Reppun v. Board of Water Supply

• Decision Date: 20 December 1982
• Docket Number: No. 7738,7738
• Citation: 656 P.2d 57,65 Haw. 531
• Parties: Charles F. REPPUN, Paul Reppun, Robert S. Nakata, and Seiyu Nakata, Plaintiffs-Appellees, Cross-Appellants, and Clifford Wong and Rachel Hall, Plaintiffs-Intervenors-Appellees, Cross-Appellants, v. BOARD OF WATER SUPPLY, City and County of Honolulu, Defendant-Appellant, Cross-Appellee.
• Court: Hawaii Supreme Court

Page 57

656 P.2d 57

65 Haw. 531

Charles F. REPPUN, Paul Reppun, Robert S. Nakata, and Seiyu Nakata, Plaintiffs-Appellees, Cross-Appellants and Clifford Wong and Rachel Hall Plaintiffs-Intervenors-Appellees, Cross-Appellants, v. BOARD OF WATER SUPPLY, City and County of Honolulu Defendant-Appellant, Cross-Appellee.

No. 7738.

Supreme Court of Hawai'i.

Dec. 20, 1982.

Reconsideration Denied Jan. 24, 1983.

Syllabus by the Court

1. Riparian rights in Hawaii are a product of the people's statutory rights to "flowing" and "running" water currently embodied in HRS § 7-1 (1976).

2. The nature of water rights provided in HRS § 7-1 are limited by the purposes for their establishment.

3. The riparian water rights created by HRS § 7-1 were not intended to be, and

cannot be, severed from the land in any fashion. Their sole purpose is to provide water to make tenants' lands productive--no other incident of ownership attached.

4. Appurtenant water rights are rights to the use of water utilized by parcels of land at the time of their original conversion into fee simple.

5. Appurtenant water rights may not be severed or transferred but there is nothing to prevent the transferor of lands to which such rights attach from providing that the benefit of the right shall not pass to the transferee.

6. While the statute creating riparian rights may indeed have been intended to engraft the "natural flow" version of riparianism onto the waters of our land, the continued satisfaction of the farmers' intent requires that the doctrine be permitted to evolve in accordance with changing needs and circumstances.

7. In order to maintain an action against a diversion which diminishes the quantity or flow of a natural watercourse, a riparian owner must demonstrate actual harm to his own reasonable use of those waters.

8. When the same parcel of land is being utilized to cultivate traditional products by means approximating those utilized at the time of the Mahele, there is sufficient evidence to give rise to a presumption that the amount of water diverted for such cultivation sufficiently approximates the quantity of appurtenant water rights to which that land is entitled.

9. Where surface water and ground water can be demonstrated to be physically interrelated as parts of a single system, established surface water rights may be protected against diversions which injure those rights, whether the diversions involve surface water or ground water.

10. The public use doctrine is premised upon the general principle that the public interest is a factor to be considered in determining whether injunctive relief is appropriate in any situation.

11. Where water has been improperly diverted by a public entity for actual public use, a complainant may not obtain injunctive relief against the diversion of water to which a public use has attached at the time suit is filed, unless the court, applying and interpreting Hawaii's Constitution and relevant statutes, finds that another public interest of substantially the same magnitude as that of the public's interest in adequate water will be advanced by injunctive relief.

12. Normally a public use attaches at the time the water is actually used by the public and to the extent of such use, where, however, there is gradually increasing diversions, the critical point at which the doctrine becomes operational is when the diversion causes actual harm to the plaintiffs.

Samuel P. King, Jr., Sp. Deputy Corp. Counsel, Honolulu (Richard D. Wurdeman, Corp. Counsel, Honolulu, with him on briefs), for defendant-appellant, cross-appellee Bd. of Water Supply.

Ronald Albu, Legal Aid Society of Hawaii, Honolulu, for plaintiffs-appellees, cross-appellants Reppuns.

E. Cooper Brown, Honolulu, for plaintiffs-appellees, cross-appellants Nakatas and plaintiffs-intervenors-appellees, cross-appellants Wong and Hall.

Before RICHARDSON, C.J., LUM and NAKAMURA, JJ., and OGATA and MENOR, Retired Justices, assigned temporarily.

RICHARDSON, Chief Justice.

Both plaintiffs and defendants in this appeal contest the judgment of the trial court enjoining the Board of Water Supply of the City and County of Honolulu from reducing the flow of the Waihee stream below 2.7 million gallons per day. They essentially aver that the trial court misapplied the law governing water rights in our State as delineated in McBryde Sugar Co. v. Robinson, 54 Haw. 174, 504 P.2d 1330, aff'd upon rehearing, 55 Haw. 260, 517 P.2d 26 (1973) (cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146, appeal dismissed, 417 U.S. 962, 94 S.Ct. 3164, 41 L.Ed.2d 1135 (1974) (hereinafter McBryde). The Board, however, also asserts McBryde is an aberration that must be overruled. We have re-examined our decision and are still convinced it represents a correct statement of the law governing water rights in Hawaii. But we find the trial court misapplied the precepts enunciated there. We therefore reverse the judgment of the trial court and remand the case.

