POHNPEI SUPREME COURT REPORTS
VOL. 1
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Ct. R 265]
WAR AMON,
Appellant
v.
PERNET PAUL,
Appellee
Pohnpei Civil Action No. 125-84
Trial Division of the Pohnpei Supreme Court
October 18, 1985
Appeal from Pohnpei Land Commission Determination of Ownership relating to homestead tract situated at Pales Village of Kitti Municipality. The Trial Division of the Pohnpei Supreme Court, EDWEL H. SANTOS, Chief Justice, affirmed, holding that the appellee, who had been issued a written application specifically relating to the land in dispute, coupled with the permission of the Government to enter the property for agricultural use for his principal benefit was the eligible "entryman".
1. Appeal and Error - Evidence - Additional Evidence
On an appeal from Ponape Land Commission Determination of Ownership of land tract the Appellate Court may receive additional testimony and may inspect the land in order to determine who first applied for the land and when his application was made.
2. Public Trust Lands - Homestead - Homestead Application - Homestead Permit
Where appellant after having selected and started working in an area of land for the purpose of homesteading abandons the original area and moves on to another area then the homestead permit in respect of the original area shall be revoked, and the land shall revert to the Government. (67 TTC Ch. 5 (1980))
3. Public Trust Lands - Homestead - Homestead Application - Homestead Permit
Where appellant without a New Application or a new Permit issued by the Government or express approval by the Government for the change of his homestead tract enters another homestead tract he becomes a
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Ct. R 266]
tenant by sufferance of that tract, whose rights may be recognized by section 6 (e) of Secretarial Order No. 2969 and section 14 of the Public Lands Act 1979 (S.L. 4L-69-76) or by the principles of equity.
4. Public Trust Lands - Homestead - Eligible Entryman
Where appellant without a New Application or a New Permit issued by the Government or express approval by the Government for the change of his homestead. tract enters another homestead tract, he becomes a tenant by sufferance of that tract, and he cannot be considered an eligible entryman of that tract within the meaning of the Public Trust Lands Distribution Act of 1980.
5. Pohnpeian Custom - Land Usage by Non- Owner
Under Pohnpeian custom expressed in the maxims "ahmwpwehlah ahi dipwisou" and "ahmw pwehl ah imwei ihmw,"where appellant by his labor plants crops on homestead tract belonging to respondent, but honestly believing that such tract belongs to him, appellant may be allowed subject to consultation with respondent owner to harvest the fruit of his labor.
6. Public Trust Lands - Homestead - Eligible Entryman
To be an eligible "entryman" on public trust land one must
(a) be a qualifying beneficiary of the Public Trust Land of the State of Pohnpei;
(b) have at any time prior to January 1, 1958, received a written leasehold interest or use right in public land for a period of not less than one year; or
(c) have been issued a written application specifically relating to such leasing of land prior to January 1,1958; coupled with the permission to enter the property for agricultural use or development granted by either the Government of Japan or the Trust Territory Government, inclusive of the United States Naval Administration, for the principal benefit of the entryman; or
(d) be the heir or devisee of an original entryman as determined by the law of wills or by the law of intestate succession of Pohnpei State; or
(e) be an assignee of an entryman who has, with the written or oral permission of said entryman prior to
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Ct. R 267]
January 1,1980, entered and possessed the land in the manner prescribed by statute. (S.L. 2L-43-80,).
7. Public Trust Lands - Homestead - Legality of Occupation and Possession Evidence - Onus of Proof
Where in recognizing the inadequacy of land records and the potentiality for fraud, the Legislature employed the phrase 'prior to January 1,1958,"in the Land Distribution Act as being the provisional cut-off date whereby homesteaders' applications for transfer of title to their homesteads may be considered, the date thus set places the burden on individual land users to prove the legality of their occupation and possession of public trust lands.
8. Statutes - Construction
Where a limited construction of the language 'prior to January 1,1958," (being the statutory deadline for the issue of homestead applications or permits) used by the Legislature would yield absurd and undesirable results, if after evidentiary hearing it is revealed that the qualifying beneficiary did actually receive a written leasehold interest (Homestead Permit) or use right in public lands or was actually issued a written application by the Government and was authorized to enter and did enter and develop his homestead tract, but all such transactions were done somewhere after January 1, 1958, the court would give such language a broad construction.
9. Statutes - Construction - Legislative Intent
Where the limited construction of a statute containing a cut-off date for the issue of homestead applications or permits would yield absurd and undesirable results, but it appears from the statue that the manifest intent and the overriding interest of the Legislature is to have the Government expedite the issuance of title deeds to qualifying beneficiaries who without fraud have satisfactorily fulfilled the requirements of their homestead or use agreements on public trust land, the court would give broad construction to the statute.
