In re State to Register Title to Real Property Situate at Moilili

425 P.2d 83, 49 Haw. 537, 1967 Haw. LEXIS 92

• Court: Hawaii Supreme Court
• Decided: February 2, 1967
• Docket: No. 4414
• Status: Published

Opinions

OPINION OP THE COURT BY

WIRTZ, J.

This is an appeal from the decree of the land court entered in Land Court Application No. 327, registering title in the State of Hawaii to a 74,530 square foot parcel (1.73 acres) of land in Moiliili, Waikiki, Oahu, claimed as a schoolhouse site under School Grant No. 27, Royal Patent No. 27, pursuant to the “School Lands Act of 1850.” Respondent-appellant, the Minnie Becker Trust Estate,¹ claimed title to a 14,885 square foot portion thereof as being a part of the Ili of Maulukikepa granted to Enlama and Nakookoo under the Mahele, or land division of Xamehameha III, whose title was confirmed by Land Commission Award Nos. 5240 and 5364, and acquired by the respondent by mesne conveyances through an unbroken chain of title from the awardees.²

In 1848, pursuant to the Mahele or land division of Xamehameha III, Xalama and Nakookoo acquired the Ili of Maulukikepa located in Waikiki on the Island of Oahu.

On July 9, 1850 there was enacted into law a Hawaiian statute commonly referred to as the “School Lands Act of 1850,” the pertinent section thereof providing that:

“7. All sites for school houses and houses for public worship, now occupied and in use, and not owned by private parties; and all lands connected therewith, granted either by the government, or by individuals, chiefs or landlords, with a view to promote the interests of education or religion, shall be reserved as government property, devoted to the purposes above mentioned; the amount of lands reserved for such sites however not to exceed two acres in each case; and in case the adjacent lands are sold or leased, such land shall not be included.” II R.L.H. 1925 at 2184.

On December 23, 1850, the Hawaiian Privy Council by Resolution 2 appropriated certain lands by name “for the general purposes of education on the islands.” The list of affected lands did not include the subject property, except insofar as the general concluding language of the resolution is applicable:

“And all lands now occupied by the Government Schools, and known as having been appi’opriated to their use, either by individual chiefs or by the Government.”

On February 6, 1852, J. W. Makalena, a government surveyor, prepared a description, together with a sketch thereof, of a parcel of land comprising 1.74 acres, entitled: “Survey of School Lot and Designation as School House site,” and referred to as School Grant No. 27. On the bottom thereof, there is a notation³ in Hawaiian dated November 3,1854 and signed by Keoni Ana (John Young) and R. Armstrong (Minister of Public Instruction) apparently made pursuant to Section 24 of the “School Lands Act of 1850.” A copy of this survey was filed in the Land Book, Department of Public Instruction, which is in the custody of the Survey Office. Makalena’s description is by metes and bounds of an area located in Waikiki-waena (middle of the then extensive District of Waikiki), and is tied down only in that the point of beginning thereof is referred to as being adjacent to the boundary of “Hawaii.”⁵

On March 12, 1855, the Board of Commissioners to Quiet Land Titles confirmed the title to the Ili of Maulukikepa in Kalama and Nakookoo by Land Commission Award Nos. 5240 and 5364. On April 8, 1857, upon payment of commutation, Royal Patent No. 3579 was issued to the awardees covering the 13.53 acres of the Ili. It is admitted that the school lot claimed, and sought to be registered, is wholly within the boundaries of the Ili of Maulukikepa as covered by Land Commission Award Nos. 5240 and 5364 and described in Royal Patent No. 3579. Neither the Royal Patent nor the Land Commission Award of the Ili of Maulukikepa contain any language of exception or reservation of any schoolhouse site.

