THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Sana v. Chuuk,
7 FSM Intrm. (Chk. S. Ct. Tr. 1995)

[7 FSM Intrm. 252]

KOICHY SANA,
Plaintiff,

vs.

CHUUK STATE,
Defendant.

CA No. 31-94

FINDINGS OF FACT,
CONCLUSIONS OF LAW AND JUDGMENT
 
Soukichi Fritz
Chief Justice

Trial:  August 21, 1995
Decided:  September 7, 1995

APPEARANCES:
For the Plaintiff:          Maketo Robert, Esq.
                                     P.O. Box 211
                                     Weno, Chuuk FM 96942

[7 FSM Intrm. 252]

For the Defendant:     Ermino Fritz
                                     Assistant Attorney General
                                     Office of the Chuuk Attorney General
                                     P.O. Box 189
                                     Weno, Chuuk FM 96942

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HEADNOTES
Torts) Trespass
     To maintain a trespass action, a plaintiff must prove that at the time of the alleged trespass he had either actual possession or the right to immediate possession. Sana v. Chuuk, 7 FSM Intrm. 252, 254 (Chk. S. Ct. Tr. 1995).

Property) Public Lands
     Since under 67 TTC 1 public lands were lands situated within the Trust Territory that the government of the Trust Territory had acquired or would acquire for public purposes, in Chuuk public lands are those lands located in Chuuk that the state has acquired or will acquire for public purposes.  

[7 FSM Intrm. 253]
 
Sana v. Chuuk, 7 FSM Intrm. 252, 254 (Chk. S. Ct. Tr. 1995).

Property) Public Lands
     In Chuuk the leasing of private land by the government for public purposes is an exercise of the state's eminent domain power because the Chuuk Constitution requires that the state should negotiate a voluntary lease, sale or exchange, if possible, instead of an involuntary taking.  Sana v. Chuuk, 7 FSM Intrm. 252, 254 (Chk. S. Ct. Tr. 1995).

Constitutional Law) Chuuk) Interpretation; Statues) Construction
     Statutes and constitutional provisions must be read together when the statutes are pre-constitution and because they are only effective to the extent they are not in conflict with the Chuuk Constitution.  Sana v. Chuuk, 7 FSM Intrm. 252, 254-55 (Chk. S. Ct. Tr. 1995).

Property) Public Lands
     In Chuuk land leased by the government for a public purpose is public land for the duration of the term of the lease.  Sana v. Chuuk, 7 FSM Intrm. 252, 255 (Chk. S. Ct. Tr. 1995).

Property) Public Lands
     Early termination of a lease for which the State of Chuuk has fully paid is a disposal of public land which the governor cannot do without the advice and consent of the legislature.  Sana v. Chuuk, 7 FSM Intrm. 252, 255 (Chk. S. Ct. Tr. 1995).

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COURT'S OPINION
SOUKICHI FRITZ, Chief Justice:
     This matter came before the court for trial on August 21, 1995.  The plaintiff personally appeared and was represented by Mr. Maketo Robert, Esq.  The defendant appeared through counsel, Mr. Ermino Fritz, of the Attorney General's Office.  After reviewing all the papers and pleadings on file herein and listening to the testimony of witness and the arguments of counsel the court took this matter under advisement.  Based on the foregoing the court now renders this opinion which shall constitute its findings, conclusions and judgment in this matter.

Nature of the Action
     The plaintiff brought suit seeking damages against the state for trespass to a parcel of dry land known as Apinfonong #1.  There is no dispute between the parties that the plaintiff is the owner of the land in question.  Neither is there any dispute that the land in question was leased by the defendant from the plaintiff in 1984 for a term of fifteen (15) years nor that the full compensation required under the agreement has been paid to the plaintiff.

     The dispute centers on a purported release of the land back to the plaintiff in 1990 by the then governor of the State.  The defendant contends that the former governor had no authority to release the land.  Therefore, the defendant argues that since the State has made full payment for the term of the lease and the term has not yet expired, the right to possession and use of the property in question is still with the State.  As a result the state cannot be guilty of trespass.

[7 FSM Intrm. 254 ]
 
Issue
     To maintain a trespass action, the plaintiff must prove that at the time of the alleged trespass he had either actual possession or the right to immediate possession.  The defendant while acknowledging the plaintiff has title maintains that the state had the right to actual and immediate possession under the lease.

