8 FSM Intrm. 155-165

In considering whether to grant a motion for preliminary injunction, a court looks to four factors: 1) the possibility of irreparable injury to the plaintiff; 2) the balance of possible injuries between the parties; 3) the movant's likelihood of success on the merits; and 4) the impact of any requested action upon the public interest. Carlos Etscheit Soap Co. v. Epina, 8 FSM Intrm. 155, 161 (Pon. 1997).

In order for injunctive relief to be granted, the party seeking protection must be faced with the threat of irreparable harm before the conclusion of the litigation unless the injunction is granted. If money damages or other relief will fully compensate for any threatened interim harm, the preliminary injunction should be denied. Carlos Etscheit Soap Co. v. Epina, 8 FSM Intrm. 155, 161 (Pon. 1997).

A threat of irreparable injury exists when threats of physical violence and assertion of control over land deprives plaintiffs of access to their land in a way that money damages or other relief cannot completely compensate for. Carlos Etscheit Soap Co. v. Epina, 8 FSM Intrm. 155, 162 (Pon. 1997).

No estoppel can arise from an act or a representation if it was not intended to have the effect claimed and if, from its nature or from the time when, or the circumstances under which, it was done or made, it would be unreasonable to attribute such effect to it. Carlos Etscheit Soap Co. v. Epina, 8 FSM Intrm. 155, 164 (Pon. 1997).

Injunctive relief will be granted when three of the four factors to be considered favor granting the preliminary injunction, particularly when the plaintiffs have demonstrated a substantial likelihood of success at trial. Carlos Etscheit Soap Co. v. Epina, 8 FSM Intrm. 155, 164 (Pon. 1997).

In this action, plaintiffs claim that defendants are trespassing on their land and refuse to leave, despite plaintiffs' requests that they do so. Defendants argue that they were given permission to use the land they now occupy back in 1989, and that they have a continuing right to use the land as a result of that permission.

Plaintiffs allege that defendants are occupying land owned by Yvette Etscheit Adams and Renee Etscheit Varner, and leased by Carlos Etscheit Soap Company Inc., without their consent. They claim that in the early 1990's, Defendants Andon Epina and Maria Epina asked Yvette Adams for permission to use a very small portion of Tract No. 046-A-09 on a temporary basis because Andon Epina was ill, and his wife Maria wished to be close to the Pohnpei Hospital. Yvette Adams granted the requested permission. Compl. para. 11. Subsequently, Defendants Pendura Epina, Paula Epina and others also moved on to the premises and began using it for general living purposes and for cultivating food crops. Id. para. 12. Plaintiffs claim that defendants have built five separate living units on the land in total, continue to expand the area and nature of their use of Tract No. 046-A-09, and continue to bring in additional family members. Id. Plaintiffs further allege that beginning in 1995, they communicated with all defendants through Pendura Epina, spokesperson for the Epina family, and instructed defendants either to sign a lease for a sufficient period of time to allow them to relocate elsewhere, or to vacate the property immediately. Despite plaintiffs' repeated demands, defendants have neither signed a lease, nor relocated, and plaintiffs' efforts to persuade defendants to move have resulted in threats of violence

by defendants. Id. paras. 13-19. Plaintiffs claim that defendants' continued unlawful occupation of their land has cost them use of the land and lost income opportunities, and threatens them with permanent loss of that land. Id. para. 22. They seek defendants' eviction, compensatory and punitive damages, and a permanent injunction prohibiting defendants and others from trespassing upon their land.

Defendants' Answer admits that other family members beside Maria and Andon Epina currently reside on the land. Answer para. 4. They further admit that Pendura Epina and Paula Epina moved onto the land about four years after permission was granted by Yvette Adams, and that when they moved on, four structures existed already. Id. para. 10. Defendants acknowledge that plaintiffs have made some requests that they relocate and that they have failed to relocate. Id. para. 14. They state that they do not claim ownership of the land, and to their knowledge and belief were never given a lease to sign. Id. paras. 12-13.

Defendants assert a counterclaim for promissory estoppel. They argue that they have lived on the property since 1989, in reliance on Yvette Adams' promise that their family could live and grow crops there while Andon Epina required medical treatment. Answer at 4, para. 1. They contend that because they acted in reliance on plaintiffs' promise in building houses and in planting food crops, and because Andon Epina continues to be frequently hospitalized, under the doctrine of promissory estoppel they are entitled to remain on the land and to continue to cultivate and harvest their crops while Andon Epina continues to require medical treatment. Id. para. 2-6.

