FSM SUPREME COURT APPELLATE DIVISION
Cite as Acker v. FSM, 24 FSM R. 392 (App. 2024))
MARY ACKER,
Appellant,
vs.
FEDERATED STATES OF MICRONESIA,
Appellee.
APPEAL CASE NO. P3-2022
(Civil Action No. 2018-012)
OPINION
Argued: January 8, 2024
Decided: January 30, 2024
BEFORE:
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Dennis L. Belcourt, Associate Justice, FSM Supreme Court
Hon. Cyprian Manmaw, Specially Assigned Justice, FSM Supreme Court*
*Chief Justice, State Court of Yap, Colonia, Yap
APPEARANCES:
For the Appellant:
Salomon M. Saimon, Esq.
P.O. Box 911
Kolonia, Pohnpei, FM 96941
For the Appellee:
Josephine Leben James, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
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A trial court's factual findings are reviewed using the clearly erroneous standard, and its conclusions of law are reviewed de novo. Acker v. FSM, 24 FSM R. 392, 395 (App. 2024).
The "public easement" created under 42 Pon. C. § 3-111 only applies to grants of land to persons under chapter 3 of Title 42, and is not public land retained by the Board of Trustees of the Pohnpei Public Lands Trust, but is an easement imposed on land the Board has granted to private persons under Title 42, chapter 3 (entrymen and homesteaders and the like). It does not alter the boundaries of any grant of land by the Board. Nor is it a provision preventing the Board from granting land within 30 feet of a river to an entryman or a homesteader. Acker v. FSM, 24 FSM R. 392, 396 (App. 2024).
An easement for a road necessarily includes road signs. The marble sign showing the road to take to go to the FSM Capitol is a road sign and is therefore a conforming usage for the road easement. Acker v. FSM, 24 FSM R. 392, 396 (App. 2024).
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LARRY WENTWORTH, Associate Justice:
This appeal arises from the trial court's judgment, after trial, that plaintiff Mary Acker's claims against the FSM be dismissed and that judgment issue in the FSM's favor. We affirm the trial court decision. Our reasons follow.
On July 13, 2018, Mary Acker sued the FSM government for trespass, breach of contract, unjust enrichment, and for the taking of property (civil rights). She claimed that the FSM government had trespassed on her land and caused her to lose her use of the land when the FSM erected a marble sign or monument on the land, and that this sign was not authorized, permitted, or allowed by any existing land use agreement. Acker sought as relief that the FSM vacate her property (that is, that the sign be removed); that the FSM not be allowed re-entry, and that she be compensated for the FSM's past (since August 10, 1990) use of the property, plus attorney's fees and costs.
The case went to trial. The trial court's findings of fact, Acker v. FSM, 23 FSM R. 550, 553-54 (Pon. 2022), may be summarized as follows:
1) On February 9, 1979, Tonio David (also known as Donio Depit) was issued a Certificate of Title acknowledging him as the fee simple owner of Parcel No. 008-C-08, a land containing an area of 12,141 sq. meters, located in Palikir, Sokehs.
2) On July 31, 1986, Tonio David and the FSM signed an Easement Agreement, which granted the FSM access through Parcel No. 008-C-08 from the Pohnpei Circumferential Road [the southern boundary of Parcel 008-C-08] to the capitol site for a term of 99 years. The FSM paid Tonio David $5,000 for this easement, binding on the parties' respective heirs, successors, or assigns.
3) In March 1987, the FSM and Tonio David amended the Easement Agreement to allow utilities access to the FSM capitol.
4) On December 23, 1987, Tonio David conveyed to his eldest son, Benido David, by quitclaim deed (pengsapw) half of Parcel No. 008-C-08, beginning from the Pohnpei Circumferential Road on the left side of the secondary road going to the FSM capitol. On February 4, 1988, Tonio David conveyed by quitclaim deed to his daughter, Dora Mix, a portion bordering the one deeded to Benido David, and which included the secondary road going to the FSM capitol and was adjacent to the one previously deeded to Benido David.
