KOSRAE STATE COURT TRIAL DIVISION
Cite as Anton v. Heirs of Shrew,
10 FSM Intrm. 162 (Kos. S. Ct. Tr. 2001)

[10 FSM Intrm. 162]

LIVINGSTON ANTON,
Appellant,
 
vs.
 
HEIRS OF SHAPAL SHREW
Appellees.
 
CIVIL ACTION 101-00
 
MEMORANDUM OF DECISION;
ORDER TO LAND COMMISSION
 
Aliksa B. Aliksa
Associate Justice
 
Hearing: November 27, 2000
 
Decided: March 13, 2001
 
[10 FSM Intrm.163]
 
APPEARANCES:
 
 For the Appellant:                 Akiyusi Palsis, trial counselor
                                                 P.O. Box 224
                                                 Lelu, Kosrae FM 9694
 
For the Appellee:                   Charlton Timothy, trial counselor
                                                 P.O. Box 479
                                                 Lelu, Kosrae FM 96944
 
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HEADNOTES
 
Administrative Law ) Judicial Review; Property ) Land Commission
     The Kosrae State Court, in reviewing the Land Commission's procedure and decision, should consider whether the 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. Anton v. Heirs of Shrew, 10 FSM Intrm. 162, 164 (Kos. S. Ct. Tr. 2001).
 
Administrative Law ) Judicial Review; Property ) Land Commission
     On appeal the Kosrae State Court should not substitute its judgment for those well-founded findings of the Land Commission because it is primarily the task of the Land Commission, and not the reviewing court, to assess the witnesses' credibility and resolve factual disputes, since it is the Land Commission, and not the court, who is present during the testimony. Therefore, the Kosrae State Court should review the Land Commission record and determine whether the Land Commission reasonably assessed the evidence presented, with respect to factual issues. Anton v. Heirs of Shrew, 10 FSM Intrm. 162, 164 (Kos. S. Ct. Tr. 2001).
 
Administrative Law ) Judicial Review; Property ) Land Commission
     A Land Commission opinion must reflect a proper resolution of the legal issues. If it does not, the decision must be set aside. Anton v. Heirs of Shrew, 10 FSM Intrm. 162, 164 (Kos. S. Ct. Tr. 2001).
 
Domestic Relations ) Probate; Property
     A person may only transfer such title to land as that person lawfully possesses. So when someone did not own a parcel, he did not have the authority to transfer title and distribute it to his children through his will. Anton v. Heirs of Shrew, 10 FSM Intrm. 162, 165 (Kos. S. Ct. Tr. 2001).
 
Constitutional Law ) Kosrae; Custom and Tradition ) Kosrae
     The Kosrae Constitution provides that the state government protect the state's traditions as the public interest may require. Anton v. Heirs of Shrew, 10 FSM Intrm. 162, 165 (Kos. S. Ct. Tr. 2001).
 
Administrative Law ) Judicial Review; Property ) Land Commission
     When the Land Commission reasonably assessed the evidence with respect to who owned the land, its findings are not clearly erroneous, and when those findings are that Ittu never took back ownership of the land, the Land Commission did not reach the issue of applying Kosrae tradition and thus properly resolved that legal issue and did not exceed its constitutional authority. That Land Commission decision will be affirmed. Anton v. Heirs of Shrew, 10 FSM Intrm. 162, 165 (Kos. S. Ct. Tr. 2001).

[10 FSM Intrm. 164]

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ALIKSA B. ALIKSA, Associate Justice:
 
     This matter is an appeal from the Determination of Ownership issued by the Kosrae State Land Commission on parcel 066-M-05. The Determination of Ownership was issued to the Heirs of Sapal Shrew and Heirs of Asama Ittu on February 14, 2000. This appeal was filed pursuant to Kosrae State Code, Section 11.614. The Heirs of Asama Ittu were never properly served in this Appeal. Therefore, this Appeal and Memorandum of Decision does not apply to their interests in parcel 066-M-05. Appellant filed his Pre-Trial Brief (sic) on September 11, 2000. Appellee's brief was filed on November 2, 2000 and a Reply was filed by the Appellant on November 20, 2000. The hearing on the briefs was held on November 27, 2000. Akiyusi Palsis appeared for the Appellant. Charlton Timothy represented the Appellees. This Memorandum of Decision sets forth the Court's decision and its reasoning.
 
I. Standard of Review.

     This Court, in reviewing the Land Commission's procedure and decision, should consider whether the 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).

     The Appellant has presented four issues on appeal for review by this Court:

1. Whether Tepuke authorized Ittu Tepuke to distribute his land to his children Tara Tepuke, Ittu Tepuke and Mirah Srongroshrew?

2. Whether Ittu Tepuke or Mirah Srongroshrew gave the land to Sapal Ittu?

3. Whether the Will of Ittu, which was accepted into evidence at the formal hearing, was properly considered in adjudication of this matter?

