KOSRAE STATE COURT
TRIAL DIVISION
Cite as Isaac v. Benjamin,
9 FSM Intrm. 258 (Kos. S. Ct. Tr. 1999)

[9 FSM Intrm. 258]

ANDREW ISAAC,
Appellant,

vs.

SWAIT BENJAMIN,
Appellee.

ALIK ISAAC et al.,
Appellants,

vs.

HAMLIN SAIMON et al.,
Appellees.

CIVIL ACTION NO. 14-90 / 53-92

MEMORANDUM OF DECISION;
ORDER OF REMAND

Aliksa B. Aliksa
Acting Chief Justice

Decided:  November 15, 1999

APPEARANCE:
For all Appellants:     Sasaki George
                                    Micronesian Legal Services Corporation
                                    P.O. Box 38
                                    Lelu, Kosrae FM 96944

*    *    *    *

HEADNOTES
Appeal and Certiorari ) Standard of Review; Property ) Land Commission
     In reviewing the Land Commission's decision, the Kosrae State Court should merely consider whether the Land Commission exceeded its constitutional or statutory authority, has conducted a fair proceeding, has properly resolved any legal issues and has reasonably assessed the evidence presented.  Isaac v. Benjamin, 9 FSM Intrm. 258, 259 (Kos. S. Ct. Tr. 1999).

Property ) Land Commission
     It is critical that before a preliminary inquiry is conducted, the Land Commission must serve notice at least thirty days in advance of a formal hearing on any person who claims a portion of the area in dispute so that they might attend the inquiry and be heard.  Notice is required because it gives

[9 FSM Intrm. 259]

a chance to be heard.  Isaac v. Benjamin, 9 FSM Intrm. 258, 259 (Kos. S. Ct. Tr. 1999).

Property ) Land Commission
     The Land Commission is required by statute to give actual, not constructive notice for hearings to all interested parties at least thirty days in advance of the hearing.  Judgments of the Land Commission are void when it has failed to serve notice as required by law.  Isaac v. Benjamin, 9 FSM Intrm. 258, 259 (Kos. S. Ct. Tr. 1999).

Property ) Land Commission
     When the record reflects that the Kosrae State Land Commission failed to serve notice, as required by law, on the appellants for the preliminary and formal hearings on adjoining parcels to which the appellants are interested parties its failure to serve notice as required by law makes its judgments void.  The Kosrae State Court will vacate and remand to the Land Commission to, as necessary, give proper notice and conduct preliminary inquiries and formal hearings and take evidence from appellants and other interested parties regarding the boundaries and issue any new Determinations of Ownership.  Isaac v. Benjamin, 9 FSM Intrm. 258, 259-60 (Kos. S. Ct. Tr. 1999).

*    *    *    *

COURT'S OPINION
ALIKSA B. ALIKSA, Acting Chief Justice:
     This matter involves boundary disputes based upon the Determinations of Ownership made by the Kosrae State Land Commission on four adjoining parcels: 041-T-02, 041-T-03, 041-T-04 and 041-T-05.  The Determinations of Ownership were issued as follows:  041-T-02 to Appellee Hamlin H. Saimon, 041-T-03 to Appellee Swait L. Benjamin, 041-T-04 to Appellant Alik Isaac Andrew, and 041-T-05 to Appellee Joseph Skilling.  This Court's jurisdiction is based upon Kosrae State Code, Section 11.614.  The Court considers this appeal on the record of the Land Commission.  None of the Appellees had filed a brief.  The Court decides this case without oral argument.

     The Appellant alleges several points of error by the Kosrae State Land Commission. In reviewing the Land Commission's decision, the Court should merely consider whether the Land Commission exceeded its constitutional or statutory authority, has conducted a fair proceeding, has properly resolved any legal issues and has reasonably assessed the evidence presented.  Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 395, 398 (Kos. S. Ct. Tr. 1988).

     This Court only need consider Appellant's first point of error ) failure of the Land Commission to give notice to the Appellant for the hearings on the parcels adjoining their parcel. Before a preliminary inquiry is conducted, the Land Commission must notify any person who claims a portion of the area in dispute so that they might attend the inquiry and be heard.  Palik v. Henry, 7 FSM Intrm. 571, 575 (Kos. S. Ct. Tr. 1996).  It is critical that the Land Commission serve notice on all interested parties at least thirty days in advance of a formal hearing.  Notice is required because it gives a chance to be heard.  Id. at 576. The Land Commission is required by statute to give actual, not constructive notice for hearings to all interested parties at least thirty days in advance of the hearing.  Judgments of the Land Commission are void when it has failed to serve notice as required by law. Id. at 576-77.

     In this case, the record reflects that the Kosrae State Land Commission failed to serve notice, as required by law, on the Appellants for the preliminary and formal hearings on the adjoining parcels.  The Appellants are interested parties with respect to parcels 041-T-02, 041-T-03 and 041-T-05, which adjoin their own parcel, 041-T-04.  Pursuant to the case of Palik v. Henry, the Land Commission's

[9 FSM Intrm. 260]

failure to serve notice upon Appellants as required by law makes the judgments of the Land Commission void.

     The Determinations of Ownership on parcels 041-T-02, 041-T-03, 041-T-04 and 041-T-05 are vacated.  The matter is remanded to the Land Commission to take action consistent with this opinion, including, as necessary, give proper notice and conduct preliminary inquiries and formal hearings as to all four parcels, and take evidence from Appellants and other interested parties regarding the boundaries of all four parcels.  The hearings shall be conducted and any new Determinations of Ownership for these four parcels shall be issued and served by April 3. 2000.
                                                                                                                                                                                                                                                                                                           
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