KOSRAE STATE COURT TRIAL DIVISION

Cite as Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368

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HEIRS OF ALLEN MACKWELUNG,

Appellants,

vs.

HEIRS OF KUN MONGKEYA,

Appellees.

CIVIL ACTION NO. 39-06

OPINION

Martin G. Yinug

Special Justice*

Decided: March 19, 2009

*Associate Justice, FSM Supreme Court, sitting by designation

APPEARANCES:

For the Appellants:                       Canney Palsis

 (Heirs of Mackwelung)                 P.O. Box 224

                                                      Tofol, Kosrae FM 96944
 

For the Appellees:                         Gerson A. Jackson

 (Heirs of Mongkeya)                     P.O. Box 174

                                                      Tofol, Kosrae FM 96944

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HEADNOTES

Property

    A tenancy in common is a form of co-ownership where two or more persons have equal and undivided shares in the whole with each having an equal right to the whole, but no right of survivorship. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 372 n.1 (Kos. S. Ct. Tr. 2009).

Domestic Relations ) Probate; Property

    When the sole owner of land dies his fee simple interest would be inherited by his multiple heirs who would hold that fee simple estate as a tenancy in common. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 372 n.1 (Kos. S. Ct. Tr. 2009).

Appellate Review ) Standard of Review ) Civil Cases

    Since, by statute, the Kosrae State Court decides appeals from the Land Court on the parties’ briefs, a request for a de novo proceeding will be denied and no evidence or testimony will be considered except the official record, transcripts, and exhibits received at the Land Court hearing. The

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court applies the "substantial evidence rule" when reviewing Land Court decisions. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 374 (Kos. S. Ct. Tr. 2009).

Appellate Review ) Standard of Review ) Civil Cases

    If the State Court finds that the Land Court decision was not based upon substantial evidence or that the decision was contrary to law, it must remand the case with instructions and guidance for the Land Court to rehear the matter in its entirety or in such portions as may be appropriate. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 374 (Kos. S. Ct. Tr. 2009).

Appellate Review ) Standard of Review ) Civil Cases; Evidence ) Burden of Proof

    Substantial evidence is evidence which a reasoning mind would accept as sufficient to support a conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 374 (Kos. S. Ct. Tr. 2009).

Appellate Review ) Standard of Review ) Civil Cases

    In considering whether a Land Court decision is based upon substantial evidence, the court recognizes that it is primarily the Land Court’s task to assess the witnesses’ credibility, the admissibility of evidence, and to resolve factual disputes. A finding that substantial evidence supports the findings does not mean that the evidence must be uncontroverted or undisputed, but if findings are adequately supported and the evidence has been reasonably assessed, the findings will not be disturbed on appeal. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 374 (Kos. S. Ct. Tr. 2009).

Appellate Review ) Standard of Review ) Civil Cases

    In reviewing the Land Court’s procedure and decision, the State Court considers whether the Land Court: 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. The question is whether the Land Court deprived any party of property in an unfair fashion and whether the procedures used ensured a fair and rational decision-making process. The State Court cannot substitute its judgment for the lower court’s well-founded findings. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 374 (Kos. S. Ct. Tr. 2009).

Appellate Review ) Standard of Review ) Civil Cases

    When land claimants have apparently abandoned their earlier position that the land was given to their predecessor in 1917 and now assert that the land was acquired at a later time from some person not previously mentioned in the lengthy litigation over the land, and when the Land Court rejected the testimony supporting this new theory, and thus the theory itself, as not credible, the State Court, on appeal, can detect no error in that rejection since it is primarily the Land Court’s task, and not the reviewing court’s, to assess the witnesses’ credibility and resolve factual disputes and the Land Court was present during the testimony. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 374 (Kos. S. Ct. Tr. 2009).

Custom and Tradition ) Kosrae; Property

    In resolving a land claim, it is irrelevant whether kewosr is a legally-recognized tradition with the force of law today when the kewosr land transfer at issue occurred about 1912. The relevant question would thus be whether kewosr was a tradition when the kewosr occurred. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 375 (Kos. S. Ct. Tr. 2009).

Equity ) Estoppel

    Collateral estoppel prevents the land claimants from disputing, in this appeal, the existence of a kewosr transfer because collateral estoppel bars a party from relitigating an issue determined against

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that party in an earlier action, even if the second action differs significantly from the first one, and the court’s 1997 decision between the same parties precludes the claimants from arguing that no kewosr transfer occurred or that the land could not have been transferred by kewosr. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 375 (Kos. S. Ct. Tr. 2009).

