CHUUK STATE SUPREME COURT APPELLATE DIVISION
Cite as Rosokow v. Bob
11 FSM Intrm. 210 (Chk. S. Ct. App. 2002)

[11 FSM Intrm. 210]

AKOSTIN ROSOKOW, SAPINO AKENA, PISENTY
URUMAN, LEON EPSIOM, LIKORIO TENO, FELIS ROBERT,
OSEPIO KANOPWA, RICKY MWELEITO, and ANTHOLINO
ROSOKOW, on behalf of their Lineage of Wito Clan in
Namonwito and People of Namonwito,
Appellants,
 
vs.
 
KISAUO BOB and his Lineage of Sapunupi on Nomwin,
Appellees.
 
CIVIL APPEAL NO. 08-1995
 
OPINION
 
Argued: December 10, 2001
 
Decided: November 6, 2002
 
BEFORE:
 
Hon. Keske S. Marar, Associate Justice, Chuuk State Supreme Court
Hon. Yoster Carl, Temporary Justice, Chuuk State Supreme Court*
Hon. Midasy O. Aisek, Temporary Justice, Chuuk State Supreme Court**
 
*Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
**Attorney at Law, Weno, Chuuk
 
APPEARANCES:
 
For the Appellants:                             Tony Rosokow
                                                              P.O. Box 613
                                                              Weno, Chuuk FM 96942
 
For the Appellees:                             Julio M. Akapito (argued)
                                                             P.O. Box 303
                                                             Weno, Chuuk FM 96942
 
                                                            Joseph Muritok (brief)
                                                            P.O. Box 395
                                                            Weno, Chuuk FM 96942

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[11 FSM Intrm. 211]

HEADNOTES

Appellate Review ) Standard of Review
     An appellate court starts its review of a trial court's factual findings by presuming the findings are correct. The appellant's burden is to clearly demonstrate error in the trial court's findings. The reason for this heavy burden is that the trial court had the opportunity to view the witnesses as they testify and to observe their demeanor before reaching its conclusions as to the witnesses' credibility. The reviewing court does not have the same opportunity. Rosokow v. Bob, 11 FSM Intrm. 210, 214 (Chk. S. Ct. App. 2002).
 
Appellate Review ) Standard of Review
     A trial court's factual findings can be overturned only when they are not supported by substantial evidence in the record, or if they were the result of an erroneous conception of the applicable law, or if, after a consideration of the entire record, the appellate court is left with a definite and firm conviction that a mistake has been made. Rosokow v. Bob, 11 FSM Intrm. 210, 214 (Chk. S. Ct. App. 2002).
 
Appellate Review ) Standard of Review
     Questions of law are reviewed de novo. Rosokow v. Bob, 11 FSM Intrm. 210, 214 (Chk. S. Ct. App. 2002).
 
Constitutional Law ) Due Process; Constitutional Law ) Taking of Property
     A claim of taking of property without due process of law is effective only against governmental entities or officials. The constitutional guarantee of due process only protects persons from the governments, and those acting under them, established or recognized by the Constitution. Rosokow v. Bob, 11 FSM Intrm. 210, 215 (Chk. S. Ct. App. 2002).
 
Constitutional Law ) Chuuk ) Due Process; Constitutional Law ) Due Process
     The FSM Constitution's due process provision protects persons from the governments, and those acting under them, established or recognized by the Constitution, and does not create causes of action against private parties. The Chuuk Constitution due process provision functions in the same manner. Rosokow v. Bob, 11 FSM Intrm. 210, 215 (Chk. S. Ct. App. 2002).
 
Constitutional Law ) Due Process
     Once the governmental defendants were dismissed there was no one against which to bring due process claims and civil rights taking claims so those claims were thus properly dismissed. Rosokow v. Bob, 11 FSM Intrm. 210, 215 (Chk. S. Ct. App. 2002).
 