Based on the allegations of their Complaint, on June 2, 1997, plaintiffs moved for a preliminary injunction which would enjoin, restrain and prohibit defendants, during the pendency of the action, from interfering with plaintiffs' use and enjoyment of all of Tract No. 046-A-09 while the litigation is pending. Specifically, plaintiffs request that defendants be enjoined, restrained and prohibited from

Defendants strenuously oppose plaintiffs' motion. They argue that the purpose of a preliminary injunction is to preserve the status quo, and that preservation of the status quo in this situation means allowing them to continue to live on and farm the land they now occupy, so that Andon Epina can remain close to the hospital until the dispute is resolved. See Defs.' Opp'n to Motion for Prelim. Inj. at 4.

Yvette Adams testified that Maria Epina came to her in 1992, and asked for permission to put up a small shed on the land for her to stay in while her husband was in the Pohnpei State Hospital. Maria Epina told her that when her husband got out of the hospital, she and her husband would go back to Parem, where they are from. Although Andon Epina subsequently got out of the hospital, Maria and Andon never left the land.

Yvette Adams further testified that Maria Epina asked only for permission to stay on the land, and did not ask for permission to farm the land. Moreover, no one else in defendants' family ever asked her or any of the other plaintiffs for permission to move onto the land or to farm land in the area. Nevertheless, after Maria Epina moved onto the land, her relatives joined her, put up sheds and started to farm the area. Yvette Adams testified that after defendants put up a nahs on the property in 1993 or 1994, she spoke to Maria Epina again, to impress upon her that only she, and no one else, had been given permission to stay on the land, and that the permission granted had been for one house only. Maria Epina responded that she had told this to her son, but he had continued working. According to Yvette Adams, there are now five buildings on the property ) one nahs, three sheds and a cookhouse ) even though she never gave permission to anyone to construct additional buildings on the property. She stated that when she first learned the Epinas were planting crops, she sent Francis Elwise, her employee, to tell them to stop, but they continued. She testified that she has observed yams, taro, bananas, coconut and sakau on the property.

Significantly, Yvette Adams testified that when she and Maria Epina spoke in 1992, they never discussed how long Maria Epina would stay on the land, or how she might support herself while she was there. Maria Epina never told her what form of health problem her husband had, but only said that he was ill and needed a place to stay while he was in the hospital. She never told her that her husband had a chronic, long term illness that might require medical treatment for years. Neither Maria Epina nor any of the other defendants ever asked her for permission to stay on the land for the remainder of their lives, or for the remainder of Andon Epina's life. In fact, after her conversation with Maria in 1992, Yvette Adams testified, she believed Maria might stay for perhaps a month or two. Finally, Yvette Adams stated that she would not have expected Maria Epina's extended family to come and stay with her on the land because at the time Maria Epina asked her for permission, Maria's children were adults with their own families.

Maria Epina testified that she is now 61 years of age. Her husband is 65. She admitted that when she asked for permission to move onto the land she only asked Yvette Adams for permission to build a single house, and that she had built more structures only because Yvette Adams did not expressly prohibit it. She agreed that she and Yvette Adams had never discussed the length of time she would stay on the land, and admitted that she never asked Yvette Adams for permission to stay on the land for the rest of her life or for the rest of her husband's life. She also admitted that when she spoke to Yvette Adams, she had it in her mind that she might reside on that property for the rest of her life because did she expect that her husband would be in and out of the hospital, perhaps for the remainder of his life, and because she had asked for permission to stay there and had nowhere else to go.

Maria Epina conceded that she and Yvette had never discussed her family's living with her. She testified that she assumed that because she herself had been given permission, her family could live there as well. She testified that there are now 14 people living on the land, including herself, her husband Andon, and their two adult sons and their sons' families.

Maria Epina testified that during her original conversation with Yvette Adams, she had asked for permission to farm for the food she would live on. She estimated that she has planted approximately 50 breadfruit trees, 20 coconut trees and over 100 sakau plants on the land. She explained that she views these plants as belonging to Yvette Adams, but believes she has a right to use them while she lives on the land. Maria Epina admitted that when she first spoke with Yvette Adams about living on the land, she had not explained that she intended to plant a large number of permanent crops.

Maria Epina further testified that she has a brother who lives across from the hospital, and a son who lives in Nanpil, in Nett. She admitted that she never informed Yvette Adams that she had relatives living around the hospital when asking for permission to stay on plaintiffs' land. She testified that she could not stay with either of these relatives, but admitted she had not asked either of them for permission to stay with them.

Pendura Epina, one of Maria's two adult sons, testified that he is 45 years of age, and has lived on plaintiffs' land by the Lewi river for six years. He admitted that he never asked Yvette Adams for permission for him, his wife, or his six children to live on that land. He testified that he had helped his brother construct a building on the land.

