Cite as Youngstrom v. Phillip, Kosrae St. (1992)

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     This matter comes before the Court on appeal as a motion to vacate the Findings of Fact and Opinion issued by the Kosrae State Land Commission on October 31, 1991, as well as the determination of ownership issued therein. Upon review of the Land Commission's Findings and Opinion and the record in this case, we find cause to vacate the October 31, 1991 decision and remand the case to the Land Commission for further determination in compliance with this order.

     We note that plaintiff's motion was filed in conjunction with a timely notice of appeal. Jurisdiction of this Court over an appeal from a Land Commission determination of ownership is authorized by section 11.614 of the Kosrae State Code. The court order of April 12, 1990 previously remanding this case to the Land Commission to divide the parcels also explicitly preserved the parties' right to appeal.

     Reviewing the record in conjunction with the Land Commission's Findings of Fact and Opinion, we agree with the Commission's rejection of Plaintiff's Proposal No. 1 for the season stated in the Opinion - that the division proposed would

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be "contrary to historical fact." (Land Commission Opinion, p. 3, para. 1) However, we feel that Defendant's Proposal, which the Commission adopted, suffers from the same defect in that it places the stream entirely on Defendant's side of an arbitrary boundary line. The record does not indicate such an arrangement was ever followed by the parties in the past. Therefore, we deem Defendant's Proposal and Plaintiff's Proposal No. 1 unacceptable for the historical ground noted by the Land Commission.

     Our second concern involves the Land Commission's findings and conclusions regarding Plaintiff's Proposals No. 2 and 3. In his brief and at oral argument on the motion an October 6, 1992, plaintiff contested the area percentages the Land Commission cited in its opinion regarding the relative land shares each party would receive under Proposals 2 and 3. Thus, there remains a substantial factual dispute which goes to the heart of the Commission's decision, since the Commission stated that it felt constrained to adopt Defendant's Proposal because it had "exhausted all other possible remedies, in the proposals, that would be fully in compliance with the Court order." It has not been clearly demonstrated, however, that Plaintiff's Proposals 2 and 3 do not result in approximately equal shares such as to preclude their selection.

      As the Commission noted, either Plaintiff's Proposal 2 or 3 would comply with the preferred customary practice of using readily identifiable natural boundaries as property dividing lines. The Commission concluded, however, that no option

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employing the stream as the boundary would result in equal portions. In light of plaintiff's repeated contention that an equal division is possible using the stream, we urge the Land Commission to review again this option and in particular Plaintiff's Proposal No. 2, which enables a surveyor to draw a line from where the stream forks in any way that would make the two parcels have approximately equal acreage.

     The Court notes that the parties and the Commission seem to have been confused by the role of discretion in dividing Pukusrik as stated in this Court's April 12, 1990 order. Paragraph (1)(c) on page 2 of that order instructed the Commission to divide Pukusrik equally, "but any adjustment, uncertainty, or question of discretion should be resolved in favor of the plaintiff." Our interpretation of this clause is that the division of Pukusrik should strive to be as close to 50-50 as possible. If, however, a boundary line cannot be drawn to apportion exact 50-50 halves, taking into consideration the relevant historical and customary concerns the Land Commission has noted, any need for a variance resulting in one slightly greater than 50$ share should be decided in favor of the Youngstroms.

     For the above reasons, we vacate the Kosrae Land Commission decision of October 30, 1991 and remand this case to the Commission to:

        (a)   Recalculate the land area percentages of Plaintiff's Proposals 2 and 3, using
                the stream as a natural

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                boundary line.

        (b)   Determine which of these proposals results in the most equal allocation of
                land, paying particular attention to Proposal 2, which allows for a surveyor's
                line to be drawn from the point at which the stream forks in whatever manner
                results in roughly equal halves.

        (c)   Adopt whichever of these two proposals most closely results in roughly equal
                halves. If the proposal thus adopted does not yield exactly equal halves, the
                larger of the two halves shall be allocated the plaintiff.

        (d)   Partition Pukusrik according to the proposal selected and issue a
                determination of ownership reflecting this partition.

SO ORDERED the 8th day of December, 1992.

                                   Martin Yinug
                                   Designated Judge
                                   Kosrae State  Court
Entered the 8th day of December, 1992.

Clerk of Court