# Appendix — Robinson v. Hawaii > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1825%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1974 - **Citation:** 417 U.S. 976 ## Text ‘ ‘ ee ee te seen as | i 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 re 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. 4 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. 3 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 4 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 Pe Met. EDN E pest beat CRA Bae RRL in 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-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] 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 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 8 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 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-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 RR 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 d 10 -~=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 12 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. 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 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 14 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 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) 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 16 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. 17 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 —. 18 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] | he 19 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] 0 em | 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) (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. 21 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 A 22 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 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 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 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 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 26 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- 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 (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 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 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. 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 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 30 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 31 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 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 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 33 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 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’ 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 35 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 : ; 4 36 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.”’ 37 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. 38 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. 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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 & » ol 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- dl ed ‘ an = — .- = p. 21, CC. 1959, p. 415; L. 1854, p. 25, CC. 1959, p. 416; L. 1892, p. 68. |. 1847 at 81, RLH 1925 (Appendix, Vol. II) at 2124 ff. The provisions also provided 4 y gs confirmation of titles to land under Declaration of une 7, 1839. ™L 1846 at 107, RLH 1925 (Appendix, Vol. II) at 2120, 2123. PBiiiaiircrcnctins Saha a Se WN yi 78 186 SUPREME COURT OF HAWAII Opinion of the Court to convey certain of the King’s rights in land which had been bestowed upon individuals by him, to wit: “{H}is private or feudatory right as an individual participant in the ownership, not his sovereign pre. rogatives as head of the nation. Among these pre. rogatives which affect lands are the following: “3rd. ‘Lo encourage and even to enforce the usu- fruct of lands for the common good * * *.” s e e s “These prerogatives, power and duties, his Maj- esty ought not, and ergo, he cannot surrender. Hence the following confirmations of the board and titles consequent upon them must be understood subject to these conditions.” L. 1847, 85; RLH 1925, Vol. II, p. 2124, 2128. We believe that the right to water is one of the most important usufruct of lands, and it appears clear to us that by the foregoing limitation the right to water was specifically and definitely reserved for the people of Hawaii for their common good in all of the land grants.” Thus by the Mahele and subsequent Land Commis. sion Award and issuance of Royal Patent right to water was not intended to be, could not be, and was not trans- *It should be noted here that the leaders of the Hawaiian Kingdom were cognizant of the common law rule at the time of the enactment of the principles adopted by the Land Commission in 1845. This is indicated in the first case of Wood v. Stark rted in the Hawaiian Reports, | Haw. 9 (1847) , wherein it also mentioned Blackstone and Kent commentaries. Also, in Blackstone, De Luxe Edition, it is stated at 732: “Land.—Corporeal hereditaments consist wholly of substantial and perma- nent objects; all which may be comprehendeth in its legal signification any ground, soil, or earth whatsoever; as arable meadows, pastures, woods, moors, waters, marshes, furzes, and heath.” 3 Kent's Comm. 401 “corporeal hereditaments are confined to land, which according to Lord Coke includes not ye be ground or soil, but every- thing which is attached to the earth, whether by the course of nature, as trees, herbage, and water, or by the hand of man, as houses and other buildings.” 79 McBRYDE SUGAR CO. v. ROBINSON _ 187 Opinion of the Court ferred to the awardee, and the ownership of water in natural watercourses. streams and rivers remained in the ple of Hawaii for their common good. Therefore, we hold that as between the State and McBryde, and be- tween McBryde and Gay & Robinson, the State is the owner of the water in the Koula Stream and Hanapepe River. It appears that this Act was very similar to the Eng- lish common law rules which had evolved by that time, that no one may acquire property to running water in a natural watercourse; that flowing water was publici juris; and that it was common property to be used by all who had a right of access.to it, as usufruct of the water- course."