Constitutional Law ) Taking of Property; Torts ) Conversuion; Torts ) Nuisance; Torts ) Trespass; Torts ) Trespass to Chattels
     A claim that some private party has taken or deprived someone of their property is, if it was personal property that was allegedly taken, a claim for conversion or for trespass to chattels, and, if it was real property that was allegedly taken by some private party, it is a claim for trespass (including actions for ejectment) or possibly for nuisance (interference with use and enjoyment of land). They are not due process or takings claims. Rosokow v. Bob, 11 FSM Intrm. 210, 215 (Chk. S. Ct. App. 2002).
 
Evidence ) Hearsay
     As a general rule, hearsay evidence is inadmissible unless it falls within an exception to the hearsay rule. The reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located, is such an exception and is admissible as evidence. Rosokow v. Bob, 11 FSM Intrm. 210, 215 (Chk. S. Ct. App. 2002).

[11 FSM Intrm. 212]

Appellate Review ) Standard of Review; Evidence
     A trial court's errors in admitting or excluding evidence are not grounds for reversal when the appellants have not explained what the evidence would have shown had it been admitted and how this evidence would or could have changed the court's decision because error in admitting or excluding evidence is not ground for vacating judgment unless refusal to do so is inconsistent with substantial justice. Rosokow v. Bob, 11 FSM Intrm. 210, 216 (Chk. S. Ct. App. 2002).
 
Appellate Review ) Standard of Review
     The trial court will be affirmed when the appellants have not overcome the presumption that a trial court's findings are correct, and have not met their heavy burden of showing that the trial court's findings were clearly erroneous and when there was substantial evidence in the record to support the trial court's decision that the island belonged to the appellees and a review of the entire record does not leave the appellate court with the definite and firm feeling that a mistake has been made. Rosokow v. Bob, 11 FSM Intrm. 210, 216 (Chk. S. Ct. App. 2002).
 
Appellate Review; Judgments
     When the trial court concluded that its ruling would not change what had been established long ago and continued until today and what had been habitually practiced on an island but did not make a finding of what had been established long ago and what had been the habitual and normal practice on the island, the case will be remanded to the trial court for it to determine if the appellants had customary and traditional use rights to the island and what the extent of those rights is. Rosokow v. Bob, 11 FSM Intrm. 210, 216-17 (Chk. S. Ct. App. 2002).
 
Custom and Tradition; Proprety
     Customary and traditional use rights to an island are a form of property right. Rosokow v. Bob, 11 FSM Intrm. 210, 217 (Chk. S. Ct. App. 2002).
 
Judgments; Torts ) Intereference with Customary Property Rights; Torts ) Trespass
     A cause of action that alleges that the plaintiffs' customary and traditional rights to use an island might be better described as intentional interference with a customary and traditional property right than trespass. That the plaintiffs referred to it as a trespass should not, in itself, be an obstacle to them prevailing on this point if the evidence warrants, because except for judgments rendered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings. Rosokow v. Bob, 11 FSM Intrm. 210, 217 (Chk. S. Ct. App. 2002).
 
Appellate Review
     When an appellate court remands a case to the trial court on the ground that the lower court's findings are inadequate the reviewing court may require or recommend that the trial court take additional evidence. Rosokow v. Bob, 11 FSM Intrm. 210, 217 (Chk. S. Ct. App. 2002).

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COURT'S OPINION

KESKE S. MARAR, Associate Justice:

    This appeal arises from a trial court decision that the isolated and uninhabited island of Fayu belongs to Kisauo Bob and his lineage of Sapunupi on Nomwin and not by Angoma Manny and his lineage of Sapunupi on Nomwin or by the Wito Clan from Namonwito.

