Of direct interest to the discussion of water, are several laws (kānāwai) and descriptions of nā pono wai (water rights) which were handed down from antiquity, and as they came to be interpreted through the period of development of the historic Hawaiian economy.
The Polynesian (October 2, 1841)
Laws of the Hawaiian Islands - November 2, 1840.
15. Of the division of Water for irrigation.
…In all places which are watered by irrigation, those farms which have not formerly received a division of water, shall when this new regulation respecting lands is circulated, be supplied in accordance with this law, the design of which is to correct in full all those abuses which men have introduced. All those farms which were formerly denied a division of the water, shall receive their equal proportion. Those bounties which God has provided for the several places should be equally distributed, in order that there may be an equal distribution of happiness among all those who labor in those places. The allowance of water shall be in proportion to the amount of taxes paid by the several lands. For it is not the design of this law to withhold unjustly from one, in order to unjustly enrich another according to the old system which has been in vogue down to the present time. That the land agents and that lazy class of persons who live about us should be enriched to the impoverishment of the lower classes who with patience toil under their burdens and
in the heat of the sun is not in accordance with the designs of this laws. This law condemns the old system of the king, chiefs, land agents and tax officers. That merciless treatment of the common people must end. If the Governor thinks it proper to adopt a protective policy, let him protect all alike, and there shall be an equal division of protected articles, in order that every man may obtain the object of his desire according to the amount of his labor. Such is considered to be the proper course by this law, regulating the property of the kingdom; not in accordance with the former customs of the country which was for the chiefs and land agents to monopolize to themselves every source of profit.
When the Landlords have taken allodial titles to their lands the people on each of their lands shall not be deprived of the right to take firewood, aho cord, thatch, or ti leaf from the land on which they live, for their own private use, should they need them, but they shall not have a right to take such articles to sell for profit. They shall also inform the Landlord or his agent, and proceed with his consent. The people shall also have a right to drinking water, and running water, and the right of way. The springs of water, and running water, and roads shall be free to all should they need them, on all lands granted in fee simple. Provided, that this shall not be applicable to wells and water courses which individuals have made for their own use… [copied from original hand written “Enabling Act”9 – ; HSA, DLNR 2-4]
Ancient Hawaiian Water Rights
And Some Of The Customs Pertaining To Them
(Written for the Hawaiian Annual by Mrs. Emma Metcalf Nakuina,
All auwais (water courses), had a proper name, and was generally called after either the land, or the chief of the land that had furnished the most men, or had mainly been instrumental in the inception, planning and carrying out of the required work. All auwais tapping the main stream were done under the authority of a Konohiki1 of an Ahupuaa, Ili or Ku. In some instances the konohikis of two or three independent lands—i.e. lands not paying tribute to each other—united in the work of auwai making, in which case the konohiki controlling the most men was always the recognized head of the work.
Auwais, were generally dug from makai—seaward or below—upwards. The konohiki who had the supervision of the work having previously marked out where it would probably enter the stream, the diggers worked up to that point. The different ahupuaaʻs, iliʻs or kuʻs taking part in the work, furnished men according to the number of cultivators on each land. There was no limit though to the number of laborers any land might furnish, and it often happened that a small ku or ili was sometimes represented in the auwai making by more men than a much larger land or ahupuaa, and would thus become entitled to as much or more water, at the distribution of the water privileges, than were assigned larger tracts.
The dams were always a low loose wall of stones with a few clods here and there, high enough only to raise water sufficiently to flow into the auwai, which should enter it at almost a level. No auwai was permitted to take more water than continued to flow in the stream below the dam. It was generally less, for there were those living makai or below the same stream, and drawing water from it, whose rights had to be regarded.
Any dam made regardless of this well recognized rule, were levelled to the bed-rock by the water right holders below, and at any rebuilding, delegates from each dam below were required to be present to see that a due proportion of water was left in the stream.
The general distribution of the quantity of water each independent land was entitled to was in proportion to the quota of hands furnished by each land, but subject to regulations as to distance from source of supply. This quantity was regulated by the time each had in the water rotation or division, when such land would take all or almost all the water of the auwai for the period of time allotted to it. This time varied in the cases of mooaina, ku, ili or ahupuaa from a few hours, half a day, a day, night, or both, to two or three days. The divisions of the day were regulated by the sun, the night by the stars.
