Hawaii's Intermediate Court of Appeals just issued a Summary Disposition Order in a case involving landowner's rights and obligations in waters in a manmade waterway or ditch. The case is Ham Young v. Lee and is available here.
[Author's Note: while the ocean, and the regulation and use of the ocean, is the thrust of this blog, the bulk of my practice is commercial, land use and real estate litigation, so I will frequently go "off-topic" and post on issues not involving the ocean].
Because it is a summary disposition, the case is not precedent per se. Nevertheless, cases involving surface waters and the rights or obligations relating thereto are pretty rare, so it was worth a read.
This case involves a ditch that was fed by the Wainiha River on Kauai. A downstream owner argued that the upstream owner could not use the waters in the ditch for "ornamental ponds" because such use was unreasonable per se. The ICA found, however, that riparian owners did not have a right to prevent the upstream owner from circulating the water through their "ponds." It also held that under Hawaii law, the downstream owner did not have statutory riparian rights to undiverted water in the ditch.
The downstream owner's claim of a blockage in the water which caused losses to her taro crops was not susceptible to summary judgment because there was a genuine issue of material fact regarding the blockage.