5) Parcel No. 008-C-08 was subdivided into three separate parts, which were each assigned new parcel numbers: 008-C-20, 008-C-21, and 008-C-22. Benido David's land was divided in two, Parcels No. 008-C-20 and 008-C-21, and Benido David conveyed Parcel No. 008-C-20 [which bordered the circumferential road] to his daughter Mary Acker, and kept Parcel No. 008-C-21 for himself. Mary Acker and Benido David were each issued Certificates of Title as fee simple owners of their respective parcels on August 10, 1990. The other half, Parcel No. 008-C-22, remained with the original owner, Tonio David.
6) Parcel No. 008-C-22 was later subdivided into three separate parts and assigned new parcel numbers: 008-C-23, 008-C-24, and 008-C-25. Dora Mix conveyed Parcel No. 008-C-23 to Jessica Mix, her daughter, by deed and Jessica Mix was issued a certificate of title for that parcel on August 24, 1994. Herbert A. Gallen was conveyed Parcel No. 008-C-24 and issued a certificate of title for it on October 31, 1995. Parcel No. 008-C-25, remained with the original owner, Tonio David.
7) Parcel No. 008-C-25 includes the easement to provide access and utilities to the FSM capitol site from the Pohnpei Circumferential Road. The easement measured 30.48 meters [100 feet] in width South [along the Circumferential Road], 33.90 meters in width North, 95.35 meters in length West, and 80.51 meters in length East, containing 2,680 sq. meters of land, more or less.
8) In June 2002, the FSM erected a marble and concrete monument at the corner or at the intersection of the capitol access road and the Pohnpei Circumferential Road and the monument is located within Parcel No. 008-C-25 and the area covered by the Easement Agreement. The monument serves as sign showing the direction to the FSM Capitol.
The trial court also took judicial notice that
9) in 2003, Benido David sued the FSM, asserting a breach of contract claim by alleging that the erected monument was not permitted under the Easement Agreement's terms, and that the trial court, as stipulated by the parties, later dismissed that case with prejudice when the FSM paid Benido David $2,000 as full settlement of his claims, and the claims of any other person claiming under him.
Based on those findings of fact, the trial court concluded that, since the easement was entirely within Parcel No. 008-C-25, and since Mary Acker did not own, or have any rights to that parcel, none of her claims were tenable and therefore judgment would be entered in the government's favor. Acker, 23 FSM R. at 554-57.
Acker timely appealed.
Acker contends that the trial court erred
1) by finding that Parcel No. 008-C-25 exists, or was ever legally created;
2) by not applying Pohnpei Code Title 42, § 3-111 to move the boundaries of Acker's land 30 feet toward the marble sign, thus including that sign within her property and not within the easement;
3) by concluding that there was no trespass although Acker had not permitted the FSM to use her land for that marble sign, a purpose not authorized by the easement;
4) by not finding that the FSM was unjustly enriched by using Acker's land for the marble sign without her permission and without fair compensation; and
5) by not concluding that the FSM took her property without compensation since Acker owns the land where the marble sign is located.
Acker further contends that the trial court should have granted her as relief $500 a month rent as past and future compensation for the sign's presence on her property. At oral argument, this past (and possibly) future rent was the only relief that she now seeks. She no longer seeks the marble sign's removal.
We review the trial court's factual findings using the clearly erroneous standard, and we review its conclusions of law de novo. Carl v. FSM Dev. Bank, 23 FSM R. 525, 536 (App. 2022); Carlos Etscheit Soap Co. v. McVey, 21 FSM R. 525, 531 (App. 2018); Berman v. Pohnpei Legislature, 17 FSM R. 339, 346 (App. 2011); Worswick v. FSM Telecomm. Corp., 9 FSM R. 460, 462 (App. 2000).
A. Pohnpei Code, Title 42, Section 3-111
Acker contends that if the trial court had properly applied Pohnpei Code, Title 42, Section 3-111, it would have found that the marble sign was not within the FSM's easement, but was wholly within Acker's parcel. Acker argues that this Pohnpei statute means that her parcel's western boundary starts, not at the river, the western boundary of Acker's parcel where the Pohnpei state surveyors1 started their survey, but 30 feet east of the river, thus moving her parcel's eastern boundary (the boundary that parallels the capitol access road) 30 feet nearer the capitol access road, thereby placing the FSM's marble sign within her property and not within the easement. (This would presumably put most or all of Parcel No. 008-C-25 within Acker's Parcel No. 008-C-20.)
