DISSENTING OPINION OP RICHARDSON, C.J., WITH WHOM CIRCUIT JUDGE OKINO, IN PLACE OP LEWIS, J., DISQUALIFIED, JOINS
I respectfully dissent.
I.
First, I disagree with the majority’s conclusion that the sole specification of error is not deficient — no “more than inconvenience” — and that said specification of error merits consideration on this appeal. The State correctly concludes that “there is presented to this court no error concerning any question of law nor any error concerning evidential matters and rulings by the lower court.” Appellant’s specification of error is patently defective under Rule 3(b) (4) of this court, which rule states:
“(4) A specification of errors relied upon, which shall be numbered, and shall set out separately the particulars of each error intended to be urged. When the error alleged is to the admission or rejection of evidence the specification shall quote the grounds urged at. the trial for the objection and the full substance of the evidence admitted or rejected, and refer to the page *555number in tbe transcript where the same may be found.”
The requisites of this rule were not followed. Appellant has especially failed to “set out separately the particulars of each error intended to be urged.” As this court said in Lyon v. Bush, 49 Haw. 116, 118, 412 P.2d 662, 664:
“* * * a general assignment of error which does not ‘set out separately the particulars of each error intended to be urged,’ is insufficient and does not call for consideration by this court. Rule 3(b) (4), Rules of the Supreme Court. State v. Kahua Ranch, 47 Haw. 466, 468-69, 390 P.2d 737, 739; Watumull v. Tax Comm’r, 34 Haw. 84, 85-6; Mid-Pacific Dress Mfg. Co. v. Cadinha, 33 Haw. 456, 472-73; Solomon v. Niulii Mill & Plantation, Ltd., 32 Haw. 571, 573-74; Lemes v. Lusitana Society, 32 Haw. 522, 525; Smith v. Laamea, 29 Haw. 750, 760.”
It is my belief that the Lyon case, a 1966 decision, represents the thrust and trend of the case law in this jurisdiction.
In taking the opposite position — that the specification of error is not deficient — the majority cites, with proper reservation (Cf. citation), a 1937 decision — Watumull v. Tax Commissioner, 34 Haw. 84. The majority appears to rely on the following portion of the opinion:
“* * * A strict compliance with the rule is not required but a substantial and reasonable observance thereof becomes necessary for the twofold purpose of 1. enabling the appellate court readily to appreciate and understand the errors complained of, and 2. to enable opposing counsel to know what points are relied upon and what is urged as error in the action of the court.” Watumull v. Tax Commissioner, supra at 86.
The above-quoted portion, however, must be regarded as dictum in light of the main emphasis of the case — and later *556cases — as evidenced by tbe following passages:
“Equally objectionable and deficient is tbe brief of plaintiffs in error. It contains no specifications of error required by rule 3(b) of the supreme court. This court has repeatedly called the attention of litigants and the bar to the requirements of this rule. * * * Failure to observe this rule may merit dismissal. * * * Tbis is a fault of recurring frequency and if persisted in tbe court for its own protection will be compelled to resort to punitive measures.” Watumull v. Tax Commissioner, 34 Haw. 84 passim. (Emphasis added.)
Tbe proposition — that tbe above-quoted portion of tbe Watumull case must be dictum — is borne out by a 1964 decision — State v. Kahua Ranch, supra. After quoting verbatim the portion relied upon by tbe majority, tbe court went on to say:
“It is elementary that all errors of the trial court which are not properly specified in tbe brief are deemed to have been abandoned or waived and consequently outside tbe scope of appellate review and will not be considered on appeal. 5 C. J.S., Appeal & Error, § 1322; 5 Am. Jur. 2d, Appeal and Error, § § 654, 693.”
Accord, Collins v. Shishido, 48 Haw. 411, 405 P.2d 323. Finally, on March 23, 1966 tbis court held that tbe salient rule of law from tbe Kahua Ranch and Watumull cases was tbis: “A general assignment of error which does not ‘set out separately tbe particulars of each error intended to be urged/ is insufficient and does not call for consideration by tbis court.” Lyon v. Bush, supra at 118, 412 P.2d at 664.
