THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Wito Clan v. United Church of Christ ,
6 FSM Intrm. 129 (App. 1993)

[6 FSM Intrm. 129]

THE WITO CLAN,
Appellant,

vs.

UNITED CHURCH OF CHRIST, MOEN,
and UNITED CHURCH BOARD OF WORLD MINISTRIES,
Appellees,

and STATE OF CHUUK,
Appellee.

APPEAL CASE NO. C3-1992

OPINION

Argued:  February 3, 1993
Decided:  June 24, 1993

BEFORE:
     Martin Yinug, Associate Justice, FSM Supreme Court
     Andon L. Amaraich, Associate Justice, FSM Supreme Court
     Soukichi Fritz, Temporary Justice, FSM Supreme Court*

     *Chief Justice, Chuuk State Supreme Court, Weno, Chuuk

[6 FSM Intrm. 130]

APPEARANCES:
For the Appellant:       Charles Greenfield, Esq.
                                     Micronesian Legal Services Corporation
                                     P.O. Box 38
                                     Tofol, Kosrae  96944

For the Appellees:     R. Barrie Michelsen, Esq.
(Churches)                  Law Offices of R. Barrie Michelsen
                                     P.O. Box 1450
                                     Kolonia, Pohnpei  96941

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HEADNOTES
Constitutional Law ) Judicial Guidance Clause; Custom and Tradition
     Determining the relevancy of custom in carrying out the mandate of article XI, section 11 of the FSM Constitution must proceed on a case-by-case basis.  Wito Clan v. United Church of Christ, 6 FSM Intrm. 129, 132 (App. 1993).

Property
     Because land ownership determinations in the FSM are conducted using different procedures and resources than in the United States, it is not appropriate to adopt the same legal prerequisites to title employed by U.S. jurisdictions.  Wito Clan v. United Church of Christ, 6 FSM Intrm. 129, 133 (App. 1993).

Property
     The issue of indefinite parcel boundaries can be resolved by the state Land Commission subsequent to a declaration of title by the Court.  Wito Clan v. United Church of Christ, 6 FSM Intrm. 129, 133 (App. 1993).

Constitutional Law ) Judicial Guidance Clause; Custom and Tradition; Equity; Remedies
     Where entitlement to customary relief has been proven and the means to execute such a remedy are within the trial court's authority and discretion, the trial court should as a matter of equity and constitutional duty grant the relief.  Wito Clan v. United Church of Christ, 6 FSM Intrm. 129, 133 (App. 1993).

Civil Procedure ) Pleadings
     When an issue not raised in the pleadings is raised at trial without objection by either party and evidence is admitted on the matter, the issue is to be considered tried by implied consent per FSM Civil Rule 15(b).  Wito Clan v. United Church of Christ, 6 FSM Intrm. 129, 133 (App. 1993).

Custom and Tradition ) Chuuk; Property
     The traditional remedy for the original landowners in an "ammot" transaction when the grantee no longer used the land for the purpose for which it was given was repossession of the land and nothing more.  Wito Clan v. United Church of Christ, 6 FSM Intrm. 129, 134 (App. 1993).

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[6 FSM Intrm. 131]
 
COURT'S OPINION
MARTIN YINUG, Associate Justice:
     Appellant Wito Clan (hereinafter "Clan") appeals the trial court's denial of its counterclaim against appellees United Church of Christ and United Church Board of World Ministries, seeking judgment of title to a parcel of land known as Faior in Mwan village and damages for past use in violation of a land agreement. The trial court indicated in its findings and judgment that its decision not to grant the relief sought by the Clan was based on the Clan's failure to prove the boundaries, dimensions and location of Faior.  The Clan argues these issues were not properly before the Court since they were not contested in the pleadings or pretrial statements.

     The Clan also argues that the trial court failed to give effect to applicable custom as required by the Judicial Guidance Clause, article XI, section 11 of the FSM Constitution, in refusing to award title after finding that the Clan was entitled to possession of Faior as a matter of custom.  The Clan further alleges that the Court erred in not awarding past use compensation after it found that a violation of the deed had occurred in 1973.

     We disagree with the appellant regarding the issues of boundaries and past use compensation.  However, we find that as a matter of equity and constitutional duty the trial court should have awarded title to Faior to the Wito Clan.

I.  SUMMARY OF FACTS
     In 1884 a group of Mwan villagers, among them an ancestor of appellant Wito Clan, deeded five parcels of land to the American Board of Commissioners for Foreign Missions of Boston, Massachusetts [hereinafter "American Board"].  The land was given "forever, to be used for the purposes for which said board is organized."  The American Board was organized for religious purposes.  One of the five parcels granted was Faior, which the Wito Clan claims in this action.

