KOSRAE STATE COURT TRIAL DIVISION
Cite as Heirs of Taulung v. Heirs of Wakuk,13 FSM Intrm. 341 (Kos. S. Ct. Tr. 2005).

[13 FSM Intrm. 341]

HEIRS OF STANLEY TAULUNG,

Appellants,

vs.

HEIRS OF HONOSR WAKUK,

Appellees.

CIVIL ACTION NO. 11-04

MEMORANDUM OF DECISION; JUDGMENT; ORDER OF REMAND

Aliksa B. Aliksa

Associate Justice

Hearing: February 22, 2005

Decided: July 12, 2005

APPEARANCES:

For the Appellants:   Canney L. Palsis, Esq.

                                       Micronesian Legal Services Corporation

                                       P.O. Box 38

                                       Tofol, Kosrae   FM   96944

For the Appellees:   Snyder H. Simon, trial counselor

                                      P.O. Box 1017

                                      Tofol, Kosrae   FM   96944

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HEADNOTES

Appellate Review ) Standard of Review ) Civil Cases

     The Kosrae State Court is required to apply the "substantial evidence rule" to Kosrae Land Court decisions. If the Kosrae State Court finds that the Land Court decision was not based upon substantial evidence or that the Land Court decision was contrary to law, it must remand the case to the Land Court with instructions and guidance for re-hearing the matter. Heirs of Taulung v. Heirs of Wakuk, 13 FSM Intrm. 341, 342 (Kos. S. Ct. Tr. 2005).

Appellate Review ) Standard of Review ) Civil Cases

     When based upon consideration of the record for both the Land Commission and the Land Court, and based upon the consideration of the position and knowledge inferred to the eldest son of a landowner who resided at and cultivates the land, the Land Courtís ownership decision for the parcel was not based upon substantial evidence since it failed to consider the appellee eldest sonís admission at the Land Commission proceedings, that the appellantsí predecessor-in-interest owned some land at the place. Therefore, the matter must be remanded to the Kosrae Land Court with instructions and guidance for re-hearing the matter. Heirs of Taulung v. Heirs of Wakuk, 13 FSM Intrm. 341, 342-43

[13 FSM Intrm. 342]

(Kos. S. Ct. Tr. 2005).

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COURTíS OPINION

ALIKSA B. ALIKSA, Associate Justice:

     This is an appeal from a Decision issued by the Kosrae Land Court on February 2, 2004 for parcel 019-U-04, also known as Yesron in Utwe Municipality. Appellantsí brief was filed on September 29, 2004. Appelleesí brief was filed on December 6, 2004. Appellants filed a Reply Brief on December 10, 2004. This matter was set for hearing on February 22, 2005. Canney Palsis, MLSC, appeared for the Appellants. Snyder Simon appeared on behalf of the Appellees.

     Appellants dispute the finding of ownership made by the Kosrae Land Court in favor of the Appellees. Appellants claim that the Land Court impermissively extended the December 22, 1999 Order entered by Justice Aliksa B. Aliksa. Appellants further claim that the Land Courtís findings and opinion were not based upon substantial evidence. Appellees argues that the Land Courtís decision was based upon substantial evidence and was not contrary to law.

     Based upon the record in this matter, arguments made at the hearing and applicable law, I find in favor of the Appellants. This Memorandum of Decision explains the Courtís decision and reasoning, and remands this matter back to the Kosrae Land Court for further proceedings.

I.  Analysis and Conclusions.

     The provisions of Kosrae State Code, Section 11.614 are applicable to appeals made from a decision entered by the Kosrae Land Court. Pursuant to Section 11.614(5)(b), this Court is required to apply the "substantial evidence rule" to all Land Court decisions. If this Court finds that the Land Court decision was not based upon substantial evidence or that the Land Court decision was contrary to law, this Court must remand the case to the Land Court with instructions and guidance for re-hearing the matter. Kos. S.C. ß 11.614(5)(d).

     The Court has carefully reviewed the Kosrae Land Court record for parcel 019-U-04. The record includes documents issued by the former Kosrae State Land Commission and the record for Land Commission proceedings which took place prior to January 2002.