Tbe majority concludes: “Tbe answering brief met tbe challenge and tbe resultant issues were thoroughly briefed and argued. Tbe State, as appellee, can hardly now say that it was misled or prejudiced by tbe alleged insufficiency of tbe specification of error.” I fail to follow tbis reason*557ing. The test for a sufficient specification of error, in view of the aforementioned cases, is not whether (through caution or chance) an appellee successfully discovered the “right” issues. This rewards an appellant for a sloppy and general assignment of errors, and forces the appellee to grope in the dark. For as the appellee has stated his quandary : “In an abundance of caution the Appellee State of Hawaii, has sifted through the brief of the Appellant in an attempt to discern wherein the Appellant complains of the ruling by the lower court and has presented its argument accordingly.” It is fortunate that the appellee in this case picked the “right” issues. This is not my view of the appellate process.
The majority further states that because this court overlooked the appellant-State’s specification of error in Application of Robinson, No. 4234, December 5, 1966 — which specification was almost identical with the one in this case —therefore, we should overlook the appellant’s defect here. This reasoning is not persuasive. There is an important and critical factual distinction between these two cases. In Robinson, the appellee did not brief or urge upon oral argument the alleged defect in the specification of error. In this case, appellee-State did so brief and argue the defect. That is the difference and the reason we could overlook the appellant-State’s specification of error in the Robinson case, for as this court stated in State v. Kahua Ranch, supra at 470-71, 390 P.2d at 740:
“Even were it possible to consider the lower court’s ruling * * * as properly specified in that it was ‘necessarily suggested’ by the question involved under the specification of error considered, it was nevertheless waived since it was neither urged nor argued in the briefs or upon oral argument. Godfrey v. Kidwell, 15 Haw. 526; Kavanaugh v. Johnson, 290 Mass. 587, 195 N.E. 797. * * *” (Emphasis added.) .
*558In short, what the appellee waived or forfeited in Robinson, the appellee-State did not in this case.
Therefore, to overlook appellant’s defective specification of error, here, is a step backward from well established precedent. This court should not have considered this appeal.
II.
Second, I agree with the State’s “implied reservation” argument. The gist of the argument is that a school lot, established under the “School Lands Act of 1850,” is excepted and reserved by law from a Land Commission award of an Hi, or subdivision of land (within which Hi the school lot is located), and for this reason there is no necessity of any express language of exception and reservation of such a school lot.
Appellant’s contrary argument is that since the Land Commission award and the Royal Patent issued upon it were silent as to the reservation of any school lot located within the Ili of Maulukikepa, therefore, title to the school lot passed with the award and patent. It is to this complaint of the lower court’s ruling that the State replies: “The answer of the State to this argument is that there was no necessity to have language of reservation and exception of the instant school lot in the award and patent for the Act of 1850 reserved and excepted the school lot.” The State correctly draws its principal support from the landmark case of Knudsen v. Board of Education, 8 Haw. 60. In that case, the plaintiff, a private landowner-holder of a leasehold from Xamehameha III and another lease of the same land from the Commissioner of Crown Lands, both leases merging into one — presented the same argument as the present appellant. There the plaintiff argued that because the leases did not contain any express reservation of a school lot located within the leased land, title thus passed to him as lessee. The Supreme Court *559held, at page 60, that “the site did not pass to the lessee of the land, though not specifically excepted.” There was no necessity of reservation and exception of a school lot from the sale or lease of adjoining private or government lands because the law excepted and reserved the school lot. The “occupation by the Board of Education of the site, is presumptive evidence that the site was in use as such at the time the Act passed, and that it had been granted for this purpose by the owner of the land in which it is situated.” Knudsen v. Board of Education, supra at 60. The court went on to state on page 64:
“The claim cannot well be made that when the owner of the land, be he King, chief or private individual, or the Government, out of which these sites were taken, sold or leased the land that the site passed by the conveyance or demise, unless expressly excepted. It was not necessary to except them in the conveyance, for the law excepted them. * * *” (Emphasis added.)
The court further stated that school sites were reserved by law even without a Royal Patent being issued. The court said at page 66:
“We cannot find that the Royal Patent No. 39, which is proffered by defendant as its title, was issued, as far as plaintiff’s rights are concerned, without authority of law and inadvertently. The title of the defendant as a Department of the Government, in charge of the educational interests of this Kingdom, to this lot would he good as against plaintiff without the issuance of this patent to it. But the patent was regularly issued in pursuance of an Act of the Legislature of the 13th August, 1880.” (Emphasis added.)
