FSM SUPREME COURT TRIAL DIVISION
Cite as Carlos Etscheit Soap Co. v. Gimete
11 FSM Intrm. 94 ( Pon. 2002)
 
[11 FSM Intrm. 94]
 
CARLOS ETSCHEIT SOAP COMPANY INC.,
YVETTE ETSCHEIT ADAMS, and RENEE
ETSCHEIT VARNER,
Plaintiffs,
 
vs.
 
IOANES GILMETE and BERNATETA
GILMETE a/k/a TERESIDA GILMETE,
JOHN DOES 1-20 and JANE DOES 1-20,
Defendants.
 
CIVIL ACTION NO. 2000-002
 
ORDER GRANTING SUMMARY JUDGMENT
 
Andon L. Amaraich
Chief Justice
 
Hearing: April 29, 2002
 
Decided: August 16, 2002
 
APPEARANCES:
 
For the Plaintiffs:                           Fredrick L. Ramp, Esq.
                                                        Law Office of Fredrick L. Ramp
                                                        P.O. Box 1480
                                                        Kolonia, Pohnpei FM 96941
 
For the Defendants:                     Joseph Phillip, Esq.
                                                       P.O. Box 464
                                                       Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Civil Procedure ) Summary Judgment
     For purposes of a summary judgment motion, the court views all facts and inferences in the light most favorable to the party opposing the motion. Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 99 (Pon. 2002).
 
[11 FSM Intrm. 95]
 
Civil Procedure ) Summary Judgment
     When the only issues to be decided are issues of law, summary judgment is appropriate. Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 99 (Pon. 2002).
 
Civil Procedure ) Summary Judgment
     Once a movant 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. Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 99 (Pon. 2002).
 
Civil Procedure ) Summary Judgment
     The presence of factual issues will not bar summary judgment if they are not material to the caseís controlling legal issue, and thus have no dispositive significance. Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 99 (Pon. 2002).
 
Torts ) Trespass
     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 otherís possession, or causes a thing or person to do so, or 2) intentionally and without consent remains on the otherís land, or 3) intentionally fails to remove from the land a thing which he is under a duty to remove. Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 99-100 (Pon. 2002).
 
Civil Procedure ) Summary Judgment; Torts ) Trespass
     The plaintiffs have made a prima facie case for a trespass cause of action when they have established that they own the land pursuant to certificates of title and that the defendants are on the property without their consent, but in order to determine whether the plaintiffs should be granted summary judgment, the court needs to consider the defendantsí arguments in opposition to the plaintiffsí motion, and if the defendantsí arguments fail to establish a genuine issue of material fact exists, then it is appropriate for the court to enter summary judgment. Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 100 (Pon. 2002).
 
Jurisdiction ) Diversity
     When jurisdiction exists by virtue of the partiesí diversity, the FSM Supreme Court may resolve the dispute despite the fact that matters squarely within the statesí legislative powers (e.g., probate, inheritance and land issues) may be involved. Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 100 (Pon. 2002).
 
Jurisdiction ) Diversity
     In property cases, if there are diverse parties having bona fide interests in the case or dispute, the FSM Constitution places jurisdiction in the FSM Supreme Court, and this is so even if interests in land are at issue in the litigation. Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 100 (Pon. 2002).
 
Jurisdiction ) Diversity; Jurisdiction ) National Law
     A party to a dispute within the scope of article XI, section 6(b) has a constitutional right to invoke the jurisdiction of the FSM Supreme Court. Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 100 (Pon. 2002).
 
Property ) Certificate of Title
     Because certificates of title to real property are prima facie evidence of ownership as stated
 
[11 FSM Intrm. 96]
 
therein against the world, a court is required to attach a presumption of correctness to them when considering challenges to their validity or authenticity. A party challenging the certificatesí validity thus bears the burden of proving that they are not valid or authentic. Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 101 (Pon. 2002).
 
Civil Procedure ) Summary Judgment; Property ) Certificate of Title
     When to dispute the plaintiffsí ownership of the property, the defendants have the burden of showing that the plaintiffsí certificates of title are not valid or authentic, or that the relevant certificate of title does not cover the land the defendants occupy, whether the land the defendants occupy was part of the land in a 1903 auction is not a genuine issue of material fact because the defendantsí unsupported contention does not dispute the validity of the certificates showing the plaintiffs to be the propertyís owners. Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 101 (Pon. 2002).
 
Property ) Certificate of Title
      That a later survey was performed and another certificate of title issued for the same land does not somehow dilute the certificate holdersí ownership of the property, or make defendantsí claim to it any more substantial. Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 102 (Pon. 2002).
 
Torts ) Trespass
      When, even if a lease were deemed null and void or that the plaintiffs lacked the authority to enter into the agreement, the defendants have still failed to show that the plaintiffs do not own the property or to offer any evidence supporting their claim that they have a right to possession of the property. It would not prevent the plaintiffs from prevailing in their trespass action. Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 102 (Pon. 2002).
 
