but

that would have been impracticable and too costly.

The experiment conducted on behalf of the State

and McBryde represents an honest and tedious effort

to understand and simulate the practice of ancient

taro cultivation, at least to attain the result with the

best scientific approach although not identical in

every particular. The extent of the effort of the

experimenters can be found in the extensive and de-

tailed data recorded and compiled. Great effort of

scholarship and research was expended even before

the State-McBryde’s experiment was started. Every

effort was made by the State and McBryde experi-

menters to learn about and simulate the ancient

Hawaiian conditions, but the resources available to

them made it impossible to reproduce identical con-

ditions.

hacia b> es inl nN DBI el Aci il i Sit 8 aS nina ee eee

rs Say ee

;

The joint experiment conducted by the then Teni-

tory and McBryde in 1930-31 of the entire period of

growth over a crop of taro using continuous re.

corders, large numbers of samples and frequent obser-

vations, have been sufficiently demonstrated to be of

a quality superior to the tests made by G&R.

Mr. Joel B. Cox testified that he would consider

the 70 thousand gallons per acre per day figure

arrived at by the experimenters to be a conservative

lower limit of rate of consumption under ancient

Hawaiian conditions, and further that 80,000 gallons

per acre per day would fall within that zone of rea-

sonable interpretation.

63. The Court finds that the duty of water (quan-

tity of water customarily used and necessary to grow

an average crop of taro) in Hanapepe Valley at or

immediately prior to the award or grant is as follows:

Average consumption (gross) 80,000 gpapd

Plus allowance for circulation 3,000 gpapd

83,000

Plus 15% for ditch losses 12,450

95,450

Less 21.4% for kuaunas 20,400 (rounded)

75,050

Less 4 for fallowing 25,000 (rounded)

Average consumption (net) 50,050 gpapd

N.B. ‘‘gpapd’’ means ‘‘gallons per acre per day.”’

63A. [As amended R7-249] There is not sufficient

evidence to show the duty of water in the valleys of

Manuahi and Koula.

64. [As amended R7-249-250] By reason of their

ownership of lands in Hanapepe Valley having ap-

purtenant water rights, the parties are entitled to

appurtenant water rights as follows:

McBryde: 50,050 gpapd

X 98.21 (acres)

4,915,400 gpd (rounded)

The State : 50,050 gpapd

xX 83.27 (acres)

4,167,650 gpd (rounded)

Other Land Owners: 50,050 gpapd

xX 29.11 (acres)

1,456,950 gpd (rounded)

G&R

(below Koula & Manuahi) 50,050 gpapd

X 30.63 (acres)

1,533,050 gpd (rounded)

G&R is also entitled to appurtenant water rights

for 90 acres of land in Koula and Manuahi, the quan-

tity of which can not be determined in the absence of

evidence as to the duty of water.

Rice Lands

65. McBryde claims prescriptive water rights for

certain lands cultivated in rice for more than the

statutory period. These claims are:

MeBrydeItem13D _sPart of Kuiloa (island) 1.98 acres

MeBryde Item 13 E Part of Kuiloa (island) 0.86 acre

McBryde Item 13 F Part of Kuiloa (island) 3.58 acres

McBryde Item 21S Part of Eleele 18.15 acres

McBryde Item 14 Part of LCA 3284:4 0.12 acres

AAO Oran Bile! Aid Ni ast ale tad Ati as AS, i Bet

Oo a en ee A Seer ee

Pee

Batoaates ce.

McBryde’s evidence on rice cultivation on these

lands at best was vague, sporadic and inconclusive

and fails to establish use of water which was open,

notorious, hostile and adverse for any continuous

uninterrupted period of 10 years.

There are no records in evidence showing the

amount of water diverted for rice cultivation on

these parcels of rice land, nor are there records of

McBryde’s diversions during the period of rice culti-

vation.

The area claimed by McBryde to have been culti-

vated in rice in the ili of Kuiloa, 6.42 acres, was less

than the area having appurtenant water rights in

Kuiloa. The area claimed by McBryde to have been

cultivated in rice in the ili of Eleele, 18.15 acres, was

less than the area having appurtenant water rights

in Eleele. The area cultivated claimed to have been

in rice in LCA 3284:4 was less than the area having

appurtenant water rights in LCA 3284:4. It follows

that since these areas had appurtenant water rights,

if in fact McBryde permitted them to be used in rice

cultivation that use was not adverse but was in fact

a lawful use of ancient appurtenant water rights.

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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, preserip-

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

~~ @*-Feevrceadt s&s &

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: ;

“| | 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.’ ”

TE TT OE ee a Te rE

| oe

EBs De oso 2 nas a

3. One of the reported cases using the word “jm.

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 COUTSes

were conveyed and a right to the water ae.

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 included in the conveyance

as an appurtenanee. . . . (p. 661)

“*. . . Each grantee will hold all that has been

conveyed to him, unless it should eonflict. 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 rv. 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 from

time immemorial or ancient times are in no Way in

conflict with the holding of Carter v. Territory and

Territory v. Gay, supra, that the use must persist

until ‘at and immediately before” the Land Com-

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-

ed ‘ an = —

.- =< m,

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 discovery which

did not continue right up to the date of the deter-

mination by the land commission.