Furthermore, I do not agree at all with the contention that this case is factually distinguishable from the Knudsen case. Appellant attempts to distinguish the Knudsen case since it involved a leasehold, whereas this *560case involves a conveyance in fee simple. This attempt is specious for the Knudsen case answers this very point. The court in that case stated at page 62: “The question of paramount interest involved in this case is the nature and validity of the titles of a large majority of the sites for schoolhouses and churches throughout this Kingdom.” Although the question in Knudsen pertained to a leasehold interest, that court went even further to state that whether the land adjoining the school site is private land or government land and whether the land is conveyed in fee or leased, there was no necessity of expressly reserving and excepting the school site for the law excepted them. Knudsen v. Board of Education, supra at 64.
As counsel for appellee has aptly pointed out, there is a striking parallel of the facts in the Knudsen case and the instant case: (1) In both cases a survey was made by J. W. Makalena, a surveyor employed by the Department of Public Instruction, and recorded pursuant to section 9 of the School Act of 1850 (section 755 of the Civil Code of 1859); (2) In both cases, Royal Patents were issued pursuant to an Act of the Legislature of August 13, 1880 — in Knudsen Royal Patent No. 39 was issued in 1884 describing said lot as Lot 2 involving two acres; in our case, Royal Patent No. 27 was issued on September 30, 1882 for 1.73 acres; (3) In both cases the school lots were approved by the Privy Council on the same day — December 23, 1850 — in accordance with paragraph 2 of the School Act of 1850; (4) In both cases there is kamaaina testimony regarding the existence of a school on the respective lands in question from around 1850.
Leading from the recital of these closely paralleling facts is the proposition that if there was no necessity of a reservation and exception in the Knudsen case, then the reasonable conclusion is that the same should be true in the case before us. It seems to me that both Royal Patents *561for school lots issuing out of and approved by the same authorities should be similarly treated.
In short, I consider the Knudsen case to be factually similar, on point, and dispositive of the implied reservation issue.
III.
Third, the Board of Commissioners to quiet land titles did not have the power to convey or award school lots.
The Second Act of Kamehamelia III, hereinafter referred to as the Act of 1846, to Organize the Executive Departments of the Hawaiian Islands, Part IV, established a Department of Public Instruction and provided for the setting aside of land for school purpose. Chapter III of Public and Private Schools, Section VI thereunder, provides:
“The general superintendent of each school district .... Said general superintendent shall also have power to allot land, not otherwise appropriated, to the teachers and to the schools of their respective district .... Neither shall any land set apart by the general superintendent of the district in concert with the sub-agents thereof, be considered validly appropriated to that object until the said general superintendent shall have notified the same, its location, quality and quantity to the minister of public instruction, and received from said minister the certificate of the minister of the interior to that effect. All land so set apart shall be registered as school lands in the interior department, and shall be considered as set apart to eleemosynary uses . . . .” (Emphasis added.) Statute Laws 1845-46, pp. 206-07.
The Board of Commissioners to quiet land titles being established under Part I, Chapter II, Article IV of the same Second Act of Kamehameha III, the power and *562limitation. of power of the Board must be construed in the light of the entire act.
The King and the legislative body were fully aware that for the operation of government, lands had to be set aside for the use by the various departments and agencies of the government, including the school department. For this reason it was intended that land set aside to the Department of Public Instruction under the Act of 1846 was not subject to the jurisdiction of the Board when it adjudicated claims against the government. It cannot be said that by the establishment of the Board to adjudicate private land claims it was intended that unless government lands set apart and used for government purpose were expressly excepted and reserved in awards of the Board, the government lost its lands. Such intent would be unreasonable and absurd and such construction of the powers of the Board would be arbitrary.
In construing a statute, the court looks to the history of the statute, the objects to be accomplished, the evils and mischief to be remedied in order to ascertain the intent of the legislature. Territory of Hawaii v. Wah Chew Chang, 42 Haw. 532, 541.
The object of the Act of 1846 was to organize the government and to allow people to own land in fee simple. The evil to be cured was to do away with a system of land tenure subject to the whim and pleasure of the King. The object was not to give away lands set aside for school purpose or government purpose, or allow persons to claim land set apart for government use.
