CIVIL ACTION NO. 2003-1006

For the Plaintiffs:   Fredrick Hartman

                                   P.O. Box 222

                                   Weno, Chuuk   FM   96942

                                      (Kin) P.O. Box 1650

                                      Weno, Chuuk   FM   96942

For the Defendant:   Craig D. Reffner, Esq.

                                       (FSM Telecom. Corp.) Law Office of Fredrick L. Ramp

                                       P.O. Box 1480

                                       Kolonia, Pohnpei   FM   96941

     Trespass actions determine who has a better right to possession of the land. Kiniol v. Kansou, 13 FSM Intrm. 456, 458 (Chk. 2005).

     Any request or application made to the court for relief is considered a motion. Kiniol v. Kansou, 13 FSM Intrm. 456, 459 n.2 (Chk. 2005).

     Failure to oppose a motion is generally deemed a consent to the motion. Kiniol v. Kansou, 13 FSM Intrm. 456, 459 (Chk. 2005).

     Determination of property boundaries is generally the responsibility of the state land commission because under the primary jurisdiction doctrine it is for the Land Commission, not the court, to decide land boundaries, and the Land Commission must be given the chance to conclude its administrative process. Kiniol v. Kansou, 13 FSM Intrm. 456, 459 (Chk. 2005).

     When the plaintiffs have not shown that the Land Commission committed an error of law or that its findings lacked a substantial factual basis, the court will accept the Land Commission’s finding that no part of the tower is on the plaintiffs’ property. Kiniol v. Kansou, 13 FSM Intrm. 456, 459 (Chk. 2005).

* * * *

     On September 20, 2005, this matter came before the court for hearing. This action involves a small plot of land on which defendant FSM Telecommunications Corporation ("Telecom") built, with

defendant Noah Kansou’s permission, a tower used to provide cellular telephone service in Chuuk. This plot is in Sapuk, on the island of Weno. The plaintiffs allege that in 1978 the boundary between their land and that now owned by defendant Weit Kin was altered so that part of the plot where the tower is located is their property and not Kin’s.

     As relief, the plaintiffs ask that they be declared the true landowners, that Kin be evicted from the plot, that the court, using its injunctive powers, order Telecom’s tower removed, and that they be paid damages. The plaintiffs characterize this action as one for trespass. Trespass actions determine who has a better right to possession of the land. See Rosario v. College of Micronesia-FSM, 11 FSM Intrm. 355, 359 (App. 2003); Marcus v. Truk Trading Corp., 10 FSM Intrm. 387, 390 (Chk. 2001); Ikanur v. Director of Educ., 7 FSM Intrm. 275, 277 (Chk. S. Ct. Tr. 1995); Sana v. Chuuk, 7 FSM Intrm. 252, 254 (Chk. S. Ct. Tr. 1995). On December 11, 2003, a preliminary injunction was issued to maintain the status quo while this action was pending. In re FSM Telcomm. Corp. Cellular Tower, 12 FSM Intrm. 243 (Chk. 2003).

     The plaintiffs are the undisputed owners of land known as Winikinerong and defendant Weit Kin is the representative of the undisputed owners of land known as Nichong. The Land Commission has issued the plaintiffs a Determination of Ownership for Winikinerong and issued a Determination of Ownership for Nichong to Noah Kansou and his brothers and sisters. Currently, Telecom, with permission of Kin’s predecessor in interest, Kansou, is in possession of the plot because its tower sits on it.

     The plaintiffs claim that their predecessor in interest, Tiu Kiniol, acquired a portion of Nichong in September, 1978 by means of a $100 payment to "straighten" the boundary between Nichong and Winikinerong. Thus the ownership of Winikinerong and Nichong are not in dispute. Only the boundary between them is disputed.

     On July 1, 2004, the Land Commission issued its decision (filed with this court on July 2, 2004). Its conclusion, as translated by this court’s Justice Ombudsman, was that "1. The boundary land where the FSM Tele-Communication situated is on the boundary of ‘NICHONG’. 2. The land ‘NICHONG’ belong to the Defendant Noah Kansou and his people. 3. The conflict boundary between

the two (2) land ‘WINIKINERONG’ and ‘NICHONG’, this Registration Team admits the boundary line for the Defendant." Findings from the Registration Team, Land Commission at 3 (July 14, 2004 trans.).

     On August 11, 2004, Weit Kin filed his Request for Modification of the English Translation of the Findings of the Registration Team, Land Commission. It asked that the translation be corrected to read that the Registration Team concluded that "1. The parcel of land where the FSM Telecommunication did its construction on a portion of ‘NICHONG’. 2. The land ‘NICHONG’ belongs to Defendant Noah Kansou and his people. 3. The boundary dispute between the two (2) lands ‘WINIKINERONG’ and ‘NICHONG’, the Registration Team accepts the boundaries that were set by the Defendant." No opposition was filed to this "Request" or motion. Failure to oppose a motion is generally deemed a consent to the motion. Naoro v. Walter, 11 FSM Intrm. 619, 621 (Chk. 2003); FSM Civ. R. 6(d).

     Because of possible remaining uncertainty about the boundary’s location, the court, on December 6, 2004, ordered the Land Commission to determine, survey, and mark out on the ground the proper boundary between the plaintiffs’ land and Kansou’s pursuant to the Land Commission decision.

     The September 20, 2005 hearing was held concerning the Land Commission’s portion of the case. Soichy Inos, the Land Commission’s Chief Surveyor, and Chester Gustaf, the head of the Land Commission Registration Team, testified. Their testimony was in agreement that the Land Commission had determined that the Telecom tower was not located on the plaintiffs’ land. Thus, whether the court follows the Justice Ombudsman’s original translation or uses Kin’s suggested corrected translation, it is now clear that the Land Commission had affirmatively determined that the Telecom cellular tower site was not on the plaintiffs’ land.

     Defendant Telecom stated that the court had, in effect, in sending the case to the Land Commission, made the Land Commission a special master to make findings and that the court’s next step was to either accept the special master’s [the Land Commission’s] findings or to reject them. Additionally, defendant Kin orally moved that the court dismiss the plaintiffs’ case.

     Determination of property boundaries is generally the responsibility of the state land commission. Kapas v. Church of Latter Day Saints, 6 FSM Intrm. 56, 60 (App. 1993); Small, 10 FSM Intrm. at 370 (under the primary jurisdiction doctrine it is for the Land Commission, not the court, to decide land boundaries, and the Land Commission must be given the chance to conclude its administrative process). The plaintiffs have not shown that the Land Commission committed an error of law or that its findings lacked a substantial factual basis. The court therefore concludes that it will accept the Land Commission’s finding that no part of the Telecom tower is on the plaintiffs’ property.

     This order determines only that the boundary between the plaintiffs’ land and Kin’s land is such that the Telecom tower site is not located on the plaintiffs’ land, and that defendant FSM Telecommunications Corporation is not trespassing on the plaintiffs’ land. The parties shall therefore each submit a memorandum or brief on whether the court should, in light of and in conformance with this ruling, order judgment entered in the defendants’ favor and make the preliminary injunction permanent or what other proceedings should take place. These memorandums or briefs shall be filed

and served by November 17, 2005.

* * * *