In 1859 another statute pertaining to school lands, and more particularly the disposition thereof, was enacted. In modifying Section 7 of the “School Lands Act of 1850,” Section 752 of the 1859 Act provided:

“Sec. 752. All sites for school houses and houses for public worship, not owned by private parties, societies or corporations, and all lands connected therewith, which have been granted by or to the government, for the purpose of promoting the interests of education or religion, shall be reserved as government property, so long as they are devoted to the purposes for which they were granted, and shall be under the charge and control of the Board of Education; and in case they shall cease to be used for the purposes for which they were granted, for not less than one year, they shall revert to the original grantors, or their representatives. In all cases where lands are sold or otherwise disposed of, the sites for school houses and houses for public worship, shall not be included in such sale or disposition.” II R.L.H. 1925 at 2185-2186.

This statute with the provision for reverter upon nonuse remained in effect for 37 years until repealed in 1896.⁶

On May 6, 1878, J. F. Brown, a government surveyor hired for the purpose of locating the schoolhouse site in question, made a “Plan of School Land — -Moiliili,” computed the area surveyed as containing 1.73 acres, and fixed the schoolhouse site as surveyed by J. W. Makalena as being wholly within the Ili of Maulukikepa.⁷

Sometime between December of 1880 and March of 1881, S. E. Bishop was commissioned by the government to survey the District of Waikiki⁸ for the purpose of locating knleana9 and other boundaries therein. The resulting survey map, filed with the State Survey Office as Eegistered Map No. 1398, shows the presence of walls and fences in the area of the school lot in question but the outline of the school lot itself, as plotted by Brown, was superimposed thereon by someone other than Bishop.

Both the Brown survey of 1878 and that of Bishop in 1881 show the lower or makai (southerly) portion of the school lot along its claimed southerly and easterly boundaries to be physically separated by fences and stone walls from the balance of the school lot upon which the schoolhouse was located.¹⁰ Within this segregated area was also shown an unidentified building of a substantial character. This is the area of 14,885 square feet claimed by respondent not to be within the schoolhouse site claimed and sought to be registered by the State in the land court proceedings below.

On September 30,1882, Royal Patent No. 27 was issued by King Kalakaua granting the school lot in question to the Board of Education, described by metes and bounds as shown by the Brown survey.

In 1902, government surveyor Harvey made a survey of the area in question for the purpose of subdividing the Hi of Waiaka which adjoined the Hi of Maulukikepa.

In 1905, one of the predecessors in title to respondent notified the Department of Public Instruction that the fencing off by the Department of a portion of the 14,885 square feet claimed by respondent in accordance with some new unidentified survey amounted to a taking of at least one-half of the property she inherited from her father who had acquired the same by deed in 1877 and had died in possession. In September of 1913, the Superintendent of Public Instruction reported the removal of a fence by “a man named Silva” along the makai (southerly) side of the school lot and of a fence by an unknown Hawaiian man. H. E. Newton, who made the survey and plotted the school lot for the land court application of the State, noted the removal between September 18, 1913 and October 3, 1913, of the fence along the makai (southerly) boundary of the school lot and its relocation some forty-two to fifty-five feet mauka (to the north) coinciding with the mauka (northerly) boundary of the 14,885 square foot portion of the school lot claimed by respondent. The fencing of the other part of the 14,885 square foot portion of the school lot claimed by respondent and located in the lower makai corner does not appear to have been disturbed by the school authorities in 1905.

On. May 6, 1915, the then Territory of Hawaii filed in the land court its application to register title to the entire school lot, comprising 74,530 square feet, or approximately 1.73 acres, as shown hy the survey and map of Newton based on Brown’s survey of 1878. As seen, answers¹¹ were filed by respondent’s predecessors in title, who between them claimed title to the 14,885 square foot portion of the school lot now claimed by respondent, who had been substituted as party-defendant or respondent by stipulation entered on March 4, 1963¹². On September 3, 1915, the title examiner appointed by the land court recommended in his report that the Territory’s claim of title in this proceeding (Land Court Application No. 327) should be denied because of the incapability of “tying down” or definitely establishing the location of the parcel granted by Eoyal Patent No. 27 to the Board of Education.

Beginning on April 18,1917, and during the succeeding and intermittent days, hearings¹³ were held before the then presiding judge of the land court wherein testimony was taken of persons (kamamna, witnesses) who had lived in the vicinity of the school lot and had attended the school circa 1850. From this evidence it appears that there had been a school on the school lot but just when it first came into being was the subject of conflicting testimony. Testimony was also given by H. E. Newton, assistant government surveyor, who had prepared the map filed with the instant application.

