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     On April 29, 2002, this matter came before the court on a hearing on plaintiffs’ motion for summary judgment, filed on July 3, 2001. Plaintiffs were represented by Fredrick Ramp. Defendants were represented by Joseph Phillip. For the reasons stated herein, the court will grant plaintiffs’ motion. Additionally, the court will order the parties to meet and confer and file a proposed permanent injunction giving defendants a reasonable time in which to remove themselves and their belongings off of the property.

     On January 26, 2000, plaintiffs filed a complaint against defendants alleging a cause of action for trespass. Plaintiffs allege that defendants are occupying land owned by plaintiffs without the consent of plaintiffs. The complaint states that defendants leased from plaintiffs the land now occupied by defendants in 1985 for a period of five years; at the end of the five year term, defendants did not renew their lease but continued to occupy the premises. The complaint further states that defendants presently occupy an area larger than that which was originally leased to them and are using the premises for purposes beyond the scope of the original lease. Plaintiffs allege they have made repeated demands on defendants to remove themselves and their property from plaintiffs’ land, but defendants have refused to do so.

      Plaintiffs contend the site occupied by defendants is situated within the boundaries of Tract No. 046-A-11. Final judicial determinations of ownership and a certificate of title have been issued for this tract to plaintiffs. A copy of the certificate of title is attached as Exhibit D to the affidavit of Yvette Adams in support of plaintiffs’ motion for summary judgment.

      Plaintiffs assert that defendants’ association with the property relates back to defendant Ioanes Gilmete’s grandmother whose name was Suko. Suko worked for plaintiffs’ parents as a maid for many years. Plaintiffs’ father built a house to use as living quarters for the employees and allowed Suko and her family to use it. Suko and her family left the house in 1973. Defendants’ present use of the property is in no way related to this prior use.

     Plaintiffs argue that the five year lease executed in 1985 expired in 1990 when defendants failed to exercise the option granted them. Defendants are simply now holding over on the original lease. Additionally, defendants are conducting a car repair business on the property contrary to the terms of the lease.

      Plaintiffs seek a permanent injunction preventing defendants from further trespassing on their land.

     In their motion for summary judgment, plaintiffs assert that their ownership of the property is not in dispute. They hold a valid certificate of title for the property (Tract No. 046-A-011), and therefore all of defendants’ affirmative defenses are overcome. Plaintiffs argue that defendants are hold over tenants who are in possession of plaintiffs’ property without plaintiffs’ consent, and that defendants have basically no rights with respect to the property. Plaintiffs thus contend that summary judgment in their favor is appropriate.

      On February 18, 2002, defendants filed their opposition to plaintiffs’ motion for summary judgment. In their opposition, defendants argue the following facts are disputed, and thus plaintiffs’ motion for summary judgment must be denied:

at the time of death of Domenikus Etscheit prohibits females from acquiring legal title to land in Pohnpei.

      Defendants argue that in 1985 plaintiffs had no right to immediate possession of the property because the certificate of title was issued to the heirs of Florentine Etscheit, and not the plaintiffs in this litigation. Defendants argue that plaintiffs’ title and rights, if not voidable, were perfected not before July 1996.

      Defendants argue they have lived, worked, developed and raised their children on this parcel of land in issue. Prior to that, defendants’ parents and ancestors have lived on the land since 1946. Defendant Ioanis Gilmete was born and raised on the land and has lived continuously thereon save for a brief absence in the late 1970’s. Mr. Gilmete returned to Pohnpei and married in 1976 or 1977, and has lived on the land ever since. All of his children were born and raised on the land.

      Defendants further argue the FSM Supreme Court does not have jurisdiction to determine title to land, and therefore only needs to determine whether the defendants are liable for trespass.

       For purposes of a motion for summary judgment, the court views all facts and inferences in the light most favorable to the party opposing the motion for summary judgment. FSM v. Ponape Builders Constr. Inc., 2 FSM Intrm. 48, 52 (Pon. 1985); Dai Wang Sheng v. Japan Far Seas Seine Fishing Ass’n, 10 FSM Intrm. 112, 114 (Kos. 2001). When the only issues to be decided in a case are issues of law, summary judgment is appropriate. Etscheit v. Adams, 6 FSM Intrm. 365, 373 (Pon. 1994).

        Once a party moving for summary judgment has presented a prima facie case of entitlement to summary judgment, the burden shifts to the non-moving party to produce evidence showing a genuine issue of material fact. The non-moving party may not rely on unsubstantiated denials of liability to carry its burden, but must present some competent evidence that would be admissible at trial that there is a genuine issue of material fact. Urban v. Salvador, 7 FSM Intrm. 29, 30 (Pon. 1995); see also FSM Social. Sec. Admin. v. Weilbacher, 7 FSM Intrm. 442, 444 (Pon. 1996); Kyowa Shipping Co. v. Wade, 7 FSM Intrm. 93, 95 (Pon. 1995).

