THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Cheni v. Ngusun ,
6 FSM Intrm. 544 (Chuuk S. Ct. App. 1994)

[6 FSM Intrm. 544]

NAMER CHENI,
Appellant,

vs.

IOICHY NGUSUN et al.,
Appellees.

CA APPEAL NO. 61

OPINION

Argued:  September 7, 1994
Decided:  October 21, 1994

BEFORE:
     Hon. Soukichi Fritz, Chief Justice, Chuuk State Supreme Court
     Hon. Yoster Carl, Temporary Justice, Chuuk State Supreme Court*
     Hon. Ready Johnny, Temporary Justice, Chuuk State Supreme Court**

     *Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
     **FSM Public Defender, State of Chuuk

APPEARANCES:
For the Appellant:     Midasy O. Aisek
                                    P.O. Box 185
                                    Weno, Chuuk FM 96942

For the Appellee:      Ben K. Enlet
                                    P.O. Box 123
                                    Weno, Chuuk FM 96942

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HEADNOTES
Appeal and Certiorari ) Standard of Review
     Because findings of fact shall not be set aside unless clearly erroneous an appellate court starts its review of a trial court's factual findings by presuming the findings are correct.  The appellant's burden to clearly demonstrate error in the trial court's findings is especially strong when the findings are based upon oral testimony because, before reaching its conclusions as to the witnesses' credibility, the trial court had the opportunity to view the witnesses' demeanor as they testified, while the reviewing court has not.  Cheni v. Ngusun, 6 FSM Intrm. 544, 546 (Chk. S. Ct. App. 1994).

Appeal and Certiorari ) Standard of Review
     An appellate court may set aside a trial court's factual findings as clearly erroneous when the factual

[6 FSM Intrm. 545]

finding was not supported by substantial evidence in the record, or when the factual finding was the result of an erroneous conception of the applicable law, or when after a consideration of the entire record the appellate court is left with a definite and firm conviction that a mistake has been made.  Cheni v. Ngusun, 6 FSM Intrm. 544, 547 (Chk. S. Ct. App. 1994).

Property ) Adverse Possession
     Adverse possession is a method, which is not favored, of acquiring title to property, which has been defined as the open and notorious possession and occupation of real property under an evident claim or color of right.  This possession must be exclusive and in opposition to the true owner of the land.  Usually adverse possession is controlled by statute, including the length of time needed to qualify, which is often the same as the statute of limitation.  Cheni v. Ngusun, 6 FSM Intrm. 544, 547 (Chk. S. Ct. App. 1994).

Property ) Adverse Possession
     One may not claim adverse possession against the government.  Cheni v. Ngusun, 6 FSM Intrm. 544, 548 (Chk. S. Ct. App. 1994).

Property ) Adverse Possession; Statute of Limitations
     Where government title to the tidelands reverted to the traditional owners in 1989, and because the right to bring an action for trespass or ejection must be available to the owner before the time period for adverse possession has run, whether the doctrine of adverse possession exists in Chuukese land law need not be decided because the twenty-year statute of limitations did not start to run until 1989.  Cheni v. Ngusun, 6 FSM Intrm. 544, 548 (Chk. S. Ct. App. 1994).

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COURT'S OPINION
SOUKICHI FRITZ, Chief Justice:
     This is an appeal from a judgment awarding title to several sections of tideland located near Sopou Village on the Island of Polle.  Appellant, a defendant below, claimed ownership of all the sections the tidelands except Chimwinum.  The trial court awarded title to the tideland known as Chimwinum to Nafino Maro, a defendant below, who is not a party to this appeal.  The court below awarded the appellees, plaintiffs below, the remainder of the tidelands in dispute which are known as Fanachi, Pisipun and Taunemwar and found that appellant was only a caretaker of the property.

     The appellant appealed asserting that the trial court had erred in its factual findings by relying on an affidavit that had not been admitted in evidence. Appellant also claims the trial court erred by not applying the doctrine of adverse possession to the case.  We find no error and therefore affirm the judgment.

