Cite as Heirs of Taulung v. Heirs of Wakuk, 15 FSM Intrm. 294 (Kos. S. Ct. Tr. 2007)

[15 FSM Intrm. 294]

CIVIL ACTION NO. 47-06

Argued: August 1, 2007
Decided: September 28, 2007

APPEARANCES:

HEADNOTES

Appellate Review – Standard of Review – Civil Cases

The Land Court's factual findings and decision are overturned on appeal if they are not supported by substantial evidence. In considering whether the Land Court's findings and decision was based upon substantial evidence, the appellate court should not substitute its judgment for the lower court's well-founded findings since it is primarily the Land Court's task to assess the witnesses' credibility, the admissibility of evidence and to resolve factual disputes. The appellate court views evidence in the light most favorable to the appellee, looking for a definite or firm conviction that a mistake was made and therefore that the lower court's decision was clearly erroneous. Heirs of Taulung v. Heirs of Wakuk, 15 FSM Intrm. 294, 297 (Kos. S. Ct. Tr. 2007).

Appellate Review – Standard of Review – Civil Cases

When the order on remand required the Land Court to specifically consider a portion of testimony and the Land Court took additional testimony on remand and specifically analyzed the prior testimony and when the order on remand did not require the Land Court to change its findings or decision, only to specifically address this point of testimony, the appellant's argument that the Land Court decision must be overturned on this point must fail because the Land Court addressed the specific issue as

required on remand. Heirs of Taulung v. Heirs of Wakuk, 15 FSM Intrm. 294, 298 (Kos. S. Ct. Tr. 2007).

Evidence; Property

Japanese survey maps, alone, contain no assurance of who should be shown as owners as they were primarily concerned with boundaries. The survey maps are some evidence of ownership, but that there must be substantial evidence to support the decision of ownership. Testimony from many witnesses to determine that the appellees controlled and used the land from over ten to fifteen years prior to the survey map through the time of filing claims, in excess of fifty years, is substantial evidence. Heirs of Taulung v. Heirs of Wakuk, 15 FSM Intrm. 294, 298 (Kos. S. Ct. Tr. 2007).

Custom and Tradition – Kosrae; Evidence

The burden of proving custom and tradition relies on the party asserting its effect. When both parties were specifically given the opportunity to offer such evidence, but neither party took that opportunity, the court correctly concluded that no Kosraean customary transfer or acquisition of land could be considered because no party offered evidence. Heirs of Taulung v. Heirs of Wakuk, 15 FSM Intrm. 294, 298-99 (Kos. S. Ct. Tr. 2007).

Evidence; Property

When the Land Court findings consist of testimony of a number of witnesses of a family's undisputed use, control and development of the parcel without interference for over 50 years and that family continues to do so today, the Land Court finding was based on substantial evidence to support the family's ownership, even though another's name was on the Japanese survey map and when considering the evidence in a light favorable to the appellees, the appellants, the Land Court's decision was not clearly erroneous. Heirs of Taulung v. Heirs of Wakuk, 15 FSM Intrm. 294, 299 (Kos. S. Ct. Tr. 2007).

Equity Laches

The basic elements of the doctrine of laches are 1) inexcusable delay or lack of diligence by the plaintiff in bringing suit, and 2) injury or prejudice to the defendant from plaintiff's delay. Delay is inexcusable when the plaintiff knew or had notice of the defendant's conduct giving rise to the plaintiff's cause of action, and had prior opportunity to bring suit. The doctrine of laches or stale demand applies to deprive an owner of his interests after the lapse of time because he has not exercised proper diligence in protecting his rights in court. It is an affirmative defense that is raised at the time an answer is filed by a defendant or else is usually considered waived. Heirs of Taulung v. Heirs of Wakuk, 15 FSM Intrm. 294, 299 (Kos. S. Ct. Tr. 2007).

Appellate Review – Standard of Review – Civil Cases; Equity – Laches

The question of prejudice to the other party is usually treated as a question of law and reviewed de novo on appeal. The longer the delay, the less need there is to show specific prejudice and the greater the shift to the other party to demonstrate the lack of prejudice. When a party developed the property and treated it as their own for over 50 years, the passing of witnesses and the loss of their testimony is prejudicial to them. The prejudice is economic as well, from the loss of their efforts in maintaining and developing the property during this time. With a delay of 50 years, the burden shifts to the other party to demonstrate lack of prejudice. The criteria of prejudice is met. Heirs of Taulung v. Heirs of Wakuk, 15 FSM Intrm. 294, 299-300 (Kos. S. Ct. Tr. 2007).

