CHUUK STATE SUPREME COURT
APPELLATE DIVISION
Cite as Hartman v. Chuuk ,
9 FSM Intrm. 28 (Chuuk.S. Ct. App. 1999)

[9 FSM Intrm. 28]

SAMUEL HARTMAN,
Appellant,

vs.

CHUUK STATE et al.,
Appellees.

CIVIL APPEAL NO. 10-98

OPINION

Argued:  December 10, 1998
Decided:  February 1, 1999

BEFORE:
Hon. Machime O'Sonis, Associate Justice, Chuuk State Supreme Court, presiding
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, Weno, Chuuk

APPEARANCES:
For the Appellant:      Manny Otoko, trial counselor
                                     P.O. Box 903
                                     Weno, Chuuk FM 96942

[9 FSM Intrm. 29]

For the Appellees:     Julio Akapito, trial counselor
                                     P.O. Box EX
                                     Weno, Chuuk FM 96942

*    *    *    *

HEADNOTES
Appeal and Certiorari ) Standard of Review
     A review of the trial court's factual findings is done under the clearly erroneous standard. The appellant has the burden to clearly demonstrate error in the trial court's findings.  The appellant has a very strong burden to overcome because 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.  Hartman v. Chuuk, 9 FSM Intrm. 28, 30 (Chk. S. Ct. App. 1999).

Property; Statutes of Limitation
     Actions for the recovery of land or any interest therein must be commenced within twenty years after the cause of action accrues.  Hartman v. Chuuk, 9 FSM Intrm. 28, 31 (Chk. S. Ct. App. 1999).

Property ) Adverse Possession; Statutes of Limitation
     A party's claim to land after a municipality has continued its open, notorious, exclusive and hostile occupation of the land for a period of 27 years before he files suit is barred by the twenty-year statute of limitations, and the municipality is the true and lawful owner of title to the land in dispute on the theory of adverse possession.  Hartman v. Chuuk, 9 FSM Intrm. 28, 31 (Chk. S. Ct. App. 1999).

Property ) Adverse Possession
     Adverse possession is an acknowledged doctrine under the common law which is fully applicable in Chuuk state court.  Hartman v. Chuuk, 9 FSM Intrm. 28, 31 (Chk. S. Ct. App. 1999).

Property ) Adverse Possession
     The presumptive rights in land arising from long possession and use, together with delay on the part of the lawful owner in asserting his title, have often been found to be sufficient grounds for taking title from a legal owner and granting it to the user.  Hartman v. Chuuk, 9 FSM Intrm. 28, 32 (Chk. S. Ct. App. 1999).

Property ) Adverse Possession
     The doctrine of adverse possession provides that long-continued peaceful possession under claim of right is a strong indication of ownership.  Hartman v. Chuuk, 9 FSM Intrm. 28, 32 (Chk. S. Ct. App. 1999).

Property ) Adverse Possession
     If a person of full age and sound mind stands by, or he and his predecessors in interest together have stood by, for twenty years or more and let someone else openly and actively use land under claim of ownership for that period or more, the person who so stood by will ordinarily be held to have lost whatever rights he may previously have had in the land and the courts will not, and should not, assist him in regaining such rights.  Hartman v. Chuuk, 9 FSM Intrm. 28, 32 (Chk. S. Ct. App. 1999).

Property ) Adverse Possession
     To avoid trouble, a person who believes he owns certain land and raises no objection to someone else using it, should at least obtain some clear and definite acknowledgment of his ownership by the user's word or acts at intervals of less than twenty years.  If he cannot obtain such an

[9 FSM Intrm. 30]

acknowledgment, he should bring the matter to the court for determination before the use has continued for more than twenty years either from the time it began or from the time of the last such acknowledgment.  Hartman v. Chuuk, 9 FSM Intrm. 28, 32 (Chk. S. Ct. App. 1999).

Property
     A dedication is generally defined as the appropriation of land by the owner for the use of the public.  Hartman v. Chuuk, 9 FSM Intrm. 28, 32 (Chk. S. Ct. App. 1999).