We cannot agree with Acker's interpretation of Section 3-111. That statute, at the relevant time, read:
There shall be reserved to the public in every grant of land pursuant to this chapter:
(1) All existing public uses, roads, and easements;
(2) A public easement 30 feet in width on either bank of any river or stream passing through or bounding upon the property that has an average width of five feet or more at those points at which it bounds or passes through the property;
. . . .
(4) A person whose property for which title was granted pursuant to this chapter, or any portion thereof, is taken for public purposes following the effective date of this chapter [November 12, 1980] shall, notwithstanding Subsections (2) and (3) of the section, be entitled to such remedies as are available to an owner in fee simple for loss or damages to crops, buildings, and over improvements.
Pon. S.L. No. 2L-43-80, § 11 (codified as later amended2 at 42 Pon. C. § 3-111). Acker contends that the "public easement 30 feet in width" is, according to the statute, land retained by the Board of Trustees of the Pohnpei Public Lands Trust. Acker misreads the statute.
The easement plainly only applies to grants of land to persons under chapter 3 of Title 42. In other words, that "public easement" is not public land retained by the Board of Trustees, but is an easement imposed on land the Board has granted to private persons, under Title 42, chapter 3 (entrymen and homesteaders and the like). It does not alter the boundaries of any grant of land by the Board. Nor is it a provision preventing the Board from granting land within 30 feet of a river to an entryman or a homesteader.
Furthermore, it is unclear whether this easement was even reserved from the grant to Acker's predecessor in interest, Tonio David. Pohnpei State Law No. 2L-43-80 took effect on November 12, 1980, and Tonio David's certificate of title was issued on February 9, 1979.
Either there is no public easement along the river on Acker's parcel because the grant to her predecessor in interest predates the state law or there is a public easement that runs over Acker's parcel and that does not change her parcel's boundaries. Either way, the FSM's marble sign is within the FSM's 100-foot (30.48-meter) wide road and utilities easement.
B. Easement Usages
Acker alternatively contends that even if the marble sign is within the easement, the easement runs at least partly through her parcel and the marble sign is in her part of the easement area. Acker concedes that an easement runs with the land and that if the easement crosses her parcel she must abide by it. But Acker further contends that the marble sign's presence is not a usage authorized by the 99-year easement granted by Tonio David, her predecessor in interest, and therefore the FSM is trespassing on her parcel and she is owed compensation for that trespass.
The trial court found that "[t]he monument is situated within the boundaries of Parcel no. 008-C-25 and the area covered by the Easement Agreement. The monument serves as sign showing the direction to the FSM Capitol." Acker, 23 FSM R. at 554. Acker has not shown that the trial court's finding that the marble sign "serves as sign showing the direction to the FSM Capitol" – serves as a road sign – was clearly erroneous. Since it serves or functions as a road sign, it is a road sign. Without it, no one who did not already know where to turn to reach the FSM capitol would know where to go.
Road signs are mentioned in the Easement Agreement in passing. Easement Agreement § 12(a). But even if they were not, the result would be the same. An easement for a road necessarily includes road signs. Cf. Hucke v. Kader, 240 P.2d 434, 438-39 (Cal. Dist. Ct. App. 1952) (residents who had a non-exclusive access easement over a private road necessarily had the right to erect, or ask the city to erect, a street sign naming the road). We conclude that the marble sign showing the road to take to go to the FSM Capitol is a road sign and is therefore a conforming usage for the road easement.
C. Acker's Causes of Action
Since the marble sign is not on Acker's land, or, if it is, it is within the FSM's capitol access road easement, and since the sign is a conforming usage, all of Acker's causes of action – trespass, breach of contract, unjust enrichment, and civil rights – can only fail.
Accordingly, we affirm the trial court judgment. The parties are to bear their own costs. FSM App. R. 39(b).
_______________________________Footnotes:
1 Acker questioned the survey's accuracy because the Pohnpei state surveyors who did the survey for the trial court case were not certified surveyors (although there was one certified surveyor in the Pohnpei sate survey office). Acker, however, did not show that this made the survey results clearly erroneous or otherwise in error. Such concerns should have been raised before the trial court and a ruling first sought there.
2 Pohnpei State Law No. 2L-43-80, the Public Trust Lands Distribution Act of 1980, was later amended by the Mand Public Trust Lands Distribution Act of 2005, Pohnpei State Law No. 6L-62-06.
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