Equity – Laches

The length of the delay is a factor in laches, too. The twenty-year statute of limitations establishes one clear limit to the time allowed for bringing a claim, but laches is a separate analysis. Both address the concern that after the passage of a length of time, a person loses the opportunity to

assert their rights. When over 50 years have passed, if this is not enough time to allow someone to assert a claim of ownership to land, it is difficult to set forth what length of time is sufficient. The Land Court did not abuse its discretion when it treated the claim of ownership as stale after 50 years. Heirs of Taulung v. Heirs of Wakuk, 15 FSM Intrm. 294, 300 (Kos. S. Ct. Tr. 2007).

COURT'S OPINION

ALIKSA B. ALIKSA, Chief Justice:

Oral arguments were held in this case on August 1, 2007. Canney Palsis appeared for Appellants and Appellees Wilson Wakuk and Heuston Wakuk appeared pro se.

As explained below, I affirm the decision of the Land Court.

I. Procedural History and Facts

This is the third appeal about the ownership of Yesron, Parcel No. 019U04.

In the first appeal, Case No. 3-95, Stanley Taulung v. HO Honosr Wakuk, decided in December 1999, this Court set aside the determination of the Land Commission awarding ownership to Heirs of Wakuk (HO Wakuk).

In that remand, the Land Commission was to reconsider and explain:

(1)  evidence of the Kosraean custom regarding use or non-use of land;

(2)  evidence of Kun Leap's (Stanley Taulung's father) actions with regard to that Kosraean custom; and

(3)  application of that custom to the findings and opinion on ownership of 019U04.

No further action took place on the remand until after the Land Court replaced the Land Commission. In October 2003, the hearing on the remand was held.

The Land Court's decision relied significantly on testimony from Stanley Taulung. He testified that he had no planting or development on the subject parcel and that he did not know who registered Kun Leap's name on the 1932 Japanese survey. Neither party presented evidence about Kosraean custom regarding use or non-use of land, even though these were the specific issues on remand. The Land Court concluded that no Kosraean customary transfer or acquisition of land could be applied in this case because no party offered evidence. It modified the prior decision of the Land Commission to show that no traditional land transfer occurred.

The Land Court held that substantial evidence showed HO Honosr Wakuk inherited the land from their father and that they owned the parcel. The decision cited Honosr's continued and uninterrupted use and control of the land since prior to the Japanese survey in 1932. It noted that Honosr Wakuk and his oldest brother, Kilafwa Nena registered Kun Leap's name on the survey map and Honosr and his brother continued to use and control the land. The Land Court noted that Kun Leap did not contest Honosr Wakuk's possession and use of the parcel and never stopped or prevented their use and never ejected Honosr and his children from the property. This decision was issued in February 2004 and was

appealed.

The decision in the second appeal, Case No. 11-04, Heirs of Taulung v. Heirs of Wakuk, 13 FSM Intrm. 341 (Kos. S. Ct. Tr. 2005), was issued in July 2005. This Court held that the Land Court's decision on remand was not based on substantial evidence because it failed to consider the testimony of Floyd Wakuk. He was the eldest son of Honosr Wakuk and the person who worked substantially on the land. Floyd Wakuk testified, in part, that Kun Leap currently has a portion of land at Yesron. The order for remand stated that the Land Court should specifically consider this testimony and determine what portion of Yesron that statement applied to.

On December 19, 2005, the Land Court held a hearing on the second remand. Each party presented testimony from one additional witness. In this decision, the Land Court specifically addressed Floyd Wakuk's testimony. It stated that his earlier testimony must be considered as a whole. Floyd also testified that he had no disputes or disagreements with Taulung about ownership "because I thought no other person has ownership to Yesron accept heirs of Honosr." These statements were made after the testimony cited by this Court in the remand decision. The Land Court found that Floyd knew a parcel mentioned Kun Leap's name on the Japanese survey map, but that he also knew ownership of Yesron belonged to HO Honosr Wakuk.

The decision also finds that:

•   A portion of Yesron was given to Kun Taulung (another name for Kun Leap) by HO Wakuk;

•   HO Taulung knew that HO Honosr Wakuk and his children had been using the claimed portion of Yesron without consent from Kun Leap; and,

•   The use had taken place without interference.

The Land Court relied on the doctrine of laches to award ownership to HO Honosr Wakuk, citing George v. Nena, Civ. No. 9-95 (Dec. 6, 1998); a Pohnpei Trust Territory case; and Nahnken of Nett v. Pohnpei, 7 FSM Intrm. 485 (App. 1996). It noted that the Japanese Survey map is only some evidence of ownership. It cited the testimony of Stanley Taulung to show that HO Wakuk had physical control of the land since ten to fifteen years before the Japanese survey and that Stanley Taulung knew of their use and never tried to stop them.

This is the decision leading to this third appeal.

