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Muller v Makroro [1971] TTLawRp 55; 5 TTR 570 (10 December 1971)

5 TTR 570

HENRY MULLER, Plaintiff

v.

CLANCY MAKRORO and JABLUR, Defendants

Civil Action No. 432

Trial Division of the High Court

Marshall Islands District

December 10, 1971

See, also, 5 T.T.R. 465

Action to determine distribution of condemnation payment between iroij, alab and dri jerbal. The Trial Division of the High Court, D. Kelly Turner, Associate Justice, held that in the absence of agreement between the parties the condemnation payment would be divided equally between them.

Eminent Domain-Compensation-Division of Proceeds

Where the iroij, alab and dri jerbal could not unanimously agree on the distribution of payments for land taken for government use, the court would divide the proceeds equally between them.

TURNER, Associate Justice

RECORD OF HEARING

This action is a sequel to the decision in Clancy Makroro v. Jablur Kokke, 5 T.T.R. 465, which held Clancy to be senior dri jerbal and Jablur to be the alab of Komlal Wato, Rairok Island, Majuro Atoll. The judgment, corrected by Supplemental Order and Judgment entered as result of the trial of the present case, 5 T.T.R. 569, ordered the distribution of Trust Territory government condemnation payment of eleven thousand one hundred eighty-eight dollars ($11,188.00) for 25 years lease to the interest holders in the land. The plaintiff Henry Muller was held to be the iroij erik in Muller v. Maddison, 5 T.T.R. 471. There is no iroij lablab for the land because it is on "Jebrik's side" of Majuro Atoll. (See Levi v. Kumtak, 1 T.T.R. 578.) The defendant Jablur (also known as Lijablur) was held to be alab of Komlal and Jabonbar Wato in Beklur v. Lijablur, 2 T.T.R. 556.

The title was affirmed by the holding in Clancy v. Jablur, 5 T.T.R. 465, which also denied Jablur's claim to dri jerbal interests and held Clancy Makroro was senior dri jerbal. The condemnation payment by the government was to all three interest holders, leaving it to them to decide upon the division. The parties being unable to agree upon the division, this action was brought. The plaintiff and the defendant alab claim the division should be in three equal shares while the defendant Clancy's proposal is that the division should be on the copra sale formula of 1/6 to the iroij, 1/6 to the alab and 2/3 to the dri jerbal.

FINDINGS OF FACT

1. The parties were unable to agree on the division of the payment for Komlal Wato but did agree in part on a distribution of 1/3 of the payment for Jabonbar Wato to the alab.
2. There is no firmly established Marshallese land law custom applicable to division of proceeds received for land condemnation, land sale, or land rental.
3. Division of land transfer proceeds is usually determined by unanimous agreement of the interest holders.
4. The interest holders in Komlal and Jabonbar Watos are: Iroij Erik Henry Muller, the plaintiff; Alab Jablur, and Dri Jerbal Clancy Makroro, the defendants.

OPINION

Although at least two meetings of interest holders in all the land being condemned by the government for use as airfield and water catchment system for Majuro were conducted by the government a general agreement as to division of payments could not be reached. (Defendant's Exh. B.) Agreements as to individual proceeds were subsequently entered into except for the parties in this case with respect to their interest in Komlal and Jabonbar Watos.

In the absence of unanimous agreement between the parties, the Court sees three alternative methods for arriving at a determination. The Court may:-

1. Adopt the "copra formula" division of copra sales proceeds advocated by the defendant Clancy, providing one-sixth for the iroij, one-sixth for the alab and two-thirds for the dri jerbal.
2. Apply the same division of land transfer proceeds made by other interest holders both on Majuro and Kwajalein Atolls. The difficulty with this method is that the agreements reached are not uniform.
3. And finally, the Court may adopt the democratic formula of "majority rule." Such method may be applicable under some circumstances but it is contrary to the feudal system of land tenure traditionally prevailing in the Marshall Islands. For a discussion of "Concepts of Land Ownership" see "Land Tenure Patterns," page 4 et seq. Limine v. Lainej, 1 T.T.R. 107. Jatios v. Levi, 1 T.T.R. 578. Lazarus v. Tomijwa, 1 T.T.R. 123.

Defendant's theory that the copra sales formula should be followed rests upon two basic concepts: (1) that this method is the most nearly analogous to a division of condemnation rental income, and (2) the income is in lieu of the lost subsistance derived from the land, and dri jerbal are entirely dependent for their living upon the one or more wato from which they cut and sell copra, while neither the iroij nor the alab occupy or work the land but merely share in the dri jerbal income. There are difficulties with both concepts.

Copra sales income is from labor expended by the dri jerbal and much of his share of copra sales is compensation for labor and reimbursement of costs. When the land is taken out of production the dri jerbal performs no labor for which he is entitled to be reimbursed.

Concerning subsistance, all interest holders derive subsistance from productive land. All share in both the production of food and in the sale of copra. When the land is lost all three "owners" lose subsistance.