I.  FACTS
     This action began as a complaint brought by the appellee (Ngusun) on behalf of himself and his lineage for ejectment and damages concerning the dredging of the tidelands in question.  The original action was against Liwis Os (Os), the then mayor of Polle.

     The complaint was amended to add claims for quiet title.  The appellant (Namer) and Nafino Maro (Maro) were joined as indispensable parties and the original defendant Os was dismissed from the action.  After the joinder of the two defendants Ngusun was again allowed to amend his complaint to specifically plead the chain of title claimed.

[6 FSM Intrm. 546]

     The traditional ownership of these tidelands goes back to pre-German times. Much of the testimony at trial concerned the history of clan warfare in the area and how the resolution of those historical conflicts resulted in the different claims of ownership.  There was also a good deal of testimony concerning who had descended from these traditional owners.  The trial court found that Namer and the Pwee lineage of Manaio, represented by Ngusun, had common ancestors. This relationship or connection of interests the court found explained the reason for the competing claims of ownership and the reason Namer and her immediate ancestors had been chosen as caretakers of the tideland.  Ngusun offered an affidavit into evidence which purported to be a disclaimer by Namer that she was the owner of the tidelands.  This affidavit was not admitted into evidence.

     Namer alternatively claimed that she had gained title by adverse possession. There was no dispute that Namer, or her immediate predecessors, had resided on land adjacent to the tidelands since the beginning of the American administration.  Thus, she based her claim on the 20 year statute of limitation set forth in 6 TTC 302 for asserting title to land as confirming her ownership.  The trial court did not apply the doctrine of adverse possession as it was not certain that legal doctrine was part of Chuukese land law or that the 20 year statute applied.

III.  ISSUES
     Namer raises two issues for this Court to decide:  1)  Did the trial court err in its factual findings by relying on an affidavit not admitted into evidence? and 2) Did the trial court commit error by failing to apply the doctrine of adverse possession to the facts of the case?  The first issue requires an appellate court to review the factual finding of a trial court.  This Court uses the clearly erroneous standard to review the correctness of a trial court's factual findings.  The second question is an issue of law.  Issues that present a question of law are reviewed de novo.

IV.
Factual Findings of the Trial Court
     1. Rule 52
     The factual findings of a trial court are governed by Rule 52 of our rules of civil procedure.  Chk. Civ. R. 52.  That rule states that the "[f]indings of fact shall not be set aside unless clearly erroneous. . . ."  Chk. Civ. R. 52(a).  This is the source of the standard of appellate review.  The rule further provides that the appellate court shall also give "due regard" to the "opportunity of the trial court to judge . . . the credibility of the witnesses."  Id.

     The appellate court starts its review of a trial court's factual findings by presuming the findings are correct.  J.A. Jones Constr. Co. v. Englert Engineering Co., 438 F.2d 3, 5 (6th Cir. 1971).  This means that the appellant has the burden to clearly demonstrate error in the trial court's findings.  Indiana State Employees Ass'n, Inc. v. Negley, 501 F.2d 1239, 1242 (7th Cir. 1974).  The second part of the rule establishes a very strong burden for the appellant to overcome when the findings of the trial court are based primarily upon oral testimony.  Id.  The reason for this heavy burden is that the trial court had the opportunity to view the witnesses as they testified and to observe their demeanor before reaching its conclusions as to the witnesses' credibility.  Id.  The reviewing court does not have the same opportunity.  As a result the appellate court must be "especially circumspect" in reviewing a trial court for clear error when there was conflicting evidence presented on issues of fact.  Id. at 1241.  Therefore this Court will not set aside the factual findings of the trial court as clearly erroneous unless the appellant demonstrates that one of

[6 FSM Intrm. 547]

three conditions exist.

     One condition the appellant must show for reversal is that the factual finding of the trial court was not supported by substantial evidence in the record.  Richmond v. Carter, 616 F.2d 381, 383 (8th Cir. 1980).  Another condition that allows for reversal is that the factual finding was the result of an erroneous conception of the applicable law.  Id.  Finally, the appellate court may reverse a trial court's finding of fact if after a consideration of the entire record the court is left with a definite and firm conviction that a mistake has been made.  United States v. United States Gypsum Co., 333 U.S. 364, 395, 88 S. Ct. 525, 542, 92 L. Ed. 746, 766 (1948).  If the appellant fails to met the burden as outlined then the reviewing court can only affirm.