* See Mason v. Hill, 5 Barn. & Adol., 110 Eng. Rep. 692 (1833) . I. APPURTENANT RIGHTS. ‘ The foregoing holding does not mean that McBryde and Gay & Robinson are not entitled to the use of water In Wood v. Waud, 3 Exc. 748, 154 Eng. Rep. 1047, 1058 (1849), the English court stated: “Flowing water, as well as light and air, are, in one sense, ‘publici juris.” They are a boon from Providence to all, and differ only in their mode of enjoyment. Light and air are diffused in all directions, flowing water in some. When property was established, each one had the right to enjoy the light and air diffused over, and the water flowing through, the portion of soil belonging to him; the property in the water itself was not in the proprietor of the land through which it passes, but only the use of it, as it passes along, for the enjoyment of his property, and as incidental to it. The law is laid down by Chancellor Kent, in 3 Com. 439, thus: “Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water. . . . He has no property in the water itself, but a simple usufruct as it passes along.” ‘Aqua currit, et debet currere,’ is the language of the law; and Mr. Justice Story in Tyler v. Wilkinson (4 Mason US.R. 397), cited in Gale and Whatley on Easements, p. 131, lays down the same law.” Also, in Embrey v. Owen, 6 Exc. 353, 155 Eng. Rep. 579, 585 (1851) , the English court held that: “{F}lowing water is publici juris, not in the sense that it is a bonum vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that all may reasonably use it who have a right of access to it, that none can have any property in the water itself, except in the particular portion which he may choose — so 188 SUPREME COURT OF HAWAII Opinion of the Court in the Koula Stream and Hanapepe River. It is the gen- eral law of this jurisdiction that when land allotted by the Mahele was confirmed to the awardee by the Land Commission and/or when 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. Peck v. Batley, 8 Haw. 658, 661 (1867); Wai- luku Sugar Co. v. Widemann, 6 Haw. 185 (1876) ; Haw. Com. & Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675, 691 (1904). And it would appear that the trial coun only determined the appurtenant rights of the various owners of land in the Hanapepe Basin. In its determination, the trial court found each party's “appurtenant water rights” by calculating the number of acres of land owned by the respective parties which had been under taro cultivation at the time of the Land Commission Award, and by multiplying the number ot acres by the average quantity of water used per day per acre in growing taro, which the court found to be 50,050 gallons. Both McBryde and the State argue that the trial court failed to include certain acreage which they claim was in cultivation of taro from “time immemorial” at the time of the Land Commission Awards. They also claim that reduction of taro acreage by one third to ac- count for fallowing was an error. The trial court's deter- mination of the amount of acreage in taro cultivation at the time of the awards was necessarily a complex factual issue and a very difficult task, requiring weighing of conflicting expert testimony. The trial court's task, sitting as Commissioner of Private Ways and Water Rights,"* was to determine as precisely as possible the amount of water that was actually being used for taro cultivation at the time of the Land to abstract from the stream and take into his possession, and that during the time of his possession only: see 5 B. & Ad. 24. But each proprietor of the adjacent land has the right to the usufruct of the stream which flows through it.” “See HRS § 664-31 et seq. ae — . = SEDDON Ts 7 We ws Sa A Tk Ro REY cate ok or. 81 McBRYDE SUGAR CO. v. ROBINSON _ 189 Opinion of the Court Commission Awards. ‘The burden of proof was on the person asserting the right. The fact that in earlier or later times other land was in taro cultivation is irrelevant. And a reduction for fallowing should properly be made when it appears that at the time of the Land Commission Awards water was not being used to cultivate certain acreage.” Also, due to the difficulty and complexity of the task it would be reasonable to expect parties not favored by the findings of the trial court to attack such findings. The Circuit Court sitting as commissioner, pursuant to HRS Ch. 664. Part III, is subject to Hawaii's Rule of Civil Procedure because such proceeding is not ex- cepted under HRCP Rule 81 (a). Here, after a review of the record, we are not convinced that a mistake has been committed. Peine v. Murphy, 46 Haw. 233, 238, 377 P.2d 708 (1963); Klein Inc. v. Hotel Kaimana, 51 Haw. 268. 269, 457 P.2d. 210, 211 (1969). ‘Thus, under HRCP Rule 52(a) the finding of the trial court as to appurtenant water rights is not clearly erroneous and therefore it may not be set aside. Therefore, we affirm the trial court's finding that McBryde is entitled to 4,915,400 gallons of water per day; the State, 4,167,650 gallons per day; and Gay & Robin- son, 1,533,050 gallons per day for 30.63 acres of land that it owned below Koula and Manuahi as appurtenant water rights. The court found that Gay & Robinson was also en- titled to appurtenant water rights to 90 acres of land in Koula and Manuahi based on Judge Cristy’s statement in Equity 2911, First Circuit Court, appealed and re- ported as Terr. v. Gay, 31 Haw. 376 (1930). No such finding was made in that case and it was not necessary “It does seem a bit _— in this age to be determining water rights on the basis of what land happened to be in taro cultivation in 1848. Surely any other system must be more sensible. Nevertheless, this is the law in Hawaii, and we are bound to follow it. We invite the legislature to conduct a thorough re-examination of the area. Bexteitsce Raine § ie tee! bt ne ahi spa tags s2 190 SUPREME COURT OF HAWAII Opinion of the Court to make such a finding because the sole issue was the ownership of the “daily normal surplus waters.” As to the claim of appurtenant water rights, Gay & Robinson had the burden of proof, but no evidence was intro. duced by Gay & Robinson to meet this burden. The failure of Gay & Robinson to meet this burden is also acknowledged in the Findings of Facts and Conclusions of Law (item 64) , wherein it is stated: “Gay & Robinson is also entitled to appurtenant water rights for 90 acres of land in Koula and Manu. ahi, the quantity of which can not be determined in the absence of evidence as to the duty of water.” (Emphasis added.) Thus, the finding of the trial court as to appurtenant water rights of 90 acres of land in Koula and Manuahi is reversed and set aside. There is no question that appurtenant water right to taro land attached to the land when title was confirmed by the Land Commission Award and title conveyed by the issuance of Royal Patent. However, it does not follow that because McBryde is entitled to 4,915,400 gallons and Gay & Robinson to 1,533,050 gallons as appurtenant water rights to parcels of land owned by each of them in the Hanapepe Valley, they may therefore divert and transport that amount of water without the Hanapepe Valley to be used on other parcels of land owned by them elsewhere. As the use of the word “appurtenant’’’* indi- cates, it is water rights which pertain to or annexed to that particular parcel of land conveyed by the original *Webster’s Third New International Dictionary: “appurtenant | a: an: nexed or belonging legally to some more important thing (a right-of-way to land or building); b. Incident to and passing in possession with real cstate—used of certain profits or easements . . .” Black's Law Dictionary, Revised Fourth Edition: “Appurtenant. Belong- ing to; accessory or incident to; adjunct, appended, or annexed to.” Words & Phrases—“Appurtenances as used with reference to conveyance of realty, means and includes all rights and interest in other property neces- sary for the full enjoyment of the property conveyed.” NE te ANIL lie SS TERA 83 McBRYDE SUGAR CO. v. ROBINSON 191 Opinion of the Court grant from the King or Hawaiian government. Peck v Bailey, 8 Haw. 658, 661 (1867); Watluku Sugar Co. v. Widemann, 6 Haw. 185 (1876) ; Haw. Com. & Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675, 691 (1904). We hold that the right to the use of water acquired as appurtenant rights may only be used in connection with that particular parcel of land to which the right is appurtenant and any contrary indications in our case law are overruled. Thus, neither McBryde nor Gay & Robinson may transport water to another watershed, which they may have the right to use under their respec- tive appurtenant water rights. IV. RIPARIAN RIGHTS. McBryde, the State, and Gay & Robinson, as owners of land in the Hanapepe Valley, may have water rights other than appurtenant water rights. This court in Terr. v. Gay, 31 Haw. 376, 395 (1930) , recognized such a right and said: “Water for domestic purposes on a lower ahupuaa is in any event assured under Hawaiian law. Every portion of land, large or small, ahupuaa, ili or kule- ana, upon which people dwelt was, under the ancient Hawaiian system whose retention should, in my opinion, continue unqualifiedly, entitled to drinking water for its human occupants and for their animals and was entitled to water for other domestic pur- poses. At no time in Hawaii's judicial history has this been denied.” This court recognized and included this right to water a purposes as part of the ancient appurtenant rights. Now, what is this Hawaiian law or ancient Haw¢iian system mentioned in the decision? This acknowledg- ment of the right to domestic water, we believe, was a recognition of the right guaranteed in “Enactment of ein tite: 2 s4 192 SUPREME COURT OF HAWAII Opinion of the Court Further Principles,” enacted by the Hawaiian Govern ment on August 6, 1850, Laws 1850, p. 202,"7 the pevti- nent portion of which provides: “The people [meaning owners of land] also shall have a right to drinking water, and running water, and the right of way. The springs of water, and running water, and roads shall be free to all, should they need them, on all lands granted in fee simple: Provided, that this shall not be applicable to wells and water courses which individuals have made for their own use.” Section 577 of RLH 1925, the effective statute then, contained the provision guaranteeing the right “to drink- ing water and to running water.” It is crystal clear that the statute reserves to land owners the right to both “drinking water” and “running water.”” Now, what is the right to “running water” guaranteed landowners: As the right to “drinking water and running water” in artificial watercourses constructed by individuals for their own use is excepted by the statute, the term “running water” must mean water flowing in natural watercourses, such as streams and rivers. We also believe that the right to “running water” as contained therein guarantees a land owner the same flow of water in a stream or river as at the time of the mahele, without substantial diminu- tion, or the right to flow of a stream in the form and size "The entire Act appears in RLH 1925 (Appendix, Vol, TH) at 2141, 2142. A portion of this statute has been on our books since its original enactment and now appears as HRS § 7-1 and reads: “Building materials, water, etc; landlords’ titles subject to tenants’ use. Where the landlords have obtained, or may hereafter obtain, allodial titles to théir lands, the people on each of their lands shall not be deprived of the right to take firewood, house-timber, aho cord, thatch, or ki leaf, from the land on which they live, for their own private use, but they shall not have a right to take such articles to sell for profit. The people shall also have a right to drinking water, and running water, and the right of way. The springs of water, running water, and roads shall be free to all, on all lands granted in fee simple; provided, that this shall not be ap- plicable to wells and watercourses, which individuals hiave made for theit own use.” McBRYDE SUGAR CO. v. ROBINSON _ 193 Opinion of the Court given it by nature. This right may be in connection with his right of laundering, canoeing, swimming, bathing, etc. We shall next consider the possible reason for the enactment of the law. We are aware that the missionaries, many of whom came from Massachusetts, not only brought the Christian religion to the Hawaiian people, but also brought with them the English common law as recognized in Massachusetts. Also, history shows that missionaries had tremendous influence among the leaders of the Hawaiian Kingdom."* In Weston v. Alden, 8 Mass. 136 (1811) the Mas- sachusetts Supreme Court recognized the right of an owner of a parcel of land adjoining a brook to use water from such brook for domestic use, including the water- ing of animals and irrigation of his land. Then, in Colburn v. Richards, 18 Mass. 420, 421 (1816), the Massachusetts court held that an owner of a parcel of land adjoining a natural watercourse had the right to use the water to irrigate his farm; however, it also held that he could not divert such water from the natural channel to the detriment of an owner of land below. In Anthony v. Lapham, 22 Mass. 175, 177 (1827) , the Mas- sachusetts court said “‘{e]very man, through whose land water passes, may use it for watering his cattle or irrigat- ing his land, but he must use it in this latter way so as to do the least possible injury to his neighbor who has the same right.” It is interesting to note that on this point the court as footnote | refers to 3 Kent's Com- mentaries (13th ed.) 439, 444. In 3 Kent’s Commentaries (13th ed.) 439, it is stated: “Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run (currere solebat), without “See footnote 8. v4 a ss pa Bea. SOE ee AY ey 194 Se See eas 86 SUPREME COURT OF HAWAII Opinion of the Court diminution or alteration. No proprietor has a right to use the water, to the prejudice of other proprietors, above or below him, unless he has a right to diver it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along. Aqua currit et debt currere ut currere solebat is the language of the law. Though he may use the water while it runs over his land as an incident to