Heirs of Mackwelung v Heirs of Mongkeya [2009] FMKSC 2; 16 FSM Intrm. 368 (Kos. S. Ct. Tr. 2009) (19 March 2009)

KOSRAE STATE COURT TRIAL DIVISION

CIVIL ACTION NO. 39-06

HEIRS OF ALLEN MACKWELUNG,
Appellants,

vs.

HEIRS OF KUN MONGKEYA,
Appellees.

_____________________

OPINION

Martin G. Yinug
Special Justice*

Decided: March 19, 2009

*Associate Justice, FSM Supreme Court, sitting by designation

APPEARANCES:

For the Appellants: Canney Palsis
(Heirs of Mackwelung) P.O. Box 224
Tofol, Kosrae FM 96944

For the Appellees: Gerson A. Jackson
(Heirs of Mongkeya) P.O. Box 174
Tofol, Kosrae FM 96944

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HEADNOTES

Property
A tenancy in common is a form of co-ownership where two or more persons have equal and undivided shares in the whole with each having an equal right to the whole, but no right of survivorship. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 372 n.1 (Kos. S. Ct. Tr. 2009).

Domestic Relations  Probate; Property
When the sole owner of land dies his fee simple interest would be inherited by his multiple heirs who would hold that fee simple estate as a tenancy in common. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 372 n.1 (Kos. S. Ct. Tr. 2009).

Appellate Review  Standard of Review  Civil Cases
Since, by statute, the Kosrae State Court decides appeals from the Land Court on the parties' briefs, a request for a de novo proceeding will be denied and no evidence or testimony will be considered except the official record, transcripts, and exhibits received at the Land Court hearing. The court applies the "substantial evidence rule" when reviewing Land Court decisions. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 374 (Kos. S. Ct. Tr. 2009).

Appellate Review  Standard of Review  Civil Cases
If the State Court finds that the Land Court decision was not based upon substantial evidence or that the decision was contrary to law, it must remand the case with instructions and guidance for the Land Court to rehear the matter in its entirety or in such portions as may be appropriate. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 374 (Kos. S. Ct. Tr. 2009).

Appellate Review  Standard of Review  Civil Cases; Evidence  Burden of Proof
Substantial evidence is evidence which a reasoning mind would accept as sufficient to support a conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 374 (Kos. S. Ct. Tr. 2009).

Appellate Review  Standard of Review  Civil Cases
In considering whether a Land Court decision is based upon substantial evidence, the court recognizes that it is primarily the Land Court's task to assess the witnesses' credibility, the admissibility of evidence, and to resolve factual disputes. A finding that substantial evidence supports the findings does not mean that the evidence must be uncontroverted or undisputed, but if findings are adequately supported and the evidence has been reasonably assessed, the findings will not be disturbed on appeal. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 374 (Kos. S. Ct. Tr. 2009).

Appellate Review  Standard of Review  Civil Cases
In reviewing the Land Court's procedure and decision, the State Court considers whether the Land Court: a) has exceeded its constitutional or statutory authority, b) has conducted a fair proceeding, c) has properly resolved any legal issues, and d) has reasonably assessed the evidence presented. The question is whether the Land Court deprived any party of property in an unfair fashion and whether the procedures used ensured a fair and rational decision-making process. The State Court cannot substitute its judgment for the lower court's well-founded findings. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 374 (Kos. S. Ct. Tr. 2009).

Appellate Review  Standard of Review  Civil Cases
When land claimants have apparently abandoned their earlier position that the land was given to their predecessor in 1917 and now assert that the land was acquired at a later time from some person not previously mentioned in the lengthy litigation over the land, and when the Land Court rejected the testimony supporting this new theory, and thus the theory itself, as not credible, the State Court, on appeal, can detect no error in that rejection since it is primarily the Land Court's task, and not the reviewing court's, to assess the witnesses' credibility and resolve factual disputes and the Land Court was present during the testimony. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 374 (Kos. S. Ct. Tr. 2009).

Custom and Tradition  Kosrae; Property
In resolving a land claim, it is irrelevant whether kewosr is a legally-recognized tradition with the force of law today when the kewosr land transfer at issue occurred about 1912. The relevant question would thus be whether kewosr was a tradition when the kewosr occurred. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 375 (Kos. S. Ct. Tr. 2009).

Equity  Estoppel
Collateral estoppel prevents the land claimants from disputing, in this appeal, the existence of a kewosr transfer because collateral estoppel bars a party from relitigating an issue determined against that party in an earlier action, even if the second action differs significantly from the first one, and the court's 1997 decision between the same parties precludes the claimants from arguing that no kewosr transfer occurred or that the land could not have been transferred by kewosr. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 375 (Kos. S. Ct. Tr. 2009).

