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Koror State Public Lands Authority v Idid Clan [2016] PWSC 9; Civil Appeal 15-027 (29 March 2016)

IN THE
SUPREME COURT OF THE REPUBLIC OF PALAU
APPELLATE DIVISION

Decided: March 29, 2016
Counsel for Appellant: N. Durflinger

Counsel for AppellS. Remoket

BEFORE: ARTHUR NGIRAKLSONG, Chief Justice; KATHLEEN M. SALII, Associate Jate Justice; and R. ASHBY PATE, Associate Justice.

Appeal from the Land Court, the Honorable C. QUAY POLLOI, Senior Judge, presiding.

PER CURIAM:
We first addressed this case in a May 2015 Opinion in Civil Appeal No. 14-005. The case returned to the Land Court, where the parties chose to present no new evidence, and the Land Court again awarded the land to Claimant Idid Clan. Koror State Public Lands Authority appeals the decision on remand. For the reasons below, we VACATE the determination and REMAND for further factual findings.

BACKGROUND

The case stands exactly as it did on the previous appeal, except that instead of reforming Claimant Idid Clan’s return-of-public-lands claim into a superior title claim, this time the Land Court seems to have granted the return of public land without a determination of whether the land was acquired through force, coercion, or fraud, or without just compensation, which is essential to a claim for the return of public lands. “On remand the parties chose not to present further evidence.” (Decision on Remand at 2.) Idid Clan submitted some additional argument and Koror State Public Lands Authority (“KSPLA”) rested on its previous submissions. Because the facts in this appeal stand exactly as they did in the last appeal, this Opinion draws from the previous one, as well as from the original Land Court decision. (See KSPLA v. Idid Clan, Civ. App. No. 14-005 (May 26, 2015).)
The relevant facts from the original Land Court decision are these: The early-1940s Tochi Daicho land survey done by the Japanese indicated that Lot 703, now Lot 054&# 08,^[1] was owned by Keyukl, a member of Idid Clan. (Land Court Original Decision at 1.) During the Japanese administration, Keyukl leased Lot 703 to a Japanese national, indicaboth that Keyukl owned the the land, and that the transaction was a lease, not a sale. (Id. at 4; Decision on Remand at 3-4.) A list of private lands sold to Japanese nationals with the approval of the Japanese Governor does not include Lot 703. (Decision on Remand at 4.) Based on the evidence, the recorded or remembered history of the lot only made it uninterrupted as far as early during the U.S. administration following World War II, when Idid Clan’s claim representative and only witness “Gloria Salii accompanied her grandmother Ngerdokou to farm on Tochi Daicho 703.” (Land Court Original Decision at 4.) “[E]ventually houses were built on the lot. . . . Sals uwaware ware if thes these people resided on the lot through leases from KSPLA.” (Id. at 3.) There are leases between the Trust Territory and private parties purportedly cog par the at issu issue date dating bing back to 1956, and continuing over the following decades. (Land Court record, KSPLA Exs. 8, 9, 10, 14, 15, 16.) Then, in 1976, the Trust Territory government listed its ownership of the lot via a Land Acquisition Record. (Land Court Original Decision at 4.)
KSPLA appealed the first award of the lot to Idid Clan, and we noted these background facts in our Opinion:

KSPLA appeals the Land Court’s determination of ownership, awarding [L]ot 054 B 08, located in Idid Hamlet of Koror State, to Idid Clan. In doing so, the Land Court found that this lot, which both the Trust Territory government and KSPLA had been leasing out for many years, corresponded with Tochi Daicho 703, which is listed as owned by Keyukl. In finding for Idid Clan, the Land Court discussed, accurately, the two available types of claims to land held by the government: superior title (private land) claims and return of public lands claims. . . . Importantly, the Land Court noted that Idid Clan filed only a return of public lands claim and that no superior title claim had been presented.
(KSPLA v. Idid Clan, App. 4-005p Op. at 2 (May 26, 2015) (internal citl citationation omit omitted).)
Originally, the Land Court reformed Idid Clan’s return-of-public-lands claim into a superior title claim; with respect to Lot 054 B 08d Clan had fily filed thed the former, not the latter. Then “[t]he Land Court found that the government had never actually acquired the land because thereno eve pred to show how it was acquired.&#ed.”8221; ( (Id. at 2-3.) The Land Court put the burden on the government to prove lawful acquisition. Given the Land Court’s finding that the land had never legally become public, the Land Court naturally found that KSPLA could not prevail under a superior title analysis. On appeal, we held that the Land Court erred in reforming Idid Clan’s claim and awarding the land based on an argument that Idid Clan never made and that KSPLA therefore never had a fair opportunity to contest. Id. at 3-9. However, we declined to direct the Land Court to issue a certificate of title in favor of KSPLA:

First, the Land Court seems to implicitly presume that KSPLA’s unexplained administration of the lot directly indicates acquisition without just compensation. The decision essentially “appear[s] to contend that the mere fact that KSPLA claims . . . the lots at iss itielf, ilf, ipso facto, evidence of a wrongful taking from [their predecessor]. That is plainly not the case. As noted, [private claimants] bear the burden tve thds they claim were taken by force or fraud or werr were obte obtained without just compensation or adequate consideration. .㼠. The fact that that the lands were acquired by a previous occupying power does not itself prove anything wrongful^[3] occurred.” Heirs of Giraked v. KSPLA v. Tellei,, 20 ROP 241, 244 (2013) (citing Palau Pub. Lands Auth. v. Ngiratrang, 13 ROP 90, 94 (2006)); see also Palau Pub. Lands Auth. v. Tab Lineage, 11 ROP 161, 168 (2004) (“The question raised by a claim for the return of public lands is not whether the government acquired the land, but whether” it did so wrongfully or without just compensation.). Some evidence must be presented that the land was wrongfully taken or that it was acquired without just compensation; the Land Court must evaluate that evidence. Cf. Giraked, 20 ROP at 245 (citing Estate of Ngiramechelbang v. Ngardmau State Pub. Lands Auth., 12 ROP 148, 150-51 (2005) (“[W]e find that there was sufficient evidence to support the Land Court’s finding that Rimat did not establish a wrongful taking. Rimat provided the court with no details about who took the land or how the land was taken, other than to state that the land was taken without compensation.”)).
In other words, the Land Court’s apparent presumption is that, where there is no evidence that the Trust Territory acquired land for just compensation, the Trust Territory must not have acquired it for just compensation. If there were some factual or legal foundation offered for this presumption, we would be able to evaluate the reasonableness of the presumption. However, this presumption directly contravenes the Land Court’s statement in its original decision in this case that Trust Territory law required the government to pay just compensation when it acquired private property. (Land Court Original Decision at 8 n.1 (“The Trust Territory government was required to pay just compensation before taking private property. See TTC §3(1) which defines eminent domain . . . .”).) Furthermore, tse absence of proof of a fact is not the same as proof of its opposite. The absence of proof on a subject will nerily to ttrime the party who bears the burden of proof on that subject. The. The Land Land Cour CourtRt’s approach essentially transfers the burden of proof from Idid Clan to KSPLA without requiring Idid Clan to make even a prima facie showing of an acquisition without just compensation.
Second, the Tochi Daicho presumption^[4] is irrelevant to the ultimate resolution of this matter, but the Land Court nonetheless appears to rely heavily on the early-1940s listing of Keyukl as the owner of Lot 703. The Tochi Daicho presumption is typically applied to create a firm starting point from which private claimants can establish a chain of title. Cf., e.g., Ngaraard State Pub. Lands Auth. v. Tengadik Clan, 16 ROP 222, 224 (2009). But, because the Tochi Daicho does not—and logically cannot—speak to what occurred after its compilation, a Tochi Daicho listing has no relevance when the parties agree who owned the land at the time the Tochi Daicho was compiled and the dispute relates only to subsequent events. See Children of Ingais v. Etumai Lineage, 20 ROP 149, 149-50 (2013) (“Ultimately the court determined that because neither party disputed the ownership of a Tochi Daicho lot, neither party had the benefit or the burden of the presumption of accuracy typically afforded to the Tochi Daicho’s listing of the identity of the owner.”).
The Land Court cites to the Tochi Daicho, writing that the land “remains registered under Keyukl,” and that “earlier during the Japanese period, the land remained registered under Keyukl and has so remained.” (Decision on Remand at 1, 4 (emphasis added).) There is, however, no evidence to suggest that the Trust Territory government took over responsibility for updating the Tochi Daicho records, or that it customarily updated Tochi Daicho records when purchasing land from the owners listed in the Tochi Daicho. Accordingly, the fact that the Tochi Daicho records were never updated to reflect new ownership of lot 703 is not probative of whether the Trust Territory government acquired the lot for compensation.
The Land Court’s language instead suggests both that the Land Court continues to view the case from a superior title vantage point and, relatedly, that the Land Court improperly applied the Tochi Daicho presumption. The Tochi Daicho records establish that Keyukl owned the land in the early 1940s when the Tochi Daicho survey was completed. But as we noted in the first appeal of this case, the relevant question is whether Keyukl or his successor in interest was justly compensated for the land when Lot 703 changed hands sometime in the 1950s or later. The Tochi Daicho indicates nothing about that.

