THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Etscheit v. Nahnken of Nett,
7 FSM Intrm. 390 (Pohnpei 1996)

[7 FSM Intrm. 390]

CAMILLE ETSCHEIT et al.,
Plaintiffs,

vs.

ISO NAHNKEN OF NETT,
SALVADOR IRIARTE et al.,
Defendants.

CIVIL ACTION NO. 1995-125
(Consolidated Case No. 1995-125)


PONAPE ENTERPRISES CO. et al.,
Plaintiffs,

vs.

LAURA BERGEN et al.,
Defendants.

Consolidated Case Nos. 1992-138, 1992-143, 1992-148, 1992-152, 1992-153, 1993-002, 1993-020, 1993-074 and 1995-060)

ORDER GRANTING SUMMARY JUDGMENT

Andon L. Amaraich
Chief Justice

Hearing:  June 15, 1995
Decided:  February 14, 1996

[7 FSM Intrm. 391]

APPEARANCES:
For the Plaintiffs:           Daniel Berman, Esq.
                                        Douglas Daley, Esq. (argued)
                                        Rush, Moore, Craven, Sutton, Morry & Beh
                                        745 Fort Street
                                        Honolulu, Hawaii 96813

For the Defendant:        Mary Berman, Esq
(Iso Nahnken of Nett)    P.O. Box 163
                                        Kolonia, Pohnpei FM 96941

For the Defendants:      Charles Greenfield, Esq.
(Laura Bergen et al.)     Elizabeth Keys, Esq.
                                         Micronesian Legal Services Corporation
                                         P.O. Box 129
                                         Kolonia, Pohnpei FM 96941

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HEADNOTES
Property ) Certificate of Title
     Certificates of Title to real property are conclusive upon all persons who have had notice of the proceedings that resulted in the issuance of the certificates, and all those claiming under them, and are prima facie evidence of ownership as therein stated against the world.  Etscheit v. Nahnken of Nett, 7 FSM Intrm. 390, 392 (Pon. 1996).

Property ) Adverse Possession
     Adverse possession refers to the acquisition of the full benefit of a piece of property, whereas profit prendre refers to the acquisition of a right of entry and the right to remove and take from the land the designated products or profits.  Etscheit v. Nahnken of Nett, 7 FSM Intrm. 390, 393 n.3 (Pon. 1996).

Civil Procedure ) Summary Judgment
     If a plaintiff moves for summary judgment on an affirmative defense, putting forth arguments and evidence indicating that there is no material fact at issue and that the affirmative defense is insufficient as a matter of law, the party asserting the affirmative defense must produce some evidence or the moving party is entitled to partial summary judgment.  Etscheit v. Nahnken of Nett, 7 FSM Intrm. 390, 394 (Pon. 1996).

Property ) Certificate of Title
     Because Certificates of Title are prima facie evidence of ownership as therein stated against the world, a court is required to attach a presumption of correctness to them when considering challenges to their validity or authenticity.  Etscheit v. Nahnken of Nett, 7 FSM Intrm. 390, 394 (Pon. 1996).

Property ) Adverse Possession
     In addition to actual possession for the twenty-year statutory period, adverse possession requires the possessor. s occupancy to have been open and notorious, exclusive, continuous and under a claim of right.  Thus, a party claiming property rights based on adverse possession must demonstrate that he came onto the land with the intent of taking complete and exclusive control of the property.  

[7 FSM Intrm. 392]

Etscheit v. Nahnken of Nett, 7 FSM Intrm. 390, 395 (Pon. 1996).

Property ) Adverse Possession
     Parties that claim they entered the land with permission to do exactly what they were doing, and did not take any affirmative steps to assert outright ownership, cannot be said to have been in "adverse" possession of the land in dispute.  Etscheit v. Nahnken of Nett, 7 FSM Intrm. 390, 396 (Pon. 1996).

