Cite as Tulenkun v. Abraham,13 (Kos. S. Ct. Tr. 2003)

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CIVIL ACTION NO. 97-02

Hearing: July 2, 2003
Decided: July 23, 2003

APPEARANCES:

HEADNOTES

Administrative Law – Judicial Review; Property – Land Commission

Where the provisions of former Kosrae State Code, Title 11, Chapter 6, were applicable to the

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Land Commission proceedings now on appeal, the court will apply the provisions of former Kosrae State Code, Title 11, Chapter (repealed) to its review of the Land Commission's procedure and decision in the matter. Tulenkun v. Abraham, 12 FSM Intrm. 13, 15-16 (Kos. S. Ct. Tr. 2003).

Administrative Law – Judicial Review; Property – Land Commission

The 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. Tulenkun v. Abraham, 12 FSM Intrm. 13, 16 (Kos. S. Ct. Tr. 2003).

Administrative Law – Judicial Review; Property – Land Commission

When the determined parcels' boundaries are clear by either permanent markers or by readily recognizable natural features, the Land Commission is not required to give written notice to the claimants before planting monuments. The planting of monuments is an administrative task and is completed pursuant to the Land Commission's instructions. The Division of Survey's planting of monuments, by itself, does not establish boundaries for purposes of an appeal. Tulenkun v. Abraham, 12 FSM Intrm. 13, 16 (Kos. S. Ct. Tr. 2003).

Administrative Law – Judicial Review

In reviewing the Land Commission's decision and procedure, the Kosrae State Court must determine whether the Land Commission violated the Kosrae Constitution or state law. Tulenkun v. Abraham, 12 FSM Intrm. 13, 16 (Kos. S. Ct. Tr. 2003).

Constitutional Law – Due Process; Property – Land Commission

When the Land Commission did not exceed its constitutional or statutory authority, and did conduct a fair proceeding for determination of title, there was no violation of state law and no violation of constitutional and statutory due process based upon the Land Commission's failure to notify the appellant in writing of the planting of monuments. Tulenkun v. Abraham, 12 FSM Intrm. 13, 16 (Kos. S. Ct. Tr. 2003).

Property

The law presumes that an owner of land knows his own property and truly represents it. Tulenkun v. Abraham, 12 FSM Intrm. 13, 17 (Kos. S. Ct. Tr. 2003).

Administrative Law – Judicial Review; Property – Land Commission

The Kosrae State Court, on appeal, will not substitute its judgment for the Land Commission's well-founded evidentiary findings. An appellate court will not reweigh the evidence presented at the hearing. When the court, in reviewing the Land Commission's record and decision in a matter, concludes that the Commission has reasonably assessed the evidence presented regarding the parcel's size, the Land Commission's factual finding of the parcel's size is adequately supported by substantial evidence in the record, and its findings of fact are not clearly erroneous and will not be disturbed on appeal. Tulenkun v. Abraham, 12 FSM Intrm. 13, 17 (Kos. S. Ct. Tr. 2003).

COURT'S OPINION

YOSIWO P. GEORGE, Chief Justice:

This is an appeal from a Determination of Ownership for parcel 035-U-17, also called Wan Finkol, which was issued by the former Kosrae State Land Commission on May 23, 2001 and served upon the

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Appellant on July 23, 2002. A timely appeal was filed. Appellant filed his brief on March 20, 2003. Appellee submitted his brief on April 28, 2003. The briefs were argued at a hearing held on July 2, 2003. Clanry Likiaksa appeared for the Appellant. Appellee was represented by Canney Palsis, MLSC.

Appellant claims a due process violation by the Land Commission for failure to notify the Appellant in writing prior to the planting of monuments to mark the boundaries of the parcel. Appellant also claims that the Land Commission's findings of facts were clearly erroneous in relying upon the will of Walter Tulenkun regarding the size and measurement of parcel 035-U-17.