Courts; Custom and Tradition ) Kosrae

    Since the Land Court’s jurisdiction includes all matters concerning the title to land and any interests therein, that would necessarily include whether kewosr was a tradition affecting land tenure when the alleged transfer took place and whether a kewosr did in fact occur. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 375 (Kos. S. Ct. Tr. 2009).

Property ) Land Court

    The Land Court’s "subdivision" of land was not reversible error nor was it arbitrary when the original 1982 Land Commission determination of ownership explicitly divided the unsurveyed part of the land in its determination and since this division recognized the different history (with different evidence) for the two parts. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 375-76 (Kos. S. Ct. Tr. 2009).

Constitutional Law ) Due Process ) Notice and Hearing; Property ) Land Court

    There was no reversible error when the parties certainly had adequate notice of a "subdivision" before the October 18, 2005 Land Court hearing since they knew of it before the 2003 appeal and the 2005 remand and hearing; when one side’s assertion that they were not "given the chance to stake out their claims" before the land was subdivided would be a cause of concern if they had claimed less than the entire land, but they claimed the whole unsurveyed land, as did the other side; and since, if the Land Commission erred, it was harmless error because neither side can show that they were prejudiced by this "subdivision" and both sides had the opportunity to assert and to prove their respective claims to both parcels and because the "subdivision" did not prevent or hinder either side from claiming, and trying to prove, that they had title to both parcels. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 376 (Kos. S. Ct. Tr. 2009).

Property ) Land Court

    A court instruction to the Land Commission to take further action consistent with its decision, including a preliminary survey, and such preliminary and formal hearings as might be necessary to make a determination of ownership, would not be necessary on remand if all that Land Commission was required to do was issue a determination of ownership in a calmant’s favor with a certificate of title to follow. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 376 (Kos. S. Ct. Tr. 2009).

Appellate Review ) Standard of Review ) Civil Cases; Property ) Land Court

    Since a determination of ownership for the unsurveyed portion of Yekula was not before the court when it rendered its 1997 decision on the other parcels involved in the dispute between the claimants, the State Court’s 1997 instructions to Land Commission about Yekula can only be considered further guidance (beyond and in addition to that given in 1988) to the Land Commission on how it ought to proceed in resolving the remainder of the dispute. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 376-77 (Kos. S. Ct. Tr. 2009).

Appellate Review ) Standard of Review ) Civil Cases; Evidence; Property

    Although the presence of a person’s name on the 1932 Japanese Survey Map as the owner of a parcel of land is not conclusive or dispositive of that person’s ownership but may be overcome or rebutted by other evidence, when there was substantial evidence in the record before the Land Court that Mackwelung used, controlled, and occupied Yekula continuously after 1932, including evidence and testimony presented at the original 1979 Land Commission proceeding, the Land Court reasonably

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assessed this evidence as supporting the Mackwelungs’ position that a kewosr to Sra Nuarar had taken place, and since the testimony that a previously unmentioned person had owned the land and had later transferred it to Kun Mongkeya was reasonably assessed as not credible, the evidence did not overcome the 1932 Japanese survey map. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 377 (Kos. S. Ct. Tr. 2009).

Appellate Review ) Standard of Review ) Civil Cases; Property

    When the boundaries described in two May 9, 1957 land use agreements, one in which Kun Mongkeya granted about ¾ hectare for use by the Kusaie Intermediate School, and in the other in which Allen Mackwelung (and Daniel Aliksa) granted four hectares for the same purpose, and which were both signed not only by the grantors but also by a Tafunsak village chief, the Chief Magistrate of Kusaie, and five members of the Land Advisory Committee of Seven, including the District Administrator and the clerk of courts, abut each other; when the Land Commission-ordered "subdivision" reflects the boundary descriptions in both agreements; and when the boundary location was corroborated by witnesses who had been present in 1957 when the boundary was marked on the ground as personally directed by Allen Mackwelung, this all constitutes substantial evidence in support of the Land Court finding that the 1957 land use agreements reflect the true ownership of the land. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 377-78 (Kos. S. Ct. Tr. 2009).

Evidence; Property

    It was not error for the Land Court not to award one side all of the disputed land based on an option agreement that was never exercised and that only refers to a parcel situated somewhere in the disputed land and not all of it and so it does not support a claim to all of the land, even assuming it is some evidence of ownership of some part. Heirs of Mackwelung v. Heirs of Mongkeya, 16 FSM Intrm. 368, 378-79 (Kos. S. Ct. Tr. 2009).

