8 FSM Intrm. 031-039

An appeal from the land commission will be on the record unless the court finds good cause for a trial of the matter. At a trial de novo the parties may offer any competent evidence, including the record of proceedings before the land commission, but the question of whether the commission considered the evidence submitted to it is not normally a part of judicial scrutiny. Heirs of Mongkeya v. Heirs of Mackwelung, 8 FSM Intrm. 31, 35 (Kos. S. Ct. Tr. 1997).

Under Kosraen custom one does not openly declare that a kewosr has taken place, but simply acts, with a witness present, in a certain fashion. A kewosr is a secret way of giving land that only the man and woman involved know about. Heirs of Mongkeya v. Heirs of Mackwelung, 8 FSM Intrm. 31, 36 (Kos. S. Ct. Tr. 1997).

In Kosrae, land ownership determinations are conducted using different procedures and resources than those in the United States. It is not appropriate to adopt the same legal reasoning employed in U.S. jurisdictions. Heirs of Mongkeya v. Heirs of Mackwelung, 8 FSM Intrm. 31, 37 n.6 (Kos. S. Ct. Tr. 1997).

It is axiomatic that determining the legal implication of a different case is a question of law, and on appeal questions of law presented to a state agency are reserved to the court. Heirs of Mongkeya v. Heirs of Mackwelung, 8 FSM Intrm. 31, 38 (Kos. S. Ct. Tr. 1997).

This case has a lengthy history. The Kosrae District Land Commission issued a Notice of Preliminary Inquiry on July 27, 1979, for all land known as "Yekula," in Tafunsak, consisting of parcels 004-T-09 and 004-T-10 and unsurveyed land south and upland from those parcels. The upland parcels were formerly used for the Kosrae High School. The Preliminary Inquiry was held on September 11, 1979. Among the witnesses were Kun Mongkeya and Nithan Jackson.

The Land Commission issued a Notice of Formal Hearing on Yekula on October 10, 1979. The primary claimants were Kun Mongkeya and Allan Mackwelung. After the claimants passed away ) Mongkeya in 1979, Mackwelung in 1981 ) the matter was pursued by their families. The Formal Hearing was held November 14, 1979. Among the witnesses were Kun Mongkeya, Isao Mongkeya, Moses Andon, Tulpe Mongkeya, Alokoa Mongkeya, Nithan Jackson, and Tolenna Clarence. Both sets of claimants were represented by counsel at the Formal Hearing.

On September 24, 1982, the Land Commission issued a seven-page Findings of Fact and Opinion regarding Yekula, and issued a determination of ownership of parcels 004-T-09 and 004-T-10 and unsurveyed portions of Yekula to the Heirs of Allen Mackwelung in fee simple.

The Heirs of Kun Mongkeya filed an appeal of the Land Commission's Determination of Ownership on January 21, 1983. Presumably, the appeal was filed in the Trust Territory High Court. After the Kosrae State Constitution was ratified and the Kosrae State Court was certified, the matter was transferred to the State Court.

Former FSM Supreme Court Chief Justice Edward C. King was designated a temporary Kosrae State Court Associate Justice by former Kosrae State Court Chief Justice Harry Skilling.2 Judge King issued two published opinions. In the first, the Court held that there was no bias or violation of the Mongkeya Heirs' statutory or constitutional rights based on the alleged family relations of members of the Land Commission to the Heirs of Mackwelung. Heirs of Mongkeya v. Heirs of Mackwelung (I), 3 FSM Intrm. 92, 97-101 (Kos. S. Ct. Tr. 1987).