Also, where a statute operates as a grant of public property to private persons, the statute is strictly construed in favor of the sovereign interest. Slidell v. Grandjean, 111 U.S. 412, 28 L.Ed. 321 (1884); Coosaw Mining Co. v. South Carolina, 144 U.S. 550, 36 L.Ed. 537 (1892).
Such construction would also be consonant with the *563principles adopted by the Board. Tbe pertinent parts of tbe principles read:
“* * * What is the nature and extent of that power which the King has bestowed upon this board? It can be no other than his private or feudatory right as an individual participant in the ownership, not his sovereign prerogatives as head of the nation. Among these prerogatives which affect lands, are the following: * *
“4th. To provide public thoroughfares and easements, by means of roads, bridges, streets, etc., for the common good.
“5th. To resume certain lands upon just compensation assessed, if for any cause the public good or the social safety requires it.
“These prerogatives, powers and duties, His Majesty ought not, and ergo he cannot surrender. Eence the following confirmations of the board, and the titles consequent upon them must be understood subject to these conditions ” (Emphasis added.) II E.L.H. 1925, 2128, L. 1847, p. 81.
The statement by the Board that confirmation of land titles or awards were subject to the sovereign prerogative indicated that:
(1) The award of title by the Board excluded matters classified under sovereign prerogatives, even absent any language of exception and reservation.
(2) The Board did not have power to pass title to matters classified under sovereign prerogatives and any attempt to do so would be null and void.
Education and the support thereof by setting aside land for school purpose comes within the purview of sovereign prerogative of “public good” and “social safety.” From early Hawaiian history the subject of education has been of prime concern of the government and the King. *564Long prior to the Act of 1850, there were laws on public education. Knudsen v. Board of Education, supra at 62.
In view of the early laws of Hawaii setting aside land for the. support of education in 1840, 1841 and 1846, these lands were reserved for the support of education and the Board, when it was established in 1846, did not have jurisdiction over these lands. Awards of lands and adjudications of claims by the Board were subject to lands reserved for school purpose. The court in the Knudsen case, in construing the powers of the Board and the early laws on the support of education, said:
“* * * The Land Commission was in active existence at the time this Act [Act of 1850] was passed and was not finally dissolved until March 31, 1855, and this Act may properly be regarded as in furtherance of the general scheme of settling land matters, as well as providing for the education of the people.
“The section of the Act of 1850 above quoted clearly contemplates that sites for school houses and houses for public worship were occupied and in use at the date of the act, and we have seen that this taking of land for such purposes was authorized by the early laws. These sites, as well as the lands connected therewith, were to be reserved as Government property devoted to the uses of education or religion.” (8 Haw. at 64.)
Consequently, land set aside for the support of education comes within the purview of sovereign prerogatives for the “public good” or “social safety” under the principles adopted by the Board, hence awards of the Board were subject to these sovereign prerogatives.
What is included and omitted in Land Commission awards is not always the controlling factor in disputes over interests in land in Hawaii. In Application of Robinson, No. 4234, n. 7, Haw., December 5, 1966, the question on appeal was:
*565“Are the reservations of all mineral and metallic mines in favor of the Hawaiian Government (State of Hawaii) contained in the Eoyal Patents valid, when no such reservations were contained in the Land Commission Awards, and the Eoyal Patents were issued pursuant to the Land Commission Awards?”
This court answered yes.
This court also stated that:
“The power over government property thus bestowed on the Land Commission was not unregulated by law, and the Land Commission so recognized. It was within the framework of the governing laws that the Land Commission was to fix the ‘terms’ of the awards. This authority, conferred by section IX of article IY (S.L. 1845-46, p. 109), must be considered in the light of the section as a whole, whereupon it appears that leases as well as patents were to be issued by the Minister of the Interior to claimants ‘pursuant to the terms in which the said board shall have confirmed their respective claims * * *.’ * *
“We recognize that the Land Commission had judicial powers. State v. Hawaiian Dredging Co., 48 Haw. 152, 178, 379 P.2d 593, 608; Kanaina v. Long, 3 Haw. 332, 335; Kahoomana v. Moehonua, 3 Haw. 635, 640. No such powers were called into play here. The Land Commission simply decided who was entitled to a patent in the form prescribed by law. Accordingly, the reservations contained in the Eoyal Patents here involved were valid; the Land Commission Awards were subject thereto when made. No mention of the mineral rights was necessary in the Land Commission Awards since the reservation would be, as in fact it was, contained in the patents. The decree of registration should have provided for the notation of a *566reservation as prayed.” Robinson, supra at 12-3.
