I concur in the foregoing opinion, both in its reasoning and in its conclusion in so far as the same refers to respondents' rights in the normal surplus waters of Koula stream; and I concur in the affirmance of the decree appealed from which denies the injunction sought and dismisses the bill. I do not, however, concur in that part of the opinion which disapproves of Carter v. Territory, 24 Haw. 47, 71, to the extent that the latter case applies the common-law rule of riparian rights to surplus flood and freshet waters — and this for the sole reason that such disapproval is not necessary to a determination of the issues before us. In defining the issues before him the circuit judge in his decision said in part: "Moreover, the evidence clearly showed that the diversion maintained by respondents did not attempt to impound the entire water supply even of Koula valley. * * * The evidence clearly showed that even in dry weather water seeped into or drained into or otherwise got into the bed of Koula stream below the diversion dams and above the southerly boundary of respondents' property and into the Hanapepe river below respondents' ilis. Hence no question arises in this proceeding as to the appropriate diversion, if any, of abnormal or freshet surpluses. The only question which this court will attempt to decide is the right of the respondents to continue to maintain the diversion of a part or all of the normal daily surplus of waters arising above the junction of the Manuahi and Koula streams north of the southerly boundaries of the ilis of Manuahi and Koula." In his finding of facts the trial judge said among other things: "There is no evidence to show that the respondents *Page 405 have attempted to appropriate the storm or freshet waters." This appears to be the understanding of the respondents themselves. In their first brief (p. 22) the respondents Gay Robinson said: "We are not dealing with storm or freshet waters in the case at bar." The respondent, the Hawaiian Sugar Company, Limited, in its brief (p. 16) said: "The size of the dam further illustrates that the only waters which are diverted are the normal surplus waters, the dam being insufficient to retain any part of freshet or storm waters. This fact is further substantiated by the testimony of Francis Kanahele." Quoting further from the last named brief (p. 23): "We submit that the konohiki of the ili has the title to the surplus waters in question and further that the doctrine of theCarter v. Territory case, in so far as it applies to storm or freshet water, has no application here."
The trial judge in conclusion held: "That the respondents at bar are legally entitled, by reason of their fee simple ownership of the sources of the water supply arising in the ilis of Manuahi and Koula to divert and use as their own, all the normal daily surplus of waters of the Koula stream, so long as this diversion under that claim of ownership does not interfere with the established prescriptive rights of lower land owners in Hanapepe valley for domestic purposes and for wet agricultural use." The case below, therefore, presented no issue upon the question of rights to surplus storm and freshet waters; the judge expressly refused to consider that subject and his decision, as above set forth, dealt exclusively with the normal daily surplus.
In Carter v. Territory, supra, however, the question above referred to was directly involved and was decided by this court. The claims of the petitioner are set forth in the opinion on pages 49 and 50 of the above cited report. Quoting from the top of page 50: "The right to the *Page 406 surplus freshet water of the stream as it flows into and upon the ahupuaa of Ouli * * * was claimed." This claim was disposed of as follows (quoting from p. 70): "There remains to be considered only the claim of the petitioner to the right to storm or freshet waters of the Waikoloa stream on the ahupuaa of Ouli. Where a stream flows through a single ahupuaa it has been decided that as between the ahupuaa and kuleanas therein, or portions of the ahupuaa conveyed without rights to surplus water, the surplus waters of the stream belong to the ahupuaa. * * * The question here presented, as to the rights in the surplus waters of a stream which flows from one ahupuaa into another, is one of first impression. We think it must be settled according to the principles applicable to riparian rights at common law. That is to say, each ahupuaa is entitled to a reasonable use of such water, first, for domestic use upon the upper ahupuaa, then for the like use upon the lower ahupuaa, and, lastly, for artificial purposes upon each ahupuaa, the upper having the right to use the surplus flow without diminishing it to such an extent as to deprive the lower of its just proportion under existing circumstances." That what was said in the passage last above quoted, in applying the common-law rule of riparian rights to surplus water, referred to surplus storm and freshet waters only is shown by its introduction above set forth, by the court's above-quoted recital of the claims of the petitioner and by the concluding statement on pages 70 and 71 of the report, which, omitting parts hereto inapplicable, is as follows: "We hold, therefore, that subject to the vested appurtenant rights of the petitioner and the individual respondents (who were not defaulted) to water for domestic use upon their respective lands, and subject further to the right of the petitioner to water for artificial purposes as below stated, the Territory is the owner of all the waters of the Waikoloa *Page 407 stream to the extent of the ordinary or normal flow; * * * that the petitioner is entitled to the surplus normal flow, if any, after all domestic requirements are satisfied, for artificial purposes to the extent of the quantity to which the lands owned by him were entitled for such purposes by custom at the time the lands first passed into private ownership, whatever that quantity was; * * * and that the surplus flood and freshet waters of the Waikoloa stream are subject to the reasonable use of both the government and the petitioner as owners respectively of the ahupuaas of Waimea and Ouli, for the purposes and in the manner above stated." (The italics are mine.) Thus a clear distinction is made between the rule applicable to the surplus normal flow and that applicable to the surplus flood and freshet waters.
This distinction is still further emphasized in the decree which treats in separate paragraphs, among other things, (a) of the normal flow, (b) of the surplus normal flow and (c) of the surplus flood and freshet waters. Paragraph I of the decree holds that, subject to the rights set forth in the above-quoted decision, "the Territory of Hawaii is the owner of all the waters of the Waikoloa stream * * * to the extent of the ordinary or normal flow;" paragraph VI decrees, among others things, "that the lands named in said schedule `A' aforesaid of the said petition are respectively entitled to the surplus normal flow waters, if any, of the said Waikoloa stream," after requirements elsewhere decreed are satisfied; and paragraph IX decrees "that the surplus flood and freshet waters (not the ordinary or normal flow waters) of the Waikoloa stream are subject to the reasonable use of both the Territory of Hawaii and the said petitioner as owners respectively of the ahupuaas of Waimea * * * and Ouli," in conformity with the rule of riparian rights set forth as hereinabove quoted from the decision. From the *Page 408 foregoing it is apparent that this court in the Carter case (a) did not apply the riparian rule to surplus normal flow and (b) did apply that rule to surplus storm and freshet waters.
In view of the fact that the right to surplus storm and freshet waters was directly in issue in the Carter case and of the fact that such right is not directly in issue in the case at bar, without expressing any view as to how the question should be ultimately determined I cannot concur in that portion of the opinion of the chief justice in the present case which, if concurred in, would overrule the Carter case in the particulars above set forth.