Akinaga v Heirs of Mike [2007] FMSC 64; 15 FSM Intrm. 391 (App. 2007) (22 October 2007)

FSM SUPREME COURT APPELLATE DIVISION
APPEAL CASE NO. K3-2006

MASAKO AKINAGA,
Appellant,

vs.

HEIRS OF NENA MIKE and AGNES MIKE,
Appellees.
__________________________________________

OPINION

Argued: April 18, 2007
Submitted: July 6, 2007
Decided: October 22, 2007

BEFORE:

Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court
Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court

APPEARANCE:

For Appellant: Snyder H. Simon, Esq.
P.O. Box 1017
Tofol, Kosrae FM 96944

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HEADNOTES

Appellate Review  Dismissal

Dismissing an appeal on purely procedural grounds is a sanction normally reserved for severe disregard of the rules resulting in prejudice to the opposing party. Akinaga v. Heirs of Mike, [2007] FMSC 64; 15 FSM Intrm. 391, 394 (App. 2007).

Appellate Review  Decisions Reviewable

The FSM appellate rules, and the cases interpreting them, clearly enunciate that untimely filing of a notice of appeal deprives the appellate division of jurisdiction. Akinaga v. Heirs of Mike, [2007] FMSC 64; 15 FSM Intrm. 391, 395 (App. 2007).

Appellate Review  Notice of Appeal

The FSM appellate rules allow an appellant to request an extension for filing a notice of appeal up to 30 days in addition to the 42-day period following judgment, creating a 72-day maximum period for perfecting an appeal. Akinaga v. Heirs of Mike, [2007] FMSC 64; 15 FSM Intrm. 391, 395 (App. 2007).

Appellate Review  Decisions Reviewable

When the appellant's error was not one of timeliness but rather one of not filing in all the appropriate courts because the appellant timely filed her notice of appeal in the Kosrae State Court, and later did perfect her appeal within the extended 72-day period by properly filing her notice of appeal with the FSM Supreme Court appellate division 57 days after the Kosrae State Court's entry of judgment, the appeal is permissible, despite being directed to the wrong court, since the appeal: 1) was otherwise valid and timely; 2) steps were taken to correct the error; 3) the steps to correct the error were undertaken within the period of extension allowed by our rules; and 4) there was no prejudice to the opposing party. Akinaga v. Heirs of Mike, [2007] FMSC 64; 15 FSM Intrm. 391, 395 (App. 2007).

Appellate Review  Notice of Appeal; Attorney and Client  Admission to Practice

Although the better practice is to file the motion to appear pro hac vice simultaneously with the first filing in the FSM Supreme Court appellate division, it is not uncommon for unlicensed counsel to move for pro hac vice admission at a reasonable time after the filing of a notice of appeal, as meeting the rules' time constraints and thus protecting the client's interest is of paramount concern. Akinaga v. Heirs of Mike, [2007] FMSC 64; 15 FSM Intrm. 391, 395 (App. 2007).

Appellate Review  Decisions Reviewable; Attorney and Client  Admission to Practice

When no substantial activity took place on the appeal before counsel filed his motion for pro hac vice admission or before his full admission to the FSM Supreme Court bar after he passed the FSM bar examination and when that counsel did not submit the appellant's brief until he was fully licensed to appear before the appellate division as contemplated by Appellate Rule 46(a) thus complying with Appellate Rule 31(d)'s explicit mandate, which requires all briefs to be signed by licensed attorneys admitted to the FSM Supreme Court, the appeal was not precluded either by the appellant's flawed notice of appeal or the fact that her counsel was not admitted to practice before the FSM Supreme Court at the time the notice of appeal was filed in the FSM Supreme Court. Akinaga v. Heirs of Mike, [2007] FMSC 64; 15 FSM Intrm. 391, 395-96 (App. 2007).

Appellate Review  Standard of Review  Civil Cases

All issues of law are reviewed de novo on appeal. Akinaga v. Heirs of Mike, [2007] FMSC 64; 15 FSM Intrm. 391, 396 (App. 2007).

