## Facts

- McBryde Sugar Company, Limited and Aylmer F. Robinson (with other parties), major sugar interests on Kauai, were in a dispute over rights to divert surface water from a river system serving the Hanapēpē Valley.
- Robinson asserted rights to take the river’s “normal surplus” water and also claimed a substantial amount of appurtenant water rights it had acquired by purchase over time.
- Robinson and McBryde transported significant quantities of diverted water to irrigate sugar lands, including lands located outside the watershed.
- Multiple water users had structured land purchases, irrigation works, and water-delivery arrangements in reliance on earlier Hawaii decisions that had been read to allow private control and transfer of certain water rights.
- In the initial appeal in this litigation, decided earlier the same year (reported at 54 Haw. 174, 504 P.2d 1330 (1973)), the Hawaii Supreme Court rejected the notion of privately owned surplus surface water and limited the use of appurtenant rights to the lands to which those rights attached.
- After that initial decision issued, some parties petitioned for rehearing.
- The Supreme Court ordered supplemental briefing and set rehearing argument on two questions: (1) whether HRS § 7-1 mattered to the determination of the parties’ water rights, and (2) whether owners holding Mahele-era/Land Commission Award appurtenant taro water rights could apply those rights to parcels other than the parcels to which the rights were appurtenant.
- The rehearing decision reported at 55 Haw. 260 is a short per curiam disposition resolving the petitions for rehearing and leaving the earlier decision in place, with dissents.

## Issues

1. On rehearing, should the court modify its prior decision based on arguments that HRS § 7-1 was not relevant to determining the parties’ water rights?
2. On rehearing, should the court modify its prior decision to allow Mahele-era/Land Commission Award appurtenant taro water rights to be used on parcels other than the parcels to which the rights were appurtenant (including parcels outside the watershed)?

## Decision

- The Supreme Court of Hawaii, after reviewing supplemental briefs and hearing argument, found no reason to change its earlier decision in the case.
- As a result, the court left intact its prior rulings (from the January 10, 1973 decision) regarding the role of HRS § 7-1 in the analysis and the limitation that appurtenant water rights are tied to the land to which they are appurtenant.
- The per curiam rehearing disposition included dissents that disagreed with the earlier opinion’s treatment of HRS § 7-1 and its consequences for ownership and movement of water rights.

## Legal Principles

- A rehearing is not granted simply because parties disagree with the court’s interpretation; absent sufficient reason, the court may leave the prior decision unchanged.
- In this case, the rehearing court left in effect its earlier conclusions that flowing surface water (including surplus flows) is not held as freely alienable private property in the way asserted by the sugar interests.
- The rehearing court left in effect its earlier conclusion that appurtenant water rights based on traditional taro cultivation are attached to specific parcels and are not available for use on different parcels.
- The rehearing court left in effect its earlier treatment of HRS § 7-1 as part of the legal framework for determining rights in “running water” on fee-simple lands, subject to the statute’s stated exception for certain privately made waterworks.

## Conclusion

McBryde Sugar Co. v. Robinson, 55 Hawaii 260 (1973), is the Supreme Court of Hawaii’s per curiam rehearing decision that refused to alter the court’s earlier opinion in the same litigation; after supplemental briefing on HRS § 7-1 and whether Mahele-era appurtenant taro water rights could be used on other lands, the court left intact its prior holdings limiting private claims to surplus surface water and restricting appurtenant rights to the lands to which they were attached.


McBryde Sugar Co. v. Robinson, 55 Hawaii 260, 517 P.2d 26 (1973)