As I understand the opinion of the chief justice, he thinks that the owner of an independent ili upon which water has its source and which flows by gravity through a natural channel onto the land of another person, such person, unless he has appurtenant or prescriptive rights, has no rights whatever in the water, whether normal or storm surplus, which the owner of the ili must respect. In other words, the substance of his opinion is that the owner of such an ili, except as to those who have appurtenant or prescriptive rights, is the absolute owner of the water, of whatever character, to do with as he pleases regardless of the necessities of others through whose lands the water, if undiverted, would flow.
As I understand the opinion of Mr. Justice Parsons, he agrees with the chief justice, so far as normal surplus water is concerned, but he thinks storm surplus water is not involved in the instant case and therefore reserves his opinion on that subject.
To restate in somewhat different words my understanding of the two opinions, it is that the chief justice thinks there is no difference, so far as the ownership of *Page 409 water is concerned, between normal surplus and storm surplus and that Carter v. Territory, to the extent that it decides that storm surplus should be governed by the common-law riparian doctrine, should be overruled, while Mr. Justice Parsons thinks that storm surplus, not being definitely involved in the present case, the rule laid down in the Carter case should not at this time be disturbed.
I fully agree with the chief justice that the ownership of all surplus water, whether it be normal or storm, should be governed by the same rule. Our disagreement arises out of what that rule should be. He thinks that the rule of the absolute ownership of such water (subject to prescriptive and appurtenant rights) in the owner of an independent ili or ahupuaa was established by the decisions of the supreme court of Hawaii long prior to theCarter case and should be adhered to, the Carter case notwithstanding, while I think the rule announced in the Carter case is not inconsistent with preceding decisions and should be applied to normal as well as to storm surplus. This rule is so inherently just in its regulation of the use of an element that is vital to the well-being of mankind and is so consonant with natural rights and human necessities that I think it should be finally adopted as the law of this Territory.
Under the rule which the chief justice thinks should be adhered to, the owner of an independent ili or the owner of an ahupuaa could divert from its natural channel all the water that might originate on his land and utterly waste and squander it and the owner of lands lying below, through which the water would naturally flow, would (unless he had prescriptive or appurtenant rights) have no legal right to complain, although he might be in dire need of a sufficient quantity to irrigate his crops. I cannot agree with a pronouncement of the law under which it would be possible to accomplish such a disaster. It *Page 410 could not be accomplished under the riparian rule which received the sanction of this court in the Carter case either by wasting the water or by diverting it to distant lands which have no riparian relation to the stream. Under the common law the rights of riparian proprietors are not absolute and exclusive but are correlative. "All the riparian owners through or by the side of whose land a stream naturally flows may enjoy the privilege of using it. Hence it follows that rights which are enjoyed by an indefinite number of persons cannot be absolute as to any particular right but must be relative or correlative as to all the owners on the stream." 1 Kinney on Irrigation and Water Rights, Sec. 455, p. 770.
In City Mill Co. v. Honolulu Sewer and Water Com., 30 Haw. 912, this court, in a very able opinion written by the present chief justice, decided that, as to subterranean waters lying in an artesian basin, the rule of correlative rights should be applied. In refusing to adopt the cujus est solum doctrine of the common law, the court said (pp. 923-925): "The so-called `common-law doctrine' seems to us to be unsound. It purports to be based upon the ancient maxim, cujus est solum, ejus est usquead coelum et ad inferos,' or `he who owns the land is the owner of it, even to the heavens above and to the lowest depths below.' From that beginning it proceeds upon the theory that the water found in the land is a part of the land. When applied, however, to an artesian basin and to artesian wells, this view clearly runs counter to the facts. It may, or it may not, be applicable to waters merely oozing in or seeping through soil, but it certainly is not applicable to artesian waters which are known to flow freely and rapidly through broken rock or other materials permitting of easy passage. No artesian basin is ever found, complete in itself, under and within the boundaries of any one person's city lot. They exist usually, and the particular *Page 411 basin under consideration in the case at bar exists, subjacent to large areas of land, — hundreds, and perhaps thousands, of acres. It cannot be said with any regard for the truth that an owner of a city lot or other small portion of the land over an artesian basin who, with a powerful pump takes from his artesian well all of the water that can thus be obtained therefrom is thus drawing only water which is a part of his own soil or land. The water of the whole basin will unavoidably flow towards its lowest level, that is, where the greatest suction is being applied. To permit an owner of a comparatively small portion of the land to draw water therefrom without limit would be to permit him to take water which clearly was subjacent in a large degree to the property of others. A much closer approach to adherence to the ancient maxim above quoted, that he who owns a piece of land owns it to the center of the earth, is to regard all of the owners of the land under which an artesian basin lies as owners of the waters of that basin. If a person or other entity should purchase all of a large tract of land under which an artesian basin exists, it would be easy to take the view, we think, that that owner of the land would be the sole owner of the water underneath it. If two persons or other entities should purchase each a half of that tract it would seem to be equally fair and rational to regard the two owners of the land as owners in equal shares of all of the waters. Why not, upon the same reasoning, regard all the owners of all of the many portions of such an area as co-owners of the waters in the basin? We think that they should be so regarded and that this is the view that most nearly effectuates justice and coincides with early concepts of the law as to the ownership of the soil and all within it. Their rights are correlative. Each should so exercise his right as not to deprive others of their rights in whole or in part. In times of plenty greater freedom *Page 412 of use probably can be permitted and ordinarily would be permitted without question. In times of greater scarcity or of threatened scarcity or deterioration in quality of the waters, all would be required under this view to so conduct themselves in their use of the water as not to take more than their reasonable share."