Since the hearings held in 1917, the instant application lay dormant for almost forty-five years until it was revived as a result of eminent domain proceedings filed by the City and County of Honolulu on April 3, 1962¹⁴, for the purpose of acquiring additional land for Kuhio Elementary School, Honolulu, Hawaii, wherein, under paragraph 5 of the complaint, it was alleged that parcel 10 of the proceedings, comprising 14,885 square feet, was in dispute between the State and respondent herein.

Pursuant to the suggestion of the presiding judge in the eminent domain proceedings that title to parcel 10 be litigated in the land court, the parties hereto resumed hearings in the instant application on March 7, 1963. After trial, the land court, on November 5,1963, entered the decree registering title to School Grant No. 27, which included the disputed area of 14,885 square feet, in the State, and which is the subject of this appeal.

The sole specification of error raised under this appeal is as follows:

“The Land Court below erred in granting the application of the State of Hawaii herein to register title to the entire 74,530 square foot parcel claimed by the Applicant-Appellee, and such application should have been denied at least to the extent of the 14,885 square foot portion thereof claimed by the Respondent-Appellant, the Minnie Becker Trust Estate.”

The State contends that “there is presented to this Court no error concerning any question of law nor any error concerning evidentiary matters and rulings by the lower court” under this specification of error. Urging that this specification is deficient under Rule 3(b) (4) of this court in not setting “out separately the particulars of each error intended to be urged,” the State asks dismissal of the appeal.

It should be noted that the specification of error above set forth and relied on by respondent in this appeal is almost identical with, and appears to have been patterned after, the specification of error¹⁵ relied on by the State in its successful appeal from the land court’s decree in No. 4234, Application of Robinson (decided December 5, 1966), on page 429, ante. The two specifications differ only in detail as a result of the differences in the nature of the respective land court applications. Under these circumstances we are not disposed to reject this appeal on grounds of the deficiency of the specification of error.

An analysis of the opening brief discloses that the land court’s findings of fact and the conclusions of law flowing therefrom have all been challenged. Eespondent-appellant has taken issue with the finding that the State had impliedly reserved title to the school lot in question; that the State had not ceased to use the lot for a schoolhouse site; that the school lot was within School Grant No. 27 as surveyed by Makalena.

The answering brief met the challenge and the resultant issues were thoroughly briefed and argued. The State, as appellee, can hardly now say that it was misled or prejudiced by the alleged insufficiency of the specification of error. Nor can this court complain of more than inconvenience in view of Robinson, supra. Cf., Watumull v. Tax Comm’r., 34 Haw. 84, 86.

In this land court application, the State, as the petitioner has the burden of proof in establishing its title to the entire school lot sought to be registered. Re Land Title, Wong, 47 Haw. 472, 477, 391 P.2d 403, 406. As against the respondent, the State must prove its title to the disputed 14,885 square foot portion of the school lot, and not vice versa. There is no valid reason why that proof should not be, as in other civil actions, by a preponderance of the evidence. But this measure of proof is to guide the judge of the land court and “it is not our function to try the case de novo.” Re Land Title, Wong, supra, 47 Haw. 472, 478, 391 P.2d 403, 406.

The scope of appellate review of land court proceedings has not yet been decided, as the Hawaii Rules of Civil Procedure do not apply to such proceedings except in certain situations not here pertinent. H.R.C.P., Rule 81(a), (d) and (f). In Wong, supra, this court recognized, without answering, the question whether appellate review of a land court proceeding is governed “by the ‘clearly erroneous’ rule enunciated by H.R.C.P., Rule 52(a), or by the more restricted rule applicable to review on writ of error.” Under the “clearly erroneous” rule, unless the appellate court is “firmly convinced that a mistake has been made by the trial court, its findings must stand,” and a “choice between two permissible views of the weight of the evidence is not ‘clearly erroneous.’” Be Land Title, Wong, siopra. The “more restricted rule” referred to in Wong, supra, has been stated as follows: “whether there is evidence of that substantial character amounting to more than a scintilla to support the findings of the judge or the jury.” Land Title, Waimalu, 33 Haw. 832, 834.