Civil Procedure ) Res Judicata
     Although the FSM Supreme Court is not bound to accept the findings of the Trust Territory courts, it may consider their rationale and elect to adopt their reasoning.  Rulings of the FSM Supreme Court appellate division are not binding specifically upon a nonparty under the doctrine of res judicata, they are binding on the court under the doctrine of stare decisis.  Etscheit v. Nahnken of Nett, 7 FSM Intrm. 390, 396 (Pon. 1996).

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COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:

Introduction
     The general facts surrounding the Etscheits' ownership of land in Nett Municipality, as well as their attempts to evict trespassers from that land, are well documented in a number of other FSM cases, and need not be revisited in great detail here.  See, e.g., In re Parcel 046-A-01, 6 FSM Intrm. 149 (Pon. 1993). In short, since 1992 plaintiffs have filed a total of twenty-one trespass cases against persons cultivating areas of land for which the Etscheit family plaintiffs hold Certificates of Title.  The three Certificates of Title at issue, which name the . legal heirs of Florentine Etscheit. as owners, were issued by the Pohnpei State Land Commission as a result of a title determination process conducted in the Trust Territory High Court.  See In re Etscheit's Estate, Civ. Action No. 142-78 (Trust Territory High Court Aug. 26, 1980), aff'd sub nom., Nanmwarki v. Etscheit Family, 8 TTR 287 (App. 1982).

     In In re Parcel 046-A-01, this Court disposed of ten of the trespass cases on summary judgment, finding that the trespassers in each case had come to the land in question well after the determination and issuance of the Certificates of Title. Under the law applicable in Pohnpei at the time these Certificates were issued, Certificates of Title were to be "conclusive upon all persons who have had notice of the proceedings [that resulted in the issuance of the Certificates] and all those claiming under them and shall be prima facie evidence of ownership as therein stated against the world."  67 TTC 117(1) (emphasis added).  The Court concluded that the defendants had failed to rebut the presumption of ownership created by the Certificates of Title.  On December 31, 1993, in Ponape Enterprises Co. v. Soumwei, 6 FSM Intrm. 341 (Pon. 1994) the Court granted summary judgment against Louis Soumwei on a similar basis.

     The Court denied summary judgment in another two cases, which involved slightly different factual situations.  In those cases, the alleged trespassers claimed that their presence on the land predated the title determination process, and that they had not receive the required notice of that process.  The Court found that a genuine issue of material fact existed, and denied summary judgment.  In re Parcel 046-A-01, 6 FSM Intrm. at 157.

     Defendants in each of the eleven cases in which summary judgment was granted appealed these

[7 FSM Intrm. 393]

decisions to the Appellate Division.  They contended, inter alia, that the Trial Division had erred in ruling that they were not entitled to notice because they had no claims to the land when the title determination occurred, and that there were "sufficient inconsistencies and ambiguities in the High Court [of the Trust Territory] decision as to raise a genuine issue of material fact as to the validity of the Certificates of Title."  Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 49 (Pon. 1995).  On February 16, 1995, the Appellate Division affirmed the Trial Division. s decisions.  Id.

Discussion of Facts and Law
     Now before the Court are motions for summary judgment in ten cases:  the two are cases in which summary judgment was denied in In re Parcel, based on the defendants. claim that their presence on the land predated the title determination process;1 and eight newly filed cases, which involve similar relevant facts and circumstances.2

     These consolidated cases involve claims by two categories of plaintiffs.  The Etscheit family plaintiffs contend that the various defendants are trespassing on property for which the Etscheits hold Certificates of Title validly issued by the Pohnpei State Land Commission.  The foreign development company plaintiffs claim that various defendants are trespassing on land in which they enjoy a possessory interest, as a result of a contractual arrangement with the Etscheit family plaintiffs, who hold proper title.  Plaintiffs also name the Nahnken of Nett, Salvador Iriarte, as a defendant alleging that he is encouraging the other defendants to trespass on plaintiffs' land.  For a fuller explanation of the relationship of the parties to this action, see In re Parcel 046-A-01, 6 FSM Intrm. 149 (Pon. 1993).

