Thomas v Trust Territory [1979] TTLawRp 12; 8 TTR 40 (23 May 1979)

8 TTR 40

ORRENGES THOMAS, Plaintiff-Appellee

v.

TRUST TERRITORY OF THE PACIFIC ISLANDS, Defendant-Appellant

Civil Appeal No. 275

Appellate Division of the High Court

Palau District

May 23, 1979

Dispute over ownership of land. The Appellate Division of the High Court, Hefner, Associate Justice, held that where German Government was deeded clan land by head of clan in 1909, and the Japanese later acquired the mineral rights, and apparently did not also acquire the land itself, when the United States took the island containing the land the United States acquired all rights of prior sovereigns, including the German Administration's rights to the lands transferred by the 1909 deed; and as rights of the United States were represented by the Trust Territory, when the clan, in the 1960's, filed a claim to the land and was given a quitclaim deed in exchange for a release of the claim, the clan received consideration for its release and the government gave up its interest in the land, except for land retained under the quitclaim deed for United States Coast Guard use.

1. Palau Land Law-Alienation of Land of Another Clan

Palauan customary land law provides that a head of one clan cannot alienate land belonging to another clan.

2. Palau Land Law-Clan Ownership-Transfer

Under Palauan customary land law the only way clan or lineage land can be transferred is when the consent of the senior members of the clan is obtained.

3. Deeds-Consideration-Presumptions

Consideration was presumed where deed recited that 1,200 German marks were paid the sellers of land for the land.

4. Palau Land Law-Clan Ownership-Transfer

It would be presumed that head of clan had the consent of the senior members of the clan to sign deed transferring ownership of clan land where no evidence appeared of any attempt of the clan to rescind or revoke the transfer.

5. Palau Land Law-Alienation of Land of Another Clan

Where there were 18 clans on island and the heads of three clans signed deed transferring ownership of the island to the German Government, the signatories did not have authority to transfer the whole island, but the clan heads who did sign could and did transfer the land of their clans.

6. Palau Land Law-Clan Ownership-Transfer

Where clan head transferred clan land by deed and there was no evidence clan attempted to rescind or revoke the transfer, the clan was estopped from denying the transfer.

7. Palau Land Law-Clan Ownership-Release

Where German Government was deeded clan land by head of clan in 1909, and the Japanese later acquired the mineral rights, and apparently did not also acquire the land itself, when the United States took the island containing the land the United States acquired all rights of prior sovereigns, including the German Administration's rights to the lands transferred by the 1909 deed; and as rights of the United States were represented by the Trust Territory, when the clan, in the 1960's, filed a claim to the land and was given a quitclaim deed in exchange for a release of the claim, the clan received consideration for its release and the government gave up its interest in the land, except for land retained under the quitclaim deed for United States Coast Guard use.

8. Appeal and Error-Record on Review-Designation and Certification

Where court rule was designed to eliminate having court clerks certify everything in the file upon an appeal where there is no need for certification of everything, and to require the appealing counsel to designate what he thought necessary for the appeal, the clerk to then certify what counsel designated, and counsel designated the entire file records without going over them, and many of them were irrelevant, counsel's client would be taxed $300 as a reasonable expense. (T.T.R. App. P. 16)

Counsel for Appellant:	JOHN TARKONG, Attorney General's Office
Counsel for Appellee:	CARLOS SALII

Before HEFNER, Associate Justice, GIANOTTI, Associate Justice, and LAURETA, Designated Judge

HEFNER, Associate Justice

At issue in this appeal is the ownership of an airstrip and related facilities on Angaur Island, Palau, that were used by the United States Coast Guard. The use commenced in 1952 or 1953, although a formal "Use and Occupancy" Agreement was not entered into between the Trust Territory Government and the United States until 1971.

The appellee is the male head of the Ochedaruchei Clan with the title of Adelbai. The clan claims ownership of the land from a period predating the events to be related in this opinion. The Trial Court apparently found this to be the case, and this Court will not disturb that finding.

For the purposes of this matter the history commences during the German Administration.

Sometime after the turn of the century, the need for phosphate was such that it was determined that it was economical to mine phosphate from the Island of Angaur.

In order to acquire land to perform this mining operation, the German Government assigned its administrators the task of dealing with the people on Angaur Island. Consequently, on November 20, 1909, an Agreement was entered into which purportedly transferred ownership in Angaur Island, except for 150 hectares, to the "lands Treasury" of the German Government.

