cite as Benjamin vs. Kosrae State, (Kosrae, 1988)
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Civil Action No 19-85

SEPTEMBER 07, 1988

          Delson Ehmes -           Plaintiff
          ML SC
          Lelu, Kosrae State
          Richard Kaminski -           Defendant
          Assistant AG
          Tofol, Kosrae  96944

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     This case came before the Court on September 7, 1988 on a summary judgment motion brought by the defendant, Kosrae State (State). Richard Kaminski appeared for the State and Delson Ehmes appeared for the plaintiff, Allison Benjamin (Benjamin). After serious consideration and after examination of the facts in the light most favorable to the plaintiff, I am denying the motion.


     In 1944, Ezra Nena (Nena) inherited Yesresr (also known as parcel numbers 009-U-05, 009-U-06 and 009-U-07) from his father. Benjamin married Nena's daughter Sha and in 1977, Benjamin, with Nena's permission, moved on to the property. In 1983, the State built the circumferential road across the property. In the process of building the road, the State cut through approximately six hundred meters of land where breadfruit, banana and coconut trees were growing, destroying the trees in the process.

     In 1984, the Land Commission began its hearings for Yesresr. During these hearings, Nena told the Land Registration Team members that the part of Yesresr (namely, part of 009-U-07) where Benjamin's house is located belonged to Benjamin. Nena also said that Benjamin did not know he was going to receive the property and that Nena wanted his own name on the title. The Land Commission issued Determinations of ownership for all three parcels of Yesresr naming Nena the owner and no appeal was taken.

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     In 1985, the Land Registration Team members drew a map of 009-U-07 indicating that the parcel was being subdivided and that part of the parcel belonged to Benjamin. Also in that year, Benjamin brought this lawsuit alleging that when the road was built the State committed trespass, breach of contract, an unlawful taking, and violations of the due process and equal protection clauses.

     In 1988, Harold Edmond, then acting Senior Land Commissioner, wrote a letter in which he indicated that part of Yesresr will be transferred to Benjamin when a survey is completed.


     1. What interest did Benjamin have in Yesresr in 1983 when the road was built?

     2. Is this interest sufficient to support this lawsuit?


What is Benjamin's Interest

     Before considering the extent of Benjamin's ownership of Yesresr, there is another issue that must be resolved. This issue concerns the weight the Court should give the Determinations of ownership granted in Nena's name.

     In 1984, (when the Land Commission issued its Determination of ownership awarding Nena title to Yesresr) an interested party had one hundred and twenty days to appeal a Determination of Ownership. 67 TTC 115 If an appeal was not initiated within that time, a Certificate of Title was issued. Under the Kosrae Code, a Certificate of Title is considered prima

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facie evidence of ownership in a proceeding involving a party who did not have notice of the Land Commission hearings. KC 11.616(1)

     In this case, Determinations of ownership were issued granting Nena title. Despite the fact that no appeal was taken, the Land Commission never awarded the Certificates of Title. Since the only pre-condition to issuing the Certificate of Title is an appeal and since an appeal was not taken in this case, I am proceeding as if Certificates of Title had been issued. At a minimum, this means that Benjamin has the burden of introducing facts which show that Nena is not the owner of Yesresr.

     In order to prove that Nena does not own Yesresr, Benjamin introduced a transcript of the formal hearing for parcel number 009-U-07, the Land Registration Team's field drawing of that same parcel and a letter by the Acting Senior Land Commissioner. In particular, Benjamin pointed to Nena's statement that he gave Benjamin the land where Benjamin's house is.

     Nena's statement that part of Yesresr belonged to Benjamin is evidence of Benjamin's ownership. Nena's subsequent statements, however, that Benjamin did not know he was going to receive the property and that Nena wanted his own name on the title contradict and discredit his initial statement. In fact, when all three statements are considered together, it is not clear what interest Nena gave Benjamin in Yesresr. For this reason, Nena's initial statement is not sufficient to challenge Nena's ownership.

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     The Land Registration Team's drawing indicated that Nena owned Yesresr, and that he was in the process of dividing the property, giving half to Benjamin. For this reason, Nena's son Hanson went with the team members to point out which part of the parcel will belong to Benjamin. All of this indicates that at the time the drawing was made, 1985, Nena owned the property and had not completed giving it to Benjamin. It is, therefore, unlikely that Benjamin owned the land in 1983 and this drawing is insufficient to challenge Nena's ownership in that year.

     Benjamin also pointed to the letter from the Senior Land Commissioner saying that Benjamin will own part of Yesresr when the land is subdivided. If anything, this letter hurts Benjamin because it indicates that in 1988 Nena had title to all of Yesresr.

     For these reasons, I find that Benjamin has not introduced sufficient facts to challenge Nena's title to the property in 1983 and I therefore find that Benjamin did not hold title to the property in that year.

     There are facts, however, which indicate that Benjamin had an interest in the property. At a minimum, Benjamin was in possession of Yesresr (or at least part of it) at the time the circumferential road was built. He therefore had a possessory interest in the property.

     In addition, there is a possibility (although neither party has raised this) that Nena gave Benjamin the property according to custom. Under Kosraean custom, when a father gives

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property to his children, the property belongs to the children except that the father can take the property back any time before his death. When Nena stated in the formal hearing that Benjamin owned part of Yesresr, this may have been what he meant.

Is this Interest Sufficient to Support this lawsuit?

     A court can refuse to hear a case, even though it has jurisdiction, if the plaintiff does not have standing. Standing is a personal stake in the outcome of the litigation. The Federated States of Micronesia Supreme Court has stated it this way: "[t]he controversy must be definite and concrete, touching the legal relations of the parties having adverse interests." Ponape Chamber of Commerce v Nett Municipal Government 1 FSM Intrm 389, 401 (Pon. 1984) The issues here are whether Benjamin has a personal interest in this lawsuit and whether the parties have a concrete dispute.

     Benjamin was in possession of Yesresr when the road was built. For the purposes of this motion, Benjamin did not give permission to the State to enter the property. By building the road and destroying the trees, the State interferred with Benjamin's occupancy. With this llawsuit, Benjamin wants to receive compensation for the damages caused by that interference. This is a viable interest which can support a lawsuit.

     In his complaint, Benjamin alleged that the State committed trespass, breach of contract, an unlawful taking and violations of the equal protection and due process clauses. The

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State denied these allegations. There is a concrete dispute between these parties.

     For these reasons, I find that Benjamin has standing to bring this lawsuit.


     In conclusion, I find that Benjamin has at least a possessory interest in part of Yesresr and he has standing to bring this lawsuit. I am therefore denying this motion.


     Dated: Oct 26, 1988                    /s/
                                        Harry H. Skilling
                                        Chief Justice