HIERS OF SHREW v. HERIS OF KILAFWA

KOSRAE STATE COURT

FEDERATED STATES OF MICRONESIA

EASTERN CAROLINE ISLANDS 96944

cite as Heirs of Shrew Likiaksa v. Heirs of Kilafwa Lonno. (Kosrae 1988)

[Kos.St. pge 01]

HEIRS OF SHREW L IKIAKSA

Appellants

VS.

HEIRS OF KILAFWA LONNO

Appellee ,

CIVIL ACTION NO. 47 - 85

OPINION

Before Edward C. King*

October 17, 1988

Kosrae, Caroline Islands 96944

APPEARANCES:

For the Appellants: Akiyusi Palsis

Trial Counselor

Kosrae State 96944

For the Appellees: Aliksa B. Aliksa

Trial Counselor

Kosrae State 96944

EDWARD C. KING, Associate Justice:

COURT'S RULING

This is an appeal from the Kosrae State Land Commission's determination of ownership made on July 21, 1985, holding that the heirs of Kilafwa Lonno are the owners of certain lands, called Limes, in Le lu, parce 1 No. 050-K-00. In a nearing held on September 28, 1988, the Court announced its decision in favor of the heirs of Kilafwa Lonno and explained its reasoning. This is a memorandum of the reasons for the decision.

Factual Background

The parties are in basic agreement about the relevant facts. Limes was formerly owned by Nena Kuang. In approximately 1926, he told Likiaksa, the father of appellant Silrew Likiaksa and Fred Likiaksa, that Likiaksa could use, and take fruit and produce from, Limes. Nena Kuang apparently did this because Likiaksa' did not own much land himself.

Shrew and Fred Likiaksa also used Limes Maile Likiaksa was living, apparently under the authorization given to their father. For reasons not explained in the record, Nena Kuang permitted them to continue their use of Limes even after Likiaksa died. In 1932, Shrew Likiaksa, as chief surveyor in Lelu during the Japanese administration, wrote the name of Fred, his older brother, as owner of Limes, which is shown as lot No. 353 on the Japanese map of 1932.

Before Nena Kuang died in 1970, Trust Territory Chief

[Kos.St. pge 02]

Justice E. P. Furber entered a judgment in a case called Sigrah v . Kuan, 1 Trust Territory civil action No. 47 . This judgment, entered with the consent of the parties, confirmed that Nena Kuang had only a life interest i.n Limes and "cannot transfer any rights in it which will last after his death." No member of the Likiaksa family was a party to the litigation but the court obviously felt it had before it all parties who had any claim of ownership of Limes. The judgment confirmed that Kilafwa Lonno, Nena Kuang's adopted son, was the owner of Lines, "subject to Nena Kuang's life interest."

Nevertheless, when Nena Kuang died, Shrew and Fred Likiaksa continued -to use Limes despite the requests of Kilafwa Lonno. Although no theory has been stated with clarity, the claim of the heirs of Shrew Likiaksa apparently is grounded on some compination of the authorization given by Nena Kuang to f Likiaksa in about 1926 and the continued use of the land by Shrew Likiaksa, and then his heirs, to this day.

The commission rejected the Likiaksa argument and on July 21, 1985; determined that Kilafwa Lonno is the owner of Limes. For the reasons stated in this opinion, the Court affirms that decision.

[Kos.St. pge 03]

Legal Analysis

Shrew Likiaksa's heirs argue that the land commission did not attach enough importance to the Japanese map associating Freddy Likiaksa with Limes. The Trust TnrriLory High Court some 25 years ago concluded that appearance of a person's name on the official Japanese survey map of Kosrae is by no means conclusive evidence that the person was owner of the land indicated in 1932.

The Court takes judicial notice that in this survey emphasis was placed primarily on determination of boundaries, that the determinations as to w-fto should be s'nown as owners were made largely in the field at the time the boundary lines were checked, and that there is no assurance either that all claims to ownership were considered or that there was any detailed investigation of the exact extent of or basis of any alleged owner's interest i n tin land slZown under his name. It appears that , in a number of instances, the person in whose name a piece of land was shown in the survey records did not know that that piece of land had been shown in his name until y the records of the Japanese survey were made generally available to the people on Kusaie during the American administration. The showing of a given piece of land under a particular person's name in this survey is, therefore, at best only some evidence as t o ownership or control. When such a person's rights are disputed, the court will consider other evidence as well, and determine the ownership on the basis of all of the evidence.

Jessee v. Ebream, 1 TTR 77, 78-79 (Pon. 1953) (Furber, C. J.)

