McBryde Sugar Co., Ltd. v. Robinson

• Decision Date: 20 December 1973
• Docket Number: No. 4879,4879
• Citation: 517 P.2d 26,55 Haw. 260
• Parties: McBRYDE SUGAR COMPANY, LIMITED, Plaintiff-Appellant, Cross-Appellee, v. Aylmer F. ROBINSON et al., Defendants-Appellees, Cross-Appellants.
• Court: Hawaii Supreme Court

Page 26

517 P.2d 26

55 Haw. 260

McBRYDE SUGAR COMPANY, LIMITED, Plaintiff-Appellant, Cross-Appellee, v. Aylmer F. ROBINSON et al., Defendants-Appellees, Cross-Appellants.

No. 4879.

Supreme Court of Hawai'i.

Dec. 20, 1973.

J. Russell Cades and Robert B. Bunn, Honolulu (Cades, Schutte, Fleming & Wright, Honolulu, of counsel), for McBryde Sugar Co., Ltd., plaintiff-appellant, cross-appellee.

John H. R. Plews, Honolulu (Anthony, Hoddick, Reinwald & O'Connor, Honolulu, of counsel), for Selwyn A. Robinson, and others, defendants-appellees, cross-appellants.

Andrew S. O. Lee, Deputy Atty. Gen. (George Pai, Atty. Gen., Honolulu, of counsel), for State of Hawaii, defendantappellee, cross-appellant.

William F. Quinn, Honolulu (Goodsill, Anderson & Quinn, Honolulu, of counsel), for Olokele Sugar Co., Ltd., defendant.

Clinton I. Shiraishi, Lihue (Shiraishi & Yamada, Lihue, of counsel), for Ida Albarado, and others, petitioners.

Before RICHARDSON, C. J., MARUMOTO, ABE and LEVINSON, JJ., and OGATA, Circuit Judge, in place of KOBAYASHI, J., disqualified.

PER CURIAM.

Subsequent to the filing of the decision in this case on January 10, 1973 (54 Haw. 174, 504 P.2d 1330 (1973)), petitions for rehearing were filed by some of the parties. By order of this court dated June 18, 1973, all the parties were requested to file supplementary briefs directed to the issues. (1) whether HRS § 7-1 ¹ was material to the determination of the water rights of the parties, and (2) whether owners of parcels of land in the Hanapepe Valley, who were entitled to appurtenant water rights for taro raising at the time of the Mahele or the Land Commission Award, were entitled to apply the appurtenant water rights to parcels of land other than that to which the court found the right was appurtenant.

Arguments of the parties were heard at the rehearing had on September 18, 1973. After careful consideration of the briefs and arguments presented at the rehearing, we find no reason to change the decision filed herein.

MARUMOTO, Justice (dissenting).

This phase of the case is limited to two points mentioned in the foregoing per curiam, the points being: first, whether HRS § 7-1 was material to the determination of the water rights of the parties, and, second, whether the landowners in Hanapepe Valley, who were entitled to appurtenant water rights, had the right to divert such appurtenant water to watersheds beyond the Hanapepe Valley.

I discussed my view on the second point in my dissent reported at 54 Haw. 201, 504 P.2d 1356, and it is the view presented in the supplementary briefs with more elaboration.

I did not discuss the first point in my dissent, for the reason that I did not think that it was an issue on appeal. However, assuming that it was a proper issue on appeal, I think that HRS § 7-1 does not support the holding of the court in Part II of the opinion of the court at 54 Haw. 180, 504 P.2d 1335, that it reserved the title to flowing water to the State for the common good. On the point, I concur in the historical analysis in the dissenting opinion of Mr. Justice Levinson.

LEVINSON, Justice (dissenting).

Although I voted with the majority of this court in McBryde Sugar Co. v. Robinson, 54 Haw. 174, 504 P.2d 1330 (1973) (hereinafter referred to as McBryde I), I am constrained to recant that position in view of my current understanding of the porblems of this case. In light of the arguments adduced on rehearing, historical evidence discovered upon further research subsequent to the court's previous decision in this case, and a reappraisal of the reasoning supporting that decision, it is my opinion that the court committed error in Holding that all surplus water belongs to the State and that private water rights, however acquired, may not be transferred to nonappurtenant land. Because of the importance of this case to the development of the law on the subject of Hawaii's water resources, I have undertaken to present a detailed analysis explaining why McBryde I is not in keeping with long established and unique principles of Hawaiian water law. Precisely because McBryde I is such a radical departure from these principles as they have been heretofore understood, moreover, I have concluded that McBryde I effectuates an unconstitutional taking of the appellant's and cross-appellants' property without just compensation and should be reversed on this ground as well.