Property
     An owner may be deemed to have dedicated his property based on his actions, which included throwing the property open to the public and his acquiescence in the property's maintenance by the municipality.  Hartman v. Chuuk, 9 FSM Intrm. 28, 32 (Chk. S. Ct. App. 1999).

Equity ) Laches, Estoppel and Waiver
     The doctrine of laches or stale demand is whereby the owner after the lapse of time is deprived of his interests because he has not exercised proper diligence in protecting his rights in court.  Hartman v. Chuuk, 9 FSM Intrm. 28, 33 (Chk. S. Ct. App. 1999).

Constitutional Law ) Indefinite Land Use Agreements
     All indefinite land use agreements are void after July 12, 1984, as being in violation of the FSM Constitution.  Hartman v. Chuuk, 9 FSM Intrm. 28, 33 (Chk. S. Ct. App. 1999).

*    *    *    *

COURT'S OPINION
MACHIME O'SONIS, Associate Justice:
     This is an appeal from a judgment of the Chuuk State Supreme Court Trial Division in an action arising out of a dispute over ownership of land.

     The original complaint was filed in the trial division on November 6, 1992 and alleged the Plaintiff's claim to land known as Lot No. 60393, Sapore Village, Fefan Island, Chuuk State.  Numerous motions for intervention by other claimants and other procedural matters were filed during the course of the proceedings.  Because of the conclusions of the Court reached herein, it is not necessary to consider these matters as they now become moot or unimportant to the disposition of this case.

     On appeal, the Appellant argues that the evidence is insufficient to support the factual findings of the trial judge.  This Court has consistently held that a review of the trial court's factual findings is done under the "clearly erroneous" standard.  See Emilios v. Setile, 6 FSM Intrm. 558, 560, 1 CSR 17, 18-19 (Chk. S. Ct. App. 1994), for a discussion of these decisions.  Also, this Court stated in the Emilios case, that the Appellant "has the burden to clearly demonstrate error in the trial court's findings."  This Court further pointed out that the Appellant has a very strong burden to overcome for the reason:  "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. at 560, 1 CSR at 19.

     We are not prepared to disturb the trial court's findings of fact in this case.

     The "preponderance of the evidence" as that term is defined in 30 Am. Jur. 2d Evidence 1163-1167 (1967), established to the satisfaction of the Trial Court that in 1947, the Government

[9 FSM Intrm. 31]

of Truk or Fefan or both such Governments entered upon and took possession of the area in question.  The record shows that either the State of Truk or Chuuk, or the Fefan Municipality has exercised open and notorious dominion and control over the land continuously since the first entry in 1947.  The record further shows that these government entities began making substantial improvements and continued to make improvements to the land from 1947 to 1992, and the Trial Court took Judicial Knowledge that a period of 45 years lapsed between these two dates.

     Again, we are not convinced that these findings of the Trial Court are "clearly erroneous" so as to require a reversal of its decision.

     Notwithstanding the factual findings, Appellant contends that the judgment of the Trial Court is due to be reversed for errors of law in the application of the "statute of limitations," "adverse possession," "dedication" and the doctrine of "laches."

     At this point, reference to the Trial Court's written order will be extensive:

     "In Chuuk State the statute of limitations applicable to this case is Title 6 TTC 302(1)(b) which states as follows:  " 302 Limitation of twenty years.  (1) The following actions shall be commenced only within twenty years after the cause of action accrues: . . . (b)  Actions for the recovery of land or any interest therein."     

     The Court has reviewed the case of Albert Hartman v. Fefan Municipality decided by the High Court of the Trust Territory on September 9, 1965.  That case involved a portion of the land now in dispute and regardless of any rights the Appellant may have gained in that case, Fefan Municipality continued its open, notorious, exclusive and hostile occupation of the land for a period of 27 years before the filing of this suit.  Again, it is a mathematical certainty that the complaint in this case was filed more than 20 years after the judgment entered in the Hartman case by the High Court in 1965.

