KOSRAE STATE COURT TRIAL DIVISION

Cite as Akinaga v. Heirs of Mike, 14 FSM Intrm. 91 (Kos. S. Ct. Tr. 2006)

[14 FSM Intrm. 91]

MASAKO AKINAGA,

Plaintiff,

vs.

HEIRS OF NENA and AGNES MIKE,

Defendants.

CIVIL ACTION NO. 25-05

ORDER DENYING PLAINTIFFíS MOTION TO RECONSIDER AND MODIFY ORDER

Yosiwo P. George

Chief Justice

Decided: February 20, 2006

APPEARANCES:

For the Plaintiff:   Snyder H. Simon

                               P.O. Box 1017

                               Tofol, Kosrae   FM   96944

For the Defendants:  Akiyusi Palsis

                                     P.O. Box 224

                                     Tofol, Kosrae   FM   96944

[14 FSM Intrm. 92]

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HEADNOTES

Judgments ) Alter or Amend Judgment

    When the courtís findings have not been disputed and have not been amended, a motion to reconsider and modify an order will be denied. Akinaga v. Heirs of Mike, 14 FSM Intrm. 91, 93 (Kos. S. Ct. Tr. 2006).

Property ) Easements

    When the subject parcel was utilized for gravesites pursuant to a verbal land use right, prior to the certificate of titleís issuance, and the land was utilized by the defendants for many years without interference by the plaintiff, the land use right granted to the defendants for their burial sites was necessarily a permanent right. When the permission granted to the defendants to utilize the parcels included construction of permanent burial sites and necessarily included permission for continuing access and care of the burial sites, by virtue of the permanent nature of burial sites, the defendantsí rights pertaining to access and care for the burial sites are rights appurtenant to the parcel and pass with the parcel. Akinaga v. Heirs of Mike, 14 FSM Intrm. 91, 93 (Kos. S. Ct. Tr. 2006).

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COURTíS OPINION

YOSIWO P. GEORGE, Chief Justice:

    Plaintiff filed a Motion to Reconsider and Modify Order on January 30, 2006. Plaintiff requests reconsideration of this Courtís Order entered on January 17, 2006. In particular Plaintiff requests reconsideration of the Order which orders Plaintiff to provide the Defendants access to their existing burial sites on the Fwinfoko parcels 009-K-06 and 009-K-07. The January 17, 2006 Order also specified that Plaintiff shall also provide a 10 foot perimeter around existing burial sites to allow Defendants to care for the burial sites.

    Plaintiff argues that there is no custom regarding access to burial sites, and that being required to provide such access to the Defendants is a violation of her ownership rights. Plaintiff further argues that the Courtís Order to provide access to the burial sites and creation of the buffer zone will impede her plans to develop the parcels. Plaintiff argues that the Defendants did not present any evidence of custom regarding burials and therefore the Court should not have recognized or applied any such custom.

    The Certificates of Title issued for parcels 009-K-06 and 009-K-07 (Fwinfoko parcels) both certify that "Elise or Elize Akinaga or Elise A William and Magdalina or Masaki Akinaga" are the owners as tenants-in-common. Both Certificates of Title were issued in February 1986. The determination of ownership for the Fwinfoko parcels were based upon the prior judgment of the Trust Territory High Court, Civil Action No. 50 (Judgment entered March 28, 1960). The Trust Territory High Court Judgment specified that the use of the Fwinfoko land by the Defendants was "subject to the directions and rights of Elise or Magdalina."

    In this Courtís Order Granting Motion for Preliminary Injunction entered on June 27, 2005, this Court made the following findings of fact:

Plaintiffís mother, Elise Akinaga, granted verbal permission many years ago to

[14 FSM Intrm. 93]

Agnes Mike and her family to use all three subject parcels. Agnes and Nena Mike, and their heirs have used all three parcels for residential and farming purposes since World War II. Elise Akinaga never withdrew permission for the Defendants to use those three parcels at any time before her death.

The Defendants have relied upon use of the three parcels for more than sixty years, and have planted short term and long term crops on the parcels. Defendants have also utilized the subject land to bury members of their family.

[Akinaga v. Heirs of Mike, 13 FSM Intrm. 296, 298 (Kos. S. Ct. Tr. 2005).]

    These findings have not been disputed and have not been amended. There was no evidence presented that Elise Akinaga limited or prohibited use of the Fwinfoko parcels for burials. Based upon these findings, I conclude that Elise Akinagaís permission to the Defendants to use the Fwinfoko parcels did not prohibit use of the Fwinfoko land for burials by the Defendants.

    The Defendants utilized a portion of the parcels as burial sites for their family members. I take judicial notice that burials in the State of Kosrae are completed by placement of the deceasedís body into the ground. I further take judicial notice that burials in the State of Kosrae are completed as permanent actions, with the intent that the placement of the deceasedís body remain in the burial location forever, in perpetuity, with continuing care by family members. Elise Akinaga, by granting unlimited use of the Fwinfoko land to the Defendants, accepted the possibility of burials upon the parcel and continuing care of those burial sites by the Defendants.

    The Order entered January 17, 2006 provided the Defendants access to burial sites at Fwinfoko, and established a 10 foot perimeter around the burial sites to allow for continuing care. These provisions were established to allow Defendants to care for burial sites, consistent with Elise Akinagaís grant of permission, with minimum interference to Plaintiffís ownership rights. These provisions regarding the burial sites are consistent with those entered in Norita v. Tilfas, 13 FSM Intrm. 424 (Kos. S. Ct. Tr. 2005). In the Norita case, the subject parcel was utilized for gravesites, pursuant to a verbal land use right, prior to the issuance of the Certificate of Title. In Norita, as in this case, the land was utilized by the defendants for many years without interference by the Plaintiff. In Norita, this Court found that pursuant to Kosrae State Code, the land use right granted to the defendants for their burial sites was necessarily a permanent right. The reasoning in Norita is persuasive and applicable to this matter. I conclude that the permission granted by Elise Akinaga for Defendants to utilize the Fwinfoko parcels, included Defendantsí construction of permanent burial sites and necessarily included permission for continuing access and care of the burial sites. By virtue of the permanent nature of burial sites, the Defendantsí rights pertaining to access and care for the burial sites is a right appurtenant to the parcel and passes with the parcel, pursuant to Kosrae State Code, Section 11.616(2). Defendantsí rights with respect to access and care for their burial sites passed with title to the Fwinfoko parcels to the Plaintiff upon the death of her mother, Elise Akinaga. The January 17, 2006 Order specifies the nature of the those rights appurtenant to the Fwinfoko parcels.

Based upon this reasoning, Plaintiffís Motion to Reconsider and Modify Order is denied.

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