FSM 6 Intrm. 199-203

When land is granted for "for so long as it is used for missionary purposes," the original grantors retain a reversionary interest. Dobich v. Kapriel, 6 FSM Intrm. 199, 201 (Chk. S. Ct. Tr. 1993).

Res judicata does not apply when different land is involved than the previous case and only one of the parties is the same. Dobich v. Kapriel, 6 FSM Intrm. 199, 201 (Chk. S. Ct. Tr. 1993).

Land granted for "for so long as it is used for missionary purposes," is not a constitutionally prohibited indefinite land use agreement because the length of the term of the land use will

continue, with all certainty, as long as a court determines that the land is still being used for missionary purposes. The term is definite, because its termination can be determined with certainty. Dobich v. Kapriel, 6 FSM Intrm. 199, 202 (Chk. S. Ct. Tr. 1993).

The Constitutional prohibition against indefinite land use agreements does not apply to an agreement where none of the parties are a non-citizen, a corporation not wholly owned by citizens, or a government. Dobich v. Kapriel, 6 FSM Intrm. 199, 202 (Chk. S. Ct. Tr. 1993).

Plaintiffs, who are a Protestant Mission and FSM citizens, filed their complaint in this action on December 10, 1991 seeking to quiet title and to be awarded injunctive relief in regards to a plot of dryland called Wiras in Sopore Village, in the Municipality of Fefan. Plaintiffs claim that almost one hundred years ago, the owner of Wiras granted the land of Wiras to the plaintiff mission "for so long as it is used for missionary purposes." Now, plaintiffs claim, the defendant is attempting to unlawfully construct a house on Wiras, and in so doing, the defendant has unlawfully removed dirt, rocks, trees and crops from Wiras.

The defendant claims that Wiras belongs to him, because he inherited it from Simi. He claims that his ancestor, Simi, gave the Protestant mission permission to use the land for missionary purposes. The defendant also asserts that the plaintiff was granted the right to use Wiras for an indefinite term and that such a term is in violation of the FSM Constitution, article XIII, section 5, which prohibits land use agreements for indefinite terms. As a result, defendant argues that the plaintiff no longer has any right to use Wiras under their original and now unlawful land use agreement.

There are also two intervenors in this action. One, Opera Sain, claims that she owns portions of Wiras, from her father, Nuchin. The other, Tosiko Inek et al., claims that Wiras was originally owned by Puas and Omouru, and that the land was given to these two women, Inecho and Nisin, who gave the mission permission to use it. They also argue that the land of Wiras should now revert to them because of the same constitutional argument made by the defendant - however, they claim that the land should revert to them as opposed to the defendant.

On December 18, 1991, the court granted a Temporary Restraining Order (TRO) to the plaintiff, enjoining the defendant, his representatives and agents from removing dirt, rocks, cutting down tress and crops, or doing constructing any house on Wiras.

On February 2, 1992, a preliminary injunction was issued by this Court enjoining the defendant and the intervenors from removing any items from Wiras, planting any new trees, or undertaking any construction, except that Joseph Kapriel was authorized to complete the construction of the men's house on the land.

The Court finds that the Protestant mission has used the land at issue here, called Wiras, for almost one hundred years, and has done so for missionary purposes. It also finds that the plaintiffs were granted the right to use this land, "for so long as it is used for missionary purposes," and as a result, the original grantors retain a reversionary interest in Wiras. This reversionary interest will cause all the rights held by the plaintiff in regards to Wiras to revert to the original grantor in the event that the land ever ceases to be used for missionary purposes. However, the court finds that the land is still used for missionary purposes by the plaintiffs, and thus the land will not revert to the original grantor at this time.

The issue of res judicata, as raised by the defendant, is not applicable to this case for the reason that the taro patch involved in Joseph v. Onesi, 2 TTR 435 (Truk 1963) involved different land from what is at issue in this case. Further, even if the same land were involved here, that case and this case do not involve the same opposing parties - only one party is identical between these cases. For these reasons, the doctrine of res judicata does not legally apply here.

The defendant and intervenors claim that the land use agreement for the use of Wiras by the mission, "for so long as it is used for missionary purposes," is violative of the Constitution of the Federated States of Micronesia, article XIII, section 5, on the grounds that this is an "indefinite" land use agreement. The case of Joseph v. Onesi, 2 TTR 435 (Truk 1963) dealt with the issue of land rights that were granted "for so long as they are used for missionary purposes." However, in that case, the Court merely decided that agreements to use land with the above quoted limitations are considered to create rights to use land in indefinite ways. The case did not reach the issue of whether such agreements have a definite or indefinite time duration, or term.