       The presence of factual issues will not bar summary judgment if they are not material to the controlling legal issue of the case, and thus have no dispositive significance. FSM Dev. Bank v. Mudong, 10 FSM Intrm. 67, 77 (Pon. 2001).

        In the present case, the court must view the facts and inferences in the light most favorable to the non-moving party, defendants Ioanes and Bernateta Gilmete. Defendants have pointed out various disputed issues of fact, but these will only bar summary judgment in favor of plaintiffs if they are material to the controlling legal issue of the case, and have legal significance.

      Plaintiffs’ sole cause of action in this case is for trespass. Therefore, the controlling legal issue in this case is who among the parties has the superior right to possession of the property.

       One is subject to liability to another for trespass, irrespective of whether he causes harm to any legally protected interest of the other if he 1) intentionally and without consent enters land in the possession of the other, or causes a thing or person to do so, or 2) intentionally and without consent remains on the land of the other, or 3) intentionally fails to remove from the land a thing which he is

under a duty to remove. Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 533-34 (Pon. 1998).

      In this case, plaintiffs have established that they are the owners and lessees of the property defendants are presently occupying (the "property"). The property is located within tract No. 046-A-011, for which, in 1996, plaintiffs Yvette Etscheit Adams and Renee Etscheit Varner were issued a certificate of title from the Pohnpei Court of Land Tenure. Further, the plaintiffs have established that their family has held title to the land defendants are presently occupying by virtue of their possession of a certificate of title for parcel No. 046-A-04, which was issued to the legal heirs of Florentine Etscheit on April 29, 1983.

      This court believes that plaintiffs have made a prima facie case for a cause of action for trespass. Plaintiffs have established that they own the land pursuant to their possession of certificates of title for Tract No. 046-A-04 and Tract No. 046-A-011. Further, they have shown that defendants are on the property without plaintiffs’ consent. In order to determine whether summary judgment should be granted in favor of plaintiffs and against defendants, the court needs to consider the defendants’ arguments in opposition to plaintiffs’ motion for summary judgment. If defendants’ arguments fail to establish a genuine issue of material fact exists, then it is appropriate for the court to enter summary judgment in favor of plaintiffs.

      The court first addresses defendants’ contention that the court lacks jurisdiction because the FSM Supreme Court does not have jurisdiction to determine title to land. Defendants argue this court does not have jurisdiction to determine title to land and therefore only needs to determine whether the defendants are liable for trespass.1

      Defendants are incorrect. This issue was addressed in Ponape Chamber of Commerce v. Nett, 1 FSM Intrm. 389 (Pon. 1984). In that case the court stated "[w]here jurisdiction exists by virtue of diversity of the parties, the FSM Supreme Court may resolve the dispute despite the fact that matters squarely within the legislative powers of states (e.g., probate, inheritance and land issues) may be involved. Id. at 392.

      Further, in Etscheit v. Adams, 5 FSM Intrm. 243 (Pon. 1991), the court held that "in property cases, if there are diverse parties having bona fide interests in the case or dispute, the [FSM] Constitution places jurisdiction in this Court and this is so even if interests in land are at issue in the litigation." Id. at 246. In Etscheit v. Adams, the defendants contended that the case belonged in state court, not national court, since the case primarily involved issues of land ownership. The court rejected defendants’ contention, stating that the "parties to a dispute within the scope of article XI, section 6(b) have a constitutional right to invoke the jurisdiction of this court." Id.

      This court finds that it properly has jurisdiction over this case. Since this matter falls within the scope of article XI, section 6(b), plaintiffs have a constitutional right to invoke the jurisdiction of this court.

      The court now examines defendants’ affirmative defenses to determine whether there truly are any genuine disputed issues of material fact which would prevent the granting of summary judgment in favor of plaintiffs.

       Defendants offer no evidentiary support for this claim. Plaintiffs claim that they indeed own the land presently occupied by defendants. In support of this claim, plaintiffs offer the affidavit of plaintiff Yvette Etscheit Adams, who states that in July 1996, in accordance with the settlement of FSM Civil Action No. 1992-150, a certificate of title to the area now occupied by the Gilmete family was issued to the Etscheit family; and that parcel number is 046-A-011. See Aff. of Yvette Etscheit Adams para. 4 (attached to plaintiffs’ motion for summary judgment). Additionally, plaintiffs have shown that numerous court decisions2 have involved persons claiming that the Etscheits were not the owners of the land which includes Tract No. 046-A-04, and that all of these cases have been decided in favor of the Etscheit family. Indeed, a certificate of title for Tract No. 046-A-04 was issued to the heirs of Florentine Etscheit on April 23, 1983. And a certificate of title for Tract No. 046-A-011 was registered to Yvette Etscheit Adams and Renee Etscheit Varner on June 4, 1997.