As a preliminary matter, the Court notes the Appellant's significant non-compliance with the Kosrae Rules of Appellate Procedure. The Appellant's brief, which consists of five paragraphs, did not comply with the requirements of KRAppP. Appellant failed to comply with Rule 11, which required the Appellant's Brief to contain five items: a table of contents, a statement of issues, a statement of the case, an argument and conclusion. Appellant's brief did not properly present any of the five required items. Appellant's statement of issues and argument did not contain any references to Kosrae State Constitution, Kosrae State Code, or any other legal authority whatsoever. Appellant's counsel is warned that any future briefs which do not substantially comply with the requirements of the Kosrae Rules of Appellate Procedure shall be subject to being stricken, either on the Appellee's motion or on the Court's own motion.

Based upon the record in this matter, arguments made at the hearing and applicable law, I find in favor of the Appellee, Wright Abraham. This Memorandum of Decision explains the Court's decision and reasoning.

I. Factual Background.

The Court has carefully reviewed the Kosrae State Land Commission record for parcel 035-U-17. The Kosrae State Land Commission designated Wan Finkol as Registration Area in 1992, and held formal hearings in 1995. Both parties were present at the formal hearings and were given the opportunity to testify and to cross examine the other witnesses. The Land Commission also accepted into evidence the Will of Walter Tulenkun, which had been signed before three witnesses. The Will granted Dr. Ciro Barbosa a parcel of three acres from Wan Finkol, in consideration for the purchase made by Dr. Barbosa. The validity or authenticity of the Will was not challenged. The validity of the sale of land from Walter Tulenkun to Dr. Ciro Barbosa was acknowledged by the Appellant. The Land Commission record also contained an Order of Partition, entered by the Pohnpei Supreme Court on July 29, 1997. The Order specified that pursuant to the Will of Ciro Barbosa, which was approved by the Pohnpei Supreme Court in June 1996, land parcel 035-U-17 in Fwinkol, Kosrae State will be owned by Wright Abraham.

The Land Commission instructed the State Surveyor to place monuments to mark the boundaries of parcel 035-U-17, as determined by the Land Commission. The monuments to mark the boundaries of parcel 035-U-17 were placed before the formal hearing. The Appellant was not given written notice by the Land Commission prior to placement of the monuments. After the hearing, pursuant to its Findings of Facts and Opinion, the Land Commission awarded parcel 035-U-17, with an area of three acres or 12,141 square meters, to Wright Abraham. The Determination of Ownership was issued on May 23, 2001 and served upon the Appellant on July 23, 2002. This appeal followed.

II. Analysis.

The provisions of former Kosrae State Code, Title 11, Chapter 6, were applicable to the Land Commission proceedings for parcel 035-U-17. Therefore, this Court applies the provisions of former

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Kosrae State Code, Title 11, Chapter (repealed) to its review of the Land Commission's procedure 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 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).

Appellant's first issue on appeal claims a due process violation by the Land Commission for failure to notify the Appellant in writing for planting of monuments of the boundaries of the parcel. This Court has carefully reviewed the requirements of Kosrae State Code, Title 11, Chapter 6. Kosrae State Code, Sections 11.609 and 11.613 requires that all claimants be provided written notice of the formal hearings and the determination of ownership. The Appellant has not alleged any violation of notice for the formal hearing and the determination of ownership for parcel 035-U-17. The Land Commission record reflects that both parties were present at and participated in the formal hearing. The Determination of Ownership was served on both parties.

Kosrae State Code, Section 11.605 further provides that after title is determined, the Commission provides that the boundaries of the determined parcels "are clear by either permanent markers or by readily recognizable natural features." Kosrae State Code, Section 11.605 does not require the Land Commission to give written notice to the claimants before planting monuments. The planting of monuments is an administrative task completed by the Department of Land, Agriculture and Fisheries, Division of Survey and Mapping. The planting of monuments is completed pursuant to instructions made by the Land Commission. The planting of monuments by the Division of Survey, by itself, does not establish boundaries for purposes of an appeal.

