THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Kapas v. Church of Latter Day Saints,
6 FSM Intrm. 56 (App. 1993)

[6 FSM Intrm. 56]

ESIRON KAPAS,
Appellant,

vs.

THE CHURCH OF JESUS CHRIST
OF LATTER DAY SAINTS, a corporation,
Appellee.

APPEAL CASE NO. C2-1992

OPINION

Argued:  February 3, 1993
Decided:  May 7, 1993

BEFORE:
     Hon. Andon L. Amaraich, Associate Justice, FSM Supreme Court
     Hon. Martin Yinug, Associate Justice, FSM Supreme Court
     Hon. Wanis Simina, Temporary Justice, FSM Supreme Court*

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

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

For the Appellee:      R. Barrie Michelsen, Esq.
                                    Law Offices of R. Barrie Michelsen
                                    P.O. Box 1450
                                    Kolonia, Pohnpei FM  96941

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HEADNOTES
Appeal and Certiorari ) Standard of Review
     The standard of review of a trial court's factual findings is whether those findings are clearly erroneous.  The appeals court cannot substitute its judgment for that of the trial judge but in reviewing the findings it may examine all of the evidence in the record in determining whether the trial court's factual findings are clearly erroneous, and if it is left with the definite and firm conviction that a mistake has been committed with respect to the findings, it must reject the

[6 FSM Intrm. 57]

findings as clearly erroneous.  Kapas v. Church of Latter Day Saints, 6 FSM Intrm. 56, 59 (App. 1993).

Federalism ) Abstention and Certification; Property
     A strong presumption exists under FSM law for deferring land matters to local land authorities.  Kapas v. Church of Latter Day Saints, 6 FSM Intrm. 56, 60 (App. 1993).

Appeal and Certiorari ) Standard of Review
     Clear error in key factual findings merits setting aside conclusions of law and is one factor indicating incorrect use of discretion.  Kapas v. Church of Latter Day Saints,  6 FSM Intrm. 56, 60 (App. 1993).

Federalism ) Abstention and Certification; Property
     Determination of property boundaries is the responsibility of the state land commissions, and the court should not intercede where the local agency has not completed its work.  Kapas v. Church of Latter Day Saints, 6 FSM Intrm. 56, 60 (App. 1993).

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COURT'S OPINION
MARTIN YINUG, Associate Justice:
     This case concerns a boundary dispute over an area of land known as Nepunuset in Weno, Chuuk.  The appellee, Church of Jesus Christ of Latter Day Saints (hereinafter "LDS Church") sought an injunction against appellant, Esiron Kapas, to prevent the use of a portion of its leased property.  Mr. Kapas claims the same portion of land as his lineage land.  The trial court found in favor of the LDS Church after correcting on its own the metes and bounds description of the Church's property as found in the lease.

     Mr. Kapas brings this appeal based on two alleged errors:  that the trial court was mistaken in finding the lease description of the property adequate, and that as a matter of law the issue of boundary determinations should have been remanded to the Chuuk State Land Commission.  We agree with the appellant on both points and vacate the decision of the trial court.

I.  FACTUAL BACKGROUND
     The present dispute is between Esiron Kapas and the LDS Church concerning land the Church claims is a part of Nepunuset leased to it by Fujita Peter. Historically, both Esiron Kapas and the Anes family of Weno claimed ownership of Nepunuset.  In 1981 the Chuuk State Land Commission determined that Nepunuset was owned by the Anes family.  On September 3, 1985 the Anes family sold a portion of Nepunuset land containing two lots, designated C-1 and C-2, to Fujita Peter.  On September 4, 1985, Fujita Peter leased these two lots to the LDS Church.

     In this appeal Mr. Kapas does not challenge the 1981 Land Commission determination in favor of the Anes family regarding ownership of Nepunuset.  He does not contest that as the Anes' successor in interest Fujita Peter could lease property within Nepunuset.  Mr. Kapas, however, contends that the property at issue used by him and his family is land called "Neanenong," which is allegedly Kapas lineage land separate from Nepunuset.  A 1962 survey map executed by the Trust Territory Government lists Kapas as owner of Neanenong.  This map was certified, meaning the

[6 FSM Intrm. 58]

boundaries shown were definitively determined.  The map shows a boundary between Neanenong and "Neuorau" or "Neareu."  Another survey map was produced by a land registration team under the Trust Territory Government as part of its cadastral program in 1972.  This map shows Nepunuset and Neuorau, but not Neanenong or the Neanenong-Neuorau common boundary.  The 1972 map has never been certified.

     The 1981 determination of ownership did not describe the boundaries of Nepunuset.  A certificate of title, which normally follows an ownership determination, would contain an exact description of property boundaries.  No certificate of title has been issued for Nepunuset.

     The 1985 lease from Fujita Peter to the LDS Church described the parcels C-1 and C-2 in words, giving metes and bounds, and by making reference to an attached survey map drawn by a private firm from Guam, Perry and Associates. The written description, however, contained directional errors and could not be reconciled as written with the Perry map.  The Perry firm did not perform an actual survey of C-1 and C-2, and it is not known what sources they used in drawing their sketch map of the parcels.