     It is clear that this case is an action for the recovery of land or an interest therein which shall be commenced only within twenty years after the cause of action accrues and that such was the rule of law during the period from 1947 to 1989.  The Appellant's claim is barred by the same statute after 1985, twenty (20) years after the 1965 judgment referred to above.

     In addition to the foregoing, the Court concludes that Fefan Municipality is the true and lawful owner of title to all the land in dispute on the theory of adverse possession.

     We are mindful of this Court's decision in the case of Cheni v. Ngusun, 6 FSM Intrm. 544, 1 CSR 35 (Chk. S. Ct. App. 1994), relied on by Appellant. However, a sharp distinction can be drawn between that case and the case at bar.  Moreover, the Cheni case does not stand for the proposition that adverse possession is not available in Chuuk, only that it was not applicable to the facts in that case.

     The doctrine of adverse possession is an acknowledged doctrine under the common law which is fully applicable in Chuuk State Court.  A further distinction is drawn in the fact that the Appellant lost all rights to the land in question long before October l, 1989, the date referred to in the Cheni case as being the date from which the 20 year limitation begins to run pursuant to the existing Chuuk State Constitution.

     Additionally, the Cheni case makes no reference to the doctrine of laches or the extended doctrine of estoppel by laches or the transfer of title by dedication as discussed hereafter.

[9 FSM Intrm. 32]

     There is ample testimony to support the Trial Court's finding that Fefan Municipality openly occupied these lands to the exclusion of all others for a period of over 20 years prior to the filing of the complaint in this case.  The law of adverse possession to be applied here is found in the case of Oneitam v. Suain, 4 TTR 62 (Truk 1968) which was an "Action to determine ownership of land on Fefan Island, Truk Lagoon."  In the Oneitam case, the court said:  "The presumptive rights in land arising from long possession and use, together with delay on the part of the lawful owner in asserting his title, have often been found by this court to be sufficient grounds for taking title from a legal owner and granting it to the user."  Id. at 69.

     The doctrine of adverse possession provides "that long-continued peaceful possession under claim of right is a strong indication of ownership."  See Naoro v. Inekis, 2 TTR 232, 237 (Truk 1961); Aneten v. Olaf, 1 TTR 606, 607 (App. 1957).  And in Kanser v. Enita, 2 TTR 481 (Truk 1963) the court said that in the absence of an applicable statute of limitations, the common law principles of adverse possession will govern.  The court stated this conclusion as follows:

Roughly and bluntly stated, the effect of the above is that if a person of full age and sound mind stands by, or he and his predecessors in interest together have stood by, for twenty (20) years or more and let someone else openly and actively use land under claim of ownership for that period or more, the person who so stood by will ordinarily be held to have lost whatever rights he may previously have had in the land and the courts will not, and should not, assist him in regaining such rights.

Id. at 489.

     Also in Nakas v. Upuili, 2 TTR 509, 511 (Truk 1963) it is said:

To avoid trouble of this sort in the future, it is strongly urged that if a person who believes he owns certain land stands by for many years and raises no objection to someone else using it . . . the person claiming ownership should at least obtain some clear and definite acknowledgment of his ownership by word or acts of the user at intervals of less than twenty (20) years.  If he cannot obtain such an acknowledgment, he should bring the matter to the court for determination before the use has continued for more than twenty (20) years either from the time it began or from the time of the last such acknowledgment.

     The Trial Court also held that title to the lands in question passed to Fefan Municipality under the doctrine of common law dedication.  A dedication is generally defined as the appropriation of land by the owner for the use of the public.  Black's Law Dictionary 371 (5th ed. 1979).  It is not disputed that the land at issue has been subject to the adverse exclusive use by the public under a claim of right with the actual knowledge of the Appellant.  It is said that the owner would be deemed to have dedicated the property based on his actions, which included throwing the property open to the public and his acquiescence in the maintenance of the property by the municipality.  See 23 Am. Jur. 2d Dedication 23-24 & n.90 (1983).  Also, it is said, as in this case, "Where the affirmative attitude or intention of the owner in allowing the public to use his property is clearly apparent, the period of public user is immaterial."  Also, it is said that the acts constituting a public user and:  "The length of time of user by the public necessary to raise a presumption of the owner's intent to dedicate land to public use depends on the circumstances in each case; no absolute rule can be laid down."  23 Am. Jur. 2d Dedication 36, 35, 54 and 55 (1983).