     The American Board erected Logan Memorial Church on the deeded premises.  The American Board later transferred its interest in the land to appellee United Church Board of World Ministries  [hereinafter "United Church Board"], which began operating Mizpah High School as a religious high school in 1966.  On June 25, 1973, the United Church Board leased a portion of the land, where Mizpah High School was located, to the Trust Territory of the Pacific Islands (TTPI) for $300,060 for a term of sixty years.  The lease provided for the land to be used for public education and other public activities.  In 1981 the United Church Board transferred its interest in all of the Mwan property, including the TTPI parcel, to the United Church of Christ, Moen [hereinafter "Local Church"].

     Both the Clan and the United Church Board claim fee simple ownership of the land deeded in 1884.  The Clan asserts a reversionary interest in the property based on its belief that the land was not an absolute gift to the Church but a limited grant of usage rights.  The Clan charges the Church Board violated the terms of the original grant when it leased part of the property to TTPI in 1973 for secular schools, and as a result the Clan is entitled to repossession of its land. The Church Board and the Local Church argue that the original 1884 grant gave them, through their predecessor in interest the American Board, absolute fee simple ownership and created no residual interest in the Clan.

     The State of Chuuk is involved as a successor lessee to TTPI.  By the provisions of the

[6 FSM Intrm. 132]

1973 lease, the State is entitled to a return of lease payments made to the Church Board if it is ever adjudicated that the Church does not own the land.

II.  APPLICATION OF CUSTOM
     The Supreme Court of the FSM is indisputably charged with the duty of considering customary law where relevant to a decision.  FSM Const. art. XI, 11.  Rare is the case, however, where the Court benefits from clear, uncontradicted evidence of custom on point in a given matter presented by knowledgeable authorities.  The great difficulty in applying custom is that unlike other sources of law, it is uncodified.  Custom is revealed through human practice and oral description, and owing to the diversity of cultures and languages in the FSM the Court must rely almost entirely on witness testimony to elucidate particular customs and traditions.

     Another difficulty in applying custom is that most court cases involve transactions or behavior distinctly non-customary and often nonlocal.  Thus, for example, the FSM Supreme Court has found custom inapplicable in cases involving business contracts and licenses, see Mailo v. Twum-Barimah, 2 FSM Intrm. 265 (Pon. 1986); Semens v. Continental Air Lines, Inc., 2 FSM Intrm. 131 (Pon. 1985), foreign shipping agreements, see Panuelo v. Pepsi Cola Bottling Co. of Guam, 5 FSM Intrm. 123 (Pon. 1991); FSM v. Ocean Pearl, 3 FSM Intrm. 87 (Pon. 1987), and international extradition, see In re Extradition of Jano, 6 FSM Intrm. 23 (App. 1993).
 
     Determining when and how custom is relevant must proceed on a case-by-case basis.  The Court must consider whether the type of issue central to the dispute is one that would normally be decided with reference to custom. Property is one area of law in the FSM which clearly invokes reference to traditional practices.  That land matters may often involve non-customary elements such as written leases and survey maps does not supplant the relevancy of custom in decision-making.

     In the present case the trial court heard expert witness testimony concerning traditional land practices in Chuuk, offered to help interpret the 1884 deed. Based on this testimony the trial court found that the deed gave use rights only to the grantee American Board for so long as Faior was used for religious purposes.  The term "ammot" applied to the land transaction, describing situations in which under Chuukese custom use rights to land would be given to nonlocal persons without land of their own.  The original owner retained title and the right of repossession if the terms of the agreement for use were violated. Thus the Wito Clan retained residuary title to Faior, which it could claim beginning in June 1973 when the property was leased for secular purposes in breach of the agreement.  This finding is not disputed by any of the parties.

     Although the trial court concluded that the Wito Clan was entitled to repossess Faior, it declined to render judgment of title for the reason that the Court could not determine the location, size and boundaries of the property other than that it was somewhere within the general tract of the 1884 deed.  While we agree with the trial court's assessment that the exact location and size of Faior were not proven by a preponderance of evidence at trial, we disagree that the lack of such proof precluded declaring title to the land.

     The appellees cite several American legal sources in support of the view that title to property cannot be declared before the property is described and located with certainty.  This Court, however, does not automatically accept the common law of other jurisdictions without considering its appropriateness with respect to Micronesian values and the geographical and social conditions within the FSM. FSM Const. art. XI, 11.  Land recordation and registration procedures

[6 FSM Intrm. 133]

in the United States vary significantly from those in the FSM, where written records of ownership and boundaries are still the exception rather than the norm. Formal land registration has only been conducted sporadically for about forty years in the FSM.  There are still many unsurveyed and uncertified parcels of land today whose boundaries can only be ascertained through oral history.  For this reason we believe it is not appropriate to rely on the same legal standard of proof employed by U.S. jurisdictions with regard to determination of land ownership.