Property  Easements

A permissive land use right, often referred to as an easement or right of way, constitutes a valid property interest in Kosrae. Land use rights in Kosrae are frequently granted verbally, particularly when the land use agreements are between family members. Akinaga v. Heirs of Mike, [2007] FMSC 64; 15 FSM Intrm. 391, 397 (App. 2007).

Appellate Review  Standard of Review  Civil Cases

When the record provided by the appellant on appeal does not provide the court with the basis for the trial court findings, the appellate court must therefore presume the findings are correct because by not providing an adequate record, the appellant cannot successfully challenge these findings. Akinaga v. Heirs of Mike, [2007] FMSC 64; 15 FSM Intrm. 391, 397 (App. 2007).

Property  Easements; Property  Registered Land

Kosrae State Code § 11.615(4), which governs the issuance of certificates of title, establishes that a preexisting easement or other right of way over the land remains appurtenant even if it is not described in the certificate; and passes with the land until cut off or extinguished in a lawful manner independent of the certificate. Akinaga v. Heirs of Mike, [2007] FMSC 64; 15 FSM Intrm. 391, 397 (App. 2007).

Judgments; Property  Easements

When the Trust Territory judgment that the appellant relies upon explicitly states that the judgment will not affect any rights of way there may be over the lands in question and when it is undisputed that the appellees were granted their right of way prior to the Trust Territory judgment, the Trust Territory judgment did nothing to alter the preexisting right of way. Akinaga v. Heirs of Mike, [2007] FMSC 64; 15 FSM Intrm. 391, 397-98 (App. 2007).

Appellate Review

An argument raised for the first time at appellate oral argument is improperly raised. Akinaga v. Heirs of Mike, [2007] FMSC 64; 15 FSM Intrm. 391, 398 (App. 2007).

Property  Easements

In general, an easement granted without a specified term is considered to be of permanent duration and may continue in operation forever and is not extinguished by the grantor's death. Akinaga v. Heirs of Mike, [2007] FMSC 64; 15 FSM Intrm. 391, 398 (App. 2007).

Constitutional Law  Due Process

An argument that the trial court denied a litigant due process by depriving her of her property without allowing her to be heard is without merit when the trial court decision being appealed was handed down in response to the litigant's own summary judgment motion, through which she is assumed to have stated her position, and when a hearing was held on the motion at which the litigant was represented by counsel. She was afforded full opportunity to be heard. Akinaga v. Heirs of Mike, [2007] FMSC 64; 15 FSM Intrm. 391, 398 (App. 2007).

Property  Easements; Torts  Trespass

A grant of a right of way does not constitute a trespass because trespass laws are intended to protect those who have a right to possess and use land, and the doctrine of trespass does not act to prohibit the grantees' usage of land provided that they stay within the easement or right of way granted to them. Akinaga v. Heirs of Mike, [2007] FMSC 64; 15 FSM Intrm. 391, 398 (App. 2007).

Civil Procedure  Res Judicata

The doctrine of res judicata applies to Trust Territory High Court decisions, and when, the Kosrae State Court's order does not run afoul of the Trust Territory judgment, it will not be overturned on that basis. Akinaga v. Heirs of Mike, [2007] FMSC 64; 15 FSM Intrm. 391, 398 (App. 2007).

Custom and Tradition  Kosrae

Kosrae State Code § 6.3ohibits the trial court'ourt's application of custom and tradition unless there is satisfactory evidence of the tradition or cusAkinaga v. Heirs of Mike, [2007] FMSC 64; 15 FSM Intrm. 391, 398 (App. 2007).

Appellapellate Review  Standard of Review  Civil Cases

The appellate court may affirm lower court judgments on grounds other than those employed by the lower court. Akinaga v. Heirs of Mike, [2007] FMSC 64; 15 FSM Intrm. 391, 399 (App. 2007).

