The party seeking protection must be faced with irreparable harm before the litigation’s conclusion. There must be a clear showing that immediate and irreparable injury or loss or damages would otherwise occur, and there must be no adequate alternative remedy. Norita v. Tilfas, 13 FSM Intrm. 321, 324 (Kos. S. Ct. Tr. 2005).

     When the defendants have completed a burial and gravesite and continue to care for the gravesite on the parcel; when the plaintiff is unable to develop the parcel while the defendants utilize the parcel; and when the defendants would suffer immediate and irreparable harm due to plaintiffs’ damage to the defendants’ graves on the subject parcel, the court will conclude that both the plaintiff and the defendants have shown irreparable harm to the subject parcel and the gravesite by their actions. This factor weighs in favor of granting injunctive relief. Norita v. Tilfas, 13 FSM Intrm. 321, 324 (Kos. S. Ct. Tr. 2005).

     When the plaintiff will continue to experience interference with her development of the subject parcel as defendants will continue to access and utilize the parcel, and, if injunctive relief is granted, the defendants may continue to suffer damage to their gravesite and the surrounding area, the balance of possible injuries or inconveniences to the parties weighs in favor of granting injunctive relief. Norita v. Tilfas, 13 FSM Intrm. 321, 324 (Kos. S. Ct. Tr. 2005).

     Since there is strong public interest in the protection of the land registration and ownership determination process, in the court’s upholding of the finality of land ownership decisions, and in the rights of fee owners of land to assert their ownership rights, and since there is also strong public interest in the continuing protection of the grave sites for our ancestors, consistent with Kosraean custom and tradition, the public interest factor weighs in favor of injunctive relief. Norita v. Tilfas, 13 FSM Intrm. 321, 324 (Kos. S. Ct. Tr. 2005).

* * * *

ALIKSA B. ALIKSA, Associate Justice:

     The Plaintiff’s Motion for Preliminary Injunction was heard on June 30, 2005. Snyder Simon appeared for the Plaintiff. Sasaki George, MLSC, appeared for the Defendants.

     Based upon the pleadings, evidence received at the hearing and the record, I make the following findings. The subject property is parcel no. 029-U-03, located in Isra, Utwe Municipality. Plaintiff is an heir of Fritz Weilbacher, who passed away many years ago. Defendant is also a relative of Fritz Weilbacher. The "Heirs of Fritz Weilbacher" are listed as owners, as tenants in common, of parcel 029-

U-03, on the Determination of Ownership issued in September 1994. No Certificate of Title was presented at the hearing. Plaintiff claims to represent the Heirs of Fritz Weilbacher, through a Power of Attorney executed by one Joanna Abraham. Plaintiff Shirly Ann Norita appeared at the hearing, but none of the other heirs of Fritz Weilbacher appeared.

     Defendant Ludwig Tilfas claims that he owns part of parcel 029-U-03 through a land exchange made with Heinrik Weilbacher, who was also one of the Heirs of Fritz Weilbacher. Heinrik Weilbacher has also passed away. Defendant claims that he exchanged land at Leyot, Lelu, for the subject parcel. Defendant has built a house, planted and cultivated crops, and completed burials of family members on the subject parcel for more than ten years. Heinrik Weilbacher was served the Determination of Ownership on behalf of the Heirs of Fritz Weilbacher in February 1995. Defendants claim that the Plaintiff have damaged the Defendants’ gravesite at the subject parcel.

     Plaintiff now seeks a Preliminary Injunction to prohibit Defendants from any unlawful activity and further activity on the subject parcels, until this matter is resolved.

     The standard for issuance of a preliminary injunction has been long established. This Court must consider the following four criteria in determining whether to grant a preliminary injunction:

Seventh Kosrae State Legislature v. Sigrah, 11 FSM Intrm. 110 (Kos. S. Ct. Tr. 2002).

     Based upon the evidence presented at the hearing, the record and the law, I considered the four criteria as follows.

