Territory of Hawaii v. Gay

• Decision Date: 29 August 1931
• Docket Number: No. 6307.,6307.
• Citation: 52 F.2d 356
• Parties: TERRITORY OF HAWAII v. GAY et al.
• Court: U.S. Court of Appeals — Ninth Circuit

52 F.2d 356 (1931)

TERRITORY OF HAWAII v. GAY et al.^*

No. 6307.

Circuit Court of Appeals, Ninth Circuit.

August 29, 1931.

Thompson, Beebe & Winn, Frank E. Thompson, Eugene H. Beebe, Montgomery E. Winn, and M. K. Ashford, all of Honolulu, Hawaii, for appellant.

Robertson & Castle, A. G. M. Robertson, Arthur Withington, and J. G. Anthony, all of Honolulu, Hawaii, for appellees Robinson.

Prosser, Anderson, Marx & Wrenn, Mason F. Prosser, Robbins B. Anderson, Benjamin L. Marx, and Heaton L. Wrenn, all of Honolulu, Hawaii, for appellee Hawaiian Sugar Co.

Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.

WILBUR, Circuit Judge.

This action was brought by the territory of Hawaii to enjoin the further diversion of the Koula stream and the Manuahi stream, tributaries of the Hanapepe river, in the district of Kona, island and county of Kauai, territory of Hawaii. These waters have been diverted for about forty years (since 1891) for the purpose of irrigating a sugar plantation belonging to the Hawaiian Sugar Company, Limited, a lessee of appellees Gay & Robinson. The trial court having denied the appellant's prayer for an injunction, an appeal was taken to the Supreme Court of the territory, which affirmed the decree. From that decision this appeal was taken by the territory of Hawaii. Before a further statement of the facts we will consider the contention of the appellees that the appeal to this court was not properly taken and that this court is therefore without jurisdiction of the appeal, and consequently that their motion to dismiss should be granted.

A petition for an appeal was prosecuted in due time to the Supreme Court of the territory, and was allowed by an Associate Justice of that court. Later the Chief Justice allowed extensions of time to perfect the appeal, in pursuance of stipulations by the parties therefor. These orders were made by the Chief Justice during the term of court, but after the thirty-day period for a petition for appeal. The contention of the appellees may be summarized as follows: A writ of error must be allowed by the Chief Justice of the territorial Supreme Court. Organic Act of Hawaii, 31 Stat. 141, 158, c. 339, § 86; 36 Stat. 1087, 1158, c. 231, § 246, amended 38 Stat. 804, § 2; section 999, Rev. St., now 28 USCA § 868; Bartemeyer v. Iowa, 14 Wall. 26, 20 L. Ed. 792; Havnor v. New York, 170 U. S. 408, 18 S. Ct. 631, 42 L. Ed. 1087. Although the writ of error was abolished by Act of January 31, 1928 (28 USCA § 861a), and although it was not applicable to cases in equity at the time it was abolished, it has been nevertheless, extended to cases in equity by the requirement of 28 USCA § 861b, 45 Stat. 466, approved April 26, 1928. Consequently it is urged that, as the requirement that the Chief Justice of the Supreme Court of the territory was the only member of the court authorized to issue a writ of error, he now must be the only one authorized to allow an appeal. It is sufficient for the purposes of this case to point out that the requirement of the Act approved April 26, 1928 (section 861b, 28 USCA) applies only to appeals which are substituted for the abolished writs of error; that is, to actions at law. This is sufficiently clear from the terms of the statute, and it already has been so construed. Ross et al. v. White et al. (C. C. A.) 32 F. (2d) 750. We conclude that, the petition for appeal having been filed in time and having been treated as effective, both by the parties and by the Chief Justice, during the term in which the decision was rendered, the appellees having appeared hereon, the motion to dismiss should be denied.

We turn to a further statement of the facts on the merits. Preliminarily we shall avoid as far as may be the use of terms peculiar to the Hawaiian law and custom and state the facts in more familiar, if less apt and accurate, terms. The watershed of the Hanapepe river is about fifteen miles long and from two to five miles in width. The highest point of the division of the watershed is about one mile. At the upper or north portion the rainfall is phenomenal — between 400 and 500 inches per annum. To the sea the rainfall is comparatively negligible. The Koula stream joins the Manuahi stream about halfway to the sea to form the Hanapepe river. The watershed of the Koula stream, known as the ili of Koula, is owned in fee simple by the appellees Gay & Robinson; the watershed of the Manuahi, known as the ili of Manuahi, is also owned in fee simple by the same appellees. Immediately below these lands are the lands of the territory of Hawaii traversed by and riparian to the Hanapepe river. It is desired by the territory to secure for its lower riparian lands the water now diverted by the appellees' dams to irrigate lands in another watershed. The territory claims all the water naturally flowing in the Hanapepe river, by virtue of the rights of the King of Hawaii, ceded to the United States, and by it conferred in trust upon the territory. Such rights are therefore based upon the customs and governmental system of the kingdom from its remotest history. If it should be held that this claim to all the water of the river is untenable, then the territory claims that as a riparian owner it is, under the principles of the common law adopted by the Hawaiian Legislature, subject to Hawaiian laws, judicial precedents, or Hawaiian usage (section 1, Rev. Laws of Hawaii 1925), entitled to a reasonable use of the stream along with the upper and adjacent riparian owners. The appellees agree with the contention of the territory that by Hawaiian custom the water in a flowing stream belongs to the owner of the land upon which it rises or originates. Upon this theory the appellees claim that, as the water they divert arises upon or originates on or in the ili of Koula or the ili of Manuahi, they have the right to use the water as they see fit, regardless of the claims of those below on the stream, with certain exceptions of appurtenant and prescriptive claims not involved in this litigation. On the other hand, the territory claims that, as original owner of the Hanapepe river, it owns the entire flow of the stream, and that the title to the water remains in the territory notwithstanding the grant in fee simple of the upper riparian lands to appellees. The difficulty which gives rise to the conflict between the successors of the King on the one hand and his grantees on the other hand arises from the fact that, when the King in 1845 decided to confirm all the land holding privileges of his subjects and give to the grants then made the effect of a fee-simple title, the Commission appointed in 1846 to determine these rights in grants similar to those now owned by appellees did not mention or apportion water rights, so that we must turn to the ancient customs of the kingdom to ascertain the effect of the original allotment of the lands of the King. Be it here stated that it is conceded that until the year 1845, all the land and water in the kingdom belonged, in theory at least, to the King. The King allotted certain areas to his subordinates, and these in time allotted or apportioned parts thereof to subchiefs or agents. On the other hand, the King was free to make allotments within the larger allotments already assigned. The rights of the suballottee varied according to whether the suballotment was made by the King, and thus in derogation of the right theretofore allotted to the first allottee, or by the chief of the first and larger allotment.

In the case at bar it is conceded that the lands of the appellees are suballotments made by the King within...