Appellate Review  Standard of Review  Civil Cases; Custom and Tradition  Kosrae; Property  Easements

When the appellees' general right to enter the land to tend to existing burial sites is established by the undisputed facts but the same cannot be said of the ten-foot buffer zone that was ordered to be maintained around the exiting burial sites since the trial court did not elaborate as to the exact operation of this "perimeter"; when the undisputed facts which establish the right of way do not support such a precisely defined area being designated; when the case relied upon by the trial court is factually distinguishable and does not alone justify the trial court's mandate of such a large buffer zone; and when the invocation of custom remains as the only basis for the trial court's order but the trial court was not provided supporting evidence of a custom or tradition involving such a specifically demarcated perimeter around burial sites, this single issue will be remanded to the trial court with instructions to strike the portion of its order that provides a 10-foot perimeter around the existing burial sites. The trial court may then receive supporting evidence of custom or tradition about the size of perimeters around graves and thereafter may enter an amended order based upon its findings. Akinaga v. Heirs of Mike, [2007] FMSC 64; 15 FSM Intrm. 391, 399 (App. 2007).

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COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

Masako Akinaga appeals the Kosrae State Court's January 27, 2006 order granting, in part, summary judgment as well as the Kosrae State Court's February 20, 2006 order denying her Motion to Reconsider and Modify Order. The trial court ruled that Akinaga must give the Heirs of Nena and Agnes Mike access to their existing burial sites on the parcel of land in Kosrae identified as Fwinfoko and that Akinaga must maintain a ten-foot perimeter around the existing burial sites to allow for their care and maintenance. For the reasons that follow, we affirm, in part, the trial court's decision and vacate and remand, in part, for further proceedings.

I. Jurisdictional Issues

As a preliminary matter, subsequent to the April 18, 2007 oral argument, we sua sponte issued a Supplemental Briefing Request on May 14, 2007. In this Supplemental Briefing Request, we asked the parties to provide additional briefing on two procedural issues: (1) whether our jurisdiction over this appeal is affected by Akinaga's failure to file her March 30, 2006 Notice of Appeal with the proper court; and (2) whether counsel for Akinaga should have been allowed to commence this appeal in light of his bar admission status. On July 6, 2007, Akinaga submitted additional briefing on these issues as requested. The Heirs of Nena and Agnes Mike did not submit anything. We then considered the matter submitted for our decision.

Akinaga filed her first Notice of Appeal on March 30, 2006, 38 days after the Kosrae State Court's February 20, 2006 entry of the judgment from which she is appealing. While Akinaga filed this Notice of Appeal within 42 days of the Kosrae State Court's entry of judgment, as required by FSM Appellate Rule 4, she failed to file the Notice with both the Kosrae State Court and with a division of this Court, as required by Appellate Rule 3. Instead she filed the Notice only with the Kosrae State Court. Akinaga filed a second Notice of Appeal with this Court's appellate division in Pohnpei on April 18, 2006, 57 days following the Kosrae State Court's entry of judgment.

Tafunsak v. Kosrae, [1994] FMSC 24; 6 FSM Intrm. 467 (App. 1994) (single justice order) is the sole case that addresses this situation. In Tafunsak, the single justice denied appellees' motion to dismiss the appeal even though the appellant had mistakenly filed its notice of appeal only with the Kosrae State Court. The justice stated:

Dismissing an appeal on purely procedural grounds is a sanction normally reserved for severe disregard of the rules resulting in prejudice to the opposing party. The Court does not believe that the procedural error in this case warrants dismissal, particularly since the Court has allowed appeals in the past in Kosrae cases where notices was filed only in state court.