      Because certificates of title to real property are prima facie evidence of ownership as therein stated against the world, a court is required to attach a presumption of correctness to them when considering challenges to their validity or authenticity. Etscheit v. Nahnken of Nett, 7 FSM Intrm. 390, 394 (Pon. 1996) (citing 67 TTC 117(1)).3 The party challenging the validity of the certificates therefore bears the burden of proving that they are not valid or authentic. Id.

       In this case, to dispute plaintiffs’ ownership of the property, defendants have the burden of showing that the certificates of title offered by plaintiffs are not valid or authentic, or that the land occupied by defendants is not within the area covered by the relevant certificate of title. Defendants’ unsupported contention that the land they are occupying is not part of the land "Umpwomp" involved in the April 1903 auction does not dispute the validity of plaintiffs’ certificates of title showing plaintiffs to be the owners of Tract No. 046-A-04 and Tract No. 046-A-011, which includes the property defendants presently occupy. Whether or not the land defendants are presently occupying is not part of the land "Umpwomp" is not a genuine issue of material fact as the plaintiffs have established that they are the owners of the land defendants presently occupy. Therefore, the court finds that whether or not the land defendants occupy is part of the land "Umpwomp" is not a genuine issue of material fact in this litigation, and does prevent summary judgment from being entered in plaintiffs’ favor.

     surveyor created the map showing Tract No. 046-A-011, it included tract 04 occupied by defendants.

       Plaintiffs agree with defendants’ contention that the land occupied by defendants was not part of Tract No. 046-A-011 until a private surveyor drew up a new map which included the land and area occupied by defendants. However, plaintiffs argue the fact that Tim McVey, a licensed surveyor in the State of Pohnpei, executed the map which describes Tract No. 046-A-011 on September 19, 1996 is not material to the outcome of this litigation. The map prepared by Mr. McVey was reviewed, approved and signed by the Supervisory Cartography Technician and Chief of Lands on October 9, 1996 and by the Director of the Department of Resource Management and Development on October 18, 1996, all of whom are appropriate officials of the Pohnpei State Government to approve such surveys.

      The court believes that whether or not the land occupied by defendants was not part of Tract No. 046-A-011 until a private surveyor drew up a new map is not a genuine issue of material fact in this litigation. Plaintiffs have established that the land described as Tract No. 046-A-011 includes that land which was described as Tract No. 046-A-04 (and which was owned by the Etscheit family as evidenced by the certificate of title for Tract No. 046-A-04). Defendants have not disputed the accuracy of the map describing Tract No. 046-A-011 nor offered any evidence that it was not prepared accurately or correctly.

       In this case, the Etscheit family owned title to the land (which includes the area which defendants occupy) before it was "remapped," by evidence of their possession of a certificate of title for the property identified in Tract No. 046-A-04. On April 29, 1983, a certificate of title was issued for Tract No. 046-A-04 showing that the legal heirs of Florentine Etscheit were the owners of an estate conditional fee simple for that tract. The plaintiffs (Yvette Etscheit Adams and Renee Etscheit Varner) then owned the land after it was "remapped" by evidence of their possession of a certificate of title for the property identified in Tract No. 046-A-011, registered on June 4, 1997. This certificate establishes that Yvette Etscheit Adams and Renee Etscheit Varner are the owners of an estate in fee simple of Parcel No. 046-A-011. The fact that a later survey was performed and another certificate of title issued for the same land does not somehow dilute the plaintiffs’ ownership of the property, or make defendants claim on the land any more substantial.

      Plaintiffs respond to this contention by attaching a certificate of title to Tract No. 046-A-04 which was issued to the legal heirs of Florentine Etscheit in April of 1983. As a certificate of title is prima facie evidence of ownership, the court believes that the Etscheit family owned the land in 1985 when the lease was entered into between plaintiffs and defendants. Defendants have argued, but have not shown, that plaintiffs lacked the authority to enter into the Land Use Agreement dated November 4, 1985.

       Even if the lease were deemed null and void, or if defendants could show that plaintiffs lacked the authority to enter into the Land Use Agreement, defendants have failed to show that plaintiffs do not own the property. Nor have defendants offered any evidence supporting their claim that they have a right to possession of the property. So even if defendants could show that plaintiffs were not the owners of the property in 1985 (even though clearly the Etscheit family was the owner of the property at that time), it would not prevent plaintiffs from prevailing in their trespass action against defendants.

        The court finds that whether defendant Ioanis Gilmete’s use and occupation is or is not independent of his grandmother’s use of the property is not relevant to this litigation. The controlling legal issue in this case is who among the parties has the right to possession of the property. Defendants’ contention does not show that defendants have a right to possession of the property. Simply because a person has been on property for a long time does not, without more, give that person ownership of the property. Long term ground leases, of duration up to 100 years, are not uncommon. In a long term ground lease situation, the lessee does not acquire title or ownership of the property simply because he has been on the property for a long time.