The konohiki of each independent land subdivided his water time among the holders of mooainas (now kuleanas) on his ahupuaa, ili or ku.
The konohiki of the land controlling the most water rights in a given auwai was invariably its luna. He controlled and gave the proportion of water to each mooaina or single holding of the common people cultivating on that land.
The quantity of water awarded to each mooaina was according to the amount of work expended on the auwai and mano (dam) by the occupant of that mooaina, or by his family, as has been already stated.
Thus, a strong middle-aged man having three or four grown up sons living on the land, and sharing in whatever konohiki work was undertaken, would naturally be entitled to more water than the one who had only his own personal labor to depend on in any work which was for the common good. The enterprise and industry of an individual holder, while having an effect on the quantity of water he was entitled to, was subject to certain rights to be claimed. For instance, a strong able-bodied man who had not only worked himself at the opening of the auwai but had also induced others to help as his quota to the konohiki work, but had neglected to claim or utilize the amount of water he was entitled to, using only enough to irrigate the koele, or konohiki patch in his holding and one or [t]wo others for his own use, would, after a while be restricted to the right only of such quantity of water as would irrigate those lois which it had become customary for him to cultivate.
In ancient times the holders of a water right were required whenever it became their turn in the water rotation or division to go up with the luna wai to the waterhead or dam to see that it was in proper condition; follow down the auwai from there, removing all obstructions which may have fallen in or had been carried down by the water during the night from the kahawai or mountain stream; shut off all branch auwais or runlets from the main auwai, except those conducting water to lois entitled to water at the same time, the luna wai—who should be with him during all this time—making the necessary division by means of a clod, stone or both; the water holder continuing to follow the water until it entered his lois and the koele in his charge.
An ili or ku may have one or two days and nights to itself, which time is subdivided among itʻs own mooainas, and is the time, or portion, in the water rotation that was held by the different kuleanas at the time of the Land Commission. Instances occurred where kuleana owners, by some means, obtained more water than was their due under the konohiki, but to hold good, it must have been for some service or recognized benefit to all the shareholders.
The konohiki rights in the division of water pertaining respectively to ahupuaa, ili or ku remain the same, whether the land was obtained directly from the chiefs, or from the Government as Grants. The old konohiki water right went with the land unless the owner had previously formally relinquished, transferred, divided, or neglected it for a period of over twenty years.
Bordering on the upper portions of most auwais are small lois limited in size and number, generally on a hillside, or on the borders of a gulch. These lois are generally awarded kulu or drops; that is, they are entitled to continual driblets of water, and no one having a water share may turn the water entirely away from them unless, in times of scarcity, it should be seen that these lois or loi were full to overflowing.
Lois entitled to kulu water have no time set apart in the regular rotation. Holders of kulu lois were subject to all the auwai duties It was a strictly enforced custom, that should any water right holder neglect to go, or furnish a substitute at the periodical auwai cleanings, repairs of dam, etc., water would be withheld from the land of the absentee until such time as he should see fit to resume work for the benefit of what might be termed the shareholders of that auwai. Independence in the matter of performing, or neglecting the water duties was very rarely indulged in by the ancient Hawaiians, as the consequences were apt to be disagreeable, for, by the time he was ready to resume them, it would perhaps happen that the landlordʻs attention had been directed to the neglected condition of his mooaina, or the Koele under his charge, and some fine morning he might receive a peremptory order to vacate the holding and thus be deprived of both land and home, and become a kuewa, (an outcast) a condition very much dreaded by the Hawaiian agriculturist, who generally inherited his holding from ancestors who had lived on the land in successive generations, paying tribute of service and produce to successive konohikis.
It sometimes occurred that a land originally entitled only to a small portion of water, but afterwards held or presided over by an industrious, energetic man, whose popularity attracted many to live under him, would be accorded an increased supply in consequence of his promptly furnishing as many or more hands than some land entitled to more water than his. After this had continued some time, the water-luna would recognize the justice of an increased supply for his land, and would either
take a portion of water from any land failing in its due quota of hands, or as was more frequently done, simply adding a day, night, or both to the rotation; letting his land have the added time.
