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Supreme Court of Palau |
| NGERIBUKEL CLAN, represented by Iyechadribukel Theodore “Ted” Aitaro, Appellant, v. NGERIBKAL CLAN, HENRY BLESAM, and KOROR STATE PUBLIC LANDS AUTHORITY, Appellees. |
| NGERIBKAL CLAN and THE ESTATE OF CARLOS SALII, represented by Bilung Gloria Salii, Appellants, v. KOROR STATE PUBLIC LANDS AUTHORITY, Appellee. |
| LUII’S CHILDREN, Appellant, v. KOROR STATE PUBLIC LANDS AUTHORITY AND NGERIBKAL CLAN, Appellees. |
| PAULINE INA RIVERA, Appellant, v. NGERIBKAL CLAN and HENRY BLESAM, Appellees. |
| HATSUICHI NGIRCHOMLEI, Appellant, v. NGERIBKAL CLAN, Appellee. |
Cite as: 2017 Palau 33
Civil Appeal Nos. 15-031, 15-032
A from LCom LC/B Nos. 08-377, 08-379, 08-395, 08-398, 08-399,
08-402 through 08-406, 08-408, 11-0174 through 11-0178
Decided: October 20, 2017
el for Appellants
Ngeribukel Clan Brien Sers Nicholicholas
Ngeribkal Clan Johnson Toribiong
Pauline Ina Rivera Tamera Hutzler
Hatsuichi Ngirchomlei Salvador Remoket
Luii’s Children Vameline Singeo
Estate of Carlos Salii Johnson Toribiong
Counsel for Appellees
Ngeribkal Clan Yukiwo P. Dengokl
Henry Blesam Yukiwo P. Dengokl
Koror State Public Lands Authority Natalie Durflinger
BEFORE: ARTHUR NGIRAKLSONG, Chief Justice
R. BARRIE MICHELSEN, Associate Justice
DENNIS K. YAMASE, Associate Justice
Appeal from the Land Court, the Honorable Salvador Ingereklii, Associate Judge, presiding.
OPINION
PER CURIAM:
[ 1] appeal arises from the Lthe Land Court’s award of ownership of five areas of land in Ngerbeched Hamlet. The Land Court awarded the lots which comprise Claim 41[2] Public Parcel No. 5,[3] and Claim 151 to the Koror State Public Lands Authority (“KSPLA”).
[ 2]ppeal, Ngeribkal Clan argn argues that in addition to Claim 41, it should have been awarded Claim 89 and Public Parcel 5 on its n of public lands claim. Ngeribukel Clan claims that it should have been awarded all lots lots at issue in this appeal on either its superior title claim (with regard to Worksheet Lot 05B002-138) or its return of public lands claim (with regards to the remaining lots). Luii’s Children (“Luii”) claims they should have been awarded Tochi Daicho Lots (“TD Lots”) 1163 & 1164 (which they place within Claim 89 and Claim 41) on a return of public lands claim. The Estate of Carlos Salii (“the Estate”) claims it should have been awarded TD Lots 1163 because Carlos Salii was deeded that lot in 1979 by two of Luii’s Children as payment for legal fees. Pauline Ina Rivera (“Rivera”) claims that she should have been awarded Worksheet Lot 05B002-138 on her superior title claim and Worksheet Lots 05B002-069, 05B002-188, 05B002-071 & 05B002-072 within Claim 41 on her return of public lands claim. Hatsuichi Ngirchomlei (“Ngirchomlei”) claims he should have been awarded a portion of Lot 05B002-071 within Claim 41 on his superior title claim. For the reasons that follow, we affirm the determinations of the Land Court.
BACKGROUND
[ 3] With theption of Worksherksheet Lot 05B002-138, the lands at issue in this appeal were all public lands which have been leased from KSPLA by various individuals. Theseic lands had all been previously owned by the Trust Territorritory government, which itself acquired ownership from the Japanese at the end of World War II.