     2.  Analysis
     Namer claims that the trial court in making its factual findings relied on an affidavit that was not admitted into evidence.  The affidavit in question purported to disclaim that Namer had any ownership rights in the tideland in question. Nowhere in the lower court's factual findings is there any reference to the affidavit.

     In its opinion explaining how it reached the factual findings, the trial court, stated it found Namer's testimony lacked credibility.  The court also explained that in addition to the testimony of Ngusun and his witnesses, it had relied primarily on the testimony of Namer's brother (Akinori).  Akinori's testimony confirmed the traditional ownership of Ngusun and his lineage.

     As explained above, the trial judge who has had the opportunity to observe the witnesses testify is allowed to assess credibility of the witnesses.  The reviewing court will not ordinarily substitute its judgement of a witness' credibility for that of a trial judge.  Further there is substantial evidence in the record that supports the lower court's findings.  Namer has failed to carry the burden of demonstrating that the lower court's factual findings were clearly erroneous.

Trial Court's Application of the Law
     1.  Doctrine of Adverse Possession
     There is no state statute that sets forth the requirements or applicability of the doctrine of adverse possession.  This Court has not previously held the doctrine of adverse possession to be applicable in the area of Chuukese land ownership.1  Therefore we must first discuss the doctrine before we can determine whether or not the lower court committed error.

     Adverse possession as applied in other jurisdictions is a method of acquiring title to property.  But even in those other jurisdictions, this method of acquiring title is not favored.  3 Am. Jur. 2d Adverse Possession 2, at 94 (1986). Adverse possession has been defined as "the open and notorious possession and occupation of real property under an evident claim or color of right . . . ."  Id. This possession must be exclusive and in opposition to the true owner of the land.  Usually adverse possession is controlled by statute, including the length of time needed to qualify.  Id. 3, at 94.  The length of time is often the same as the statute of limitation.  Id.

     While we do have a statute of limitation for the recovery of land or an interest in land (6

[6 FSM Intrm. 548]

TTC 302), we have no legislation that governs the elements or applicability of adverse possession.  Neither is there any specific statutory authority that makes this 20 year limitation applicable to tidelands.  Even if we were to assume that the necessary period of time for adverse possession is equal to the 20 year statute of limitation provided by 6 TTC 302 there remains a problem of its applicability to this situation.  The title to all tidelands since the beginning of the American administration has been claimed by the government.2  It is a basic provision that one may not claim adverse possession against the government.  3 Am. Jur. 2d Adverse Possession 268, at 356 (1986).  It was only upon the passage of the Chuuk State Constitution that title to tidelands reverted to the traditional owners.  Chk. Const. art. IV, 4.  The effective date of the Constitution was October 1, 1989.  This date would mark the earliest time that the statute would begin to run for purposes of adverse possession.  The right to bring an action for trespass or ejection must be available to the owner before the time period for adverse possession begins to run.  3 Am. Jur. 2d Adverse Possession 15, at 107 (1986).  Clearly, 20 years has not passed.

     2. Analysis
     Since Namer's claim that the trial court committed error is based exclusively on the 20 year statute of limitation in 6 TTC 302, we need not decide whether the doctrine of adverse possession exists in Chuukese land law.  Rather, we hold that the 20 year statute of limitation, if applicable to these tidelands, could not have as a matter of law begun to run until October 1, 1989.  Therefore, the trial court committed no error in failing to apply that legal doctrine to the facts of this case.

V.  CONCLUSION
     We conclude that the appellant has failed to meet the burden of demonstrating the trial court's factual findings are clearly erroneous.  We also conclude that the trial court committed no error in failing to apply the 20 year limitation of 6 TTC 320 to the tidelands in question.

     Therefore the findings and the judgment in this case will be affirmed.

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Footnotes:
 
1.  Namer has not cited the court to any case law to support her position and relies totally on 6 TTC 302 [the general statute of limitation for land claims].
 
2.  See 67 TTC 2.