KOSRAE STATE COURT TRIAL DIVISION
Cite as Taulung v. Jack
11 FSM Intrm. 345 (Kos. S. Ct. Tr. 2003)

[11 FSM Intrm. 345]

HASHIME TAULUNG et al.,
Appellants,
 
vs.
 
LOUISA K. JACK,
Appellee.
 
CIVIL ACTION NO. 121-01
 
MEMORANDUM OF DECISION;
JUDGMENT; ORDER
 
Yosiwo P. George
Chief Justice
 
Hearing: January 30, 2003
 
Decided: February 4, 2003
 
APPEARANCES:
 
For the Appellant:                          Canney L. Palsis, Esq.
                                                        Micronesian Legal Services Corporation
                                                        P.O. Box 38
                                                        Lelu, Kosrae FM 96944
 
For the Appellee:                           Charlton Timothy
                                                         P.O. Box 479
                                                         Lelu, Kosrae FM 96944

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HEADNOTES

Administrative Law ) Judicial Review
      The Kosrae State Court, in reviewing the Land Commissionís procedure and decision, should consider whether the Land Commission: 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. Taulung v. Jack, 11 FSM Intrm. 345, 347 (Kos. S. Ct. Tr. 2003).
 
Administrative Law ) Judicial Review
     On appeal, the Kosrae State Court may not substitute its judgment for those Land Commission findings which are based upon a reasonable assessment of the evidence. Taulung v. Jack, 11 FSM Intrm. 345, 348 (Kos. S. Ct. Tr. 2003).
 
Administrative Law ) Judicial Review; Property ) Land Commission
      When the Land Commissionís finding a witness with no interest in the land more credible was based upon a reasonable assessment of the evidence presented at the hearing, the court will not substitute its judgment for the findings of the Land Commission. Taulung v. Jack, 11 FSM Intrm. 345,

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348 (Kos. S. Ct. Tr. 2003).

Evidence
      There is no "dead manís statute" barring the admission of a deceased personís statements as evidence in Kosrae state law or in the rules of evidence. Taulung v. Jack, 11 FSM Intrm. 345, 348 (Kos. S. Ct. Tr. 2003).
 
Evidence ) Hearsay
      The Kosrae Rules of Evidence do not apply in the Land Commission or Land Court. In the case of hearsay testimony, the Land Commission or presiding justice shall determine the testimonyís relevancy and the credibility of the witness. The purpose of allowing hearsay testimony and other evidence at land proceedings, without application of the Kosrae Rules of Evidence, is to allow all relevant evidence on the claims presented before the Land Commission and Land Court, without limitations imposed by the Rules of Evidence. The determination of relevancy of evidence and credibility of witnesses is made by the adjudicators, the Land Commission or a justice of the Kosrae Land Court. Taulung v. Jack, 11 FSM Intrm. 345, 348 (Kos. S. Ct. Tr. 2003).
 
Administrative Law ) Judicial Review
      The Land Commission was not clearly erroneous in accepting hearsay testimony of a dead manís statements in its findings when there is no "deadmanís statute" in Kosrae and it was based upon a reasonable assessment of the evidence presented at the hearing, the court will not substitute its judgment for the Land Commissionís. Taulung v. Jack, 11 FSM Intrm. 345, 348-49 (Kos. S. Ct. Tr. 2003).

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COURTíS OPINION

YOSIWO P. GEORGE, Chief Justice:

     This is an appeal from a Determination of Ownership issued by the former Kosrae State Land Commission on October 3, 2001 for parcel 054-T-09. Appellantís brief was filed on October 28, 2002. Appellee filed her brief on November 27, 2002. A reply brief was filed by the Appellant on December 11, 2002. This matter came for hearing and oral argument on January 30, 2003. Canney Palsis, MLSC, appeared for the Appellant. Appellee was represented by Charlton Timothy.

      Based upon the record in this matter, arguments made at the hearing and applicable law, I find in favor of the Appellee and affirm the Determination of Ownership issued by the Land Commission on October 3, 2001 for parcel 054-T-09. This Memorandum of Decision explains the Courtís decision and reasoning.

