KOSRAE STATE COURT TRIAL DIVISION

Cite as Siba v. Noah, 15 FSM Intrm. 189 (Kos. S. Ct. Tr. 2007)

[15 FSM Intrm. 189]

THURSTON SIBA,

Plaintiff,

vs.

SEPE NOAH et al.,

Defendants.

CIVIL ACTION NO. 117-05

MEMORANDUM OF DECISION; JUDGMENT

Aliksa B. Aliksa

Chief Justice

Trial: November 29, 2006

Decided: August 2, 2007

[15 FSM Intrm 190]
 

APPEARANCES:

For the Plaintiff:           Albert T. Welly

                                    Kosrae State Legislature

                                    P.O. Box 187

                                   Tofol, Kosrae   FM   96944
 

For the Defendants:   Snyder H. Simon, Esq.

                                   P.O. Box 1017

                                   Tofol, Kosrae   FM   96944

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HEADNOTES

Appellate Review ) Decisions Reviewable

      The Kosrae State Court normally reviews a Land Court order or decision in an appeal. But when the court is reviewing the Land Court’s issuance of title where there was no hearing and appeal and no statutory procedure is set for this type of review and when the Kosrae Constitution provides that the State Court has jurisdiction to review all inferior court decisions and when the State Court has the power to make rules and orders, and do all acts, not inconsistent with law or rule, required for the due administration of justice, based on the constitutional grant of jurisdiction and on the power to administer justice, the Kosrae State Court will review the issuance of certificate of title. Siba v. Noah, 15 FSM Intrm. 189, 194 (Kos. S. Ct. Tr. 2007).

Constitutional Law ) Due Process

      The fundamental concept of due process is that government may not take from a citizen his life, liberty, or property in an unfair or arbitrary fashion, but must follow procedures that ensure a fair and rational decision-making process. Siba v. Noah, 15 FSM Intrm. 189, 194 (Kos. S. Ct. Tr. 2007).

Appellate Review ) Standard of Review ) Civil Cases; Constitutional Law ) Kosrae ) Due Process

      When reviewing the Land Commission’s actions after the plaintiff filed his request in 1987 and the issuance of title in 2002, the question is whether the Land Commission or Land Court deprived the plaintiff or any other party of property in an unfair fashion and whether the procedures used ensured a fair and rational decision-making process. This is consistent with the due process requirements of the Kosrae Constitution, Article II. Siba v. Noah, 15 FSM Intrm. 189, 194 (Kos. S. Ct. Tr. 2007).

Property ) Registered Land

      Title is prima facie proof of ownership and is conclusive upon all persons who have had notice of the proceedings and all those claiming under them and it is prima facie evidence of ownership as therein stated against the world. But when the plaintiff filed his request for a subdivision of the parcels with the Land Commission but never had notice of any proceedings or an opportunity to be heard on his claim, the title issued in 2002 was not conclusive as to his interest. Siba v. Noah, 15 FSM Intrm. 189, 194 (Kos. S. Ct. Tr. 2007).

Property ) Registered Land

       For the process of issuing title to be fair and rational, it must address all claimed interests in title. If a person claims an interest in land, that claim must be considered before title is issued to someone else. Siba v. Noah, 15 FSM Intrm. 189, 194 (Kos. S. Ct. Tr. 2007).

[15 FSM Intrm 191]

Constitutional Law ) Due Process ) Notice and Hearing; Property ) Registered Land

       When, before issuing title to someone else, the Land Court never gave the plaintiff notice or an opportunity to be heard on his claim of ownership based on a subdivision and since having notice and an opportunity to be heard are the core requirements of due process and fundamental fairness, the Land Commission and Land Court deprived the plaintiff of his right to due process when title was issued in 2002 without giving the plaintiff notice or an opportunity to be heard on his claim of ownership filed with the Land Commission in 1987, and therefore, the 2002 title is not valid as to the plaintiff. Siba v. Noah, 15 FSM Intrm. 189, 194-95 (Kos. S. Ct. Tr. 2007).