the land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprie- tors, he cannot divert or diminish the quantity of water which would otherwise descend to the propri- etors below, nor throw the water back upon the pro- prietors above * * *.” In Tyler v. Wilkinson, 4 Mason 397, 400 (1827), in a case involving water rights of the Pawtucket River, which forms a boundary between the States of Massa- chusetts and Rhode Island, Justice Story stated: “Prima facie every proprietor upon each bank of a river is entitled to the land, covered with water, in front of his bank, to the middle thread of the stream, or, as it is commonly expressed usque filum aquae. In virtue of this ownership he has a right to the use of the water flowing over it in its natural current, without diminution or obstruction. But, strictly speaking, he has no property in the water it self; but a simple use of it, while it passes along. The consequence of this principle is, that no propri- etor has a right to use the water to the prejudice of another. It is wholly immaterial, whether the party be a proprietor above or below, in the course of the river; the right being common to all the proprietors on the river, no one has a right to diminish the quantity which will, according to the natural current, 87 McBRYDE SUGAR CO. v. ROBINSON — 195 Opinion of the Court flow to a proprietor below, or to throw it back upon a proprietor above. . . . The natural stream, existing by the bounty of Providence for the benefit of the land through which it flows, is an incident annexed, by operation of law, to the land itself. When I speak of this common right, I do not mean to be understood, as holding the doctrine, that there can be no diminu- ‘tion whatsoever, and no obstruction or impediment whatsoever, by a riparian proprietor, in the use of the water as it flows... . There may be a diminution in quantity, or a retardation or acceleration of the natural current indispensable for the general and valuable use of the water, perfectly consistent with the existence of the common right.... The maxim is applied, sic utere tuo, ut non alienum laedas.” In Wright v. Howard,” | Simons & Stuart 190, 203 (1823) , the English Chancery Court said: . “Prima facie, the proprietor of each bank of a stream is the proprietor of half the land covered by the stream, but there is no property in the water. Every proprietor has an equal right to use the water which flows in the stream; and, consequently, no proprietor can have the right to use the water to the prejudice of any other proprietor. Without the consent of the other proprietors, who may be affected by his opera- tions no proprietor can either diminish the quantity of water, which would otherwise descend to the pro- prietors below, nor throw the water back upon the proprietors above.” Mason v. Hill, 5 Barn. & Adol, 110 Eng. Rep. 692 (1833), is a case where the issue was whether the defen- dants by diverting water, for a period of less than twenty years, had acquired right to the water by first appropria- tion so that the plaintiff who had been denied flow of It is interesting to note the similarity of the courts’ holding, 3 Kent Commentaries at 439 and ‘Tyler v. Wilkinson, supra, which are all contem- poraneous. as Wi halle tad te ee ee ae SS 196 SUPREME COURT OF HAWAII Opinion of the Court water in a natural watercourse which flowed through his field could recover damages. The English court said “2 Blackstone's Commentaries, p. 18 “Water is a move- able wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary property therein; wherefore if a body of water runs out of my pond into another man’s, I have no right to reclaim it.’” (p. 700) Then it said: “From these authorities, it seems that the Roman law considered running water, not as a bonum vacans, in which any one might acquire a property; but as public or common, in this sense only, that all might drink it, or apply it, to the necessary purposes of supporting life; and that no one had any property in the water itself, except in that particular portion, which he might have abstracted from the stream, and of which he had the possession; and during the time of such possession only. We think that no other interpretation ought to be put upon the passage in Blackstone, and that the dicta of the learned Judges above referred to, in which water is said to be publici juris, are not to be understood in any other than this sense: and it ap- pears to us there is no authority in our law, nor, as far as we know. in the Roman law (which, however, is no authority in ours) , that the first occupant (though he may be the proprietor of the land above) has any right by diverting the stream, to deprive the owner of the land below, of the special benefit and advantage of the natural flow of water therein.” 110 Eng. Rep. 692 at 701. In Embrey v. Owen, 6 Exc. 353, 155 Eng. Rep. 579 585 (1851) the English court said: “The right to have the stream to flow in its natural state without diminution or alteration is an incident tines . - «aus - Fb eee so McBRYDE SUGAR CO. v. ROBINSON — 197 Opinion of the Court to the property in the land through which it passes; but flowing water is publici juris, not in the sense that it is a bonum vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that all may rea- sonably use it who have a right of access to it, that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession -only: see 5 B. & Ad. 24. But each proprietor of the adjacent land has the right to the usufruct of the stream which flows through it.” The court also said that the principle of law was established by Wright v. Howard, supra, Mason v. Hill, supra, Wood v. Waud, supra, and cases decided by Amer- ican courts. It also cites 3 Kent's Commentaries 439-445." In Miner v. Gilmour, XII Moore P.C. 131, 14 Eng. Rep. 861, 870 (1858), a case from Canada involving claims of water rights between owners of property on the opposite banks of a river, the English court in applying the doctrine of riparian rights said “[i}t did not appear that, for the purposes of this case, any material distinc- tion exists between the French and English law.” It would appear that in the light of history and his- torical background of the Hawaiian Kingdom, the provi- sion of the law enacted in August 6, 1850 which reserves to property owners the “right to drinking water and running water,” was a codification or statutory enact- ment of the doctrine of riparian rights recognized as part of the common law by the English and Massachusetts courts.”" We therefore hold that under the statute a proprietor ~ Then at page 586 it quotes extensively from 3 Kent's Commentaries, 13th ed, at 439, in fact the entire section on Running Water excepting the first foragrarh The quotation which appears there is the same as the text in 3 mentaries, 13th ed. 7On this point it should be noted that the rule of McNaughten’s Case, 