     The Chief Surveyor for the Chuuk Land Commission, Kachuo Mefy, prepared a map showing C-1, C-2 and surrounding parcels.  This map indicates a large triangular gap of unknown ownership between the western boundary of Neuorau and the eastern boundary of Nepunuset, the result of attempting to match the 1962 certified map with the 1972 uncertified map.  In drawing the boundaries of C-1 and C-2 on his map, Mr. Mefy relied on the Perry firm sketch map.

II.  RELEVANT LAW AND PROCEDURES
     Both parties agree that the particular statutory procedure applicable to this case is found at 67 TTC 101 et. seq.  Title 67 of the TTC provides for a Land Commission with authority to register land and determine ownership ( 101); appointment of Land Registration Teams ( 103); designation of registration areas ( 104); and the survey and establishment of boundaries ( 106).

     Boundaries are mentioned only in section 106.  After the Land Commission has designated an area of land to be registered, the district surveyor makes an accurate survey of its exterior boundaries and any plots within the area that the Commission directs.  Following a determination of ownership by the Commission, final boundaries are shown by either permanent markers or natural features.

     The intermediate steps in this process were described at trial by Mr. Mefy, the Chuuk District Surveyor.  Trial Transcript 21:11 - 22:23.  Initial preliminary marking of boundaries is carried out by the land registration team.  The registration team goes out to consult with the landowner of a particular property and also the owners of the adjacent properties about respective claims.  The team provides a sketch form to be signed by the landowner and adjacent owners if they agree on property boundaries.  This form is filed at the Land Commission Office in their survey index file.  The registration team places concrete markers on the boundary and then reports to the surveyor that the land can be surveyed.

     The final step in the process is the issuance of a certificate of title pursuant to 67 TTC 117.  This occurs after the 120-day period of appeal has passed, or after a timely-filed appeal has been decided.  Mr. Mefy testified that the certificate of title includes an exact boundary description of the property.  Trial Transcript 28:10-14.

[6 FSM Intrm. 59]

III.  FINDING OF FACTS
     The standard of review of a trial court's factual findings is whether the appellate panel determines those findings are clearly erroneous.  FSM Civ. R. 52(a); Opet v. Mobil Oil Micronesia, Inc., 3 FSM Intrm. 159, 165 (App. 1987); Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21, 24 (App. 1985).  The appeals court cannot substitute its judgment for that of the trial judge, but in reviewing the findings it "may examine all of the evidence in the record."  9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure 2585, at 731 (1971).  If the appeals court is "left with the definite and firm conviction that a mistake has been committed" with respect to the findings, it must reject the findings as clearly erroneous.  United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746, 766 (1948).

     The trial court stated in its findings that "the disputed land, which each party claims in this case, is a part of Nepunuset."  Findings of Fact and Conclusion of Law at 3 (Jan. 23, 1992).  We find inadequate basis for this statement in the evidence presented at trial.  The record before the Court reveals that definitive borders for Nepunuset have not yet been established, and therefore it can not be said with certainty that the parcels of land in question are wholly within Nepunuset.

     A careful review of the expert testimony highlights the error.  At one point during trial Mr. Mefy was asked what map will be used when the certificate of title is issued for Nepunuset.  He responded:  "They will use the map for 1972 for the certificate of title."  Trial Transcript 44:21-22.  Mr. Mefy also testified that the 1972 map is not certified, and before a survey map is certified the Land Commission must clarify discrepancies in boundary designations.  Trial Transcript 32:10; 42:4-12.  As stated in part I above, a sizeable discrepancy exists between the 1962 and 1972 survey maps regarding the western border of Neuorau and the eastern border of Nepunuset, with a piece of land of uncertain boundaries and ownership apparently located between the two.  Therefore, taking Mr. Mefy's testimony as a whole, the most that can be fairly stated is that a certificate of title for Nepunuset will issue based on the 1972 survey map if it is certified.  The 1972 map must be reconciled, however, by the Land Commission with the 1962 map, and all adjacent boundaries must be determined as a prerequisite.  The trial court's reliance on the 1972 boundaries as definitive was thus premature.

     This mistake directly affects the finding placed at issue by the appellant regarding the lease description of C-1 and C-2.  The trial court stated it found that "the lease description is adequate in its designation of the land demised." Findings of Fact and Conclusion of Law at 3 (Jan. 23, 1992).  However, both parties agreed at trial that the lease description erroneously designated land outside of even the uncertified boundaries of Nepunuset.  Trial Transcript 17:19-18:1.  The trial court attempted to rectify this and other errors in directional calls by appending its own metes and bounds description to the judgment.  This description referred to "the northwestern corner of Lot C-1 on the western boundary of Nepunuset, thence along the said western boundary . . .," and "a point on the eastern boundary of Nepunuset, thence along said eastern boundary . . . ." Judgment at 2 (Jan. 23, 1992).  However, for the reasons described above, the exact location of the "western boundary" and "eastern boundary" of Nepunuset cannot be assumed.  They have not been finalized.  Consequently, the trial court's amendment to the lease description referring to as-yet-undetermined boundaries cannot suffice.