Pendura Epina further testified that he received a document on or about April 25, 1997 from the plaintiffs, asking him, Maria and Andon Epina to meet with members of the Adams family to discuss leasing the property. However, he forgot to attend the meeting, made no effort to contact plaintiffs to reschedule the meeting once he remembered, and also made no written response to the letter.

Following testimony from Yvette Adams, Maria Epina and Pendura Epina, plaintiffs renewed their request for injunctive relief. However, they modified that request. They expressed their willingness to allow Maria and Andon Epina to remain on the land until the conclusion of the litigation, in the one structure Yvette Adams had given Maria Epina permission to build. They also stated that they were willing to allow Maria and Andon Epina to continue to harvest crops already on the property, provided they did not expand the area already planted. Nonetheless, plaintiffs renewed their request that all other defendants be given a reasonable amount of time to remove themselves and their structures from the property. If at the end of that period defendants' structures had not been removed, plaintiffs asked for permission to remove them themselves. Plaintiffs also asked that defendants be enjoined from burying people on the land. Defendants did not object to this last request.

In considering whether to grant a motion for preliminary injunction, this Court looks to four factors: (1) the possibility of irreparable injury to the plaintiff; (2) the balance of possible injuries between the parties; (3) the movant's likelihood of success on the merits; and (4) the impact of any requested action upon the public interest. See Ponape Enterprises v. Bergen, 6 FSM Intrm. 286 (Pon. 1993); Ponape Transfer & Storage v. Federated Shipping Co., 3 FSM Intrm. 174, 177 (Pon. 1987); Ponape Transfer & Storage v. Pohnpei State Pub. Lands Auth., 2 FSM Intrm. 272, 276-77 (Pon. 1986). The Court will discuss each of these factors in turn.

In order for injunctive relief to be granted, the party seeking protection must be faced with the threat of irreparable harm before the conclusion of the litigation unless the injunction is granted. Ponape Transfer & Storage, 2 FSM Intrm. at 276. If money damages or other relief will fully compensate for any threatened interim harm, the preliminary injunction should be denied. Id.

At the hearing, plaintiffs argued that defendants' presence is causing them irreparable injury in two ways: first, by preventing them from running a fence to the boundary of their property to fully enclose their cattle raising operations; and second, by encouraging other squatters to move onto the land by their example. Plaintiffs argue that if the Court allows squatters to remain on their land, without a plausible claim of entitlement, other squatters will be encouraged to do the same for as long as they can get away with it.

The Court finds that a threat of irreparable injury exists. Any continuing damage to plaintiffs' cattle raising operations could be remedied through monetary damages. Similarly, any intrusion on the property by additional squatters is speculative and could be handled through litigation. However, a threat of substantial non-economic injury exists in the form of the threats of violence plaintiffs allege they have received from defendants.

Plaintiffs' Complaint alleges that after plaintiffs' relatives went out to the property to assess damage from a major flood, Pendura Epina made a phone call to another of plaintiffs' relatives, objecting to plaintiffs going on the land without his permission, threatening plaintiffs with physical violence, and telling them he would fight for the land. Defendants' Answer admits this, although

Pendura Epina denied it at the hearing.1 Although plaintiffs did not address this element specifically, in the context of their argument that irreparable injury would occur from the denial of their motion for injunctive relief, the Court nonetheless feels it to be an important consideration. Defendants' threats and assertion of control over the land deprives plaintiffs of access to their land in a way that cannot be easily quantified, and in a way that money damages or other relief cannot completely compensate for. The Court therefore finds that a threat of irreparable injury exists.

Defendants argue that the balance of possible injuries favors denial of plaintiffs' request for relief. They contend that their interest in remaining on the land far outweighs plaintiffs' interest in having them off the land while this litigation proceeds. Maria and Andon Epina have been on the land since 1989, and Pendura Epina has been there for six years; ejecting them and their families at this point will disrupt their lives substantially. In addition, Andon Epina makes frequent trips to the hospital, and other family members need to be around to make sure he gets there as needed for his asthma.

Plaintiffs respond that the duration of defendants' stay on the land is irrelevant, if defendants have no legitimate claim that they received permission to move onto the land in the first place. Maria Epina admits that she only asked for permission for herself to move onto the land, admits that she only asked for permission to build a single house, and admits that she never asked for permission for her extended family to move onto the land for an extended period of time. Moreover, all defendants other than Andon and Maria Epina admit they were not granted permission to move onto the land. Plaintiffs argue that no interest is served by allowing others without even colorable claims to remain on the property.