10 paces es destin Baws — -. Be TH 90 198 SUPREME COURT OF HAWAII Opinion of the Court of land adjoining natural watercourses has riparian wate: rights. Thus, McBryde, the State, and Gay & Robinson, as owners of parcels of land adjoining the Hanapepe River or Koula Stream have such rights — the right to use water flowing therein without prejudicing the riparian rights of others and the right to the natural flow of the stream without substantial diminution and in the shape and size given it by nature. This right is incapable of measurement into number of gallons per day. Of course, the riparian right appertains only to land adjoin- ing a natural watercourse for its use. V. PRESCRIPTIVE RIGHTS The trial court also found that McBryde was entitled to 2,084,600 gallons of water per day by adverse or pre- scriptive use. The general law is that one may not claim title to or interest in state-owned property by adverse use. Re Land Title, State of Hawaii, 49 Haw. 537, 552, 425 P.2d 83, 92 (1967) ; In re Title of Kioloku, 25 Haw. 357, 367 (1920); Terr. v. Puahi, 18 Haw. 649 (1908) . Rec- ognizing that prescription could not run against the gov- ernment, the trial court held that McBryde's prescriptive right to water should be deducted from or charged against the water rights of Gay & Robinson. We believe this was error — if McBryde had been prescribing large amounts of water, the trial court should have ordered McBryde to cease prescribing the State's portion, not impose a double burden on Gay & Robinson by having the amount of water used by McBryde charged against Gay & Robin- son. However, the issue is academic now since under our holding that the ownership of water flowing in the Koula Stream and Hanapepe River being in the State, as be- tween McBryde and the State, McBryde acquired no prescriptive right to water. Clark & Fin. 200, 210, 8 Eng. Rep. 718 (1843), which recognized insanity 3 a detense in a criminal case, was codified in the Hawaiian Kingdom in 1850. See HRS § 703-4. 91 McBRYDE SUGAR CO. v. ROBINSON _ 199 Opinion of the Court VI. “NORMAL DAILY SURPLUS WATER” In Terr. v. Gay, 31 Haw. 376 (1930) it was decided that Gay & Robinson was entitled to “normal daily sur- plus water.”"** That decision was based upon the assump- tion that there would be a quantity of water which may be deemed “normal daily surplus water” after the water rights of all the owners of land in the Hanapepe Valley were determined; however, at that time, no determina- tion as to the water rights of any of the owners of parcels of land in the Hanapepe Valley had been made. In a sense, the decision was made in a vacuum. Both the State and McBryde owning land abutting the Hanapepe River are entitled to riparian water rights over and above the appurtenant rights as determined by the trial court, and under the riparian doctrine they are entitled to the amount of flow of water in both the Koula Stream and Hanapepe River as water flowed in the stream and river at the time of the award without substantial diminution. In other words, they are entitled to have the flow of water in the Hanapepe River in the shape and size given it by nature. Thus, there can be no quantity of water which may be deemed “normal daily surplus water,” and Gay & Robinson is entitled to nothing under the ruling of that case. Also, Gay & Robinson may not claim the right to ap- propriate water adverse to the State’s riparian and ap- purtenant rights because one may not claim interest in or title to State property, or right or interest by adverse use. Vil. RIGHTS TO “STORM AND FRESHET” WATER We reiterate our holding under point II that title to water was reserved to the State for the common good "This question was the sole issue decided by the trial court and the Hawaii Supreme Court. wea Bann REP A ee 92 200 SUPREME COURT OF HAWAII Opinion of the Court when parcels of land were allotted to the awardee under the mahele. Thus “storm and freshet’’ water is the prop- erty of the State and we overrule Carter v. Hawati, 24 Haw. 47 (1917). VIII. SUMMARY 1. As between the State and McBryde, and McBryde and Gay & Robinson, the State is the owner of the water flowing in the Koula Stream and Hanapepe River. How- ever, the owners of land, having either or both riparian or appurtenant water rights, have the right to the use of the water, but no property in the water itself. 2. The State. McBryde and Gay & Robinson have both appurtenant and riparian rights to water in con- nection with land within the Hanapepe Valley. How- ever, under claim of such rights, neither McBryde nor Gay & Robinson may transport water to another watershed. 3. Under the doctrine of riparian rights, owners of land adjoining a natural watercourse have the right toa flow of a river or stream in the shape and size given it by nature. Thus. under such right there can be no “normal daily surplus” water. 4. McBryde has no prescriptive right to water, as no one may claim title or interest against property owned by the State. 5. “Storm and freshet” water is the property of the State. Neither McBryde nor Gay & Robinson has any right to divert water from the Koula Stream and Hanapepe River out of the Hanapepe Valley into other watersheds. Affirmed in part; reversed in part. J. Russell Cades and Robert B. Bunn (Cades Cox Schutte Fleming & Wright of counsel) for plaintiff-ap- pellant, cross-appellee. J. Garner Anthony and John H. R. Plews (Anthony McBRYDE SUGAR CO. v. ROBINSON 201 Marumoto, J., dissenting and concurring & Waddoups of counsel) for defendants-appellees, cross- appellants. Andrew S. O. Lee, Deputy Attorney General (Bert Kanbara, Attorney General, with him on the briefs) , for State of Hawaii, defendant-appellee, cross-appellant. DISSENTING AND CONCURRING OPINION OF MARUMOTO, J. I dissent from the decision set forth in the last para- graph of the foregoing opinion of the court that neither Gay & Robinson nor McBryde has any right to divert the water flowing in Koula Stream and Hanapepe River to watersheds beyond the Hanapepe valley. That decision has no relation whatsoever to the judgment appealed from in this case, and is neither with- in the issues raised and tried in the circuit court nor within the questions presented and argued to this court. In the following statement of my view of the case, I will refer to the opinion of the court in this case as the majority opinion; the majority of the justices sitting in the case as the majority; the discussion of my view as the dissent, although it contains my concurrence with the majority On some matters; Gay & Robinson as G&R; and the numbered subparagraphs of Paragraph VIII of the majority opinion as items |, 2, 3, 4, and 5. There are two cases in the Hawaii Reports which are related to this case. They are Territory v. Gay, 25 Haw. 651 (1920), 26 Haw. 382 (1922); and Territory v. Gay, 31 Haw. 376 (1930) , 52 F.2d 356 (9th Cir. 1931) , cert. denied 