Any one in the olden times caught breaking a dam built in accordance with the Hawaiianʻs idea of justice and equity, would be slain by the share holders of that dam, and his body put in the breach he had made, as a temporary stopgap, thus serving as a warning to others who might be inclined to act similarly. Such a deed with this provocation was never openly resented, unless the one killed was a person of considerable consequence, in which case his death might precipitate a small local war.
Tradition has it though, that, in the days of the Great Kamehameha, if any chief of any district during times of peace presumed to trample on the customs honored by usage pertaining to agriculture, fishing, or any form of labor conducing to the benefit of the people, the great chief or makua, as he was fond of being styled, would promptly order the enforcement of the customary penalty, even on one of his immediate retainers.
Another custom well recognized and universally acquiesced in was, during the scarcity of water in dry seasons, the right of the luna wai to take water from parties having an absolute right on a given day, after their patches or lois were full but before their time had expired; and turn it on to any loi that was suffering whose turn in the rotation had not arrived. This right of the water-luna was being insisted on and exercised in some districts as late as ten years ago, and may be yet in some of the outer districts.
Water rights were primarily for lois, that is, for kalo culture. [P]otato patches, bananas or sugar cane had no recognized claim on a water right in the rotation. The cultivation of these, regarded as dry land crops, were invariably during the rainy season except in the Koolau or wet districts. Sugar cane and bananas were almost always planted on loi banks (kuaunaʻs) so as to ensure a sufficiency of moisture from the seepage or ooze between them.
In good seasons when there was plenty of water in summer, surplus water was sometimes led on to kula land and a second crop of potatoes planted, but this was never done if any loi or lois should be needing the water.
There were some curious beliefs, superstitions and rites, connected with mano making and water supply. When the digging of an auwai was completed to the satisfaction of the luna in charge of the work, a day would be set for the building of the dam. This was an occasion for rejoicing and feasting, and was never hurriedly done. The water kahuna or priest had to be first consulted in regard to a favorable day, which being settled, the konohiki was required to furnish a hog large enough to supply a good meal to all the workers of the auwai, red fish (ahuluhulu), amaama and aholehole, as well as awa root for the use of the priest at the opening ceremonies, (corresponding to the box containing papers, pictures and relics in the modern laying of a corner stone, or the bottle of champagne in the christening of a vessel); kukui-nut and poi galore. On the appointed day all the workers decked with leis (wreaths) of swamp fern, kowali (convolvulus), or yellow and green banana leaves split through the midrib, proceeded to the end of the auwai nearest the spot chosen for the dam, each one bearing a stick of firewood for the imu or oven in
which the hog and other articles of food was to be baked. The imu was made in the auwai near the point where the water was to enter it; the hog, luau, potatoes and kalo, or taro were placed in it, and while these were cooking, the awa root was chewed or pounded and strained, and the fish lawalued (Wrapped in ti leaves and roasted over coals.)
When everything was cooked and in readiness, the water kahuna took the head of the hog, the fishes, and the bowl of awa juice, and going to the place where the dam was to be built made an offering of these to the water Akua or God. An invocation would be made and a petition that the local water god or goddess would take the dam and auwai under his or her special protection, not only sending or causing a good supply of water to fill the stream at all times, so that her votaries might be blessed with good and abundant crops, but also to guard against both drought and floods as being disastrous to the planting interests. At the conclusion of his invocations he would sprinkle a few drops of awa juice in the stream; eat the eyes, ears and snout of the hog, the eyes and gills of the fishes in the name of the local deity, and return to the feast which had been spread on the bank of the new-made auwai, when every one was free to partake. Everything edible at this feast of consecration had to be consumed either by the people or by their dogs. All the refuse was buried in the imu; the dam built in a few minutes, and the water turned in to the new auwai; flowing directly over the now submerged imu. The younger folks would likely indulge in bathing in the pool formed by the dam, while the older ones with the konohikis and invited guests would follow the water through the new-made auwai, and singers of both sexes would chant songs composed in honor of him who had planned and carried out the beneficent undertaking that would be the means of a supply of food for many.