     The question then arises whether it is possible to give effect to custom in cases such as the present where personal recollections and oral descriptions of land parameters vary.  We think it is, for the reason that procedures exist for determining the physical boundaries of a parcel of land after ownership has been determined.  The Chuuk Land Commission is vested with the authority to determine ownership and also boundaries.  See 67 TTC 101 et seq.  The Land Commission may refer claims of ownership to the Court for adjudication.  If the Court makes an ownership decision,  it certifies the decision to the Land Commission for issuance of a certificate of title.  Subsequent to a determination of ownership and prior to a certification of title, the Land Commission establishes final boundaries.

     The Land Commission has not been actively involved in this case since it was referred to the Court.  However, we see no reason why it should not be involved at this stage, after the trial court has concluded that Faior belongs to the Wito Clan.  There is no legal impediment to referring the issue of boundaries of Faior to the Chuuk Land Commission after declaring title to the parcel in the Wito Clan. Exercising this option would give effect to the customary land transaction in a manner not contrary to other existing law.

     We find that the trial court erred as a matter of law in failing to afford the customary relief in this case.  Our rules of civil procedure mandate that "every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleadings."  FSM Civ. R. 54(c).  Under the law of equity, where a wrong has been committed but no adequate remedy at common law exists, the Court must apply appropriate equitable principles to cure the defect.  27 Am. Jur. 2d Equity 120, at 647 (1966).  Where a practicable resolution of a dispute exists the Court must endeavor to effect it.  In the present case the trial court should have applied the customary principles adduced at trial to declare ownership of Faior in the Wito Clan, leaving the issue of exact location and boundaries of the parcel to the Chuuk Land Commission for independent determination.

III.  RULE 15(b)
     The Wito Clan argues that the issue of boundaries was never properly before the trial court because it was not contested in the pleadings or pretrial statements.  The Clan asserts that the appellees admitted the size, location and boundaries of Faior in their answer to the Clan's first counterclaim.  However, a review of the language of the counterclaim reveals that the description therein was of general boundaries of the overall tract with no explicit reference to Faior. Thus, as a factual matter, the appellees cannot be deemed to have agreed in the pleadings to any explicit boundaries of Faior.

     Moreover, we find that the boundary question was raised and argued at trial. Therefore, under FSM Civil Rule 15(b), the issue was properly before the trial court as an issue "tried by express or implied consent of the parties."  Implied consent to try a new issue not raised in the pleadings is demonstrated by a party's failure to object to evidence directly pertaining to that issue.  6A Charles A. Wright et al., Federal Practice and Procedure 1493, at 24 (1990).  At trial the Wito

[6 FSM Intrm. 134]

Clan not only failed to object to direct testimony concerning boundaries of Faior, but in fact the Clan was the first to introduce such testimony and produced more than one witness on the subject.  We reject, therefore, the Clan's objection on appeal that the boundary question was not a triable issue.  However, as discussed in the previous section, we determine that this issue should be remanded to the Chuuk Land Commission for decision.

IV.  PAST USE COMPENSATION
     The Clan claims damages for past use of Faior in violation of the customary land agreement.  It urges the Court to use as a measure of damages the amount paid by the Trust Territory government to the United Church Board for the 1973 lease, arguing that the Church was unjustly enriched by this amount.  We do not find sufficient grounds for employing this approach to compensation.  Since the 1973 lease apparently covered land in addition to Faior, the Court is without information to determine precisely what portion of the lease payment might be fairly attributable to Faior because the boundaries of Faior have not yet been established.  Also, Chuuk State is a party to this action and reserves the right, based on the contract between TTPI and the United Church Board, to assert a claim for reimbursement of rental money paid to the Church Board.   It is not clear at this time by what amount, if any, the Church Board could be said to have gained at the landowner's expense.

     Furthermore, the trial record indicates that the traditional remedy in "ammot" was for the original landowner to repossess his property and nothing more.  No evidence was introduced at trial to the effect that a landowner would receive monetary or other compensation in addition to repossession of the land for violations of "ammot."  We conclude, therefore, that the relief to which the Clan has proven it is entitled is the customary remedy of repossession.  This remedy will be effectuated once the boundaries of Faior are determined.

V.  CONCLUSION
     The ruling of the trial court dismissing the Wito Clan's counterclaim for title to Faior is hereby reversed.  The case is remanded to the trial court to enter judgment in favor of the Clan's title counterclaim, and the trial court is further instructed to refer the determination of boundaries of Faior to the Chuuk State Land Commission.  Once the boundaries have been determined and certified the trial court shall order the Wito Clan's repossession of Faior.  The trial court's dismissal of Chuuk State's counterclaim for a rental refund is vacated, and such claim is hereby reinstated without decision.  The ruling dismissing the Clan's counterclaim for past use compensation is affirmed.

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