In evaluating this factor, the Court compares the threatened harm to each party if the requested injunctive relief is granted or if it is denied. The Court finds that the harm to defendants, if the requested injunction issues, is greater than the harm to plaintiffs, if it does not. If the Court grants plaintiffs' request, all defendants except Andon and Maria Epina will be compelled to dismantle their living quarters on plaintiffs' land, and relocate elsewhere. However, if the Court denies plaintiffs' request, plaintiffs will have to tolerate defendants' presence on their land, including their intrusion upon plaintiffs' cattle raising operations and the possibility of further threats of violence, at least until the conclusion of this litigation. The Court finds that this second factor weighs slightly against granting plaintiffs' request for injunctive relief.

The Court finds that this third factor weighs in favor of granting plaintiffs' modified request for injunctive relief. The testimonial evidence presented at the hearing strongly suggests that Yvette Adams never made a promise that could be reasonably construed to have induced Maria and Andon's extended family to take any action to their detriment, in order to move onto the land for so long as they wished. Pendura Epina admitted that he himself never asked plaintiffs for permission to live on the land with his family, and the Epina's other adult son, who also now lives on the land with his own family, did not testify. Defendants presented no evidence of detrimental reliance by defendants other than Maria and Andon as a result of Yvette Adams's promise.

Plaintiffs assert that they are likely to succeed on the merits because any permission plaintiffs granted Maria Epina to temporarily live on the land has long since expired or been exceeded. In addition, most of the defendants were never granted permission to move onto the land at all.

Defendants argue that they are likely to succeed on the merits based on their counterclaim for promissory estoppel. They contend that Maria and Andon Epina were living on Parem before they requested permission of Yvette Adams for their family to live and farm on plaintiffs' land in Nett, so that Andon Epina could be close to the Pohnpei State Hospital. Immediately after Yvette Adams granted permission, Maria and Andon Epina moved onto the property and constructed four houses. Answer at 4. Defendants contend that they relied on Yvette's promise that they could live and grow crops on the land while Andon requires medical treatment in moving onto the property, building houses and planting food crops. For this reason, they should be entitled to continue to live on and farm the land under the doctrine of promissory estoppel, for so long as Andon Epina continues to require medical treatment.

We are still at an early stage of this litigation. Cf. Ponape Transfer & Storage, 2 FSM Intrm. at 278. However, having heard from the primary parties on the central issues in the case ) the scope of the permission granted to defendants ) the Court finds that plaintiffs appear far more likely to succeed on the merits at this juncture.

First, it does not appear that defendants relied on Yvette Adams's promise to their detriment. This is not a case in which people moved onto land in reliance on a promise, made a major investment in that property, and then were threatened with ejection days later. Defendants have been benefiting from their interpretation of plaintiff's promise for years now. No detrimental reliance has been shown to exist.

Second, estoppel is an equitable doctrine which may be invoked only by parties who themselves have acted properly concerning the subject matter of the litigation. Federated Shipping Co., 3 FSM Intrm. at 178. Maria Epina failed to communicate a series of critical facts to plaintiffs: the fact that she had other relatives living in the vicinity of the hospital that she might have been able to reside with while her husband was in the hospital; her intention to move her adult children and their families onto the land; and her intention to reside on the property for so long as her husband lived. If Maria Epina had informed Yvette Adams of any of these facts or intentions, Yvette Adams's response to her request

Defendants ask the Court to find plaintiffs estopped from now ejecting them from the land, based on Yvette Adams's promise to Maria Epina. However, one of the necessary elements of equitable estoppel is that the party to be estopped must have had knowledge, actual or constructive, of the real facts:

[I]t is essential to the doctrine of equitable estoppel . . . that the party sought to be estopped should have had knowledge of the facts, or at least that he should have had the means at hand of knowing all the facts, or have been in such a position that he ought to have known them. This rule applies with particular force where the estoppel is claimed by reason or inaction, or of mere loose expressions of an ambiguous character . . . .

28 Am. Jur. 2d Estoppel and Waiver § 40, at 645 (1966) (footnotes omitted). There is a substantial difference between granting permission for a woman to build a single dwelling on your land to live in for a few months until her husband gets out of the hospital, and granting permission for fourteen people to take up residence in four houses on your land, and to plant permanent crops on that land for six years, eight years or for the rest of their lives. The first request for permission might be granted on the basis of a short conversation, such as Yvette Adams and Maria Epina agree they had; it is extremely unlikely that the second would. Again, if Maria Epina had informed Yvette Adams of her true intentions during the course of their short conversation, defendants' counterclaim would be more supportable.