II. Legal Analysis

HO Taulung raise the following issues:

(1)  The decision was not supported by substantial evidence.

(2)  The decision is inconsistent with the remand order.

The Land Court's factual findings and decision are overturned if they are not supported by substantial evidence. Kos. S.C. § 11.614(5)(d). In considering whether the Land Court's findings and decision was based upon substantial evidence 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 Bingham Palik v Heirs of Moses Henry, 12 FSM Intrm. 625 (Kos. S. Ct. Tr. 2004). The evidence is viewed in the light most favorable

to the Appellee, looking for a definite or firm conviction that a mistake was made and therefore the lower court's decision was clearly erroneous. George v. Nena, 12 FSM Intrm 310 (App 2004).

Appellants argue that the Land Court failed to follow the instructions about Floyd Wakuk's testimony on remand and that it failed to give sufficient weight to testimony from some of the witnesses. They argue that Kun Leap received that land as an irrevocable gift and HO Wakuk had no authority under Kosraean custom and tradition to revoke that gift. He argues that HO Wakuk have the burden to prove that there was a conveyance of the land that was conditional and that the conveyance was revoked.

The order on remand required the Land Court to specifically consider a portion of Floyd Wakuk's testimony where he stated that Kun Leap currently owned a portion of Yesron. The Land Court took additional testimony on remand and specifically analyzed Floyd Wakuk's prior testimony. It found that, taken as a whole, and looking at everything Floyd Wakuk said, his testimony supported the ownership of HO Honosr Wakuk. It cites additional testimony from the same witness to support these findings. The order on remand did not require the Land Court to change its findings or decision, only to specifically address this point of testimony. Appellant's argument on this point must fail. The Land Court addressed the specific issue as required on remand.

On the broader question of whether substantial evidence supported the decision of the Land Court, the evidence is viewed in the light most favorable to the Appellee and there must be a definite or firm conviction that a mistake was made before overturning the Land Court decision. George v. Nena, 12 FSM Intrm 310 (App 2004).

Appellants argue that Kun Leap owned a portion of Yesron and because he authorized Honosr to work the land, that use can never become ownership. He proposes that HO Wakuk must prove they took the land back from Kun Leap after he was given the land and there was no right under Kosraean custom or tradition to take back the land once it was given by Kilafwa Nena.

Appellees rely on the argument that the name on the Japanese survey map is not dispositive of ownership and possession and usage of land over a long period of time are critical to a claim of ownership, citing George v. Nena, 12 FSM Intrm 310 (App 2004). In that case, the FSM Supreme Court upheld this Court's decision to award ownership based on Nena's significant involvement with the land for about 25 years at the time of the appeal.

The Japanese survey maps, alone, contain no assurance of who should be shown as owners as they were primarily concerned with boundaries. Elaija v. Edmond, 9 FSM Intrm. 175 (Kos. S. Ct. Tr. 1999) (citing Jesse v. Ebream, 1 TTR 77, 78-79 (Pon. 1953)). The Land Court correctly recognized that the survey maps are some evidence of ownership, but that there must be substantial evidence to support the decision of ownership. Here, the Land Court relied on testimony from many witnesses to determine that HO Wakuk controlled and used the land from over ten to fifteen years prior to the survey map through the time of filing claims, in excess of fifty years. As in, George v. Nena, supra, only HO Wakuk had significant involvement with the land for more than 50 years. This was supported even by Stanley Taulung's testimony. The Land Court relied on this long period of physical control and use to award ownership to HO Wakuk.

Based on the first remand, the Land Court had little or no evidence about custom and tradition relating to the use or non-use of land to reach its decision. Appellants argue that Appellees carry the burden of proving custom and tradition supported a return of a gift of the land to Kun Leap. However, the burden of proving custom and tradition relies on the party asserting its effect. See, for example, Senda v. Semes, 8 FSM Intrm. 484, 497 (Pon. 1998). Here, both parties were specifically given the

opportunity to offer such evidence after the first remand, but neither party took that opportunity.

In the first remand, the Land Commission was supposed to hear evidence of Kosraean custom and tradition, apply it to Kun Leap's actions, and then make a decision relying on that analysis. This was ordered in response to Stanley Taulung's motion for an amended judgment. His claim is through Kun Leap, but they failed to present any evidence about custom and tradition on remand. They argued only HO Wakuk had to present such evidence. HO Wakuk argued they had already presented evidence to support their claim. The Land Court then correctly concluded that no Kosraean customary transfer or acquisition of land could be considered because no party offered evidence. It modified the prior decision of the Land Commission to show that no traditional land transfer occurred. Appellants' argument about Kosraean customs and traditions relating to conditional gifts of land or about when land is returned to its original owner must fail because they never offered evidence about such customs and traditions.