Judge King then set aside the determination of ownership issued by the Land Commission in 1982, ruling that the Findings and Opinion did not reflect a proper resolution of legal issues or a reasonable assessment of the evidence. Heirs of Mongkeya v. Heirs of Mackwelung (II), 3 FSM Intrm. 395, 402 (Kos. S. Ct. Tr. 1988). Rather than conducting evidentiary hearings, the Court remanded the case to the Land Commission for further consideration of two issues: (1) whether a kewosr was made by Mongkeya, or someone else from Sialat, to Sra Nuarar; and (2) whether Kun Mongkeya testified in Alun M. v. Kioken Daniel, Trust Territory High Court Civil Action No. 111 (Pon. Tr. Div. Oct. 23, 1958), and if so, whether his failure to assert a claim in that suit reflected on the credibility of his claim to be owner in this suit. Heirs of Mongkeya (II), 3 FSM Intrm. at 402. Judge King left the proceedings after remand to the Land Commission. "If . . . the commission concludes that one or both of these earlier findings must be modified or set aside, the commission should then reconsider the case in its entirety with additional hearings, if necessary, to determine whether . . . the commission's earlier determination of ownership should be reinstated or changed." Id. at 403.

The Land Commission reconsidered as directed, but did not change its findings. It addressed four issues. First, it determined that the lands involved in Alun M. v. Daniel, TT High Court Civil Action No. 111, are the same as in this case. The Land Commission compared the maps submitted by the parties in Alun M. v. Daniel with the survey maps of parcels 004-T-09 and 004-T-10.3 Second, the Land Commission examined the 1932 Japanese map and found parcels 004-T-09 and 004-T-10 correspond with parcels 25 and 26. Third, the Land Commission found that Kun Mongkeya was a defense witness in Alun M. v. Daniel, and did not assert his ownership right. Fourth, the Land

Commission concluded that a kewosr took place transferring the land from Kun to Nuarar. The Land Commission put more credence into Nithan Jackson's testimony on direct examination at the Formal Hearing in 1979, and less in his cross-examination where he may have offered confused conclusions. The Land Commission thought the evidence of a kewosr was stronger than the evidence against it.

The Heirs of Mongkeya filed a notice of appeal with the Kosrae State Court on December 14, 1990. On September 24, 1992, the Land Commission issued new Determinations of Ownership for parcels 004-T-09 and 004-T-10, confirming that the Heirs of Allen Mackwelung own the parcels. Two differences exist between the single 1982 and the two 1992 determinations of ownership. The 1982 determination of ownership granted a fee simple estate. In 1992, the estates were said to be tenancies-in-common. More significantly, the 1982 determination of ownership granted both parcels and "all remaining unsurveyed area of Yekula" to the Heirs of Mackwelung. The 1992 Determinations of Ownership were for parcels 004-T-09 and 004-T-10 only. They do not confirm the ownership of any unsurveyed portion of Yekula.

The Heirs of Mongkeya filed a Notice of Appeal on January 15, 1993. On August 15, 1994, the Appellants filed a Motion for Trial De Novo. The Court granted the motion after a hearing and an order prepared by the Appellants was entered on October 13, 1994. The court granted a trial de novo of the Land Commission Record. The parties were allowed to submit evidence of kewosr, and on the location and boundaries of the claim to Yekula, and the land in dispute in Civil Action No. 111, including an explanation of Appellees' Exhibits B and C. The Appellees offered no explanation of Exhibits B and C at trial or in their post-trial briefs.

The trial was held on October 31 and November 1, 1995. The appellants called witnesses: Justus Mongkeya, Isao Mongkeya, and Alec Mongkeya, and an expert on custom, Moris Waguk. The Appellees called no witnesses. The parties stipulated to the admission of twenty-seven exhibits, twenty-four at trial and three submitted by Appellees with their post-trial brief.

A determination of ownership by the [Land] Commission is subject to appeal to the Court within one hundred twenty days from the date of receipt of notice of determination. The Court hears an appeal on the record unless it finds that good cause exists for a trial of the matter.