Civil Procedure ) Summary Judgment; Property ) Adverse Possession
      When the defendants have failed to show the elements of adverse possession have been met and have thus failed to show that they own or have a right to possess the property they presently occupy, the defendantsí claim of long use and occupation of the land does not create a genuine issue as to a material fact since the defendants failed to establish that they acquired ownership or a right to possession. Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 103 (Pon. 2002).
 
Civil Procedure ) Summary Judgment
      When it is irrelevant to the litigationís outcome who built the house on the land, this fact, though disputed, is not a genuine issue as to material fact which would prevent summary judgment from being entered. Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 103 (Pon. 2002).
 
Civil Procedure ) Summary Judgment; Property ) Certificate of Title
      Whether a certificate of title issued in 1983 was voidable is not a genuine issue as to a material fact which would prevent the granting of summary judgment because the plaintiffs presently hold a certificate of title for the property defendants presently occupy. The party challenging the certificateís validity bears the burden of proving that it is not valid or authentic, and when the defendants have failed to show that the relevant certificate of title is invalid, their argument does not create a genuine issue of material fact. Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 104 (Pon. 2002).
 
Civil Procedure ) Summary Judgment
      When the plaintiffs, by virtue of certificates of title, have established ownership of the property presently occupied by the defendants, and when the defendants have failed to show that they have acquired ownership or a right to possession of the property, the defendants have failed to show a genuine issue of material fact exists as to the propertyís ownership and they have not raised a genuine issue of material fact which would prevent the court from granting the plaintiffs summary judgment.

[11 FSM Intrm. 97]

Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 104 (Pon. 2002).
 
Civil Procedure ) Summary Judgment
      When the defendantsí contention that the certificate of title issued in 1983 is voidable is without merit, it does not show a genuine issue as to a material fact which would prevent summary judgment from being entered in plaintiffsí favor. Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 104 (Pon. 2002).

* * * *

COURTíS OPINION

ANDON L. AMARAICH, Chief Justice:

     On April 29, 2002, this matter came before the court on a hearing on plaintiffsí 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 plaintiffsí 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.

Background

1. Plaintiffís Complaint

     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 plaintiffsí 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 plaintiffsí motion for summary judgment.

      Plaintiffs assert that defendantsí association with the property relates back to defendant Ioanes Gilmeteís grandmother whose name was Suko. Suko worked for plaintiffsí parents as a maid for many years. Plaintiffsí 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. Defendantsí 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.

[11 FSM Intrm. 98]

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

2. Motion for Summary Judgment

     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 defendantsí affirmative defenses are overcome. Plaintiffs argue that defendants are hold over tenants who are in possession of plaintiffsí property without plaintiffsí consent, and that defendants have basically no rights with respect to the property. Plaintiffs thus contend that summary judgment in their favor is appropriate.

3. Defendantsí Opposition

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

1. The area occupied by defendants is not part of the land "Umpwomp" involved in the April 1903 auction. The land occupied by defendants is on the other side of the Lui river from Umpwomp.

2. The land occupied by defendants was not part of Tract No. 046-A-011 until a private surveyor, hired by plaintiffs during the July 1996 partition settlement of FSM Civil Action No. 1992-150 between the Etscheit family, drew up a new map to include the land and area occupied by defendants. The land occupied by defendants is Tract No. 046-A-04. When the private surveyor created the map showing Tract No. 046-A-011, it included tract 04 occupied by defendants.

3. The purported lease plaintiffs gave to defendant Ioanis Gilmete to execute on November 4, 1985 was null and void as it was a lease for a tract of land (046-A-04) to which plaintiffs were not the owner in 1985.

4. Defendant Ioanis Gilmeteís use and occupation of the area is not independent of his grandmotherís use as he was born and raised since 1954 on Tract No. 046-A-04 and has lived continuously on this land except for a brief absence abroad.

5. Plaintiffsí father did not build the housing where defendant now occupies, and where defendantís grandparents and parents have lived since 1946.

6. The purported 1983 certificate of title issued to the heirs of Florentine Etscheit was voidable because it included the land Lui (Tract No. 046-A-04) which is beyond the land Umpwomp and Ponsaker as recognized by the T.T. High Court in Civil No. 343.

7. The Trust Territory High Court case no. 142-78, Nanmwarki v. Etscheit Family, 8 TTR 287 (App. 1982) was a quiet title action regarding the land "Umpwompw" and it did not recognize the plaintiffs or the Etscheit family as the owners of the land "Lui," which defendant and his ancestors have occupied and where they have worked and raised families without interference from plaintiffs.

8. The purported 1983 certificate of title is voidable because Pohnpei land law in effect

[11 FSM Intrm. 99]

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 plaintiffsí 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, defendantsí 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 1970ís. 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.

