FSM 6 Intrm. 149-158

Although failure to oppose a motion operates as a consent by the opposing party to the granting of the motion, the court is not bound to grant motion simply because it is unopposed. For a motion to be granted, even if unopposed, it must be well grounded in law and fact, and not interposed for delay. In re Parcel No. 046-A-01, 6 FSM Intrm. 149, 153 (Pon. 1993).

A party has standing to sue when that party has a sufficient stake or interest in an otherwise justiciable controversy to obtain judicial resolution of that controversy. The implied requirement that a party have standing should be interpreted so as to implement the objectives of the constitutional requirement that a case or dispute exist. In re Parcel No. 046-A-01, 6 FSM Intrm. 149, 153 (Pon. 1993).

To prevail in an action for trespass, a plaintiff must prove a wrongful interference with his possessory interest in the property. Damages naturally resulting from the trespass alleged may be proved without being specially pleaded. In re Parcel No. 046-A-01, 6 FSM Intrm. 149, 155 (Pon. 1993).

When plaintiff leaseholders present a written lease agreement and the certificates of title issued to the lessor and the defendants admit to occupying the land in question, the leaseholders have made a prima facie case for trespass. In re Parcel No. 046-A-01, 6 FSM Intrm. 149, 155-56 (Pon. 1993).

Where the alleged trespassers did not claim to have an interest in the land at the time of the determination of ownership, they cannot now raise as a defense a claim that the land in question is public land when that issue was decided in the determination of ownership process and certificates of title issued. In re Parcel No. 046-A-01, 6 FSM Intrm. 149, 156-57 (Pon. 1993).

Private individuals lack standing to assert claims on behalf of the public. When the state government has certified ownership of land, and the traditional leaders' suit to have land declared public land failed, private individuals can not raise the same claim. In re Parcel No. 046-A-01, 6 FSM Intrm. 149, 157 (Pon. 1993).

A hearing on all pending motions in the above matters was held. Because identical motions were filed in various groups of the above matters, the Court heard each motion once as relating to each of the cases in which the motion was filed. With the exception of plaintiffs' motion for summary judgment and defendants' motion for remand, the Court ruled on all motions from the bench. The following memorandum shall explain the reasoning behind those rulings.

This is an action for trespass. Plaintiffs are foreign development corporations doing business in Pohnpei, and the heirs of Florentine Etscheit, some of whom are FSM citizens. Defendants are all citizens of the FSM and residents of Pohnpei State.

The land in question is parcels No. 046-A-01, 046-A-02, and 046-A-04, as designated by the Pohnpei State Land Commission, located in Nett Municipality. Title to this land was issued to the Etscheits by the Land Commission in 1983 after a finding by the Trust Territory High Court. In re Etscheit's Property, H.C.T.T. Tr. Div. Civ. No. 142-78 (Pon. 1980), aff'd, Nanmwarki v. Etscheit Family, 8 TTR 287 (App. 1982).

On August 28, 1987, Robert Etscheit, Jr., as administrator of the Estate of Florentine Etscheit, leased parcel No. 046-A-02 to plaintiff Caroline Island Development Co. (CIDCO), a diversely held corporation doing business in Pohnpei. CIDCO then entered into a joint venture with Ponape Enterprises Co. (PEC), a corporation of Japanese ownership doing business in Pohnpei. The joint venture was chartered in 1988 and was named Pohnpei Agricultural Development Co. Ltd. (PADIC). CIDCO then subleased parcel No. 046-A-02 to PADIC for the development of a pepper farm.

Plaintiffs claim that defendants have entered onto land that is owned or leased by them without permission and have caused and continue to cause damage to crops and equipment and have caused plaintiffs to clear and re-clear structures and domestic agriculture seeded by the defendants. Plaintiffs seek declaratory and injunctive relief, as well as damages.

Defendants deny that the land in question belongs to the Etscheits. They dispute the process of determination of ownership by the Land Commission and claim that the land is "luen wehi" or public land and that, as such, it is their right as native Pohnpeians to use the land. Defendants seek an order invalidating the certificates of title and referring the issue of ownership to the Land Commission for a new determination.

Motions to dismiss were filed in five of the above matters.2 The Court denied the motions for lack of clarity and failure to argue the points raised and ordered the defendants to file responsive pleadings. Order, January 18, 1993. Instead, defendants filed motions to reconsider the denial and motions for leave to file a supplement to the original motions to dismiss.