So, while the nature of the use of land granted "for so long as it is used for missionary purposes," has been held by previous courts to be indefinite, the length of the use of the land in such agreements has not been previously decided to be either definite or indefinite. As a result, this present case involves an issue of first impression for the Court.

The controlling law on this issue is the Constitution of the Federated States of Micronesia, article XIII, section 5, as amended on August 29, 1990, which states that, "A lease agreement for the use of land for an indefinite term by a noncitizen, a corporation not wholly owned by citizens, or

any government is prohibited." FSM Const. art. XIII, § 5. In this case, the party was allowed to use the land in question for a period of time described as: "for so long as the land is used for missionary purposes." The first issue, then, is whether the phrase, "for so long as it is used for missionary purposes," should be considered a definite term, or an indefinite term. The crux of this issue necessarily rests upon defining the meaning of the word, "definite." Webster's Third International Dictionary 592 (1971) defines "definite" as: "having distinct or certain limits; determinate in extent or character; limited, fixed."

In the present action, the duration of the land use term does have "certain limits" and its duration can also be determined in "extent or character." The reason being is that the term in question here will last only as long as the land is used for missionary purposes. The use of the land for this said purpose is a decidable issue of fact. The length of the term of the land use will continue, with all certainty, as long as a court determines that the land is still being used for missionary purposes. The term at issue here is definite, because its termination can be determined with certainty. Therefore, the land use agreement at issue here does not violate article XIII, section 5 on the alleged grounds that it is indefinite in nature.

The Court further holds that article XIII, section 5 of the FSM Constitution does not apply to the plaintiffs, regardless of whether the land agreement term here is definite or not. Article XIII, section 5 only prohibits lease agreements of an indefinite term by a "non-citizen, a corporation not wholly owned by citizens, or any government." Because the plaintiffs are neither a corporation, or a government, or non-citizens, the prohibitions of this section do not apply to them. For this additional reason, plaintiffs' land use agreement does not violate article XIII, section 5 of the FSM Constitution, as alleged by the other parties.

As to the issue of the proper boundaries of Wiras, the Court hereby finds that those boundaries asserted by the intervenors Tosiko Inek et al., are the proper and legal boundaries. The defendant's men's house is held to be within those boundaries and on the land of Wiras. Defendant is therefore ordered to remove said men's house from Wiras, within 6 months of this order, unless the plaintiff gives him permission to do otherwise.

Defendant's motion that the security bond posted by the plaintiff should be paid to him is denied. Any other ruling on this matter would be inconsistent with this order.

In conclusion, the Court hereby holds that the plaintiffs have the right to use Wiras for as long as they desire, so long as the land is used for missionary or church purposes. Because Wiras is still being used by the plaintiffs for missionary purposes, the Court does not find it necessary at this time to decide the issue of who owns the reversionary interests in this property. While this order does not decide the identity of the original grantors to the plaintiff, the original grantors and their successors do nonetheless retain the reversionary interests in the land at issue here, and, as a result, may reclaim the land when and if it ever ceases to be used for missionary or church purposes.

In accordance with this ruling, the defendants and intervenors are permanently enjoined from entering upon the land of Wiras or doing any activities upon Wiras of any sort, without the prior permission of the plaintiffs, except that the defendant shall have the right to enter Wiras in a reasonable manner during the next six months solely for the purpose of removing his men's house.