[11 FSM Intrm. 213]

I. Background

     On February 13, 1992, the plaintiffs, Akostin Rosokow and others on behalf of their Wito Clan lineage in Namonwito and People of Namonwito, filed suit against Angoma Manny, the traditional chief of Nomwin, James Mull the mayor of Nomwin, and Nomwin Municipality over the island of [East] Fayu. The complaint alleged that the plaintiffs owned the island because their ancestors had discovered it first, and that the defendants now asserted ownership, had destroyed the plaintiffs' plantings on Fayu, and had violated a gentleman's agreement dating from Japanese and American times that both groups would share and use Fayu as a place to rest, or son mataaw. The plaintiffs alleged that the defendants had violated their constitutional due process rights, their civil rights, and committed trespass by attempting to exclude them from any use of Fayu, barring them from landing there, and interfering with them when they do.

     On April 15, 1992, Kisauo Bob and his Sapunupi lineage on Nomwin, moved to intervene and filed their intervenors' complaint, claiming that their ancestors had cultivated Fayu long before the plaintiffs' ancestors had seen the island and that they were the rightful owners of Fayu by inheritance. The Mayor of Nomwin and Nomwin Municipality were voluntarily excluded from the case as defendants before trial.

     The plaintiffs' constitutional due process and civil rights claims were dismissed during trial. Trial continued on the plaintiffs' remaining civil rights claim that alleged the defendants had violated 11 F.S.M.C. 701 by not paying for the damage to the plaintiffs' crops on Fayu and on their the plaintiffs' trespass claim and on the intervenors' claim that they were the true owners of Fayu. In essence, the trial court, with the parties' apparent and implied consent, tried the issue of which of the three competing sets of parties had the better claim to ownership and use of Fayu. See Chk. Civ. R. 15(b); see also Apweteko v. Paneria, 6 FSM Intrm. 554, 557, 1 CSR 30, 32 (Chk. S. Ct. App. 1994).

      Judgment was entered on June 5, 1995. The trial court held that Fayu belonged to Nomwin and was under the control of the Sapunupi Clan of Kisauo Bob's lineage and not of Angoma Manny's lineage. (The court noted that the third Sapunupi Clan lineage on Nomwin, the Ottos, had not made a claim in the case.) When referring to the alleged gentlemen's agreement to use Fayu as a resting place, the court said that if there was such an agreement, it meant there was no claim of ownership to Fayu and that the plaintiffs could not establish ownership of Fayu. The court concluded that its order would not change what had been established long ago and continued until today, but that it was merely clarifying what had been habitually practiced on Fayu because it did not want to disturb the normal practice in the place.

II. Appellate Procedural Background

     On July 4, 1995, the defendants, and on July 5, 1995, the plaintiffs, filed their notices of appeal. On December 7, 1998, the Angoma Manny appellants moved for a continuance because the record was not yet ready and because it was no longer appropriate for their counsel to represent them as he was now the Chuuk Attorney General and they needed time to find substitute counsel. A continuance was granted. On January 19, 2000, both appeals were dismissed for not filing opening briefs.

     The Rosokow appellants (the plaintiffs) moved to vacate the dismissal on the ground that they had filed their opening brief on March 27, 1997. A review of the file revealed that that was correct, and also that the appellees had filed an answering brief on April 28, 1997, and that the Rosokow appellants' reply brief had been filed on May 8, 1997. The motion to vacate that dismissal was granted. No motion to vacate was filed by the Angoma Manny appellants (the defendants), and a

[11 FSM Intrm. 214]

thorough search revealed that no brief had been filed on their behalf. Dismissal of that appeal was therefore not vacated. The judgment against the Angoma Manny defendants is thus final. The matter now before us is therefore limited to the plaintiffs' appeal of the judgment in favor of the intervenors.

III. Issues Presented by Appellants

     The appellants contend (1) that the trial court erred in recognizing the intervenors' claim and not theirs because, they assert, the preponderance of the evidence favored their claim; (2) that the trial court failed to fully understand the custom or tradition or culture of Namonwito and Nomwin regarding Fayu's use or the gentlemen's agreement over its use; (3) that the trial judge erred in his findings of fact when he found that the defendants and intervenors agreed that Nomwin owned Fayu; (4) that the trial court erred when it stated that there were two portions of Fayu, when there were three; (5) that the trial court erred in finding that Fayu is an islet of Nomwin and that Kisauo Bob's lineage of the Sapunupi Clan had authority over it; and (6) that the trial court erred in believing the intervenors' testimony and being swayed by the former FSM President's testimony when he was not an expert witness and his testimony was hearsay.