Rule 8(b) refers to the defenses and denials that may be asserted in a pleading. A motion to dismiss is not a pleading. A pleading is a formal allegation of a party's claims and defenses. There are only seven kinds of pleadings: a complaint; an answer, with or without counterclaim; an answer to a counterclaim; a cross-claim (against a co-party); an answer to a cross-claim; a third-party complaint; a third-party answer. FSM Civil Rule 7(a) is clear that "[n]o other pleading shall be allowed, except that the Court may order a reply to an answer or a third-party answer."

A motion to dismiss is an application to the Court for an order, which must "state with particularity the grounds therefore, and shall set forth the relief or order sought." FSM Civ. R. 7(b). Specifically, a motion to dismiss on the grounds asserted by defendants)i.e. lack of jurisdiction, failure to state a claim)is governed by Rule 12(b), which requires that "[a] motion making any of these defenses shall be made before pleading if a further pleading is permitted." Therefore, as with any motion, there must be particular grounds argued with clarity and relevance. Defendants' motion to dismiss was denied for lack of these basic requirements.

The second argument for reconsideration is that lack of a response constitutes a granting of the motion. This argument has already been rejected by this Court. Failure to oppose a motion operates as a consent by the opposing party to the granting of the motion, not by the Court. The Court is not bound to grant motions as a matter of course simply because they are unopposed. Even when unopposed, a motion must be well grounded in law and fact, and not interposed for delay. Therefore, because the motion to dismiss was not well grounded in law, it was properly denied.

Defendants also present supplemental arguments that this Court lacks diversity jurisdiction over the parties. They claim that the foreign corporate plaintiffs either have no rights sufficient to bring a trespass action or are not necessary parties since their rights are dependent upon the rights of the citizen plaintiffs. The Court interprets this as an argument that the non-citizen plaintiffs lack standing to bring this trespass action.

Generally, a litigant must have standing to sue in order to bring an action before this Court. A party has "standing to sue" when that party has a sufficient stake or interest in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). The doctrine is used to determine whether or not a party is sufficiently affected by the controversy to be the proper party to bring the action before the Court. If a party lacks standing to sue, then this Court lacks jurisdiction over that party.

Standing to sue was an unsettled area of United States law when the FSM Constitution was ratified, and the issue of standing to sue within the FSM is one that calls for independent analysis rather than rigid adherence to the decisions of United States courts construing that constitution. Innocenti v. Wainit, 2 FSM Intrm. 173, 178-79 (App. 1986). Aisek v. FSM Foreign Investment Board, 2 FSM Intrm. 95, 98-99 (Pon. 1985). The standing requirement is not expressly stated in the FSM Constitution but implied as an antecedent to the constitutional case or dispute requirement and should be interpreted so as to implement the objectives of that requirement. Innocenti, 2 FSM Intrm. at 179.

In the above matters, the issue before the Court is whether or not the non-citizen plaintiffs have standing to sue the defendants for trespass when the non-citizen plaintiffs possess only lease-hold interests in the land in question. If the non-citizen plaintiffs lack standing to sue, then this Court would not have diversity jurisdiction over the parties and would have to dismiss the case.

Defendants argue that, because foreign persons cannot own land in the FSM, FSM Const. art. XIII, § 4; Pon. Const. art. XII, § 2, plaintiff CIDCO has no lawful possessory interest in the land in question; it therefore could not have leased the land to PADIC. According to the defendants, CIDCO's interest at best depends on the interest of the citizen plaintiffs and may be sufficiently defended by the citizens. Thus, the action should be between citizens and outside of this Court's jurisdiction.

Plaintiffs oppose the argument on the position that CIDCO has acquired an interest in the land by having leased it from the Etscheits. As a result of CIDCO's lease-hold interest, the joint venture agreement with PEC and the sublease to PADIC constitute valid possessory interests which may be asserted against the defendants.

A trespass action is essentially an action for violation of possession, not for challenge to title. 75 Am. Jur. 2d Trespass § 3 (1991). Hence, in order to maintain an action for trespass, a plaintiff must show a superior right of possession than the defendant. This possession may be actual or constructive. However, it need not be in the form of outright ownership and it need not be exclusive. One need not possess a fee simple interest, or freehold estate, in order to maintain an action for trespass against another. "The remedy of an action for trespass is available even to the one who is only a possessor of the property, even against the owner, where the possessor is considered provisionally as owner of the property he possess until the right of the true owner is established." Id. § 39, at 37-38. "Possession is sufficient to maintain an action for trespass when coupled with some interest in the land. Thus, possession has been held sufficient when under . . . lease from the owner . . . ." 87 C.J.S. Trespass § 23, at 975 (1954). Therefore, a leasehold interest in land, although of lesser quality than a freehold estate, is nonetheless a possessory interest in land and may form the basis of an action for trespass.