The statute does not use the term "trial de novo." But the parties have used the term, and the Court construes the statute to provide for such a trial. Kosrae Code section 11.614 provides two avenues for appeal from a Land Commission determination of ownership: an "appeal" on the record; or, if good cause exits, a "trial." This latter designation is a trial de novo. See 2 Am. Jur. 2d Administrative Law § 701 (1962). Reference to principles of administrative law is appropriate because the Land Commission is a State agency. KC 7.102(6); KC 1.201(2); and see Heirs of Mongkeya (II), 3 FSM Intrm. at 397.

de novo, the parties may offer any competent evidence, including the record of proceedings before, and the conclusions and findings of, the agency appealed from. 2 Am. Jur. 2d Administrative Law § 747 (1962). This is also implied from the dual nature of appeal from land commission determinations. An appeal is on the record; while a trial can encompass more. KC 11.614.

While the Court may consider any competent evidence at a trial de novo, the question of whether the agency considered the evidence submitted to it is not normally a part of judicial scrutiny. 2 Am. Jur. 2d Administrative Law § 747 (1962). It is not the function of the court to probe the mental processes of the agency in reaching its determination. Id. Likewise, the Court should not substitute its judgment for those well-founded findings of an agency on a question of fact. 2 Am. Jur. 2d Administrative Law § 747 (Supp. 1992) (citing Model State Administrative Procedure Act § 15(g)). It is clear that questions of law are reserved to the Court. KC 7.702(1). But by implication, this leaves findings of fact to the Land Commission.

The Court concludes, sua sponte, that its decision is limited to the surveyed parcels 004-T-09 and 004-T-10. The Court does not consider the unsurveyed land south and uphill from the southern border of parcel 004-T-09. The parties submitted no evidence showing that the land south of parcel 004-T-09 was actually surveyed by the Land Commission as part of their statutory requirements to survey and register parcels. The pending appeal is from the determinations of ownership on parcels 004-T-09 and 004-T-10 made on September 24, 1992. To the extent the parties have submitted the question of the unsurveyed portion of Tafunsak known as Yekula, they have failed to exhaust their administrative remedies. An appeal lies only from a determination of ownership. KC 11.614. The parties cannot use an appeal to request that the Court make a determination that the Land Commission has not.

No current determination of ownership exists for the unsurveyed portions of Yekula south of parcel 004-T-09. The 1982 determination of ownership that purported to confirm ownership of unsurveyed portions of Yekula was set aside by Judge King. Heirs of Mongkeya (II), 3 FSM Intrm. at 402. After remand, the Land Commission issued new determinations of ownership for parcels 004-T-09 and 004-T-10 only.

The land in dispute is in Tafunsak Municipality and lies between the sections known as "Wiya," to the west, and "Sialat," to the east. Sialat is acknowledged to be the land of the Mongkeya family, while Wiya belongs in part to the Mackwelung family. The disputed section lies between them. It is not clear whether the disputed section belongs to Wiya, Sialat, both, or neither. The disputed land is further divided, like Gaul,4 into three portions. "Inloangu" is northernmost, closest to the beach, and is where John Allen Mackwelung now resides. "Betmak" is south and inland from Inloangu, and was the site of the houses of the teachers at the former Kusaie Intermediate School. "Yekula" lies south of Betmak, and was the site of the former Kusaie Intermediate School. Yekula is the "upper" portion of the disputed land, furthest inland and upland.

As lengthy as the procedural history of the case may be, the facts hark back further in time, to German administration of Kosrae. Mongkeya (also known as Monkoeya) owned all the disputed area before the events at issue. Heirs of Mongkeya, 3 FSM Intrm. at 402. No writing was adduced to

authenticate a transfer of ownership by Mongkeya to any person. The Heirs of Kun Mongkeya assert ownership on the claim that Mongkeya transferred the disputed area to his second son, Kun Mongkeya, when the boy was seventeen years old, in approximately 1917. This alleged transfer was by "usru." Usru is a gift of land by a parent to one's children.

The Heirs of Allen Mackwelung base their claim on a different customary transfer of land. They claim the land in question was given in 1912 by Mongkeya to Allen's grandmother, Sra Nuarar, as "kewosr," an outright gift of land from a man to a favored lover.

