THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Ponape Enterprises Co. v. Soumwei ,
6 FSM Intrm. 341 (Pohnpei 1994)

[6 FSM Intrm. 341]

PONAPE ENTERPRISES CO., POHNPEI AGRICULTURAL DEVELOPMENT INC., CAROLINE ISLAND DEVELOPMENT CO.
and HEIRS OF FLORENTINE ETSCHEIT,
Plaintiffs,

vs.

LOUIS SOUMWEI and JOHN DOES 1-25,
Defendants.

CIVIL ACTION NO. 1993-003

MEMORANDUM OF DECISION

Martin Yinug
Associate Justice

Hearing:  November 16, 1993
Decided:  March 9, 1994

APPEARANCES:
For the Plaintiffs:             Daniel Berman, Esq.
                                          Rush, Moore, Craven, Sutton, Morry & Beh
                                          2000 Hawaii Tower
                                          745 Fort Street
                                          Honolulu, HI 96813

For the Defendant(s):     Elizabeth Keys, Esq.
                                          Micronesian Legal Services Corporation
                                          P.O. Box 129
                                          Kolonia, Pohnpei FM 96941

                                          Delson Ehmes, Esq.
                                          P.O. Box 1018
                                          Kolonia, Pohnpei FM 96941

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HEADNOTES
Constitutional Law ) Case or Dispute ) Standing; Torts ) Trespass
     Noncitizen plaintiffs have standing to sue for trespass if they have a leasehold interest in the land.  Ponape Enterprises Co. v. Soumwei, 6 FSM Intrm. 341, 343 (Pon. 1994).

[6 FSM Intrm. 342]

Torts ) Trespass
     It is unnecessary to have a fee simple title to land in order to bring an action for trespass.  All that is needed is a possessory interest.  A trespass action is one for violation of possession, not for challenge to title.  Ponape Enterprises Co. v. Soumwei, 6 FSM Intrm. 341, 343 (Pon. 1994).

Property
     Where a party has merely alleged inadequate notice at the time of the title determination by the Land Commission but has offered no evidence the a court must conclude the certificate of title is valid, especially when the party only entered the property nine years after the determination process and offers no evidence of interest in property dating back to the time of the determination process.  Ponape Enterprises Co. v. Soumwei, 6 FSM Intrm. 341, 344 (Pon. 1994).

Civil Procedure ) Res Judicata; Property
     Where the T.T. High Court found that a particular parcel of land was not public land in a suit brought by the Nanmwarki and Nahnken of Nett on behalf of all their constituents and subjects the doctrine of res judicata bars a party from presenting that issue as a counterclaim or defense.  Ponape Enterprises Co. v. Soumwei, 6 FSM Intrm. 341, 344 (Pon. 1994).

Torts ) Trespass
     In a trespass case the judgment is for physical possession of the land and the standard is based on who has better right of possession not who has the better title.  Ponape Enterprises Co. v. Soumwei, 6 FSM Intrm. 341, 345 (Pon. 1994).

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COURT'S OPINION
MARTIN YINUG, Associate Justice:
     On November 16, 1993, a hearing on three pending motions in the above matter was held.  Plaintiffs' motion for protective order was moot and therefore was not entertained by the Court.  Plaintiffs' motion for temporary restraining order and preliminary injunction, deemed by the Court as one for preliminary injunction, was granted from the bench pending the Court's decision on Plaintiffs' motion for summary judgment and Defendants' motion to dismiss which were taken under advisement.

     As explained in the following memorandum, Defendants' motion to dismiss is denied, and Plaintiffs' motion for summary judgment is granted.

MEMORANDUM
FACTS
     The Plaintiffs are certain foreign development corporations doing business in Pohnpei, and the heirs of Florentine Etscheit, some of whom are FSM citizens.  They brought this trespass action against Louis Soumwei, an FSM citizen residing in Nett municipality, State of Pohnpei.

     The land in question is Parcel No. 046-A-02, as designated by the Pohnpei State Land Commission.  The land parcel is located in Nett Municipality.  A certificate of title to this land was issued to the Etscheits by the Land Commission in 1983 after a finding by the Trust Territory High

[6 FSM Intrm. 343]

Court.  In re Etscheit's Property, H.C.T.T. Tr. Div. Civ. No. 142-78 (Pon. 1980), aff'd sub nom., Nanmwarki, Naniken of Nett 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 Agriculture Development Co. Ltd. (PADIC).  CIDCO then subleased Parcel No. 046-A-02 to PADIC for the development of a pepper farm.

     Defendant Louis Soumwei first came upon the land and began using it for his private consumption in 1992.  He has not made the land his primary residence.  Plaintiffs' claim that Mr. Soumwei has entered onto land that is owned or leased by them without permission and has caused and continue to cause damage to crops and equipment and has caused Plaintiffs to clear and re-clear structures and domestic agriculture seeded by him.  Plaintiffs seek injunctive relief, as well as damages.

     Defendant Soumwei denies that the land in question belongs to the Etscheits.  He disputes the process of determination of ownership by the Land commission and claims that the land is "luen wehi" or public land and that, as such, it is his rights as a native Pohnpeian to use the land.  He seeks an order invalidating the certificate of title and dismissing the action.

MOTION TO DISMISS
     The non-citizen Plaintiffs have standing to sue Mr. Soumwei for trespass because they possess a leasehold interest in leased Parcel No. 046-A-02. Robert Etscheit, Jr., as administrator of the Estate of Florentine Etscheit leased the land in question to CIDCO on August 28, 1987.  CIDCO then subleased the same land parcel to PADIC, a joint venture created by CIDCO and PEC, for the development of a pepper farm.  These non-citizen Plaintiffs clearly have a leasehold interest that will be sufficiently affected by the controversy over the land to be a proper party to bring the trespass action before this Court.

