Territory Hawai`i v. Gay

• Decision Date: 28 April 1930
• Docket Number: No. 1921.,1921.
• Citation: 31 Haw. 376
• Parties: TERRITORY OF HAWAII, BY C. T. BAILEY, COMMISSIONER OF PUBLIC LANDS, v. FRANCIS GAY, ET AL.
• Court: Hawaii Supreme Court

31 Haw. 376

TERRITORY OF HAWAII, BY C. T. BAILEY, COMMISSIONER OF PUBLIC LANDS,

v.FRANCIS GAY, ET AL.

No. 1921.

Supreme Court of the Territory of Hawai‘i.

Argued March 6, 1930.

Decided April 28, 1930.

APPEAL FROM CIRCUIT JUDGE FIRST CIRCUIT. HON. A. M. CRISTY, JUDGE.

Syllabus by the Court

Ilis kupono were independent of the ahupuaa within which they were situated.

The normal surplus water (as distinguished from the freshet surplus water) of an independent ili, meaning thereby water that is not required to satisfy ancient appurtenant rights and prescriptive rights, is the property of the konohiki of the ili, to do with as he pleases, even though if left unrestrained by man it would flow through a lower ahupuaa before reaching the sea.

The common–law doctrine of riparian rights is not in force in Hawaii with reference to the surplus waters of the normal flow of a stream,––using the term “surplus waters” in the same sense as in the next preceding paragraph.

In the water law of Hawaii the term “ancient appurtenant rights” includes the right to drinking water and to water for other domestic purposes.

Marguerite K. Ashford ( Thompson, Beebe & Winn with her on the briefs) for the Territory.

A. G. M. Robertson ( Robertson & Castle on the briefs) for Gay & Robinson.

[31 Haw. 404]

R. B. Anderson ( Prosser, Anderson & Marx on the brief) for the Hawaiian Sugar Co.

PERRY, C. J., BANKS AND PARSONS, JJ.

OPINION OF PERRY, C. J.

This is a suit in equity instituted by the Territory of Hawaii for the purpose of restraining a diversion by the respondents of certain waters from the valley of Koula by means of dams, ditches and pipelines to the arid lands of Makaweli, on the Island of Kauai. The Territory as owner or as representative of the United States of America is in control of the ahupuaa of Hanapepe whose boundaries were settled and determined by a commissioner of boundaries for that island. Within the outer boundaries of this ahupuaa are two valleys, called respectively Koula and Manuahi, and a third land called Kano. Koula and Manuahi are the property of the respondents Aubrey Robinson and Alice Robinson and Kano is the property of Aubrey Robinson. All three lands are under the control of the respondents who compose the partnership of Gay & Robinson (the respondent Francis Gay has died since the commencement of this suit). The respondent, the Hawaiian Sugar Company, Limited, is the lessee under Gay & Robinson of certain lands at Makaweli used for the purposes of a sugar cane plantation and of certain water rights, and as such lessee has participated in the diversion complained of.

The trial judge held that the respondents Gay & Robinson are the owners of the waters which are being diverted and entered a decree dismissing the bill. From that decree the case comes by appeal to this court.

The Island of Kauai is composed of a central mountain mass called Waialeale, with valleys or gulches radiating in all directions and reaching to the sea. On the summit of this central dome, 5240 feet in height at its highest point, is a large area of swampy land called the Alakahi swamp. The rainfall of Waialeale was thought until quite recently to be the heaviest on this earth, but another place, in India, has now been found with a heavier rainfall. However, from four hundred to five hundred inches of rain per annum fall on the Alakahi swamp. Reaching up into this central dome and swamp are the two lands of Koula and Manuahi, both of which share in the very heavy rainfall just referred to. Together these two lands form the whole of the mauka or upper part of the ahupuaa of Hanapepe. Their streams, if unrestrained by man, would flow through the valley and ahupuaa of Hanapepe to the ocean and, as it is, all of their waters in so far as undiverted by the respondents flow through the valley of Hanapepe to the sea except as used, in comparatively small quantities, upon kuleanas and other lower lands entitled thereto in Hanapepe. The land of Kano likewise contributes some waters to the Hanapepe stream, but only in very slight quantities,––in “negligible” quantities, one of the witnesses said.

The land of Koula has an area of 5520 acres. Judging from a map in evidence, the area of the land of Manuahi is about one–half of that of Koula, and the area of Kano would seem to be about one–fourth of that of Manuahi. These three lands together comprise by far the greater part of the ahupuaa of Hanapepe.