     The appellants also contend that the court erred by not recognizing that the plaintiffs were the first to discover and introduce flora and fauna to Fayu, and by not ruling that their rights under 11 F.S.M.C. 701 and the FSM and Chuuk Constitutions were violated when the defendants and the intervenors, through their public announcements, banned others from landing on or entering Fayu. The appellants ask that the court vacate or reverse the trial court ruling that the intervenors have authority over Fayu except for the part that allows equal share or use of Fayu by all parties by virtue of the custom and tradition or past practice.

IV. Standard of Review

     The appellants' contentions are mostly claims that the trial judge's factual findings were in error. An "appellate court starts its review of a trial court's factual findings by presuming the findings are correct." Emilios v. Setile, 6 FSM Intrm. 558, 560, 1 CSR 17, 19 (Chk. S. Ct. App. 1994). The appellant's burden is "to clearly demonstrate error in the trial court's findings." Lewis v. Haruo, 8 FSM Intrm. 300L, 300n (Chk. S. Ct. App. 1998). "The reason for this heavy burden is that the trial court had the opportunity to view the witnesses as they testify and to observe their demeanor before reaching its conclusions as to the witnesses' credibility. The reviewing court does not have the same opportunity." Emilios, 6 FSM Intrm. at 560, 1 CSR at 19 (citation omitted). A trial court's factual findings can be overturned only when they are "not supported by substantial evidence in the record," or if they were "the result of an erroneous conception of the applicable law," or if, after a consideration of the entire record, the appellate court "is left with a definite and firm conviction that a mistake has been made." Cheni v. Ngusun, 6 FSM Intrm. 544, 547, 1 CSR 35, 37-38 (Chk. S. Ct. App. 1994). Questions of law are reviewed de novo. Ungeni v. Fredrick, 6 FSM Intrm. 529, 531, 1 CSR 14, 15 (Chk. S. Ct. App. 1994).

V. Discussion

A. Due Process and Civil Rights Claims

      The appellants contend that the court erred by not ruling that their rights under 11 F.S.M.C. 701 and the FSM and Chuuk Constitutions were violated when the defendants and the intervenors, through their public announcements, banned others from landing on or entering Fayu. These constitutional due process and civil rights claims were dismissed during trial. The Mayor of Nomwin and Nomwin Municipality were dismissed from the case prior to trial. Those two defendants had been the only

[11 FSM Intrm. 215]

governmental parties in the case.

     These constitutional and civil rights claims (the plaintiffs' first three causes of action) were based on the plaintiffs' assertion that the defendants had deprived them of their property without due process of law. A claim of taking of property without due process of law is effective only against governmental entities or officials. "The constitutional guarantee of due process only protects persons from the governments, and those acting under them, established or recognized by the Constitution." Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 113 (Chk. 1995) (plaintiff's firing by a private employer did not state a cause of action for unconstitutional deprivation of due process because no governmental entity or official was a defendant; the defendant was not alleged to be performing an essential governmental function; and a government action was not at issue); Suldan v. FSM (II), 1 FSM Intrm. 339, 354 (Pon. 1983) ("The fundamental concept of procedural due process is that the government may not be permitted to strip citizens of life, liberty or property in an unfair, arbitrary manner."). The due process provision of the FSM Constitution protects "persons from the governments, and those acting under them, established or recognized by the Constitution, and does not create causes of action against private parties." Phoenix of Micronesia v. Mauricio, 9 FSM Intrm. 155, 157 (App. 1999). The due process provision of the Chuuk Constitution, Chk. Const. art. III,  2, functions in the same manner. Once the mayor and the municipality were dismissed, there were no governmental defendants against which to bring due process claims and civil rights taking claims. These claims were thus properly dismissed.