Appellate Review ) Decisions Reviewable; Judgments ) Collateral Attack

      When the plaintiff was an interested party and never received notice or an opportunity to be heard, he could have pursued his claim by filing an appeal of the issuance of title because without notice, his time to file an appeal is extended beyond the statutory sixty-day time limit. The Kosrae State Court favors this approach when Land Commission or Land Court actions are at issue because an appeal ensures that the records needed to make a fair determination are before the court and because this approach promotes finality in decisions on land ownership by encouraging full participation of all interested parties at Land Court proceedings instead of allowing later, collateral attacks on their decisions. Siba v. Noah, 15 FSM Intrm. 189, 195 (Kos. S. Ct. Tr. 2007).

Evidence ) Burden of Proof

      The plaintiff has the burden of proving each element of a claim by a preponderance of evidence. Siba v. Noah, 15 FSM Intrm. 189, 195 (Kos. S. Ct. Tr. 2007).

Contracts

      The elements of an enforceable contract are an offer and acceptance, definite terms, and consideration between the parties. If a party fails to perform, then the contract is breached and damages may be awarded. Siba v. Noah, 15 FSM Intrm. 189, 195 (Kos. S. Ct. Tr. 2007).

Contracts

      When the plaintiff claims ownership of the parcels based on a contract with him as grantee to exchange land for building materials and money, but the evidence supports only that the plaintiff was to receive ownership of a portion of the land, not to the full parcels, and when the defendants’ witness agreed that the plaintiff bought a portion of land that formerly belonged to them and had an agreement to extend the boundary of that land to a specific location, the plaintiff failed to prove that he had an enforceable contract to transfer ownership of both parcels to him. The evidence only shows he received the portion of the land and had an agreement to extend the boundary of that portion. Siba v. Noah, 15 FSM Intrm. 189, 195 (Kos. S. Ct. Tr. 2007).

Contracts; Remedies ) Restitution

     When there is no enforceable contract, a court may use its inherent equity power to fashion a remedy under doctrines such as unjust enrichment or detrimental reliance. The doctrine of unjust enrichment is based on the idea that one person should not be unjustly enriched at the expense of another. It usually applies when a party has partly performed under a contract that is later void for mistake, fraud, illegality, impossibility, or some other reason, or where there is an implied contract. Generally, the person must either return what has been received under the contract or pay for it. Siba v. Noah, 15 FSM Intrm. 189, 195 (Kos. S. Ct. Tr. 2007).

Equity ) Estoppel

      The doctrine of detrimental reliance is summarized as a promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee, and which does induce such action or forbearance is binding if justice requires enforcement of the promise. The remedy for

[15 FSM Intrm 192]

breach may be limited as justice requires. In other words, when a person justifiably and reasonably relies on a promise, then the promise will be enforced if it is the only way to avoid injustice. Siba v. Noah, 15 FSM Intrm. 189, 195-96 (Kos. S. Ct. Tr. 2007).

Equity ) Estoppel; Remedies ) Restitution

     When the plaintiff performed his part of the agreement by providing goods and cash to the a defendant believing the boundary of his land would be extended and he timely filed a subdivision request with the Land Commission and completed building a house on the land, in expectation of receiving title; when the defendant accepted the goods and cash and another defendant received title to the land from that defendant and others, including the portion the plaintiff was to receive; and when the other defendant accepted title to both parcels, but knew that the plaintiff was entitled to a portion of the land and had requested the subdivision, applying the doctrine of unjust enrichment, the other defendant has been unjustly enriched at the plaintiff’s expense. To end the other defendant’s unjust enrichment, the remedy is to issue title to the plaintiff for the portion of the land he was to receive in 1987 and leave title to the remaining land with the other defendant. An application of the doctrine of detrimental reliance affords the same remedy. Siba v. Noah, 15 FSM Intrm. 189, 196 (Kos. S. Ct. Tr. 2007).

Torts ) Trespass

     Trespass is wrongful interference with a possessory interest in property. Defendants are liable for trespass if the plaintiff proves he owns or has a possessory interest in the land and the defendants intentionally and without consent enter or remain on the land. Siba v. Noah, 15 FSM Intrm. 189, 196 (Kos. S. Ct. Tr. 2007).

Torts ) Trespass

     A trespass action is one for violation of possession, not for challenge to title. Siba v. Noah, 15 FSM Intrm. 189, 196 (Kos. S. Ct. Tr. 2007).

Torts ) Trespass

      Since a trespass action is one for violation of possession, not for challenge to title, when a claim of trespass is raised and title to land is an issue and there is no pending case before a land commission or there is a previous determination of ownership, then the question of ownership may be remanded to the land commission. Once that ownership is determined, then a court can proceed on the trespass claim, if necessary, because a trespass claim involves more than an interest in land. Siba v. Noah, 15 FSM Intrm. 189, 196-97 (Kos. S. Ct. Tr. 2007).

