McBryde Sugar Co., Ltd. v. Robinson, 4879

Decision Date10 January 1973
Docket NumberNo. 4879,4879
Citation54 Haw. 174,504 P.2d 1330
PartiesMcBRYDE SUGAR COMPANY, LIMITED, Plaintiff-Appellant, Cross-Appellee, v. Aylmer F. ROBINSON et al., Defendants-Appellees, Cross-Appellants.
CourtHawaii Supreme Court

Syllabus by the Court

1. Under the doctrine of res judicata, an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.

2. The doctrine of stare decisis relates to the legal principle that may be extracted from an adjudiation of a claim for relief or an issue and the application of such principle in a subsequent action between strangers to the record involving a similar claim for relief or issue. The doctrine, however, is subordinate to legal reasons and justice and a court will overrule a former decision when the result is manifest justice.

3. Even assuming that the King by his mahele granted ilis of Manuahi and Koula to the awardees as ilis kupono, the King, having retained the ahupuaa of Hanapepe fed by the Koula Stream and Hanapepe River, in the absence of an expressed intent on his part to convey his right to surplus water, should not be deemed to have transferred such right.

4. Where one half of an ili kupono was maheled to a konohiki and the other half was retained by the King as crown land, a conveyance, of the King's half to the government, and the government's subsequent conveyance does not make the whole of the ili an kupono.

5. Right to water was not intended to be, could not be, and was not transferred to an awardee by the Great Mahele and subsequent Land Commission Award and issuance of Royal Patent.

6. The ownership of water in natural watercourses, streams and rivers remained in the people of Hawaii for their common good.

7. It is the general law of this jurisidiction that when land allotted by the mahele was confirmed to an awardee by the land commission and/or when a royal patent was issued based on such award such conveyance of the parcel of land carried with it the appurtenant right to water for taro growing.

8. The burden of proving the amount of water actually being used for taro cultivation at the time of the Land Commission Award is on the person claiming appurtenant water rights.

9. In determining appurtenant water rights, the trial court, sitting as Commissioner of Private Ways and Water Rights, shall determine as precisely as possible the amount of water that was actually being used for taro cultivation at the time of the Land Commission Awards. The extent of land under taro cultivation in earlier or later time is irrelevant.

10. A reduction in acreage for fallowing should be made in the determination of appurtenant water rights when it appears that at the time of the Land Commission Awards water was not being used to cultivate taro on certain acreage.

11. Proceedings before the circuit court sitting as Commissioner of Public Ways and Water Rights pursuant to HRS Ch. 664, Part III are subject to the Hawaii Rules of Civil Procedure. HRCP Rule 81(a).

12. The trial court's determination of the parties' 'appurtenant water rights' will not be set aside unless clearly erroneous. HRCP Rule 52(a).

13. The right to the use of water acquired as an appurtenant right may only be used in connection with the particular parcel of land to which the right is appurtenant, and any contrary indication in Hawaii case law is overruled.

14. The 'right to drinking and running water' guaranteed by the 'Enactment of Further Principles,' Laws 1850, RLH 1925 (Appendix, Vol. 2, 2141 et seq.) see also HRS § 7-1, secured for a proprietor of land adjoining natural watercourses riparian water rights.

15. Riparian water rights include the right to use water flowing on land adjoining natural watercourses without prejudicing the riparian rights of others, or the right of others to the natural flow of the watercourse without substantial diminution and in the shape and size given it by nature.

16. Riparian rights belong only to land adjoining a natural watercourse for its own use.

17. One may not claim title to or interest in state-owned property by adverse use.

18. 'Normal daily surplus water' contemplates an excess of water after all the owners of land adjoining a natural watercourse have their water rights determined. Since the recognition of riparian water rights entitle owners of land adjoining natural watercourses to have the flow of a watercourse in the shape and size given it by nature, there can be no quantity of water deemed 'normal daily surplus water.'

19. Since water was reserved to the State for the common good when parcels of land were allotted to awardees under the mahele, storm and freshet water is the property of the State and Carter v. Hawaii, 24 Haw. 47 (1917) is overruled.