1.  The likelihood of success on the merits of the party seeking injunctive relief

     The Plaintiff is one of the Heirs of Fritz Weilbacher. The Power of Attorney executed by Johanna Abraham provides Plaintiff authority to act on behalf of only Johanna Abraham. The remaining heirs of Fritz Weilbacher have not appeared in this action and it is unclear whether they are parties hereto. Therefore, for the purposes of this Motion, the Plaintiff is accepted to represent the interests of Johanna Abraham only, as one of the heirs of Fritz Weilbacher.

     A Certificate of Title is prima facie evidence of ownership. Jonas v. Paulino, 9 FSM Intrm. 513 (Kos. S. Ct. Tr. 2000). Courts are required to attach a presumption of correctness to a Certificate of Title. Marcus v. Truk Trading Corp., 11 FSM Intrm. 152 (Chk. 2002). Here, the Plaintiff has not presented a Certificate of Title for the subject parcel. Plaintiff has presented a Determination of Ownership that is more than ten years old. Defendant claims that he is the owner of the subject parcel through a land exchange completed with the late Heinrik Weilbacher. Defendant claims a transaction was completed to transfer title of the exchanged parcels.

     The Plaintiff’s likelihood of success on the merits is unclear, based upon lack of clear representation of all heirs of Fritz Weilbacher, based upon lack of conclusive title through a Certificate of Title, and based upon Defendant’s claim to title of the subject parcel through a land exchange.

2.  The possibility of irreparable injury.

     The party seeking protection must be faced with irreparable harm before the conclusion of the litigation. There must be a clear showing that immediate and irreparable injury or loss or damages would otherwise occur, and there must be no adequate alternative remedy. Seventh Kosrae State Legislature v. Sigrah, 11 FSM Intrm. at 113-114.

     Plaintiff argues immediate and irreparable harm will result before trial of this matter through activities of the Defendants. Defendants have completed a burial and gravesite, and continue to care for the gravesite on the parcel. Plaintiff argues that she is unable to develop the parcel while the Defendants utilize the parcel.

     Defendants argue they would suffer immediate and irreparable harm due to Plaintiffs’ damage to the Defendants’ graves on the subject parcel. The Court accepts Defendants’ claims that the damage to the graves constitute desecration in violation of sanctity provided to grave sites by Kosraean custom.

     Based upon the record and upon the evidence presented at the hearing, I conclude that both Plaintiff and Defendants have shown irreparable harm to the subject parcel and the gravesite by their actions. This factor weighs in favor of granting injunctive relief.

3.  The balance of possible injuries or inconveniences to the parties from granting or denying relief.

     If injunctive relief is denied, Plaintiff will continue to experience interference with her development of the subject parcel, as Defendants will continue to access and utilize the parcel. If injunctive relief is granted, the Defendants may continue to suffer damage to their gravesite and the surrounding area. Based upon these considerations, the balance of possible injuries or inconveniences to the parties weighs in favor of granting injunctive relief.

4.  Impact on the public interest.

     The final criteria to be considered in an application for injunctive relief is the impact upon public interest. There is strong public interest in the protection of the land registration and ownership determination process. There is strong public interest in the Court’s upholding of the finality of land ownership decisions, and the rights of fee owners of land to assert their ownership rights. There is also strong public interest in the continuing protection of the grave sites for our ancestors, consistent with Kosraean custom and tradition. This factor weighs in favor of injunctive relief.

5.  Conclusion.

     Based upon careful consideration of the testimony and other evidence submitted at the hearing, the record in this matter, arguments of counsel and applicable law, I conclude that injunctive relief is warranted for both parties. Accordingly, the Plaintiff’s Motion for Preliminary Injunction is granted, applicable to both parties, as follows.

     A Preliminary Injunction is entered against the Plaintiffs and Defendants as follows:

     This matter is remanded to the Kosrae Land Court. The Land Court shall provide to this Court, a copy of the current Certificate of Title for parcel 029-U-03, or if no Certificate of Title has been issued, the written reasons for its non-issuance, within 14 days of service of this order. Further proceedings shall be set following receipt of the documents from the Land Court.

* * * *