The Agreement was signed by eight Angaurese of which only three were heads of the clans. (Tr. p. 12-15.)

Thereafter, the Germans mined phosphate until the Japanese acquired the mining rights. There is no showing that the German Administration transferred its purported land ownership interest to the Japanese Government.

The Japanese Government mined phosphate until the war, when the United States military forces conquered the island.

In 1947-48 negotiations were commenced to renew the mining operations and a Mining Agreement was entered into. Basically, the clans of Angaur agreed to allow the United States to mine phosphate in exchange for royalties. The clans which claimed land in the mined area were referred to as owners in the various agreements relating to the mining operations.

The people of Angaur were given pretty much free access in the German, Japanese and U.S. Administrations to the island except that some houses had to be relocated for mining purposes. The testimony reveals that the Angaurese paid no rent to anyone and, in certain instances, obtained rentals for the use of lands in Angaur.

The appellee argues this demonstrated that everyone treated the Angaurese as owners and, in fact, they are the owners of the land.

In the early 1950's, the Government surveyed the island and the Coast Guard began using the property in dispute around 1953. In the early 1960's, the people were invited to file claims for their land pursuant to land management regulations. Included in the claims filed was Claim No. 230, which was signed by the predecessor of the appellee and which claimed essentially the land in dispute in this case. Apparently, the Government determined to resolve the problem of the claims by executing quitclaim deeds to the various claimants in exchange for a release by the claimants. In the case of Claim No. 230, the Government quitclaimed three lots included in the claim, but retained a large portion for the use of the Coast Guard, including the airstrip and navigation station operated by the Coast Guard. The head of the Ochedaruchei Clan, Ongino, signed a release (Defendant's Exhibit E) in exchange for the quitclaim deeds. The release states in part:

In consideration of . . . deeds of even date, . . . I Ongino hereby withdraw Palau Land Claim No. 230 . . . and do hereby remise, release and forever discharge the Government . . . of and from any and all manner of actions, causes of action, suits, proceedings, damages, claims and demands whatsoever in law or equity, which the Ochedaruchei Clan, now have or hereafter shall or may have against the Government . . . by reason of any matter, cause or thing concerning or arising out of any activity on or use of, or status of right, title and interest in and to said lands.

From 1953 to about 1978 the Coast Guard used the retained land. In 1975, the appellee discovered the 190 9 German Agreement, and shortly thereafter filed his lawsuit.

The appellee was successful in convincing the Trial Court that his cause of action did not commence until 1975 and therefore the bar of statute of limitation or laches did not apply. It was further found that there was no consideration for the withdrawal and release of land Claim No. 230 executed in 1962 by Ongino and that the. German deed was not effective to transfer title to the major part of the island because not all of the heads of the Angaur clans signed the deed.

In analyzing the merits of appellant's appeal, we start with the 1909 German deed.

There appears little doubt that the persons who signed the deed did not have authority to transfer the entire island. The Trial Court found that at all times pertinent there were 18 separate and distinct clans on Angaur, each of which owns land in its own right. Only three heads of the 18 clans signed the deed.

[1, 2] Palauan customary land law provides that a head of one clan cannot alienate land belonging to another clan. The only way clan or lineage land can be transferred is when the consent of the senior members of the clan is obtained. Gibbons v. Bismark, 1 T. T. R. 372 (Tr. Div. 1958); Medaliwal v. Irewei, 2 T.T.R. 546 (Tr. Div. 1964); Rechemang v. Belau, 3 T.T.R. 552 (Tr. Div. 1968); Armaluuk v. Orruken, 4 T.T.R. 474 (Tr. Div. 1969).

However, of crucial importance to the resolution of this appeal are two facts. First, the excepted area of 150 hectares is in the southeast of the island and does not include the land in dispute here. Second, the signature "Gagelbai" as it appears on the German deed is in fact that of Adelbai, the title of the head of the Ochedaruchei Clan. (Tr. p. 13, LL 11-14.) This was also conceded at the time of argument by appellee's counsel.

[3] The German deed recites that 1,200 German marks was paid the sellers for the land. Consideration is presumed. 18 Am. Jur. 2d Contracts sec. 90. Indeed, there is no showing that the signatories did not receive consideration.

[4]