Courts; Custom and Tradition  Kosrae
Since the Land Court's jurisdiction includes all matters concerning the title to land and any interests therein, that would necessarily include whether kewosr was a tradition affecting land tenure when the alleged transfer took place and whether a kewosr did in fact occur. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 375 (Kos. S. Ct. Tr. 2009).

Property  Land Court
The Land Court's "subdivision" of land was not reversible error nor was it arbitrary when the original 1982 Land Commission determination of ownership explicitly divided the unsurveyed part of the land in its determination and since this division recognized the different history (with different evidence) for the two parts. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 375-76 (Kos. S. Ct. Tr. 2009).

Constitutional Law  Due Process  Notice and Hearing; Property  Land Court
There was no reversible error when the parties certainly had adequate notice of a "subdivision" before the October 18, 2005 Land Court hearing since they knew of it before the 2003 appeal and the 2005 remand and hearing; when one side's assertion that they were not "given the chance to stake out their claims" before the land was subdivided would be a cause of concern if they had claimed less than the entire land, but they claimed the whole unsurveyed land, as did the other side; and since, if the Land Commission erred, it was harmless error because neither side can show that they were prejudiced by this "subdivision" and both sides had the opportunity to assert and to prove their respective claims to both parcels and because the "subdivision" did not prevent or hinder either side from claiming, and trying to prove, that they had title to both parcels. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 376 (Kos. S. Ct. Tr. 2009).

Property  Land Court
A court instruction to the Land Commission to take further action consistent with its decision, including a preliminary survey, and such preliminary and formal hearings as might be necessary to make a determination of ownership, would not be necessary on remand if all that Land Commission was required to do was issue a determination of ownership in a calmant's favor with a certificate of title to follow. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 376 (Kos. S. Ct. Tr. 2009).

Appellate Review  Standard of Review  Civil Cases; Property  Land Court
Since a determination of ownership for the unsurveyed portion of Yekula was not before the court when it rendered its 1997 decision on the other parcels involved in the dispute between the claimants, the State Court's 1997 instructions to Land Commission about Yekula can only be considered further guidance (beyond and in addition to that given in 1988) to the Land Commission on how it ought to proceed in resolving the remainder of the dispute. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 376-77 (Kos. S. Ct. Tr. 2009).

Appellate Review  Standard of Review  Civil Cases; Evidence; Property
Although the presence of a person's name on the 1932 Japanese Survey Map as the owner of a parcel of land is not conclusive or dispositive of that person's ownership but may be overcome or rebutted by other evidence, when there was substantial evidence in the record before the Land Court that Mackwelung used, controlled, and occupied Yekula continuously after 1932, including evidence and testimony presented at the original 1979 Land Commission proceeding, the Land Court reasonably assessed this evidence as supporting the Mackwelungs' position that a kewosr to Sra Nuarar had taken place, and since the testimony that a previously unmentioned person had owned the land and had later transferred it to Kun Mongkeya was reasonably assessed as not credible, the evidence did not overcome the 1932 Japanese survey map. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 377 (Kos. S. Ct. Tr. 2009).

Appellate Review  Standard of Review  Civil Cases; Property
When the boundaries described in two May 9, 1957 land use agreements, one in which Kun Mongkeya granted about ¾ hectare for use by the Kusaie Intermediate School, and in the other in which Allen Mackwelung (and Daniel Aliksa) granted four hectares for the same purpose, and which were both signed not only by the grantors but also by a Tafunsak village chief, the Chief Magistrate of Kusaie, and five members of the Land Advisory Committee of Seven, including the District Administrator and the clerk of courts, abut each other; when the Land Commission-ordered "subdivision" reflects the boundary descriptions in both agreements; and when the boundary location was corroborated by witnesses who had been present in 1957 when the boundary was marked on the ground as personally directed by Allen Mackwelung, this all constitutes substantial evidence in support of the Land Court finding that the 1957 land use agreements reflect the true ownership of the land. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 377-78 (Kos. S. Ct. Tr. 2009).

Evidence; Property
It was not error for the Land Court not to award one side all of the disputed land based on an option agreement that was never exercised and that only refers to a parcel situated somewhere in the disputed land and not all of it and so it does not support a claim to all of the land, even assuming it is some evidence of ownership of some part. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 378-79 (Kos. S. Ct. Tr. 2009).

