Church of Jesus Christ of the Latter Day Saints v Esiron [2004] FMSC 37; 13 FSM Intrm. 99a (Chk. 2004) (28 December 2004)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite case as Church of Jesus Christ of the Latter Day Saints v Esiron, [2004] FMSC 37; 13 FSM Intrm. 99a (Chk. 2004)

CHURCH OF JESUS CHRIST OF THE LATTER DAY SAINTS,
Appellant/Plaintiff,

vs.

KONIT ESIRON,
Appellee/Defendant.

__________________________________________

CIVIL ACTION NO. 1990-1000

MEMORANDUM AND ORDER OF REMAND

Argued: October 26, 2004
Decided: December 28, 2004

APPEARANCES:

For the Appellant:
Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Appellee:
Midasy O. Aisek, Esq.
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

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HEADNOTES

Constitutional Law - Title to Land
Noncitizens cannot acquire title to land, but leasing land for 99 years does not constitute acquiring title to land. Church of the Latter Day Saints v. Esiron, [2004] FMSC 37; 13 FSM Intrm. 99a, 99d (Chk. 2004).

Constitutional Law - Title to Land
That a citizen-buyer obtains the funds used to acquire title to land from a noncitizen does not affect the citizen-buyer’s title to the land. To hold otherwise would throw all land sales, and land titles derived from them, into question because there is no way to determine from the land records the funds’ source. Church of the Latter Day Saints v. Esiron, [2004] FMSC 37; 13 FSM Intrm. 99a, 99d-99e (Chk. 2004).

Property - Registered Land
The Land Commission has no authority to reopen a 1981 determination of ownership that is final and res judicata, but it must determine the land’s exact boundaries before it can issue a certificate of title. Church of the Latter Day Saints v. Esiron, [2004] FMSC 37; 13 FSM Intrm. 99a, 99e (Chk. 2004).

Property - Adverse Possession; Property - Registered Land; Statutes of Limitation

[2005] FMSC 17; [13 FSM Intrm. 100]

Adverse possession is not a claim that can be made against registered land, or land that has been one step (determination of boundaries) away from being registered land since 1981, and the filing of a trespass suit tolls (suspends) any running of the time period needed to assert an adverse possession claim. Church of the Latter Day Saints v. Esiron, [2004] FMSC 37; 13 FSM Intrm. 99a, 99e (Chk. 2004).

Property - Registered Land
In light of the appellate court’s insistence that the Land Commission should have the primary responsibility for determining, surveying, and certifying the land’s exact final boundary, and the court’s general unsuitability to perform those functions, the court will remand the case to the Land Commission to perform this work. Church of the Latter Day Saints v. Esiron, [2004] FMSC 37; 13 FSM Intrm. 99a, 99e (Chk. 2004).

Evidence - Witnesses
A party is entitled to question any witness as to the basis of his knowledge. This is relevant evidence. Thus when the history of the land claim is relevant, an attorney should not be prevented from asking a witness about his family’s claim to the land and why his testimony on that subject differed from that of his father. Any witness may be impeached. Church of the Latter Day Saints v. Esiron, [2004] FMSC 37; 13 FSM Intrm. 99a, 99e, 99f (Chk. 2004).

Property - Registered Land
Since a certificate of title must describe the land’s exact boundaries, the Land Commission must, before it can issue a certificate of title, locate, survey, and certify all of the boundaries, which must be as they existed when its determination of ownership was made. The certificate must also show that it is subject to a 99-year lease, if that lease was, is, or becomes properly recorded. Church of the Latter Day Saints v. Esiron, [2004] FMSC 37; 13 FSM Intrm. 99a, 99f (Chk. 2004).

Evidence
A certified map is conclusive only as to the location and boundaries of the land within it. It is not conclusive as to the boundaries and locations of other parcels of land, although it may be some evidence. Church of the Latter Day Saints v. Esiron, [2004] FMSC 37; 13 FSM Intrm. 99a, 99f (Chk. 2004).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

This is an appeal from a Chuuk Land Commission decision entered October 30, 2003. This case was before the Land Commission pursuant to the instruction of the FSM Supreme Court appellate division. Kapas v. Church of Latter Day Saints, 6 FSM Intrm. 56 (App. 1993). That appellate division opinion required the trial division to remand consideration of four matters to the Chuuk Land Commission. Id. at 61.

Since the October 30, 2003 Land Commission decision neither properly addressed nor resolved any of the four matters, the case is again remanded to the Land Commission with instructions to and directions on how to address and resolve the matters presented. The court’s reasoning and instructions follow.

