CIVIL ACTION NO. 67-05

For the Plaintiff:   Snyder H. Simon, trial counselor

                                 P.O. Box 1017

                                 Tofol, Kosrae   FM   96944

For the Defendants:   Sasaki L. George, Esq.

                                         Micronesian Legal Services Corporation

                                         P.O. Box 38

                                         Tofol, Kosrae   FM   96944

     Certificates of title are prima facie evidence of ownership. Norita v. Tilfas, 13 FSM Intrm. 424, 426 (Kos. S. Ct. Tr. 2005).

     Land use agreements involving family members are usually verbal. Norita v. Tilfas, 13 FSM Intrm. 424, 426 (Kos. S. Ct. Tr. 2005).

     Customary land use rights, such as for burials and gravesites, are a form of property right. Norita v. Tilfas, 13 FSM Intrm. 424, 426 (Kos. S. Ct. Tr. 2005).

     When, pursuant to state law, parties were granted and therefore maintain a permanent land use right to access a parcel and use a portion thereof for maintenance of their existing gravesites, this permanent land use right passes with the parcel until it is extinguished in a lawful manner independent of the certificate of title. Norita v. Tilfas, 13 FSM Intrm. 424, 427 (Kos. S. Ct. Tr. 2005).

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ALIKSA B. ALIKSA, Associate Justice:

     A further hearing was held in this matter on August 11, 2005. Snyder Simon appeared for the Plaintiff. Sasaki George, MLSC, appeared for the Defendants. After the hearing, I issued my ruling verbally. This Judgment and Order sets forth my findings, conclusions and orders issued in this matter.

      Based upon the pleadings, evidence received at this hearing, the hearing held on June 30, 2005, and the record, I make the following findings. The subject property is parcel number 029-U-03, located

in Isra, Utwe Municipality. Plaintiff is an heir of Fritz Weilbacher. Fritz Weilbachers 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. Heinrick Weilbacher was served the Determination of Ownership on behalf of the Heirs of Fritz Weilbacher in February 1995. No appeal was taken and title become final in June 1995 pursuant to Kosrae State Code, Title 11, Chapter 6.

     The Certificate of Title issued for parcel 029-U-03, on May 24, 2005, also lists the "Heirs of Fritz Weilbacher" as owners in tenancy-in-common. Plaintiff represents the Heirs of Fritz Weilbacher, through a Power of Attorney executed by 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 Heinrick Weilbacher, who was also one of the Heirs of Fritz Weilbacher. Heinrick 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. A portion of Parcel 029-U-03 contains gravesites of the Defendants’ family members. Likewise, a portion of the Leyot parcel contains gravesites of the Plaintiffs’ family members.

     Defendants claim that the Plaintiff have damaged the Defendants’ gravesites at the subject parcel. Plaintiff seeks judgment and a permanent injunction to prohibit Defendants from any unlawful activity and further activity on the subject parcel. A Preliminary Injunction was issued against both parties by Order entered on July 4, 2005.

     Based upon careful consideration of the testimony and other evidence submitted at the hearings, the record in this matter, arguments of counsel and applicable law, I conclude that the Plaintiff has presented prima facie evidence of the fee simple ownership of parcel 029-U-03 by the Heirs of Fritz Weilbacher. Certificates of Title are prima facie evidence of ownership. Sigrah v. Kosrae State Land Comm’n, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999).

     I further conclude that the Defendants have fulfilled their burden of proof to show that Heinrick Weilbacher, on behalf of the Heirs of Fritz Weilbacher, gave the Defendants a land use right to utilize a portion of parcel 029-U-03 for family burials and gravesites. Likewise, I conclude that the Defendants have given the Plaintiffs a right to utilize a portion of their parcel at Leyot for Plaintiffs’ family burials and gravesites. This Court has recognized that land use agreements involving family members are usually verbal. James v. Lelu Town, 10 FSM Intrm. 648, 649 (Kos. S. Ct. Tr. 2002). Customary land use rights, such as for burials and gravesites, are a form of property right. See Rosokow v. Bob, 11 FSM Intrm. 210 (Chk. S. Ct. App. 2002).