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COURT'S OPINION

MARTIN G. YINUG, Special Justice:

On October 18, 2005, the Kosrae Land Court held an ownership determination hearing. On February 16, 2006, it entered a memorandum of decision. Both parties timely appealed that decision to the Kosrae State Court. Kos. S.C. § 11.614(1). On June 15, 2006, the State Court entered two orders designating me to preside over both appeals. Kos. Civ. R. 88. On January 7, 2008, both appeals were consolidated into Civil Action No. 39-06. Kos. App. R. 3(b). The parties waived oral argument and filed supplemental briefs. This matter is now ripe for adjudication on the parties' submissions. Both parties were represented by counsel: Canney Palsis appeared for the Appellants Heirs of Allen Mackwelung ("Mackwelungs") and Gerson A. Jackson appeared for the Appellees Heirs of Kun Mongkeya ("Mongkeyas"). The February 16, 2006 Land Court decision is affirmed for the following reasons.

I. PROCEDURAL HISTORY AND BACKGROUND

This case has a lengthy history. The Kosrae District Land Commission issued a notice of preliminary inquiry on July 27, 1979, for all land in Tafunsak municipality known as Yekula, consisting of parcels 004-T-09 and 004-T-10, as well as unsurveyed land south and upland from those parcels. The preliminary inquiry was held on September 11, 1979.

The Land Registration Team held a formal hearing about the ownership of Yekula on November 14, 1979. The primary claimants were Kun Mongkeya and Allen Mackwelung. Both claimants were represented by counsel at the formal hearing. After the primary claimants passed away (Mongkeya in 1979, Mackwelung in 1981) the matter was pursued by their respective heirs.

On September 24, 1982, the Land Commission, to which the matter had been referred by the Land Registration Team without finding or adjudication because of the matter's complexity and the disqualification for conflicts of interest of most of the team, issued a seven-page findings of fact and opinion regarding Yekula, determining that the Mackwelungs owned parcels 004-T-09 and 004-T-10 as well as the unsurveyed portions of Yekula and "that Kun Mongkeya and all those claiming under him have no rights or interests in the described lands, except for approximately three-fourth (3/4) of an hectare of land formerly used by the Kosrae High School." Id. at 7. The Mongkeyas appealed the Land Commission's determination of ownership on January 21, 1983. The Mackwelungs did not appeal the Land Commission ruling concerning the ¾ hectare.

The appeal was filed in the Trust Territory High Court, and, after the Kosrae State Court was certified, the matter was transferred to the State Court. The State Court issued two published opinions. In the first, it held that there was no bias or violation of the Mongkeyas' statutory or constitutional rights based on the alleged family relations of Land Commission members to the Mackwelungs. Heirs of Mongkeya v. Heirs of Mackwelung (I), 3 FSM Intrm. 92, 97-101 (Kos. S. Ct. Tr. 1987). In the second, the State Court set aside the 1982 Land Commission determination of ownership, ruling that that opinion, when read with the record, did not adequately support its findings. Heirs of Mongkeya v. Heirs of Mackwelung (II), 3 FSM Intrm. 395, 402 (Kos. S. Ct. Tr. 1988). Rather than conducting evidentiary hearings, the State Court remanded the case to the Land Commission for further consideration of two issues: (1) whether a kewosr transfer to Sra Nuarar took place and (2) whether Kun Mongkeya testified in Alun M. v. Kioken Daniel, Trust Territory High Court Civil Action No. 111 (Pon. Tr. Div. Oct. 23, 1958), and if so, whether his failure to assert a claim in that suit reflected on the credibility of his claim to be the owner. Heirs of Mongkeya (II), 3 FSM Intrm. at 402.

The Land Commission reconsidered as directed by the State Court, and on October 19, 1989, again found that the Mackwelungs owned the disputed lands. First, it determined that the lands involved in Alun M. v. Daniel, TT High Court Civil Action No. 111, were the same as in this case. Second, the Land Commission examined the 1932 Japanese map and found parcels 004-T-09 and 004-T-10 to correspond with parcels 25 and 26. Third, the Land Commission found that Kun Mongkeya was a defense witness in Alun M. v. Daniel, and did not assert an ownership right during those proceedings. Fourth, the Land Commission concluded that a kewosr took place transferring the land from Kun Mongkeya to Nuarar. On September 24, 1992, the Land Commission issued new determinations of ownership for parcels 004-T-09 and 004-T-10, confirming again that the Mackwelungs own the parcels. Two differences exist between the single 1982 determination of ownership and the two 1992 determinations of ownership. The 1982 determination was for a fee simple estate. In 1992, the estates were described as tenancies-in-common.[1] More significantly, the 1982 determination of ownership stated that the Mackwelungs owned both parcels and most of the remaining unsurveyed area of Yekula. The 1992 determinations of ownership were for parcels 004-T-09 and 004-T-10 only; they did not determine the ownership of any unsurveyed portion of Yekula.

