Lebehn v.Kinam Inada(1986)

POHNPEI SUPREME COURT REPORTS

VOL. 2

[2 P. S. Ct. R 157]

ISHMAEL LEBEHN,

Appellant

MINORU KINAM INADA,

Appellee

Pohnpei Civil AppeaIs No. 5-85 and No. 6-85

Appellate Division of the Pohnpei Supreme Court

December 15, 1986

Appeals from the decision of the Trial Division of the Pohnpei Supreme Court relating to a land boundary dispute between the appellant and the appellee in which the trial court had ordered that a resurvey of the boundary lines of the parcels in question be conducted and that should the resurvey reveal any excess area between the parcels belonging to the parties that excess portion should be considered as part of public land and the control of such land should be lodged with the Public Land Office. The appellant's grounds of appeal were that "(1) The evidence supports the boundary line propounded by appellant and as drown on the Land Office Sketch describing the land Keperenium; (2) The judgment cannot invalidate the earlier determination of the Land Commission relating to the land Keperenium, a determination which should be considered as res-judicata". But the appellee's ground in his cross-appeal was that "The Covet below erred in decreeing "if resurvey reveals an excess area exists between Daro Pluhs and Tadasy Santos, that excess portion shall be considered as part of the public land."( Daro Pluhs

[2 P. S. Ct. R 158]

was the successor to his father Diego Piuhs to whom the determination of ownership of Keperenium was made in 1972 and Tadasy Santos was an adjoining land owner)

The Appellate Division of the Pohnpei Supreme Court, PER CURIAM, vacating and setting aside the judgment of the trial court, and remanding the case with instruction to reopen so that the real issue could be properly addressed by the trial court, held that the portion of the judgment which would give title to the area in dispute to the Public Lands Authority should resurvey reveal that the disputed area was in excess of Daro Phlus' individual property was an error and was tantamount to a taking of private property without due process of law.

1. Appeal and Error - Pohnpel Appellate Rules - Practice Note

In cases involving cross-appeals, or separate appeals, the party first filing a notice of appeal shall be considered the appellant under the Pohnpei Appellate Rules. (Rule 16 (b), Pohnpei Appellate Rules)

2. Appeal and Error - Evidence - Appeal Record - Function of Appellate Court

Where a party to an appeal argues a point which he fails to substantiate from the appeal records but merely asserts that the record is available somewhere, this is not enough, and it is not the function of the appellate court to go out looking for record of any appeal which is not shown on the appeal record.

3. Appeal and Error - Evidence - Appeal Record

The papers certified in the appeal record shall constitute the record on appeal unless the Appellate Division requires the inclusion of other papers or exhibits. (Rule 14 (b), Pohnpei Appellate Rules), as amended by Order No. 1-1986 of June 1, 1986)

4. Courts - Evidence - Judicial Notice

In addressing land boundary disputes, the Court takes judicial notice of the fad that since the distribution of lands to private parties beginning in 1912, boundaries were made on the ground and the people understood and relied heavily on the boundary lines as shown on the ground.

[2 P. S. Ct. R 159]

5. Evidence - Maps

Though maps in the Land Office are official documents, ff the information contained in such maps describes a particular area as "a flat land" and the actual inspection of that particular area shows the area to be a "hilly land" the Court will give credence to the information revealed as a result of the actual inspection, unless intervening events which could have changed the topography of the area are known.

6. Appeal and Error - Courts - Functions

Where in a land boundary dispute the issue of actual (true) boundary is not decided by the trial court and a resurvey is ordered by the trial court this tends to pass a judicial function from the judiciary to the lend Surveyor, and is not proper, as the trial court should have determined the true boundary line based on the evidence, and a resurvey should be based on the determination of the trial court.

7. Appeal and Error - Due Process of Law

Where in a land boundary dispute the the trial court's judgment would give title to the area in dispute to the Public Lands Authority should a resurvey ordered by the court reveal that the disputed area is in excess of the property of a person from whom one of the parties had purchased the land, this is error and is tantamount to a taking of private property without due process of law.