I can perceive no just reason for applying the correlative rights rule, which is epitomized in the maxim sic utere tuo utalienum non laedas, to subterranean waters upon which all superjacent lands are dependent for necessary moisture and not applying it to surface waters, that flow through natural channels, and to which lower adjacent lands must look for necessary moisture. It cannot be said with reason or justice that so long as the waters remain imprisoned underneath the surface of an independent ili or ahupuaa the owner of the land is not their absolute owner but has only a correlative right to their use, but that if perchance they break away from their imprisonment and find their way to the surface and there manifest themselves in springs or ponds or lakes, from which they flow through natural channels to lower levels, the owner of the ili or ahupuaa upon which they first appear becomes their absolute owner, to do with them as he pleases even to the utter ruin of others who are dependent on them. (Miller v. Bay Cities Water Co., 157 Cal. 256. )
The ruling in the Carter case that "where a stream flows through one ahupuaa into another each ahupuaa is entitled to a reasonable use of the surplus waters of the stream according to the principles applicable to riparian rights at common law" is, I think, a sound and wholesome doctrine.
Nor do I believe it to be incompatible with the law as it was declared in the earlier cases which are cited in the opinion written by the chief justice. Without reviewing *Page 413 in detail those cases, it seems to me that all of them dealt with situations quite different from the situation that was before the court in the Carter case and that is before the court in the instant case. Take, for instance, what may be termed the WailukuRiver cases. Each one of them dealt with conflicting rights in the waters of the Wailuku River, which rises and flows to the sea within the ahupuaa of Wailuku. The quarrels that arose, therefore, were between the owners of different portions of the same ahupuaa and related to their apportional interests in the water. They were not, as in the Carter case, disputes between the owners of adjacent ahupuaas through whose lands the water ran in a natural channel to the sea.
In H.C. S. Co. v. Wailuku Sug. Co., 15 Haw. 675, the court said (p. 680): "The waters in controversy may be divided into three classes: (1) those of the ordinary flow of the Wailuku stream; (2) those of ordinary (small) freshets, which come about once in ten days; and (3) storm waters (large freshets). These again may be divided into two classes: (a) surplus water, meaning thereby, as defined in 14 Haw. 61, the water, whether storm water or not, that is not covered by prescriptive rights and excluding also riparian rights, if there are any, and (b) water which is covered by prescriptive rights." The meaning of this language, so far as it refers to riparian rights, is made clear by the first clause of the syllabi, wherein it is said: "The surplus water of an ahupuaa, meaning thereby the water, whether storm water or not, that is not covered by prescriptive or riparian rights, is the property of the konohiki, to do with as he pleases, and is not appurtenant to any particular portion of the ahupuaa." I think it may be reasonably inferred from the foregoing language that the court intended to reserve for future discussion the very question that arose later in the *Page 414 Carter case, otherwise the reference to "riparian rights" would appear to be without significance.
Davis v. Afong, 5 Haw. 216, also cited in the opinion written by the chief justice, was a water controversy between a number of owners of taro patches and the defendant, a Chinese, who was interrupting by drains and a pump the flow of water in certain ancient ditches which ran from springs located on the defendant's land upon lands which were owned by the plaintiffs and used for the cultivation of taro. In speaking of this case the court said, in City Mill Co. v. Honolulu Sewer and WaterCom., supra (p. 937): "There was no similarity in the facts of that case to those of the case at bar. What the court decided in that case was, as stated by it in its own syllabus, that `by the rules of ancient Hawaiian agriculture the taro patches of the konohiki are entitled to water from springs on the land.'" This characterization is correct. That is all that was decided in theDavis case except that prescriptive rights can be acquired in a spring of water that flows in an artificial channel. There was no question of surplus waters involved. Of course prescriptive rights can be acquired in anything and where an artificial channel is constructed from a spring the only rights that could be acquired therein adverse to the owner of the land where the spring is located would be prescriptive rights or rights by adverse use. They could never exist under the riparian rule.