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COURT’S OPINION

MARTIN G. YINUG, Special Justice:

    On October 18, 2005, the Kosrae Land Court held an ownership determination hearing. On February 16, 2006, it entered a memorandum of decision. Both parties timely appealed that decision to the Kosrae State Court. Kos. S.C. § 11.614(1). On June 15, 2006, the State Court entered two orders designating me to preside over both appeals. Kos. Civ. R. 88. On January 7, 2008, both appeals were consolidated into Civil Action No. 39-06. Kos. App. R. 3(b). The parties waived oral argument and filed supplemental briefs. This matter is now ripe for adjudication on the parties’ submissions. Both parties were represented by counsel: Canney Palsis appeared for the Appellants Heirs of Allen Mackwelung ("Mackwelungs") and Gerson A. Jackson appeared for the Appellees Heirs of Kun Mongkeya ("Mongkeyas"). The February 16, 2006 Land Court decision is affirmed for the following reasons.

I. Procedural History And Background

    This case has a lengthy history. The Kosrae District Land Commission issued a notice of preliminary inquiry on July 27, 1979, for all land in Tafunsak municipality known as Yekula, consisting of parcels 004-T-09 and 004-T-10, as well as unsurveyed land south and upland from those parcels. The preliminary inquiry was held on September 11, 1979.

    The Land Registration Team held a formal hearing about the ownership of Yekula on November

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14, 1979. The primary claimants were Kun Mongkeya and Allen Mackwelung. Both claimants were represented by counsel at the formal hearing. After the primary claimants passed away (Mongkeya in 1979, Mackwelung in 1981) the matter was pursued by their respective heirs.

    On September 24, 1982, the Land Commission, to which the matter had been referred by the Land Registration Team without finding or adjudication because of the matter’s complexity and the disqualification for conflicts of interest of most of the team, issued a seven-page findings of fact and opinion regarding Yekula, determining that the Mackwelungs owned parcels 004-T-09 and 004-T-10 as well as the unsurveyed portions of Yekula and "that Kun Mongkeya and all those claiming under him have no rights or interests in the described lands, except for approximately three-fourth (3/4) of an hectare of land formerly used by the Kosrae High School." Id. at 7. The Mongkeyas appealed the Land Commission's determination of ownership on January 21, 1983. The Mackwelungs did not appeal the Land Commission ruling concerning the ¾ hectare.

    The appeal was filed in the Trust Territory High Court, and, after the Kosrae State Court was certified, the matter was transferred to the State Court. The State Court issued two published opinions. In the first, it held that there was no bias or violation of the Mongkeyas' statutory or constitutional rights based on the alleged family relations of Land Commission members to the Mackwelungs. Heirs of Mongkeya v. Heirs of Mackwelung (I), 3 FSM Intrm. 92, 97-101 (Kos. S. Ct. Tr. 1987). In the second, the State Court set aside the 1982 Land Commission determination of ownership, ruling that that opinion, when read with the record, did not adequately support its findings. Heirs of Mongkeya v. Heirs of Mackwelung (II), 3 FSM Intrm. 395, 402 (Kos. S. Ct. Tr. 1988). Rather than conducting evidentiary hearings, the State Court remanded the case to the Land Commission for further consideration of two issues: (1) whether a kewosr transfer to Sra Nuarar took place and (2) whether Kun Mongkeya testified in Alun M. v. Kioken Daniel, Trust Territory High Court Civil Action No. 111 (Pon. Tr. Div. Oct. 23, 1958), and if so, whether his failure to assert a claim in that suit reflected on the credibility of his claim to be the owner. Heirs of Mongkeya (II), 3 FSM Intrm. at 402.

    The Land Commission reconsidered as directed by the State Court, and on October 19, 1989, again found that the Mackwelungs owned the disputed lands. First, it determined that the lands involved in Alun M. v. Daniel, TT High Court Civil Action No. 111, were the same as in this case. Second, the Land Commission examined the 1932 Japanese map and found parcels 004-T-09 and 004-T-10 to correspond with parcels 25 and 26. Third, the Land Commission found that Kun Mongkeya was a defense witness in Alun M. v. Daniel, and did not assert an ownership right during those proceedings. Fourth, the Land Commission concluded that a kewosr took place transferring the land from Kun Mongkeya to Nuarar. On September 24, 1992, the Land Commission issued new determinations of ownership for parcels 004-T-09 and 004-T-10, confirming again that the Mackwelungs own the parcels. Two differences exist between the single 1982 determination of ownership and the two 1992 determinations of ownership. The 1982 determination was for a fee simple estate. In 1992, the estates were described as tenancies-in-common. More significantly, the 1982 determination of ownership stated that the Mackwelungs owned both parcels and most of the remaining unsurveyed area of Yekula. The 1992 determinations of ownership were for parcels 004-T-09 and 004-T-10 only; they did not determine the ownership of any unsurveyed portion of Yekula.

