Cite as Setik v. Sana ,
6 FSM Intrm. 549 (Chuuk S. Ct. App. 1994)

[6 FSM Intrm. 549]






Argued:  September 6, 1994
Decided:  October 21, 1994

     Hon. Wanis Simina, Associate Justice, Chuuk State Supreme Court
     Hon. Yoster Carl, Temporary Justice, Chuuk State Supreme Court*
     Hon. Midasy Aisek, Temporary Justice, Chuuk State Supreme Court**

     *Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
     **Trial Counsellor, Weno, Chuuk

For the Appellant:     George Butler, Esq. (on the brief)
                                    Seth Forman, Esq. (argued)
                                    Keogh & Butler
                                    P.O. Box GZ
                                    Agaņa, GU 96910

For the Appellee:      Hans Williander
                                    P.O. Box 389
                                    Weno, Chuuk FM 96942

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Constitutional Law ) Due Process ) Notice and Hearing
     Where a party attended the meeting at which the common boundary was set and thus had actual notice, and filed no adverse claim to the boundary location that would trigger the statutory right to notice, but claimed he was not aware of the adverse boundary until eight years later, and waited another four years before filing suit, the claimant's repeated failure to timely assert his rights does not demonstrate a due process violation.  Setik v. Sana, 6 FSM Intrm. 549, 553 (Chk. S. Ct. App. 1994).

[6 FSM Intrm. 550]

Constitutional Law ) Due Process ) Notice and Hearing
     One who receives actual notice cannot assert a constitutional claim that the method of notice was not calculated to reach him.  Setik v. Sana, 6 FSM Intrm. 549, 553 (Chk. S. Ct. App. 1994).

     A party who has not disturbed the natural contours of the land is not liable for loss of lateral support for removing fill pushed over the common boundary by the other party when the other party created the need for lateral support by altering the natural contours of the land at their common boundary.  Setik v. Sana, 6 FSM Intrm. 549, 553 & n.3 (Chk. S. Ct. App. 1994).

Evidence ) Expert Opinion
     Opinion testimony by experts has no such conclusive force that there is an error of law in not following it.  The trier of fact may decide what weight, if any, is to be given such testimony, and even if the testimony is uncontroverted, may exercise independent judgment.  Setik v. Sana, 6 FSM Intrm. 549, 553-54 (Chk. S. Ct. App. 1994).
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WANIS SIMINA, Associate Justice:
     This is an appeal from a Trial Division judgment that denied all of Appellant's claims concerning a boundary dispute with an adjoining land owner, the Appellee.  The Appellant (Setik) was the plaintiff in the trial court and his action below sought a boundary adjudication and damages for trespass and loss of lateral support against the Appellee (Sana).  On appeal Setik asserts that the trial judge erred in two respects.  He first contends that the trial court erroneously relied on a Land Commission determination that set the common boundary with Sana's adjoining property.  His second contention is that the trial court made errors in its factual findings concerning the issue of loss of lateral support.  We find no error in the judgment and therefore affirm.

     Setik and Sana own adjoining parcels of land.  Setik's property, known as Nemot, is located upland from Sana's property, known as Epinfonong.  These parcels are located in a designated land registration area.

     Both parties filed their claim to title with the Land Commission in 1972.  Each application identified the other as an adjoining land owner.  Both parties testified that there was a Land Commission registration team field hearing at the site concerning the common boundary some time in 1972 or 1973.  Setik testified no agreement was reached by the parties.  Sana testified that he and Setik did in fact reach an agreement on the common boundary, in the presence of the registration team which marked the boundary.

     Sana was issued a Determination of Ownership in 19771 and a final Certificate of Title in

[6 FSM Intrm. 551]

1980.  Setik's claim is still pending with the Land Commission.2

     Sometime between 1982 and 1984, Setik made improvements to his upland property in order to build a house and other buildings.  In the grading of the Nemot property, Setik brought in fill.  Sana testified that this fill was pushed to the down slope side over the boundary of Epinfonong.  Sana contacted Setik and told him he was over the common boundary.  Setik testified that this prompted him to check with the Land Commission.  Setik visited the Land Commission office in December of 1984.  He testified that this was the first notice he had of the map and the placement of the boundary.  The map confirmed Sana's position.  Setik took no action at the time.