There still is not presented a pressing need to resolve this question of appellate review of land court proceedings. Here, the question of the credibility of witnesses, inherent in the “clearly erroneous” rule, was not the determining factor in the land court judge’s findings of fact. The only testimony heard by him at the final hearings in March of 1963, was hardly of the character to admit of controversy. The testimony of the kamaaina witnesses taken in April of 1917 was not heard by him. A transcript of the kamaaina testimony was instead received in evidence by stipulation. The remaining evidence was all documentary in nature. Consequently, in reviewing this proceeding, the more restricted rule applicable to review on writ of error, and which would be most favorable to the appellee, is more appropriate than the “clearly erroneous” rule. ,

In support of its title to the school lot, the State claims that the existence of a schoolhouse on the premises in 1850 gave rise to an implied reservation and exception in favor of the government of a schoolhouse site by operation of the “School Lands Act of 1850” upon the filing of the Makalena survey¹⁶ of School Grant No. 27 in the Land Book, Department of Public Instruction, with the designation of same by the Minister of Public Instruction, in consultation with the Minister of the Interior, the approval of the privy council thereof, and the issuance of Royal Patent No. 27 under the doctrine of Knudsen v. Board of Education, 8 Haw. 60, 65, 66, wherein it is stated:

“Omnia praesumuntur solenniter esse acta. ‘All acts are presumed to be rightly done.’ The survey of the site for the schoolhouse, made regularly according to the Statute of 1850, while it was in force, is presumptive evidence, first, of the fact that the site was in use as such when the Act was passed, and, second, of the fact that it had been granted for that purpose by its owner, the King.¹⁷

“At this lapse of time, when nearly all the actors in these transactions are dead, we are authorized to infer that the site in question had been taken for a schoolhouse, and was used and occupied as such when the Act of 1850 was enacted. This presumption is reinforced by positive testimony that at some period previous to 1853 a grass schoolhouse had been built on the lot and was occupied as a public school, and by the fact that it had been used and occupied as a site for a schoolhouse thereafter and until 1886, when the house was removed by plaintiff.”

In opposition to this claim of title by the State, the respondent-appellant distinguishes Knudsen, supra, principally on the grounds that the question in Knudsen, supra, “involved the effect of [a] private conveyance upon the rights of the government who had no privity to the lease contract whatever” while “in the instant case it was the government itself (acting by and through its legislatively appointed Land Commission) which granted the whole of the Ili of Maulukikepa to private persons without express reservation of any government parcel therein,” contending that “the implied reservation theory relied upon by the court in Knudsen * * * simply does not apply where the written indicia of title is not a lease between private parties, but rather an award after judicial determination by the Land Commission.” In relying upon the fact that the Land Commission Award and the Royal Patent issued thereon to Kalama and Nakookoo were both silent as to any reservation and exception of a school lot located within the Ili of Maulukikepa, respondent contends that title to the school lot passed with the award and patent under the principles adduced in In re Kakaaho, 30 Haw. 666, and wherein it was stated that an award of the land commission, which was not appealed from as permitted by law, is final and conclusive¹⁸.

Factually, the respondent-appellant denies the existence of a schoolhouse on the school lot circa 1850, hut does admit that such a schoolhouse could have come into being circa 1860. The kamaaina testimony is far from clear on this question and is in fact somewhat confusing as to whether the witnesses were testifying to a schoolhouse on the subject school lot or on adjoining lands mauka (to the north). The best view of this evidence would indicate that a schoolhouse was constructed on the school lot shortly after the stone church (Kamoiliili Church) on the adjoining property mauka (to the north) was completed in 1854. However, the evidence could support either theory (of the State or the respondent) of the establishment of the school on the school lot, but it becomes unnecessary to determine the exact date the schoolhouse came into existence as it does not affect the result. For the same reason, we need not resolve the apparent conflict in the law between the existence of an implied reservation and the proscription against collateral attack of a Land Commission Award.