     It is undisputed that the subject parcel was originally owned by two brothers, Sangroa and Tulenkun. Tulenkun is the ancestor or the Taulung family, the Appellants in this matter. Kun Leap is the father of Stanley Taulung. Wakuk is the ancestor of the Wakuk family, the Appellees in this matter. Wakukís eldest child, Kilafwa Nena, gave a portion of Yesron to Kun Leap. Kun Leapís name was registered to the subject parcel on the 1932 Japanese survey by Honosr Wakuk and his eldest brother, Kilafwa Nena. Despite the registration of Kun Leapís name to the 1932 survey, Honosr continued to control and use the subject parcel. Kun Leap did not visit Yesron often, as it was too far away from his residence. Kun Leap did not stop, prevent or eject Honosr and his children from using or cultivating Yesron. Honosr Wakukís son, Aaron Onosr Wakuk has developed part of the area under dispute. Honosr Wakukís family has worked and developed the land for over fifty years.

     The Kosrae Land Court based its findings and decision of ownership for the subject parcel in favor of the Heirs of Honosr Wakuk upon evidence that Stanley Taulung testified that he had no planting or development on the subject parcel, and that he did not know who registered Kun Leapís

[13 FSM Intrm. 343]

name on the 1932 Japanese survey. The Land Court also concluded that there was no evidence of any breach of custom by Kun Leap, regarding the use or non-use of the land at Yesron.

     The Appellants argue that the Land Courtís decision was not based upon substantial evidence because it failed to consider the testimony of Floyd Wakuk. Floyd Wakuk was the eldest son of Honosr Wakuk and the person who worked substantially on the subject land at Yesron. At the Kosrae State Land Commission proceedings at the Formal Hearing held in August 1988, Floyd Onosr Wakuk testified as follows:

Q.  Oasr ip lal Kun Leap kom etu? [Do you know if Kun Leap has a portion (of land) there?]

A.  Aok. [Yes.]

Q.  Oasr na ne misenge ku wangin? [Does he still have it even today?]

A.  Oasr. [(He) has.]

Record, R-263.

     Appellants argue that Floyd Wakukís admission at the Land Commission proceedings, as the eldest son of Honosr Wakuk and as the person who lived and worked at Yesron, that Kun Leap owns some land at Yesron, is substantial evidence in support of Kun Leapís ownership of a portion of Yesron.

     Appellees argue that the Land Courtís decision was based upon substantial evidence presented at the hearing, through the Land Commission record and at the Land Court hearing, and should therefore be affirmed.

     The Court has carefully considered the arguments made by the parties and the record in the matter. Specifically, the Court considered the testimony of Floyd Wakuk, eldest son of Honosr Wakuk, in which he admitted that Kun Leap owned some land at Yesron. Based upon consideration of the record for both the Land Commission and the Land Court, and based upon the consideration of the position and knowledge inferred to Floyd Wakuk as the eldest son of Honosr who resides at and cultivates Yesron, this Court finds that Land Courtís ownership decision for parcel 019-U-04 was not based upon substantial evidence. Therefore, pursuant to Kosrae State Code, Section 11.614(5)(d), this matter must be remanded to the Kosrae Land Court with instructions and guidance for re-hearing the matter.

II.  Judgment.

     Judgment is entered in favor of the Appellants and against the Appellees. The Land Court decision, entered on February 2, 2004 for parcel 019-U-04 is vacated and set aside as void.

III.  Order of Remand.

     This matter is now remanded to Kosrae Land Court for further proceedings on parcel 019-U-04. Kosrae Land Court shall hold hearings and issue written findings and a decision on parcel 019-U-04, consistent with the statutory and procedural requirements. The Kosrae Land Court shall issue the decision on parcel 019-U-04, to reflect the ownership of the subject parcel. All proceedings shall be conducted according to the following instructions:

1.  The Land Court shall provide notice and hold hearings, as required by Kosrae State Code, Title 11, Chapter 6, the KLCRP and General Court Orders.

[13 FSM Intrm. 344]

2.  The Land Court shall specifically consider the testimony of Floyd Wakuk and determine, in the context of that testimony and the record, what portion of Yesron that statement applied to. The Land Court shall accept testimony and other evidence regarding the foundation, authenticity, relevance, and applicability of the written statement as it applies to the ownership claims of the claimants.

3.  The Land Court may consider any evidence, including testimony, which was received at the prior hearings, giving appropriate evidentiary weight to those testimonies which were based upon hearsay or not subject to cross examination, and giving appropriate evidentiary weight to documentary evidence which were offered without foundation or authentication.

4.  This matter shall be assigned highest priority by the Land Court, and shall be assigned for hearing and further action by the first Land Court Justice who is available to hear and adjudicate this matter.

5.  The Kosrae Land Court shall complete all hearings within 120 days, and shall issue its written findings and decision within 120 days after the close of the hearings, as provided by law.

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