[ 4] The lands discussed n asin as Claim 41 and Claim 89 are so labeled in reference to Ngeribkal Clan’s attempts to claim these areas in the 1950s. In 1955, Hosei Rivera Ngeribkal filed Claim 41, which claimed this area had been sold inld in 1937 for 9000 yen, only 1000 of which was received by the clan. Hosei Rivera claimed that the clan did not want to sell the land, but did so after the Japanese told him that he would be arrested and sent to Tobi or Sonsorol if the clan did not sell. This sale resulted in the Japanese Company Nangio Takaoku Co. being listed as the owner of TD Lots 1154, 1155, 1155-1, 1155-2 & 1156 at the time the Tochi Daicho listing was completed. The Land Court found that Ngeribkal Clan had proven its return of public land claim for this area and awarded it the land contained within Claim 41.
[ 5] I6, Baules Sechelong filg filed Claim 89 and claimed that this area had been forcibly purchased from the Ngeribkal Clan’s cin 1939 for inadequate compensation. The Land Court did not address whether Ngeribkal Clan Clan had shown that it was the prior owner of the land within Claim 89 or whether this land had been wrongfully taken by the Japanese. It only held that Ngeribkal Clan’s claim for these lots was untimely under 35 PNC ل(b)’s JanuaJanuary 1, 1989 deadline.
[ 6] Othen the above mentionetioned listing for Nangio Takaoku Co., the Tochi Daicho for this area listed various clans or individua the s of the propertyperty. The Tochi Daicho lists Merar (former title holder of Ngeribkal Clal Clan and grandfather of Ngirchomlei) as the owner of TD Lots 1157 & 1158; Ngirusong (grandfather of Blesam) as the owner of TD Lots 1161 & 1162; and Luii (former title holder of Ngeribukel Clan and father to Itelbang Luii, now deceased, who filed the claim being adjudicated in this action) as the owner of TD Lots 1163 & 1164. The Tochi Daicho also lists Hosei Rivera (former title holder of Ngeribkal Clan, claimant in Claim 41 as discussed above, and father of Rivera) as the owner of TD Lot 1180, but as discussed below, the Land Court found that this TD Lot was located elsewhere.
[ 7] Additional relevant facts related to each claimant will be summarized when discussing their individual claims below.
STANDARD OF REVIEW
[ 8] “Wiew the Land Coud Court’s conclusions of law de novo and its findings of fact for clear error.” Kebekol v. KSPLA, 22 ROP 38, 40 (2015). he factual determinations of the lower court will be set aset aside only if they lack evidentiary support in the record such that no reasonable trier of fact could have reached the same conclusion. Where there are several plausible interpretations of the evidence, the Land Court’s choice between them shall be affirmed even if this Court might have arrived at a different result.” Eklbai Clan v. KSPLA, 22 ROP 139, 141 (2015) (quotation omitted).
In a return of public lands case, the claimant must show that a piece of property became public land "through force, coercion, fraud, or without just compensation or adequate consideration in addition to showing a proper connection to the land. 35 PNC § 1304(b)(1)-(2). At all times, the burden of proof remains on the claimants, not the governmental land authority, to establish by a preponderance of the evidence, that they satisfy all requirements of the [Land Registration Act]."
[ 9] Clan v. Koror State Publ Public Lands Authority, 20 ROP 270, 273 (2013) (citing Palau Pub. Lands Auth. v. Ngiratrang, 13 ROP 90, 93 (2006).
A claimant meets his preponderance ofevidence burden "when the [the [Court] is satisfied that the fact is more likely true than not true." 29 Am. Jur. 2d Evidence § 173 (2d ed. 2008). If the claimant fails to convince the Court that all requisite elements of his claim are more likely true than not true, then the Court cannot rule in his favor.
[ 10]n the Matter of Land ided identified as Lot No. 2006 B 12-002, 19 ROP 128, 134, 135 (2012).
DISCUSSION
I. Ngeribkal Clan’s Appeal
[ 11] Ngeribkal Clan tted thrd three separate claim forms for the lands at issue in this appeal. The first was filed on December 30, 1988 by Ngirurrengulbai claiming “Bkulatiul, including Lot Nos. 1154, [1155,] 1155-1, 1155-2 and 115d 1156” (the “1988 Claim”). The second was filed on May 26, 1998 by Hiroko Sugiyam and claims TD Lot Nos. 1157 & 1158 (the “1998 Claim”). The last one was filed on May 11, 2005 by Hiroko Sugiyama, which claimed ownership of “Tiul, Ngerbeched,” known as “Claims No 4 No 41, Claim No 151 & Claim No 89, Public Parcel No. 5” (the “2005 Claim”).