Counsel for Appellant: Matt Mix, Esq.
Counsel for Appellee: Burton Jano, Esq.
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Ct. R 268]
EDWEL H. SANTOS, Chief Justice
[1] This is an appeal from Ponape Land Commission Determination of Ownership relating to land tract No. 72691 situated at Paies Village of Kitti Municipality, in favor of Pernet Paul. War Amon appealed that determination and stated as principal ground for appeal: "That Pernet Paul could not legally be considered an eligible entryman because he first applied for the land in 1959." The appellant requests additional evidence to be heard in order to determine who first applied for the land and whether the application was made prior to January 1; 1958. Additional testimony was received in court and an inspection of the land was made by the court and both parties with their counsel. Following the inspection Counsel were given 25 days to file written briefs, and, if possible, to effect a settlement agreement. Briefs without settlement agreement were filed late, but due to the circumstances, I allowed all briefs.
Upon consideration of: the Land Commission's record, and the evidence received at the trial, I made the findings below:
1. War Amon was issued an application on June 24, 1949, to homestead a tract of land at Paies Village in Kitti. The area
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of land authorized was 3 hectares. No particular description of the area was shown on the application, (See Land Commission, hereinafter LC, Exhibit 9).
2. Pernet Paul (also spelled Pernet Bohl) was issued another application on June 12, 1959 to homestead a tract of land within Paies Village of Kitti Municipality, described as being tract No. 2, containing an area of 3 hectares. (See LC Exhibit 13). (Testimony of Lorens Ioanis and Pernet Paul indicate that the No. 2 description referred to tract No. 2 in relation to a partition of certain tracts made by the Ponape District Land Office in 1958-59 for purposes of homestead).
3. Land Commission Exhibit 15 shows Pernet Paul as being the occupant of Tract 72691, and War Amon of Tract 72684.
4. The parties had once lived together on Tract 72691 and both War Amon and Pernet Paul had plantings made on said Tract 72691. War Amon had certain houses built on said tract, which later had dilapidated or been dismantled. War Amon was once married to Pernet Paul's wife's mother who died in about 1977 and was buried in the land in question. Public Lands Office on November 11, 1982, had issued a
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Certificate of Compliance, (LC Exhibit No. 10) and a Certificate of Eligibility (LC Exhibit No. 11) relating to Tract 72691 in favor of Pernet Paul, pursuant to State Law 2L-43-80, (the Public Trust Land Distribution Act). The issues for determination therefore are:
1. Who is the rightful entryman on Tract 72691, within the meaning of the Public Trust Lands Distribution Act of 1980, (S.L. 2L-43-80j.
Who benefits from improvements made on Tract 72691.
OPINION
[2] Both War Amon, the appellant, and Pernet Paul, the appellee, claimed to be the rightful "entryman" on Tract 72691, and I discuss below the rights of the parties in relation to the applicable laws and customs of Pohnpei relating to land use.
Paragraphs 1 and 2 of the finding show the application dates of the respective parties. However, War Amon's application does not specify the particular area of public land which was the subject of his June 24,1949, applications. Despite this lack of particularity, the Land Office records show that the area of public lands specifically assigned to War Amon is the area designated as T-72684.
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(See Exhibit 15). In his testimony before the Land Commission (LC Exhibit 8) we find the following relevant questions and answers:
"Q War Amon you stated that you are the one apply [sic] to lease this land, do you have any evidence to prove to the team that this is the land you apply? [sic]
A. None.
Q. Is there any land you apply [sic] to lease?
Q. What about you, the land you applied is located in what part?
A. 1 first apply [sic] a land facing Dien and don't like it and I apply [sic] another one.
Q. Are you holding two land applications?
A. No only one.
Q. When you plan [sic] to change your application did you come to the land office and inform them?
A. No.
Q. Did you ever work on the land you first apply? [sic]
A. I worked on it before but now no more."
War Amon's testimony reveals that under the authority of his June 24, 1949, homestead application, he started working on an area within Paies, facing Dien Section, now designated as T72684. He later changed his mind and moved to the area in question and actually did make certain agricultural improvements,
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including the construction of two Nahs in which he and his deceased wife Lina and Pernet Paul and his wife had resided for some time.
This action on the part of War Amon raises a legal question as to whether an Homestead Permit or Homestead Application authorizes a person, after having selected and started working in an area, to abandon the original area and move on to homestead another area and to consider the fatter area as the subject of the homestead permit or application.