3. Even in the face of evidence that leaves a court less than absolutely certain of the proper awardee of land, the court must apply the statutory framework.

The Land Court’s original decision describes as “unjust and absurd” the outcome that KSPLA might be awarded Lot 054 B 08 d Idid Clan7#8217;s use use of the wrong claim form, and despite the lack of an affirmative showing how—or even that—the land became public. But unfatelythe ff imperfect and incomplete information,tion, an a an award ward of the land to either KSPLA or Idid Clan could be incorrect, and the courts must use the statutory structure established by the legislature. The party that bears the burden of proof will fail in the absence of proof. Based on the Land Court’s limited findings of fact thus far, it is just as likely here that Keyukl or an heir transferred the land to the Trust Territory in exchange for just compensation as it is that the government acquired the land without just compensation. Idid Clan bears the burden of proof, and in the absence of factual findings establishing acquisition without just compensation, Idid Clan’s claim cannot succeed.

CONCLUSION

For the foregoing reasons, the Land Court’s decision on remand and determination of ownership of Lot 054;B 08 is VACATEDCATED. The matter is REMANDED to the Land Court for further proceedings consistent with this on. These proceedings shall include a finding, if such a finding is possible given the avai available evidence, as to whether Lot 054;B 08 “becameecame part of the public land, or became claimed as part of the public land, as a result of the acquisity previous occupying powers or their nationals prior to January 1, 1981, through force, coe, coercion, fraud, or without just compensation or adequate consideration.” 35 PNC § 1304(b)(1)t is the determinerminative finding in this case. In keeping with this Opinion, the Land Court is instructed that, in the absence of evidence establishing it is more likean not that Lot 054&#154 B&08 wan wrongfully taken oken or otherwise acquired without just compensation, Idid Clan will have failed to meet its burden of proof on its return-of-public-lands claim, and Idid Clan’s claim must fail.

SO ORDERED, this 29th day of March, 2016.

^[1] Because the Land Court found Tochi Daicho Lot 703 to be the same land as Lot 054 B 08, thinion will use both doth designations.

^[2] We recognize the obvious exception of land acquired by the Trust Territory due to prior Japanese ownp, buause and Coud Court fort found tund that Lot 703 was not transferred to the Japanese, this exception does not appear to apply here. See, e.g., Rechucher v. Ngiraked, 10 ROP 20 (2002) (“Under the September 1954 [sic] ‘vesting order,’ title belonging to the Japanese government or its nationals became vested in the TT, but title to private property owned by Palauans did not.”).

^[3] In a situation such as this one, the Court uses the term “wrongful” not necessarily to indicate moral reprobation, but rather to indicate public acquisition of land subject to the return-of-public-lands law, including a taking without just compensation that may have been done without nefarious motive.

^[4] “[A] Tochi Daicho listing in the name of a superior title claimant is presumed accurate.” KSPLA v. Idid Clan, Civ. App. No. 14-005, Slip Op. at 7 n.6 (May 26, 2015) (citing Kerradel v. Ngaraard State Pub. Lands Auth., 9 ROP 185, 185-86 (2002)).