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    The Mongkeyas appealed to the State Court on January 15, 1993. The State Court granted the Mongkeyas’ request for a trial de novo, which was held on October 31 and November 1, 1995. The State Court affirmed the Land Commission’s determination that the Mackwelungs owned parcels 004-T-09 and 004-T-10, and remanded the issue of title to the unsurveyed portions of Yekula to the Land Commission for further action consistent with its decision, including a preliminary survey, such preliminary and formal hearings as may be necessary to make a determination of ownership, and a review of portions of the record already before it except that it was not to consider TT High Court Civil Action No. 111 as binding on the Heirs of Kun Mongkeya. Heirs of Mongkeya v. Heirs of Mackwelung (III), 8 FSM 31, 39 (Kos. S. Ct. Tr. 1997).

    On remand, the Land Commission designated the unsurveyed portions of Yekula as two parcels. On January 13, 2003, after a hearing, the newly-formed Kosrae Land Court confirmed the Land Commission’s division of Yekula, determining that the Mackwelungs owned 40,000 square meters (four hectares) of Yekula and that the Mongkeyas owned 8,457 square meters.

    The Land Court’s January 13, 2003 decision was appealed to the State Court, which remanded the matter to the Land Court because of problems with the appeal record. On October 18, 2005, the Land Court again heard the matter, and on February 16, 2006, it again confirmed the Land Commission’s division of Yekula, assigning 40,000 square meters (four hectares) to the Mackwelungs and designating that parcel as 061-T-13 (formerly 061-T-13-A), and assigning 8,457 square meters to the Mongkeyas and designating that parcel as 061-T-32 (formerly 061-T-13-B).

Both parties, under Kos. S.C. § 11.614(1), appealed the February 16, 2006 Land Court decision to the State Court, and this consolidated appeal follows.

II. Issues on Appeal

    Both the Mackwelungs and the Mongkeyas are appellants although for the purpose of consolidating their appeals, the Mackwelungs were designated appellants and the Mongkeyas were designated the appellees. The Mackwelungs assert that the Land Court committed reversible error, as a matter of law or fact, in confirming the Land Commission’s division of Yekula, and in finding that the Mackwelungs owned only four hectares of Yekula, parcel 061-T-13, and that the Mongkeyas owned 8,457 square meters of Yekula, designated as parcel 061-T-32. The Mongkeyas assert that the Land Court erred by exceeding its constitutional and statutory authority in recognizing kewosr as a tradition; by not conducting a fair proceeding when it permitted the Division of Survey and Mapping to rely on the two Trust Territory Land Use Agreements to establish the subdivision’s purported boundaries; by not basing its decision on sufficient evidence; and by not properly resolving any and all legal issues.

    After the parties waived oral argument, the court requested, and the parties submitted, supplemental briefs addressing the following specific questions raised by their appeals: (1) Did the Land Commission violate the parties’ due process rights by dividing Yekula without affording the parties a right to be heard on the matter?; (2) Does the evidence support the finding that Mongkeya transferred Yekula to Sra Nuarar by kewosr?; (3) Did the Land Court properly admit and weigh evidence of tradition in finding that a kewosr took place?; (4) Did the Land Commission, after remand, properly follow this court’s instructions in Heirs of Mongkeya v. Heirs of Mackwelung, 8 FSM Intrm. 31 (Kos. S. Ct. Tr. 1997)?; (5) Do the 1957 land use agreements entered into between the parties, individually, and the Trust Territory reflect the true ownership of Yekula?; (6) Were the 1957 land use agreements legal, valid and enforceable, and should the Land Court have considered them?; and (7) Did the Land Commission properly weigh as evidence the 1932 Japanese map indicating that Mackwelung owned Yekula?

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III. Standard of Review

    The court decides the matter on the parties’ briefs. Kos. S.C. § 11.614(5). The Mongkeyas’ request for a de novo proceeding was therefore denied. No evidence or testimony can be considered except the official record, transcripts, and exhibits received at the Land Court hearing. Kos. S.C. § 11.614(5)(a). The State Court must apply the "substantial evidence rule" when reviewing Land Court decisions. Kos. S.C. § 11.614(5)(b). If the State Court finds that the Land Court decision was not based upon substantial evidence or that the decision was contrary to law, it must remand the case with instructions and guidance for the Land Court to rehear the matter in its entirety or in such portions as may be appropriate. Kos. S.C. § 11.614(5)(d). Substantial evidence is evidence which a reasoning mind would accept as sufficient to support a conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. Nakamura v. Moen Municipality, 15 FSM Intrm. 213, 217 n.1 (Chk. S. Ct. App. 2007).

