8 FSM Intrm. 231-241

In order for the appellate division to hear an appeal in the absence of a final judgment there must be some other source of jurisdiction, such as FSM Appellate Rule 4(a)(1)(B) which allows appeals from FSM Supreme Court trial division interlocutory orders granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions. Iriarte v. Etscheit, 8 FSM Intrm. 231, 235 (App. 1998).

When an appellate rule has not been construed by the FSM Supreme Court and it is nearly identical to a similar United States counterpart, we may look to U.S. practice for guidance. Iriarte v. Etscheit, 8 FSM Intrm. 231, 235 (App. 1998).

As a general rule in an interlocutory appeal of an injunction an appellate court concerns itself only with the order from which the appeal is taken, and reviews other issues only if they are inextricably bound up with the injunction. Thus an appellate court has jurisdiction to review a summary judgment on the merits when the appellants are subject to a permanent injunction which is inextricably bound up with the underlying summary judgment. Iriarte v. Etscheit, 8 FSM Intrm. 231, 235 (App. 1998).

An appellate court applies the same standard in reviewing a trial court's grant of a summary judgment motion as that initially employed by the trial court under Rule 56(c). Thus, the review is de novo. Iriarte v. Etscheit, 8 FSM Intrm. 231, 236 (App. 1998).

A court must deny a motion for summary judgment unless it finds there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The facts must be viewed in the light most favorable to the party against whom judgment was entered. Iriarte v. Etscheit, 8 FSM Intrm. 231, 236 (App. 1998).

The doctrine of res judicata bars the relitigation by parties or their privies of all matters that were or could have been raised in a prior action that was concluded by a final judgment on the merits, which has been affirmed on appeal or for which time for appeal has expired. Iriarte v. Etscheit, 8 FSM Intrm. 231, 236-37 (App. 1998).

A lawyer has an ethical obligation to disclose legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to her client's position. Iriarte v. Etscheit, 8 FSM Intrm. 231, 237 (App. 1998).

Once a Designation of Land Registration Area is made, courts should not entertain actions with regard to interests in such land unless special cause is shown for so doing. Iriarte v. Etscheit, 8 FSM Intrm. 231, 238 (App. 1998).

The statutory provisions required for notice to those the land registration team might find from preliminary inquiry to have claims includes both actual service on known claimants and posting. Iriarte v. Etscheit, 8 FSM Intrm. 231, 238 (App. 1998).

When a court makes the determination of ownership the Land Commission is not relieved from giving notice of that determination prior to issuing the certificate of title. Iriarte v. Etscheit, 8 FSM Intrm. 231, 238 (App. 1998).

Adverse possession is a doctrine under which one can acquire ownership of land if he, without the owner's permission, uses the land openly, notoriously, exclusively, continuously and under claim of right, and the owner does not challenge such action until after the statute of limitations has run. Iriarte v. Etscheit, 8 FSM Intrm. 231, 239 (App. 1998).

The adverse possession element of "under claim of right" means that the claimant intends to hold the land as his own to the exclusion of all others. It has the same meaning as "hostile." Iriarte v. Etscheit, 8 FSM Intrm. 231, 239 (App. 1998).

When the requisite element of hostility is absent from a party's assertion of adverse possession it is irrelevant whether the party had occupied the land for twenty years before the certificate of title was issued because their occupation was not hostile. Iriarte v. Etscheit, 8 FSM Intrm. 231, 239 (App. 1998).

The FSM Supreme Court does not acknowledge that ownership in land can be gained by adverse possession because when a party cannot satisfy elements to make out claim of adverse possession it is unnecessary to decide whether to recognize that doctrine. Even in those jurisdictions in which adverse possession is recognized, it is not favored as a method of acquiring title. Iriarte v. Etscheit, 8 FSM Intrm. 231, 239 (App. 1998).

When parties' claim to possession of land changes from permission of someone without authority to give permission to hostility an adverse possession claim will fail if the period of hostility has not yet run twenty years. Iriarte v. Etscheit, 8 FSM Intrm. 231, 240 (App. 1998).