Tafunsak, 6 FSM Intrm. at 468 (citation omitted). The appellant in Tafunsak avoided a finding of prejudice to the opposing party because the improperly filed notice was nonetheless served on opposing counsel. Likewise, Akinaga served her March 30, 2006 Notice of Appeal on the opposing side in this matter. Akinaga took an additional step to cure the defect in her Notice by properly filing it with our appellate division in Pohnpei eighteen days after filing it with the Kosrae State Court. The appellant in Tafunsak did not make such an effort to correct its error, indicating that the leniency afforded in Tafunsak may be even more properly suited for this matter, although the single justice issuing that order put future appellants on notice that filing in both courts was required. Id. at 468-69. A review of relevant U.S. cases supports the conclusion that such an error does not deprive the appellate division of jurisdiction in this matter. See Phillips v. Johnson, 834 A.2d 938, 944 (Me. 2003) (appeal directed to wrong court); In re Guardianship of Breeahana C., 706 N.W.2d 66, 70 (Neb. Ct. App. 2005) (wrong court designated in notice of appeal); Richey v. Wilkins, [1964] USCA2 298; 335 F.2d 1, 4 (2d Cir. 1964) (filing notice of appeal in appellate, not district, court as required not grounds for dismissal when appellee not prejudiced thereby).

While our appellate rules, and the cases interpreting them, clearly enunciate that untimely filing of a notice of appeal deprives the appellate division of jurisdiction, the present situation involves a Notice of Appeal that was filed on time within the 42 days following judgment as prescribed by our rules. Akinaga's error was not one of timeliness but rather one of not filing in all the appropriate courts. Our appellate rules allow an appellant to request an extension for filing a notice of appeal up to 30 days in addition to the 42 day period following judgment, creating a 72 day maximum period for perfecting an appeal. FSM App. R. 4(a)(5). It is significant that Akinaga did perfect her appeal within this 72 day period by properly filing her Notice of Appeal with our appellate division 57 days following the Kosrae State Court's entry of judgment.

Accordingly, we rule that this appeal to this Court is permissible, despite being directed to the wrong court, since this appeal: (1) was otherwise valid and timely; (2) steps were taken to correct the error; (3) the steps to correct the error were undertaken within the period of extension allowed by our rules; and (4) there was no prejudice to the opposing party. If this situation recurs in the future, the appellant should take steps to cure the defect by seeking an extension of the time to appeal in the court appealed from. FSM App. R. 4(a)(5).

Concerning the bar admission issue, Akinaga's counsel was not licensed to appear before this Court when he filed the Notice of Appeal. Akinaga's counsel did file a Motion for Pro Hac Vice Admission on August 28, 2006. FSM Appellate Rule 46(a) states: "Attorneys and trial counselors admitted to practice law before the FSM Supreme Court pursuant to the court's rules for admission to practice are eligible to appear before the Supreme Court appellate division in accordance with these Rules of Appellate Procedure." It is not uncommon for unlicensed counsel to move for pro hac vice admission at a reasonable time subsequent to the filing of a notice of appeal, as meeting the time constraints imposed by the rules and thus protecting the client's interest is of paramount concern, although the better practice is to file the motion to appear pro hac vice simultaneously with the first filing in the FSM Supreme Court appellate division. In the present matter, no substantial activity took place on this appeal prior to counsel filing his Motion for Pro Hac Vice Admission and before his full admission to the FSM Supreme Court Bar on October 4, 2006 as a result of his passing the FSM Bar Examination. Moreover, counsel did not submit Akinaga's Brief until October 30, 2006, at which time he was fully licensed to appear before the appellate division as contemplated by Appellate Rule 46(a) and at which time he complied with the explicit mandate of Appellate Rule 31(d), which requires all briefs to be signed by licensed attorneys admitted to the FSM Supreme Court.

Under these circumstances, we conclude that this appeal was not precluded either by Akinaga's flawed Notice of Appeal or the fact that Akinaga's counsel was not admitted to practice before the FSM Supreme Court at the time the Notice of Appeal was filed in the FSM Supreme Court. Accordingly, the appeal will proceed upon the merits.