     In 1988 Sana began making improvements to his lot.  These improvements included cleaning, leveling and grading of Epinfonong at and near the boundary with Nemot.  Sana testified the grading only removed the fill that had been previously pushed over the boundary by Setik.

     It was at this time Setik filed suit asking the trial court to adjudicate the boundary.  He also claimed Sana's improvements were a trespass and that the leveling of Epinfonong was causing erosion and damage to his house.  Setik alleged that Sana's grading had reduced the lateral support to the slope of his upland property.

     Sana counter-claimed for trespass alleging damage from the 1984 leveling of Nemot and various other activities.

     The depositions of two experts were admitted at trial by stipulation.   Each party's expert was a civil engineer and in the depositions gave their opinion on Setik's lateral support claim.  Neither of the experts knew the original contours of the natural landscape before the grading and leveling activities of either of the parties.

     In denying Setik's boundary claim, the trial court specifically found that the Land Commission had given all required notices prior to its determination of ownership for Sana's property.  The lower court ruled that the decision was final since there had been no appeal.  The trial judge also found that Setik had knowledge of the common boundary location and did nothing to assert his rights until eight years after the final Certificate of Title was issued.  This was almost fourteen years after the court found Setik had knowledge of Sana's position on the location of the boundary.

     The lower court's ruling, on the lateral support issue, found that Sana had not disturbed the natural contour of the land but had only removed fill that Setik had used to level his land.  The trial court found as a matter of law Sana was not liable since the natural contour had not been disturbed.

     Setik asserts on appeal that the trial court committed error in resolving the boundary dispute by relying on the Land Commission decision.  His rationale is that the Land Commission proceeding denied him due process because he did not have proper notice.  At trial Setik had asked the court to reset the boundary to where Setik believed the boundary to be.  On appeal he now asks this Court to remand the boundary dispute to the Land Commission.  Setik also challenges the trial court's resolution of the lateral support issue.  He contends the trial court findings were clearly erroneous since expert testimony was uncontroverted that there was in fact a loss of lateral support.

[6 FSM Intrm. 552]

     The two issues that the Appellant raises are:  1) Did the trial court commit an error of law when it refused to set aside the Land Commission boundary determination? and 2) Did the trial court commit reversible error by failing to adopt the experts' opinion that Sana's activities caused a loss of lateral support for Setik's land?

     The first question is a matter of law and this Court reviews such questions using a de novo standard.  The second question is one of fact and factual questions are review under the clearly erroneous standard.

     Setik's contention is that the trial court should not have relied on the Land Commission determination as he did not receive constitutionally adequate notice and the opportunity to be heard when the common boundary was set.  He claims he was not properly notified when the cadastral map was prepared setting the boundaries.  Setik testified that he was present in 1973 or 1974 when the registration team came to the property after he and Sana had each filed their claims with the Land Commission.  He was aware at that point that he and Sana had a difference of opinion on where the common boundary was located.  He was also aware that both of them had pending claims before the Land Commission.

     Sana testified that he and Setik agreed to a common boundary on the day of the registration team hearing in the presence of the team members.  A surveyor was there and a line was sighted.  The registration team then set the concrete markers for the boundary agreed on.  This testimony was corroborated by another witness.

     Setik's version of registration team meeting is that he and Sana agreed that they would settle the boundary between themselves at some later date.  He claimed that he took no further action because he was waiting for Sana to come to him and make the agreement.  The issue of the boundary did not come up again until 1982, eight years later.  According to Setik's testimony even after the boundary issue came up again in 1982 he did not have the opportunity to view the map at the Land Commission until the end of 1984.  This he claims was his first notice that the boundary had been set.  Yet he waited almost another four years before he filed suit.  His suit did not ask the trial court to set the determination aside but rather asked the court to redraw the boundaries.

     The lower court found that Setik was not entitled to relief on two grounds. First, the lower court held that the appeal time from the Land Commission's determination of ownership had run.  Secondly, the court below found that Setik had not asserted his rights in a timely manner which foreclosed any equitable relief to set aside the determination.

     Setik in support of his position cites the FSM Supreme Court Trial Division case of Etpison v. Perman, 1 FSM Intrm. 405 (Pon. 1984).  He asserts, based on Etpison, that his right to procedural due process has been violated and the determination of the Land Commission should be set aside.  There are several features of the Etpison case that distinguish it from the case at hand.