         Defendants are arguing that they have gained ownership of the property by the doctrine of adverse possession. In the case of Etscheit v. Nahnken of Nett, 7 FSM Intrm. 390, 395 (Pon. 1996), the court discussed how ownership of property is secured by adverse possession:

       Defendants’ contention that Ioanes Gilmete’s use and occupation of the area is not independent of his grandmother’s use since he was born and raised on the property and has lived there continuously since 1954 except for a brief absence abroad does not demonstrate that Mr. Gilmete came onto the land with the intent of taking complete and exclusive control of the property. Nor does it establish that Mr. Gilmete’s occupancy to have been under a claim of right. The court finds that defendants have failed to show the elements of adverse possession have been met and therefore have failed to show that they own or have a right to possess the property they presently occupy. The court finds that defendants’ claim does not create a genuine issue as to a material fact since defendants fail to establish that they have acquired ownership or a right to possession of the property they presently occupy.

      Plaintiffs argue that whether the Japanese built the house or Carlos Etscheit built the house is not a material fact to the outcome of the litigation.

        The court agrees with plaintiffs’ argument. It is irrelevant to the outcome of this litigation who built the house. Even if the house was built by the Japanese, plaintiffs are still the owners of the property as evidenced by the certificates of title for Tract No. 046-A-04 and Tract No. 046-A-011. Thus, the court finds that this fact, though disputed, is not a genuine issue as to material fact which would prevent summary judgment from being entered in favor of plaintiffs.

        The court finds that whether the certificate of title issued in 1983 was voidable is not a genuine issue as to a material fact in this litigation. Plaintiffs presently hold a certificate of title for the property defendants presently occupy (Tract No. 046-A-011). The party challenging the validity of the certificates [of title] bears the burden of proving that they are not valid or authentic. Etscheit, 7 FSM Intrm. at 394. Defendants have failed to show that the relevant certificate of title (for Tract No. 046-A-011) is invalid. Therefore, defendants’ argument does not create a genuine issue of material fact which would prevent the granting of summary judgment in favor of plaintiffs.

      The court believes that whether or not Nanmwarki v. Etscheit Family recognized the plaintiffs or the Etscheit family as the owners of the land "Lui" is not material to this litigation. In this litigation, plaintiffs have established that they are the owners of the property presently occupied by defendants by virtue of the certificates of title for Tract No. 046-A-04 and Tract No. 046-A-011. Defendants have failed to show a genuine issue of material fact exists as to plaintiffs’ ownership of the property. Further, defendants have failed to show that they have acquired ownership or a right to possession of the property. Therefore, defendants have not raised a genuine issue of material fact which would prevent the court from granting summary judgment in favor of plaintiffs.

      Plaintiffs argue that this issue has been litigated and decided in Etscheit v. Adams, 6 FSM Intrm. 365 (Pon. 1994). That decision concluded that under the Japanese administration land was allowed to pass to female ownership thus validating the transfer by will of the land from Dominique Etscheit to his wife Florentine Etscheit. Id. at 376, 377.

       In the Etscheit v. Adams case, the court stated "[e]ven if one assumes that the Trust Territory government saw the German primogeniture rule as applying to land generally, the Trust Territory government’s action in returning the land to Florentine Etscheit (rather than to the oldest son, Leo) and issuing the deeds in her name, took the land outside any restrictions on female ownership." Id. at 380. In light of the Etscheit v. Adams decision, the court finds that defendants’ contention that the certificate of title issued to Florentine Etscheit in 1983 is voidable is without merit, and does not show a genuine issue as to a material fact which would prevent summary judgment from being entered in favor of plaintiffs.

Conclusion

       The court finds that plaintiffs own the property known as Tract No. 046-A-04 and Tract No. 046-A-011. Defendants have failed to show that there are any genuine issues of material fact which would prevent the court from entering summary judgment in favor of the plaintiffs. The court finds that defendants are unlawfully trespassing on plaintiffs’ property. Therefore, the court hereby grants summary judgment in favor of plaintiffs. The court will issue a judgment in favor of plaintiffs and against defendants for the relief requested in plaintiffs’ complaint.

      Further, the court hereby orders the parties to meet and confer within fifteen (15) days of the

date of entry of this order to discuss the provisions of a permanent injunction to be issued by the court consistent with the terms of this order and the relief requested in plaintiffs’ complaint. The court further orders plaintiffs’ counsel to prepare and submit a proposed permanent injunction within thirty (30) days of the date of entry of this order. The proposed permanent injunction should include the discussions. and any agreements made between the parties.

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