When no affidavit or deposition is filed in opposition to a motion for summary judgment, there is no genuine issue presented as to any material fact and summary judgment will be affirmed. Iriarte v. Etscheit, 8 FSM Intrm. 231, 240 (App. 1998).

Profit à prendre, the right to enter land for cultivation and to take the products of such cultivation, is an interest separate from ownership. It may be created by either grant or prescription. Iriarte v. Etscheit, 8 FSM Intrm. 231, 240 (App. 1998).

Acquisition by prescription of the right to profit à prendre requires the same claim of right or hostility as required to gain ownership by adverse possession. Iriarte v. Etscheit, 8 FSM Intrm. 231, 240 (App. 1998).

The FSM Supreme Court does not need to rule on whether to recognize to recognize the legal doctrine of profit à prendre when the claimant cannot satisfy the elements of that doctrine. Iriarte v. Etscheit, 8 FSM Intrm. 231, 240 (App. 1998).

When a party's possession of land was not hostile so as to give rise to an adverse possession or to a profit à prendre claim, failure to give the party notice is not a violation of the party's due process rights. Iriarte v. Etscheit, 8 FSM Intrm. 231, 240 (App. 1998).

This is an appeal from an Order Granting Summary Judgment reported at 7 FSM Intrm. 390 (Pon. 1996) which permanently enjoined appellant Iso Nahnken from encouraging any individuals to enter or to remain upon the appellees' land, and which ordered the other 27 appellants to cease trespassing on appellees' land. This order was in the nature of a permanent injunction.

Iso Nahnken contends that the trial court wrongly decided issues of res judicata, luen wehi (unused or public land), and whether appellees' certificate of title gave them a superior right of possession. We find no error in the trial court. The decision appealed from is accordingly affirmed.

The other appellants raise two issues. First, they contend that the trial court wrongly held that the filing of the Designation of Land Registration Area constituted notice to them of the land registration

proceedings and that the resulting certificate of title gave the appellees a superior right to possession of the disputed land. We conclude that although the notice was not in conformity with the statute, the appellee-owners' chain of title which included court decisions was superior evidence of the right to possession. Second, the appellants contend that the trial court erred in rejecting their claims to the land based on adverse possession and profit à prendre. We conclude that no error exists.

This appeal is not from a final judgment. In all cases the plaintiffs sought damages for trespass as well as injunctive relief. Summary judgment was granted for the plaintiffs on the trespass counts and only injunctive relief was ordered. The damages issue was not adjudicated. Against defendant Salvador Iriarte there is an additional unadjudicated damage claim brought by one plaintiff, Caroline Island Development Co., for a $4,692.50 check returned for insufficient funds. The plaintiffs' other claims may also have been adjudicated, except for damages, when the trespass claims were because they were all causes of action alleged to have stemmed from acts of trespass. Summary judgment for the plaintiffs necessarily disposed of most, if not all of the defendants' counterclaims.

The general rule is that only final judgments can be appealed. See, e.g., Kosrae v. Melander, 6 FSM Intrm. 257 (App. 1993) (there is no final judgment that can be appealed when only liability and not damages decided). Because neither the damages portion of the trespass cause of action nor the bad check claim were adjudicated there were no final judgments. When questioned at oral argument, appellees' counsel stated that the damages claims were still pending and that they had not yet decided whether to proceed on them and that the bounced check claim was also still pending.

In the absence of a final judgment there must be some other source of jurisdiction in order for us to be able to hear this appeal. FSM Appellate Rule 4(a)(1)(B) allows appeals "from interlocutory orders of the Federated States of Micronesia Supreme Court trial division granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions." The appellants, however, do not appeal the issue of the injunctive relief, instead they appeal the underlying summary judgment. No FSM Supreme Court decision addresses whether Rule 4(a)(1)(B) covers such a situation. When an appellate rule has not been construed by the FSM Supreme Court and it is nearly identical to a similar United States counterpart, we may look to U.S. practice for guidance. Jano v. King, 5 FSM Intrm. 326, 329 (App. 1992) (using 28 U.S.C. § 1292(b) as guidance to construe FSM App. R. 5(a)). The language of Appellate Rule 4(a)(1)(B) is identical, except for the names of the courts, to 28 U.S.C. § 1292(a)(1).