[E.M. Nakuina, In Hawaiian Annual, 1894:79-84]
June 15, 1912 A Brief History of Hawaiian Water Rights By Antonio Perry
A history, however brief, of the water rights of Hawaii is a forcible reminder of the material progress of these Islands.
From very early days, long prior to the Mahele, the distribution of water for the purposes of irrigation was the subject of unwritten regulation. The familiar word “Kanawai,” used for so long a time that the memory of man runneth not to the contrary to denote a law or laws, upon whatever subject, in its origin signified regulations concerning water. The very first laws or rules of any consequence that the ancient Hawaiians ever had are said to have been those relating to water. The water, it is true, like the land was all, originally, the property of the King, to be disposed of as he saw fit, but the ordinary disposition of it was, again as in the case of the land, to permit its use to the chiefs and through them to the common people, the actual occupants and cultivators. The rules were undoubtedly simple at first. The supply of water was usually ample to satisfy the requirements of the land. Cultivation on a large scale for purposes of export was unknown and the needs of the people were few and simple. Taro, of course, was the main vegetable food and with a little sugar-cane, bananas, sweet potatoes and perhaps one or two other articles, composed the list of products for which irrigation was required.
Most important in the system of distribution of water for application to the soil were the main ditches diverting the water from natural streams. Each of these large auwais was authorized and planned by the King or by one or more chiefs or konohikis whose lands were to be watered thereby, the work of excavation being under the direction of the chief providing the largest number of men. The water diverted was subsequently divided among the chiefs in the proportions in which each had contributed men for the accomplishment of the undertaking. The same rule was followed with reference to the parceling out of the water to which each chief was thus entitled among the common people on his lands. To each hoaaina a share was allotted in accordance with the labor furnished by the recipient. Some hoaainas contributed merely the labor of their own hands, others that also of their sons or other relatives. It sometimes happened that a small ili was represented in the work of construction by a larger number of laborers than a large ahupuaa and was in consequence assigned a larger share of the water than was awarded to the larger tract. It is easily apparent, however, that this system of assignment in accordance with the labor provided in digging the auwais was in its results the equivalent of a system of distribution in accordance with the acreage planted, for each konohiki and hoaaina would doubtless bestir himself to contribute towards the completion of the enterprise sufficiently to meet the requirements of the land which he desired to till. The old system, particularly in view of the conditions then existing concerning the possession of land, possessed the merit of encouraging industry. One of the causes for dispossession by the King was the failure of the hoaaina to render his plot productive. On the other hand if one in the enjoyment of a water right increased his accustomed contribution of labor to the maintenance of the auwai his energy was rewarded by the allotment to him of additional water. By way of illustrating the beneficial operation of the system of distribution just described, it may be noted that in some instances chiefs or those under them contributed labor with reference to the needs not only of the lands then held by them but also of lands which they hoped to obtain in the neaear [sic] future. Such was the case with the high chief in planning the Paki auwai about to be referred to. And so also these rights or privileges were subject to loss through non-user. A tenant who by his exertions in the digging of the auwai had obtained the right to water sufficient to irrigate all of his land and who subsequently, for an undue period of time, allowed a large part of his land to remain uncultivated was deprived of all water save that necessary for the cultivated portion.
It may be added at this point that in some ditches not all of the water was used but after irrigating a few patches the ditch returned the remainder of the water to the stream.
Each large auwai was given the name of the chief or of the land most prominently connected with the undertaking. In the digging of one of the more recent ditches, the Paki auwai, extending from a point above Luakaha to the vicinity of the present cemetery in Nuuanu Valley and so named because the chief Paki planned it and directed its construction, 700 men were employed, 300 being furnished by Paki, 300 by chief Kehikili [sic] and 150 each by Huakini and Dr. Rooke. The work was completed in three days. It is interesting to note that the old kamaaina who in 1886 gave the very clear testimony upon which this statement concerning this particular auwai is based, was very modest with reference to his mental attainments. Shortly after taking the stand he explained that in the old days he was pipe-lighter to the high chief Kehikili and that, quoting his own words, “my profession employed all my time which kept me from mental cultivation.”