Based on a careful review of all evidence submitted from the Land Commission record and testimony at trial, the Court concludes that the lower portions of the disputed area, designated by the Land Commission as parcels 004-T-09 and 004-T-10, belong to the Heirs of Mackwelung. These surveyed parcels apparently consist of all of Inloangu and some part or all of Betmak.5 The Court agrees with the Land Commission on this close question of fact. The Court makes no finding as to upper Yekula and any portion of Betmak that may not be part of parcel 004-T-09. The Land Commission should conduct all necessary proceedings to issue a determination of ownership for that unsurveyed portion south of 004-T-09 consistent with these findings of fact and conclusions of law.

As stated, this case turns very little on direct evidence, and more on inference of people's behavior decades ago. Because so much is based on inference, the trier of fact must examine carefully the demeanor of the witnesses, not only what they testified to, but the manner in which they testified. It was clear to the Court that the witnesses other than Moris Waguk, were uncomfortable testifying to the possibility of a kewosr. This is understandable, for it involves a supposition of infidelity by one's grandfather, against the teachings of one's church. Nevertheless, based on the manner by which Justus, Isao, and Alec Mongkeya testified, the Court must give credence to the appellees' position that a kewosr did occur. So too, the Court must defer in some manner to the findings of the members of the Land Commission team, for they were the ones who could judge the demeanor, the believability, of the witnesses before them.

The Land Commission put most stock in the testimony of Nithan Jackson. Nithan's testimony at the preliminary inquiry was consistent with his testimony on direct examination at the formal hearing. He testified that Mongkeya gave the land to Nuarar as a kewosr because he was in love with her. Nithan followed Mongkeya and Nuarar to Yekula on the day that they established the boundary of what Mongkeya gave Nuarar. Mongkeya and Nuarar knew that Nithan followed them because they saw him.

Judge King was concerned about inconsistencies in Nithan's testimony elicited on cross-examination. These concerns have been part and parcel of the appellants' case from the start. But on remand, the Land Commission explained that they relied on Nithan's testimony as to what he witnessed ) i.e., the approach of a man to a woman to whom he was not married or related for the purpose of fixing boundaries ) and not on his conclusions as to the meaning of his observations. In short, the Land Commission determined there was a kewosr based on what Nithan observed, not on what he concluded.

As the Land Commission explained, Nithan's observations were evidence of a kewosr. Under Kosraen custom one does not openly declare that a kewosr has taken place, but simply acts, with a witness present, in a certain fashion. Even the appellants' expert testified that a kewosr is a secret way of giving that only the man and woman involved know about.

In its original finding, the Land Commission emphasized the lack of contradictory evidence. Other than Kun's own testimony, there was no evidence that Mongkeya transferred the land to Kun Mongkeya by usru. Other witnesses stated that Kun told them the land was transferred to him. No one stated that Mongkeya said or indicated that he transferred the land to Kun. For example, Alokoa Mongkeya testified before the Land Commission that Kun himself told him that Kun owned Yekula. If as appellants urge, the transfer of land by way of gift must be proved by clear and convincing evidence, the rule cuts both ways.6 The only direct evidence of usru was given by an interested witness, Kun Mongkeya. The primary evidence of kewosr was given by a witness who was also interested ) Nithan was the adopted son of Nuarar ) but whose interest is arguably less than Kun himself.

Further evidence was adduced in support of the determination that a kewosr took place. First, Justus testified that Kun told him that Inloangu was transferred by kewosr. Second, the manner of the testimony of Justus, Isao, and Alec Mongkeya, was not credible on this point, as stated before. Third, the appellants' expert witness, Moris Waguk, admitted that even though transfer by kewosr fell out of favor after the arrival of Christianity on Kosrae, he had heard of transfers by kewosr in two cases. Yekula was one such transfer. But there was another alleged transfer by kewosr in Lelu. Although it may be against church teachings and modern principles of transfer of land by clear notice, the clear inference from the expert's testimony is that kewosr did continue on Kosrae after the arrival of the Gospel.