	THE SUPREME COURT OF THE FEDERATED STATES OF MICRONESIA Cite as Dobich v. Kapriel , 6 FSM Intrm. 199 (Chk. S. Ct. Tr. 1993) [6 FSM Intrm. 199] REVEREND IESI DOBICH et al., Plaintiffs, vs. JOSEPH KAPRIEL, Defendant, vs. OPERA SAIN, Intervenor, vs. TOSIKO INEK et al., Intervenors. CSSC CASE NO. 198-91 OPINION Soukichi Fritz Chief Justice Chuuk State Supreme Court Decided: July 14, 1993 Amended: July 16, 1993 * * * * HEADNOTES Property When land is granted for "for so long as it is used for missionary purposes," the original grantors retain a reversionary interest. Dobich v. Kapriel, 6 FSM Intrm. 199, 201 (Chk. S. Ct. Tr. 1993). Civil Procedure ) Res Judicata Res judicata does not apply when different land is involved than the previous case and only one of the parties is the same. Dobich v. Kapriel, 6 FSM Intrm. 199, 201 (Chk. S. Ct. Tr. 1993). Constitutional Law ) Indefinite Land Use Agreement; Property Land granted for "for so long as it is used for missionary purposes," is not a constitutionally prohibited indefinite land use agreement because the length of the term of the land use will [6 FSM Intrm. 200] continue, with all certainty, as long as a court determines that the land is still being used for missionary purposes. The term is definite, because its termination can be determined with certainty. Dobich v. Kapriel, 6 FSM Intrm. 199, 202 (Chk. S. Ct. Tr. 1993). Constitutional Law ) Indefinite Land Use Agreement; Property The Constitutional prohibition against indefinite land use agreements does not apply to an agreement where none of the parties are a non-citizen, a corporation not wholly owned by citizens, or a government. Dobich v. Kapriel, 6 FSM Intrm. 199, 202 (Chk. S. Ct. Tr. 1993). * * * * COURT'S OPINION SOUKICHI FRITZ, Chief Justice: PARTY CLAIMS Plaintiffs, who are a Protestant Mission and FSM citizens, filed their complaint in this action on December 10, 1991 seeking to quiet title and to be awarded injunctive relief in regards to a plot of dryland called Wiras in Sopore Village, in the Municipality of Fefan. Plaintiffs claim that almost one hundred years ago, the owner of Wiras granted the land of Wiras to the plaintiff mission "for so long as it is used for missionary purposes." Now, plaintiffs claim, the defendant is attempting to unlawfully construct a house on Wiras, and in so doing, the defendant has unlawfully removed dirt, rocks, trees and crops from Wiras. The defendant claims that Wiras belongs to him, because he inherited it from Simi. He claims that his ancestor, Simi, gave the Protestant mission permission to use the land for missionary purposes. The defendant also asserts that the plaintiff was granted the right to use Wiras for an indefinite term and that such a term is in violation of the FSM Constitution, article XIII, section 5, which prohibits land use agreements for indefinite terms. As a result, defendant argues that the plaintiff no longer has any right to use Wiras under their original and now unlawful land use agreement. There are also two intervenors in this action. One, Opera Sain, claims that she owns portions of Wiras, from her father, Nuchin. The other, Tosiko Inek et al., claims that Wiras was originally owned by Puas and Omouru, and that the land was given to these two women, Inecho and Nisin, who gave the mission permission to use it. They also argue that the land of Wiras should now revert to them because of the same constitutional argument made by the defendant - however, they claim that the land should revert to them as opposed to the defendant. PROCEDURAL BACKGROUND On December 18, 1991, the court granted a Temporary Restraining Order (TRO) to the plaintiff, enjoining the defendant, his representatives and agents from removing dirt, rocks, cutting down tress and crops, or doing constructing any house on Wiras. On January 15, 1992, intervenor Opera Sain filed her complaint, claiming legal title and ownership to a portion of Wiras. On January 28, 1992, intervenors Tosiko Inek et al., filed their complaint claiming that they [6 FSM Intrm. 201] are the proper and legal owners of Wiras. The Court ordered that the preliminary injunction hearing and the trial on merits be consolidated. On February 2, 1992, a preliminary injunction was issued by this Court enjoining the defendant and the intervenors from removing any items from Wiras, planting any new trees, or undertaking any construction, except that Joseph Kapriel was authorized to complete the construction of the men's house on the land. FINDINGS AND ANALYSIS I. The Court finds that the Protestant mission has used the land at issue here, called Wiras, for almost one hundred years, and has done so for missionary purposes. It also finds that the plaintiffs were granted the right to use this land, "for so long as it is used for missionary purposes," and as a result, the original grantors retain a reversionary interest in Wiras. This reversionary interest will cause all the rights held by the plaintiff in regards to Wiras to revert to the original grantor in the event that the land ever ceases to be used for missionary purposes. However, the court finds that the land is still used for missionary purposes by the plaintiffs, and thus the land will not revert to the original grantor at this time. II. The issue of res judicata, as raised by the defendant, is not applicable to this case for the reason that the taro patch involved in Joseph v. Onesi, 2 TTR 435 (Truk 1963) involved different land from what is at issue in this