KOSRAE STATE COURT TRIAL DIVISION

Cite as Heirs of Noda v. Heirs of Joseph 13 FSM Intrm. 21 (Kos. S. Ct. Tr. 2004)

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Appellees.

CIVIL ACTION NO. 67-03

Hearing: July 23, 2004
Decided: October 12, 2004

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APPEARANCES:

HEADNOTES

Appellate Review – Standard of Review

If, on appeal, the Kosrae State Court finds that a Land Court decision was not based upon substantial evidence or that the Land Court decision was contrary to law, the court must remand the case to the Land Court with instructions and guidance for re-hearing the matter. Heirs of Noda v. Heirs of Joseph, 13 FSM Intrm. 21, 23 (Kos. S. Ct. Tr. 2004).

Appellate Review – Standard of Review; Evidence

When the boundary claimed by appellants was supported by testimony of a neutral observer and the appellees' was based only on their testimony, the Land Court decision, which accepted the appellees' boundary claim was not based upon substantial evidence. Heirs of Noda v. Heirs of Joseph, 13 FSM Intrm. 21, 23 (Kos. S. Ct. Tr. 2004).

Appellate Review – Standard of Review; Evidence

When there was no evidence presented to the Land Court regarding the parties' acceptance of the river as the boundary between their parcels, but the Land Court relied upon an alleged settlement between the parties which was never presented or accepted as evidence at the hearing, the Land Court decision which determined the river as the boundary was not based upon substantial evidence. Heirs of Noda v. Heirs of Joseph, 13 FSM Intrm. 21, 23 (Kos. S. Ct. Tr. 2004).

Appellate Review – Standard of Review; Evidence

When the parties' settlement to divide the islands in the swampy area such that each party is owner of two islands was accepted into evidence at the Land Court hearing, but was not reflected in the Land Court decision, that decision regarding the swampy area, was not based upon substantial evidence. Heirs of Noda v. Heirs of Joseph, 13 FSM Intrm. 21, 23-24 (Kos. S. Ct. Tr. 2004).

Appellate Review – Standard of Review

When the Land Court's boundary decision was not based upon substantial evidence, the matter must be remanded to the Land Court with instructions and guidance for re-hearing the matter. Heirs of Noda v. Heirs of Joseph, 13 FSM Intrm. 21, 24 (Kos. S. Ct. Tr. 2004).

COURT'S OPINION

ALIKSA B. ALIKSA, Associate Justice:

This is an appeal from a Decision issued by the Kosrae Land Court on June 30, 2003 for parcel

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026-U-02. Appellants' brief was filed on April 12, 2004. Appellees' brief was filed on May 12, 2004. This matter was set for hearing on July 23, 2004. Charlton Timothy appeared for the Appellants. Orlando Joseph appeared on his own behalf and also represented the interest of the Appellees.

Appellants claim a boundary dispute with Appellees, between land called Fwaleng and Fwinloesr. Appellants were determined to be the owner of parcel 026-U-02 called Fwaleng. Appellees are the owners of adjacent land called Fwinloesr. Appellants claim that the boundaries between Appellants’ parcel 026-U-02 and Appellees' land Fwinloesr are incorrect. Appellants allege incorrect boundaries at the upper land, lower land, and the mangrove area "inkosro." Appellees argue that the Land Court determined the correct boundaries between Fwaleng and Fwinloesr.

Based upon the record in this matter, arguments made at the hearing and applicable law, I find in favor of the Appellant. This Memorandum of Decision explains the Court's 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. § 11.614(5)(d).

The Court has carefully reviewed the Kosrae Land Court record for parcel 026-U-02. The record includes documents issued by the former Kosrae State Land Commission for proceedings which took place prior to January 2002.

Based upon the record, it appears that the Land Court based its boundary findings and decision for the upper land were based upon the markers planted during the 1932 Japanese survey. The Land Court determined that two corners of parcel 026-U-02 were based upon boundaries marked during the 1932 Japanese survey. Witnesses on behalf of the Appellees testified that Tolenna Joseph indicated the boundary to them. The Appellees' witnesses were all sons of Tolenna Joseph. The boundary claimed by Appellants was supported by testimony of Atchiro Melander, who is a neutral observer. Atchiro Melander further testified that Sapuro, older brother of Orlando and son of Tolenna Joseph, admitted to him that the boundary was as Noda claimed. Sapuro Joseph admitted to Atchiro Melander that the boundary was marked by the breadfruit tree, as claimed by Noda. Based upon this evidence, I conclude that the decision made by the Land Court, which accepted Joseph's boundary claim for the upper land was not based upon substantial evidence.

With respect to the lower land, the Land Court relied upon an alleged mediation conducted with the parties by the Land Commission in 2000. In this mediation, Taitang Noda agreed with Sapuro Joseph to split the land 50/50 with the river serving as the boundary between the two parcels. The Land Court decision reflects this alleged settlement. However, at the hearing held at the Land Court, there was no evidence presented regarding the alleged settlement. There was no evidence presented regarding the parties' acceptance of the river as the boundary between their parcels. The Land Court relied upon an alleged settlement between the parties which was never presented or accepted as evidence at the hearing. Based upon this, I conclude that the decision made by the Land Court, which determined the river as the boundary for the lower land, was not based upon substantial evidence.

Finally, the swampy area, which is the third area located in the lowest part of the parcel,

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contains four islands. The evidence presented at the hearing indicated that a settlement was reached by the parties to divide the four islands in the swampy area into two portions, one portion for each party. The settlement reached by the parties was to divide the islands in the swampy area such that each party is owner of two islands. This settlement, which was accepted into evidence at the hearing, was not reflected in the decision entered by Land Court. Therefore, I conclude that the decision made by the Land Court regarding the swampy area, was not based upon substantial evidence.

The Court finds that Land Court's boundary decision regarding the upper land, lower land, and inkosro (swampy area) of parcel 026-U-02 was not based upon substantial evidence. Therefore, this matter must be remanded to the 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 June 30, 2003 for parcel 026-U-02 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 026-U-02, and specifically on the boundary between Fwaleng and Fwinloesr. Kosrae Land Court shall hold hearings and issue written findings and a decision on parcel 026-U-02, consistent with the requirements of Kosrae State Code, Title 11, Chapter 6 and the Kosrae Land Court Rules of Procedures. Kosrae Land Court shall issue the decision on parcel 026-U-02, to reflect new boundaries, if necessary. 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.

2. The Land Court shall hear the Appellants, Appellees, their witnesses and other evidence which may be offered at the hearing.

3. The Land Court shall follow the requirements of GCO 2002-13 with respect to questioning of claimants not represented by legal counsel.

4. 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.

5. 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.

6. 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.