There can be no doubt that a school existed on the school lot circa 1860. How it came to be is another question. It was not unusual but customary for the landowners or chiefs to make a grant or appropriation of some of their lands for school sites. This is illustrated by the language used in Section 7 of the “School Lands Act of 1850,” as well as in the concluding paragraph in the Privy Council Eesolution 2 of December 23, 1850, set out above. Such a grant by the landowner or chief was presumed in Knudsen v. Board of Education, supra, 8 Haw. 60, 65-66. The only evidence in this record supports such a grant¹⁹. But even if this testimony is considered untrustworthy, as contended by the State, there is nothing in the record to offset the presumption of such a grant indulged in by Knudsen, supra²⁰.

The State maintains that the “school site under School Grant 27 has been in use and in possession by the State from 1850 to the present; and appellant having the burden of proof of abandonment has failed to meet with this burden.” In support, the State relies on the surveys of Makalena, Brown and Newton together with Bishop’s Registered Map No. 1398.

The floating Makalena survey is inconclusive as it was not “tied down.” When Br.own made his survey he had to arbitrarily adjust the Makalena survey to conform to the physical facts. The Brown survey of 1878, which is the basis for all subsequent surveys, in making such adjustment showed the 14,885 square foot portion of the school lot claimed by respondent to be physically separated by stone walls and fences from the remainder of the school lot upon which the schoolhouse was located²¹. This physical segregation continued until 1905 when the fencing was removed and the government apparently took possession of the 14,885 square foot portion of the school lot only to relinquish it in 1913 when the fences were restored. The chain of title of respondent indicates that its predecessors in title had continuously claimed title to and dealt with the 14,885 square foot parcel as owners.

In the light of this factual situation disclosed by the record, the respondent points to the reverter upon nonuser provisions of the “School Lands Act of 1859,” set out above, which remained in effect until 1896. The pertinent portions of this Act are repeated for the sake of clarity. These were: “All sites for school houses * * * and all lands connected therewith * * * shall be reserved * * * so long as they are devoted to the purposes for which they were granted * * * and in case they shall cease to be used for the purposes for which they were granted, for not less than one year, they shall revert to the original grantors, or their representatives. * * *” (Emphasis added.) II R.L.H. 1925, § 752 at 2185-2186.

While the record shows nonuse by the State during the period, at least, from 1878 to 1905, the State insists that no intent of abandonment has been shown, relying on Haw’n Com. & Sugar Co. v. County of Maui, 47 Haw. 486, 392 P.2d 302, petition for rehearing denied, 47 Haw. 587, 392 P.2d 834. But there the situation was different. The grant therein was expressly “for school purposes” with the option reserved in the grantor to repurchase should the grantee “cease to use the whole thereof for school purposes.” There, this court construed the grant as requiring an abandonment which became a question of intent with the burden of proving such intent upon the asserter of same. As aptly stated by respondent, “there is no room to read into [Section 752 of the “School Lands Act of 1859”] any prerequisite of intent to abandon on the part of the government. It is merely a question of non-use, pure and simple. If the government fails to use the site for the schoolhouse site purposes for which it was granted for any period of one year while the statute is in force * * * then such reverted automatically to the original grantors.” McDougall v. Palo Alto Unified School District, 212 Cal. App. 2d 422, 28 Cal. Rptr. 37, cited in Haw'n Com. & Sugar Co. v. County of Maui, supra. The phrase “so long as” classically manifests intent that a possibility of reverter is being created. Id. at 432, 28 Cal. Rptr. at 43.

The State counters with the proposition that title by adverse possession cannot be acquired by private persons against the government, relying upon Thurston v. Bishop, 7 Haw. 421, 437, 438, wherein such persons were characterized as trespassers “squatting” on government land. This general rule was early recognized in Hawaii. See Kahoomana v. Minister of the Interior, 3 Haw. 635, 640. The respondent’s predecessors in title did not consider themselves trespassers and their possession was not adverse in the usual sense, since they claimed possession by right under color of title. It is doubtful, in view of the kamaaina testimony as to the existence and location of the stone walls, whether the State ever had possession of the 14,885 square foot portion of the school lot until possibly in 1905. It is also questionable, in the atmosphere of uncertainty created by Makalena’s floating survey and the arbitrary plotting of same by Brown, that the State ever had title to this 14,885 square foot parcel in dispute.