Defendant relied in part, at least, on the only other decision of this Court which attempts to substitute its judgment as to a division of condemnation proceeds in lieu of a unanimous agreement of the parties. It is Bulele v. Loeak, 4 T.T.R. 5, which held the iroij should receive 6% of condemnation proceeds. Six percent is approximately one-seventeenth of the whole whereas the one-sixth defendant would allot to the iroij is 17 percent of the whole. It is a substantial difference.

In Bulele the Court indicated it did not agree with its own formula, saying at 4 T.T.R.19 that:-

"There is no Marshallese law of custom which specifically determines the division of proceeds from condemnation of indefinite use rights. The amount of each share of such proceeds must be based upon the Marshallese custom for the type apportionment which is most closely related."

The Court observed that a lease was "in some ways analogous to a transfer of indefinite use rights," but rejected the theory because "there is apparently precedent for the alab to receive the entire payment," quoting at length from "Land Tenure Patterns," p. 25, 26.

The Court then decided the iroij had no right to possession of the land "but only the right to regularly receive 6 percent of the income from the proceeds, plus his ceremonial gifts, and a right to a possible future interest. . . ." This regular income theory, which could have been achieved by placing all the proceeds in an income producing trust account and paying shares from the income, was rejected by the Court "because the condemnation has so radically altered the relationship of the iroij, alab and dri jerbal in connection with the two watos, the Court concludes that the better approach is to divide the proceeds themselves among those entitled to share."

We agree with the Bulele conclusion on what to do, but not with the Court's idea on how to do it by giving the iroij only 6 percent of the proceeds. Nor does the defendant subscribe to that result as he is willing to let the iroij and alab have 17% of the proceeds each.

The true interest of both an iroij and an alab in land is far more than entitlement to a portion of copra sales proceeds. The Marshallese have not moved too far away from the ancient tradition that the iroij is the "owner" of the land. There are many present day limitations on authority over the land of the iroij, nevertheless, he is superior over all others in land matters, subject to acting within the law. Limine v. Lainej, 1 T.T.R. 107, 595.

We ignore this recognized authority over and interest in land when we say an iroij has only that interest which is represented by his share of copra sales proceeds. We must reject, therefore, both the dri jerbal's theory of a proper division and this Court's determination in Bulele, in order to apply a more equitable division of proceeds.

The second alternative mentioned was to apply the same formula others had employed. But because others unanimously agreed as to a division it does not necessarily justify the same division in the present case. Also the other divisions were not uniform.

In fact the plaintiff once agreed to the one-sixth division now advocated by defendant Clancy. It is clear, however, that the plaintiff was imposed upon in dividing upon a one-sixth basis with Andrel, the alab and dri jerbal for Mojenkan and Monkieb Watos. This agreement was reached jointly with James Maddison, who claimed to be the successor iroij erik, only two months after Mike Maddison, the iroij died.

Muller testified as soon as he learned he had been misinformed about his entitlement he attempted to rescind his agreement. (Plaintiff's Exh. 2.) But by that time it was too late. (Plaintiff's Exh. 3.) Muller's only recourse would have been a suit for rescission, but at that time he was confronted with establishing his entitlement to any of the proceeds. Muller v. Maddison and Milne, 5 T.T.R. 471.

The defendant also is confronted with a special agreement whereby Jablur has received one-third of Jabonbar Wato proceeds. However, Clancy did not agree to a one-half each division of the remainder.

Other comparable divisions on both Majuro and in an earlier period on Kwajelein has been on a basis of a division into three equal shares. There are, however, some variations in even this general rule. Jitenburu v. Lios et al., 5 T.T.R. 383. Lijoula v. Liwaikam and Ajel, 5 T.T.R. 483. In re: Estate of Bulele, 5 T.T.R. 140.

Finally, we turn to an examination of the propriety of applying the rule of the majority. In this case both the plaintiff iroij and the defendant alab believe the proceeds should be divided into three equal shares. Only the defendant dri jerbal objects.

On the witness stand the dri jerbal admitted that the iroij has the greatest authority or "power" over the land, but then insisted that the three interests were "equal."

Either under Marshallese custom that the iroij has the power and duty to decide in a lawful and reasonable manner land disputes, or under the theory becoming at least politically recognized in the Marshalls that the "majority rules," this Court has no other fair alternative than to settle the dispute by requiring a division into three equal shares. Either the iroij erik has the authority to resolve the dispute or the iroij and alab as against the dri jerbal (all three holding "equal" rights according to defendant) should prevail. Accordingly, it is Ordered, adjudged, and decreed:-

1. That the condemnation proceeds for Komlal Wato shall be divided into three equal shares and distributed to the plaintiff as iroij, the defendant Jablur as alab and the defendant Clancy as dri jerbal.
2. That the division of the remainder of the proceeds from Jabonbar Wato shall be divided equally between the plaintiff and the defendant, Clancy, the defendant Jablur having heretofore received a one-third share.