Shrew Likiaksa has offered no reason to believe that Chief Justice Furber's characterization of the 1932 Japanese survey of Kosrae was inaccurate. This Court therefore

[Kos.St. pge 04]

accepts that ctzaracterization and concludes that the land commission was not required as a matter of law to accept as true the survey map's designation of Fred Likiaksa as owner of Limes in 1932.

The commission's refusal to do so is particularly apt in light of Shrew Likiaksa's admission that Fred's name appeared on the survey simply because Shrew put it there.

There also appears no error in the significance given by the land commission to Chief Justice Furber's 1953 judgment in Sigrah v. Kuan. The heirs of Shrew Likiaksa trace their claim back to Nena Kuang, and admit that Shrew Likiaksa had no more than use rights in 1953. Thus, the land commission properly relied upon civil action 47 as estabiis'ning tat no rigzts given the Likiaksa family in Limes could have extended beyond Nena Kuang's death in 1970.

Appellants' final claim is based upon the apparently undisputed fact that Shrew and Fred Likiaksa used Limes in some fashion, although not exclusively, for many years. The heirs of Shrew Likiaksa contend that this use, which even now they continue, establishes their ownership by adverse possession. Considering the snatches of testimony read and translated during oral argument, as well as the arguments made orally and in briefs, the Court concludes that there was not the kind of consistent assertion of ownership, as distinguished from a right of use, that would allow the doctrine of adverse possession to apply in this case.

[Kos.St. pge 05]

Conclusion

In light of these considerations, the Court concludes that the land commission's determination of ownership was sound and fair. It is therefore affirmed.

So ordered the 17th day of October, 1988.

_____/s/________________

EDWARD C . KING

Associate Justice Kosrae State Court

Entered this 21st day of October, 1988.

____/s/___________________

Chief Clerk 0f Court

Kosrae State Cou t

Footnotes:

*Edward C. King is Chief Justice of the FSM Supreme Court, designated by Kosrae State Chief Justice Harry Skilling to serve as Associate Justice for the Kosrae State Court in this case (Back to Opinion)

1.Although the references in civil action 47 are t o Nena Kuan, all agree that this is the same person referred to as Nena Kuang in the papers filed in the instant case. For ease in reading and understanding, the surname Kuang is used throughout this opinion, even in references to, and quotations from, the judgment in Trust Territory civil action 47. (Back to Opinion)