The Appellant has not pointed to any statutory or regulatory requirement for written notice by the Land Commission to a claimant prior to the planting of monuments by the Division of Survey. This Court has also carefully reviewed the Kosrae State Laws, but could not find any such statutory or regulatory requirement. Accordingly, the Court finds that Land Commission was not required to give written notice to the Appellee before planting the monuments on the boundaries of parcel 035-U-17.

In reviewing the Land Commission's decision and procedure, this Court must determine whether the Land Commission violated the Kosrae State Constitution or Kosrae State Law. See Isaac v. Benjamin, 9 FSM Intrm. 258 (Kos. S. Ct. Tr. 1999). I conclude that there was no violation of State Law and no violation of constitutional and statutory due process in this matter, based upon the Land Commission's failure to notify the Appellant in writing of the planting of monuments on parcel 035-U-17. The Land Commission did not exceed its constitutional or statutory authority, and did conduct a fair proceeding for determination of title of parcel 035-U-17. See Nena v. Heirs of Melander, 9 FSM Intrm. 523 (Kos. S. Ct. Tr. 2000). Appellant's first issue on appeal is rejected as without merit.

Appellant's second issue on appeal is based upon the Land Commission's reliance upon the Will of Walter Tulenkun in determining the size of the parcel 035-U-17. Appellant argues that the Land Commission's finding of facts was clearly erroneous due to the Land Commission's acceptance of the Will of Walter Tulenkun regarding the size of the subject parcel. The Will of Walter Tulenkun designated the size of the parcel given to Dr. Ciro Barbosa as three acres. The Will was witnessed by three individuals, and the authenticity or validity of the Will has never been disputed. Instead, Appellant claims that Walter Tulenkun did not know the size of one acre and therefore his Will should not be relied upon to provide the size of parcel 035-U-17 to be owned by Dr. Ciro Barbosa.

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The law presumes that an owner of land, knows his own property and truly represents it. 77 Am. Jur. 2d Vendor and Purchaser § 115, at 203 (1997). Here, it is presumed that Walter Tulenkun knew his own property at Wan Finkol, knew the size of the parcel that he sold to Dr. Ciro Barbosa and truly represented its size as three acres. It is also presumed that Walter Tulenkun knew the size of an "acre," as used in his Will, in referencing the parcel sold to Dr. Ciro Barbosa. Walter Tulenkun is therefore presumed to have known the size of the three acre parcel he sold to Dr. Ciro Barbosa in 1970.

This Court, on appeal, will not substitute its judgment for the well-founded evidentiary findings of the Land Commission. Heirs of Mongkeya v. Heirs of Mackwelung, 8 FSM Intrm. 31 (Kos. S. Ct. Tr. 1997). An appellate court will not reweigh the evidence presented at the hearing. Johnny v. FSM, 8 FSM Intrm. 203 (App. 1997). This Court, in reviewing the Land Commission's record and decision in this matter, concludes that the Commission has reasonably assessed the evidence presented regarding the size of the parcel sold by Walter Tulenkun to Dr. Barbosa. The Land Commission reasonably assessed the Will of Walter Tulenkun as providing the three acre size of the parcel to be owned by Dr. Ciro Barbosa. See Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 395 (Kos. S. Ct. Tr. 1988). The Land Commission's factual finding of the three acre size of parcel 035-U-17 is adequately supported by substantial evidence in the record. The Land Commission's findings of fact were not clearly erroneous and will not be disturbed on appeal. Worswick v. FSM Telecomm. Corp., 9 FSM Intrm. 460 (App. 2000). Appellant's second issue on appeal is without merit and is therefore rejected.

III. Judgment.

Judgment is entered in favor of the Appellee and against the Appellant. The Determination of Ownership for parcel 035-U-17 is affirmed. The Kosrae Land Court is ordered to issue the Certificate of Title for parcel 035-U-17 to the Appellee 60 days from service of this Decision, or as soon thereafter as practicable.