Chapter 5 of Title 67 of the Trust Territory Code (1980) and Requirements Nos. 1, 2, and 5 of the Trust Territory Homestead are consulted for aid in the determination of the legality of such transfer. The relevant Homestead Requirements 1, 2, and 5 are quoted below:
"Requirement 1: The homesteader shall commence improvement of his land from date of this permit. If he fails to start work on the land within 120 days from the date of this permit, the permission will be withdrawn and the land will revert to the Government of the Trust Territory of the Pacific Islands.
Requirement 2: The homesteader shall obtain markers from the District Land Office and place them at all corners of his homestead within 6 months of entry and shall at all times maintain all boundaries clear of any and all weeds, trash and underbrush.
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Requirement 5: If at any time within 5 years from the date of this permit the homesteader should abandon the land or fails to comply with the laws, rotes and regulations appertaining to homesteads and this is proved to the satisfaction of the District Administrator, then the permit shall be revoked and the land shall revert to the Government of the Trust Territory of the Pacific Islands.
Reading the provisions of the Homestead Permit Requirements, I find no help in the Homestead Permit Requirements which would allow the discretion to an applicant. Requirement 2 placed the burden on homesteader to erect markers at all corners of his homestead within 6 months of entry. The purposes of this requirement are to clearly identify the 3 hectare more or less area one had applied for and entered to homestead, to avoid overlapping of development by various homesteaders, and to identify those areas of public land which had been approved by the Government for occupation under the Homestead program.
[3-4] I must presume that War Amon had complied with the requirements of his homestead, in relation to lot 72684 in the absence of a showing that his homestead had reverted pursuant to Requirement 5. This being the case, War Amon's changing to a new homestead lot would require either a New Application ora New Homestead Permit issued by the Government, or that an express
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approval by the Government is given for a change of homestead tract. 67 TTC 203 (1) says "...no person shall be permitted to enter and acquire more than one homestead..." Thus War Amon's prior entry on Tract 72691 in relation to that of Pernet Paul without proper Government approval only made him a tenant by sufferance whose rights may be recognized by Sec. 6(e) of Secretarial Order No. 2969, and Sec. 14 of S.L. 4L-69-76, known as the Public Lands Act of 1976, or by the principles of equity. For this reason and despite War Amon's prior entry on T-72691 without express approval of the Government, I hold that he can not be considered an eligible entryman on T-72691 within the meaning of the Public Trust Lands Distribution Act of 1980.
[5] In the interest of equity, however, and in conformance with Pohnpeian customs of land usage, where we say "ahmw pweh! ah ahi dipwisou"or "ahmw pwehl ah imwei ihmw"; coupled with the recognition of such rights pursuant to S. 14 of S.L. 4L-69-76, War Amon may be allowed, subject to consultation with Pernet Paul, to harvest the fruit of his labor in Tract 72691. This equitable remedy is recognized by the Trust Territory High Court in Makaya v. Makaya, 5 TTR 131, Moses v. Moses, .3 TTR 187, Pelipe
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v. Pelipe, 3 TTR 133.
I now turn to Pernet Paul's application. Finding No. 2 above shows that Pernet Paul was issued a homestead application dated June 12, 1959. His application is more specific than that of War Amon in that Pernet Paul's application does show a Tract No. 2 in relation to certain other tracts which Kozo Yamada, the Ponape District Land Title Officer, had in 1958 advised the residents of Paies as being vacant and available for homestead. Among other people who were advised of the vacant tracts, Pernet Paul was issued in 1959, supra, an application identifying Tract No. 2 as his tract to homestead. Tract No. 2 is the same as Lot T-72691, the area in question.
[6] To be an eligible "entryman" on public trust land one must
(a) be a qualifying beneficiary of the Public Trust Lands of the State of Pohnpei;
(b) have at any time prior to January 1,1958, received a written leasehold interest or use right in public land for a period of not less than one year; or
(c) have been issued a written application specifically relating to such leasing of land prior to January 1, 1958; coupled with the permission to enter the property for agricultural use or development granted by either the Government of Japan or the Trust
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Territory Government, inclusive of the United States Naval Administration, for the principal benefit of the entryman; or
(d) be the heir or devisee of an original entryman as determined by the law of wills or by the law of intestate succession of Pohnpei State; or
(e) be an assignee of an entryman who has, with the written or oral permission of said entryman prior to January 1,1980, entered and possessed the land in the manner prescribed by S.l-. 2L-43-80.