Proceeding from Robinson, supra, it conld be reasonably said at least that no reservation was necessary in appellant’s Land Commission Award in the instant case.
IY.
Fourth, the school site under School Grant 27 has been in use and in possession by the State from 1850 to the present time. It is my view that the appellant had the burden of proof of showing non-use or abandonment and has not met this burden. See Hawaiian Commercial & Sugar Co. v. County of Maui, 47 Haw. 486, 392 P.2d 302, petition for rehearing denied, 47 Haw. 587, 392 P.2d 834. The majority places great emphasis and reliance upon the alleged inaccuracy of Makalena’s survey. They say: “The floating Makalena survey is inconclusive as it was not ‘tied down.’ ” This in their view weakens the State’s contention that the school site has been in continuous use and possession from 1850 to the present time. This is not my view of the evidence. I fail to see where Makalena’s survey “floats” about and is not tied down. Upon redirect examination of the government surveyor (Mr. Dunn) at trial, this was brought out on pages 85-6:
“Questions by MR. LEE:
“Q. Mr. Dunn, is it common that in the surveys of the old land commission awards where you have a description, the description is not tied down?
“A, In all, I would say in all the old land commission awards the description is not tied down excepting that it calls for an adjoining owner. Sometimes two adjoining lots made by the same survey would not have the same bearings and would not have the same distance but they w;ould call for one another as adjoining owner.
*567“Q. And the situation like the Makalena survey is very common?
“A. Yes, sir.
“Q. In situations where the lot is not tied down and you want to tie it down, is it common practice for your office to find your hearing from the adjoining kuleanas?
“A. Not always from the adjoining kuleanas. In these cases here, I mean like using this one as an example, why he calls for Hawaii, he calls for Lauloa, he calls for Kahakai which are points which can be identified and working from there we can then take a school lot say, try to run a boundary of the school and fix his survey to see if it fits within the conditions called for, stone walls, fences, other conditions on the ground.
“Q. And this is a common method used by the Survey Office to tie down on awards?
“A. I would say not only by the Survey Office. It was done by all surveyors.” (Emphasis added.)
Upon recross examination of Mr. Dunn by appellant’s counsel, the common practice and custom of surveying during Makalena’s day was not refuted. Appellant’s counsel did not choose to rebut the practice. Thus if we accept appellant’s view — that the survey “is tied down only in that the point of beginning thereof is referred to as being adjacent to the boundary of ‘Hawaii’ [the adjoining kuleana]” — then it appears that all the surveys of that period would be in jeopardy. I cannot accept this view.
Furthermore, I cannot agree with the majority view that this case represents the applicability of a possibility of reverter. Assuming, arguendo, that the School Lands Act of 1859 contains an intent to create a possibility of reverter, it nonetheless does not follow that it applies in *568this case. In order to have a reversion, the schoolhouse itself must “cease to he used.” See Hawaiian Commercial & Sugar Co. v. County of Maui, supra. The majority takes gi:eat care to show that from the surveys there was non-use but the trial court, after hearing the evidence of Mr. Dunn and Mr. Mann, and reviewing the 1917 evidence including all of the surveys, found that the State had continuously used the site as a school even if there was a period of time when the disputed parcel was physically fenced off by someone, be they squatters or otherwise. As long as a schoolhouse exists on the school site — and the majority concede that such was the case from 1860 to the present time — there is the use. The use of the schoolhouse is the use of the entire 1.73 acres which includes the disputed parcel. This was recognized by the School Act of 1850 when it placed a two acre limit on the lands set aside. This itself is a recognition of the need for adjoining lands to he part of the school site. There being such use, the possibility of reverter does not arise.