    In considering whether a Land Court decision is based upon substantial evidence, the court recognizes that it is primarily the Land Court’s task to assess the witnesses’ credibility, the admissibility of evidence, and to resolve factual disputes. A finding that substantial evidence supports the findings does not mean that the evidence must be uncontroverted or undisputed. Heirs of George v. Heirs of Dizon, 14 FSM Intrm. 556, 559 (Kos. S. Ct. Tr. 2007).

    If findings are adequately supported and the evidence has been reasonably assessed, the findings will not be disturbed on appeal. Heirs of Obet v. Heirs of Wakap, 15 FSM Intrm. 141, 144 (Kos. S. Ct. Tr. 2007). The State Court, in reviewing the Land Court’s procedure and decision, considers whether the Land Court: 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. Nena v. Heirs of Melander, 10 FSM Intrm. 362, 364 (Kos. S. Ct. Tr. 2001). In reviewing the fairness of Land Court proceedings, the question is whether the Land Court deprived any party of property in an unfair fashion and whether the procedures used ensured a fair and rational decision-making process. Siba v. Noah, 15 FSM Intrm. 189, 194 (Kos. S. Ct. Tr. 2007). On appeal, the State Court cannot substitute its judgment for the lower court’s well-founded findings. Heirs of George, 14 FSM Intrm. at 558.

IV. Discussion

    The Mongkeyas’ challenge of the Land Court decision rests on two main contentions. One, they now assert that Mongkeya did not own Yekula, so he could not have transferred to Sra Nuarar by kewosr what he did not own, but that it had been owned by someone named Rasso who later transferred it, not to Mongkeya, but to his son, Kun Mongkeya on some unspecified later date. The Mongkeyas have apparently abandoned their earlier position that Mongkeya gave Yekula to Kun Mongkeya in 1917. Rasso, and the claim that Yekula was acquired from him, had not previously been mentioned in the lengthy litigation over Yekula. The Land Court rejected the testimony supporting this new theory, and thus the theory itself, as not credible. This court can detect no error here. It is primarily the Land Court’s task, and not the reviewing court’s, to assess the witnesses’ credibility and resolve factual disputes, since the Land Court, not this court, was present during the testimony. See Heirs of Kufus v. Palsis, 9 FSM Intrm. 526, 527 (Kos. S. Ct. Tr. 2000).

A. Constitutional and Statutory Authority to Consider Whether a Kewosr Occurred

    The Mongkeyas’ other contention is that Land Court had no statutory or constitutional authority to find that a kewosr land transfer had occurred and so that it could not be a basis of a determination of ownership. The Mongkeyas contend that the Land Court (and its predecessor Land Commission) had

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no statutory or constitutional authority to find that a kewosr land transfer occurred since, in their view, the Kosrae Constitution, Kos. Const. art. II, § 2, and a statute, Kos. S.C. § 6.303, require that in order to have the force of law, a Kosraean tradition must first be recognized by statute and kewosr has not been so recognized.

    Even if the court were to accept this contention as true, and the court makes no such ruling, it would not assist the Mongkeyas. The contention overlooks two crucial points. First, it is irrelevant whether kewosr is a legally-recognized tradition with the force of law today. The kewosr transfer at issue occurred about 1912, and the relevant question would thus be whether kewosr was a tradition when the kewosr to Sra Nuarar occurred. Second, that a kewosr transfer from Mongkeya to Sra Nuarar occurred has already been conclusively established. In 1997, this court, after a trial de novo, found that a kewosr transfer from Mongkeya, the Mongkeyas’ predecessor in interest, to Sra Nuarar, the Mackwelungs’ predecessor in interest, took place. Heirs of Mongkeya (III), 8 FSM Intrm. at 36-38. That decision was not appealed and is thus final. The question that that decision left open for the Land Commission to determine on remand, was not whether kewosr was a tradition or whether a kewosr occurred, but whether the kewosr included any or all of the unsurveyed part of Yekula.

    Collateral estoppel prevents the Mongkeyas from disputing, in this appeal, the existence of the kewosr transfer. Collateral estoppel bars a party from relitigating an issue determined against that party in an earlier action, even if the second action differs significantly from the first one. Nakamura v. Chuuk, 15 FSM Intrm. 146, 150 (Chk. S. Ct. App. 2007) (also referred to as issue preclusion). This court’s 1997 decision precludes the Mongkeyas from arguing that no kewosr occurred or that, at that time, land could not have been transferred by kewosr.

    Thus, the Land Court did not exceed its constitutional or statutory authority when it considered whether Yekula was transferred to Sra Nuarar by kewosr or when it decided that it was. Consideration of kewosr was "further action consistent with" this court’s 1997 decision. Furthermore, the Land Court’s jurisdiction includes "all matters concerning the title to land and any interests therein." Kos. S.C. § 11.604. That would necessarily include whether kewosr was a tradition affecting land tenure when the transfer took place and whether a kewosr did in fact occur.