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COURT’S OPINION

ALIKSA B. ALIKSA, Chief Justice:

      Plaintiff filed his Complaint on August 30, 2005 claiming he purchased two parcels of land at Pukusrik Te, 033K04 and 033K05, from Sepe Noah and Ersila Mongkeya in 1987.  He relies on a document entitled "Sales Deed," a list of goods worth $3,000.00 provided to one of the owners of the land, and monuments placed by the Land Commission.  He also alleges that Defendants have trespassed on the land.  He requests that title be issued to him.

      Defendants Sepe Noah, Jodai Mongkeya and Joseph Mongkeya argue that the purchase was not valid, that Plaintiff failed to join a necessary and indispensable party, and that Defendant Jodai Mongkeya holds valid certificates of title to both parcels.

[15 FSM Intrm 193]

      At the trial held on November 29, 2006, the witnesses were Shra Davin, Joseph Mongkeya, Jodai Mongkeya, Betsy Rose, and Thurston Siba.  After taking testimony, the Court took the matter under advisement.  Plaintiff is represented by Albert Welly and Defendants are represented by Snyder Simon.

     Defendants filed a Motion to Dismiss the Complaint on October 19, 2005 arguing that Plaintiff failed to timely appeal the Land Commission’s determination of ownership.  This Motion was denied in an Order issued November 23, 2005.  In that Order, Defendants were cautioned to consider whether a conflict of interest existed among Defendants because of an allegation that one Defendant was alleged to have sold the land and the other Defendants were not parties to the sale.

     As explained below, I hold that the title issued to Defendant Jodai Mongkeya is invalid and remand to the Land Court to determine the boundary between Plaintiff’s and Defendants’ land and to issue title to Plaintiff for his portion and to Defendant Jodai Mongkeya for his portion.  After the boundary is determined on remand to the Land Court, any remaining trespass claim can be addressed, if requested by the parties.

I.  Findings of Fact

     It was not clear from the evidence presented by the parties at trial what action was taken by either the Land Commission or Land Court on the parcels.  To clarify the status of proceedings on Parcels 033K04 and 033K05, this Court takes judicial notice of the following documents in Land Court files:

• Determinations of Ownership issued by the Kosrae State Land Commission on June 28, 1985 for Parcels 033K04 and 033K05 showing Sepe Noah Palsis, Nunaiya Nena, Singeo Nena, Kamoa Alik Palsis and Doris Nena as owners with tenancy in common;

• Certificates of Title to Parcels 033K04 and 033K05 issued on February 28, 1986 to "Sepe Noah Palsis, Nunaiha Nena, Singeo Nena, Kamoa Alik Palsis, a Doris Nena";

• Letter to Mitchell K. Aaron, Senior Land Commissioner from Thurston Siba, dated February 24, 1987, with the "Sales Deed" attached requesting action by the Land Commission team. It is initialed as received and filed on March 3, 1987; and,

• "Kitakat in Sou (usru)" dated March 29, 2002 and filed at the Land Court showing Sepe N. Palsis as grantor and J. Mongkeya as grantee and signed by Singeo Nena, Nunaiya Nena and Camoa A. Palsis.

      Plaintiff’s claims of ownership rest, in part, on a document labeled "Sales Deed" signed by Sepe Noah along with two witnesses on January 8, 1987.  One of the witnesses was Ersila Mongkeya.  The words of this document, alone, do not show a transfer of ownership.  It states that Sepe Noah previously sold a portion of Parcel Nos, 033K04 and 033K05 and that she understands that the others sold it to Plaintiff.  The others are not identified in the document. Testimony from several witnesses, Defendant’s witness Shra Davin, in particular, clarified the transfer.  A portion of land had been transferred to Otmer, now deceased.  Before Otmer passed away, he transferred ownership to Plaintiff.  The portion of the parcels transferred to Otmer is the land referred to in the "Sales Deed."