Except for the date, Pernet Paul's application falls within category (c). However, when one sees the date of Pernet Paul's written application of June 12, 1959, in relation to the definition section of S.L. 2L-43-80, which requires homestead permits or applications to be issued prior to January 1, 1958, the immediate reaction one gets is that Pernet Paul's application of June 12,1959, does not qualify him as an entryman.
To determine whether Pernet Paul's application of June 12, 1959, can be considered in legal terms as meeting the statutory deadline of January 1, 1958, I must resort to the purpose and the manifest intent of the Pohnpei Legislature in enacting the Public Trust Lands Distribution Act of 1980 (S.L. 2L-43-80).
First, the Court is cognizant of the fact of the day relevant that,
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acting in concert and under the authority of the Trust Territory Government, both the District Government and Municipal Governments of Pohnpei were authorized to issue homestead applications to persons eligible to acquire homestead tract. This was done through the establishment of District Land Advisory Boards or Municipal Land Advisory Boards. Land records were not adequately prepared and kept, and many people on Pohnpei went through the statutory requirements in acquiring homestead tracts, while certain others disregarded the law, entered upon and started working on certain areas of public lands, with the intent to later demand that Government recognized them as eligible homesteaders, alleging that applications were lodged at certain municipal offices, even though they were not issued applications at all. If the Government would recognize and condone such illegal entry and fraudulent representation relating to public lands, chaos would ensue.
Second, the Pohnpei Legislature in enacting State Law 2L-43-80 (the so-called Public Trust Lands Distribution Act of 1980) was cognizant of such fact and stated in the purpose of the land act as follows:
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"Sec. 2. Purpose. The purpose of this Act is to distribute lands held in trust for the people of Ponape State to beneficiaries of the trust who have entered upon, developed and possessed such lands for agricultural purposes pursuant to leasehold or other use agreements issued for that purpose by the Government of Japan or the Trust Territory Government."
[7] Third, in recognizing the inadequacy of land records and the potentiality for fraud, the Legislature employed the phrase "prior to January, 1, 1958" in the Land Distribution Act as being a provisional cut-off date whereby homesteaders' applications for transfer of title to their homesteads may be considered. The date set thus places the burden on individual land users to prove the legality of their occupation and possession of public trust lands. It becomes manifest that the mischief which the Legislature sought to avoid in the implementation of the Public Trust Lands Distribution Program by employing the phrase "prior to January 1,1958" is "fraud", or as the Court said in Luis v. Helgen PN CA 165-84, "bad faith effort."
[8-9] I view the Legislature's use of the language "prior to January 1, 1958" to deserve broad, rather than limited, construction. Limited construction would yield absurd and undesirable results where, after an evidentiary hearing, it is revealed that a qualifying beneficiary did actually receive a written leasehold
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interest (Homestead Permit) or use right in public lands, or was actually issued a written application by the Government and was authorized to enter and did enter and develop his homestead tract, but all such transactions were done somewhere after January 1, 1958, as is seen in this.case in relation to Pernet Paul.
The manifest intent and the overriding interest of the legislature is to have the Government expedite the issuance of title deeds to those qualifying beneficiaries who without fraud have satisfactorily fulfilled the requirements of their homestead or use agreements on public trust land.
The use of the language "prior to" January 1, 1958 in the act helps facilitate the intent of the Pohnpei Legislature: (See 73 Am Jur 2d. Statute Interpretation, Section 362.)
Pernet Paul's application to Tract 72691, his possession and development have met all the legal requirements and deserve consideration for transfer of title. There is no bad faith effort or fraud on his part or on the part of any Government Official in issuing T-72691 to Pernet Paul, unlike what was noted in Luis v. Helgen, PN CA 165-84.
Accordingly I hold that Pernet Paul's application qualifies him
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as an eligible entryman within the meaning of Section 3, of S. L. 2L-43-80.
JUDGMENT
It is Adjudged, Ordered, and Decreed:
1. The Determination of Pohnpei Land Commission issued on April 18,1984, relating to Tract No. 72691, situated at Paies, Kitti, in favor of the Pohnpei Public Lands Authority, with Pernet Paul as rightful entryman is AFFIRMED.
2. War Amon has the right, subject to consultation with Pernet Paul, to enter Tract 72691 and harvest from plants and trees, he has planted on said tract, and to clear the cemetery of his deceased wife Lina. War Amon shall exercise due care not to injure any such plant or tree beyond that which customarily occurs in harvesting. Except for his right to enter to clear the cemetery, War Amon's rights to harvest shall expire two years from the date of this judgment, or on October 18,1987.