The Mongkeyas appealed to the State Court on January 15, 1993. The State Court granted the Mongkeyas' request for a trial de novo, which was held on October 31 and November 1, 1995. The State Court affirmed the Land Commission's determination that the Mackwelungs owned parcels 004-T-09 and 004-T-10, and remanded the issue of title to the unsurveyed portions of Yekula to the Land Commission for further action consistent with its decision, including a preliminary survey, such preliminary and formal hearings as may be necessary to make a determination of ownership, and a review of portions of the record already before it except that it was not to consider TT High Court Civil Action No. 111 as binding on the Heirs of Kun Mongkeya. Heirs of Mongkeya v. Heirs of Mackwelung (III), 8 FSM 31, 39 (Kos. S. Ct. Tr. 1997).

On remand, the Land Commission designated the unsurveyed portions of Yekula as two parcels. On January 13, 2003, after a hearing, the newly-formed Kosrae Land Court confirmed the Land Commission's division of Yekula, determining that the Mackwelungs owned 40,000 square meters (four hectares) of Yekula and that the Mongkeyas owned 8,457 square meters.

The Land Court's January 13, 2003 decision was appealed to the State Court, which remanded the matter to the Land Court because of problems with the appeal record. On October 18, 2005, the Land Court again heard the matter, and on February 16, 2006, it again confirmed the Land Commission's division of Yekula, assigning 40,000 square meters (four hectares) to the Mackwelungs and designating that parcel as 061-T-13 (formerly 061-T-13-A), and assigning 8,457 square meters to the Mongkeyas and designating that parcel as 061-T-32 (formerly 061-T-13-B).

Both parties, under Kos. S.C. § 11.614(1), appealed the February 16, 2006 Land Court decision to the State Court, and this consolidated appeal follows.

II. ISSUES ON APPEAL

Both the Mackwelungs and the Mongkeyas are appellants although for the purpose of consolidating their appeals, the Mackwelungs were designated appellants and the Mongkeyas were designated the appellees. The Mackwelungs assert that the Land Court committed reversible error, as a matter of law or fact, in confirming the Land Commission's division of Yekula, and in finding that the Mackwelungs owned only four hectares of Yekula, parcel 061-T-13, and that the Mongkeyas owned 8,457 square meters of Yekula, designated as parcel 061-T-32. The Mongkeyas assert that the Land Court erred by exceeding its constitutional and statutory authority in recognizing kewosr as a tradition; by not conducting a fair proceeding when it permitted the Division of Survey and Mapping to rely on the two Trust Territory Land Use Agreements to establish the subdivision's purported boundaries; by not basing its decision on sufficient evidence; and by not properly resolving any and all legal issues.

After the parties waived oral argument, the court requested, and the parties submitted, supplemental briefs addressing the following specific questions raised by their appeals: (1) Did the Land Commission violate the parties' due process rights by dividing Yekula without affording the parties a right to be heard on the matter?; (2) Does the evidence support the finding that Mongkeya transferred Yekula to Sra Nuarar by kewosr?; (3) Did the Land Court properly admit and weigh evidence of tradition in finding that a kewosr took place?; (4) Did the Land Commission, after remand, properly follow this court's instructions in Heirs of Mongkeya v. Heirs of Mackwelung, 8 FSM Intrm. 31 (Kos. S. Ct. Tr. 1997)?; (5) Do the 1957 land use agreements entered into between the parties, individually, and the Trust Territory reflect the true ownership of Yekula?; (6) Were the 1957 land use agreements legal, valid and enforceable, and should the Land Court have considered them?; and (7) Did the Land Commission properly weigh as evidence the 1932 Japanese map indicating that Mackwelung owned Yekula?

III. STANDARD OF REVIEW

The court decides the matter on the parties' briefs. Kos. S.C. § 11.614(5). The Mongkeyas' request for a de novo proceeding was therefore denied. No evidence or testimony can be considered except the official record, transcripts, and exhibits received at the Land Court hearing. Kos. S.C. § 11.614(5)(a). The State Court must apply the "substantial evidence rule" when reviewing Land Court decisions. Kos. S.C. § 11.614(5)(b). If the State Court finds that the Land Court decision was not based upon substantial evidence or that the decision was contrary to law, it must remand the case with instructions and guidance for the Land Court to rehear the matter in its entirety or in such portions as may be appropriate. Kos. S.C. § 11.614(5)(d). Substantial evidence is evidence which a reasoning mind would accept as sufficient to support a conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. Nakamura v. Moen Municipality, 15 FSM Intrm. 213, 217 n.1 (Chk. S. Ct. App. 2007).