     The land use right granted by Heinrick Weilbacher to the Defendants for access and for a portion of parcel 029-U-03 for use for gravesites was utilized by the Defendants for many years without interference by the Plaintiff. The land use right was utilized by the Defendant for more than ten years before the issuance of the Certificate of Title in May 2005. The land use right granted by the Defendants to Heinrick Weilbacher for access and for a portion of Leyot parcel for use for gravesites was utilized by the Plaintiffs for many years without interference by the Plaintiff.

      Kosrae State Code, Section 11.615(4) provides that a preexisting easement or other right appurtenant to the land remains appurtenant, even if it is not described in the Certificate of Title.

Pursuant to Section 11.615(4), the land use right provided by Heinrick Weilbacher to the Defendants for use of a portion of parcel 029-U-03 and access thereto, remains appurtenant to the parcel, even if it is not described in the Certificate of Title. This land use right of the Defendants to access parcel 029-U-03 and utilize a portion thereof for their gravesites belongs to parcel 029-U-03 and is a permanent right of the Defendants. See Black’s Law Dictionary 103 (6th ed. 1990) (definitions of appurtenance and appurtenant). Accordingly, pursuant to State Law, the Defendants were granted and therefore maintain a permanent land use right to access parcel 029-U-03 and use a portion thereof for maintenance of their existing gravesites. This Permanent Land Use Right granted to the Defendants passes with the parcel 029-U-03 until it is extinguished in a lawful manner independent of the Certificate of Title. Kos. S.C. § 11.605(4)(b).

      Similarly, the land use right provided by the Defendants to Heinrick Weilbacher and the Plaintiffs for use of a portion of the Leyot parcel and access thereto, remains appurtenant to the parcel, even if it is not described in the Certificate of Title. This land use right of the Plaintiffs to access the Leyot parcel and utilize a portion thereof for their gravesites belongs to the Leyot parcel and is a permanent right of the Plaintiffs. See Black’s Law Dictionary 103 (6th ed. 1990) (definitions of appurtenance and appurtenant). Accordingly, pursuant to State Law, the Plaintiffs were granted and therefore maintain a permanent land use right to access the Leyot parcel and use a portion thereof for maintenance of their existing gravesites. This Permanent Land Use Right granted to the Plaintiffs passes with the Leyot parcel until it is extinguished in a lawful manner independent of the Certificate of Title. Kos. S.C. § 11.605(4)(b).

      Judgment is granted as follows. Plaintiffs’ fee simple ownership of parcel 029-U-03 as tenants-in-common is confirmed, as specified on the Certificate of Title. Defendants are confirmed holders of a permanent land use right appurtenant to parcel 029-U-03. The permanent land use right consists of access through parcel 029-U-03 and use of a portion thereof for Defendants’ gravesites and the surrounding area. Accordingly, Defendants’ permanent right of access through parcel 029-U-03 to the gravesite area is confirmed. Defendants’ permanent rights to use a portion of parcel 029-U-03 for maintenance of their existing gravesites and the surrounding area is confirmed.

      Plaintiffs are confirmed holders of a permanent land use right appurtenant to the Leyot parcel. The permanent land use right consists of access through the Leyot parcel and use of a portion thereof for Plaintiffs’ gravesites and the surrounding area. Accordingly, Plaintiffs’ permanent right of access through the Leyot parcel to the gravesite area is confirmed. Plaintiffs’ permanent rights to use a portion of the Leyot parcel for maintenance of their existing gravesites and the surrounding area is confirmed.

     A Permanent Injunction and Order Confirming Permanent Land Use Rights is entered as follows:

     The Land Court shall file a copy of this Permanent Injunction and Order Confirming Permanent Land Use Right in the Land Court files for parcel 029-U-03 and the Leyot parcel. The Land Court shall file a copy of the map submitted by the Plaintiff which designates the location of the Defendants’

gravesites and surrounding area. The Land Court shall file a copy of the map submitted by the Defendant which designates the location of the Plaintiffs’ gravesites and surrounding area.

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