Kiniol v Kansou [2004] FMSC 1; 12 FSM Intrm. 335 (Chk. 2004) (10 February 2004)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Kiniol v. Kansou, [2004] FMSC 1; 12 FSM Intrm. 335 (Chk. 2004)

[2004] FMSC 1; [12 FSM Intrm. 335]

CHONSY T. KINIOL and TIONIS KINIOL,
Plaintiffs,

vs.

NOAH KANSOU and FEDERATED STATES OF
MICRONESIA TELECOMMUNICATIONS CORPORATION,
Defendants.

CIVIL ACTION NO. 2003-1006

ORDER

Dennis K. Yamase
Associate Justice

Decided: February 10, 2004

APPEARANCE:

For the Defendant (FSM Telecom. Corp.):
Craig D. Reffner, Esq.
Law Office of Fredrick L. Ramp
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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HEADNOTES

Torts - Trespass
Trespass actions determine who has a better right to possession of the land. Kiniol v. Kansou, [2004] FMSC 1; 12 FSM Intrm. 335, 336 (Chk. 2004).

Civil Procedure - Parties
When an entity is in possession of a plot of land because its tower sits on it, and the plaintiffs seek relief against it, and since it has an interest in maintaining its possession of the plot, it is, or should be, a party-defendant. Kiniol v. Kansou, [2004] FMSC 1; 12 FSM Intrm. 335, 336 (Chk. 2004).

Property - Land Commission; Torts - Trespass
When title to land in a designated registration area becomes an issue in a case involving damage claims for trespass, a court may remand the question of ownership to the land commission to be determined within a limited time. Once the land commission has determined ownership, the court may proceed because more than an interest in land is at stake, and the land commission can only adjudicate interests in land. Kiniol v. Kansou, [2004] FMSC 1; 12 FSM Intrm. 335, 336 (Chk. 2004).

Property - Land Commission
When the plaintiffs have not shown any special cause why court action is desirable before the land commission can determine the boundary between the plaintiffs’ and the defendants’ land, the issue

[12 FSM Intrm. 336]

of the land’s boundaries will be remanded to the land commission. Kiniol v. Kansou, [2004] FMSC 1; 12 FSM Intrm. 335, 336 (Chk. 2004).

Property - Land Commission; Torts - Trespass
When the issue of the location of the boundary between the plaintiffs’ land and the defendant’s land is remanded to the Chuuk Land Commission, the owner of the tower on the land with the defendant’s permission is not a party to the remanded Land Commission proceedings as that proceeding only concerns title, not trespass to or possession of, land. But it remains a party to the trespass action in court. Kiniol v. Kansou, [2004] FMSC 1; 12 FSM Intrm. 335, 337 (Chk. 2004).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

This comes before the court on two issues raised by the court - whether FSM Telecommunications Corporation ("Telecom") is a party to this action and whether the issue of the land boundaries between the plaintiffs and Noah Kansou should be remanded to the Chuuk Land Commission for determination there. The court concludes that Telecom is a party and that the boundary issue should be decided by the Land Commission. The court’s reasoning follows.

This action involves a small plot of land on which Telecom has located, with Kansou’s permission, a communications tower used to provide cell phone service in Chuuk. The plot is located in Sapuk, on the island of Weno. The plaintiffs allege that some time in the past the boundary between their land and that now owned by defendant Kansou was altered so that the plot where the tower is located is their property and not Kansou’s.

As relief, the plaintiffs have asked that they be declared the true landowners, that Kansou be evicted from the plot, that the court, using its injunctive powers, order Telecom’s tower removed, and that they be paid damages. Among other things, the plaintiffs characterize their action as one for trespass. Trespass actions determine who has a better right to possession of the land. See Rosario v. College of Micronesia-FSM, [2003] FMSC 10; 11 FSM Intrm. 355, 359 (App. 2003); Nelson v. Kosrae, [1998] FMSC 22; 8 FSM Intrm. 397, 403 (App. 1998); Marcus v. Truk Trading Corp., [2001] FMSC 33; 10 FSM Intrm. 387, 390 (Chk. 2001); Ikanur v. Director of Educ., [1995] FMCSC 8; 7 FSM Intrm. 275, 277 (Chk. S. Ct. Tr. 1995); Sana v. Chuuk, [1995] FMCSC 11; 7 FSM Intrm. 252, 254 (Chk. S. Ct. Tr. 1995). Currently, Telecom is in possession of the plot because its tower sits on it. Since the plaintiffs seek relief against Telecom, and since Telecom has an interest in maintaining its possession of the plot, Telecom is, or should be, a party-defendant.

The plaintiffs also claim that they should be awarded title to the plot and the boundary line placed where they claim it to be. All of the island of Weno has been designated a land registration area. When title to land in a designated registration area becomes an issue in a case involving damage claims for trespass, a court may remand the question of ownership to the land commission to be determined within a limited time. Pau v. Kansou, [1998] FMSC 38; 8 FSM Intrm. 524, 527 (Chk. 1998). Once the land commission has determined ownership, the court may proceed because more than an interest in land is at stake, and the land commission can only adjudicate interests in land. Id. When the plaintiffs have not shown any special cause why court action is desirable before the land commission can determine the boundary between the plaintiffs’ and the defendants’ land, the issue of the land’s boundaries will be remanded to the Land Commission. Small v. Roosevelt, Innocenti, Bruce & Crisostomo, [2001] FMSC 31; 10 FSM Intrm. 367, 370 (Chk. 2001).

[2004] FMSC 11; [12 FSM Intrm. 337]

The issue of the location of the boundary between the plaintiffs’ land and Kansou’s land is accordingly remanded to the Chuuk Land Commission. The Chuuk Land Commission, following its procedures, shall determine the proper boundary between the plaintiffs’ land and Kansou’s. It shall make this determination by June 11, 2004, and certify its findings to the parties and this court. The parties and the Land Commission shall submit a preliminary progress report by April 30, 2004. Once that boundary has been determined, the action in this court can continue.

Telecom is not a party to the proceedings remanded to the Land Commission as that proceeding only concerns title, not trespass to or possession of, land. Telecom remains a party to the trespass action in this court.

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