     Defendants present two affirmative defenses to these claims.  First, they challenge the validity of the Certificates of Title held by the Etscheit family plaintiffs, contending that these Certificates were not issued in accordance with the requirements set forth in the Trust Territory Code, 67 TTC 101 et seq., which was the law in place in Pohnpei at the time the Certificates were issued.  Second, defendants claim that they are entitled to the land based on principles of adverse possession and profit prendre3 and they purport to trace their interest in the land back over at least twelve years.  Defendant Iriarte asserts that the lands in question are not Etscheit lands, but rather luen wehi, or municipally owned lands, and that he has authority over these lands by virtue of his position as a traditional leader of Nett.

     Plaintiffs have moved for summary judgment, claiming their Certificates of Title create a superior

[7 FSM Intrm. 394]

right of possession and contending that defendants have no legitimate claim to the possession or ownership and are merely trespassing on their land.

Standard of Review
     It is well-settled in the FSM that a party is only entitled to summary judgment if he can establish that there is no genuine issue of material fact, and that he is entitled to judgment as a matter of law.  FSM Civ. R. 56; FSM Dev. Bank v. Rodriguez Corp., 2 FSM Intrm. 128, 130 (Pon. 1985).  When considering a motion for summary judgment, this Court must consider all of the facts in the light most favorable to the non-moving party.  Kihara Real Estate, Inc. v. Estate of Nanpei (I), 6 FSM Intrm. 48, 52 (Pon. 1993).  If a plaintiff moves for summary judgment on an affirmative defense, putting forth arguments and evidence indicating that there is no material fact at issue and that the affirmative defense is insufficient as a matter of law, the party asserting the affirmative defense must produce some evidence or the moving party is entitled to partial summary judgment.  See Rodriguez Corp., 2 FSM Intrm. at 130.

1.   Validity of Certificates of Title
     In each of these ten consolidated cases, plaintiffs argue that they have a superior possessory interest in the land, either by virtue of their outright ownership of the property, as evidenced by the Certificates of Title, or by virtue of a leasehold interest granted by the actual owners based on those Certificates of Title. Defendants challenge the validity of the Certificates, and argue that they have a superior right to the property as a result of their actual possession and cultivation of the land at issue.

     Although many of the facts and circumstances in these ten cases are identical to those raised in the cases that were resolved in the In re Parcel litigation, there are a few important differences in the present consolidated action.  First, plaintiffs have now introduced undisputed evidence that the notice procedure was initiated through a designation of land registration in Nett Municipality, and that the designation was for all of the lands currently in dispute.  This was admitted by counsel for defendants in Exhibit #5 of their Motion to Supplement the Record filed June 14, 1995.  Therefore, the sole ground upon which summary judgment was previously denied against the two defendants in In re Parcel ) whether these defendants received sufficient notice of the title determination process ) has now been resolved in favor of plaintiffs.  Although defendants still complain that they did not get actual notice of the title determination process, either because they did not see the posted notices, or because they were under the mistaken belief that the title process did not involve the land they were cultivating, the evidence supplied by plaintiffs conclusively establishes that these defendants were provided with the notice required by statute.  See 62 TTC 110.  Accordingly, the Court finds that, as a matter of law, the two defendants from In re Parcel and the other eight sets of similarly situated defendants in this consolidated trespass action received sufficient notice of the title determination process that resulted in the issuance of the Certificates of Title governing the land in question.

     Having rejected defendants' claim of insufficient notice, 67 TTC 117(1) requires that the Court regard the Certificates of Title issued to the Etscheit family as "prima facie evidence of ownership as therein stated against the world."  As a result, in considering defendants' additional challenges to the validity or authenticity of Certificates of Title, the Court is required to attach a presumption of correctness to the Certificates of Title.  The party challenging the validity of the Certificates therefore bears the burden of proving that they are not valid or authentic. Certificates of Title are accorded a presumption of validity because they are issued only after the Land Commission has satisfied itself that the individual requesting the Certificate of Title has a valid claim of ownership.  In this case, the Court finds that the presumption of correctness to be afforded the Certificates is even greater, because the determination of ownership was made both by the Land Commission and the Trust Territory High Court.