In Territory v. Gay, 26 Haw. 382, in which the parties were the same as those in the case at bar, it was found and declared by this court that Koula was an ili and that though situated within the ahupuaa of Hanapepe it was never a part of that ahupuaa. At the trial in the case at bar it was expressly stipulated by the parties and admitted by the Territory that the lands of Manuahi and Koula “are independent ilis, otherwise known as ilis kupono” and that anciently each had “its separate konohiki.” At the argument in this court, however, it was claimed on behalf of the Territory that an “ili kupono” is “of a lesser degree” in dignity than an ahupuaa. Counsel who advanced this claim admitted that that characterization of an ili was not to be found in the books and cited in support of it a statement by the late Mr. C. J. Lyons, an official of the survey department of the government of Hawaii, that “except in rare cases the ilis owed some small tribute (the traditional peppercorn) to the ahupuaa.” The late W. D. Alexander, head of the survey department and the superior in office of Mr. Lyons, said in his “Brief History of Land Titles” that the ili kupono “generally did not pay tribute to its chief” and the late Sanford B. Dole, who held the offices of governor of Hawaii and of associate justice of the supreme court, in his report as governor in 1901 said: “Notwithstanding the allotment of the ahupuaa to the chief, the sovereign retained the right to carve out an ili ku” (an abbreviated form of expression for ili kupono) “which paid no tribute to the chief, but made its returns to the sovereign direct.” More important still, the late Chief Justice Judd, who occupied that position for eighteen years, speaking fifty–three years ago (March, 1877,) in the case of Harris v. Carter, 6 Haw. 195, 206, 207, said: “I think that erroneous opinions have sometimes prevailed as to what are ‘ahupuaas' and ‘ilis.’ An ahupuaa has been called the ‘unit’ of land in this country; but it is by no means a measure of area, for ahupuaas vary exceedingly as to size. Many ahupuaas are divided into ilis; other ahupuaas have no ilis in them, as for instance, Kualoa and Waimanalo on this island. There are two kinds of ilis. One, the ili of the ahupuaa, a mere subdivision of the ahupuaa for the convenience of the chief holding the ahupuaa, as for instance, the ilis of Lihue and Waimanalo, in the ahupuaa of Honouliuli. The konohikis of such iliainas as these brought their revenues to the chief holding the ahupuaa. The other class were the ‘ili kupono’ (shortened into ‘ili ku’). These were independent of the ahupuaa, nor did they pay general tribute to it. In some cases these iliainas are very numerous, absorbing the larger part of the ahupuaas. A well–known case is the ahupuaa of ‘Waimea,’ Hawaii, of which the ilis of ‘Waikoloa’ and ‘Puukapu’ form about nine–tenths. * * * The ilis in question in this suit are not distinctly named ‘ili kuponos,’ this name not being preserved in the mahele; but all the ilis that were recognized and treated in the mahele and awarded by the commission were undoubtedly ‘ili kuponos.’ This name was dropped, for, when separated from the ahupuaa by mahele and subsequent award, its necessity was gone. All other ilis went with the ahupuaa in which they were situated, and were not further distinguished. The inquiry just gone into is pertinent to the case before us, as showing that the ‘iliaina’ was a well–known division of land with its own identity, and I cannot see how the mahele or the award of the ahupuaa of Kailua carried with it an ili having its own distinct identity––unless clearly expressed or manifestly intended, and it is not so expressed, for the mahele calls for the ‘ahupuaa’ only.”

Without some further and distinct authority than that cited by the appellant, we would not be justified in disturbing the long accepted view that an ili kupono, in the system of land tenures prevailing prior to the great mahele of 1845, was wholly independent of the ahupuaa within whose outer boundaries it was situated and that it owed no tribute to the konohiki of the ahupuaa and that its konohiki was subservient directly to the king. The statement by Chief Justice Judd admits of no exception or qualification as to the independence of the ili kupono. The express stipulation of the Territory at the trial that Koula and Manuahi were ilis kupono, coinciding with and reinforced by the finding and ruling of this court in Territory v. Gay, 26 Haw. 382, 388, an ejectment case in which the title to Koula was in issue, carries with it the view and the conclusion that prior to the mahele those two lands were wholly independent of the ahupuaa.

The consideration of this point becomes necessary because of the two alternative claims of the Territory in asserting title to the waters which are being diverted by the respondents. Those claims are, first, that the ilis of Koula and Manuahi were “of lesser degree” and inferior to and a part of the ahupuaa of Hanapepe and that, therefore, the Territory, as the owner of the ahupuaa, was the owner of all of the surplus waters of the Hanapepe stream; and, second, that if it should be held that the ilis of Koula and Manuahi were not of less degree and dignity than the ahupuaa of Hanapepe they were at least not superior in degree or kind to the ahupuaa of Hanapepe or to any other ahupuaa and that, therefore, under the ruling in Carter v. Territory, 24 Haw. 47, 70, 71, the surplus waters should be apportioned between the ilis on the...