[ 12] As noted above, bkal Clal Clan prevailed on its return of public lands claim for Claim 41. KSPLA does not appeal this award, although some other appellants are challenging the award of these lots to Ngeribkal Clan because they have their own claims for some or all of this land. Those arguments will be addressed as necessary in subsequent sections.
[ 13] bkal Clan appeals the Lthe Land Court’s determination for those lots located within Claim 89 and Public Parcel No. 5, whice awarded to KSPLA because they are listed as public land and no claimant was able to show show that they should be returned. With regards to Claim 89, the Land Court found that Ngeribkal Clan’s 1988 Claim did not cover these lots, and that its 2005 Claim for this land was untimely. With regards to Public Parcel No. 5, the Land Court rejected Ngeribkal Clan’s arguments that this land was part of TD Lot 1155-2,[4] finding that TD Lot 1155-2 was entirely within Claim 41 and did not include Public Parcel No. 5.
A. Claim 89
[ 14] Ngeribkan argues that that the January 1, 1989 deadline for Return of Public Lands Claims in 35 PNC § 1304(b) violates the mandate of Article XIII, § 10 of tnstitution, and so the Land Court should have addressed itsd its claim on the merits even if its claim was untimely. We reject this argument for the reasons recently explained in KSPLA v. Rubekul a Meyuns, 2017 Palau 7, 25-32.
[ 15] In the alternative, Ngeribkal Clan argues that the Land Court should have found that its claim was timely because the 1988 claim covered Claim 89 as well as Claim 41. Ngeribkal Clan’s argument on this point rests only on the 1988 claim’s description of the land claimed as “Bkulatiul, including [Lot Nos.],” which it claims indicates that the listed TD Lots are a non-exhaustive list. Having thoroughly reviewed the 1988 Claim and the evidence presented to the Land Court regarding its filing, we hold that the Land Court did not err in finding that the 1988 claim did not cover lots outside of Claim 41.
[ 16] As noted a Claim 89 was9 was claimed by Baules Sechelong in a separate action from Hosei Rivera’s Claim 41. These two claims allege that different areas of land were sold at different times by different Ngeribkal Clan title holders for different sums of money, and under different threats from the Japanese as to what they would do if the clan did not agree to the sale. The 1988 Claim lists those facts underlying Hosei Rivera’s Claim 41, including the TD Lots which correspond to that claim and the specific cases in which his Claim was resolved by the Trust Territory Courts. However, it makes no mention of the facts underlying Baules Sechelong’s Claim 89, the TD Lots corresponding to that claim, or the Trust Territory court cases resolving that claim.
B. Public Parcel No. 5
[ 17] Ngeribkan argues that that the Land Court erred by dismissing its claim to lots in Parcel 5 because Ngeribkal Clan did not monument the boundaries to TD Lot 1155-2 on it bases its claim. It focuses on the Land Court’s 17;s boilerplate language that it “will not award ownership of land whose boundary [is] not properly delineated” to argue that the Land Court found it had proved a return of public lands claim as to at least some of Public Parcel No. 5, but it did not awarded that land to Ngeribkal Clan because it found that those boundaries were unclear. However, a careful reading of the Land Court decision shows that it actually dismissed Ngeribkal Clan’s claim to Parcel 5 because it found that this area was not part of TD Lot 1155-2 or otherwise included in Claim 41, the only area to which it found Ngeribkal Clan had filed a timely return of public land claim.
[ 18] The proper locationochiTochi Daicho lots and their correspondence with Worksheet Lots is a factual determination by the Land Court, which is reviewr Clear Error. Idid Clan v. Demei, 17 ROP 221, 227 (2010). Ngeribkal Clan does nots not directly address the Land Court’s finding; instead it simply asserts that “Parcel 5 is drawn within Claim 41” and that “Parcel 5 was superimposed over TD 1155, 1155-1, and 1155-2.” However, the maps it cites to do not show these TD numbers, and in fact show Claim No. 41 and Public Parcel No. 5 as distinct parcels of land. The official worksheet map provided by BLS also clearly shows that Claim 41 does not include Public Parcel No. 5 within its boundaries. The Land Court’s factual finding that these maps were correct is not clearly erroneous.