I. Questions Presented by the Appellant

The appellant, Church of Jesus Christ of the Latter Day Saints, presents a dozen assignments of error by the Land Commission in that: 1) its decision contained erroneous conclusions of law; 2) it contained clearly erroneous determinations of fact; 3) it was based on an erroneous determination that Esiron Kapas’s appeal of the 1982 Land Commission determination of ownership of Nepunuset was still pending; 4) it ignored the res judicata effect of the 1982 Land Commission determination

[13 FSM Intrm. 101]

that Esiron Kapas did not own Nepunuset; 5) it failed to establish the boundary between Nepunuset and Neanenong; 6) it exceeded its power by determining that Esiron Kapas was the owner of Nepunuset when that was not an issue that was before the Land Commission; 7) it failed to reconcile the 1962 certified map and the 1972 Land Commission map; 8) it failed to determine all of Nepunuset’s boundaries; 9) it failed to reconcile Nepunuset’s location in its April 2, 1981 determination of ownership with the 1962 and 1972 maps; 10) its determination of Nepunuset’s boundaries and ownership were not based in any manner on law or fact; 11) the appellant has a leasehold interest in Nepunuset, which does not conflict with any constitutional prohibitions on land ownership; and 12) the appellant cannot be legally or equitably estopped from making its claim because the Land Commission has taken ten years to make its decision.

II. Background

In 1972, when the area in Sapuk, Weno was surveyed, both Esiron Kapas and Kintaro Anes and his brothers claimed land known as Nepunuset. On April 2, 1981, the Truk Land Commission issued a determination of ownership that "Lot 63363 known as Nepunuset situated in Sapuk village, Moen Island, Truk State" was owned by "Kintaro Anes and his brothers" in fee simple. Esiron Kapas appealed that determination to the Trust Territory High Court. That appeal, Civil Action No. 54-81, was dismissed on May 4, 1982. No certificate of title has ever been issued for Nepunuset.

On September 3, 1985, the Anes brothers sold a portion of Nepunuset to Fujita Peter, purported to be 0.46 acres in size. On September 4, 1985, Fujita Peter, a member and president of the Church of Jesus Christ of the Latter Day Saints, leased the land to the church for 99 years. On January 18, 1990, the lessee church filed suit in the FSM Supreme Court against Esiron Kapas, alleging that Kapas was interfering with its use of the land it had leased from Fujita Peter; that Kapas was occupying at least part of the land and building structures on it; and that Kapas still claimed ownership of the leased land. The suit sought to enjoin Kapas and members of his clan and anyone acting under his direction and authority from trespassing on the church’s leasehold and interfering with the church’s use of it. Kapas contested the suit, but did not dispute the ownership of Nepunuset. He claimed that the land that the church believed was the portion of Nepunuset it had leased was actually a portion of his lineage land called Neanenong.

The trial court entered its judgment on January 24, 1992, granting the plaintiff church the relief it sought. It ruled that the boundaries of the portion of Nepunuset leased by the church were those claimed by the church. Kapas appealed to the FSM Supreme Court appellate division. On May 14, 1993, the appellate division vacated the trial court decision. Kapas, 6 FSM Intrm. at 61. It held that it was the Land Commission’s responsibility to make a final boundary determination and to certify the survey map with respect to Nepunuset because, under the doctrine of primary jurisdiction, the case’s central dilemma - the issue of Nepunuset’s boundaries - was for the Land Commission to decide. Id. at 60.

The appellate division therefore remanded the case to the trial court with instructions for it to refer four matters to the Chuuk Land Commission: "(1) Determination of the exact boundaries of Nepunuset. (2) Determination of the location of Neanenong in relation to Nepunuset. (3) Certification of a survey map for Nepunuset, resolving the discrepancies between the 1962 and 1972 survey maps. (4) Issuance of a certificate of title for Nepunuset." Id. at 61. The appellate division added that "[i]n light of the fact that twenty years ha[d] passed without certifying a survey map for Nepunuset or issuing a certificate of title, the Land Commission [wa]s further instructed to complete its work within one year . . . ." <

The Lahe Land Commission rendered its decision on October 30, 2003. It held that there was a house belonging toon Kaituat Nepunuset and a graveyard belonging to Esiron Kapas on Neanenong; that that Nean Neanenongenong is adjacent to Nepunuset; that it would give effect only to the 1962 map because it was certified and would disregard the 1972 map; and that, quoting the FSM Constitutional provision barring non-FSM citizens from acquiring title to land in

[13 FSM Intrm. 102]

the FSM, the Mormon church should not own land in the FSM and therefore the "party of Esiron Kapas" owned Nepunuset. The Land Commission concluded that "the Certificate of Title on Nepunguset [sic] should goes [sic] to Esiron Kapas that he is the real landowner."