In this case, the evidence supporting the findings of the Land Court consists of testimony of a number of witnesses, including that of Stanley Taulung, and HO Wakuk's undisputed use, control and development of the parcel without interference for over 50 years. The Land Court found that beginning before the war, Honosr Wakuk's family used and possessed the parcel, they developed and used it for many years, and that his family continues to do so today. The Land Court found that this was substantial evidence to support Honosr Wakuk's ownership, even though Kun Leap's name was on the Japanese survey map. When considering the evidence in a light favorable to Appellees, Appellants have not persuaded this Court that the Land Court's decision to award ownership to HO Wakuk was clearly erroneous.

The more complex question is the application of laches. The Land Court looked to the doctrine of laches to analyze the evidence and reach a decision. This Court must also look at whether this doctrine applies and whether the evidence supported the Court's decision in light of this doctrine.

It appears that the Land Commission and Land Court first applied Kosraean custom on use of land and what is done to pass along that land to children. Unfortunately, the parties did not present the evidence needed for the Court about such customs. The Land Court then turned to the doctrine of laches to explain why the uninterrupted use and control of the land supported a determination of ownership.

The basic elements of the doctrine of laches are 1) inexcusable delay or lack of diligence by the plaintiff in bringing suit, and 2) injury or prejudice to the defendant from plaintiff's delay. Delay is inexcusable when the plaintiff knew or had notice of defendant's conduct giving rise to plaintiff's cause of action, and had prior opportunity to bring suit. Nahnken of Nett v. United States (III), 6 FSM Intrm. 508, 522 (Pon. 1994). The doctrine of laches or stale demand applies to deprive an owner of his interests after the lapse of time because he has not exercised proper diligence in protecting his rights in court. Hartman v. Chuuk, 9 FSM Intrm. 28, 33 (Chk. S. Ct. App. 1999). It is an affirmative defense that is raised at the time an answer is filed by a defendant or else is usually considered waived. Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 94 (Kos. S. Ct. Tr. 1999). In the original Land Commission proceedings there was no plaintiff and defendant or complaint and answer. However, Appellees raised the length of time of uninterrupted use and control during the early inquiries so laches should not be treated as waived.

We explore the question of prejudice to the other party first. This is usually treated as a question of law and reviewed de novo on appeal. Nahnken of Nett v. Pohnpei, 7 FSM Intrm. 485, 489 (App. 1996). The longer the delay, the less need there is to show specific prejudice and the greater the shift to the other party to demonstrate the lack of prejudice. Id. at 490. HO Wakuk developed the property and treated it as their own for over 50 years. The passing of witnesses and the loss of their testimony

is prejudicial to them. The prejudice is economic as well, from the loss of their efforts in maintaining and developing the property during this time. With a delay of 50 years, the burden shifts to the other party to demonstrate lack of prejudice. Appellants offered no argument on this point and only asserted that citing Nahnken of Nett, was error. The loss of testimony and the economic hardship meet the criteria of prejudice to HO Wakuk.

The second question, whether Stanley Taulung's failure to protect his claim of ownership in court was stale or the result of inexcusable delay is a primarily a question of fact and reviewed for an abuse of discretion on appeal. Id. The Land Court considered that Kun Leap and the heirs knew that Honosr Wakuk and his heirs were using Yesron and never tried to stop them, that Kun Leap and family did not show disagreements with the development, and that this control had begun for over ten to fifteen years before the 1932 survey and continued today. Kun Leap, his family, or his heirs apparently made no effort to protect their ownership, either by working the land and educating their children about it, or by taking legal action.

The length of the delay is a factor, too. In at least two cases, FSM courts accepted a determination from the Land Court that significant involvement and control of land for about 20 to 25 years prior to the court action was strong evidence of ownership. See George v. Nena, 12 FSM Intrm 310 (App. 2004) (citing Jesse v. Ebream, 1 TTR 77 (Pon. 1953)). The twenty-year statute of limitations establishes one clear limit to the time allowed for bringing a claim. Laches is a separate analysis, but both address the concern that after the passage of a length of time, a person loses the opportunity to assert their rights. In this case over 50 years passed. If this isn't enough time to allow someone to assert a claim of ownership to land, it is difficult to set forth what length of time is sufficient. The Land Court did not abuse its discretion when it treated the claim of ownership resulting from Kun Leap's heirs as stale after 50 years.

Based upon the record and the above analysis, I conclude that the Land Court's decision pertaining to Yesron, parcel 019U04, was based on sufficient evidence and was not contrary to law.

Therefore, the decision of the Land Court is affirmed.

III. Judgment.

Judgment is entered in favor of the Appellees and against the Appellants.