Even if there was non-use of the disputed portion of land from 1878 to 1905, this by no means manifests an intent to abandon the entire school lot — as long as the school building was located on the far corner of the school site.1 The 14,885 square foot piece could not be abandoned *569or not used in this sense unless the entire site was not used and there is no such evidence. Hawaiian Commercial & Sugar Co. v. County of Maui, supra at 493, 392 P.2d at 306, states:
“Where a claim is asserted, as in this case, that there has been a cessation of use because there has been no physical occupancy of a portion of the school premises, we hold that there must be sufficient evidence to show abandonment * * *. ‘Abandonment is a question of intent and he who asserts it, has the burden of proving it. Nonuse is only evidence that may or may not point to abandonment. * * *’ Dade County v. City of North Miami Beach, supra at 783. See Board of Supervisors v. Newell, 213 Miss. 274, 56 So.2d 689; Clark v. Jones, 173 Ore. 106, 144 P.2d 498. * * *” (Emphasis added.)
I find that the appellant has completely failed to sustain the burden of proof regarding abandonment, as well as non-use.
V.
Finally, I agree with the State that title by adverse possession cannot be acquired by private persons against the government. Assuming, but not conceding, for argument’s sake — that there was non-use (not abandonment) of the disputed area (14,885 sq. ft.), but that there was no reversion of the whole school lot — appellant still cannot take title by adverse possession. The Hawaiian case precedent is well established on this point. In Thurston v. Bishop, 7 Haw. 421, persons similarly situated as ap*570pellant’s predecessors in title were characterized as trespassers by “squatting” on government land. This court said in the Thurston case at pages 437-38:
“How can a mere claim to have his title to this land considered and adjudicated, he considered to have ripened into a perfect title at this late day, or rather into such a title as gives the devisees of his heirs-at-law a right of possession against the State?
There is no prescription against the State. Lindsey vs. Miller’s Lessee, 6 Pet. 666. The Supreme Court of the United States say in this case: “It is a well settled principle that the Statute of Limitations does not run against a State. If a contrary rule was sanctioned, it would only be necessary for intruders upon the public lands to maintain their possessions until the Statute of Limitations shall run; and then they would become invested with the title against the Government and all persons claiming under it. In this way the public domain would soon be appropriated by adventurers. Indeed it would he utterly impracticable, by the use of any power within the reach of the Government, to prevent this result. It is only necessary, therefore, to state the case, in order to show the wisdom and propriety of the rule that the statute never operates against the Government.’ This was adopted in Kahoomana vs. Minister of Interior, 3 Haw. 635.”
Accord, Harris v. Carter, 6 Haw. 195, 209; Kapiolani Estate v. Cleghorn, 14 Haw. 330, 333; Galt v. Waianuhea, 16 Haw. 652, 658; see In re Title of Kioloku, 25 Haw. 357, 367. In the face of this well-established rule, the majority states: “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.” I do not believe it is germane as to what the predecessors regarded themselves *571as — whether trespassers or not. The question is: What was their legal status? The pertinent fact is that there was an implied reservation of the land, even if they had “color of title.” The point is this — even assuming for the sake of argument that they had good title, the area in controversy was reserved by law to the State for use as a school lot. “School Lands Act of 1850,” Vol. II R.L.H. 1925 at 2184; Knudsen v. Board of Education, 8 Haw. 60.
The majority goes on to say: “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.” Again, this is not pertinent. The location of the stone walls or fence is not determinative. The existence of the schoolhouse is the crucial fact. The thrust of the majority view would appear to concede the continued use of the school lot only if the schoolhouse physically occupied the disputed area. The very nature of schools require open play areas surrounding the schoolhouses. These open areas may or may not be delineated by walls or fences. It would be too heavy a burden to ask the school authorities to be ever vigilant against adverse possession, by daily or weekly or monthly inspections of the boundaries. Their primary concern is to educate, not to inspect!
The majority concludes: “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 by adverse possession or by possession akin to prescription. See 2 C.J.S., Adverse Possession, § 5b(1936); see also Annot., 55 A.L.R.2d 554 (1957).” I cannot agree. Whatever may be the general case law reflected in the cited legal treatises in some jurisdictions in the United States — with respect to “possession akin to prescription” — the Hawaiian common law ever since the *5721875 case (it will be noted, coming after tbe “School Lands Act of 1859”) of Kahoomana v. The Minister of the Interior, supra at 640, is this:
“The theory of titles by prescription is, that the holding possession of an estate openly and adversely for a certain length of time, creates an inference that there was a grant from the adverse claimant or his ancestors or grantors, and the statute of limitations forbids the adverse claimant from setting up against this long continued possession, the fact that there was no grant.