So far as springs that have no natural outlet and do not form watercourses are concerned, the common-law rule is that they are owned by the owner of the land on which they arise. (3 Farnham, Water and Water Rights, Sec. 948, pp. 2738-2739.)
The court in the Carter case, evidently realizing that the question before it was not involved in any preceding case and therefore had not been decided, said that it was *Page 415 one of first impression and should be determined according to the principles of the common law.
As I understand the opinion of the chief justice, one of the reasons given for thinking that the absolute ownership rule rather than the riparian rule should be applied in the instant case is that under the latter rule much of the water in question would be wasted because of the comparatively small area of Hanapepe lands to be irrigated, whereas under the former rule all of the water would be put to a beneficial use because of the larger area of the Makaweli lands. In other words, that because the benefits resulting to the Makaweli lands from using all the surplus water would be so much greater by comparison than the injury to the Hanapepe lands from not getting any of it the rule of absolute ownership should be applied.
Whatever may be said in favor of the economic reasons for applying the absolute ownership rule, as I view the law these reasons are legally insufficient. The true test of whether a rule should receive judicial sanction is not whether in its application it will benefit more people than it will injure but whether in its application it will deprive a single individual of a right to which he is entitled. Of course, if the riparian rule has never received sound judicial sanction in this Territory and the absolute ownership rule, even between the owners of adjoining ahupuaas, has been consistently applied, there are no riparian rights. I am not convinced, however, that this is the state of the law.
In Peck v. Bailey, 8 Haw. 658, the court said in its syllabus: "A riparian proprietor has a right, as an incident to his estate, to use the water for irrigation and domestic purposes, provided he does not materially diminish the supply of water or render useless its application by others; but his riparian rights are subject to the prescriptive *Page 416 rights of others." This is a succinct statement of the riparian rule and is clearly a recognition of it. The riparian rule was also recognized in the Carter case and, as I have already observed, seems to have been in the mind of the court in H.C. S. Co. v. Wailuku Sugar Co., supra. Furthermore, the waste of water suggested in the chief justice's opinion would, I believe, not follow even though the riparian rule should be applied in the instant case. If the diversion of the water to the Makaweli lands did not deprive the Hanapepe lands of water which they needed I am inclined to think that under the riparian rule the diversion would not be unlawful. If there was no injury to the Hanapepe lands by the diversion the proprietor of these lands would have no sufficient ground upon which to complain. In other words, if the Hanapepe lands received all the water they needed despite the diversion the diversion would be damnum absque injuria. InLonoaea v. Wailuku Sugar Co., 9 Haw. 651, the court said in its syllabus: "Water may be transferred from land to which it is an easement to land not entitled to it, providing no one is injured thereby." I believe this is the riparian rule. Speaking of the right to the use of waters, Kinney, in his work on Irrigation and Water Rights, says (Vol. 1, p. 842): "All the common law authorities concur that, when the amount abstracted perceptibly or materially diminishes the quantity of the stream, so that injury results to those below, such a use of it by a riparian owner is unreasonable, and an infringement on the rights of other riparian owners, for which the law furnishes redress. Neither does necessity make any difference. As was said by Black, J., in Wheatley v. Chrisman: `The necessities of one man's business can not be the standard of another's rights in a thing which belongs to both.'"
It is suggested in the chief justice's opinion that the application of the riparian rule to normal surplus water *Page 417 would endanger the entire Hawaiian water system. The Carter case, which applied the riparian rule to the storm surplus water that flows through one ahupuaa into another, was decided in 1917. Since the water system of the islands, so far as I know, has not been injuriously affected by the Carter decision it would seem that the application of the riparian rule to normal surplus water as well, which, so far as the law is concerned, is on the same footing as storm surplus, would likewise be innocuous.
It is, I trust, not impertinent to notice in this connection that the instant suit was not brought by an individual to whom selfish motives might be attributed, but by the government itself, which is the guardian of the interests of all its citizens and is supposed to act at all times in accordance with their welfare.
What, after mature reflection, I cannot sanction is a rule of law that gives to the owner of an ahupuaa or an independent ili upon which flowing water originates such complete dominion over the water that he may at his will use or misuse it in such a manner as will work irreparable injury and discomfort to others who, but for such arbitrary control, would in the very course of nature have their necessities supplied. It seems to me that the rights of adjoining ahupuaas to the water that flows by natural channel through both of them are correlative, and, I think, the support given this view by the Carter case should not be withdrawn.
For the foregoing reasons I most respectfully dissent from the conclusion reached by the court that the decree appealed from should be affirmed. *Page 418