FSM SUPREME COURT
TRIAL DIVISION (Pon.)
Cite as Salik v. U Corporation (I),
 3 FSM Intrm. 404 (Pon. 1988)

[3 FSM Intrm. 404]
 
GREGORIO SALIK,
Plaintiff,

v.

U CORPORATION,
Defendant.

v.

STATE OF POHNPEI,
Third Party
Defendant.

CIV. ACTION NO. 1987-077

OPINION
 
Before Edward C. King
Chief Justice
June 30, 1988

APPEARANCES:
          For the Plaintiff:               Sungiwo Hadley
                                                    Trial Counselor
                                                    P.O. Box 369
                                                    Kolonia, Pohnpei 96941

          For the Defendant:          Douglas F. Cushnie
                                                    Attorney at Law
                                                    Saipan, Mariana Islands 96950

                                                     and
 
                                                     Martin Mix
                                                     Attorney-at-Law
                                                     P.O. Box 143
                                                     Kolonia, Pohnpei 96941

          For the Third Party:          Randy Boyer
               Defendant                    State Attorney
          (State of Pohnpei)            Kolonia, Pohnpei 96941

[3 FSM Intrm. 405]
*        *        *        *

HEADNOTES
Civil Procedure - Summary Judgment
     A summary judgment may be granted for a state named as defendant in an action asserting that the state is liable for negligent preparation of a survey when it is clear from the pleadings and record that the state did not exist when the survey was prepared, and plaintiff offers no theory under which the state could be liable and the pleadings, depositions, answers, interrogations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law."  Salik v. U Corp. (I), 3 FSM Intrm. 404, 407 (Pon. 1988).

Constitutional Law - National/State Power;
Transition of Authority
     Under the Constitution of the Federated States of Micronesia, the national government, not the state governments, assumes any 'right, obligation, liability, or contract of the government of the Trust Territory.  Salik v. U Corp. (I), 3 FSM Intrm. 404, 407 (Pon. 1988).

*        *        *        *

COURT'S OPINION
EDWARD C. KING, Chief Justice:
     The State of Pohnpei's motion for summary judgment here presents the issue of whether the state could be held liable, under a theory of negligence or breach of contract, if it is ultimately established in this litigation that the survey relied upon by the parties in 1972 when they executed a lease was negligently prepared and certified by officials of the Trust Territory Government, and that actions taken by U Corporation in reliance on the accuracy of the survey have caused U to be liable to the other party to the lease, plaintiff Gregorio Salik.

     This case was originally instituted by Mr. Gregorio Salik against,U Corporation in the Pohnpei State Supreme Court on April 8, 1986.  On October 5, 1987 the state court granted U's motion to join the State of Pohnpei as a party defendant.  The state then moved for summary judgment but on May 30, 1988, before the state court ruled on that motion, this Court granted U's petition for removal.  On June 27, oral argument was heard by this Court on the state's motion for summary judgment.

I.
     This lawsuit arises out of discrepancies between various surveys showing the relationship between the land leased by defendant U Corporation from plaintiff Salik in 1972 for purposes of permitting the corporation to operate The Village hotel and restaurant in U Municipality, Pohnpei, and the location of the Pohnpei Island circumferential road near that land.

[3 FSM Intrm. 406]

     The original survey is reflected on map 7031/32 of the Trust Territory Division of Lands and Surveys.  That map, a copy of which was attached to the August 7, 1972 lease between U and Mr. Salik, showed the land to be leased as abutting on the circumferential road.  More recent surveys show a "thin wedge" of land between the circumferential road and the leased land.

     Plaintiff claims ownership of this thin wedge and asserts that over the years U Corporation has unlawfully dug ditches, extended electrical wires underground, cemented over the top of the ditch and engaged in other activities on the land in violation of Mr. Salik's property rights.

II.
     A summary judgment may be granted only "if the pleadings, depositions, answers, interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law."  FSM Civ. R. 56(c).

     The party moving for summary judgment has the burden of clearly establishing the lack of any triable issue of fact.  FSM v. Ponape Builders Constr., Inc., 2 FSM Intrm. 48, 52 (Pon. 1985).  The facts, and inferences to be drawn therefrom, must be viewed by the Court in the light most favorable to the party opposing the motion for summary judgment.  Id.

     U's claim against the state is essentially an "action-over" claim, that if U is liable to Mr. Salik, then the state must be held liable to U Corporation.  The corporation contends that anything it did on the land now shown on recent surveys as being between the present road and the actual leasehold area was done in good faith reliance on survey map No. 7031/32.  For purposes of this motion, that allegation must be accepted.

     Even so, it remains necessary for U to put forward some explanation as to how these facts could cause the state to be liable to U.  The corporation's crossclaims offer two theories.
 
A
     Count I contends that the state's "negligent or otherwise faulty surveys or preparation of maps and the consequent claims of plaintiff based upon such surveys and maps" make the state responsible for any damages which may be assessed against U Corporation.

     Presumably, the faulty surveys and maps referred to are those reflected in survey map No. 7031/72.  However, the cross claim itself acknowledges that map 7031/72 was prepared not by Pohnpei State, but by the "governing entity in this jurisdiction" at that time, the government of the Trust Territory of the Pacific Islands.

     In addition, the Court may and does take judicial notice of the fact that the government of the State of Pohnpei had not come into existence at the time when the original survey was prepared.  Thus, there is no genuine issue of material fact. Pohnpei officials were not negligent in connection with the
 
[3 FSM Intrm. 407]

preparation of survey map No. 7031/72.  Summary judgment must be granted in favor of the state on count I.

B
     The second count of the cross claim alleges:

That the lease documents which were executed by plaintiff and defendant herein were approved by the High Commissioner of the Trust Territory of the Pacific Islands, the governing entity which is the predecessor in interest to the State of Pohnpei and as such created an explicit or implicit contractual relationship which approved and confirmed the leases made and the areas so leased, and by altering said boundary of the area which U Corporation has leased has breached said contractual arrangements with U Corporation and is responsible for damages as aforesaid.

     Giving this pleading every possible benefit of the doubt, it might conceivably be read as asserting that by preparing the original surveying map in connection with execution of the lease, the Trust Territory somehow entered into a contractual relationship with U Corporation, that the State of Pohnpei now has succeeded to and is bound by the Trust Territory's earlier contractual obligations to U Corporation, and that the State breached its "contractual arrangements" with U Corporation by altering the boundary of the area leased.

     Each leg of this triangulated argument looks extremely weak, but one leg furnishes no support whatever.  U has not offered any plausible theory under which the State of Pohnpei can be regarded as the legal successor to all liabilities of the Trust Territory government, or to any specific liability the Trust Territory may have concerning this particular survey.

     Under the Constitution of the Federated States of Micronesia, the national government, not the state governments, assumed any "right, obligation, liability, or contract of the government of the Trust Territory."  FSM Const. art. XV, 2.

     Even at this late date, more than two years after these legal proceedings were instituted, the defendant has been unable to point this Court to any alternative theory or specific agreement whereby the State of Pohnpei may be held liable for contractual obligations of the Trust Territory.  The State of Pohnpei denies there is any such agreement, and there is no reason to believe any exists.

III.
     The state is entitled as a matter of law to summary judgment on both counts in U Corporation's cross claim.  The motion for summary judgment is granted.