“But as against the government, a grant cannot be presumed or inferred from long possession, in view of the law which required claimants to land to present their claims to the Land Commission for confirmation or rejection. * *
“But it may be urged that the length of adverse possession since the closing of the Land Commission creates the inference of a grant. To this the answer is complete. There is no prescription against the state. Quod nullum tempus occurrit regi. ‘A state cannot he disseised/ 2 Washburn, E.P., p. 525.” (Emphasis added.)
Accord, Thurston v. Bishop, supra at 437-38; Harris v. Garter, supra at 209; Kapiolani Estate v. Cleghorn, supra at 333; Galt v. Waianuhea, supra at 658; see In re Title of Kioloku, supra at 367.
Nonetheless, let us assume for argument’s sake only— as the majority maintains — that the “School Lands Act of 1859 * * * clearly provide [s] that any title in the government to a schoolhouse site automatically reverts ‘to the original grántors, or their representatives’ upon the cessation of use.” This, however, is still irrelevant, for there has been no cessation of use, non-use or abandonment. See *573Hawaiian Commercial & Sugar Co. v. County of Maui, supra. Since it is uncontroverted that a schoolhouse existed on the lot from 1860 to the present time, the possibility of reverter and consequent automatic reversion never comes into play. As we pointed out above, as long as a schoolhouse existed on the school lot, there was never any intention to abandon any portion of the school lot.
It is my opinion that we should affirm the decision of the trial judge. It has not been demonstrated to my satisfaction that his findings of fact and conclusions of law were clearly erroneous. This court said recently in Re Land Title, Wong, 47 Haw. 472, 478, 391 P.2d 403, 406:
“It is not our function to try the case de novo. In the view most favorable to appellant we are limited on appellate review of a case of this nature to the determination of whether or not we deem that the trial court’s findings were clearly erroneous. Unless we are firmly convinced that a mistake has been made by the trial court, its findings must stand. Peine v. Murphy, 46 Haw. 233, 377 P.2d 708; Mitchell v. Branch, 45 Haw. 128, 363 P.2d 969; Dzurik v. Tamura, 44 Haw. 327, 359 P.2d 164; Miller v. Loo, 43 Haw. 76. See also United States v. Yellow Cab Co., 338 U.S. 338 * * * ”
The trial judge was in the best position to adduce and evaluate the expert witnesses, their demeanor, and the voluminous exhibits in this case. In concluding otherwise, the majority has attempted a trial de novo, and yet, has not shown the trial judge’s findings to be clearly erroneous. I cannot agree that the trial judge erred and would, therefore, affirm.
The majority’s first headnote is not clear. It states that the “School Lands Act of 1859 created a possibility of reverter which automatically restored the property to the original grantors upon non-use without the necessity of showing an intent to abandon the use by the government.” However, in order to revert the defeasible fee to the grantor, an event must occur which terminates the defeasible fee in the grantee. 19 Am. Jur. Estates § 28, 31.
Assuming that a possibility of reverter was created, the question is whether the event has occurred. The event, of course, is abandonment. The majority indicates that “[i]t is merely a question of non-use, pure and simple.” I do not think that the question is “merely” one of non-use or that it is “pure and simple.” I do not think claims to property can be settled by basing it on simple non-use. Non-use is only one of the factors to be considered together with other pertinent evidence in determining abandonment. HawaUan Commercial, supra at p. 486. “Abandonment is a question of intent * * Dade County v. City of North Miami Beach, *56969 So.2d 780, 783 (Fla.); See Board of Supervisors v. Newell, 213 Hiss. 274, 56 So.2d 689; Clark v. Jones, 173 Ore. 106, 144 P.2d 498, cited in Hawaiian Commercial & Sugar Co. v. County of Maui, 47 Haw. 486, 392 P.2d 302, petition for rehearing denied, 47 Haw. 587, 392 P.2d 834.
To avoid conflict with the Hawaiian Commerpial case, I would interpret “non-use, pure and simple” to mean that there was non-use with the intent to abandon.