     A leasehold interest is a possessory interest in land short of outright ownership.  Although the non-citizen Plaintiffs do not own the leased land, they can maintain an action for trespass on the land.  They do not have to have fee simple title to the land in order to bring a trespass action.  All they need is a possessory interest in the land which, in this case, is the leasehold they obtained from the Etscheits estate.  A trespass action is one for violation of possession, not for challenge to title.  The reason for bringing a trespass case is to re-establish possession ) not to determine ownership or to quiet title.

     The non-citizen Plaintiffs do not claim title of ownership to the land; they merely assert their right to regain physical possession of the land under the lease.  Their case may not be dismissed for lack of standing.  Aisek v. Foreign Investment Bd., 2 FSM Intrm. 95, 100 (Pon. 1985).  They have standing to maintain this trespass action against Mr. Soumwei.  Thus, this Court is vested with diversity jurisdiction over the parties to this litigation.  The motion to dismiss is accordingly denied.

MOTION FOR SUMMARY JUDGMENT
     The Plaintiffs move for summary judgment based on the following undisputed facts:  The

[6 FSM Intrm. 344]

land in question is owned in fee simple by the Etscheits, leased to CIDCO, and subleased to PADIC as a joint venture between CIDCO and PEC.  The Etscheits have owned the land since 1983 and have as proof of that a certificate of title issued by the Land Commission.  The leases and agreements between the Plaintiffs were executed in 1987 and 1988. Defendant Louis Soumwei has been coming onto the land since 1992 and has begun using it for personal consumption.  He has no color of title, no claim before the Land Commission, no written permission from any authority, and no official or customary sanction to use the land.  Arguing that no genuine issue of material fact remains in dispute, Plaintiffs believe they are entitled to judgment and relief from Defendant's trespass as a matter of law.  FSM Civ. R. 56.

     Defendant Louis Soumwei opposes the motion for summary judgment by challenging the Etscheits' title to the property.  He argues that inadequate notice was given by the Land Commission in its determination of ownership process before 1983 and that the Trust Territory High Court appellate ruling in favor of the Etscheits is not enforceable against him but is dispositive only against the Nanmwarki and Naniken of Nett as individuals.  He further argues that he is justified in entering the land since, as a native of Pohnpei, he is entitled to use undeveloped "luen wehi" or public land, and that the land in question is "luen wehi."

     The first argument presented by Defendant Louis Soumwei is without merits.  He offers no evidence of inadequate or lack of notice or of other improper administrative procedures used by the Land Commission.  In the absence of proof, this Court cannot justifiably reach the conclusion that the certificate of title issued to the Etscheits is invalid.  That certificate of title is prima facie evidence of the Etscheit's ownership of the land in question since 1983.  Mr. Soumwei did not enter the land until 1992, and, other than merely asserting lack of notice, has presented no evidence of interest in the property dating back to the ownership determination process before 1983.  Therefore his physical entry on and possession of the land without any legal claim is not protected since it constitutes trespass against the Plaintiffs.

     Defendant's second argument that the T.T. High Court's judgment of 1983 is not enforceable against him because he is not a party to that case is untenable.  In that case, the Nanmwarki and Naniken of Nett made the argument of "luen wehi" as they were acting both "individually and as representatives of their constituents and subjects."  Nanmwarki, Naniken of Nett v. Etscheit Family, 8 TTR at 289.  The property they were seeking to quiet title in was property which, they argued, belonged to the people of Nett.  The people of Nett were thus represented in that case by their traditional leaders. The T.T. High Court found that the property was not "luen wehi"; therefore, Defendant Louis Soumwei, who claims to live in Nett, cannot now assert "luen wehi" as a defense.  The doctrine of res judicata bars Mr. Soumwei from presenting "luen wehi" either as a counterclaim or defense.  Title to Parcel No. 046-A-02 has been litigated so the matter is final and closed.

     As his last argument, Louis Soumwei asserts that the property is "luen wehi" or public land and, as such, is the property of all Pohnpeians.  This argument has its genesis from a Trust Territory Policy Letter which affirms the right of natives to subsist from the public domain.  The Defendant does not explain whether or not the property in dispute here is in the private or public domain.  Mere assertions of "luen wehi" are not sufficient to overcome the presumption of private ownership in the Etscheits as evidenced by the certificate of title issued by the Land Commission in 1983.

     The facts presented to the Court constitute a prima facie claim for trespass against Defendant Louis Soumwei.  He has not presented any defense or evidence which rebuts Plaintiffs' case.  In choosing to focus exclusively on the issue of quality of title, he has largely ignored

[6 FSM Intrm. 345]

Plaintiffs' motion for summary judgment.  However, this is not an action to quiet title.  As a trespass case, the judgment is for physical possession of the land and should be based on the standard of who has the superior right of possession, not who has the better title.  Having viewed the facts in a light most favorable to the Defendant, the Court finds no genuine issue of material fact and concludes that Plaintiffs are entitled to judgment as a matter of law. FSM Dev. Bank v. Rodriguez Corp., 2 FSM Intrm. 128, 130 (Pon. 1985). Plaintiff's motion for summary judgment is therefore granted.

     The Court finds that the Defendant, Louis Soumwei, has trespassed on property that is owned and leased by the Plaintiffs.  Accordingly, Defendant Louis Soumwei is permanently enjoined from trespassing on Parcel No. 046-A-02, located in Nett Municipality.  He is 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, he is expected to remove any crops or personal belongings from the property or risk forfeiture to the Plaintiffs.

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