      Plaintiff also asked Sepe Noah to extend the boundary of the land he had purchased from Otmer.  According to testimony from Shra Davin and Defendant Jodai Mongkeya, there was an agreement only to extend the boundary, not to transfer ownership of a full parcel.  The agreement was to extend the

[15 FSM Intrm 194]

boundary as far as the boundary of the land now owned by Sosai Abraham. Plaintiff and Defendant Sepe Noah also planted monuments to show the boundary of the land. Later, Plaintiff tried to relocate the monuments, but Defendant Sepe Noah’s son and daughter stopped the relocation.

      Plaintiff filed the "Sales Deed" and requested a subdivision with the Land Commission in 1987 because that was the proper authority to subdivide the land, establish the proper boundaries, and to issue title.

      Plaintiff also submitted a photocopy of a handwritten document dated "April 2" or "April 21" signed by the Plaintiff.  It states that Sepe Noah received cement, plywood, tin roof, and lumber in the amount of $2,700.00 and cash in the amount of $300.00 as payment for a portion of land.

      Defendant Jodai Mongkeya holds a certificate of title to both Parcels 033K04 and 033K05 at Pukusrik Te, Lelu, issued by the Land Court on September 9, 2002.  When the Land Court issued the title, it did not address Plaintiff’s claim to ownership by holding a hearing or giving notice to Plaintiff.

II.   Analysis

A.  Whether the Land Court properly issued title to the parcels to Defendant Jodai Mongkeya in 2002.

      This Court normally reviews an order or decision of the Land Court in an appeal.  In this case, the Court is reviewing the Land Court’s issuance of title where there was no hearing and appeal.  No statutory procedure is set for this type of review.  The Kosrae Constitution, Article VI, Section 6, provides that the State Court has jurisdiction to review all decisions of inferior courts.  In addition, the State Court has the power to make rules and orders, and do all acts, not inconsistent with law or rule, required for the due administration of justice. Kosrae Code § 6.101.  Based on the Constitutional grant of jurisdiction and on the power to administer justice, this Court will review the issuance of certificate of title.

      The fundamental concept of due process is that government may not take from a citizen his life, liberty, or property in an unfair or arbitrary fashion, but must follow procedures that ensure a fair and rational decision-making process.  AHPW, Inc. v. FSM, 12 FSM Intrm. 114, 118 (Pon. 2003).  We now review the Land Commission’s actions after Plaintiff filed his request in 1987 and the issuance of title in 2002.  The question is whether the Land Commission or Land Court deprived Plaintiff or any other party of property in an unfair fashion and whether the procedures used ensured a fair and rational decision-making process.  This is consistent with the due process requirements of the Kosrae Constitution, Article II.

      Title is prima facie proof of ownership is conclusive upon all persons who have had notice of the proceedings and all those claiming under them.  It is prima facie evidence of ownership as therein stated against the world.  Etscheit v. Adams, 6 FSM Intrm. 365 (Pohnpei 1994).  Here, even though Plaintiff filed his request for a subdivision of the parcels with the Land Commission, he never had notice of any proceedings or an opportunity to be heard on his claim.  Therefore, the title issued in 2002 was not conclusive as to his interest.

      For the process of issuing title to be fair and rational, it must address all claimed interests in title.  If a person claims an interest in land, that claim must be considered before title is issued to someone else.  But, the Land Court never gave Plaintiff notice or an opportunity to be heard on his claim of ownership based on a subdivision before issuing title to someone else.  Having notice and an opportunity to be heard are the core requirements of due process and fundamental fairness.  The Land Commission and Land Court deprived Plaintiff of his right to due process when title was issued in 2002

[15 FSM Intrm 195]

without giving him notice or an opportunity to be heard on the claim of ownership he filed with the Land Commission in 1987.  Therefore, the title issued in 2002 is not valid as to Plaintiff.

     The Court notes that Plaintiff could have pursued his claim by filing an appeal of the issuance of title.  He was an interested party and never received notice or an opportunity to be heard.  Without notice, his time to file an appeal is extended beyond the statutory sixty-day time limit.  The Court favors this approach when the actions of the Land Commission or Land Court are at issue.  In addition, an appeal ensures that the records needed to make a fair determination are before the Court.  Last, this approach promotes finality in decisions on ownership of land by encouraging full participation of all interested parties at the Land Court proceedings instead of allowing later, collateral attacks on their decisions.