In Marathon Oil Co. v. United States, 807 F.2d 759 (9th Cir. 1986), cert. denied, 480 U.S. 940 (1987) the appeals court was faced with a similar situation. There the district court had granted summary judgment for the government and issued an injunction based upon the judgment. The court determined that "[a]s a general rule . . . [the court] concern[s] [itself] `only with the order from which the appeal is taken,' and review[s] other issues only if they are `inextricably bound up' with the injunction." Id. at 764 (citations omitted). It concluded that a permanent injunction was inextricably bound up with the summary judgment and that it thus had jurisdiction under section 1292(a)(1) to review the summary judgment on the merits. Id. at 764-65. Cf. Smith v. Vulcan Iron Works, 165 U.S. 518, 525, 17 S. Ct. 407, 410, 41 L. Ed. 810, 812-13 (1897) (under similar jurisdictional grant appeal from interlocutory order for permanent injunction permits case to be decided upon its merits).

The present appeal is similar in that all appellants are subject to a permanent injunction which is inextricably bound up with the underlying summary judgment. We therefore have jurisdiction, pursuant to FSM Appellate Rule 4(a)(1)(B), to hear these consolidated appeals and to reach the summary judgments' merits.

We apply "the same standard in reviewing a trial court's grant of a summary judgment motion as that initially employed by the trial court under Rule 56(c). . . . Thus, [the] review is de novo." Tafunsak v. Kosrae, 7 FSM Intrm. 344, 347 (App. 1995). "A court must deny a motion for summary judgment unless it finds there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Adams v. Etscheit, 6 FSM Intrm. 580, 582 (App. 1994). The facts must be viewed in the light most favorable to the party against whom judgment was entered. Id.

Salvador Iriarte, the Iso Nahnken of Nett, asserts that the trial court erred when it found his claim to the land was foreclosed by prior court decisions, when it rejected his luen wehi claim to the land, and when it found that the Etscheits' certificates of title vested superior legal rights in them. Salvador Iriarte's defense against all of the plaintiffs' claims (with the exception of the bad check claim) was that all the land in question is Nett luen wehi land to which the Etscheits cannot have title, and that as holder of the traditional title of Iso Nahnken of Nett he had the power to distribute such land. The trial court found this defense foreclosed by prior court decisions. We agree and affirm.

The Nanmwarki and the Nahnken of Nett previously litigated, or should have litigated, the luen wehi issue in the Trust Territory High Court action that commenced in 1978 and was affirmed on appeal in 1982. In re Etscheit's Estate, Civil Action No. 142-78 (Trust Territory High Court Dec. 29, 1980), aff'd sub nom., Nanmwarki v. Etscheit Family, 8 TTR 287 (App. 1982). The parties in that case were the Etscheits and the Nanmwarki (the current Nahnken's father) and the Nahnken of Nett. The litigation was over title to the "Etscheit land" some of which is the land in question in this appeal. The Etscheits prevailed at both the trial and appellate levels.

Whether the land in question was luen wehi was litigated in In re Parcel No. 046-A-01, 6 FSM Intrm. 149 (Pon. 1993), and Ponape Enterprises Co. v. Soumwei, 6 FSM Intrm. 341 (Pon. 1994), both aff'd sub nom., Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40 (App. 1995). The plaintiffs in those cases were the same as the appellees in the present appeal, but the Nahnken of Nett was not a party. Those cases involved defendant trespassers on the land who raised the luen wehi issue. The plaintiffs prevailed.

Salvador Iriarte then raised his claims directly and sued the Etscheits, the Pohnpei Public Land Authority Board of Trustees, and the United States for damages due to his alleged loss to the Etscheits of his luen wehi land. Nahnken of Nett v. United States (III), 6 FSM Intrm. 508 (Pon. 1994), aff'd, 7 FSM Intrm. 581, reh'g denied, 7 FSM Intrm. 612 (App. 1996). The appellate division, in affirming the trial division, held that the Nahnken's suit concerning the land in question was barred by res judicata as a result of the earlier Trust Territory court action, and that the land had never been public land. 7 FSM Intrm. at 586-89.