Defendants have based their motion to dismiss on the presumption that, since the non-citizen plaintiffs do not own the land in question, they cannot maintain an action for trespass on the land. However, as stated above, a leasehold interest is a possessory interest in land inferior to that of outright ownership. It is nonetheless a possessory interest which gives the non-citizen plaintiffs a sufficient stake in the dispute to obtain its resolution. This action is not to determine ownership or to quiet title; it is to re-establish possession. I therefore find that the non-citizen plaintiffs do have standing to maintain a trespass action against the defendants.

Because defendants had not answered the complaints in certain cases, defaults were entered.4 Defendants moved for leave to file a response because they had mistakenly assumed that they were being represented by counsel from Micronesian Legal Services Corporation. The Court finds excusable neglect and does vacate the default entry for good cause, pursuant to FSM Civil Rule 55(c).

Plaintiffs move for summary judgment in most of the above matters.5 Plaintiffs argue that no genuine issue of material fact remains in dispute and that they are entitled to judgment as a matter of law. Specifically, plaintiffs aver the following: The land in question is owned in fee simple by the Etscheits, leased to CIDCO, and sub-leased to PADIC as a joint venture between

CIDCO and PEC. The Etscheits have owned the land since 1983 and have certificates of title issued by the Land Commission to that effect. The leases and agreements between the plaintiffs were all executed in 1987 and 1988. Defendants, with two exceptions, have all come onto to the land in 1992 at different locations and have begun using it for personal consumption. Defendants admittedly possess no title to the land or official sanction to use the land. Therefore, as a matter of law, plaintiffs are entitled to relief from defendants' trespass.

Defendants oppose the motion for summary judgment on the ground that the Etscheits obtained title to the land by improper administrative procedure by the Land Commission before 1983 and that the Trust Territory High Court ruling in favor of the Etscheits was dispositive only against the Nanmwarki and Naniken of Nett as individuals. Defendants aver that notice and records of the proceedings are lacking and that the certificates are invalid as a result. Defendants also aver that, as natives of Pohnpei, they are entitled to use of "luen wehi" or public land, and that the land in question is such. Defendants also move for this Court to invalidate the certificates and to "remand" or refer the matter back to the Land Commission for a new determination of ownership.

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

Essentially, where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment must be granted. FSM Dev. Bank v. Rodriguez Corp., 2 FSM Intrm. 128, 130 (Pon. 1985); Wainit v. Truk (II), 2 FSM Intrm. 86, 87 (Truk 1985). The burden of showing a lack of triable issues of fact belongs to the moving party. FSM v. Ponape Builders Constr., Inc., 2 FSM Intrm. 48, 52 (Pon. 1985). Furthermore, in determining whether triable issues exist, the Court must view the facts presented and inferences made in the light most favorable to the party against whom summary judgment is sought. Kihara Real Estate, Inc. v. Estate of Nanpei (I), 6 FSM Intrm. 48, 52 (Pon. 1993); Bank of Guam v. Island Hardware, Inc., 2 FSM Intrm. 281, 284 (Pon. 1986).

To prevail in an action for trespass, a plaintiff must prove a wrongful interference with his possessory interest in the property. Essentially, a plaintiff must prove his possession of the property, the time and location of the trespass, the act of trespass. Damages naturally resulting from the trespass alleged may be proved without being specially pleaded. 87 C.J.S. Trespass § 85, at 1032-33 (1954).

Plaintiffs present certificates of title issued by the Land Commission in 1983 as proof of ownership by the Etscheits. Also submitted are the lease agreements between Robert Etscheit, Jr. and CIDCO, and the sub-lease between CIDCO and PADIC, as proof of CIDCO's and PEC"S respective leasehold interest in the property. Depositions of the individual defendants place the time of trespass as beginning in 1992 until the present, with two exceptions of earlier

When a party moves for summary judgment on an affirmative defense, putting forward arguments and evidence indicating that there is no material fact at issue and that the defense is insufficient as a matter of law, the opposing party must produce some evidence to rebut the moving party's evidence or the moving party is entitled to partial summary judgment. FSM Dev. Bank v. Rodriguez Corp., 2 FSM Intrm. at 130.

Defendants seek rebuttal of plaintiffs' case primarily by challenging their title to the property. Defendants argue that inadequate notice was given by the Land Commission in its determination of ownership process. However, defendants present no evidence of this lack of notice or of any other shortcomings in the Land Commission's process. Yet, defendants would have this Court invalidate certificates of title issued by the Land Commission pursuant to a High Court appellate ruling. 67 TTC 117(1), which is the applicable law in Pohnpei, states:

After the time for appeal from a determination of ownership by a land commission has expired without any notice of appeal having been filed, or after an appeal duly taken has been determined, the land commission shall issue a certificate of title setting forth the names of all persons or groups of persons holding interest in the land pursuant to the determination, either as originally made or as modified by the high court, as the case may be. Such certificate of title shall be conclusive upon all persons who have had notice of the proceedings and all those claiming under them and shall be prima facie evidence of ownership as therein stated against the world . . . .

