Appellate Review; Standard of Review; Civil Cases

     The Kosrae State Court must review a Kosrae Land Court decision only on the record, transcripts, and exhibits received at the Land Court hearing. This review must determine whether the Land Court decision was based upon substantial evidence or whether the decision was contrary to law. If the court finds that the Land Court decision was based upon substantial evidence and was not contrary to law, the decision must be affirmed. Sigrah v. Heirs of Nena, 13 FSM Intrm. 192, 195 (Kos. S. Ct. Tr. 2005).

     An appeal from an adjudicated matter in the Kosrae Land Court may be made within sixty days of service of the Land Court Justice’s written decision upon the party appealing the decision. Sigrah v. Heirs of Nena, 13 FSM Intrm. 192, 195 (Kos. S. Ct. Tr. 2005).

     Fee simple title to land which is held by a group of heirs is held as tenants-in-common. Sigrah v. Heirs of Nena, 13 FSM Intrm. 192, 196 (Kos. S. Ct. Tr. 2005).

     When an heir appeared as an individual on his own behalf only, the remaining heirs did not appear in the case and therefore cannot be designated as appellees. Thus, the individual appears representing only his personal and individual claims to the land. Sigrah v. Heirs of Nena, 13 FSM Intrm. 192, 196 (Kos. S. Ct. Tr. 2005).

     Co-owners of land are generally considered indispensable parties to any litigation involving the land. A party who seeks to quiet title to a piece of land must join all known persons who are claiming title in order to settle the property’s ownership. Sigrah v. Heirs of Nena, 13 FSM Intrm. 192, 196 (Kos. S. Ct. Tr. 2005).

     An appeal from an administrative agency must be perfected as well as started within the established statutory time period and part of perfecting the appeal is the joinder of indispensable parties. Failure to join indispensable parties prior to the expiration of the statutory time for appeal is a fatal defect which deprives the court of jurisdiction to entertain the action. Sigrah v. Heirs of Nena, 13 FSM Intrm. 192, 196 (Kos. S. Ct. Tr. 2005).

Appellate Review; Decisions Reviewable

     At the Kosrae Land Court proceeding below, Mr. Wiggin Sigrah appeared as the representative of the Heirs of Joseph Nelson. Mr. Wiggin Sigrah informed this Court that his appearance at the Land Court proceedings on behalf of the Heirs of Joseph Nelson was acquiesced to by the remaining heirs, due to the failure of Steven Sigrah to return to Kosrae and appear for the Heirs of Joseph Nelson.

     Mr. Wiggin Sigrah appeared at the Kosrae Land Court proceeding representing "the Heirs of Joseph Nelson." The Heirs of Joseph Nelson was a claimant and a party before the Kosrae Land Court. Pursuant to Kosrae State Code, Section 11.614(1), an appeal may be made as follows: "(1) An appeal from an adjudicated matter by the Land Court shall be made within sixty days of service of the written decision of the Land Court Justice upon the party appealing the decision."

     The "Heirs of Joseph Nelson" is the party who was served the October 16, 2003 decision of the Kosrae Land Court. Mr. Wiggin Sigrah, as an individual, was not a claimant nor a party before the Kosrae Land Court. This Court now considers whether Mr. Wiggin Sigrah, as an individual, is permitted to present this appeal and claim his personal interest in parcels 068K09 and 068K20. Mr. Sigrah does

not represent the claimant and party Heirs of Joseph Nelson, who could claim entire undivided interest in these parcels as tenants-in-common. Fee simple title to land which is held by a group of heirs is held as tenants-in-common. Kos. Land Ct. Pro. R. 9.E.

     The necessity of joining all co-owners of land to any litigation in the land was addressed in the case of Anton v. Heirs of Shrew, 12 FSM Intrm. 274 (App. 2003) (opinion entered Dec. 30, 2003). In the Livingston Anton case, the Appellant did not join the co-tenants of the affected land. In dismissing the appeal, the Court held: "Co-owners of land are generally considered indispensable parties to any litigation involving the land. . . . A party who seeks to quiet title to a piece of land must join all known persons who are claiming title in order to settle the property’s ownership . . . ." Id. at 278.

Id. at 279 (citation omitted). Here, the appeal was filed naming "Heirs of Joseph Nelson" as the Appellant. The Notice of Appeal was signed by Mr. Wiggin Sigrah, as "Head Master" for the Heirs of Joseph Nelson. However, at oral argument of this matter, Mr. Wiggin Sigrah conceded that he was appearing on his own behalf only, as an individual and as one heir of Joseph Nelson. Mr. Wiggin Sigrah presented only his individual claim for the subject parcels, and not the collective claims of the Heirs of Joseph Nelson, as potential tenants-in-common. Consequently, the caption was incorrectly titled and misled the Court as to the actual appellant in this appeal. The caption in this matter shall be amended to strike the Heirs of Joseph Nelson, and to reflect Wiggin Sigrah as the sole Appellee.