[7 FSM Intrm. 395]

     The Court has reviewed defendants. additional challenges to the validity and authenticity of the plaintiffs' Certificates of Title.  In doing so, the Court recognizes that these challenges are the same as those that the Court has already considered and rejected on motions for summary judgment in the In re Parcel litigation.  The Court sees no reason to revisit these claims a second time, and therefore rejects these arguments.  Finally, as to defendants. alleged additional evidence that the Certificates of Title may have been invalidly issued, the Court again finds that the defendants have failed to overcome the presumption of correctness created by the Certificates of Title held by the plaintiffs.  Accordingly, the Court concludes as a matter of law that the Certificates of Title issued to the Etscheit family are valid and authentic.

2.  Defense of Adverse Possession
     Although the Court has determined that the Certificates of Title issued to plaintiffs are valid, certain defendants in these consolidated cases have argued that they are entitled to remain on plaintiffs' land based on principles of adverse possession.  See, e.g., Defs.. Reply to Pls.. Opp'n to Motion for Abstention and Alternative Motion for Clarification at 15-16 (July 25, 1995).  They contend that they have a . right to possess and profit from the land by virtue of their continuous and unfettered use of the land. over the years.  See Defs.. Motion to Amend Answer at 2 (June 2, 1995).  Plaintiffs contest defendants' adverse possession claim, arguing that adverse possession is disfavored by the state courts within the Federated States of Micronesia and therefore should not be recognized as the law of the FSM, see, e.g., Pohnpei Public Lands Board of Trustees v. Yeneres, PCA No. 31-90, Order (Mar. 3, 1993); Cheni v. Ngusun, 6 FSM Intrm. 544, 1 CSR 35 (Chk. S. Ct. App. 1994), and that even if adverse possession were recognized by this Court, defendants' claims should be rejected because they have not satisfied all of the requirements for adverse possession.  Pls.. Reply to Defs.. Memorandum in Opp'n to Summary Judgment and Consolidation at 5-10 (July 7, 1995).

     In order to successfully assert a claim that property rights have been acquired through adverse possession in the FSM, a party must establish that he entered the land at issue and remained in possession of the land for the entire statutory period of 20 years.  6 F.S.M.C. 802(1)(b).  In addition to actual possession for the statutory period, adverse possession requires the possessor. s occupancy to have been open and notorious, exclusive, continuous and under a claim of right. Etscheit v. Adams, 6 FSM Intrm. 365, 389 (Pon. 1994).  Thus, a party claiming property rights based on adverse possession must demonstrate that he came onto the land with the intent of taking complete and exclusive control of the property.

     In the consolidated cases, defendants have not made out a claim based on adverse possession.  They admit that they did not enter the land under an assertion of ownership adverse to that of the true owner and all others.  According to the affidavits submitted by defendants' counsel ) the only actual  proof offered by defendants in support of their adverse possession claim ) defendants entered the land either with the "permission" of an official of the Trust Territory Government (the Nahnmwarki of Nett, acting in his capacity as the Trust Territory. s Chief Magistrate of Nett Municipality), or on the basis of Trust Territory Government radio announcements "encouraging the Pohnpeians to go out and find land to cultivate." See Defs.' Second Motion to Supplement the Record, Affs. Antonio Sulda, and Augustine and Teresita Damarlane, Civil Action No. 1992-148 (June 15, 1995).

     The Court is exceedingly skeptical of defendants' claims that they were aware of the Nahnmwarki's role in the Trust Territory Government, or that they made their requests to the Nahnmwarki based on his official authority as an employee of the Trust Territory Government, rather than upon his traditional authority as paramount leader of Nett Municipality ) the argument put forward by the defendants in the In re Parcel litigation.  Notwithstanding the Court. s obligation to view the facts in the manner suggested by defendants, because defendants are the parties opposing summary

[7 FSM Intrm. 396]

judgment, defendants' argument still must fail, because defendants explicitly admit that they entered the land with permission, rather than under an adverse claim of ownership.  Defendants concede that they did not enter the land adversely and with the intent to assume ownership.  Because defendants admit that they entered the land with permission to do exactly what they were doing, and because defendants did not take any affirmative steps to assert outright ownership, defendants cannot be said to have been in "adverse" possession of the land in dispute.  Accordingly, their adverse possession defense fails as a matter of law.