8. Due Process of Law

No person may be deprived of ...property without due process of taw. Private property may not be taken except for a public purpose with just compensation (Article 4, Section 4, Pohnpei Constitution)

Counsel for Appellant: Martin F. Mix. Esq,

P. O. Box 143, Kolonia, Pohnpei

[2 P. S. Ct. R. 160]

Counsel for Appellee: Tino Donre

MLSC, Pohnpei Office

Kolonia, Pohnpei

CORAM: EDWEL H. SANTOS, Chief Justice

YOSTER CARL, Associate Justice

JUDAH C. JOHNNY, Associate Justice

PER CURIAM

This action, started as a quiet title action, turned on to be a boundary dispute between the parties, both of whom are subsequent purchasers of certain parcels of land described as Parcel No's. 023-A-33 for Ishmael Lebehn and 023-A-34 for Minoru Kinam Inada, both situated at Dolonier, Neff Municipality. The trial court judgment provides that a resurvey of the boundary lines of the parcels in question would be conducted within twenty days after service of the judgment and that Bailey Olter and Tadasy Santos should be present at and when resurvey is conducted. (It should be noted that neither Bailey Olter nor Tadasy Santos was a party to the action, however, we presume their presence at the resurvey is necessary for purposes of identifying their boundary lines in

[2 P. S. Ct. R 161]

relation to the boundary lines disputed in this action). If the resurvey reveals that the boundary claimed by the appellant, Ishmael Lebehn, is the correct boundary line, then that portion of the land enclosed by the said boundary line shall be considered as part of the land Kepernium (Parcel 023-A-33) and shall be for the plaintiff, Ishmael Lebehn. The defendant, Minoru Kinam Inada, was restrained from interfering with the plaintiff over the area in dispute. Should the resurvey reveal that there was an excess area between the land parcels once belonging to Daro Pluhs and Tadasy Santos, that excess portion shall be considered as part of the public land and the control shall lodge with the Public Lands Office.

(1) The evidence supports the boundary line propounded by the appellant and as shown on the Land Office Sketch describing the land Keperenium;

(2) The judgment cannot invalidate the earlier determination of the Land Commission relating to the land Keperenium, a de termination which should be considered as res judicata.The defendant filed a cross-appeal assigning as error:

The court below erred in decreeing that "if resurvey

[2 P. S. Ct. R 162]

reveals an excess area exists between Daro Pluhs and Tadasy Santos, that excess portion shall be considered as part of the public land."

[1] NOTE: The Clerk's Office received, prepared and maintained two appeals in this matter, the first appeal by Ishmael Lebehn being assigned the number 5-85, and Minoru Kinam's cross-appeal as number 6-85. This is unnecessary for our purposes; one file with one number shall be sufficient to file and maintain appeals from a particular case, of course with appropriate designations of parties making the appeal. In cases involving cross-appeals, or separate appeals, the party first filing a notice of appeal shall be considered the appellant under our rules. Rule 16 (b), Pohnpei Appellate Rules.

A review of the record on appeal and the argument of counsel convince us that the judgment of the trial court ought to be vacated and set aside, and the case reopened so that the real issue can properly be addressed by the trial court.

[2-3] The discussion of the issues raised on this appeal follows:

(1) that the evidence supports the boundary line as shown

[2 P. S. Ct. R 163]

on Land Office maps, plaintiff's Exhibit No. 1. There is ample evidence found in the record which supports this first contention, and Counsel forthe appellant argues that the same map was used in a previous Land Commission's hearing upon which the determination of ownerships and boundary lines delineating Keperenium land from that of Kulio Olmos' land later bought by Tadasy Santos in 1968, that Tadasy Santos did not dispute the map showing the boundary with a bend in it at those hearings. Notwithstanding, we find nothing inthe record to showthat eitherTadasy Santos orKulio Olmos, or even the appellee was given an opportunity to comment or to contest the map referred to by the appellant. Though the appellant argued this point he did not show us the record to substantiate his argument. He merely stated that the record is at the Land Commission but this is not enough. It is not the function of our appellate court to go out looking for record of any appeal which is not shown on the appeal record. The papers so certified shall constitute the record on appeal, unless the Appellate Division requires the inclusion of other papers or exhibits. Rule 14 (b), Pohnpei R. App., as amended by Order No. 1-1986 of June 1, 1986.

[2 P. S. Ct. R 164]

Of great significance is the testimony of Daro Pluhs as found in the record. (Daro Pluhs was the successor to his father Diego Pluhs to whom the determination of ownership of Keperenium was made in 1972). Daro Pluhs' testimony as relevant says:

Q. Court - Duwen omwi kilikilang map wet, ni lain inen wet ih me ke kose me ke netikihong Ishmael Lebehn?

A. Pluhs - Ei. (Tr. P.42).

Q. Counsel - Mie pak ehu me ke wewehki me nan lain en kowe oh Tadasy a pirek?

A. Pluhs - Sohte (Tr. p.41)

Q. Counsel - Komw kak kasalehiong Mwoalen Kopwung duwen amwa inou pane en netin sapw wet. la mwomwe, de wasa, de is uwen sahpw me kumwa inouki pane me komw pahn netikihla?