The church then timely appealed to this court. The church asks that the Land Commission decision be vacated. It also asks this court to rule on the four matters that the appellate division wanted the Land Commission to resolve (but which, in its view, the Land Commission failed to do) because courts are permitted by statute, 67 TTC 105, to resolve such issues in land registration areas if a showing of "special cause" is made. The church contends that the Land Commission’s long delay in rendering an opinion and then its rendering an erroneous opinion constitutes such special cause.

III. Discussion

The appellee, Konit Esiron,^[1] urges that the Land Commission decision be affirmed. He contends that Nepunuset is located by the main road close to the shoreline and that Neanenong is adjacent to it. He further contends that the Land Commission should not issue a certificate of title to Fujita Peter because the church bought Nepunuset, not Peter. For this assertion, he relies on the fact that Peter received the funds to purchase Nepunuset from the church. Esiron also argues that Esiron Kapas acquired at least a part of Nepunuset because he had occupied it for twenty years.

The Land Commission decided that since the church should not own land in the FSM and so concluded that Esiron Kapas should get the certificate of title to Nepunuset. This is an error of law and fact. That noncitizens cannot acquire title to land in the FSM, FSM Const. art. XIII, §;4, is a cs a correct statement of the law. However, leasing land for 99 years does not constitute acquiring title to land. See II J. of Micro. Con. Con. 709 ("after [a generation] all and in Micronesia will be o be owned only by Micronesian citizens. They may re-lease to non-Micronesian citizens but as far as ownership is concerned, only Micronesians can own land."); see also I J. of Micro. Con. Con. 417 (1,999-year lease does not violate constitutional prohibition, FSM Const. art. XIII, ټ5, againsgainst indefinite land lease agreements).

The church has not acquired title to Nepunuset. It has only leased it. The church appears in this action, in both this court ae Land Commission, as the lthe lessee, not as a claimant to or owner of, Nepunuset.

Although the church does not claim to have acquired title to Nepunuset, Esiron contends that the church, not Fujita Peter, has actually bought Nepunuset. He bases this contention on the fact that the church provided the funds for Peter to buy Nepunuset.

Whether a citizen-buyer obtains the funds used to acquire title to land from a noncitizen does not affect the citizen-buyer’s title to the land. See Ferreira v. Mafnas, [1993] USCA9 2547; 1 F.3d 960 (9th Cir. 1993) (under similar Northern Marianas prohibition of non-CNMI citizens acquiring title to land, citizen buyers obtaining purchase funds from foreign lessees does not invalidate the sale to the citizen or a later lease to foreigners). Furthermore, to hold otherwise would throw all land sales, and land titles derived from them, into question because there is no method for determining from the land records the source of the buyer’s funds.

Furthermore, and most importantly, the Land Commissions’s April 2, 1981 determination of ownership of Nepunuset is final and is res judicata. The Land Commission has no authority to reopen that determination. It may only determine and [13 FSM Intrm.103] identify the Anes brothers’ successors in interest since then. The sole purpose of this, and the previous remand, is for the Land Commission to determine, locate, and certify all of Nepunuset’s boundaries so that a certificate of title can be issued for Nepunuset. Exact boundaries are needed before a certificate of title can be issued. See 67 TTC 106.

Esiron’s alleged occupation of a part of Nepunuset for more than twenty years cannot be used to acquire title to any or all of Nepunuset. This is an adverse possession claim. Adverse possession is not a claim that can be made against registered land, see In re Engichy[2003] FMSC 62; , 12 FSM Intrm. 58, 69 (Chk. 2003), and Nepunuset has been one step (determination of boundaries) away from being registered land since 1981, and the filing of this trespass suit in 1990 tolls (suspends) any running of the time period needed to assert an adverse possession claim, Chipuelong v. Chuuk, [1993] FMCSC 3; 6 FSM Intrm. 188, 194 (Chk. S. Ct. Tr. 1993) (if claim could have been made over twenty years before the action is brought, then the action can no longer be maintained, no matter how meritorious).

IV. Remedy

Accordingly, the Land Commission decision must be vacated. The church, however, asks that not only that the court vacate the Land Commission’s October 30, 2003 decision, but also that the court retain the case and complete the land registration process. The court declines to follow this path.

In light of the appellate court’s insistence that the Land Commission should have the primary responsibility for determining, surveying, and certifying an exact final boundary determination of Nepunuset, Kapas, 6 FSM Intrm. at 60, and the court’s general unsuitability to perform those functions, the court will remand the four matters to the Land Commission to perform this work.

Because the Land Commission decision appealed from appears, at least in part, to be the result of confusion or misunderstanding of the specific tasks before it, the court will provide specific directions and instructions to assist the Land Commission in undertaking the tasks assigned to it.