The Court also considers the transcript of Kun Mongkeya's testimony before the Land Commission. When asked by the Registration Team whether Nuarar owned any land in Sialat, Kun testified as follows: "Yes, even if it [is] bad I'll say it. Nuarar live [sic] in Wiya until she and Mongkeya started an affairs between them, and they used this land in question as the place where they would meet." Stipulated Ex. 3, at 7. Kun himself acknowledged the basis of a claim of transfer by kewosr.

The appellants also argue that they worked the land in question, from upper Yekula down to Inloangu, all three parcels. But their conclusion is somewhat undercut by Tulpe Mongkeya, sister-in-law of Kun, who acknowledged that the lower portion of the land in dispute belonged to Allen Mackwelung, and that she worked copra on his land to pay a debt at his store.

Tolenoa Clarence's testimony before the Land Commission is further evidence of transfer by kewosr. Tolenoa confirmed that Kun and his brother William accompanied Tolenna and a Japanese surveyor in 1932. The boundary was marked in Allen's favor without protest from Kun. Nithan testified that William later told him he would not protest what his father decided to do about the land. According to Nithan, William said: "I can not change what my father did about the land because I can not dig him up from his grave." Stipulated Ex. 12, at 42. So too did Isao testify at trial that his father, Kun, did not deny a kewosr.

The appellants put on testimony and Land Commission records about the meeting involving Kephas. At one time, Allen Mackwelung brought some people from Walung to start a farm on the disputed land. Mongkeya asked for a meeting. Kephas was in charge of the meeting and asked Nuarar and Kun to describe the land in question. According to the customs expert, Moris Waguk, this was

consistent with the determination of land disputes before the Tokosra, the King of Kosrae. The occurrence of the meeting is clear. Kun was able to recite the chant of the land, taught to him by his father, and Nuarar was not. But the Court discounts the significance of being able to complete the chant. Presumably, in a kewosr, the original owner would know the chant, and his lover would not. What may be significant ) the result of the meeting ) was not explored by the parties to the Court's satisfaction. Kephas told Nuarar that her children would never inherit the land. Kephas acknowledged that Nuarar had some claim to the land, but that interest was limited to her lifetime. This aspect is intriguing. Kephas's "ruling" supports an inference that a transfer by kewosr did take place, but that the transfer was only of a life estate.

Judge King's order, setting aside the 1982 determination of ownership, remanded to the Land Commission for reconsideration the question of whether Kun Mongkeya testified in Alun M. v. Kioken Daniel, Trust Territory High Court Civil Action No. 111 (Pon. Tr. Div. Oct. 23, 1958), and if so, whether his failure to assert a claim in that suit reflected on the credibility of his claim to be owner in this suit. Heirs of Mongkeya (II), 3 FSM Intrm. at 402. After reconsideration, the Land Commission concluded that Kun Mongkeya's participation in the Trust Territory High Court case was a waiver of his claim to Yekula.

In light of the conclusion that a transfer by kewosr did occur, it is not necessary for the Court to review this conclusion of the Land Commission for the purpose of affirming the determinations of ownership for parcels 004-T-09 and 004-T-10. But because the Court has limited its decision to those parcels and remands the unsurveyed portion of Yekula for further action by the Land Commission, some examination is necessary. It is axiomatic that determining the legal implication of a different case is a question of law. As noted, questions of law presented to a State agency are reserved to the Court. KC 7.702(1).

The Land Commission made three observations in support of its conclusion that Kun Mongkeya's participation in TT High Court Civil Action No. 111 was a waiver of his claim to Yekula. First, the Land Commission compared sketched maps of the land in dispute submitted by the parties to Civil Action 111 to the area surveyed by the Kosrae State Land Registration Team. However, the sketched maps were not part of the Land Commission record submitted to this Court. Although exhibits admitted in Trust Territory High Court trials may be the subject of judicial notice, the parties did not request judicial notice or submit certified copies of the Trust Territory file. See Kos. Evid. R. 201.