284 U.S. 677 (1931). I will refer to the earlier case as Gay I, and the later case as Gay II. This case is a sequel to Gay II, which was, in turn, a sequel to Gay I, and represents the final phase of the controversy regarding the rights of various parties to the water originating on the lands of Koula and Manuahi, Ditithtnisiccintsiitnsionnsrimadobiiinsssoameen acre danas dali td cell ott O4 202 SUPREME COURT OF HAWAII Marumoto, J., dissenting and concurring which has been in litigation for more than one-half of a century since the filing of Gay I. The principal parties to the controversy at the present time are the State, G&R, and McBryde. The State stands in the place of the Territory, as the successor in interest of the konohiki of the ahupuaa of Hanapepe, within which the ilis kupono of Koula and Manuahi are located. G&R is the successor in interest of the konohiki of the ilis kapono of Koula and Manuahi. McBryde is the owner of the ilis kupono of Eleele and Kuloa, and certain kuleanas downstream in the Hanapepe valley, which are entitled to take appurtenant water from Hanapepe River. In Gay I, the Territory challenged the ownership by G&R ofa major portion of the land of Koula.’ A decision in favor of the Territory would have placed the chal- lenged portion in the ahupuaa of Hanapepe. The Ter- ritory then would have been the owner of the surplus water o: that portion of the land under the prior deci- sions of this court which recognized the surplus water of a stream having its source in an ahupuaa as belonging to the konohiki of the ahupuaa. Thi court determined the entire land of Koula to be an ili kupono belonging to GXR. There has never been any challenge to the title of G&R to the ili kupono of Mamuahi. Thus, at this date, there can be no question regarding the ownership by G&R of the lands of Koula and Minuahi. In Gay II, the Territory, having lost in Gay I, chal- lenged the ownership by G&R of the surplus water of Koula stream and Manuahi Stream. The vehicle which the Territory used in the chal- lenge vas an equity suit to enjoin G&R from diverting *Theland of Koula contains 5,520 acres, covered by Grant 1108 and Royal Patent 098 issued to the predecessors in tithe of GkR. Grant 1108 coversa portion containing 740 acres in the lower corner. The Territory did not chal lenge th: ownership by G&R of that portion. 95 McBRYDE SUGAR CO. v. ROBINSON — 203 Marumoto, J., dissenting and concurring the surplus water of the two streams to the arid lands of Makaweli. However, the right of the owner of the water, whether it be the Territory or G&R, to divert it from the watershed of origin to other watersheds was not made an issue in the case. ‘he Territory rested its case solely on the contention that ilis kupono are of a less degree of dignity than an ahupuaa and that the primary right to the water arising in such ilis is in the owner of the ahupuaa in which the ilis are located. It is obvious that the right of the owner of the water to divert it from the watershed of origin to other watersheds was not raised as an issue in the case for the reason that the existence of such right was deemed to be a closed ques- tion under the prior court decisions going back to Peck v. Bailey, 8 Haw. 658 (1867), followed by Horner v. Kumuliulii, 10 Haw. 174 (1895), Wong Leong v. Irwin, 10 Haw. 265 (1896), and the Wailuku River cases liti- gated in J.onoaea v. Wailuku Sugar Co., 9 Haw. 651 (1895), and Hawatian Commercial & Sugar Co. v. Wat- luku Sugar Co., 14 Haw. 50 (1902), 15 Haw. 675 (1904), 16 Haw. 113 (1904). Peck v. Bailey sanctioned a diver- sion of water from one portion of an ahupuaa to another portion of the same ahupuaa: Horner v. Kumuliilii a diversion from one kuleana to other kuleanas; and Wong Leong v. Irwin a diversion from one ahupuaa to other ahupuaas. The circuit court limited its decision to the normal daily surplus water of Koula Stream and Manuahi Stream. finding that there was no attempt by G&R to appropriate the storm and freshet water of the streams, and entered a decree denying the injunction sought by the Territory. Upon appeal, this court affirmed the decree in a split decision, the dissenting justice being of the view that the doctrine of riparian right was applicable to the case, both with respect to normal surplus water and storm and freshet water. Baas: LASTS 96 204 SUPREME COURT OF HAWAII Marumoto, J., dissenting and concurring I do not think that there can be any question that Gay II established the following: (1) the ownership by G&R of the normal surplus water of Koula Stream and Manuahi Stream; and (2) the right of G&R to divert such surplus water to areas beyond the Hanapepe valley. Gay II is res judicata only as between the State and G&R. However, no party other than the Territory ever challenged the ownership by G&R of the normal surplus water of the two streams. Nor has any party ever ques- tioned the right of G&R to divert such water from the Hanapepe valley to areas outside of the valley. It appears that one of the principal reasons, if not the only reason, which caused McBryde to institute the instant proceeding was that, after Gay II, G&R began diverting the water deemed to be storm and freshet water, and also some of the water deemed to be appurtenant to the lands downstream in the Hanapepe valley, by making changes in the facilities for the diversion of the water to Makaweli, which increased the carrying capacity of such facilities from 40,000,000 gallons per day to 65,000,000 gallons per day. The issues in this case, raised and tried in the circuit court, were: (1) the quantity of water of Koula Stream and Manuahi Stream to which McBryde is entitled as appurtenant to its lands in the Hanapepe valley; (2) the quantity of such water to which the State is entitled as appurtenant to its lands in the valley; (3) the quantity of such water to which other owners of lands in the valley are entitled as appurtenant to their lands; (4) the quan- tity of such water which McBryde is entitled to take under a claim of prescriptive right; and (5) the right of G&R, the State, McBryde, and other owners of lands in the valley to the storm and freshet water of Koula Stream and Manuahi Stream. Those also were the issues, and the only issues, presented and argued to this court on the present appeal. The circuit court made its determinations on the pA ON an. . — - se ee 07 McBRYDE SUGAR CO. v. ROBINSON = 205 Marumoto, J., dissenting and concurring first three issues, and also a determination of the quantity of water appurtenant to the lands owned by G&R in the Hanapepe valley. Those determinations are set forth in the majority opinion. The majority holds that they were correctly made. I concur in that holding. On the fourth issue, the circuit court determined that McBryde has a prescriptive right to take 2,084,600 llons per day. to be charged against the surplus water which