     Pursuant to the requirements of State Law, as specified in Kosrae State Code, Section 11.614(1), Mr. Wiggin Sigrah, as an individual, was not a party to the Land Court proceedings and likely does not have standing to appeal the Land Court decision. Pursuant to decision entered in Livingston Anton v. Heirs of Sapal Shrew, all persons who had claimed title to parcels 068K09 and 068K20 should have been joined in this appeal. The Heirs of Joseph Nelson, as the claimant and party who claimed ownership of the subject parcels at the Land Court proceedings, may be indispensable parties to this litigation, and should have appeared in this matter as Appellants. They did not.

     Accordingly, this Court may be without jurisdiction to consider the appeal filed by Mr. Wiggin Sigrah, in his individual capacity. However, as the Appellant has presented an issue of first instance to this Court, the Court does not rule upon capacity of Wiggin Sigrah to appear in this matter as in individual. The legal issue presented by the Appellant concerns the past and continuing procedures for land registration and title determination in this State, and is therefore properly addressed by this Court.

II.  Improper Partition.

     Appellant’s assignment of legal error in this case is the Land Commission’s partition of the upper inland Fwinef, Japanese Lot #292 into two parcels during the registration process in the 1970s and 1980s. Appellant argues that the upper inland Fwinef lots, designated as lot # 292 in the 1932 Japanese survey should not have been partitioned into parcels 068K08 and 068K09. Appellant argues that lot # 292 should have been kept as one, and therefore ownership of the entire lot should have been determined and awarded to one claimant: the Appellant.

     In support of this argument, Appellant relies upon the "agreed sketch," which is part of the record in Palikna Nena Seku v. Nelson Sigrah, Civil Action No. 305 (Trial Division of the High Court

1969). The High Court in Seku v. Sigrah determined that ownership of the oceanside land of Fwinef was divided between Palikna Nena Seku and Nelson Sigrah, in approximately equal portions. (Judgment entered January 15, 1969). Palikna Nena Seku was determined to be the owner of the northern portion, and Nelson Sigrah the owner of the southern portion, the boundary being a row of coconut trees. These oceanside parcels were later designated as parcels 068K06 and 068K07. Appellant argues that the "agreed sketch" in Civil Action No. 305 shows the upper inland land of Fwinef as one undivided parcel.

     This Court has carefully reviewed the "agreed sketch" in the record of Civil Action No. 305. The "agreed sketch" does not show any parcels or claims to parcels located in the upper inland portion of Fwinef, north of the road. The "agreed sketch" does not show any boundaries for the upper inland portion of Fwinef. Furthermore, Civil Action No. 305 did not address the upper inland portion of Fwinef and is therefore not binding upon the registration and determination process for the upper inland portion of Fwinef. A application of Civil Action No. 305 to the oceanside portion of Fwinef was confirmed through Judge Hefner’s Memorandum of February 26, 1976 to the Land Commission, which stated that "It appears that the area to the north of the road was not included in the judgment." The judgment entered in Civil Action No. 305 in 1969 applied only to the lower oceanside portion of Fwinef, and not to the area within Lot # 292.

     The original designation of registration area, including Fwinef, was made in June 1972. The Land Commission and survey team prepared the original cadastral plat map of 069K00, including the subject land in Fwinef, in 1981. This map designated the upper inland parcels as 068K08 and 068K09.

     Appellant argues that the Land Commission’s action during the registration process in dividing the upper inland Fwinef lot # 292 into the two parcels was a violation of law. Appellant argues that the Land Commission’s actions were illegal and should be set aside, and that the title to the upper inland portion of Fwinef should be determined as one parcel. However, Appellant has failed to provide any legal authority to support his argument that the partition of the upper inland portion of Fwinef was illegal or contrary to law.

     This Court has reviewed all laws in this State, applicable to the land registration process, beginning with the Trust Territory Code, Title 67. The Trust Territory Code, Title 67 was applicable to the Land Commission and Land Registration Team actions during the designation of the registration area which included Fwinef. The Trust Territory Code, Title 67, Section 106 governed the survey and establishment of boundaries in designated registration areas as follows:

67 Trust Territory Code, Section 106 explicitly mandates that the surveyors "make surveys of plots or claim[s] and place such markers within the area." Section 106 clearly contemplates and expects that claims shall be made for portions or plots within the designation area. Section 106 specifically requires the surveyors to recognize each individual claim for a plot and place markers for each claim. Pursuant to these provisions of the Trust Territory Code, Land Commission and surveyors did act properly pursuant to law to recognize claims for and mark boundaries for plots, which would be designated as parcels 068K08 and 068K09. The Trust Territory Code did not require the boundaries of Japanese Lots to be maintained during the registration process. The Trust Territory Code did not prohibit partitioning

of Japanese Lots during the registration process.

