ARTICLE 12
Land

Case annotations:  Where a party has merely alleged inadequate notice at the time of the title determination by the Land Commission but has offered no evidence the a court must conclude the certificate of title is valid, especially when the party only entered the property nine years after the determination process and offers no evidence of interest in property dating back to the time of the determination process.  Ponape Enterprises Co. v. Soumei, 6 FSM Intrm. 341, 344 (Pon. 1994).

Where the T.T. High Court found that a particular parcel of land was not public land in a suit brought by the Nanmwarki and Nahnken of Nett on behalf of all their constituents and subjects the doctrine of res judicata bars a party from presenting that issue as a counterclaim or defense.  Ponape Enterprises Co. v. Soumei, 6 FSM Intrm. 341, 344 (Pon. 1994).

An action for damages for negligent surveying is not an action for the recovery of an interest in land, for which the twenty year statute of limitation would apply, therefore it may be barred by the lesser statue of limitations.  Damarlane v. United States, 6 FSM Intrm. 357, 361 (Pon. 1994).

German land reforms instituting the rule of primogeniture and prohibiting sale of land without approval of the Governor and the Nanmwarki and requiring a certain number of days of free labor to the Nanmwarki applied only to the public lands that were taken from the Nanmwarkis and given to the ethnic Pohnpeians actually farming them and not to lands already individually owned.  Etscheit v. Adams, 6 FSM Intrm. 365, 374-75 (Pon. 1994).

Japanese land law on Pohnpei disregarded the rule of primogeniture instituted by the Germans and often allowed the division of land and ownership by women.  Etscheit v. Adams, 6 FSM Intrm. 365, 376-77 (Pon. 1994).

Under the Trust Territory government the rule of primogeniture was only applied to land held under the standard German form deeds which stated the rule, and even then the courts frequently made exceptions to the restrictions.  Etscheit v. Adams, 6 FSM Intrm. 365, 377-80 (Pon. 1994).

Because the customary Pohnpeian title system was primarily matrilineal and the court's decisions should be consistent with local custom, the primogeniture provisions of the standard form German deeds should be given narrow application and not applied more broadly than it was by the German, Japanese, or Trust Territory governments.  Etscheit v. Adams, 6 FSM Intrm. 365, 381 (Pon. 1994).

Where the rule of primogeniture was not in effect when the land was individually acquired in 1903, was never fully in effect at any time, was largely ignored by the Japanese when the land was passed by will contrary to primogeniture, and has been repudiated by the state government, and where the person who would have inherited if primogeniture had applied never made that claim, and where primogeniture appears contrary to custom, the court must conclude that primogeniture never applied to the land in question.  Etscheit v. Adams, 6 FSM Intrm. 365, 381-82 (Pon. 1994).

An assignor must be able to inherit the assigned expectancy from the source in order for his assignment of expectancy to be effective.  Etscheit v. Adams, 6 FSM Intrm. 365, 382 (Pon. 1994).

Where a person is constitutionally prohibited from inheriting land that person's valid assignment of expectancy to a person who may acquire land will operate only to assign the non-land holdings in the expectancy.  Etscheit v. Adams, 6 FSM Intrm. 365, 382-83 (Pon. 1994).

     Section 1.  Limitation of Leaseholds.
     No lease of land, except from the Government or as provided in Section 4 of this Article, may exceed twenty-five years.  The right for option to renew and other protections shall be provided by statute.

Case annotations:      Public Lands

Where there is reason to believe that provisions of a public land lease may have been violated by the lessee, and where another person has notified the Public Lands Authority of his claim of a right to have the land leased to him, the Public Lands Authority may not consider itself bound by the lease's renewal provision but is required to consider whether it has a right to cancel the lease and, if so, whether the right should be exercised.  These are decisions to be made after a rational decision-making process in compliance with procedural due process requirements of article IV, section 3 of the FSM Constitution.  Etpison v. Perman, 1 FSM Intrm. 405, 421 (Pon. 1984).