As Mr. Justice Frankfurter stated in his famous dissenting opinion in Henslee v. Union Planters National Bank, 335 U.S 595, 600, 69 S.Ct. 290, 293, 93 L.Ed. 259 (1949): 'Wisdom too often never comes, and so one ought not to reject it merely because it comes late.' I regret that the wisdom to correct the errors of McBryde I has not come to a majority of this court in time to restore continuity to the body of water law that has evolved in Hawaii over the course of more than a century.

I. THE BACKGROUND OF THE CONTROVERSY

This case arises out of a controversy among owners of land located in the Hanapepe Valley on the island of Kauai respecting their relative rights in the surface waters of the valley. ¹ The action commenced on March 24, 1959, when a complaint was filed by McBryde Sugar Company, Limited, hereinafter referred to as McBryde, the owner of the ilis kupono ² of Eleele and Kuiloa, situated in the southeastern portion of the valley. The defendants fell into three categories: (1) the Territory (now the State) of Hawaii, the owner of the ahupuaa of Hanapepe, located in the southwestern portion of the valley; (2) the partnership of Gay and Robinson and its individual partners, hereinafter referred to as Gay and Robinson, owners of the ilis kupono of Manuahi and Koula, located in the northwestern and northeastern portions of the valley, respectively, and; (3) all other owners of the lands in the Hanapepe Valley, hereinafter referred to as Small Owners.

The two principal users of water in the Hanapepe Valley are McBryde and Gay and Robinson, both of which for a long period of time have availed themselves of substantial amounts of the surface waters of the valley for sugar cane irrigation both within and without the Hanapepe watershed. ³ The instant controversy was kindled in 1949 when Gay and Robinson implemented a greatly improved ditch and tunnel system for the transportation of water for irrigation purposes to the lands at Makaweli, a substantial portion of which is cultivated by the Olokele Sugar Company, outside and to the west of the Hanapepe watershed. Although this system enabled Gay and Robinson to appropriate significantly increased amounts of water from the Koula stream, such an increase was to the detriment of downstream landowners such as McBryde who thereafter were unable to take from the Hanapepe River the amount of water they had theretofore been taking.

After an exhaustive trial on the merits, on January 30, 1969 the trial court filed amendments to its decision of December 10, 1968 delineating the rights of the parties with respect to appurtenant water. ⁴ prescriptive water, ⁵ normal surplus water, ⁶ and storm and freshet surplus water ⁷ in the Hanapepe Valley. The trial court's process of reasoning and conclusions in this regard are reported in McBryde Sugar Co. v. Robinson, supra 54 Haw. at 176-177, 504 P.2d at 1333-1334. Integral to the trial court's judgment were two principles of Hawaiian water law, which it considered to be solidly bottomed in Hawaiian judicial precedent and which were unquestioned by any of the parties: (1) that all normal surplus water belongs to the konohiki of the ahupuaa or ili kupono on which it originates, see, e.g., Territory v. Gay, 31 Haw. 376, 387-388 (1930), and; (2) that water rights however acquired are freely transferable to any land within or without the watershed on which they arose, so long as the water rights of others are not thereby deleteriously affected. See, e.g., Wong Leong v. Irwin, 10 Haw. 265, 270-272 (1896).

On appeal to this court by McBryde, the State, and Gay and Robinson, many issues were raised, including, among other things, the correctness of the trial court's adjudications of the quantum of appurtenant water rights of the parties, the amount of water, if any, to which McBryde was entitled by prescriptive use, and the proper disposition of storm and freshet surplus water. This court upheld the findings of the trial court with respect to the amount of appurtenant water belonging to the State, McBryde, and the Small Owners, McBryde Sugar Co. v. Robinson, supra 54 Haw. at 187-189, 504 P.2d at 1339-1340, 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. Id. at 189-190, 504 P.2d at 1340. This court also reversed the finding below that McBryde had acquired title to over two million gallons of water per day by prescriptive use. Id. at 198, 504 P.2d at 1344-1345.

At this point, however, this court departed radically in two major respects from the reasoning of the trial court and the positions taken by the various parties. First, it held that all surplus water in the State, including normal and storm and freshet surpluses, ⁸ is the property of the State and not the property of the konohiki of the ahupuaa or ili kupono on which the water originates. Id. at 180-187, 504 P.2d at 1335-1339. This holding was grounded entirely on a specific portion of the Principles Adopted by the Board of Commissioners to Quiet Land Titles in Their Adjudication of Claims Presented to Them, adopted by the Land Commission on Auguest 20, 1846 and approved by resolution in the Legislative Council on October 26, 1846, RLH 1925, Vol. II, pp. 2124, 2128 (originally enacted as L. 1847, at 81, 85) (hereinafter cited as Land Commission Principles), which announced that the Mahele left unimpaired the king's power '(t)o encourage and even to enforce the usufruct of lands for the common good.' ⁹ This provision, it was held,...