I. Factual Background.

     This matter is an appeal from the Determination of Ownership issued by the Land Commission on October 3, 2001. This appeal involves a boundary dispute between parcel 054-T-08, known as Polok, owned by Hashime Taulung and parcel 054-T-09, known as Santufal, owned by Lousia K. Jack, who is also known as Lousia J. Kun. Hashime Taulung claims a portion of parcel 054-T-09, which has been awarded to Louisa K. Jack.

     The Land Commission had issued the Determination of Ownership pursuant to an Order of Remand entered by this Court in Civil Action No. 35-99, a trespass action which also involved the same

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parcels of land and following persons: Lousia J. Kun, Jack K. Jack, Semeon Kilafwakun and Hashime Taulung. Pursuant to the Order of Remand entered by this Court on June 4, 2001 [Kun v. Kilafwakun, 10 FSM Intrm. 214 (Kos. S. Ct. Tr. 2001)], in Civil Action No. 35-99, the Land Commission completed its hearings, findings and opinion, and awarded the Determination of Ownership to Louisa J. Kun, with use rights by heirs of Nena Paulino. The boundaries determined by the Land Commission for parcel 054-T-09, between Polok and Santufal, were the boundaries claimed by and in favor of the Appellee, Louisa K. Jack.

II. Analysis.

     The provisions of former Kosrae State Code, Title 11, Chapter 6, are applicable to the Land Commission proceedings for parcel 054-T-09. Therefore, this Court applies the provisions of former Kosrae State Code, Title 11, Chapter 6 (repealed) to its review of the Land Commissionís procedure, findings, opinion and decision in this matter. All references to Kosrae State Code, Title 11, Chapter 6 are made to the provisions in effect at the relevant time.

      The standard of review applicable to decisions by the Land Commission has been established. This Court, in reviewing the Land Commissionís procedure and decision, should consider whether the Land Commission: 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. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 395, 398 (Kos. S. Ct. Tr. 1988).

      Appellant claims that the Land Commission improperly based its decision upon the testimony of Ofunai Alik and did not properly consider evidence presented by the Appellant and his witnesses. Appellant further argues that the statements made by Vicente Taulung, deceased, should not have been admitted into evidence under the "dead manís statute." Appellant argues that the Determination of Ownership for parcel 054-T-09, specifically the common boundary between Polok and Santufal, entered by the Land Commission was clearly erroneous and not supported by substantial evidence.

      In this appeal, this Court must determine whether the Land Commission had reasonably assessed the evidence presented. Isaac v. Benjamin, 9 FSM Intrm. 258 (Kos. S. Ct. Tr. 1999). This Court has carefully reviewed the Land Commission record for parcel 054-T-09. The Court finds that Land Commission did reasonably assess the evidence presented, and accordingly affirms the Determination of Ownership for parcel 054-T-09, with the boundaries in favor of the Appellee.

A. Land Commissionís Assessment of the Evidence Presented.

      Appellant Hashime Taulung claims that the correct boundary between parcels 054-T-08 and 054-T-09 were set by Vicente Taulung, Appellantís father. Appellant argues that for fifty years, there was no dispute as to the boundaries between the two parcels and that Appellant and his siblings worked that land to plant various crops. Vicente, Hashime and other heirs planted crops on Polok. These plantings were not disputed by Lousia Jack or her witnesses. Appellant claims that there is still a monument present, planted by Louisa Jackís grandson, that marks the correct common boundary. Appellant claims that Louisa Jack did not know of the common boundary between the Polok and Santufal parcels and could not testify to them. Finally, Appellant claims that Ofunai Alik testified on behalf of Louisa Jack, claiming that Vicente Taulung took him to the land to set the common boundary. Appellant claims that Ofunai Alikís testimony is unfair.

      Appellee Louisa Jack claims that the boundary testified to by Ofunai Alik is the correct common boundary established by Vicente Taulung. Appellee claims that Vicente Taulung knew that Hashime conducted some "overlapping activities" on parcel 054-T-09. Hashime Taulung is claiming a boundary

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which none of the other heirs of Vicente Taulung know about. Appellee claims that her use of the land was never disputed by Vicente Taulung or his heirs until now. Finally, Louisa Jack claims that she agreed to the common boundary pointed out by Vicente Taulung, and monumented by Ofunai Alik. Ofunai Alik has no interest in the land, and therefore was a more credible witness as assessed by the Land Commission.