I. Introduction

The geological structure of the Koolau mountains of Oahu enables parts thereof to act as natural reservoirs of fresh water; these natural storage compartments are called dike complexes or systems. The seepage and overflow from one such dike complex or system serve as the primary source of the Waihee stream. Competing claims to the waters of the stream and competing ownership claims to the waters at its source are advanced in this appeal.

The Board of Water Supply of the City and County of Honolulu (hereinafter BWS) maintains a tunnel and inclined shafts to facilitate the withdrawal of water from the Waihee dike system; it also pumps water therefrom. This substantial withdrawal of water by the BWS naturally diminishes the flow of the Waihee stream. Six taro farmers who claim appurtenant and riparian rights to the waters of the stream initiated this case, alleging that they are entitled at least to a flow of water sufficient to maintain their crops. Conversely, the BWS claims its predecessor in interest purchased the bulk of the rights to the waters in question. It contends the withdrawals of water cannot be deemed a legal wrong subject to injunction since it draws water from the underground source rather than the stream. It further asserts that the "public use doctrine" precludes the issuance of an injunction here.

II. Statement of the Case

The natural flow of the Waihee stream is approximately 6 to 8 million gallons per day (mgd). In 1955 the BWS ¹ drilled a tunnel into the dike system feeding the stream. Water was subsequently withdrawn via the tunnel, thereby reducing the stream flow to approximately 4 mgd. In 1974 and 1976 the BWS increased the amount of withdrawable water by constructing inclined wells and pumping water from the dike system. When the wells were operative the flow of the Waihee stream was reduced to a summer average of 2.3 mgd in 1975 and 2.03 mgd in 1976.

The plaintiffs utilize the waters of the Waihee stream to irrigate their crops. Their method of irrigation involves a diversion of the waters from the stream to flood and flow through their taro ² patches or lois, which approximates the traditional means of taro cultivation. ³ Until 1975 the stream's flow was sufficient to satisfy their needs. However, in the summer of 1975, one of the farmers sustained crop losses from a fungal growth known as pythium ⁴ that causes rot in the root or corm of the taro plants. In subsequent years all the plaintiffs save one suffered losses attributable to pyhthium. Plaintiffs believed, and the trial court subsequently agreed, that the proliferation of pythium was related to the diminution of the flow of the Waihee stream, as the spread of the fungus can be retarded or halted by a flow of cool fresh water through the taro lois and such a flow was rendered impossible by the actions of the BWS. This suit was therefore initiated in 1976 to enjoin the BWS from diverting any of the stream's waters. ⁵

A.

The plaintiffs' claims to the waters of the Waihee stream stem from their status as landowners or lessees of riparian lands and from the fact that much of their lands were devoted to the cultivation of taro at the time of the Great Mahele, when the lands were granted in fee to their occupants. They assert they are thus entitled to 1) riparian rights to the natural flow of the Waihee stream, and 2) appurtenant rights to water required in the cultivation of taro on all lands that were being utilized for such purpose at the time of the Mahele.

The BWS counters by claiming it purchased virtually all of the rights now being asserted by plaintiffs. This claim, which also has its genesis in the Great Mahele, may be summarized as follows:

(1) In 1848 the system under which lands were held in the Kingdom of Hawaii was converted from one where title to all land was held by the King in trust for the people to one where fee simple ownership was recognized. The bulk of the ahupuaa of Waihee was set aside by the Mahele as crown lands, i.e., as part of the King's private property, but each of these grants was made "subject ... to the rights of tenants."

(2) In 1855 most of the ahupuaa was conveyed to Benjamin Parker. Subsequently, Bishop Trust Company, as trustee for Kahaluu Land Trust, acquired title to Parker's interests in the ahupuaa. This covered most of the property currently owned or leased by the plaintiffs in Waihee.

(3) In 1950, Bishop Trust transferred by deed "all the right, title and interest of the Grantor to water having its source upon or flowing under or over the land [held by Bishop Trust] ... and all easements or rights in the nature of easements to the continuous or interrupted flow of water, ditches and auwais on said land" to the Koolau Company. The deed also transferred to the Koolau Company certain watershed land. At the same time, Bishop Trust transferred its land in Waihee, subject to the above-mentioned grant of water rights, to the Kahaluu Company.

(4)...