When asked at oral argument on the summary judgment motion now on appeal if the Luzama appellate decision was binding, the Nahnken's counsel replied that it was not because the Nahnken was not a party to it and that the trial court's decision ought to await the appellate opinion in the Nahnken of Nett v. United States case. Transcript at 48-49 (June 15, 1995). The Nahnken did not raise at the summary judgment oral argument, and does not raise now in this appeal, any arguments that he did not raise in the Nahnken of Nett v. United States appeal.

or could have been raised in a prior action that was concluded by a final judgment on the merits, which has been affirmed on appeal or for which time for appeal has expired. Nahnken of Nett v. United States, 7 FSM Intrm. 581, 586-87 (App. 1996); Berman v. FSM Supreme Court (II), 7 FSM Intrm. 11, 16 (App. 1995); United Church of Christ v. Hamo, 4 FSM Intrm. 95, 106 (App. 1989). That doctrine thus forecloses the Nahnken of Nett from further litigation concerning this land.

The Nahnken of Nett v. United States appellate opinion was issued before this appeal was ready for briefing. The Nahnken's counsel, however, failed to mention this directly adverse authority in the Nahnken's brief although she had been counsel of record in that case as well. A lawyer has an ethical obligation to disclose legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to her client's position. FSM MRPC R. 3.3(a)(3). That obligation was not met.

The appellees contend that they comprise the owners and lessees of certain land in Pohnpei, which is the same tract as involved in Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40 (App. 1995). In Luzama the appellants had entered the property in 1992 and in later years. In the present case a majority of the 27 remaining appellants (hereinafter referred to as "appellants") entered prior to 1983, the year the appellee-owners obtained a certificate of title.

Twenty-one had the Nanmwarki's, the Iso Nahnken's, or the section leader's permission ) or succeeded to the interest of one with such permission ) to enter into possession of the parcels of land they now claim and begin cultivation. All of the appellants who entered in the 40's, 50's and 60's had such permission. The remaining six appellants entered and began cultivating without such permission in the 70's, 80's and 90's. Four of these believed the land to be luen wehi or leftover public land. The remaining two (Eneriko Rodriguez and Albon Suldan) submitted no affidavit, and were not deposed.

Twenty appellants contend that their long occupancy ripened into title by adverse possession or by profit à prendre. The remaining appellants seek a declaration of their right to use and subsist from the land they possess. All appellants allege defects in the certificate of title which renders it invalid as to them. They particularly contend that they did not have notice of the land registration proceedings even though they were in possession of the land at that time.

l. Memorandum of Understanding dated September 14, 1956 between the Trust Territory of the Pacific Islands and Florentine Etscheit by which lands taken from the Etscheits by forced sale by the Japanese were to be returned to Florentine Etscheit. Included was a tract of 1,250 acres, a part of which is the subject of the present case.

The Land Commission issued the certificate of title based on the High Court Appellate Division decision mentioned in "3" above. The documents mentioned in "4," "5" and "6" above are the only documents in the Pohnpei Land Commission file pertinent to the issues presented in this case.

Written and oral argument centered on the circumstances shared by a majority of the appellants, namely, those who had received permission from the Nanmwarki to enter and cultivate parcels of land within the tract claimed by the appellee-owners, who have possessed the parcels since that time and were in possession in 1983 when the Land Commission issued the certificate of title. A minority of the appellants have circumstances that are significantly different, and these will be addressed after our discussion about the majority.

The appellants' contention is that the certificate of title is invalid as to them since they received no notice of the land commission proceedings resulting in that certificate. Their contention as to lack of actual notice is conceded. The trial court concluded however that they had requisite notice through the Designation of Land Registration Area, "5" above. The statute requires that the Designation be filed with the district clerk of court, 67 TTC 105, and this appears to have been done. There is nothing in the record to indicate that the Designation was posted.

