§7-1  Building materials, water, etc.;
landlords' titles subject to tenants' use.  Where the landlords have
obtained, or may hereafter obtain, allodial titles to their lands, the people
on 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 such
articles to sell for profit.  The people shall also have a right to drinking
water, and running water, and the right of way.  The springs of water, running
water, 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, which
individuals have made for their own use. [CC 1859, §1477; RL 1925, §576; RL
1935, §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 Inherent
Conflict Between Hawaiian Native Tenant Access and Gathering Rights and Western
Property Rights.  16 UH L. Rev. 207.



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



  The Reassertion of Native Hawaiian Gathering Rights Within
The 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 of
Native Hawaiian Water Rights.  18 UH L. Rev. 71.



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



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



  Loko i‘a:  A Legal Guide to the Restoration of Native
Hawaiian 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 to
Regulate Bioprospecting in Hawai‘i.  28 UH L. Rev. 387.



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



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



 



Case Notes



 



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



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



  Plaintiff's claims of reserved rights of native tenants under
Hawaii law did not extend to the right of perpetual and exclusive occupancy
upon the land of another; plaintiff's ancestors' failure to claim kuleana title
to subject land, which rendered them tenants at sufferance, foreclosed
plaintiff'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 for
nonresidents seeking entry to bay designated a marine life conservation
district and nature preserve imposed a fee on nonresidents only, the ordinance
did not contravene this section.  215 F. Supp. 2d 1098.



  Rights of people before allodial titles granted.  2 H. 87; 49
H. 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, 440
P.2d 95.



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



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



  Riparian water rights created by section were not intended to
be, and cannot be, severed from the land in any fashion.  65 H. 531, 656 P.2d
57.



  Gathering rights of section interpreted to assure that lawful
occupants of an ahupua‘a may, for the purposes of practicing native Hawaiian
customs and traditions, enter underdeveloped lands within ahupua‘a to gather
items enumerated in the statute. Gathering rights did not accrue to person who
did not reside within ahupua‘a.  66 H. 1, 656 P.2d 745; 73 H. 578, 837 P.2d
1247.



  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" to
permit the practice of traditional and customary native Hawaiian rights on such
property.  89 H. 177, 970 P.2d 485.



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



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



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



  Right of way easement was limited to ingress and egress and
did 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, 639
P.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.