case. Further, even if the same land were involved here, that case and this case do not involve the same opposing parties - only one party is identical between these cases. For these reasons, the doctrine of res judicata does not legally apply here. III. The defendant and intervenors claim that the land use agreement for the use of Wiras by the mission, "for so long as it is used for missionary purposes," is violative of the Constitution of the Federated States of Micronesia, article XIII, section 5, on the grounds that this is an "indefinite" land use agreement. The case of Joseph v. Onesi, 2 TTR 435 (Truk 1963) dealt with the issue of land rights that were granted "for so long as they are used for missionary purposes." However, in that case, the Court merely decided that agreements to use land with the above quoted limitations are considered to create rights to use land in indefinite ways. The case did not reach the issue of whether such agreements have a definite or indefinite time duration, or term. So, while the nature of the use of land granted "for so long as it is used for missionary purposes," has been held by previous courts to be indefinite, the length of the use of the land in such agreements has not been previously decided to be either definite or indefinite. As a result, this present case involves an issue of first impression for the Court. The controlling law on this issue is the Constitution of the Federated States of Micronesia, article XIII, section 5, as amended on August 29, 1990, which states that, "A lease agreement for the use of land for an indefinite term by a noncitizen, a corporation not wholly owned by citizens, or [6 FSM Intrm. 202] any government is prohibited." FSM Const. art. XIII, § 5. In this case, the party was allowed to use the land in question for a period of time described as: "for so long as the land is used for missionary purposes." The first issue, then, is whether the phrase, "for so long as it is used for missionary purposes," should be considered a definite term, or an indefinite term. The crux of this issue necessarily rests upon defining the meaning of the word, "definite." Webster's Third International Dictionary 592 (1971) defines "definite" as: "having distinct or certain limits; determinate in extent or character; limited, fixed." In the present action, the duration of the land use term does have "certain limits" and its duration can also be determined in "extent or character." The reason being is that the term in question here will last only as long as the land is used for missionary purposes. The use of the land for this said purpose is a decidable issue of fact. The length of the term of the land use will continue, with all certainty, as long as a court determines that the land is still being used for missionary purposes. The term at issue here is definite, because its termination can be determined with certainty. Therefore, the land use agreement at issue here does not violate article XIII, section 5 on the alleged grounds that it is indefinite in nature. The Court further holds that article XIII, section 5 of the FSM Constitution does not apply to the plaintiffs, regardless of whether the land agreement term here is definite or not. Article XIII, section 5 only prohibits lease agreements of an indefinite term by a "non-citizen, a corporation not wholly owned by citizens, or any government." Because the plaintiffs are neither a corporation, or a government, or non-citizens, the prohibitions of this section do not apply to them. For this additional reason, plaintiffs' land use agreement does not violate article XIII, section 5 of the FSM Constitution, as alleged by the other parties. IV. As to the issue of the proper boundaries of Wiras, the Court hereby finds that those boundaries asserted by the intervenors Tosiko Inek et al., are the proper and legal boundaries. The defendant's men's house is held to be within those boundaries and on the land of Wiras. Defendant is therefore ordered to remove said men's house from Wiras, within 6 months of this order, unless the plaintiff gives him permission to do otherwise. V. Defendant's motion that the security bond posted by the plaintiff should be paid to him is denied. Any other ruling on this matter would be inconsistent with this order. In regards to court costs and attorney's fees, all parties should bear their own expenses. VI. CONCLUSION In conclusion, the Court hereby holds that the plaintiffs have the right to use Wiras for as long as they desire, so long as the land is used for missionary or church purposes. Because Wiras is still being used by the plaintiffs for missionary purposes, the Court does not find it necessary at this time to decide the issue of who owns the reversionary interests in this property. While this order does not decide the identity of the original grantors to the plaintiff, the original grantors and their successors do nonetheless retain the reversionary interests in the land at issue here, and, as a result, may reclaim the land when and if it ever ceases to be used for missionary or church purposes. [6 FSM Intrm. 203] In accordance with this ruling, the defendants and intervenors are permanently enjoined from entering upon the land of Wiras or doing any activities upon Wiras of any sort, without the prior permission of the plaintiffs, except that the defendant shall have the right to enter Wiras in a reasonable manner during the next six months solely for the purpose of removing his men's house. * * * *