     The record indicates no other suitable basis for accurately locating parcels C-1 and C-2.  Mr. Mefy admitted that his map relied on the Perry firm sketch, which was not drawn pursuant to any survey done by the firm of that area.  Mr. Mefy, in drawing boundary lines for Nepunuset, did not consult the Land Commission survey file or sketch form for Nepunuset, and it is not clear from his

[6 FSM Intrm. 60]

testimony what were the exact sources he used.  Mr. Mefy's map is not certified as a survey map of the areas in question.

     Examining all evidence in the record, and according great weight to the findings and inferences drawn by the trial judge, we cannot sustain the findings that the area in dispute is wholly within Nepunuset and the lease description, even after correction by the court, is adequate.  These findings are directly dependent on the permanent establishment of Nepunuset's boundaries by the Chuuk Land Commission, and the record demonstrates that this crucial step has not yet occurred.

IV.  MATTER OF LAW
     Since we find error in the trial court's findings, it follows that the conclusion that the plaintiff was entitled to an injunction against Mr. Kapas must fail.  75B Am. Jur. 2d Trial 1997, at 705 (1992) ("[i]f the findings cannot be sustained, the conclusions of law fail with the findings.")  As a matter of law, we find also that the trial court erred in failing to remand this case to the Land Commission to resolve the boundary questions.

     The FSM Supreme Court has repeatedly stated the view that abstention or certification in favor of local decision-making is especially appropriate in land matters .  Gimnang v. Yap, 5 FSM Intrm. 13, 21 (App. 1991); United Church of Christ v. Hamo, 4 FSM Intrm. 95, 111 (App. 1989); Pryor v. Moses, 4 FSM Intrm. 138, 142 (Pon. 1989); Ponape Transfer & Storage v. Federated Shipping Co., 4 FSM Intrm. 37, 39, 44 (Pon. 1989); Bank of Guam v. Semes, 3 FSM Intrm.  370, 381-83 (Pon. 1988); Etpison v. Perman, 1 FSM Intrm. 405, 428-29 (Pon. 1984); In re Nahnsen, 1 FSM Intrm. 97, 108 (Pon. 1982).  There are cogent constitutional and policy reasons for doing so. See, e.g., SCREP No. 36, II J. of Micro. Con. Con. 823, 848, 858.

     Abstention, however, is discretionary with the court.  Pryor v. Moses, 4 FSM Intrm. at 141.  In matters of discretion, the trial court may only be overturned for an abuse of discretion.  This Court has determined several factors which, if present either singly or in combination, would indicate abuse of discretion.  Jano v. King, 5 FSM Intrm. 326, 330 (App. 1992).   One of these is that "the court's findings are clearly erroneous."  We have determined that the central findings upon which the decision of the trial court rests in this case are clearly erroneous, and as a result we conclude that the trial court incorrectly exercised its discretion regarding abstention.

     The circumstances of this case call for application of the doctrine of primary jurisdiction.  See Ponape Transfer & Storage v. Federated Shipping Co., 4 FSM Intrm. 37 (Pon. 1989); Etpison v. Perman,  1 FSM Intrm. 405 (Pon. 1984) (remand of land issues to local bodies with primary authority and expertise).  The central dilemma in this appeal ) the issue of Nepunuset's boundaries ) is for the Land Commission, not the Court, to decide.  It is solely the Land Commission's responsibility to make a final boundary determination and certify the survey map with respect to Nepunuset.  The reasons why this has yet to occur are insufficient to alter the fundamental fact that the administrative process must be concluded. The Court in such instances must not intercede to complete the work of local agencies for them.

     We are not persuaded by the appellee's argument that it is unfairly prejudiced by remanding this case to the Land Commission.  The lease which the LDS Church obtained in 1985 has included a written description incapable of application and an uncertified, unsurveyed property sketch drawn by a private firm. The LDS Church knew, or should have known, through its counsel that no certificate of title delimiting boundaries of Nepunuset had ever been issued. Under these

[6 FSM Intrm. 61]

circumstances, we do not find prejudice to the Church in ordering a final boundary determination to be made at this time.  Resolution of this issue by the proper authorities benefits all parties to the dispute.

V.  CONCLUSION
     For the above reasons, we hereby vacate the decision of the trial court.  The case is remanded to the trial court with instructions to refer the following matters to the Chuuk Land Commission:

     (1)     Determination of the exact boundaries of Nepunuset.

     (2)     Determination of the location of Neanenong in relation to Nepunuset.

     (3)     Certification of a survey map for Nepunuset, resolving the discrepancies between the 1962 and 1972 survey maps.

     (4)     Issuance of a certificate of title for Nepunuset.

     In light of the fact that twenty years have passed without certifying a survey map for Nepunuset or issuing a certificate of title, the Land Commission is further instructed to complete its work within one year of the date of entry of this opinion and certify its findings to the trial division of this Court in Chuuk.  If at that point there are still legal questions to be resolved, the parties may submit any remaining dispute to the same trial division.

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