      A claim that some private party has taken or deprived someone of their property is, if it was personal property that was allegedly taken, a claim for conversion, see, e.g., Bank of Hawaii v. Air Nauru, 7 FSM Intrm. 651, 653 (Chk. 1996), or for trespass to chattels, see, e.g., Talley v. Lelu Town Council, 10 FSM Intrm. 226, 234 (Kos. S. Ct. Tr. 2001), and, if it was real property that was allegedly taken by some private party, it is a claim for trespass (including actions for ejectment), see, e.g., In re Parcel No. 046-A-01, 6 FSM Intrm. 149, 155 (Pon. 1993), or possibly for nuisance (interference with use and enjoyment of land), see, e.g., Nelper v. Akinaga, Pangelinan & Saito Co., 8 FSM Intrm. 528, 540-41 (Pon. 1998). The trial court's dismissal of the constitutional due process claims and the civil rights claim based on it was therefore proper as a matter of law and is affirmed.

B. Former President Nakayama's Testimony

     The appellants contend that the trial court erred by being swayed by the former FSM President Tosiwo Nakayama's testimony when he was not an expert witness and his testimony was hearsay. As a general rule, hearsay evidence is inadmissible unless it falls within an exception to the hearsay rule. Chk. Evid. R. 802. The "[r]eputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located," is an exception to the hearsay rule and is admissible as evidence. Chk. Evid. R. 803(20). Nakayama's testimony as to his knowledge that Fayu belonged to Nomwin people fits within that exception. Nakayama also testified that although Fayu belonged to Nomwin people, it was open, without restriction, to people from the Westerns and from the Wito region to land on it and rest on their way to and from the Lagoon. That testimony (favorable to the appellants) of customs affecting the use of Fayu also falls within this hearsay exception.

     Furthermore, the trial court judgment relied on a number of witnesses, not just Nakayama, in reaching its findings. We see no error in admitting Nakayama's testimony and the trial court's consideration of it.

[11 FSM Intrm. 216]

C. Other Assignments of Error

     The appellants also contend that the preponderance of the evidence favored their claim and therefore the trial court erred in recognizing the intervenors' claim and not theirs; that the trial court erred in finding that Fayu is part of Nomwin and that the intervenors had authority over it; and that the trial court erred in believing the testimony presented by the intervenors (including Nakayama's, already discussed). To sustain this contention the appellants assign various errors to the trial court.

     The appellants allege as error, the trial court's finding that both the defendants and intervenors agreed that Nomwin people owned Fayu. But why wouldn't the defendants and intervenors agree that Fayu belonged to Nomwin people when both the defendants and intervenors are from Nomwin? It would seem that that would be the one thing that the defendants and intervenors would agree on. There is no reversible error here. The appellants also have not explained how the trial court's alleged error in finding that there were only two parts to Fayu when the appellants assert that there are three, is an error (assuming it was) that would merit reversal.

     The appellants also raise a number of objections to trial court evidentiary rulings. These include allowing plaintiffs' counsel, who was also a named plaintiff, to testify as a witness; the trial court's refusal to admit the plaintiffs' exhibits; and various questions or answers to which the trial court either sustained objections or struck from the record. The appellants have not explained what the evidence would have shown had it been admitted and how this evidence would or could have changed the court's decision. See Chk. Civ. R. 61 (error in admitting or excluding evidence not ground for vacating judgment unless refusal to do so is inconsistent with substantial justice).

     Furthermore, the plaintiffs' difficulty with their counsel appearing as a witness appears to be the extra expense they incurred because the trial court required them to hire other counsel to represent them while their regular counsel was on the witness stand. Regardless of the propriety of this arrangement, it is not grounds for reversal.