     The Trial Court concluded that under the circumstances in the case, intent of the owners to dedicate their interest in the land, if any they had, to public use, was established.  Nothing presented

[9 FSM Intrm. 33]

by Appellant convinces us to reach a different conclusion.

     The fourth approach used by the Trial Court in finding that Fefan Municipality is the true and legal owner of the land in question is the doctrine of laches or stale demand whereby the owner after the lapse of time was deprived of his interests because he had not exercised proper diligence in protecting his rights in court.  For the application of the doctrine of laches, see Rochunap v. Yosochune, 2 TTR 16 (Truk 1959).

     The record indicates that as far back as 1947, the Appellant or his predecessors in interest exhibited their intent that their interest in the land in question to be given to the government by what is referred to as an indefinite land use agreement.

     In this regard, Article XIII, 5, Constitution of the Federated States Of Micronesia, provided:  "An agreement for the use of land for an indefinite term is prohibited.  An existing agreement becomes void 5 years after the effective date of this Constitution.  Within that time, a new agreement shall be concluded between the parties . . . ."

     Article XVI, 1, FSM Constitution provided that the effective date of the Constitution is 1 year after ratification.  In the case of Aisek v. FSM Foreign Investment Board, 2 FSM Intrm. 95 (Pon. 1985) the FSM Supreme Court held that the FSM Constitution was ratified on July 12, 1978.  Thus, the FSM Constitution became effective on July 12, 1979 and all indefinite land use agreements after July 12, 1984, are void as being in violation of the Constitution of the Federated States of Micronesia.

     The Appellant either knew, or should have known of his rights to lay claim to the land in dispute on July 12, 1984, but instead failed in his vigilance and slumbered on his rights.  The Appellant neglected to assert any right or claim and this failure taken with the lapse of substantial time and the continued use and improvement of the land by the Municipality of Fefan, left the Trial Court no alternative, but to conclude that Appellant's claim was due to be denied under the doctrine of estoppel by laches.

     Therefore, based on the record in the case and the foregoing application of the law to the facts of the case, the Trial Court entered its judgment that Fefan Municipality is the true and lawful owner of all land in dispute as raised by the record of this case and that Appellant, intervenors or any other party has any interest in said lands whatsoever.  This Court finds no grounds to conclude otherwise.

     The Judgment of the Trial Court is affirmed.
                                                                                                                                                                                                                                                                                                           
p_nFOv@ \D8ĭͬF$ ?;$?vp?+ BAK?!$D @%!#e\E!Ь#\B״?.!%A>>.\?'\C Ov@fn>> \Ac>ZrE2!·F$2A#>.B8פA%D .>'.fD!B%nA%2$B.2%$C\@@+3n@̶8`z?3B'!B'ܧ?.A3@ \C'=!C'ѧZrCئ??ͧ>E#EC#:]cnG@C2.\B  \@.ĮK@8?>@!B8$?. R=@ $2B%@@# \A$@˥?C$2AۨOK>f?3\?̫$.SbnF.#.\?=.SC3%Sb\@#>=Ҧ?2?ӦZB# :.OKE%S>8@]cnB.SC갦?]@>ЮO=\D.B$ #$\B.% B2AԀC!>#@0$.ZB8# BD$.ZBĿ$?Щ8@$?A\>8AʭZE$?.ABӦ^rC]A$3.fwZD˩^rG];$fwZnA.8OvC>!]D]cntZrA.8@;A$!^rE..8_Afw?쵶fF+㰯8_A_>^rD#$8?$.Q\n;]A< ?`ZD.D.@#8fC.ZCȕ\C?.:8nwZr>];r>*cn?]cn\