	KOSRAE STATE COURT FEDERATED STATES OF MICRONESIA EASTERN CAROLINE ISLANDS 96944 cite as Heirs of Shrew Likiaksa v. Heirs of Kilafwa Lonno. (Kosrae 1988) [Kos.St. pge 01] HEIRS OF SHREW L IKIAKSA Appellants VS. HEIRS OF KILAFWA LONNO Appellee , CIVIL ACTION NO. 47 - 85 OPINION Before Edward C. King* October 17, 1988 Kosrae, Caroline Islands 96944 APPEARANCES: For the Appellants: Akiyusi Palsis Trial Counselor Kosrae State 96944 For the Appellees: Aliksa B. Aliksa Trial Counselor Kosrae State 96944 EDWARD C. KING, Associate Justice: COURT'S RULING This is an appeal from the Kosrae State Land Commission's determination of ownership made on July 21, 1985, holding that the heirs of Kilafwa Lonno are the owners of certain lands, called Limes, in Le lu, parce 1 No. 050-K-00. In a nearing held on September 28, 1988, the Court announced its decision in favor of the heirs of Kilafwa Lonno and explained its reasoning. This is a memorandum of the reasons for the decision. Factual Background The parties are in basic agreement about the relevant facts. Limes was formerly owned by Nena Kuang. In approximately 1926, he told Likiaksa, the father of appellant Silrew Likiaksa and Fred Likiaksa, that Likiaksa could use, and take fruit and produce from, Limes. Nena Kuang apparently did this because Likiaksa' did not own much land himself. Shrew and Fred Likiaksa also used Limes Maile Likiaksa was living, apparently under the authorization given to their father. For reasons not explained in the record, Nena Kuang permitted them to continue their use of Limes even after Likiaksa died. In 1932, Shrew Likiaksa, as chief surveyor in Lelu during the Japanese administration, wrote the name of Fred, his older brother, as owner of Limes, which is shown as lot No. 353 on the Japanese map of 1932. Before Nena Kuang died in 1970, Trust Territory Chief [Kos.St. pge 02] Justice E. P. Furber entered a judgment in a case called Sigrah v . Kuan, 1 Trust Territory civil action No. 47 . This judgment, entered with the consent of the parties, confirmed that Nena Kuang had only a life interest i.n Limes and "cannot transfer any rights in it which will last after his death." No member of the Likiaksa family was a party to the litigation but the court obviously felt it had before it all parties who had any claim of ownership of Limes. The judgment confirmed that Kilafwa Lonno, Nena Kuang's adopted son, was the owner of Lines, "subject to Nena Kuang's life interest." Nevertheless, when Nena Kuang died, Shrew and Fred Likiaksa continued -to use Limes despite the requests of Kilafwa Lonno. Although no theory has been stated with clarity, the claim of the heirs of Shrew Likiaksa apparently is grounded on some compination of the authorization given by Nena Kuang to f Likiaksa in about 1926 and the continued use of the land by Shrew Likiaksa, and then his heirs, to this day. The commission rejected the Likiaksa argument and on July 21, 1985; determined that Kilafwa Lonno is the owner of Limes. For the reasons stated in this opinion, the Court affirms that decision. [Kos.St. pge 03] Legal Analysis Shrew Likiaksa's heirs argue that the land commission did not attach enough importance to the Japanese map associating Freddy Likiaksa with Limes. The Trust TnrriLory High Court some 25 years ago concluded that appearance of a person's name on the official Japanese survey map of Kosrae is by no means conclusive evidence that the person was owner of the land indicated in 1932. The Court takes judicial notice that in this survey emphasis was placed primarily on determination of boundaries, that the determinations as to w-fto should be s'nown as owners were made largely in the field at the time the boundary lines were checked, and that there is no assurance either that all claims to ownership were considered or that there was any detailed investigation of the exact extent of or basis of any alleged owner's interest i n tin land slZown under his name. It appears that , in a number of instances, the person in whose name a piece of land was shown in the survey records did not know that that piece of land had been shown in his name until y the records of the Japanese survey were made generally available to the people on Kusaie during the American administration. The showing of a given piece of land under a particular person's name in this survey is, therefore, at best only some evidence as t o ownership or control. When such a person's rights are disputed, the court will consider other evidence as well, and determine the ownership on the basis of all of the evidence. Jessee v. Ebream, 1 TTR 77, 78-79 (Pon. 1953) (Furber, C. J.) Shrew Likiaksa has offered no reason to believe that Chief Justice Furber's characterization of the 1932 Japanese survey of Kosrae was inaccurate. This Court therefore [Kos.St. pge 04] accepts that ctzaracterization and concludes that the land commission was not required as a matter of law to accept as true the survey map's designation of Fred Likiaksa as owner of Limes in 1932. The commission's refusal to do so is particularly apt in light of Shrew Likiaksa's admission that Fred's name appeared on the survey simply because Shrew put it there. There also appears no error in the significance given by the land commission to Chief Justice Furber's 1953 judgment in Sigrah v. Kuan. The heirs of Shrew Likiaksa trace their claim back to Nena Kuang, and admit that Shrew Likiaksa had no more than use rights in 1953. Thus, the land commission properly relied upon civil action 47 as estabiis'ning tat no rigzts given the Likiaksa family in Limes could have extended beyond Nena Kuang's death in 1970. Appellants' final claim is based upon the apparently undisputed fact that Shrew and Fred Likiaksa used Limes in some fashion, although not exclusively, for many years. The heirs of Shrew Likiaksa contend that this use, which even now they continue, establishes their ownership by adverse possession. Considering the snatches of testimony read and translated during oral argument, as well as the arguments made orally and in briefs, the Court concludes that there was not the kind of consistent assertion of ownership, as distinguished from a right of use, that would allow the doctrine of adverse possession to apply in this case. [Kos.St. pge 05] Conclusion In light of these considerations, the Court concludes that the land commission's determination of ownership was sound and fair. It is therefore affirmed. So ordered the 17th day of October, 1988. _____/s/________________ EDWARD C . KING Associate Justice Kosrae State Court Entered this 21st day of October, 1988. ____/s/___________________ Chief Clerk 0f Court Kosrae State Cou t Footnotes: Edward C. King is Chief Justice of the FSM Supreme Court, designated by Kosrae State Chief Justice Harry Skilling to serve as Associate Justice for the Kosrae State Court in this case (Back to Opinion)* 1.Although the references in civil action 47 are t o Nena Kuan, all agree that this is the same person referred to as Nena Kuang in the papers filed in the instant case. For ease in reading and understanding, the surname Kuang is used throughout this opinion, even in references to, and quotations from, the judgment in Trust Territory civil action 47. (Back to Opinion)