§7-1  Building materials, water, etc.;landlords' titles subject to tenants' use.  Where the landlords haveobtained, or may hereafter obtain, allodial titles to their lands, the peopleon each of their lands shall not be deprived of the right to take firewood,house-timber, aho cord, thatch, or ki leaf, from the land on which they live,for their own private use, but they shall not have a right to take sucharticles to sell for profit.  The people shall also have a right to drinkingwater, and running water, and the right of way.  The springs of water, runningwater, and roads shall be free to all, on all lands granted in fee simple;provided that this shall not be applicable to wells and watercourses, whichindividuals have made for their own use. [CC 1859, §1477; RL 1925, §576; RL1935, §1694; RL 1945, §12901; RL 1955, §14-1; HRS §7-1]

 

Law Journals and Reviews

 

  Beach Access:  A Public Right?  23 HBJ 65.

  Native Hawaiian Cultural Practices Under Threat.  I HBJ No.13, at pg. 1.

  Pele Defense Fund v. Paty:  Exacerbating the InherentConflict Between Hawaiian Native Tenant Access and Gathering Rights and WesternProperty Rights.  16 UH L. Rev. 207.

  Public Access Shoreline Hawaii v. Hawaii County PlanningCommission:  The Affirmative Duty to Consider the Effect of Development onNative Hawaiian Gathering Rights.  16 UH L. Rev. 303.

  The Reassertion of Native Hawaiian Gathering Rights WithinThe Context of Hawai‘i's Western System of Land Tenure.  17 UH L. Rev. 165.

  Cultures in Conflict in Hawai‘i:  The Law and Politics ofNative Hawaiian Water Rights.  18 UH L. Rev. 71.

  Customary Revolutions:  The Law of Custom and the Conflict ofTraditions in Hawai‘i.  20 UH L. Rev. 99.

  The Backlash Against PASH:  Legislative Attempts To RestrictNative Hawaiian Rights.  20 UH L. Rev. 321.

  Loko i‘a:  A Legal Guide to the Restoration of NativeHawaiian Fishponds Within the Western Paradigm.  24 UH L. Rev. 657.

  Wiping Out the Ban on Surfboards at Point Panic.  27 UH L.Rev. 303.

  Biopiracy in Paradise?:  Fulfilling the Legal Duty toRegulate Bioprospecting in Hawai‘i.  28 UH L. Rev. 387.

  Public Beach Access:  A Right for All?  Opening the Gate toIroquois Point Beach.  30 UH L. Rev. 495.

  Propagating Cultural Kīpuka:  The Obstacles andOpportunities of Establishing a Community-Based Subsistence Fishing Area.  31UH L. Rev. 193.

 

Case Notes

 

  Appellants' contention that native Hawaiian rights wereexclusive and possessory was unsupported in the law.  76 F.3d 280.

  Once title to land passes into private hands and becomesvested under U.S. law, then, upon statehood, that property is subject to statelegislation and federal common law regarding water rights is not applicable. 441 F. Supp. 559.

  Plaintiff's claims of reserved rights of native tenants underHawaii law did not extend to the right of perpetual and exclusive occupancyupon the land of another; plaintiff's ancestors' failure to claim kuleana titleto subject land, which rendered them tenants at sufferance, foreclosedplaintiff's attempt to claim possessory rights to the land under Hawaii law. 875 F. Supp. 680.

  Rights afforded by this section did not inure to plaintiffs,nonresidents of the State; because ordinance instituting a $3 fee fornonresidents seeking entry to bay designated a marine life conservationdistrict and nature preserve imposed a fee on nonresidents only, the ordinancedid not contravene this section.  215 F. Supp. 2d 1098.

  Rights of people before allodial titles granted.  2 H. 87; 49H. 456, 468, 421 P.2d 550.

  Right to water for domestic use under this statute.  24 H.47, 67, overruled on another point 31 H. 376.

  Applied in upholding ancient right of way.  50 H. 298, 440P.2d 95.

  Provision reserving to property owners the "right todrinking water and running water" deemed a codification of doctrine ofriparian rights.  54 H. 174, 504 P.2d 1330.

  Interpretation in 54 H. 174 continues to be appropriate andproper.  65 H. 531, 656 P.2d 57.

  Riparian water rights created by section were not intended tobe, and cannot be, severed from the land in any fashion.  65 H. 531, 656 P.2d57.

  Gathering rights of section interpreted to assure that lawfuloccupants of an ahupua‘a may, for the purposes of practicing native Hawaiiancustoms and traditions, enter underdeveloped lands within ahupua‘a to gatheritems enumerated in the statute. Gathering rights did not accrue to person whodid not reside within ahupua‘a.  66 H. 1, 656 P.2d 745; 73 H. 578, 837 P.2d1247.

  If property is deemed "fully developed", i.e.,lands zoned and used for residential purposes with existing dwellings,improvements, and infrastructure, it is always "inconsistent" topermit the practice of traditional and customary native Hawaiian rights on suchproperty.  89 H. 177, 970 P.2d 485.

  To establish the existence of a traditional or customarynative Hawaiian practice, there must be an adequate foundation in the recordconnecting the claimed right to a firmly rooted traditional or customary nativeHawaiian practice.  89 H. 177, 970 P.2d 485.

  Where defendant failed to adduce sufficient evidence tosupport claim of the exercise of a constitutionally protected native Hawaiianright and knowingly entered landowner's property which was fenced in a mannerto exclude others, trial court properly concluded that defendant was unlawfullyon property in violation of §708-814(1).  89 H. 177, 970 P.2d 485.

  Trial court erred in granting defendant's motion for summaryjudgment where there existed a genuine issue of material fact as to the ancientor historic use of the subject trail.  104 H. 43, 85 P.3d 150.

  Right of way easement was limited to ingress and egress anddid not include right to park.  1 H. App. 263, 618 P.2d 312.

  No showing of right-of-way of necessity.  2 H. App. 663, 639P.2d 420.

  Standards for granting an easement by necessity.  3 H. App.136, 642 P.2d 549.

  Referred to:  6 H. 334, 336; 20 H. 658, 667.