4. The traditional method of describing 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

vy. Ahuna, supra; Pech: v. Bailey, supra; Lonoaea v.

Wailuku Sugar Co., 9 Haw. 651; Chun Lai v. Mang

Young, 10 Haw. 133; Horner v. Kumuliilti, 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).

MUM A a den 2 &

Bein. i ie chit tt Saal as a

The above conclusion, however, does not apply to

the lands of G&R in Koula and Manuahi, which the

Court has found includes 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

ineluding 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 r.parian 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, 1st Cir.

Eq. 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-

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

v. 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 v.

Territory, supra, is still the law of Hawaii. Terri-

tory v. Gay, supra, invites reconsideration of the rule

but only if the facts require it. In this case, the

water measurements are such that the Court finds

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 G&R 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;

(hb) Under the rule as expressed in Carter v. Ter-

ritury, 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

v. 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

so-called riparian lands already has appurtenant

water rights as herein determined by the Court.

Hutehins, The Hawaiian System of Water Rights 97,

aecording 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 to 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

been 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

Bitesseescccsiiseteussix: war BD

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,

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 the 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 clain-

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 use

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. v.

Wong Quat, 15 Haw. 554, 560, 562.

The general principle that the statute of limita-

tions does not run against the government, such as

the State of Hawaii, has been recognized in Hawaii,

as elsewhere.

oe cr

ak,

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 Staie 4,167,650 gpd (rounded)

Other Land Owners 1,456,950 gpd (rounded)

G&R (below Manuahi & 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

wimee ened

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 by

McBryde. MeBryde 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 sinee 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 to 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. GE&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 GER was the right to take HS Co.’s leftovers. HS

Co, remained in control of the waters, having the

upper hand because it had the upper dam.

22, Whether the waters taken by MeBryde from

the Hanapepe stream were those leased to HS Co.

hy GER or not, the taking constituted an injury to

G&R’s inheritance for which GER could have brought

an action at common law or in equity throughout the

measured period 1934-Mareh 1949, or a statutory pro-

ceeding before the Commission of Private Ways and

Water Rights to prevent MeBryde 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., G&R

had a cause of action during the measured period

1934-March 1949 for an injury to their inheritance

because of the possibility of MeBryde’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 aequired title to such water by adverse

use or prescription to the extent of the difference

between 7 caillion 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

BARDS MIDS wr abc waeds

Prescriptive Cluim 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 Kuilog

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 y.

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., Ltd,

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

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 MeBryde’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

tare) 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

Bees Te ae eS PL ne Peart ny

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. MeBryde 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 he-

tween ‘‘normal” or ‘‘storm or freshet” surplus, belong

to G&R on whose land they arise.

[Conelusion 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 aequired by MeBrvyde, as

shown in conclusion “4” above, and also by reason of

GE&R’s being entitled to all surplus waters, as shown

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.

gy. 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

(Delete tetas tok ses Siesta aa me Nid

WERE mes 2 40m

174 SUPREME COURT OF HAWAII

Syllabus

McBRYDE SUGAR COMPANY, LIMITED,

Plaintiff-Appellant, Cross-Appellee, v. AYLMER F.

ROBINSON, et al., Defendants-Appellees,

Cross-A ppellants.

No. 4879

APPEAL From Firtu Circuit Court

Honoras_e BENJAMIN M. Tasuiro, Jupcr

January 10, 1973

Ricuarpson, C.J., MARUMoTO, ABE,

LEVINSON, JJ., AND Circuit JupGE OGATA

IN PLACE OF KoBAYASHI, J., DisQuairiep

JupGcMENT—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

rties 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

application 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.

Even assuming that the King by his mahele granted ilis of Manuahi

and Koula to the awardees as ilis upono, the King, having retained the

ahupuaa of Hanapepe fed the Koula Stream and Hana River, in

the absence of an exp intent on his part to convey his 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-

LP LENT Pas

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 natoral watercourses, streams and rivers

remained in the people of Hawaii for their common good.

SaME—same—appurtenant water rights—Great Mahele and Land Commission

Awards.

It is the general 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.

Civ. 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 Error—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

be 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 toy 79 Laws 1850, RLH 1925 (Appendix, Vol. 2,

2141 et 9) see also HRS § 7-1, secured for a proprietor of land adjoin-

ing natural watercourses riparian water rights.

| wii

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

— — = TLE LLL A) SN AN ARAB RI

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

llons 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

7An ili has been interpreted to mean a “land section, next in importance

to ahupuaa and usually a subdivision of an ahupuaa.” Pukui & Elbert,

I Dictionary at 91 (1971) . See also Jon Chinen, Original Land Titles

in Hawaii at 51 (1961) .

was a

Pls ie Fee NY Acts hade MCh See

Phiten iirastiehicntatitasc canis suite cath niensinaies owNaan

saaieide ah tana it

i we

178 SUPREME COURT OF HAWAII

Opinion of the Court

and Manuahi; that under ancient law konohikis* of ilis

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, “{t}his 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 U'S.

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,