3.  Defendant Salvador Iriarte
     Plaintiffs' summary judgment motion seeks to permanently enjoin Defendant Salvador Iriarte, the Nahnken of Nett Municipality, from encouraging other individuals to trespass on their land.

     Defendant Iriarte claims that he is entitled to administer to and disburse luen wehi (variously defined as municipal, community or public land) located in Nett Municipality, by virtue of his traditional title.  Plaintiffs argue that the luen wehi claim already has been decided against Defendant Iriarte in the Trust Territory High Court in Nahnmwarki v. Etscheit Family, 8 TTR 287, 289 (App. 1982), and the Trust Territory Court's findings on the luen wehi claim were adopted by the FSM Supreme Court in the In re Parcel litigation.  Defendant responds that he should not be barred from raising his luen wehi claim in this action (1) because this Court is not obligated to adopt the findings of the Trust Territory High Court, and (2) because the In re Parcel decision is not binding on Defendant Iriarte since he was not a party to that litigation.

     Although this Court is not bound to accept the findings of the Trust Territory Court, it has considered the rationale of the Trust Territory Court and elects to adopt that Court. s reasoning in this matter.  Moreover, although the findings of the Court in In re Parcel are not binding specifically upon Defendant Iriarte under the doctrine of res judicata, they are binding upon this Court under the doctrine of stare decisis.  Having considered the submissions and arguments raised by Defendant Iriarte on his luen wehi claim, the Court finds that defendant has not offered any convincing basis for departing from the approach adopted by this Court and affirmed by the Appellate Division, in Luzama, 7 FSM Intrm. 40.  In that case the Court found the issue of luen wehi precluded, either because Nett traditional leaders should have raised any luen wehi claims to these municipal or public lands in the Trust Territory High Court action, or because issuance of a Certificate of Title by the State Land Commission forecloses a luen wehi claim by the state.

Conclusion
     Plaintiffs have demonstrated that their interest in the land in dispute in this case is superior to that of each of the defendants.  The Court therefore finds that defendants in each of these consolidated cases are engaged in wrongful trespass on plaintiffs' land, and are now ordered to cease their trespass.  In addition, the Court rejects Defendant Iriarte's luen wehi claim and enjoins him from encouraging any individuals to enter or remain on the land that is the subject of this dispute.

     Based on the foregoing, plaintiffs' motion for summary judgment is hereby granted.

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Footnotes:
 
1.  Consolidated Civil Action Nos. 1992-143 (Defendant Misail Padahk) and 1992-148 (Defendant Kindinario Ligorio).
 
2.  Consolidated Civil Action Nos. 1992-138 (Defendant Laura Bergen), 1992-152 (Defendant Moria Pelep), 1992-153 (Defendant Lorenzo Padahk), 1993-002 (Defendant Walter Ekeik), 1993-020 (Defendant Belerino Phillip et al.), 1993-074 (Defendant Bernard Jack et al.), 1993-080 (Defendant Iriarte et al.), 1995-060 (Defendant Eugene Kohler et al).
 
3.  Defendants in all but one of the cases claim that they are entitled to both adverse possession and a profit prendre.  Adverse possession refers to the acquisition of the full benefit of a piece of property, whereas profit prendre refers to the acquisition of a "right of entry and the right to remove and take from the land the designated products or profits."  Black's Law Dictionary 1090 (5th ed. 1979). In either case, the basis for defendants' claims is that they adversely possessed the land for the statutory period, and therefore cannot be prevented from continuing their actions on the land, even though the land is owned by another.