     State Law which governed the former Land Commission and Land Registration Teams is similar. Former Kosrae State Code, Title 11, Section 11.605 (repealed) governed the marking of boundaries: "Upon designation of a registration area, a qualified person designated by the Commission makes an accurate survey of the exterior bounds of the area and claimed parcels within the area, placing markers at the Commission’s direction." Former Section 11.605 also required the Land Commission and surveyors to recognize and mark claims made within a designation area. Pursuant to these provisions of the Kosrae State Code, the Land Commission and surveyors did act properly pursuant to law to recognize claims for and mark boundaries for plots, which were designated as parcels 068K08 and 068K09. Nothing in former Title 11 of the Kosrae State Code required that the boundaries of Japanese Lots be maintained during the registration process. The Kosrae State Code, former Title 11, did not prohibit partitioning of Japanese Lots during the registration process.

     This Court takes judicial notice of Kosrae Land Commission records, now held in custody of the Kosrae Land Court, which show the Commission’s established practice of recognizing claims for plots and portions of Japanese Lots, and partitioning Japanese Lots into smaller parcels during the registration process.

     The practice of partitioning Japanese Lots into smaller parcels was completed in each of the four municipalities of Kosrae State. In Tafunsak Municipality, Japanese Lot No. 1 (1 lot), on Plat No. 001-T-00, was divided into eleven parcels. In Lelu Municipality, Japanese Lots No. 437, 438, 439, 440, 442, 443, 444 and 445 (8 lots), on Plat. No. 042-K-00, were divided into twelve parcels. Likewise, in Utwe Municipality, Japanese Lots 352 to 360 (8 lots) on Plat No. 033-U-00, were divided into twelve parcels. Finally, in Malem Municipality, Japanese Lots 285 to 292 (7 lots) on Plat 094-M-00, were divided into nineteen parcels. The partitioning of Japanese Lots into smaller parcels for the land registration process has been a continuing practice of the Land Commission, and completed in accordance with statutory mandates for the recognition of claims of plots made within a designation area.

     Appellant has failed to provide legal authority to support his argument that partitioning of the upper inland land at Fwinef into parcels 068K08 and 068K09 was illegal or contrary to law. This Court has failed to find any statutes or regulations which would prohibit the partitioning of Japanese Lots into smaller parcels for the land registration process which began during the Trust Territory administration and continues today. Contrary to Appellant’s argument, the Kosrae Land Commission was required by Trust Territory law and by Kosrae State law to recognize and survey claims of plots made within a registration area. This included claims for portions of Japanese Lot # 292, which were designated as parcels 068K08 and 068K09 for the registration process, and eventually creating parcel 068K20, which was subdivided from parcel 068K09.

     Appellant argues that the Land Court decision was not based upon substantial evidence. Appellant points to conflicting testimony in the record and also relies upon the "agreed sketch" submitted in Civil Action No. 305.

     The Kosrae Land Court’s factual findings and decision can be overturned only if they are not supported by substantial evidence. In considering whether the Land Court’s findings and decision was based upon substantial evidence, this Court recognizes that it is primarily the task of the Land Court to assess the credibility of the witnesses, the admissibility of evidence and to resolve factual disputes. Anton v. Heirs of Shrew, 10 FSM Intrm. 162 (Kos. S. Ct. Tr. 2001). On appeal, this Court should not substitute its judgment for the well-founded findings of the lower court. Heirs of Palik v. Heirs of

Henry, 12 FSM Intrm. 625, 628 (Kos. S. Ct. Tr. 2004).

     After careful review of the record pertaining to Appellant’s arguments on evidentiary issues, I conclude that the findings of the Land Court were supported by substantial evidence.

     The Appellant has failed to show that the Kosrae Land Court decision on parcels 068K09 and 068K20 was made contrary to law. The Appellant has failed to show that the Kosrae Land Court decision was not based upon substantial evidence. Accordingly, the decision of the Kosrae Land Court, entered on October 16, 2003, awarding ownership of parcels 068K09 and 068K20 is hereby affirmed.

     The Kosrae Land Court shall issue the Certificates of Title for parcel 068K09 to Heirs of Paliknoa Nena and for parcel 068K20 to Ilai Abraham sixty days after entry of this Memorandum of Decision, or as soon thereafter as possible.

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