Id. § 45, at 653. From the testimony presented thus far in this litigation, it appears that Maria Epina made a number of assumptions about the scope of the permission granted her that may not have been objectively reasonable assumptions based on her conversation with Yvette Adams. Accordingly, the Court finds that plaintiffs have a far greater likelihood of success on the merits than defendants. This factor weighs strongly in favor of granting the modified request for injunctive relief proposed by plaintiffs.

Three of the four factors the Court weighs in evaluating motions for preliminary injunctions favor granting plaintiffs the modified request for injunctive relief they seek. The balance of the interests of the parties favors permitting all defendants to stay in the homes they now occupy, pending resolution of this litigation. However, the threat of irreparable harm, the public interest in protecting landowners from squatters, and plaintiffs' great likelihood of success on the merits, taken together, far more strongly favor ejecting from the land all those defendants, other than Maria and Andon Epina, who make no claim that they were ever granted permission to move onto the land. Of the greatest significance to the Court in reaching this decision is plaintiffs' substantial likelihood of success at trial against these defendants, based on testimony already presented from critical witnesses.

1. Effective 60 days following issuance of this Order, defendants are enjoined, restrained and prohibited from occupying Tract No. 046-A-09, and from interfering with plaintiffs' use and enjoyment of that property; except that Maria and Andon Epina alone shall be permitted to remain on the property during the pendency of this litigation, and to occupy

[8 FSM Intrm. 165]

the original single structure plaintiffs granted Maria Epina permission to build together with its immediately surrounding area, with only such interference from plaintiffs as is reasonably necessary for the maintenance of plaintiffs' cattle raising operations, and for the removal of structures described in paragraph 7, below;

2. Effective immediately, all defendants are enjoined, restrained and prohibited from constructing and/or reconstructing, repairing, improving or altering any structures or facilities of any kind anywhere within Tract No. 046-A-09; except that Maria and Andon Epina alone shall be permitted to make repairs to the single structure referenced in paragraph 1, above, as reasonably necessary during the pendency of this litigation;

3. Effective immediately, all defendants are restrained, enjoined and prohibited from harvesting or planting any plants or food crops of any kind, clearing any land, cutting any trees, bushes or plants of any kind whatsoever anywhere within Tract No. 046-A-09; except that Maria and Andon Epina alone shall be permitted to harvest crops and plants on the property that they themselves have planted, but shall not be permitted to expand the area already planted or to plant any new trees, bushes or plants of any kind whatsoever on the land;

4. Effective 60 days following issuance of this Order, all defendants are restrained, enjoined and prohibited from crossing any of the fences forming the boundaries of Tract No. 046-A-09, or crossing any cattle fences within that tract; except that Maria and Andon Epina alone shall be permitted to cross these fences or boundaries as reasonably necessary to obtain access to the dwelling referenced in paragraph 1 of this injunction and its immediately surrounding area; and except that defendants shall be permitted to come upon the land for the sole purpose of escorting Andon Epina to and from the Pohnpei State Hospital for medically necessary hospital visits;

7. Effective 60 days following issuance of this Order, all defendants are restrained, enjoined and prohibited from interfering with plaintiffs' removal of any and all structures on the property built in addition to the original structure referenced in paragraph 1 of this injunction, if such structures remain on the land 60 days following issuance of this Order; and

All defendants except Maria Epina and Andon Epina have 60 days following entry of this Order to vacate the property. Defendants shall also have 60 days following entry of this Order to remove any and all additional structures described in paragraph 7 from the property. If, upon the expiration of 60 days, such structures remain on the property, plaintiffs or their agents shall be permitted to remove these structures themselves without interference from defendants or their agents.

1. The Court discounts Pendura Epina's hearing testimony on this issue because it was evasive and conflicts with Defendants' Answer. Defendants' Answer admits that Pendura Epina called Noel Boylan, looking for Carrie Boylan, to complain about her and Richard Adams having come to the land on the preceding day without his permission. See Compl. paras. 18-19; Answer paras. 16-17. It also admits that Pendura Epina told Noel Boylan that no one should go on the land without his permission, and that he would fight for the land. Compl. para. 19; Answer para. 17. Defendants deny that Pendura Epina ever stated he would use his knife on plaintiffs or that he would cut off the head of any person who came to the land ) other allegations plaintiffs have made. Id. Carrie Boylan is the daughter of Renee Etscheit Varner, and Richard Adams is the son of Yvette Etscheit Adams. See Motion for Preliminary Inj.; Aff. of Carrie Boylan and Richard Boylan (June 2, 1997); Aff. of Noel Boylan (May 14, 1997) (describing alleged substance of phone call from Pendura Epina).