Therefore, in view of the certificates of title issued by the Land Commission, ownership of the property must be presumed in favor of the Etscheits. Defendants must overcome this presumption by more than merely asserting lack of notice, especially since they have presented no evidence of interest in the property dating back to the determination process.7

Defendants assert that the property is "luen wehi" or public land and, as such, is the property of all native Pohnpeians. Defendants base this assertion on a Trust Territory policy letter which affirms the right of natives to subsist from the public domain. Defendants cite to the letter for the proposition that "[R]ulings by the Germans and Japanese which treated as public domain those land areas which were not used continuously by native people, violate some Micronesian

concepts of ownership."8 Defendants do not explain the relevance of this proposition to the factual issue of whether or not the property in the instant litigation is public or private. Defendants have stated their beliefs that the land is "luen wehi" but have offered no evidence and little explanation as to why they so believe. In view of the presumption of ownership in the Etscheits in the form of certificates of title issued by the Land Commission of Pohnpei State, mere assertions of "luen wehi" are an insufficient rebuttal.

Furthermore, the argument of "luen wehi" was made in the High Court action by the Nanmwarki and Naniken of Nett, since they were acting "individually and as representatives of their constituents and subjects." Nanmwarki v. Etscheit Family, 8 TTR at 289. The property that they were seeking to quiet title in was property which, they argued, belonged to the people of Nett. As such, the people of Nett were represented in that action by their traditional leaders and the High Court found that the property was not public or communal land. Therefore, defendants, who all claim to live in Nett, cannot now assert the argument of "luen wehi" as a defense. That claim is res judicata with regard to the defendants.

Finally, defendants, as private individuals, lack standing to assert claims on behalf of the public. Only the state government would have standing to assert such a claim, as representatives of the people. On this issue, Pohnpei State, through the Land Commission, has already certified ownership to the Etscheits, and the traditional leadership is precluded from reasserting the claim. Therefore, the claim cannot now be re-asserted by the defendants.

With regard to two defendants, the situation is somewhat different and requiring of separate analysis. Defendant Kindiniano Ligorio claims that he requested permission from the Public Lands Authority and that he has been using his plot of land for the past 20 years. Defendant Misail Padahk claims that he has been using the land since 1982.9 I find that both claims, if true, raise a factual issue of notice which, if viewed in a light most favorable to defendants Ligorio and Padahk, would deny the plaintiffs relief as a matter of law.

The facts presented to the Court constitute a prima facie claim for trespass against the defendants. Defendants have not presented any defense or evidence which rebuts plaintiffs' case. In choosing to focus exclusively on the issue of quality of title, defendants have largely ignored plaintiffs' motion for summary judgment. However, this is not an action to quiet title. Having viewed the facts in a light most favorable to the defendants, I find no genuine issue of material fact and conclude that plaintiffs are entitled to judgment as a matter of law. Plaintiffs' motions for summary judgment in the above matters are granted, with two exceptions: The motions in Civ. No. 1992-143 against Misail Padahk and in Civ. No. 1992-148 against Kindiniano Ligorio are denied.

Accordingly, these defendants are permanently enjoined from trespassing on Parcels No. 046-A-01, 046-A-02, and 046-A-04 located in Nett Municipality. Defendants are prohibited from farming, building, or otherwise going onto the property unless permitted by the plaintiffs or their agents. This injunction shall take effect thirty (30) days from the date of this order. During that time, defendants are expected to remove any crops or personal belongings from the property or risk forfeiture to the plaintiffs.

1. Defendant Misail Padahk on the one hand claims that he obtained permission from the Naniken of Nett in 1990; on the other hand, he claims that he has been using the land since 1982. See Dep. Misail Padahk, Civ. No. 1992-143. Also, Kindiniano Ligorio claims to have been on the land for 20 years but cannot remember obtaining title from the Public Lands Authority. See Dep. Kindiniano Ligorio, Civ. No. 1992-148.

8. The letter was appended to a state court opinion regarding whether or not submerged lands within the territory of Pohnpei State were "public lands" under the administration of the Pohnpei Public Lands Authority. See PTA v. Damarlane, PCA No. 25-91, slip op. at 69-70 (Mar. 14, 1991) (Declaratory Judgment).