     The claimant in Etpison filed a notice with the Ponape Public Lands Authority that he had an adverse claim.  Despite this notice, the claimant did not receive personal notice of the hearing concerning the property in question.  He filed suit seeking to set aside the determination of the Ponape Public Lands Authority almost immediately after the adverse administrative action was

[6 FSM Intrm. 553]

taken.  Based on these factors, the court in Etpison found that the interested party did not have actual notice.  Because there was no actual notice the method of notifying the interested individual came into question and was ruled not constitutionally adequate.  These factors are not present in the case at bar.

     It is clear from the record that Setik had actual notice and attended the Land Commission's registration team's hearing at the site.  The common boundary was discussed at that field hearing.  If Setik had a adverse claim to the location of the boundary he was required to file notice of that claim under 67 TTC 110(2). He did not.  There is no statutory notice required if no adverse claim has been filed with the Land Commission.  The Etpison court stated that "one who receives actual notice can not assert a constitutional claim that the method of notice was not calculated to reach him."  1 FSM Intrm. at 426 n.9.

     Further, by his own testimony, Setik had knowledge of the location of the common boundary when he saw the map in 1984.  Yet again he did nothing to assert his claim until almost four years later.

      These facts do not demonstrate a due process violation.  The facts instead demonstrate a repeated failure by the appellant to assert his claimed rights.  We find no reason to set the Land Commission decision aside nor disturb the lower court's decision.

     The trial court found that Sana had not disturbed the natural contours of the land between the two properties.  The court found as a matter of fact that Sana's grading and leveling activities merely removed fill that Setik had pushed over the common boundary in the process of leveling his lot.  Thus the lower court reasoned Sana was not liable for any loss of lateral support since Setik had in fact created the need for lateral support by altering the natural contours of the land at the common boundary.3

     Setik challenges this ruling by asserting the court's factual findings are clearly erroneous.  The basis for the challenge is that the uncontroverted opinion of both engineers was that a loss of lateral support was due to Sana's leveling activity.

     Neither of the experts claimed that they were aware of the natural contours of the property before the parties graded and leveled their respective lots.  In fact, the plaintiff's expert specifically stated he did not know the natural contours of the land.4  In any case, the opinion testimony of experts is just that ) opinion testimony.  Expert opinions have "no such conclusive force that there is an error of law in refusing to follow them."  Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S. Ct. 724, 729, 88 L. Ed. 967, 972 (1944) [citations omitted]. It is for the trier of fact to

[6 FSM Intrm. 554]

decide "whether any, and if any what, weight is to be given to such testimony."  Id. at 627, 64 S. Ct. at 729, 88 L. Ed. at 973 [citations omitted].  Even if the testimony is "uncontroverted" the trier of fact "may exercise independent judgment."  Id. at 628, 64 S. Ct. at 729, 88 L. Ed. at 973 [citations omitted]. Since neither expert was able to state that natural contour of the land had been disturbed, the lower court's findings that the Sana did not disturb it cannot be said to be clearly erroneous.  Chk. Civ. R. 52(a); Cheni v. Ngusun, 6 FSM Intrm. 544, 546, 1 CSR 35, 37 (Chk. S. Ct. App. 1994).

     We hold that Setik had actual notice of, and was present at the hearing regarding the boundary in 1972 or 1973.  He did not file an adverse claim with the Land Commission.  Therefore, he was not entitled to any further notice. Further, Setik by his own admission had knowledge of the boundary location in 1984 and did nothing to assert his claim.  No procedural due process violation occurred.  We also hold that the lower court's findings are not clearly erroneous on the issue of lateral support.  Accordingly, we affirm the judgment.

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1.  The plat map for the property was prepared in the same year.
2.  The Land Commission has jurisdiction of Setik's claim and he may pursue his remedies with that agency.
3.  The court below did not find that there was not a loss of lateral support, but rather found as a matter of fact that Sana's activities had not disturbed the natural contours of the land.  From this factual finding the lower court concluded as a matter of law that Sana was not liable for whatever loss had occurred.  The appellant does not challenge the legal conclusion but the factual one.
4.  The Plaintiff's expert stated "Well, I ) I don't know the original contour of this particular area )."  Dep. Ukrit Siriprusaman at 13.  This statement is in conflict with this witness's statement that Sana's bulldozer cut "ate" into the natural slope which is quoted in the appellant's brief.