II. Ngeribukel Clan
[ 19] Appellaeribukel Clan clan claims ownership of all lots at issue in this appeal based on its historical status as one of the four saus of Ngerbeched and the traditionaly of how it and the other three saus were given Ngerbeched ched by the Ibedul after defeating the people of Ngerkebesang. However, it presented no evidence of any actions taken by Ngeribukel Clan with regards to the lots at issue in this case between the clan’s migration to Ngerbeched and the return of public lands claim filed by the clan on December 12, 1988. The Land Court found that Ngeribukel Clan likely owned these lots at some point in the past, but that it had not met its burden to show that it owned the lands at issue immediately prior to those lands becoming Japanese property. Ngeribukel Clan now argues that this finding by the Land Court was clearly erroneous, but does nothing more than frivolously “re-state[] the facts in the light most favorable to the appellant and contends that the Land Court weighed the evidence incorrectly.” Kebekol, 22 ROP at 46.
A. No Error in the Land Court’s Factual Findings
[ 20] Ngeribulan argues that that the land court erred by failing to credit the testimony of Iyechadribukel Aitaro, Lucas, and Mobel, which they argue shows that Ngeribukel owned “the lands at issue in this appeal at all timestimes relevant herein” and that the Japanese Government took this land without just compensation. However, this testimony only concerns Ngeribukel Clan’s role in the conquering of Ngerkebesang and its position as one of the four saus of Ngerbeched. It does not address whether Ngeribukel Clan owned the land immediately prior to the Japanese acquisition. “Where evidence is subject to multiple reasonable interpretations, a court’s choice between them cannot be clearly erroneous even if this Court might have arrived at a different result.” Kebekol, 22 ROP at 40. The Land Court’s interpretation of this testimony was reasonable, and so will not be disturbed on appeal.
[ 21] NgeribClan also argues gues that there was no evidence that it had ever lost ownership of these lots, and therefore the Land Court erred in finding that it did not own them. However, evidence that Ngeribukel Clan lost ownership is unnecessary. Under Palauan law “an uninterrupted chain of title is unnecessary to prove ownership of property, so long as the ownership is supported by other adequate evidence,” such as extended uninterrupted use and possession of the property. KSPLA v. Ngirngebedangel, 20 ROP 210, 214 (2013). There is no requirement for claimants, including Public Lands Authorities, to establish how they acquired land, and “a court may infer a valid transfer of land to a claimant when that claimant has occupied the land without objection for a significant period of time.” See Obak v. Joseph, 11 ROP 124, 128 (2004).
[ 22] Ngeri Clan further argu argues that the Land Court erred by using the fact that it did not file any claims to these lots during the Trust Territory period as evidence against its claim, and argues that doing so “is no different than saying that Ngeribukel has no claim because of [latches, stale demand, or waiver],” which is expressly prohibited in return of public lands cases by 35 PNC § 1304(b)(2). But the Land Court’s decision “had nothing to do with the prohibited legal doctrines and everything to do with Appellant’s failure to meet its burden of proof.” Tmetbab Clan v. KSPLA, 16 ROP 91, 94 (2008). It simply used Ngeribukel Clan’s inaction for over 40 years as evidence that it did not own these lots at the time they were acquired by the Japanese. “Under Palauan law, a claimant’s failure to perform acts consistent with ownership may be circumstantial evidence that the claimant does not . . . own the land in question.” Tucherur v. Rudimch, 21 ROP 84, 87 (2014). Such evidence may be overcome, but Ngeribukel Clan did not provide any affirmative evidence which could have overcome it.
B. Arguments regarding Ngeribkal Clan and Henry Blesam
[ 23] Ngeribulan also makes fkes frivolous arguments that Ngeribkal Clan and Henry Blesam should not have been awarded the land they were given. With regards to Ngeribkal Cit argues that that clan’s unsuccessful attempts to o to obtain Claim 41 and Claim 89 in the 1950s and 1960s should have been given preclusive effect by the Land Court and prevented it from claiming those lands in this case. This argument is absurd. The return of public lands statute explicitly provides that “res judicata or collateral estoppel as to matters decided before January 1, 1981” shall not apply to claims for public land by citizens of the Republic. 35 PNC § 1304(b)(2). The law is equally clear that in “claims and disputes still pending to public lands,” the Land Court is not required to give preclusive effect to prior judgments. 35 PNC § 1310(b).