Where a Public Land Authority has erred procedurally, but there is no suggestion of bad faith or substantive violations by the Authority, the FSM Supreme Court may appropriately employ the doctrine of primary jurisdiction to remand the public land issue to the Authority for its decision.  Etpison v. Perman, 1 FSM Intrm. 405, 429 (Pon. 1984).

The Pohnpei Public Lands laws do not provide for the disposal or lease of public lands in Kolonia Town by the Pohnpei Public Lands Authority.  Micronesian Legal Services Corp. v. Ludwig, 3 FSM Intrm. 241, 247 (Pon. S. Ct. Tr. 1987).

Abstention by national courts is desirable in a case affecting state efforts to establish a coherent policy concerning how private persons may obtain rights to use land currently held by the state government.  Ponape Transfer & Storage, Inc. v. Federated Shipping Co., 4 FSM Intrm. 37, 44 (Pon. 1989).

     Section 2.  Acquisition of Permanent Interest in Real Property.
     The acquisition of permanent interest in real property shall be restricted to Ponapean citizens who are also pwilidak of Pohnpei, as specified under Article 3 of this Constitution.

     Section 3.  Indefinite Land-Use Agreements.
     An agreement that grants the user of land the unilateral authority to continue use for an indefinite term is prohibited.

     Section 4.  Land Legislation.
     The Legislature may provide, by appropriate legislation procedures to permit leases and other uses of land in excess of the limits prescribed in Section 1 of this Article.

     Section 5.  Land Sales.
     No land shall be sold, except as authorized by statute.

     Section 6.  Acquisition of Land for Public Purposes.
     The power to take interests in land may be exercised by the Government of Pohnpei for public purposes.  No taking shall occur until after consultation with the local government concerned, good faith negotiation with the owners of such interests, which shall include the offer to exchange the land for land of comparable value, or a payment of just compensation.

Case annotations:  Under Pohnpei state law, owners of the land adjacent to the lagoon do not have sufficient property rights in the reef and the lagoon as to entitle them to monetary compensation or other relief for damage to the reef caused by unauthorized dredging activity in the lagoon near their land.  Damarlane v. United States, 7 FSM Intrm. 56, 59-60 (Pon. S. Ct. App. 1995).

Under Pohnpei state law persons simply possessing a permit in the lagoon do not have sufficient property rights in the reef and the lagoon as to entitle them to monetary compensation or other relief for damage to the reef caused by unauthorized dredging activity in the lagoon near their land unless there has been some affirmative action such as prior written approval from the appropriate authority and effecting some development in the area in question.  Damarlane v. United States, 7 FSM Intrm. 56, 60 (Pon. S. Ct. App. 1995).

Under Pohnpei state law, if a reef is damaged by persons carrying out dredging activities authorized by state officials for a public purpose, adjacent or nearby coastal landowners are not entitled to a payment of just compensation for the depreciation of the value of the reef and fishing grounds.  Damarlane v. United States, 7 FSM Intrm. 56, 60 (Pon. S. Ct. App. 1995).

Under Pohnpei law, damage to reefs or soil under the high water mark resulting from dredging activities, the object of which is for public purposes, does not justify compensation to abutting land owners.  If the Pohnpei Public Land Board of Trustees had granted certain rights in writing to an individual or group of individuals, and acting on that grant the grantees erected or constructed certain improvements, including fish maii (fish trap) in shallow waters, and if destroyed or value reduced as a result of state dredging activities, the owners thereof may be entitled to just compensation in accordance with the Pohnpei Constitution.  Damarlane v. United States, 7 FSM Intrm. 56, 69 (Pon. S. Ct. App. 1995).

     Section 7.  Land Offices and Adjudicatory Bodies.
     To the extent that is practical, all administrative functions relating to land shall be under a single office.

Case annotations:  Basic notions of fair play, as well as the Constitution, require that Public Lands Authority decisions be made openly and after giving appropriate opportunity for participation by the public an interested parties.  Etpison v. Perman, 1 FSM Intrm. 405, 420-21 (Pon. 1984).
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