II. Procedural Background

On January 17, 2006, a hearing was held in Kosrae State Court on Plaintiff Masako Akinaga's Motion for Summary Judgment. On this same day, the trial court issued an order granting the summary judgment motion, in part, ruling that Akinaga is sole fee simple owner of two parcels of land identified as Fwinfoko. The trial court also ruled that Akinaga must give Defendants Heirs of Nena and Agnes Mike ("the Mikes") access to their existing burial sites on Fwinfoko and that Akinaga must provide a ten-foot perimeter around the existing burial sites to allow the Mikes to care for the burial sites. Akinaga filed a Motion to Reconsider and Modify Order on January 27, 2006, asking the trial court to remove from the ruling that portion which granted the Mikes rights and access to Fwinfoko for purposes of tending to their existing burial sites. On February 20, 2006, the trial court issued an order denying the motion to Reconsider and Modify Order. Akinaga v. Heirs of Mike, [2006] FMKSC 9; 14 FSM Intrm. 91 (Kos. S. Ct. Tr. 2006). Judgment was then entered and this appeal followed.

Akinaga filed an opening brief along with appendices. No responsive brief was filed. On April 18, 2007, oral argument was held in this matter at the FSM Supreme Court in Tofol, Kosrae. Akinaga failed to adhere to FSM Appellate Rule 30(a) by not including in her appendix all relevant and essential portions of the record, effectively limiting our review. In particular, Akinaga did not include the subject Motion for Summary Judgment filings or the June 27, 2005 preliminary injunction that the trial court relied upon in its February 17, 2006 order denying Akinaga's Motion to Reconsider and Modify Order.

III. Issues

(1) Did the trial court err as a matter of law in denying Akinaga full and complete right to ownership of Fwinfoko by granting to the Mikes the right to keep and tend to existing burial sites on Fwinfoko?

(2) Did the trial court err as a matter of law in failing to follow the prior decision of the Trust Territory High Court in Civil Actions 50, 53, and 54?

(3) Did the trial court err as a matter of law when it applied Kosraean custom in support of its decision absent such custom being established by satisfactory evidence?

IV. Standard of Review

All issues of law are reviewed de novo on appeal. Nanpei v. Kihara, [1995] FMSC 49; 7 FSM Intrm. 319, 323-24 (App. 1995).

V. Undisputed Facts

Masako Akinaga is the niece of Elise Akinaga. Agnes Mike is the adopted daughter of Elise Akinaga. Prior to World War II, Elise Akinaga granted verbal permission to Agnes Mike and her family to use a parcel of land in Kosrae identified as Fwinfoko, which was then owned by Elise Akinaga. Since then, the Mikes have used Fwinfoko for residential, farming, and family burial purposes. Prior to her death, Elise Akinaga never withdrew her permission for the Mikes to use Fwinfoko and never limited or prohibited the Mikes' use of Fwinfoko for burial sites.

On March 28, 1960, the Trust Territory High Court issued a judgment ("Trust Territory judgment") that Elise Akinaga and/or Masako Akinaga owned Fwinfoko. On February 28, 1986, the Kosrae Land Commission issued to Masako Akinaga a certificate of title for Fwinfoko.

VI. Discussion

A. Issue (1)

A permissive land use right, often referred to as an easement or right of way, constitutes a valid property interest in Kosrae. Sigrah v. Kosrae, [2004] FMKSC 20; 12 FSM Intrm. 531, 535 (Kos. S. Ct. Tr. 2002). Land use rights in Kosrae are frequently granted verbally, particularly when the land use agreements are between family members. James v. Lelu Town, [2002] FMKSC 9; 10 FSM Intrm. 648, 649 (Kos. S. Ct. Tr. 2002).

In its February 20, 2006 order denying Akinaga's Motion to Reconsider and Modify Order, the trial court made the following factual findings:

[Elise Akinaga] granted verbal permission many years ago to Agnes Mike and her family to use all three subject parcels. Agnes and Nena Mike and their heirs have used all three parcels for residential and farming purposes since World War II. Elise Akinaga never withdrew permission for the [Mikes] to use those parcels at any time before her death.

The [Mikes] have relied upon use of the three parcels for more than sixty years, and have planted short term and long term crops on the parcels. [The Mikes] have utilized the subject land to bury members of their family.