Analysis

       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 Assín, 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.

I. Trespass

      Plaintiffsí 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

[11 FSM Intrm. 100]

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 plaintiffsí consent. In order to determine whether summary judgment should be granted in favor of plaintiffs and against defendants, the court needs to consider the defendantsí arguments in opposition to plaintiffsí motion for summary judgment. If defendantsí 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.

II. Jurisdiction

      The court first addresses defendantsí 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 defendantsí 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.

[11 FSM Intrm. 101]

III. Defendantsí Affirmative Defenses

      The court now examines defendantsí 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.

1. The area occupied by defendants is not part of the land "Umpwomp" involved in the April 1903 auction. The land occupied by defendants is on the other side of the Lui river from Umpwomp.

       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 plaintiffsí 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 plaintiffsí 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. Defendantsí 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 plaintiffsí 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 plaintiffsí favor.

2. The land occupied by defendants was not part of Tract No. 046-A-011 until a private surveyor, hired by plaintiffs during the July 1996 partition settlement of FSM Civil Action No. 1992-150 between the Etscheit family, drew up a new map to include the land and area occupied by defendants. The land occupied by defendants is Tract No. 046-A-04. When the private

[11 FSM Intrm. 102]

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

       Plaintiffs agree with defendantsí 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 plaintiffsí ownership of the property, or make defendants claim on the land any more substantial.

3. The purported lease plaintiffs gave to defendant Ioanis Gilmete to execute on November 4, 1985 was null and void as it was a lease for a tract of land (046-A-04) to which plaintiffs were not the owner in 1985.

      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.

4. Defendant Ioanis Gilmeteís use and occupation of the area is not independent of his

[11 FSM Intrm. 103]

grandmotherís use as he was born and raised since 1954 on Tract No. 046-A-04 and has lived continuously on this land except for a brief absence abroad.

        The court finds that whether defendant Ioanis Gilmeteís use and occupation is or is not independent of his grandmotherís 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. Defendantsí 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:

     In order to successfully assert a claim that property rights have been acquired through adverse possession in the FSM, a party must establish that he entered the land at issue and remained in possession of the land for the entire statutory period of 20 years. 6 F.S.M.C. 802(a). In addition to actual possession for the statutory period, adverse possession requires the possessorís occupancy to have been open and notorious, exclusive, continuous and under a claim of right. Etscheit v. Adams, 6 FSM Intrm. 365, 389 (Pon. 1994). Thus, a party claiming property rights based on adverse possession must demonstrate that he came onto the land with the intent of taking complete and exclusive control of the property.

       Defendantsí contention that Ioanes Gilmeteís use and occupation of the area is not independent of his grandmotherís 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. Gilmeteís 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 defendantsí 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.

5. Plaintiffsí father did not build the housing where defendant now occupies, and where defendantís grandparents and parents lived since 1946.

      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 plaintiffsí 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.

6. The purported 1983 Certificate of Title issued to the heirs of Florentine Etscheit was voidable because it included the land Lui (Tract No. 046-A-04) which is beyond the land Umpwomp and Ponsaker as recognized by the T.T. High Court in Civil No. 343.

[11 FSM Intrm. 104]

        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, defendantsí argument does not create a genuine issue of material fact which would prevent the granting of summary judgment in favor of plaintiffs.

7. The Trust Territory High Court case no. 142-78, Nanmwarki v. Etscheit Family, 8 TTR 287 (App. 1982) was a quiet title action regarding the land "Umpwompw" and it did not recognize the plaintiffs or the Etscheit family as the owners of the land "Lui," which defendant and his ancestors have occupied and where they have worked and raised families without interference from 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 plaintiffsí 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.

8. The certificate of title issued to Florentine Etscheit in 1983 is voidable because Pohnpei land law in effect at the time of the death of Domenikus Etscheit prohibits females from acquiring land in Pohnpei.

      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 governmentís 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 defendantsí 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 plaintiffsí 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 plaintiffsí complaint.

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

[11 FSM Intrm. 105]

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 plaintiffsí complaint. The court further orders plaintiffsí 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.

* * * *

____________________________________________

Footnotes:

1. The court notes that in this case the State of Pohnpei has already decided who owns the property. Plaintiffs are the holders of a certificate of title for the property, known as Tract No. 046-A-011 (see discussion below).

2. See Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40 (App. 1995); Etscheit v. Nahnken of Nett, 7 FSM Intrm. 390 (Pon. 1996); Etscheit v. Adams, 6 FSM Intrm. 365 (Pon. 1994); Nanmwarki v. Etscheit Family, 8 TTR 287 (App. 1982); In re Etscheitís Property located in Net, Ponape State, Trust Territory of the Pacific Islands CA No. 142-78.

3. See Pon. S.L. No. 3L-99-95 ß 17-15 (July 20, 1995).