     The defendant's claim is based on Chk. S.L. 2-1, 101, which allows the governor to represent the state in all matters concerning "public land" provided that the governor may not "dispose of any public land without the advice and consent of the Legislature."  If the release is invalid then the plaintiff is not entitled to immediate possession as the lease is still in force and he has no present possessory interest in the land.  Instead, the defendant would have the right to immediate and actual possession during the time of the alleged trespass and for the remainder of the term of the lease.

     The court then must determine if land leased by the government for a public purpose is "public land" during the term of the lease within the meaning of this statute.  If the answer to the first question is yes, then the court must determine if the claimed release is a disposal of public land by the former governor.

Analysis
     The only statute brought to the attention of the court that defines public land is 67 TTC 1.  This statute was in force when the legislature enacted Chk. S.L. 2-1.  Both statutes continue in force under the transition provision of the constitution.  Chk. Const. art. XV, 9.  Since both statutes concern public lands, they must be read together.

     67 TTC 1 in pertinent part states that public lands are: "lands situated within the Trust Territory . . . and such other lands as the Government of the Trust Territory has acquired or may hereafter acquire for public purposes."  Reading the provisions of 67 TTC 1 and Chk. S.L. 2-1, 101 together the court concludes that public lands are those lands located in Chuuk that the state has acquired or will acquire for public purposes.  Article 1 A(3) of the lease clearly provides that the land in question was leased for the "purpose of general administrative use by the Government for the execution of its public functions . . . ."  See Pl.'s Ex. 3 at 2 (admitted into evidence). Therefore, the question becomes whether or not land leased for public purposes by the state is land acquired by the state and thus "public land" within the meaning of the statutes.

     The leasing of an interest in private land by the government for public purposes is an exercise of the state's eminent domain power.  See Chk. S.L. 2-1, 105.  In fact, it would probably be illegal for the government to lease land for any purpose other than a public one.

     In most jurisdictions, the state's exercise of its power of eminent domain generally means an out right purchase of all right, title and interest in the property in question whether the owner agrees or not.  But in this jurisdiction, the constitution sets forth a requirement that the state should negotiate a voluntary lease, sale or exchange if possible instead of an involuntary taking.  Chk. Const. art. XI, 2.  This is an apparent recognition by the framers of the constitution of the extremely high regard in which Chuukese hold land rights.  The court must read all of these statutes and constitutional provisions together since both of the statutes are pre-constitution and are only effective to the extent they are not

[7 FSM Intrm. 255]

in conflict with the constitution.  Chk. Const. art. XV, 9.1

     The court must conclude in light of all these provisions taken together that land leased by the government for a public purpose is public land for the duration of the term of the lease.  Especially in view of the reality that almost all land used by the government in Chuuk State for its public functions is leased land.  Finally, the court must also conclude that the early termination of a lease for which the state has fully paid is a disposal of public land.  The state owns the land for the term of the lease and has appropriated public funds for the right to use that land for a public purpose. As a result, the court concludes that neither the former governor nor any governor may terminate a government lease for which the land owner has been fully compensated prior to the end of lease term, unless the governor has first obtained the consent of the legislature.  To do so is to dispose of public land without first obtaining the advice and consent of the legislature as required by Chk. S.L. 2-1, 101.2  There was no evidence presented by the plaintiff that the legislature consented to the purported release of the public land in question.

Conclusion
     The land Apinfonong #1 owned by the plaintiff was leased to the defendant, Chuuk State in 1984.  The lease for entered by the State for a public purpose and had a term of fifteen years.  The plaintiff was fully compensated for the term of the lease.  The land in question is "public land" for the duration of the lease term within the meaning of Chk. S.L. 2-1.  The purported release by the former governor was invalid as it was a disposal of public land without the advice and consent of the legislature.  Therefore, the State retains the right to immediate possession and use of the land in question under the terms of the lease until the lease expires of its own terms or is disposed of by the governor with the advice and consent of the legislature.  Accordingly, the defendant having the right to immediate possession and use of the land in question cannot be guilty of trespass.

Judgment
     Based upon the foregoing finding and conclusion the court awards judgment as follows.  It is hereby

     Ordered, Adjudged and Decreed that the defendant, Chuuk State, has the right to the immediate use and possession of the land Apinfonong #1 for the duration of the lease as the purported release by the former governor is invalid as a violation of Chk. S.L. 2-1 and therefore defendant is not liable for trespass, and it is further

     Ordered that each party is to bear its own costs.

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Footnotes:
 
1.  The former governor's action purporting to release the land in question occurred in 1990.  The constitution became effective October 1989.  Chk. S.L. 2-1 was enacted in 1979, and 67 TTC 1 was passed in 1966.

2. Of course there is no disposal of land if the lease terminates of its own terms and there is no renewal.