4. Whether the Land Commission applied Article 2, Section 2 of the Kosrae State Constitution in adjudication of this matter?

     The first three issues presented by the Appellant are factual issues. With respect to review of factual findings, this Court, in reviewing the Land Commission's procedure and decision, normally should merely consider whether the Land Commission has reasonably assessed the evidence presented. Heirs of Mongkeya, 3 FSM Intrm. at 398. On appeal the Court should not substitute its judgment for those well-founded findings of the Land Commission. Heirs of Mongkeya v. Heirs of Mackwelung, 8 FSM Intrm. 31, 35 (Kos. S. Ct. Tr. 1997). It is primarily the task of the Land Commission, and not the reviewing Court, to assess the credibility of the witnesses and resolve factual disputes, since it is the Land Commission, and not the Court, who is present during the testimony. Heirs of Mongkeya, 3 FSM Intrm. at 401. Therefore, this Court should review the Land Commission record and determine whether the Land Commission reasonably assessed the evidence presented, with respect to the first three factual issues.

      The fourth issue is a legal issue, relating to the application of the Kosrae State Constitution. The opinion of the Land Commission must reflect a proper resolution of the legal issues. If it does not, the decision must be set aside. Id. at 402.

[10 FSM Intrm. 165]

II. Analysis.

     This Court has carefully reviewed the Land Commission record with respect to the proceedings on parcel 066-M-05. The Court finds that the Land Commission reasonably assessed the evidence with respect to the first three issues presented by the Appellant. Tepuke had three children: Ittu, Tara and Mirah. Mirah, the only daughter of Tepuke, adopted Ittu's natural son, Sapal. Appellant agreed that Tepuke was the original landowner of the subject parcel and that Tepuke gave the subject land to Mirah. Appellees argues that they inherited the parcel through Sapal Shrew, Mirah's adopted son. Sapal Shrew's name was registered to the parcel on the 1932 Japanese map.

     Appellant argued that Ittu, as eldest son of Tepuke and older brother of Mirah, had the customary right to take back the subject parcel from Mirah. Appellant argued that Ittu exercised that customary right. The Land Commission found that there was insufficient evidence to find that Ittu took back the land from Mirah. Upon a careful review of the record, I find that the Land Commission reasonably assessed the evidence presented with respect to Mirah's ownership of parcel 066-M-05, subsequent inheritance by the Appellees and Ittu's actions with respect to the parcel. The Land Commission's findings are not clearly erroneous.

     Next, Appellant argues that the Land Commission did not properly consider the Will of Ittu, which was made in 1961. The Land Commission did consider the Will of Ittu in its proceedings, but rejected its application to this parcel. The Land Commission found that parcel 066-M-05 did not belong to Ittu because he did not take that parcel back from Mirah. A person may only transfer such title to land as that person lawfully possesses. Muritok v. William, 8 FSM Intrm. 574, 576 (Chk. S. Ct. Tr. 1998). Since Ittu did not own parcel 066-M-05, he did not have the authority to transfer title and distribute it to his children through his Will. I find that the Land Commission reasonably assessed the evidence pertaining to the Will of Ittu. The Land Commission's findings are not clearly erroneous.

     Finally, Appellant argues that the Land Commission did not apply Article 2, Section 2 of the Kosrae State Constitution. Article 2, Section 2 provides that "[t]he State Government shall protect the State's traditions as may be required by the public interest." Appellant claims that Kosrae tradition and customary law allows the eldest son in a family to act on behalf of his parents. The Land Commission did not reject that Kosrae tradition. Instead, the Land Commission found, that based upon the evidence presented at the formal hearing, there was insufficient evidence to support a finding that Ittu, as eldest son of Tepuke, took back ownership of parcel 066-M-05 from Mirah. Since the evidence did not support this finding, the Land Commission did not reach the issue of applying Kosrae tradition. I find that the Land Commission did reasonably assess the evidence presented with respect to Mirah's ownership of and Ittu's actions with respect to parcel 066-M-05. The findings of the Land Commission are not clearly erroneous. Therefore, the application of Kosrae tradition, pursuant to the Article 2, Section 2 of the Kosrae State Constitution, was not reached. The Land Commission properly resolved this legal issue and did not exceed its constitutional authority.

III. Conclusion.

     The Determination of Ownership for parcel 066-M-05 is affirmed in the name of Appellees, Heirs of Sapal Shrew and the Heirs of Asama Ittu. The Land Commission is ordered to issue the Certificate of Title for parcel 066-M-05 to the Heirs of Sapal Shrew and Heirs of Asama Ittu, pursuant to Kosrae State Code, Section 11.616(1). The Certificate of Title shall be issued in sixty (60) days or as soon as possible thereafter.

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