B. "Subdivision" of the Unsurveyed Portion of Yekula

    The Mackwelungs contend that Land Commission violated their due process rights, when, after this court’s 1997 remand, the Land Commission, allegedly without notice to the parties, ordered the Division of Surveying and Mapping to divide the unsurveyed part of Yekula into two parcels. They further contend that the Land Court committed reversible error, as a matter of law or fact, by confirming, at its January 13, 2003 hearing, the Land Commission’s "subdivision" of Yekula. The Mongkeyas contend that the proceeding was not fair because the subdivision was done without them being "given the chance to stake out their claims."

    This court concludes that the "subdivision" of Yekula was not reversible error nor was it arbitrary. The original 1982 Land Commission determination of ownership explicitly divided the unsurveyed part of Yekula when it held "that Kun Mongkeya and all those claiming under him have no

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rights or interests in the described lands, except for approximately three-fourth (3/4) of an hectare of land formerly used by the Kosrae High School, which land is also described on [Property Survey] Sketch [No. 0082-T-01]." Land Comm’n op. at 7 (Sept. 24, 1982). This division recognized the different history (with different evidence) for the two parts, specifically that the Trust Territory had rented different parts of Yekula from two different lessors. For this reason, this "subdivision" was sensible even if the Trust Territory leases did not reflect the true ownership of Yekula.

    The Mackwelungs did not appeal the 1982 division. This court, in 1997, remanded the issue of the unsurveyed portion of Yekula to the Land Commission "for further action . . . including a preliminary survey, [and] such preliminary and formal hearings as may be necessary to make a determination of ownership." Heirs of Mongkeya (III), 8 FSM Intrm. at 39. It should not have come as a surprise to the parties that once a preliminary survey was made, the survey might divide Yekula as it was in 1982, although the better practice would have been for the Land Commission to notify the parties beforehand that the survey of Yekula would include the 1982 division since Yekula had already been divided and sketched, although not surveyed. (Although the court does not reach this question now, the 1982 division and the approximately ¾ hectare award to the Mongkeyas, since the Mackwelungs did not appeal it, may be res judicata. The 8,457-square-meter Land Court award to the Mongkeyas is roughly a ¾ hectare ) 7,500 square meters.)

    Even if the court were to conclude that further notice to the parties, beyond the 1982 division, was needed, which it does not so decide, the Mackwelungs and the Mongkeyas certainly had adequate notice of this "subdivision" before the October 18, 2005 Land Court hearing since they knew of it before the 2003 appeal and the 2005 remand and hearing. The Mongkeyas further assert that they were not "given the chance to stake out their claims" before the parcel was subdivided. This would be a cause of concern if the Mongkeyas had claimed less than the entire parcel, that is, if they claimed that the parcel should have been subdivided differently and that some other line was where the true boundary between them and the Mackwelungs lay. They did not. They claimed the whole of the unsurveyed portion of Yekula; as did the Mackwelungs.

    Thus, if the Land Commission erred, it was harmless error. Neither the Mackwelungs nor the Mongkeyas can show that they were prejudiced by this "subdivision." Both sides had the opportunity to assert and to prove their respective claims to both parcels. Both sides claimed both parcels. The "subdivision" did not prevent or hinder the Mackwelungs or the Mongkeyas from claiming, and trying to prove, that they had title to both parcels. There is no reversible error here.

C. Compliance on Remand with this Court’s Instructions

    The Mackwelungs assert that the Land Commission, and subsequently the Land Court, did not properly follow this court’s 1997 remand instructions because, in their view, nothing more was required than for the Land Commission to perform the ministerial tasks of having the property surveyed and then issuing a determination of ownership in the Mackwelungs’ favor for the entire parcel. The court rejects this view.

    This court instructed the Land Commission to take "further action consistent with th[e 1997] decision, including a preliminary survey, [and] such preliminary and formal hearings as may be necessary to make a determination of ownership." Heirs of Mongkeya (III), 8 FSM Intrm. at 39. Clearly, preliminary and formal hearings, which this court considered could be necessary on remand, would not be contemplated if all that Land Commission was required to do was issue a determination of ownership in the Mackwelungs’ favor (with a certificate of title to follow).