The construction of a dam and the actual, original diversion of the water were attended with much rejoicing, song and feasting and with solemn religious ceremonies. The day was named with the water kahunaʻs assistance and the konohikis furnished awa root for the priest and other edibles in abundance for the workers. Prayers were addressed to the local water god, invoking his assistance and protection. After the feast all refuse was buried in the imu which had been dug in the bed of the auwai, the dam was built in a very short space of time and the water turned into the new auwai, passing over the imu. The dams were always composed of loose stones and clods of earth and grass and were not made tight but so as to permit of some of the water percolating… Lower holders were likewise entitled to water and their rights were respected.
The burden of maintaining the ditches fell upon those whose lands were watered, failure to contribute their due share of service rendering the delinquent hoaainas subject to temporary suspension or to entire deprivation of their water rights or even to total dispossession of their lands.
By the aid of smaller branch ditches each land received its share of water. The methods of distribution differed at different times and in different places. One method, perhaps the one best known in later years, was that by time only, the watercourse being allotted to certain tracts or lots on certain days of each week or of alternate weeks or at certain hours of the day or night, as the case might be. The Hawaiiansʻ ideas of the time of day and of the duration of time were not exact and under this system the time for each land was regulated in accordance with the position of the sun and that of the stars. In some instances of large, neighboring lands the allotment was of all night to one and of all day to the other for the period of days necessary to water all of the subdivisions of each tract, followed by an exchange of night and day use between the tracts then an exchange again at the end of the period and so on endlessly. Another was for each land beginning with the highest to take, irrespective of time, all the water it needed, and then to permit it to flow on to the next to satisfy its requirements and so on in order until the lowest had received its share and then to repeat the process. It is not entirely clear whether the last method wholly preceded the other, but the probability would seem to be that it did, at least in all cases where the supply was abundant, and that it was gradually supplanted by the more precise distribution by time as a decreasing supply or an increasing demand rendered it necessary or advisable. In still other instances, comparatively rare, however, the patches were given water merely by overflow or percolation from adjoining patches and not directly from any watercourse.
Each chief or konohiki or some one designated by him became the superintendent (luna wai) of the ditch and its maintenance and of the distribution of its waters and such disputes as arose were ordinarily referred to him for settlement. In dry seasons the right was recognized in the luna wai to transfer water from the lands having more than strictly necessary to those in need. This right is said to have been claimed and exercised in some instances as late as the eighties. For unjustifiable interference with a dam it was permissible for any one to kill the offender and to place the body in the breach made by him in the dam, this as a warning to others. If the offender, however, was a man of great prominence in the community, his death might not be permitted to pass unnoticed but might cause considerable local disturbance,—in which latter respect some analogies may be found in more modern history.
A fact made clear by the testimony of many kamaainas in later water controversies is that prior to the Mahele, under the ancient Hawaiian systems, more elaborate in some ahupuaas than in others, disputes concerning water were extremely rare. The aim of the konohikis and of all others in authority was to secure equal rights to all and to avoid quarrels. A spirit of mutual dependence and helpfulness prevailed, alike among the high and the low, with respect to the use of the water. This laudable condition was doubtless due to several causes. The rainfall was in many localities more abundant, the supply of water larger and the area under cultivation less extensive than at the present time. The desire for wealth, as the term is used today, did not exist.
If each had a sufficiency for his simple needs, he was content. The land tenures were so precarious as to be conducive to abstention from unjustifiable or otherwise irritating claims by the tillers of the soil. And yet it must be said on this last point that even during the period shortly preceding the Mahele, when the landlords were directed by statute not to dispossess the occupants except for just cause, the same friendly relations, free from all contention, usually characterized the exercise of the rights under consideration.
With assured ownership of distinct pieces of land in individuals and particularly with the advent of foreigners accustomed to more definite delimitation of rights of property, possessed of more advanced knowledge in the art of cultivation and imbued with a keener desire for material prosperity, and, as to some localities, with a decreased rainfall, came more frequent and more intense misunderstandings and differences concerning the ownership of water.