G&R is entitled to retain and divert. The majority holds, in item 4, that McBryde does not have such prescriptive right. I concur in that holding also, but not for the reason given therefor in item 4. I think that McBryde has no prescriptive right be- cause its taking was not adverse to the right of GkR to the normal surplus water of Koula Stream and Manuahi Stream. McBryde's intake points are below the diversion point of G&R. In the establishment of prescriptive right to water, adverse use does not run upstream. Wellsville East Field Irrigation Co. v. Lindsay Land & Livestock Co., 104 Utah 448, 137 P.2d 634 (1943) ; Day v. Hill, 241 Ore. 507, 406 P. 2d 148 (1965) . On the fifth and last issue. the circuit court deter- mined that the storm and freshet water of Koula Stream and Manuahi Stream belonged to G&R as part of the surplus water which the owner of the land on which a stream has its source is entitled to appropriate. In item 5, the majority holds that the ownership of storm and freshet water is in the State. I do not concur in that hold- ing: nor do I agree with the determination of the circuit court on the issue. I would follow Carter v. Territory, 24 Haw. 47 (1917), on the matter. In that case, this court divided the surplus water of a stream into normal surplus water and storm and freshet water, and held that the doctrine of riparian right was applicable to the latter. I think that the holding in Carter v. Territory on storm and freshet water was proper. The right to storm ee ee 98 206 SUPREME COURT OF HAWAII Marumoto, J., dissenting and concurring and freshet water was an issue in the case. But no show. ing was made therein regarding any Hawaiian usage on the matter. In the situation, the disposition of the issue was governed by the statutory provision presently com. piled in HRS § 1-1, which declares the common law of England, as ascertained by English and American deci- sions, to be the common law of Hawaii, except as other. wise fixed by Hawaiian judicial precedent or established by Hawaiian usage. The decision set forth in the last paragraph of the majority opinion involves a consideration of the doctrine of res judicata in its effect upon G&R, and a considera. tion of the principle of stare decisis insofar as it prevents McBryde from diverting the water appurtenant to its lands in the Hanapepe valley for use upon its lands be- yond the valley. : The majority professes to recognize in the body of the majority opinion, albeit reluctantly, that Gay II is res judicata between the State and G&R, and holds that it is binding on the State. However, the decision effec- tively nullifies that holding to the extent that it denies G&R the right to divert the normal surplus water of Koula Stream and Manuahi Stream to Makaweli. Greenfield v. Mather, 32 Cal. 2d 23, 194 P.2d 1 (1948) , is cited by the majority for the proposition that the doctrine of res judicata ‘‘will not be applied so rigidly as to defeat the ends of justice or important considera- tions of policy.” I think that res judicata is an imperative, which commands adherence without any exception. I agree with Mr. Justice Traynor, who stated in his dissent in Green- field v. Mather that ‘a departure from res judicata throws into question the finality of any judgment and thus is bound to cause infinitely more injustice in the long run than it can conceivably avert in this case’; and with Mr. Justice Edmonds, who stated in his dissent in the same case, as follows: ‘No doctrine in the law is more funda- 99 McBRYDE SUGAR CO. v. ROBINSON — 207 Marumoto, J., dissenting and concurring mental and it is vital to the orderly administration of ‘ystice. * * * Courts should stand firm against a policy of endless litigation in which nothing is ever decided with certainty.” ° The principle of stare decisis, which is involved in the portion of the decision which prevents McBryde from diverting the water appurtenant to its lands in the Hana- valley for use in other areas does not require strict adherence to prior decisions as in the case of res judicata. Nevertheless, it counsels adherence to precedents, partic- ularly with respect to precedents relating to property rights, on the reasoning that “‘it is better to adhere to principles once fixed, though, originally, they might not have been perfectly free from all objection, than to unsettle the law, in order to render it more consistent with the dictates of sound reason.”” Washington, J., Marine Insurance Co. v. Tucker, 3 Cranch (7 U.S.) 357 (1806) . In deciding that McBryde has no right to divert the water appurtenant to its lands in the Hanapepe valley, the majority deems that the prior court decisions rec- ognizing the right of the owners of water to divert the water from one area to other areas were based upon er- roneous legal reasoning, and cites Helvering v. Hallock, 309, U.S. 106 (1940), in which the court declined to follow a precedent urged to be applicable. In Helvering v. Hallock the court stated that it had “from the beginning rejected a doctrine of disability at self-correction,” and, further, that ‘‘stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision.” However, a careful reading of that case shows that the principle of stare decisis was not followed there because the precedent urged upon the court involved “collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience,” and also because the precedent did not contain “rules of decision around | SEE LEG LI IA 0 APIA LAI ARIE AMAR ca SBR 100 208 SUPREME COURT OF HAWAII Marumoto, J., dissenting and concurring which, by the accretion of time and the response of affairs, substantial interests have established themselves.’ I think that in Hawaii, around the prior court deci. sions sanctioning the diversion of water from one area to other areas, substantial interests have established them. selves “by the accretion of time and response of affairs,” The record in this case shows that the water diverted from Koula Stream and Manuahi Stream by G&R is used in irrigating the sugar cane fields of Olokele Sugar Company, Limited, in Makaweli, and that the water diverted from Hanapepe River by McBryde is used in irrigating its sugar cane fields in Lawai and other areas beyond the Hanapepe valley. There is also evidence in the case that, subsequent to the decision in Gay II, G&R and Olokele spent approximately $119,000 and $788,800, respectively, on the system for the diversion of the water of Koula Stream and Manuahi Stream to Makaweli, and that McBryde spent $558,000 for pumping equipment in the Hanapepe valley, $226,000 for ditches and siphons to transport the water to its cane fields beyond the valley, and $60,000 for the construction of reservoir to store the water. Although I do not have specific information at hand, I presume that, besides the parties in this case, there are other segments in the agricultural economy of Hawaii which