[ 24] With regao Blesam, Nger Ngeribukel Clan argues that the Land Court should have dismissed his superior title claim because he did not present affirmative evidence to the Court. It is true that claims which are “not timely mely filed shall be forfeited,” 35 PNC § 1309(a), but once a timely claim is filed there is no automatic legal basis for holding that a claimant has forfeited that claim due to inaction. We have explicitly held that although “fail[ing] to appear [at a Land Court hearing] can be fatal to a party’s case,” a party does not abandon its claim by failing to appear. Ngermechesong Lineage v. Children of Oiph, 11 ROP 196, 197 (2004). Indeed, we have previously noted that “a party listed in the Tochi Daicho who filed a claim could prevail even if it failed to appear at the hearing if the parties who appeared did not present sufficient evidence to rebut the presumption of the Tochi Daicho listing.” Id. That is essentially what happened here. The Tochi Daicho lists Ngirusong as the owner of TD Lots 1161 & 1162, and the Land Court credited the testimony of Hiroko Sugiyama (representing Ngeribkal Clan) and Felix Francisco (representing the Children of Luii) that these TD Lots correspond to Lot 05B002-138, and that this land is owned by Ucherriang, the daughter of Ngirusong and mother of Blesam. Ngeribkal Clan does not point to any evidence which would rebut the Tochi Daicho listing, dispute the identified location of these TD Lots, or call into question whether Blesam is Ngirusong’s proper heir.
III. Luii’s Children
[ 25] The Chi of Luii assert sert the claim of Itelbang Luii (now deceased) who filed a return of public lands claim asserting that a portion of the land covered by Claim 89Claim 41 were owned by his father and had been occupied andd and used by Luii and his family. The Tochi Daicho lists “Luii” (the father of Claimant Itelbang Luii and grandfather of the named children of Luii) as the owner of TD Lots 1163 and 1164, and is the basis for the Children of Itelbang Luii’s claim. Luii first filed a claim for this land in 1977 and filed an additional return of public lands claim in 1988.
A. Land Court's Finding of Facts and Conclusions of Law
[ 26] With re to the claim ofim of the Children of Luii, the Court accepted as evidence the exhibits they presented "and consider[ed] them as evidence supporting the claim in this proceeding." Land Court On (First Phase) at 19.
[ 27] That evidence was asowsllows: In 1977, Itelbang Luii claimed TD Lots 1163 and 1164 as heir to his deceased father, who was listed in the Tochi Daicho. At the time of the monumentation in 1986, he wrote to the KSP explain why he was not acct acceding to its claim of ownership, or its demand he pay rent. "It has been more that [sic] half a century that I have been occupying the land. The only period during which I have not occupied the land was between 1944 and 1945, when I was forced to flee to Babeldaob because of the hostilities of the war. In 1946 when I returned I built my house on the same land and have been living on the land up until now....When the war was over the Trust Territory Government continued to assert its claim on the land."
[ 28] Other exhibits preseandd and admitted during the hearing show that the monumentation for Tochi Daicho Lot Numbers 1163 and 1164 took place on January 17, 1977. Claimant Itelbang Luii did the original monumentatiothat time. Further evidencedence presented by claimant's witness Francisco shows that during the second claim period in 2005, he went to that monumentation to show the markers originally placed by Itelbang Luii. Mr. Francisco also testified at length as to the boundaries as shown to him by Itelbang Luii. At trial, Mr. Francisco marked these boundaries. Court's Exhibit 1-A. The required monumentation therefore occurred in 1977 and 2005.
The Land Court determined:
"Evidence adduced did show that TD Lots 1163 and 1164 are listed as individually owned by Luii and there was no evidence presented to show that the listing was wrong."
"Evidence further showed, as illustrated by Mr. Felix Francisco on Court Exhibits A & A-1, that TD Lots 1163 and 1164 are within Claim 89-part and Claim 41-part..." Land Court Opinion (First Phase) at 19.
"Evidence showed that Itelbang Luii [son of Luii], a citizen, filed a timely return of public land claim for ownership of Lots 1163 & 1164." Id.
