Osaki v Pekea [1970] TTLawRp 38; 5 TTR 255 (31 July 1970)

5 TTR 255

OSAKI,
Plaintiff

v.

PEKEA,
Defendant

Civil Action No. 435

Trial Division of the High Court
Truk District

July 31, 1970

Action to determine ownership of land on Tol Island, Truk District. The Trial Division of the High Court, D. Kelly Turner, Associate Justice, held that from all the evidence defendant's casual and permissive use of the land in question was not sufficient to ripen into title as against the convincing proof of acquisition of the land by plaintiff and its subsequent use by plaintiff's predecessor and plaintiff's extended family.

1. Trust Territory - Land Law - Adverse Possession

Adverse possession, under which one can establish ownership by holding adverse possession of land under claim of ownership for the period of the statute limiting the bringing of actions for recovery of land cannot be applied in Trust Territory until 1971 because present twenty year limitation went into effect in 1951 and began to run at that time as to causes of action then existing. (T.T.C., Secs. 316, 324)

2. Real Property - Quiet Title - Laches

The fact that claimant harvested food for his use on adjoining lands did not establish the "open, notorious, exclusive and hostile possession" required to obtain title by either adverse possession for the statutory period or by laches for an equivalent period.

3. Real Property - Quiet Title - Laches

Where occupation of land was with consent it was not hostile and adverse.

4. Courts - Community Courts

Community courts do not have jurisdiction to determine land ownership.

5. Real Property - Lost Grant

Defendant's casual and permissive use of land in question was not sufficient to ripen into title as against the convincing proof of acquisition of land by plaintiff and its subsequent use by plaintiff's predecessor and extended family.

6. Courts - Jurisdiction

When it is possible for parties to resolve their differences in accordance with traditional custom it is desirable that they do so.

7. Courts - Jurisdiction

When parties are unable to reach any agreement then it is the obligation of the court to resolve the dispute upon the best evidence presented it.

Assessor:	SABASTIAN FRANK
Interpreter:	ROKURO M. BERDON
Reporter:	SAM K. SASLAW
Counsel for Plaintiff:	FUJITA PETER
Counsel for Defendant:	NAIDARO NAMONO

TURNER, Associate Justice

This case was referred to District Court Judge Ichiro Moses as Master to take testimony and make findings. After preparation of the pretrial order, to which the parties agreed by stipulation, and during the course of consideration of a petition by Timas for intervention, the defendant objected to further proceedings before the Master because of his membership in plaintiff's clan. Without passing on the propriety of defendant's claim of disqualification, this court ordered the case returned for trial.

Intervention of Timas was again petitioned at the commencement of trial on the ground he was the owner of·a portion of the land Ipat. Upon plaintiff's stipulation that he did not dispute Timas' claim and that plaintiff's only claim to Ipat was to a portion not claimed by Timas but which was claimed by defendant, who also claimed Timas' division, the motion to intervene was denied. Any conflict in ownership of the upper division of Ipat by Timas, not disputed by plaintiff, as against defendant who claims all of Ipat, was held to be a matter for determination between Timas and defendant.

This dispute arose over ownership of the following four parcels of land in Foup Village, Tol Island, Truk District lagoon:-

1. The middle portion of the land known as Ipat claimed by plaintiff who also admitted ownership of the lower division of Ipat by defendant and who also stipulated Timas owned the upper division.

2. The land known as Fauk.

3. The land known as Neachong.

4. The land known as Messa.

FINDINGS OF FACT

1. Inapi, the sister of Chior and Sutok, was the owner of the land Ipat, having acquired it from Rengut when he, with acquiescence of the Achau Clan or Lineage distributed clan land. Inapi transferred the middle portion of Ipat in dispute to Sutok who transferred to Osaki, the plaintiff.

2. Chior, father of defendant, transferred the lower portion of Ipat acquired from Inapi to defendant.

3. Defendant lived on Ipat during the Japanese administration until after World War II when he built a residence on Neachong. Consent to occupancy of Neachong was given by Resapin, younger brother of plaintiff, who plaintiff also represented in this action.

4. Neachong was purchased by plaintiff's predecessor, Sutok, from Iakopus for the sum of 60 yen near the close of the Japanese administration but prior to World War II.

5. Commencing in 1942 through 1945 the land Neachong was farmed by three Okinawans and their Trukese wives. Rental payments were made to Sutok.

6. The land Messa was purchased from Ramen by Sutok in exchange for a thatch house with a tin roof.

7. The land Fauk was lineage land transferred, with lineage consent approximately in 1925, by Rengut to Sutok, who gave it to his children, Osaki, Resapin and Ines. Osaki represents his brother and sister and their families. The defendant's claim that he bought the land from Inapi and that he exercised ownership and control over it since early Japanese times is not sustained by the evidence.

OPINION

Because the land in dispute was lineage land transferred to individual members more than half a century ago and further transferred some 40 years ago during the Japanese administration it is difficult, as is usual in such cases as these, to trace the transfers with clear and certain evidence. The best that the court can do is to accept the probable and reasonable chain of transfer.