     After a review of the lengthy transcripts,1 we conclude that the appellants have not overcome the presumption that a trial court's findings are correct, and have not met their heavy burden of showing that the trial court's findings were clearly erroneous. Emilios, 6 FSM Intrm. at 560, 1 CSR at 19. There was substantial evidence in the record to support the trial court's decision that Fayu belonged to the intervenors and a review of the entire record does not leave us with the definite and firm feeling that a mistake has been made. See Cheni, 6 FSM Intrm. at 547, 1 CSR at 37-38. We therefore affirm the trial court decision that Fayu belongs to Kisauo Bob and his Sapunupi lineage on Nomwin.

D. Customary and Traditional Use of Fayu

     The remaining assigned error) that the trial court failed to fully understand the custom or tradition or culture of Namonwito and Nomwin regarding Fayu's use or the gentlemen's agreement over its use) has some merit. The trial court ruled that Fayu belonged to Kisauo Bob's lineage of the Sapunupi Clan from Nomwin, and concluded that its ruling would not change what had been established long ago and continued until today and what had been habitually practiced on Fayu because it did not want to disturb the normal practice in the place. But the trial court did not make a finding of "what had been established long ago" and what had been the habitual and normal practice on Fayu. The appellate court, like the trial court, does not wish to disturb the long-established, customary and traditional

[11 FSM Intrm. 217]

practice with regard to the use of Fayu.

     Evidence was introduced, even by an intervenors' witness (Nakayama), that Namonwito people (such as the plaintiffs) had certain unrestricted use rights to Fayu. The trial court determined who Fayu belonged to but not who may use it and for what purposes. This use rights issue was fairly before the trial court and properly raised on appeal. These customary and traditional use rights, if the plaintiffs have them, are a form of property right. Intentional interference with a party's property right to use land (as alleged here) often can be a form of trespass. See, e.g., General Tel. Co. of the S.W. v. Bi-Co Pavers, Inc., 514 S.W.2d 168, 170, 73 A.L.R.3d 978, 981 (Tex. 1974) ("A trespass is usually regarded as an intentional tort in the sense that it involves an intent to commit an act which violates a property right, or would be practically certain to have that effect, although the actor may not know the act he intends to commit is such a violation.").

      But in this case, the cause of action might be better described as intentional interference with a customary and traditional property right. That the plaintiffs referred to it as a trespass should not, in itself, be an obstacle to the plaintiffs prevailing on this point if the evidence warrants, because "[e]xcept as to a party against whom a judgment is rendered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings." Chk. Civ. R. 54(c); see also Billimon v. Chuuk, 5 FSM Intrm. 130, 137 (Chk. S. Ct. Tr. 1991).

     This case is therefore remanded to the trial court to determine if the plaintiffs had customary and traditional use rights to Fayu and what the extent of those rights is. Although the trial took place a number of years ago and the trial judge's memory of it may not be fresh, voluminous transcripts of the trial were prepared and are available. To assist it in deciding the use rights issue, the trial court should ask both parties to submit in writing any points both parties may agree on and their views on which parts of the transcripts, citing volume and page numbers, the trial court would find most helpful in making its decision. "When an appellate court remands a case to the trial court on the ground that the lower court's findings are inadequate . . . the reviewing court may require or recommend that the trial court take additional evidence." 5 Am. Jur. 2d Appellate Review  665 (rev. ed. 1995). Because of the lengthy trial and the available transcripts, we will not require the trial court to take additional evidence, but we will recommend that it do so if the trial court deems that such additional evidence would be helpful.

VI. Conclusion

     The trial court properly dismissed the plaintiffs' due process and civil rights takings claim because there were no governmental defendants. That dismissal is affirmed. The decision that (as between the parties to this case) Fayu belongs to Kisauo Bob and his Sapunupi lineage on Nomwin is affirmed. The case is remanded to the trial court for it to determine whether the plaintiffs have customary and traditional use rights to Fayu and what the extent of those rights is. The trial court shall conduct such further proceeding as are consistent with this opinion. The parties are to bear their own costs.

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Footnotes:

1. The plaintiffs, defendants, and intervenors each had transcripts prepared of their portions of the trial.