A. Pluhs - Ei.

Q. Counsel - Na, komw kak kasalehda?

A. Pluhs - Na, tepidaho I pahn netikiong sahpw pohnangin ahl. Se kohla lel wasao negehi kasalehiong wasa me pehs keieu mihmi pohnangin aiau ieu, oh ngehi pil padahkiong

[2 P. S. Ct. R 165]

nan pwungen lain en neghi oh Tadasy Santos. Wewehki mie lain inendidohr wasao. Wewehki I padahkiohng Ishmael: "Kilang sang wasa me nih kat mihe kohdo ni lain met, iei sapwom.° Wewehki a wia serek pwoat wasao pohnangin ahlo. (Tr. P. 37)

Q Counsel - Komw kak kasalehiong Mwoalen Kopwung wet duwen omwi wewehki?

A. Pluhs - Ire me sansal ahnsou wet, I padahkiong. Se kohdihla lel ni oaroahro,neghi padahkieong me ehu pehs mih ni oaroahro oh ehu mihmi poweho. Met wewehki e inendalahng pehs me mihmi pohnangin aiauo o inendihla. Ihme sansal nan map en. Me tangdihla- inendihla ni oaroahro, ih wasa me I netkiong. (Tr. p. 38)

The testimony of Daro Pluhs who sold Keperenium to appellant and who presumably should know the boundary of his land much better than anybody else points inescapably to the conclusion that the boundary separating his land from that of Kulio Olmos (later sold to Tadasy Santos) was a straight line. If this testimony is to be taken as true, then the banded boundary line as shown on the Land Office map, P. Exhibit 1 was a ministerial error and ought to be corrected when there is opportunity to do sq;taking into account the impact of prejudice and the statute of limitations.

[2 P. S. Ct. R 166]

[4-6] In addressing boundary disputes, this Court takes judicial notice of the fact that since the distribution of lands to private parties beginning in 1912, boundaries were made on the ground and the people understood and relied heavily on the boundary lines as shown on the ground. The map depicting Plat No. 023-A-33 and relied upon by the appellant was made in 1971 and approved as an official document in 1972. Though maps in the Land Office are official documents, if the information contained in such maps describes a particular area as'a flat land' and the actual inspection of that particular area shows the area to be a "hilly land" the Court will give credence to the information revealed as a result of the actual inspection, unless intervening events which could have changed the topography of the area are known. The intervening event known in this action was the road construction by Pohnpei Transportation Authority, but such an event in our opinion would not give legal authority to change location of boundary markers. The issue of actual (true) boundary was not decided by the trial court, and we do not believe that a resurvey per se will determine the true boundary line. The judgment tends to pass a judicial function from the judiciary to the Land Surveyor. We feel this is not

[2 P. S. Ct. R 167]

proper. The trial court should have determined the true boundary line based on the evidence, and a resurvey should be based on the determination of the trial court.

The appellant's contention that the trial court's judgment cannot operate to invalidate the earlier determination of the Land Commission relating to the land Keperenium is well taken. However, this issue is not the main thrust of the appeal before us. The main thrust of the appeal is one of fact, to wit, which is the true boundary line separating the parcels of land once owned by Diego and Kulio Olmos, respectively. Is it the boundary line with a bend in it as claimed by the appellant or a straight line as claimed by the appellee? The trial court did not address this issue. The appellant's contention number 2 needs no further discussion, as not directly on point.

[7-8] In the appellee's cross-appeal, he contends that the portion of the judgment which would give title to the area in dispute to the Public Lands Authority should a resurvey reveal that the disputed area is in excess of Daro Pluhs' property was an error. We agree with the appellee that this was an error, tantamount to a taking of private property without due process of law. No person

[2 P. S. Ct. R 168]

may be deprived of ...property without due process of law. Private property may not be taken except for a public purpose with just compensation. Art. 4, Sec. 4 PN Con.

We conclude that in order to do justice to the parties, the Trial Court should re-open the case, receive additional evidence and make new finding or findings of fact on the issue of: Whether the boundary line separating the parcels of land once owned by Diego Pluhs (023-A-33) and Kulio Olmos and Tadasy Santos (023-A-34) located in Dolonier, Neff, is bent as shown on P. Exhibit 1 and claimed by the appellant, or whether it is a straight line as claimed by the appellee and testified to by Daro Pluhs. Once the trial court determines this factual issue, then the need for a resurvey will become clear.

The JUDGMENT of the trial court is vacated and set aside, and the case is remanded with instruction given.