Following the Designation a field survey of the external bounds of the entire tract and a cadastral plat were made. This accords with the statute for land registration. 67 TTC 106. Thereafter, however, proceedings were held in the High Court to determine title. The statute requires that once the Designation is made, the courts not entertain actions with regard to interests in such land unless special cause is shown for so doing. 67 TTC 105. No finding of special cause appears in the record. The provision appears to have been ignored. Thus the statutory provisions for notice were not given to those the land registration team might find from preliminary inquiry to have claims. 67 TTC 107. The notice required before hearing is set out in 67 TTC 110, and includes both actual service on known claimants and posting. Id.

Although the determination of ownership, which is a prerequisite to the issuance of a certificate of title, was made by the High Court, the Land Commission is not relieved thereby from giving notice of that determination prior to issuing the certificate. 67 TTC 114. That notice is given by service on all those identified as having a claim, and by posting. Id.

For these reasons we cannot affirm the trial court's conclusion that the appellants were provided with the notice required by statute. Although we conclude that that reliance was misplaced, the record before us documents the appellee-owners' chain of title. The appellees in their complaint relied upon the certificate of title to establish their right of possession. This chain includes the High Court Appellate Division's recitations as to the history of the Etscheit claims. We conclude that this chain of title reveals a superior right to possession to the parcels of land in question over the appellants' permissive occupancy.

Appellants have no record title or recorded claim. They rely instead on long occupation to give them a right to remain in possession and to subsist off what they grow. Twenty appellants' answers allege that this right exists by virtue of over twenty years' adverse possession, or by a right of profit à prendre to grow and harvest on the land.

The elements of adverse possession are undisputed. Appellants use this definition: "[A] doctrine under which one can acquire ownership of land if he, without the owner's permission, uses the land openly, notoriously, exclusively, continuously and under claim of right, and the owner does not challenge such action until after the statute of limitations has run." Etscheit v. Adams, 6 FSM Intrm. 365, 389 (Pon. 1994) (citing Iriarte v. Anton, 2 Pon. S. Ct. R. 8, 13 (Tr. 1986)). The applicable statute of limitations period is twenty years. 6 TTC 302(1)(b) (currently reenacted at Pon. S.L. 3L-99-95, § 7-5(2)); see also Etscheit, 6 FSM Intrm. at 389; Etpison v. Perman, 1 FSM Intrm. 405, 416 (Pon. 1984).

The element of "under claim of right" means that the claimant intends to hold the land as his own to the exclusion of all others. It has the same meaning as "hostile." 3 Am. Jur. 2d Adverse Possession § 132 (1986). Appellants and appellees both used the terms "hostile" and "hostility" in their written and oral arguments.

The requisite element of hostility is absent from the appellants' assertion of adverse possession. The appellants acknowledged the Nanmwarki's superior rights and their own subordinate interests by entering the land with his permission to cultivate. It is irrelevant whether an appellant had occupied the land for twenty years by 1983 when the certificate of title was issued because their occupation was not hostile. This disposes of the claims of a majority of the appellants ) those in possession in 1983 who entered with permission of a traditional leader.

By considering the adverse possession claims we do not mean to acknowledge that ownership in land can be gained in this way ) we are only disposing of the arguments before us. Cheni v. Ngusun, 6 FSM Intrm. 544, 548 (Chk. S. Ct. App. 1994) (when a party cannot satisfy elements to make out claim of adverse possession it is unnecessary to decide whether to recognize that doctrine). Even in those jurisdictions in which adverse possession is recognized, it is not favored as a method of acquiring title. Id. at 547.

The record warrants reaching the same conclusion on an alternate ground. As stated, most appellants' claims to rights in the land derive from the Nanmwarki's or the Nahnken's permission. The Trust Territory High Court quieted title in the Etscheits, not the Nanmwarki or the Nahnken. That ruling extinguished the interest of anyone claiming under or through the Nanmwarki or the Nahnken.

l. Appellants Henry Phillip (1986), Balerio Phillip (1985), Claudio Panuelo (1990) and Romini Panuelo (1992) entered and began cultivation in the years indicated. Thus, their argument that the certificate of title is invalid as to them must fail. Luzama, 7 FSM Intrm. at 49 ("Since the appellants had no claims to the land when the title determination process was taking place they were not entitled to notice."). Their adverse possession argument is also inapplicable since possession for twenty years has not occurred.