      This Court has carefully reviewed the Land Commission record with respect to the hearing and the evidence presented at the hearing for parcel 054-T-09. On appeal, this Court may not substitute its judgment for those findings which are based upon a reasonable assessment of the evidence. Heirs of Mongkeya v. Heirs of Mackwelung, 8 FSM Intrm. 31 (Kos. S. Ct. Tr. 1997). The Land Commission held the hearings in this matter, had the opportunity to receive the evidence and assess the credibility of the witnesses. Based upon its findings and opinion, it appears that the Land Commission found Ofunai Alik to be more credible than other witnesses. This Court concludes that the findings of Land Commission were based upon a reasonable assessment of the evidence presented at the hearing. Accordingly, this Court will not substitute its judgment for the findings of the Land Commission, as reflected in its Findings of Fact, Opinion and Conclusion dated October 1, 2001. Appellantís argument is therefore rejected.

B. Dead Manís Statute.

     Appellant argues that the "dead manís statute" specifically prohibits the Land Commission from considering the testimony of Ofunai Alik, regarding the common boundary established by Vicente Taulung between Polok and Santufal. Appellant relies upon the legal authority of American Jurisprudence in purportedly establishing the dead manís statute. Appellantís arguments on the dead manís statute are without merit and therefore rejected. A "dead manís statute" is just that) a statute. This Court has carefully examined the Kosrae State Code and other State Laws, and concludes that a "dead manís statute" does not exist in Kosrae State Law. Indeed, Appellant did not specify any "dead manís statute" in Kosrae State Law Ė because none exists. Kosrae State Code, Title 6, Chapter 3 does contain several provisions relating to evidence. However, it is clear that there is no "dead manís statute" in the Kosrae State Code. Indeed, a review of this Courtís Rules of Evidence shows that the Rules of Evidence also do not contain any "dead manís" provisions.

      Furthermore, the Kosrae State Rules of Evidence did not apply to Land Commission proceedings, and do not now apply to Land Court proceedings. See Land Commission Regulation 24, pt. 3; Kosrae Land Court GCO 2002-10. All evidence which is relevant and material to the claim or issue may be presented at the hearing. The Land Commission or presiding Land Court Justice shall determine the relevancy and credibility of all evidence offered at the hearing, and shall determine whether the evidence is admissible in the hearing. For example, in the case of hearsay testimony, the Land Commission or presiding Justice shall determine the relevancy of the testimony and the credibility of the witness.

     The purpose of allowing hearsay testimony and other evidence at land proceedings, without application of the Kosrae Rules of Evidence, is to allow all relevant evidence on the claims presented before the Land Commission and Land Court, without limitations imposed by the Rules of Evidence. This Court recognizes that many land claims were originally made fifty, one hundred or more years ago, and many original claimants are no longer living. Therefore, the heirs of the original claimants and other witnesses are permitted to present hearsay testimony and all relevant evidence, to support their claims. The determination of relevancy of evidence and credibility of witnesses is made by the adjudicators: the Land Commission or the presiding Justice of the Kosrae Land Court.

     In this case, the hearsay testimony presented by witness Ofunai Alik was accepted by the Land Commission as relevant and credible. There is no "dead manís statute" in Kosrae State to exclude

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Ofunai Alikís testimony. The Land Commission was not clearly erroneous in receiving the testimony of Ofunai Alik concerning the actions of Vicente Taulung and the common boundary between Polok and Santufal. Accordingly, this Court concludes that the findings of Land Commission were based upon a reasonable assessment of the evidence presented at the hearing, including the testimony of Ofunai Alik. This Court will not substitute its judgment for the findings of the Land Commission, as reflected in its Findings of Fact, Opinion and Conclusion dated October 1, 2001. Appellantís argument is therefore rejected.

III. Judgment.

     The Determination of Ownership for parcel 054-T-09, issued by the Kosrae State Land Commission to Lousia J. Kun with use right by Heirs of Nena Paulino, on October 3, 2001, with the common boundary between parcels 054-T-08 and 054-T-09 in favor of Louisa J. Kun, is hereby affirmed.

IV. Order for Certificate of Title

      The Kosrae Land Court is ordered to issue the Certificate of Title for parcel 054-T-09 to Louisa J. Kun, with use rights by Heirs of Nena Paulino. The Certificate of Title shall be issued sixty days following entry of this Memorandum, unless there is further appeal.

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