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- gave land, including its fishponds, to sub-chiefs, or took it away at will. Any fishponds in conquered chiefdoms became the personal property of the conquering high chief and were treated in the same manner the high chief treated all newly subjugated lands and appurtenances. The commoner had no absolute right to fish in the ponds, nor in the sector of ocean adjacent to the chief's land—all of such rights were vested in the chiefs and ultimately in the king, alone.
- In 1848, King Kamehameha III pronounced the Great Mahele, or national land distribution. Any fishponds therein were allotted as part or inholding of the ahupua'a (a land/water unit). Titles to fishponds were recognized to the same extent and in the same manner as rights were recognized in fast land. (United States v. Kaiser Aetna, 408 F. Supp. 42 (D. Haw. 1976), rev'd 584 F. 2d 378 (9th Cir. 1978), rev'd, 444 U.S. 164 (1979).)
The correctness of description is confirmed by the fact that the Board of Commissioners to Quiet Land Titles routinely included fishponds within its land awards or patents under the Great Mahele, notwithstanding the fact that the Board was concerned solely with landed property. (See Haw. Att'y. Gen. Op. No. 1689, at 460 (1939).) So far as can be determined, fishponds retain their status as private property today.
The situation with respect to sea fisheries changed, however, upon passage of the Organic Act in 1900. In that Act, Congress repealed all prior rights in sea water fisheries by providing that "all fisheries in the sea waters of the Territory...not included in any fish pond or artificial enclosures shall be free to all citizens ... subject...to vested rights" (48 U.S.C. § 506). Procedures were established to compensate those people who had vested rights in sea fisheries; if those procedures were not followed within three years, however, even rights to sea fisheries were lost.
Thus, fishponds remain privately owned today, while fisheries remain in private ownership only to the extent that the owners followed the proper procedures to obtain recognition of their rights. In all other respects, waters in Hawaii are treated the same as in the rest of the United States.
Concern was also expressed at the hearings about the rights to use of water. 48/ People in Hawaii have the right to use water under a series of rules unique to Hawaii and closely related to ancient Hawaiian land law. A landowner has present right to use the amount of water used at the time of the award of the land under the ancient landholding system. These are called "appurtenant" rights. In addition, persons receiving land rights from the king (either ili or ahupua'a), called konohiki rights, have the right to water for those lands equal to those of the king.
Under Hawaiian law, further rights to surface water, called "prescriptive rights," can be established, and once they are established, they also are appurtenant to the land on which the water is used. To establish a prescriptive right, certain tests, including actual, open, notorious, continuous, and hostile use for ten years under claim of right, must be met. Finally, by State statutes passed in the mid-19th century, people on lands to which the landlords have taken fee simple title have the right to drinking water and running water. On such lands, the springs, running water, and roads are free to all, except as to wells and water courses provided by individuals for their own use. These can bee considered native
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