Be that as it may, it does not follow that the government cannot remove the protection given it by the general rule and permit the acquisition of title to government land by adverse possession or by possession akin to prescription. See 2 C.J.S., Adverse Possession, § 5b (1936); see also An-not., 55 A.L.R. 2d 554 (1957). The reverter upon nonuser provisions of Section 752 of the “School Lands Act of 1859,” set out above, clearly provide that any title in the government to a schoolhouse site or “lands connected therewith” is automatically relinquished “to the original grantors, or their representatives” upon cessation of use. Certainly, possession by private parties is clear and convincing evidence of nonuser.

The remaining basis for the State’s claim of title to the 14,885 square foot portion of the school lot in dispute is by adverse possession of the government. As seen, the record admits of no other acquisition initially by the government other than by grant. Nor does the record disclose any possession (adverse or otherwise) by the government of any portion of the 14,885 square foot portion of the school lot in question, its possession being limited to the larger portion of the lot upon which the schoolhouse was located, with the possible exception of the period between 1905 when the fencing separating the 14,885 square foot portion from the remainder of the lot had been removed until 1913 when the fences were restored. However, this period of eight years was insufficient to vest title by adverse possession²². Mere claim of title without express proof of actual possession for the statutory period is ineffective. Fong Hing v. Yamaoka, 31 Haw. 436, 439.

As above indicated, we have limited ourselves to a consideration of the State’s title to the 14,885 square foot portion of the school lot in question under this appeal. Prom the foregoing we can only conclude that the judge of the land court erred in finding and concluding that there had been no cessation of use of the 14,885 square foot portion of the school lot in dispute by the State for the period of time provided by Section 752 of “School Lands Act of 1859²³.” In other words, we conclude that the land court erred in granting the application of the State of Hawaii to register title to the entire 74,530 square foot parcel claimed by the State, and such application should have been denied to the extent of the 14,885 square foot portion thereof claimed by the respondent-appellant, the Minnie Becker Trust Estate.

Willson O. Moore, Jr. (also on the briefs) for respondent-appellant. Andrew S. O. Lee, Deputy Attorney General (Bert T. KobwyasM, Attorney General, with him on the brief) for applicant-appellee.

Reversed and remanded for entry of a decree in conformity herewith.

1 Respondent-appellant was substituted, by stipulation, in tbe place and stead of its predecessors in interest of the 14,885 square foot portion of the school lot sought to be registered by the original respondents, Kauhaeku Lani, Mary A. Lopes and Henry Silva.

2 Another respondent, Solomon Kauai, claimed title to all of the land sought to be registered but was defaulted in the land court proceedings. Consequently, the title to the balance of the schoolhouse site sought to be registered is not in dispute under this appeal.

3 This notation has been translated variously as “we two hereby consent that this school honse site be kept by the government,” and as “we agree that the title to this school lot is in the government.”

4 “2. It shaU be the duty of the minister of public instruction, in consultation with the minister of the interior, to designate said lands, which designation when approved by the privy council, shall be valid.” II R.L.H. 1925 at 2184.

5 In the 1917 hearings in the land court, government surveyor H. B. Newton testified flatly that Makalena’s survey was not “tied down.”

6 The Act to regulate the Bureau of Public Instruction passed in 1864, although repealing Chapter 10 of the Civil Code of 1859 including the above quoted Section 752, re-enacted this provision in Section 35 thereof. II R.L.H. 1925 at 2186-2187.

7 Upon completing this survey however, he found he had totally excluded the schoolhouse physically located near the maulca, or northwesterly, boundary of the Ili so he arbitrarily moved his plot of the lot boundaries 68 feet in a maulca or northwesterly direction and 25 feet to the southeast.