Apparently in some cases the kalo patches of different tenants were supplied successively and directly from a single auwai; while in other cases water was diverted in the first instance into one high-lying basin, from which the overflow passed to the adjoining lower basin or terrace through openings or low places in the levee, as well as by seepage, and so on down to the terrace at the lowest level, from which the excess water drained back into the natural stream from which the water was originally diverted or into a lower auwai.
Ancient Appurtenant Rights
Prior to the Mahele, the konohiki of an ahupuaa or ili kupono controlled all water privileges as well as land privileges during his tenure and made allotments thereof to his sub-chiefs, and they in turn made allotments to those inferior in rank and so on down to the hoaainas (native tenants) lowest in degree. Any tenant could be dispossessed at the pleasure of his, landlord, for he was simply a tenant at will, and necessarily could be deprived of the use of water as well as of other privileges. However, the rule apparently came to be for the king to dispossess tenants of their lands only for cause, or of the use of water which the lands had customarily received, and this rule eventually applied to the inferior landlords as well. In any event, regardless of the personnel of the cultivators or of the petty landlords, the general custom was to authorize the continued delivery of water to wet kalo (taro) lands for the service of which distribution systems had been built, for the continued cultivation of lands having irrigation facilities was in the interest of the immediate landlord and his superiors as well as that of the tenant. Hence, so long as the water supply continued dependable, the lands productive, and tenants available, the continued service of water to the general area and thence to the sub-units of kalo patches would be in the ordinary case the natural custom to follow.
It was the practice in some cases to layout the kalo patches in terraces, into the highest of which the water was turned from the auwai (ditch), the overflow from each terrace flooding the adjoining patch below and so on down successively to those lying at the lowest levels. Hence, under such system of distribution, the tracts of several hoaainas were largely interdependent in their use of the water. In other cases the several patches were supplied directly out of the auwais. In either case, the method of distribution of water was such as to perpetuate the use of water on a given tract.
The use of water as a practical matter, therefore, was originally attached by custom to the tract of land irrigated, although it might be severed from the land by the konohiki.
Lands Having Ancient Rights
These ancient rights apply in many cases to “kuleanas” — or homesteads of the common people—a term that now is used to designate the small tracts of cultivated lands awarded to native tenants17. However, the right of any portion of an ahupuaa that, by ancient use, was irrigated land, would be on an equality with that of irrigated kuleana land. Furthermore…the ancient rights of kuleanas in government ahupuaas are similar to those in privately_owned ahupuaas. Although in the case of a privately owned ahupuaa the water right of the kuleana holder might be subsequently enlarged by adverse use, the ancient right itself would be of the same character as that in a government ahupuaa, the enlargement being the subject of a prescriptive right against the owner of the ahupuaa.
The rights of kuleana holders to the use of water are paramount to the right of the konohiki to make further disposal of water privileges. He can dispose of surplus waters only. A subsequent lease is necessarily subject to the requirements of the kuleanas, and tenants at sufferance under the konohiki have no separate rights as against the kuleana holders but must look to the konohiki for their supply of water out of whatever surplus may exist.
Ancient kula or dry land had no water right; hence water cannot be claimed for present rice irrigation on ancient kula land, solely by reason of extending the irrigated area to include ancient kula land as well as ancient [page 103] taro land20. But, in the case just cited, ancient taro land that had been left dry as the result of the diminution in population of the Islands which once subsisted on taro, and which land thereafter had been used as pasture and to a great extent had lost its characteristics as taro land, was not classed with ancient kula land. Such land, now cultivated in rice, had claimed all the water to which it was once entitled for the irrigation of taro; and where the evidence as to whether the irrigated land had been extended to include ancient kula land was conflicting and uncertain, the court refused to modify or set aside the decision of the commissioners adjudicating the water rights of the ancient taro land.
Water to the use of which one is entitled in connection with certain land cannot be transferred to kula land if others having water rights in the same source of supply are manifestly injured by the change. But if no injury is done to others, one may transfer to kula land the same quantity of water to which he is entitled by reason of immemorial usage on kalo land.