Palik v Kosrae [1991] FMKSC 2; 5 FSM Intrm. 147 (Kos. S. Ct. Tr. 1991) (13 August 1991)

5 FSM Intrm. 147 (Kos. S. Ct. Tr. 1991)

KOSRAE STATE COURT
TRIAL DIVISION

KSSC CIVIL ACTION NO. 17-90

DONNIE PALIK
Plaintiff

V

KOSRAE STATE
Defendant

OPINION: August 13, 1991

BEFORE: The Honorable Harry H. Skilling, Justice Pro Tempore, Kosrae State Court

APPEARANCES: For the Plaintiff: Delson Ehmes, Directing Attorney; For the Defendant: Glenn Jewel, Assistant Attorney General, Kosrae

HEADNOTES

Constitutional Law - Due Process; Property - Public Lands
Plaintiff's due process rights were not violated where the government did not use condemnation procedures specified in 67 TTC 451, but followed land registration procedures to obtain title and treated the plaintiff fairly and in the same way it treated other landowners. Palik v. Kosrae, 5 FSM Intrm. 147,152-54 (Kos. S. Ct. Tr. 1991).

Property - Easements
In order for the state to acquire an easement by prescription, the state's use must be open, notorious, hostile, and continuous for the statutory period under a claim of right. Palik v. Kosrae, 5 FSM Intrm. 147, 154 (Kos. S. Ct. Tr. 1991).

Equity - Laches
Laches is a tool courts use to limit a party's rights when they have not been timely asserted, such that it is unfair for the court to now redress them. The period of time may be less than the statutory limitations period and each case must be judged on a case by case basis for fundamental fairness. Palik v. Kosrae, 5 FSM Intrm. 147, 155 (Kos. S. Ct. Tr. 1991).

Equity; Property - Easements
Encroachment of a road on adjacent parcels is a trespass when the state has not used the property without interruption for the statutory period, nor for a period of time that would make the assertion of plaintiff's rights unfair. Palik v. Kosrae, 5 FSM Intrm. 147, 156 (Kos. S. Ct. Tr. 1991).

Property - Easements
Utility poles do not constitute trespass on land when the owner consented to their placement, accepted compensation for crop damage, and signed an agreement which effectively granted an easement for placement of utility poles. Palik v. Kosrae, 5 FSM Intrm. 147, 155-56 (Kos. S. Ct. Tr. 1991).

COURT'S OPINION

HARRY H. SKILLING, Justice Pro Tempore:

STATEMENT

This matter came before me for trial on Tuesday, August 13, 1991 on the issue of defendant's liability. Present during the trial were counsel for plaintiff, Delson Ehmes, MLSC Kosrae Office, and Glenn Jewel, Assistant Attorney General, Kosrae. The matter was taken under advisement, and this opinion is issued on the question of defendant's liability, the damages portion having been bifurcated pursuant to the stipulation of the parties.

Plaintiff claims that she has been damaged by defendant's activities in obtaining title to and use of certain properties in Lelu Municipality, and citing the following causes of action:

1. Trespass

2. Cloud on Title

3. Taking of Property without Due Process

4. Violation of 67 TTC, Chapter 9

5. Violation of Trusteeship Agreement, Article 6(2)

Defendant Kosrae State, in its answer to the complaint alleged the following affirmative defenses:

1. Statute of Limitations

2. Waiver, Laches, and Estoppel

3. Sovereign Immunity

4. Failure to State Cause of Action Against Commission

5. Title in State by Prescriptive Easement

FINDINGS OF FACT

[1] The properties involved in this action are known as Pukusrik Te and Insiaf. Both properties are located in Lelu Municipality, Kosrae State. Prior to 1971, the properties were owned and controlled by Musrasrik Tinteru, plaintiff's father.

[2] In 1975, a notice of hearing (formal) was posted at the municipal office by the Land Commission, and on the property involved. Notice of hearing was served upon the two surviving siblings of Musrasrik, Diana and Tarzan. Notices were served upon Diana on August 11, 1975.

[3] The Land Commission designated portions of Pukusrik Te as Parcel Nos. 031-K-02 and 032-K-02 (hereinafter "road parcels") and determined title in favor of the Trust Territory government after a formal hearing. Plaintiff was not present at the hearing. The road parcels have been continuously used as a road by Trust Territory and State Governments. After the determination of ownership was issued, neither the plaintiff nor the surviving siblings of Musrasrik Tinteru filed an appeal.

[4] Title to the remainder of Pukusrik Te and Insiaf was determined in favor of the heirs of Musrasrik. These parcels abut the road parcels (hereinafter "adjacent parcels).

[5] On May 12, 1984, the Trust Territory Government and plaintiff's husband entered into an agreement (Def. Ex. 10) whereby plaintiff would permit the placement of power poles on the adjacent parcels, and defendant would pay an agreed amount of money for crop damages. The amount of one hundred dollars was paid to cover a number of coconut trees at an agreed amount of $25.00 per tree.

[6] In the period between 1975 and present, the road constructed over the road parcels has wandered from the boundaries of the road parcels, resulting in an encroachment upon the adjacent parcels. The road parcels have been continuously used by the general public for over a period of fourteen years, and plaintiffs at all times had notice of such use, and took no legal action against either the previous or the present administration until the filing of this action by plaintiff. The boundary of the road varies with each grading of the road.

[7] On June 1, 1978, Land Commission issued a Certificate of Title on Parcel No. 032-K-02 in favor of Trust Territory Government [Def. Ex. 7], and on December 1, 1978, certificate of title on parcel no. 031-K-02 was issued in favor of the Trust Territory Government [Def. Ex. 8].

CONCLUSIONS OF LAW

[1] The notice given by the Land Commission on the road parcels to Diana and Tarzan sufficiently complied with 67 TTC section 110, and no appeal was filed; therefore, the determination of ownership in favor of defendant will stand. There is nothing in the record to reflect that such appeal was filed within the statutory provision of 120 days after Land Commission issued its determination on parcel nos. 031-K-02 and 032-K-02.