B.  Was there a contract transferring ownership to Plaintiff?

     The plaintiff has the burden of proving each element of a claim by a preponderance of evidence.  Tulensru v. Wakuk, 10 FSM Intrm. 128, 132 (App. 2001).  The elements of an enforceable contract are an offer and acceptance, definite terms, and consideration between the parties.  If a party fails to perform, then the contract is breached and damages may be awarded. See, generally Livaie v. Weilbacher, 11 FSM Intrm. 644 (Kos. S. Ct. Tr. 2003); Youngstrom v. Mongkeya, 11 FSM Intrm. 550 (Kos. S. Ct. Tr. 2003); O’Byrne v. George, 9 FSM Intrm. 62 (Kos. S. Ct. Tr. 1999).

      Plaintiff claims ownership of the parcels based on a contract between Sepe Noah and Ersila Mongkeya as grantors and him as grantee to exchange land for building materials and money.  As described above, the evidence supports only that Plaintiff was to receive ownership of a portion of the land, not to the full parcels.  Plaintiff’s "Exhibit B" shows he knew Sepe Noah and Ersila Mongkeya were not the owners of the land claimed here.  It identifies "Sepe, Nunaiya, Singeo, Kamioa a Dor" as having joint ownership and is signed by the Plaintiff.  Also, the "Sales Deed" offered by Plaintiff as a contract shows that a portion of the parcels was transferred to Otmer and that Otmer transferred that portion to Plaintiff.  It is signed only by Sepe Noah, whom he knew was not the current owner.  "E. Mongkeya" signed the document as a witness, but this shows she was not acting as a seller.  And, Plaintiff did not name Ersila Mongkeya as a party or attempt to call her as a witness.  Last, Plaintiff requested a subdivision of the parcels in 1987, not title to the whole parcel from the Land Commission.  Defendants’ witness agreed that Plaintiff bought a portion of land that formerly belonged to them and had an agreement to extend the boundary of that land to a specific location.  Plaintiff failed to prove that he had an enforceable contract to transfer ownership of both parcels from Sepe Noah to him.  The evidence only shows he received the portion of the land that was previously transferred to Otmer and had an agreement to extend the boundary of that portion.

C.  Remedies When There is No Enforceable Contract

      When there is no enforceable contract, a court may use its inherent equity power to fashion a remedy under doctrines such as unjust enrichment or detrimental reliance.  Kilafwakun v. Kilafwakun, 10 FSM Intrm. 189, 195 (Kos. S. Ct. Tr. 2001).  The doctrine of unjust enrichment is based on the idea that one person should not be unjustly enriched at the expense of another.  Id.   It usually applies when a party has partly performed under a contract that is later void for mistake, fraud, illegality, impossibility, or some other reason, or where there is an implied contract. Generally, the person must either return what has been received under the contract or pay for it. See generally Etscheit v. Adams, 6 FSM Intrm. 365, 392 (Pon. 1994).

      The doctrine of detrimental reliance is summarized as follows:  "A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee, and which does

[15 FSM Intrm 196]

induce such action or forbearance is binding" if justice requires "enforcement of the promise. The remedy for breach may be limited as justice requires."  Kilafwakun, 10 FSM Intrm. at 195 (citing Restatement of Contracts § 90(1) (1981)).  In other words, when a person justifiably and reasonably relies on a promise, then the promise will be enforced if it is the only way to avoid injustice.

      In Kilafwakun, the plaintiff relied on one of the defendant’s promises that land would be transferred to him.  He began building a house on the land.  There was no written agreement about plaintiff’s use of the land.  Later, the parties had a disagreement and defendants asked plaintiff to stop building the house.  After some time passed, defendants requested plaintiff return and complete the house but plaintiff refused.  Plaintiff claimed a breach of contract.  The Court determined no contract existed because it failed for lack of consideration.  It dismissed the case against defendants who had not made promises to the plaintiff and relied on the doctrine of unjust enrichment to award damages in favor of plaintiff and against the defendant who had made the promises for the amount of building materials.  Kilafwakun, 10 FSM Intrm. at 194-96.