Since the case is being remanded to the Land Commission, a couple of other points the church has raised must be addressed. The church states that it was prevented during Toskachu Reseki’s testimony before the Land Commission from questioning him concerning the maps he had reviewed or was familiar with when he prepared a sketch of the land in question. The church also complains that it was not allowed to question Konit Esiron on his family’s claim to Nepunuset or why his testimony on the same subject seemed to contradict his father’s claim to Nepunuset.

No reason is apparent from the record why the church’s attorney should not have been permitted to follow these lines of questioning. A party is entitled to question any witness as to the basis of his knowledge. These are relevant evidence. The court can also see no reason why the church’s attorney should be prevented from asking Konit Esiron about his family’s claim to Nepunuset and why his testimony on that subject differed from that of Esiron Kapas, his father. Any witness may be impeached. And the history of the land claim is relevant. The Land Commission should have permitted these lines of questioning.

V. Directions on Remand

On remand, the Land Commission and the parties shall comply with the following instructions and directions. The Land Commission’s April 2, 1981 Determination of Ownership of Nepunuset in the Anes brothers is final. The Land Commission shall not reconsider or reopen that decision. Ownership of Nepunuset rests with the Anes brothers and their successors in interest.

[13 FSM Intrm. 104]

The end result of this remand to the Land Commission is that the Chuuk Land Commission shall issue a certificate of title for Nepunuset to Fujita Peter’s successors in interest^[2] as Fujita Peter (and his successors in interest) are the successors in interest to the Anes brothers (the adjudged landowners of Nepunuset) of that portion of Nepunuset sold to Fujita Peter. The certificate of title for Nepunuset shall describe Nepunuset’s exact boundaries. It shall also show that the Church of Jesus Christ of the Latter Day Saints holds a 99-year lease that started September 4, 1985, 67 TTC 117(1)(c) (leases not exceeding a year do not have to be shown on a certificate of title); 67 TTC 119(1) (encumbrances must be noted on the certificate of title), if that lease was, is, or becomes properly recorded with the Land Commission. The Land Commission shall not inquire into or concern itself with the source of the funds that Fujita Peter used to buy Nepunuset.

Before the Land Commission can issue a certificate of title for Nepunuset, the Land Commission must locate, survey, and certify all of its boundaries. The Land Commission shall determine those boundaries as they existed in 1981 when the Land Commission’s determination of ownership was made. It shall also determine the boundaries of the land sold in 1985 to Fujita Peter, if that sale involved a smaller amount of Nepunuset than was determined owned by the Anes brothers. The 1962 certified map is conclusive only as to the location and boundaries of Neuorau No. 1. It is not conclusive as to the boundaries and locations of other parcels of land, although it may be considered as some evidence. The Land Commission must not disregard its 1972 uncertified map, but must consider it as some evidence and attempt to reconcile it with the 1962 map. Any party may inquire into the basis for any maps or sketches used as evidence in the Land Commission proceedings. A party generally may inquire into the basis of a witness’s knowledge. Specifically, the church’s attorney may inquire of Konit Esiron why his testimony concerning Nepunuset differs from that of Esiron Kapas, his father, through whom he claims and apparently from whom his knowledge derives. Both parties are entitled to have representatives present during all proceedings involving determining, locating, and surveying Nepunuset’s boundaries, including all field investigations.

In order to determine, locate, and survey exactly all the boundaries of Nepunuset, the Land Commission must determine, locate, and survey the boundaries of all adjoining parcels as they relate to Nepunuset. It must then prepare and certify a survey map for Nepunuset. Once all that is done, the Land Commission shall then issue a certificate of title for Nepunuset showing Fujita Peter’s successors in interest (whoever they might be) as owners of Nepunuset subject to a 99-year lease, starting September 4, 1985, held by the Church of Jesus Christ of the Latter Day Saints.

Mindful of the appellate court’s instruction that the Land Commission was to complete its work in one year, Kapas, 6 FSM Intrm. at 61, the court instructs the Land Commission to begin work forthwith. The court hereby sets a hearing for 9:30 a.m., Monday, June 27, 2005, at which the parties and the Senior Land Commissioner shall be present to report on what progress has been made and what steps they are taking to complete the task.

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[13 FSM Intrm. 105]

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^[1] Esiron Kapas passed away while this case was pending in the Land Commission. Konit Esiron is his son and successor-in-interest. If, as was pled by Esiron Kapas, the land involved is lineage land, it is unclear how Konit Esiron became Esiron Kapas’s successor-in-interest.
^[2] The court understands that Fujita Peter passed away while this matter was pending in the Land Commission.