    Furthermore, since a determination of ownership for the unsurveyed portion of Yekula was not

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on appeal or before this court when it rendered its 1997 decision on the other parcels involved in this dispute between the Mackwelungs and the Mongkeyas, this court’s 1997 instructions to Land Commission about Yekula can only be considered further guidance (beyond and in addition to that given in 1988) to the Land Commission on how it ought to proceed in resolving the remainder of the dispute. (This is also why collateral estoppel, instead of the law of the case doctrine, is the more appropriate vehicle for the effect of this court’s finding that a kewosr took place between Mongkeya and Sra Nuarar.)

D. Whether Assessment of the Other Evidence Was Reasonable

    Resolution of the issues of whether the subdivision violated due process, of the authority to recognize a kewosr to Sra Nuarar, of whether the Land Commission’s tasks on remand were to be solely ministerial, and of the weight to give the testimony that one Rasso gave the land to Kun Mongkeya, disposes of part of the parties’ issues and the subsidiary questions. Several remain. They concern whether the Land Court reasonably assessed the evidence before it and what weight, if any, that evidence should have been given ) the 1932 Japanese map, the 1957 Trust Territory land use agreements, a 1978 agreement, and other supporting evidence.

1. 1932 Japanese Map

    Allen Mackwelung’s name was on the 1932 Japanese survey map as the owner of Yekula. The presence of a person’s name on the 1932 Japanese Survey Map as the owner of a parcel of land is not conclusive or dispositive of that person’s ownership, but may be overcome or rebutted by other evidence. George v. Nena, 12 FSM Intrm. 310, 318 (App. 2004) (significant evidence needed to overcome 1932 map); Elaija v. Edmond, 9 FSM Intrm. 175, 180 (Kos. S. Ct. Tr. 1999) (1932 Japanese survey map of Kosrae not dispositive; land’s ownership to be determined on the basis of all the evidence); Heirs of Likiaksa v. Heirs of Lonno, 3 FSM Intrm. 465, 468 (Kos. S. Ct. Tr. 1988) (person’s name on the Japanese Survey of Kosrae not conclusive evidence of ownership in 1932).

    Since there was substantial evidence in the record before the Land Court that Mackwelung used, controlled, and occupied Yekula continuously after 1932, including evidence and testimony presented at the original 1979 Land Commission proceeding by Nithan Jackson and Tolenna Clarence, the Land Court reasonably assessed this evidence as supporting the Mackwelungs’ position that a kewosr to Sra Nuarar had taken place (conclusively established by Heirs of Mongkeya (III), of which the Land Court properly took judicial notice) that included Yekula, since, by its nature, a kewosr itself is unlikely to cause documentation. The Mongkeyas did not offer any evidence to overcome the 1932 Japanese survey map except the testimony of Justus Mongkeya that a previously unmentioned person named Rasso, and not Mongkeya, had owned Yekula and had later transferred it to Kun Mongkeya. This testimony the Land Court reasonably assessed as not credible.

2. The 1957 Trust Territory Land Use Agreements

    The Mongkeyas now contend that the Land Court should not have relied on the 1957 land use agreements because, in their view, they had not been fully authenticated and admitted and that the land use agreements should have been voided. Any determination of whether the 1957 land use agreements were legal, valid and enforceable would involve a party not before the court, the Trust Territory, concerning contracts that, by their terms, have been completed and have expired. (They were to last so long as the land was needed for school purposes. The school was moved in 1978 and the lands and the improvements thereon were released to the grantors by the Trust Territory.) Whether the Land Court should have considered the 1957 land use agreements is a simple question. Kosrae General Court Order 2002-10, paragraph 2 requires the Land Court to consider all presented evidence and

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determine whether the evidence is relevant and credible. Heirs of Palik v. Heirs of Henry, 12 FSM Intrm. 625, 627 (Kos. S. Ct. Tr. 2004). Since the 1957 land use agreements were material and relevant and part of the record, it was not error for the Land Court to consider them.

    The Mongkeyas contend that the Land Court should not have given the 1957 agreements any weight because, in their view, those agreements did not reflect the true ownership of Yekula. The Mackwelungs contend that the 1957 agreement between Allen Mackwelung and the Trust Territory was for all of Yekula and that the 1957 agreement between Kun Mongkeya and the Trust Territory was not for any of Yekula, but for three adjoining parcels or that if it was for part of Yekula it was made by mistake and should have been voided for mistake. In support of this contention, the Mackwelungs included in their appendix certificates of tittle for two of the three Mongkeya parcels, which just by themselves without the third parcel, equal almost a full, hectare ) not the ¾ hectare Kun Mongkeya granted for school purposes in 1957. If these document were before the Land Court (which because of their 2005 issue date it appears that these may be the Mackwelungs’ documents that the Land Court did not consider because they had not been timely filed before the October 18, 2005 hearing), it would have been reasonable for the Land Court to consider that these did not support the Mackwelungs’ new contention.