8 The District of Waikiki included all of the land extending from Waikiki Beach maulca (northward) towards and including Manoa Valley. The school lot in question was part of the district located in the central portion thereof and known as Waikiki-ioaema or middle Waikiki.

9 A Iculeana was a smaller portion of land within the domain (almpuaa or iU) of a chieftain (Iconohilci).

10 The existence and location of the stone walls are corroborated, to some extent, by the testimony of former pupils of the school (Icamaaina witnesses) circa 1850 at the schoolhouse site in question.

11 The answer of Soloman Kauai claiming title to the entire school lot can be ignored insofar as this appeal is concerned. See footnote 2, supra.

12 On June 14, 1927 Gustav Julius Becker, predecessor in title of respondent, filed Land Court Application No. 791, seeking to register title, among other lands, to the 14,885 square foot portion of the school lot herein sought to be registered by the State and in dispute in these proceedings. The State filed its Answer in Land Court Application No. 791 claiming title to the 14,885 square foot parcel of land in dispute. Land Court Application No. 791 is still pending.

13 The transcript of these hearings was put in evidence by stipulation when hearings on this land court application were resumed before the present judge of the land court on March 7, 1963.

14 City and. County of Honolulu v. Willson Carr Moore, Jr., Civil No. 9491, First Circuit.

15 “The court below erred in denying the claim of the State for reservation of mineral and metallic mines in its favor in the Land Court Decree pursuant to such reservations being made in the royal patents.”

16 That the Makalena survey covers the land in question here may well be disputed in view of Brown’s arbitrary relocation of the plot to fit the physical facts due to the fact that Mabalena’s survey was not “tied down.” However, a factual determination is rendered unnecessary as will be seen.

17 Here, the King was acting in his capacity as a “private party” and landowner and not as the government.

18 Actually this court in Kakaaho, supra, affirmed the decree of the land court denying the application of the government to register title on the grounds first, of failure of proof that the disputed land sought to be registered was the same land allegedly reserved to the government, and secondly, that the legislative act reserving certain land for government use had been repealed prior to the Land Commission Award to a private party.

Kakaaho, supra, merely reaffirmed the well-settled rule that a Land Commission Award is not subject to collateral attack regardless of the nature of the claimed invalidity of the award early established in Kukiiahu v. Gill, 1 Haw. 90, 91 and Bishop v. Namakalaa, 2 Haw. 238, 240.

19 This was the testimony of one of the kamaaina witnesses (Solomon Kauai, the claimant of the entire school) to the effect that the parents of the school children complained to Kalama and Nakookoo about the danger of their children attending school where animals were roaming about and asked for some land of their konohikis (chiefs, Kalama and Nakookoo) so that their children would be closer to hand and protected against the roaming animals; and that their request was granted.

20 Such a presumptive grant is not strange or novel when the MaJiele of 1848 is considered, in effect, to be a “quitclaim agreement between the king and a chief or a honohiM with reference to the lands in which they both claimed interests.” Chinen, The Great Mahele, 16 (1958). Taken in conjunction with the “School Lands Act of 1850,” the result in this ease, in effect, was the king quitclaiming to Kalama and Nakookoo the Ili of Maulukikepa, while reserving, or receiving in turn their quitclaim to him of their interest in the school lot. This interest in the school lot was converted into a defeasible interest by the “Sehool Lands Act of 1859” creating a possibility of reverter in Kalama and Nakookoo.

21 The hamaaina testimony indicated the presence of stone walls in circa 1850-60 located where the fences were later shown. This could indicate that Makalena’s survey did not cover the school lot as now plotted and that the 14,885 square foot portion thereof had never been granted by Kalama and Nakookoo.

22 At the time in question, the period of limitation was twenty years. Kapiolani Estate v. Cleghorn, 14 Haw. 330, 340. Even now it is ten years. R.L.H. 1955, § 241-30.

23 Finding and conclusion of the judge of the land court:

“4. There may have been persons occupying portions of the school lot. But this would not cause the school use to be abandoned as to these portions. Nor can such occupancy ripen into rights in private parties against the sovereign by adverse possession. These occupants were squatters on public land. * * *”