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

J. Garner Anthony and John H. R. Plews, Honolulu (Anthony & Waddoups, of counsel), for defendants-appellees-cross-appellants.

Andrew S. O. Lee, Deputy Atty. Gen. (Bert Kanbara, Atty. Gen., Honolulu, with him on briefs), for State of Hawaii, defendant-appellee, cross-appellant.

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

ABE, Justice.

This is an appeal from the judgment of the Circuit Court of the Fifth Circuit, which determined the water rights of parties who are owners of land situated in the Hanapepe Valley on the island of Kauai. The trial lasted from May 5 through August 17, 1965. The record of this case includes transcript of testimony of witnesses comprising 3,483 pages and voluminous documentary exhibits.

In arriving at its decision, the trial court first determined 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 from time immemorial, and thus entitled to appurtenant water rights. Next, the court determined the average quantity of water used per day per acre in growing taro, which it termed 'duty water' to be 50,050 gallons. After the determination of these two factors, the court found that McBryde was entitled to 4,915,400 gallons per day; the State, 4,167,650 gallons; Gay & Robinson (below Koula and Manuahi) 1,533,050; and the other landowners, collectively, 1,456,950.

The trial court also concluded that McBryde by adverse use had acquired prescriptive rights to 2,084,600 gallons, and thereby McBryde could divert seven million gallons of water per day (4,915,400 appurtenant and 2,084,600 prescriptive). Inasmuch as the prescriptive right could not be deemed against the government, the court held that the amount of prescriptive right to water should be deducted from or charged against the water rights of Gay & Robinson.

The record shows that both McBryde and Gay & Robinson are diverting water from the Hanapepe River basin, so much so that the mouth of the Hanapepe River is practically dry throughout the year. Accordingly judgment was entered ordering Gay & Robinson to leave 12,624,600 gallons of water per day in the river for the use of the other owners, as above indicated.

The three principal parties, McBryde, Gay & Robinson, and the State appealed from the judgment each urging different points on appeal.

I. APPLICATION OF TERRITORY v. GAY.

The first basic issue before us is whether the trial court was correct in adopting the opinion of Chief Justice Perry in Terr. v. Gay, 31 Haw. 376 (1930). Gay & Robinson urges that the decision of that case is res judicata as between the State and Gay & Robinson.

The rule of that case is that Gay & Robinson was the owner of the independent ilis 1 or ilis kupono of Koula and Manuahi; that under ancient law konohikis 2 of ilis kupono were independent of the konohiki of the ahupuaa 3 and paid no tribute to him; though he was subservient and paid tribute directly to the King, and that as owner of such ilis kupono, Gay & Robinson was owner of the normal surplus water.

Under the doctrine of res judicata 'an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.' Glover v. Fong, 42 Haw. 560, 573 (1958).

This doctrine is recognized as a general principle formulated by the judiciary based on the obvious and practical role of reason and necessity to promote justice, fairness, expediency, and social and economic stability in our society. In other words, '(t)his general rule is demanded by the very object for which civil courts have been established, which is to secure the peace and repose of society by the settlement of matters capable of judicial determination.' Glover v. Fong, supra at 574, quoting Southern Pacific Railroad Co. v. United States, 168 U.S. 1, 49, 18 S.Ct. 18, 42 L.Ed. 355 (1897).

Some courts have held that inasmuch as the doctrine of res judicata is adhered to by the courts as rule of justice, it sould not be applied so rigidly if to do so will be to defeat the ends of justice or to work an injustice. Greenfield v. Mather, 32 Cal.2d 23, 194 P.2d 1 (1948); Universal Const. Co. v. City of Fort Lauderdale, 68 So.2d 366 (Fla., 1953); People v. Somerville, 42 Ill.2d 1, 245 N.E.2d 461 (1969); Motor Vehicle Accident Indemnification Corp. v. National Grange Mutual Ins. Co., 19 N.Y.2d 115, 278 N.Y.S.2d 367, 224 N.E.2d 869 (1967).

In spite of such rule enunciated by other courts, we are reluctant to treat the doctrine of res judicata as inapplicable in this case as between the State and Gay & Robinson, even though justice may...

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