      Here, Plaintiff performed his part of the agreement by providing goods and cash to Defendant Sepe Noah believing the boundary of his land would be extended.  He timely filed a subdivision request with the Land Commission and completed building a house on the land, in expectation of receiving title.  Defendant Sepe Noah accepted the goods and cash.  Defendant Jodai Mongkeya received title to the land from Defendant Sepe Noah and others, including the portion Plaintiff was to receive.  He knew that Plaintiff was entitled to a portion of the land and had requested the subdivision but accepted title to both parcels.  Applying the doctrine of unjust enrichment, Defendant Jodai Mongkeya has been unjustly enriched at the expense of Plaintiff.  To end the unjust enrichment to that Defendant, the remedy is to issue title to Plaintiff for the portion of the land he was to receive in 1987 and leave title to the remaining land with Jodai Mongkeya.  Specifically, Plaintiff is to have title to the portion of parcels 033K04 and 033K05 that were transferred to Otmer and that he then bought from Otmer, including the extended portion up to the boundary now owned by Sosai Abraham.  Jodai Mongkeya is to retain title to the remaining portions of these parcels. This matter is being remanded to the Land Court to afford this remedy.

       An application of the doctrine of detrimental reliance affords the same remedy.  In 1987, a named Defendant accepted goods and money, signed a "Sales Deed" which was filed with the Land Commission, and agreed to boundaries of land that was to belong to Plaintiff.  Plaintiff justifiably relied on these actions and proceeded to build a home on the land.  Enforcing the agreement to issue title to that portion of the land to him will avoid injustice.  The remand affords the proper remedy under this doctrine, as well.

D.  Claim under Trespass

      Plaintiff also raises a claim of trespass against the Defendants.  Trespass is wrongful interference with a possessory interest in property.  Shrew v. Killin, 10 FSM Intrm. 672, 674-75 (Kos. S. Ct. Tr. 2002).  Defendants are liable for trespass if Plaintiff proves he owns or has a possessory interest in the land and Defendants intentionally and without consent enters or remains on the land.  Jonah v. Kosrae, 9 FSM Intrm. 335, 343 (Kos. S. Ct. Tr. 2000) and Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 99-100 (Pon. 2002).

      A trespass action is one for violation of possession, not for challenge to titleShrew v. Killin, 10 FSM Intrm. 672, 674-75 (Kos. S. Ct. Tr. 2002).  When a claim of trespass is raised and title to land is an issue and, there is no pending case before a land commission or there is a previous determination of ownership, then the question of ownership may be remanded to the land commission.  Once that ownership is determined, then a Court can proceed on the trespass claim, if necessary, because a

[15 FSM Intrm 197]

trespass claim involves more than an interest in land.  Pau v. Kansou, 8 FSM Intrm. 524, 527 (Chk. 1998).  This Court will follow the procedure used in Pau for this dispute. Title to the portion of the parcels previously transferred to Plaintiff will be issued to him on remand. Title to the remainder of the parcels will be issued to Jodai Mongkeya on remand.  Each is entitled to possess the subdivided portion he now owns.  Defendants may not enter or remain on Plaintiff’s portion without his consent.  After the boundary is determined and title is issued on remand to the Land Court, any remaining trespass claim to the subdivided parcel can be addressed, upon request of any party.

E. Summary of Analysis

     The Land Commission and Land Court deprived Plaintiff of his right to due process when title was issued in 2002 without notice or an opportunity to be heard on the request for subdivision filed in 1987.  The Land Commission and the Land Court issued title to Jodai Mongkeya without addressing Plaintiff’s claim and without providing him a notice or opportunity to be heard. Therefore, this matter is remanded to the Land Court to issue title to Plaintiff for the portion of parcels 033K04 and 033K05 that were transferred to Otmer and that he then bought from Otmer, including the extended portion up to the boundary now owned by Sosai Abraham.  Jodai Mongkeya is to retain title to the remaining portions of these parcels.

      Plaintiff failed to carry his burden of proving a contract and therefore, there is no enforceable contract transferring ownership to him from Sepe Noah.  However, under either the doctrine of unjust enrichment or detrimental reliance, Plaintiff may receive title to the portion of the land that should have been transferred to him after the requested subdivision in 1987.  The Land Court is instructed to determine the boundary between Plaintiff’s land and the land remaining with the original owners and to issue certificates of title accordingly.

      After the boundary is determined on remand to the Land Court, any remaining trespass claim can be addressed, if necessary.

      The parties are strongly encouraged to meet and reach an agreement on the location of the boundary between their lands and to resolve the trespass claim rather than rely on extended litigation.

III.   Judgment.

      Judgment shall be entered accordingly, in favor of Plaintiff, with a remand to Land Court to determine the boundaries as previously described in this Order, and with the trespass claim to be addressed following remand, if necessary.

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