depend upon irrigation for the cultivation of their crops, have expended substantial sums in constructing irrigation facilities in reliance upon prior court deci- sions, and will be adversely affected by the decision announced today. Chief Justice Stone stated in United States v. South- eastern Underwriters Assn., 322 U.S. 533, 579 (1944): “To give blind adherence to a rule or policy that no decision of this Court is to be overruled would be itself to overrule many decisions of the Court which do not accept that view. But the rule of stare 101 McBRYDFE SUGAR CO. v. ROBINSON — 209 Marumoto, J., dissenting and concurring decisis embodies a wise policy because it is often more important that a rule of law be settled than that it be settled right. * * * ‘The question then is not whether an earlier decision should ever be overruled, but whether a particular decision ought to be. And before overruling a precedent in any case it is the duty of the Court to make certain that more harm will not be done in rejecting than in retaining a rule of even dubious validity.” That statement was made in a dissenting opinion. However, I think that, in a case such as this, it provides a proper guide to follow. Bs GE sah et Did tomo ip ae es Lasts hall ab as 102 No. 4879 IN THE SUPREME COURT OF THE STATE OF HAWAII Octoser Term 1969 SpeciaL Proceepine No. 108 Appeat From Finat JupGmMent Datep January 30, 1969 Firta Circvurr Court Honorasce BenJsamin M. Tasuiro, Judge McBryve Sucar Company, Limitep, Plaintiff-A ppellant, Cross-Appellee, Vs. AytMer F. Rosinson, et al., Defendants-A ppellees, Cross-A ppellants. MOTION FOR LEAVE TO FILE, AS AMICUS CURIAE, A PETITION FOR REHEARING OR A BRIEF IN SUPPORT OF A PARTY'S PETITION Comes now Hawauan SuGar PLanters’ Association and being advised that McBryde Sugar Company, Limited, Aylmer F. Robinson and others, parties herein, have been granted an extension of time, until May 10, 1973, within which to file petitions for rehearing, hereby moves this Court for leave to file, as amicus curiae herein, a petition for rehearing or a brief in support of a party’s petition, on or prior to said date. The purpose of Movant in filing a petition for rehearing or brief as amicus curiae would be to ask the Court’s re- consideration only of its conclusions: (1) that rights to surplus water were not transferred to an awardee by the Great Mahele and subsequent Land Commission Award 103 and Royal Patent, and (2) that rights to the use of water may be exercised only in connection with the land to which the water was appurtenant or riparian and that owners of water have no right to divert it into other watersheds for use upon other lands. Movant is gravely concerned with the effect of the deci- sion herein, and with the implementation of the conclusions above mentioned, upon the rights and interests of its mem- ber plantations, upon the operation of those plantations and upon the sugar industry in Hawaii. As amicus curiae, Movant would ask that the Court consider facts and legal argument which were not presented to the Court before it reached the conclusions just mentioned. Movant is not concerned with the measure or quantity of water rights of the parties in the Koula Stream and Hana- pepe River and does not seek to be heard with respect thereto, except insofar as the same were ascertained on the basis of the conclusions just mentioned. This motion is based upon the affidavit and memorandum attached hereto and the records and files of this Court. Datep: Honolulu, Hawaii, March 29, 1973. /s/ Curnton R. AsHrorp Clinton R. Ashford 6th Floor 235 Queen Street Honolulu, Hawaii 96813 Of Counsel: AsHrorp & Wriston [Certificate of Service omitted in printing] 104 IN THE SUPREME COURT OF THE STATE OF HAWAII Octoser Term 1972 McBrypbe Svcar Company, Limitep, Plaintiff-A ppellant, Cross-A ppellee, vs. Ayuoer F. Rostnsoy, et al., Defendants-A ppellees, Cross-A ppellants. No. 4879 MOTION FOR LEAVE TO FILE, AS AMICUS CURIAE. A PETITION FOR REHEARING OR A BRIEF IN SUPPORT OF A PARTY'S PETITION Apri 3, 1973 Ricuarpson, C.J., Marumoro, Ase, Levinson, JJ., axp Circuit Jupce Ocata wx Pace or Kosayasui, J., DisQuALIFIED | Per Curiam. The motion for leave to file, as amicus -_- euriae, a petition for rehearing or a brief in support of a party’s petition is denied without argument. Marumoto, J., having dissented from the opinion of the court, does not concur. /s/ Wru1am S. Ricuarpson /s/ Kazuutsa ABE | /s/ Bernarp H. Levinson | /s/ Tuomas S. Ocata (Liston R. AsHFrorpD (Ashford & Wriston of counsel) for movant Hawaiian Sugar Planters’ Association. nermal * The evidence showed that MeBryde bad been appropriating water ter uration at least since 1934, see Me Bryde Sugar Co. +. Robinson. SP. Ne. 108, Deetien at Ph-12 (Sth Car, C4. of Hawaii, December 10, 1968), and that Gay and Robinson had heen cheing so sinee [RYL. See id. at 6-7. See alse Territory ¥. Gay. 52 Bod oth Cir.) cert. denied, IAA ULS. 677 (1931), aff “e 31 Haw. 376 (1930). * Appurtenant water rights have been detined as tollows: Whenever it has appeared that a kuleana ot perhaps other preee of Land wae, immediately prier te the grant of an award by the Land commision. enor ing the use ot water for the cultivation of tare or ter garden purpeses ot ter demestx purpeses, that land has been held te have had appurtenant te it the right te use the quantity ofatater whieh it had been customarily using at the time named Territory +. Gay, 31 Haw. 370, SRS C1940), * As stated by Mr. Hutchins: In order to establish a prescriptive tithe te a water rght. there must have been an “actual, open, netorious, continuous and hostile use” ot the water tor the statutery period of limitations [(20 years), and the use must alse have been made under a claim of right. He reins LLL: see Territory +s. Gay, 31 Haw. 376, 384 1990% Kohala Sagar to. Wight. IL tlaw. 644, 618-50 11899). 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. vp. 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 kKonohiki of the ahupuaa or ili kupono on which it origi- nates, see, €-€-, 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. 80 long as the water rights of others are not thereby deleteriously affected. See, e.g.. Wong Leong v. Inein, 10 Haw. 265, 270-72 (1896). On appeal to this court by McBryde, the State, and Gay and Robif'son, 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. /d. at 198, 504 P.2d at 1344-45. * Normal surplus water is all water in 4 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 @ stream or river which is intermittently caused by storm precipitation. See a -eaata v. Wailuku Sugar Co., 15 Haw. 675, 680 (1904): HutcHins ° , AE 5 ay Cars eae: BS Aad shed iI ede iA hten te i nits Anh Sad ON aca ells ANN RA hatte ONES REC VE aD tts nl (atte Ll ROA LY tect NAY Helin [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_1825%3A2. Public record. Not legal advice.