"[T]he Children of Luii [Itelbang Luii died prior to the hearing] failed to show who owned them [the Tochi Daicho lots] before they were taken. They further failed to provide substantive evidence to support their contention that there lots were taken without compensation or adequate consideration. To simply state that the land was taken without compensation without any substantive evidence to support such statement is not enough to establish ownership." Id. at 19-20.
[ 29is not clear what a "subs"substantial evidence" standard involves, but it certainly suggests a burden greater than the prepondertest that is well established by case law. This case must be remanded for the Court to use use that standard to determine whether the claimants proved, by the preponderance of the evidence, that Luii's Tochi Daicho lots, claimed by the post-war government, were acquired by force or without compensation, keeping in mind that this Court has specifically rejected the notion that "a statement that land was taken without compensation is insufficient to carry a claimant's burden of proof as to a wrongful talking." Heirs of Giraked v. Koror State Public Lands Authority, 20 ROP 241, 247 (2013). (claimant Ngirmeriil's credible testimony that mother and uncle told him that the Japanese took the land to farm pineapples and as a buffer for a Japanese shrine sufficient to support claim.)
- See also, Palau Public Lands Authority v. Ngiratrang, 13 ROP 90 (2006), where the successful claimant on a Return-of-Public-Lands claim relied solely on recitation of family history. "In the absence of an alternative means of acquisition by the Japanese Administration, the Land Court credited Sakuma's credible testimony regarding his family's ownership and the subsequent appropriation without compensation by the Japanese." Id. at 93.[5]
- [ 31] The reason that thirt hurt has never required additional evidence to support credible testimony regarding lack of compensation is the difficulty of proof. If one asserts that no pt has been made, what other proof will the claimant have, ave, absent an admission from the one responsible for the payment?
- [ 32] Certathere have been ceen cases where statements in similar cases were held not credible by the Land Court. In the Heirs of Giraked case, the witness for Adacheirs testified that it was his "understanding" that the prhe property was "not bought." Such testimony was held insufficient. Id. at 245. In the same case Katey Giraked's testimony was that her father never told her that the land was purchased by the Japanese, and she did not know how the land was acquired by the government. The Court upheld the Land Court's decision that such testimony failed to meet the preponderance burden. Id. at 246.
- [ 33] Another example is Estate of Ngirachelbang v. Ngardmau State Pub. Lands Auth., 12 ROP 148, 150 (2005) ("Rimat provided the Court with no details about who took the land or how the land was taken, other than to sthat the land was taken witn without compensation.")
- [ 34] In this case, on remand, the Land Court will have to make a finding as to the credibility of the written statements of Itelbang Luii, and determine whether such evidence is more like the evidence of the prevailing parties in Ngiratrang and Heirs of Giraked or similar to the non-prevailing parties in Giraked and the Estate of Ngirachelbang case[6].
- [ 35] Thet should also considonsider, in determining the credibility as was noted in Ngiratrang, supra, whether there are alternatxplanations as to how the Japanese government would have come in to possession of the propeproperty. Although KSPLA has no burden to prove ownership, the uncontroverted evidence in this case was that its ownership comes from the Japanese Government's taking of the property that only occurred after 1940. The well-known history of that period can be considered.
With the militarization of the islands in the years prior to and during the Pacific War, however, the place of Micronesians on their land, like all other aspects of their life under Japanese rule, drastically worsened. House, beaches, agricultural plots, recreational areas, all lands and buildings deemed necessary for the Japanese defense of the islands were seized by the military, at first with monetary compensation, and then, as the islands were either attacked or besieged in the last few years of the war, without any payment whatsoever.
Peattie, NANYO, THE RISE AND FALL OF THE JAPANESE IN MICRONESIA, 1885-1945, Univ. of Hawaii Press, 1988, p. 99-100
"In the late summer of 1943, massive shifts of island people began, to make way for the troops and new defensive installations. All the Palauan residents of Koror were relocated to a village in Aimeliik in southern Babeldaob that was soon referred to as the Second Koror."
Hezel, STRANGERS IN THEIR OWN LAND, Univ. of Hawaii Press, 1995, p. 225.
[ 36]hort, in Return-of-PubliPublic-Lands cases, "[i]t is not error to consider the absence of evidence supporting alternative theories in evaluating the probative value of the evidence proffered b claimant." Koror State tate Pub. Land Auth. v. Idid Clan, 22 ROP 21, 25 (2015).