2. Eight persons attempted to appeal the trial court's 1980 quiet title decision in which the Etscheits prevailed and the Nanmwarki and Nahnken did not. Nanmwarki v. Etscheit, 8 TTR 287, 288 (App. 1982). These were Suliana Panuelo, Dura Rex, Emiliana Martin, Nadip Cantero, Pastor Phillip, Antonio Sultan, Valentine Sultan and Teresita Damarlane. Of these, all but Dura Rex and Valentine Sultan are appellants in the present case.

Appellant Augustine Damarlane cultivates land of his wife Teresita. The claims of appellants Eneriko Anas and Emiel Anas derive from Valentine Sultan. Thus the appellants in this case who appealed the High Court decision of 1980 and those who derive their claims from an appellant in the earlier case all have actual or imputed knowledge that title was quieted in the Etscheit family in the High Court proceedings. Although the appellants' claims to possession up to that time had been based on the Nanmwarki's permission and the Nanmwarki had no authority to give such permission, the record would support a finding that their possession became hostile to the true owner and all others after that decision. However that may be, it is irrelevant to the adverse possession contention because twenty years did not elapse between 1980 or 1982 and the time the lawsuits were filed against them.

3. Two appellants, Albon Suldan and Eneriko Rodriguez, provided no affidavit in opposition to the appellees' Motion for Summary Judgment, nor was either deposed. There is thus no genuine issue presented as to any material fact. FSM Civ. R. 56(e). The trial court is also affirmed on this ground as to these two appellants.

The appellants also claim profit à prendre rights should the court not find ownership by adverse possession. Profit à prendre may be created by either grant or prescription. 28 C.J.S. Easements § 9 (1996). The appellants seek the right to enter the land for cultivation and to take the products of such cultivation. This right is an interest separate from ownership. Am. Jur. 2d Easements and Licenses § 4 (1996).

There was no valid grant of such an interest. Acquisition by prescription requires the same claim of right or hostility as required to gain ownership by adverse possession. See, e.g., Oakley Valley Stone, Inc. v. Alastra, 715 P.2d 935, 938 (Idaho 1985). For the reasons stated above, having entered by permission, the appellants cannot gain an interest of profit à prendre by prescription.

We note that appellants proffered no evidence or argument to support their position that cultivation of another's land under Pohnpeian custom leads to permanent rights in that land. We also note that our comments on profit à prendre do not constitute our recognition of such a right. Cf. Cheni, 6 FSM Intrm. at 548 (no need to rule on whether to recognize a legal doctrine when claimant cannot satisfy the elements of that doctrine). We have, based on the appellants' authorities, only concluded that such an interest was not established in this case.

The appellants contend that their due process rights under the FSM and Pohnpei Constitutions were violated by the failure to give them notice of the land registration proceedings. They assert that their claim of adverse possession and profit à prendre are property rights for which constitutional protection is granted.

As fully discussed above, we have concluded that their possession was not hostile which would have given rise to adverse possession and profit à prendre interests in the land. Appellants cite Follette v. Pacific Light & Power Corp., 208 P. 295 (Cal. 1922) in support of their contention that lack of notice is fatal to the land registration proceedings. Pacific Light and Power was the grantee of an easement of right of way over the premises for the use of its light and power lines. The deed was duly recorded. Later land registration proceedings were conducted in which no notice was given to Pacific Light. As a consequence the owner obtained a certificate of title which did not reflect the interest of Pacific Light. The court held that due process required that notice be given to Pacific Light, and in the absence of such notice, the certificate was void as to Pacific Light.

The facts of Pacific Light differ in that there existed a claim of right and a recorded interest by Pacific Light and Power. In the present case no such claim or record is present. The facts in common are occupancy and lack of notice, but are not sufficient to make the case authority for the present case.