    The two 1957 land use agreements were both executed May 9, 1957. In one, Kun Mongkeya granted about ¾ hectare for use by the Kusaie Intermediate School, and in the other, Allen Mackwelung (and Daniel Aliksa) granted four hectares for the same purpose. Both agreements were signed not only by the grantors but also by a Tafunsak village chief, the Chief Magistrate of Kusaie, and five members of the Land Advisory Committee of Seven, including the District Administrator and the clerk of courts. The boundaries described in each land use agreement abut each other. According to the Land Court, the "subdivision" ordered by the Land Commission and made by the Division of Surveying and Mapping reflects the boundary descriptions in both agreements. The parties do not appear to dispute this, or, if they do, they do not rebut it with any evidence. The boundary location was corroborated by witnesses who had been present in 1957 when the boundary was marked on the ground as personally directed by Allen Mackwelung. This more than substantially supports the Land Court finding that the 1957 land use agreements reflect the true ownership of Yekula.

    This all constitutes substantial evidence in support of the Land Court finding that the Mackwelungs own 40,000 square meters (four hectares) of Yekula, that the Mongkeyas own 8,457 square meters of Yekula, and that the boundary dividing Yekula, as surveyed by the Division of Surveying and Mapping, is correct.

3. The 1978 Agreement

    The Mongkeyas also assert that the Land Court proceeding was unfair because the Land Court, in their view, did not properly assess the evidentiary weight of a July 21, 1978 agreement between Kun Mongkeya and Kosrae district government to use some part of Yekula for a quarry site. It is uncertain whether this document is the same as a May 6, 1964 agreement that the Land Court disregarded because it could not determine what specific land the agreement was for or whether it was meant to replace the 1957 agreement with Kun Mongkeya. Even if the 1978 agreement were not the same document, this court cannot say that the Land Court erred by not giving it the weight the Mongkeyas ascribed to it since a legal proceeding cannot be deemed unfair merely because a proponent’s view of proffered evidence differs from the court’s.

    The 1978 agreement suffers from the same infirmities. The July 21, 1978 "Statement of Intent" is not a land use agreement but an option agreement. For $25, Kosrae district had the option, for one year, to enter into an agreement to establish a rock quarry "in a certain parcel of land situated in an area

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known as Yekula," land for which Kun Mongkeya warranted he had full ownership. There is no evidence that this option was ever exercised in the following year or that a quarry was ever established anywhere in Yekula. (The Land Commission proceedings started in 1979 after referral from the Trust Territory court.) Furthermore, it only refers to a parcel situated somewhere in Yekula, not all of Yekula, so it does not support the Mongkeyas’ claim to all of Yekula, even assuming it is some evidence of ownership of only part of Yekula. It may have been meant to replace the earlier 1957 land use agreement, which expired about that time, in which case it would support a claim to no more land than was covered under Kun Mongkeya’s 1957 agreement. It was thus not error for the Land Court not to award the Mongkeyas all of Yekula based on this option agreement.

E. Summary

    The above all constitutes substantial evidence in support of the Land Court finding that the Mackwelungs own 40,000 square meters (four hectares) of Yekula, that the Mongkeyas own 8,457 square meters of Yekula, and that the boundary as surveyed by the Division of Surveying and Mapping is correct. Accordingly, this court concludes that the Land Court did not exceed its constitutional or statutory authority; that it did not conduct an unfair proceeding, that no legal issues were improperly resolved, and that it reasonably assessed the evidence presented to it and in the record. Since the Land Court decision was based upon substantial evidence and its decision was not contrary to law, this court will not disturb it on appeal.

V. Conclusion

    Therefore the Land Court’s conclusion that the Heirs of Allen Mackwelung are the true owners of the four hectares designated as parcel 061-T-13, and that the Heirs of Kun Mongkeya are the true owners of the 8,457 square meters designated as parcel 061-T-32, is affirmed.

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Footnotes:

1. This is unremarkable and wholly proper because a tenancy in common is a form of co-ownership where two or more persons have equal and undivided shares in the whole with each having an equal right to the whole, but no right of survivorship. Black’s Law Dictionary 1478 (7th ed. 1999). Once the sole owner, Allen Mackwelung, died, his fee simple interest would be inherited by his multiple heirs who would hold that fee simple estate as a tenancy in common. The determination of ownership probably should have more accurately described the ownership as a tenancy in common of a fee simple estate.

2. "The State Government shall protect the State’s traditions as may be required by the public interest." Kos. Const. art. II, § 2.

3. "The court does not utilize tradition in reaching a decision unless it receives satisfactory evidence of the tradition." Kos. S.C. § 6.303.

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