The Appellees attached two sketched maps to their opposition to the motion for trial de novo. It may be that these sketches are the maps the Land Commission considered, but the appellees laid no foundation of any sort that would allow the Court to consider them as evidence. 11 James W. Moore et al., Moore's Federal Practice § 901.02 (2d ed. 1982). They were simply attached to the brief without any affidavit explaining their origin, what they purported to be, indeed authentication of any type. See Richmond Wholesale Meat Co. v. Kolonia Consumer Coop. Ass'n (III), 7 FSM Intrm. 453, 455 (Pon. 1996). Further, in the order granting the trial de novo, the appellees were directed to submit an explanation of the sketches. No explanation was provided. In short, there is no indication that these were the maps the Land Commission considered. There are no other maps in the Land Commission record sent to this Court. Rather than there being evidence which the Land Commission could reasonably assess, there is the absence of evidence. As such, this conclusion may be set aside as unsupported. Heirs of Mongkeya (II), 3 FSM Intrm. at 397.

concludes that it involves the same land. If the conclusion is given as part of the reasoning, it is small wonder that the Land Commission concluded that it did. There was no proper resolution of legal matters on this point. Heirs of Mongkeya (II), 3 FSM Intrm. at 397.

Item No. 3 is also troubling. Once again, there is no indication in the Land Commission record of what the Land Commission considered in reaching this conclusion. There are no documents from TT High Court Civil Action No. 111. The appellees submitted a one-page Record of Civil Trial in TT High Court Civil Action No. 111 with their closing argument, Exhibit 27. The exhibit is admitted as the appellants do not object to it. The Record of Civil Trial does indicate that a "Kun Monkoya" was a defense witness in Civil Action 111. The Land Commission concluded that Kun's participation in the trial and his failure to assert ownership at the trial constituted a waiver of his claim.

The Court has grave concerns over this conclusion. First is the Land Commission's inference that Kun's silence was a waiver. What is a more likely inference is that Kun did not protest because the dispute did not involve land to which he had a claim. Second, it is not at all clear whether a decision was ever rendered in TT High Court Civil Action No. 111. The Record of Trial indicates that the matter was taken under advisement by former Chief Justice Furber, and there is no indication that a decision was rendered. Indeed, a reference to the case appears in the Land Commission's 1982 Findings: "By Trust Territory High Court Trial Division's `Order' dated July 23, 1979 in Kosrae Civil Action No. 111, the Land Commission was directed to `hear the matter of claims to the land' which land is described as `Yekula.'" Stipulated Ex. 12, at 38. This Court finds it unlikely that two different Trust Territory High Court civil cases would bear the same number and involve the same land. The only possible conclusion is that TT High Court Civil Action No. 111 was not completed after the trial in 1958 and continued at least until 1979. The Court therefore concludes that TT High Court Civil Action No. 111 is not binding on the Heirs of Kun Mongkeya.

The determinations of ownership for parcels 004-T-09 and 004-T-10 are affirmed as stated. The reminder of the dispute, over title to the unsurveyed portions of "Yekula" to the south of parcel 004-T-09 are remanded to the Land Commission for further action consistent with this decision, including a preliminary survey, such preliminary and formal hearings as may be necessary to make a determination of ownership. The Land Commission may rely in its discretion on the portions of the record already before it.

6. The appellants' cited authority for this proposition ) Kanoten v. Manuel, 2 TTR 3, 5 (Truk 1959) ) refers in turn to American Jurisprudence. The court discounts this authority. In Kosrae, land ownership determinations are conducted using different procedures and resources than those in the United States. It is not appropriate to adopt the same legal reasoning employed in US jurisdictions. Palik v. Henry, 7 FSM Intrm. 571, 577 (Kos. S. Ct. Tr. 1996) (citing Wito Clan v. United Church of Christ, 6 FSM Intrm. 129, 133 (App. 1993)).