Akinaga v. Heirs of Mike, [2006] FMKSC 9; 14 FSM Intrm. 91, 92-93 (Kos. S. Ct. Tr. 2006) (quoting Akinaga v. Heirs of Mike, [2005] FMKSC 8; 13 FSM Intrm. 296, 298 (Kos. S. Ct. Tr. 2005)). These factual findings establish that Elise Akinaga granted a verbal land use right to her adopted daughter's family, the Mikes, prior to her death and prior to Fwinfoko's ownership passing from Elise Akinaga to Masako Akinaga. Again, the record provided by Akinaga on appeal does not provide us with the basis for these trial court findings and we must therefore presume they are correct. Sellem v. Maras, [1999] FMCSC 4; 9 FSM Intrm. 36, 38 (Chk. S. Ct. App. 1999). By not providing an adequate record, Akinaga cannot successfully challenge these findings. Cheida v. FSM, 9 FSM Intrm.183, 189 (App. 1999); Pohnpei v. AHPW, Inc., [2005] FMSC 6; 13 FSM Intrm. 159, 161 (App. 2005). Regardless, Akinaga has not posed any challenge to the trial court's findings in this regard and does not dispute that the land use right was granted to the Mikes.

Instead, Akinaga rests her argument upon her Certificate of Title to Fwinfoko and the Trust Territory judgment in which she and/or Elise Akinaga were established as Fwinfoko's owners. Neither the Certificate of Title nor the Trust Territory judgment extinguish or supersede the land use right granted to the Mikes.

Kosrae State Code § 11.615(hich governs the isse issuance of certificates of title, establishes that a preexisting easement or other right of way over the land (a) remains appurtenant eveit is not described in the certificate; and (b) passes with with the land until cut off or extinguished in a lawful manner independent of the certificate. It is undisputed that the Mikes were granted their right of way prior to Akinaga being issued her Certificate of Title. Accordingly, Akinaga's Certificate of Title does not extinguish the Mike's right of way and Akinaga's argument fails.

The Trust Territory judgment that Akinaga relies upon explicitly states that "[t]his judgment shall not affect any rights of way there may be over the lands in question." Trust Territory High Court Civil Actions Nos. 50, 53, 54. It is undisputed that the Mikes were granted their right of way prior to the Trust Territory judgment. Accordingly, the Trust Territory judgment does nothing to alter the preexisting right of way granted to the Mikes. Akinaga's argument fails.

At oral argument, Akinaga raised, for the first time, the argument that the Mikes' right of way was extinguished upon the death of Elise Akinaga. Putting aside the procedural deficiency in not raising this issue prior to oral argument, it is noteworthy that Akinaga presents no legal support for her proposition that a right of way extinguishes upon the death of the grantor. "In general, an easement granted without a specified term is considered to be of permanent duration and may continue in operation forever." 25 Am. Jur. 2d Easements and Licenses, § 108, at 679 (ed. 1996). It . It is undisputed that Elise Akinaga did not withdraw permission for the Mikes' right of way prior to her death and there has been no evidence presented to suggest that the righway was ever made terminablinable upon the death of Elise Akinaga. Even this improperly raised arguments fails Akinaga.

Akinaga claims the trial court denied her due process by depriving her of her property without allowing her to be heard on the issue of her consent to the Mikes' usage of Fwinfoko. This argument is without merit as the trial court decision being appealed was handed down in response to Akinaga's own summary judgment motion, through which she is assumed to have stated her position. Indeed, a hearing was held on the Motion for Summary Judgment at which Akinaga was represented by her counsel. Akinaga was afforded full opportunity to be heard on the issues pertinent to this appeal.

Akinaga also suggests that the right of way granted to the Mikes constitutes a trespass. However, the trial court's undisputed actual findings establish that the Mikes have a right to possess and use Fwinfoko for the purposes of tending to burial sites. Because trespass laws are intended to protect those who have a right to possess and use land, the doctrine of trespass does not act to prohibit the Mikes' usage of Fwinfoko provided that they stay within the easement or right of way granted to them.

In sum, Akinaga has confused ownership of property with usage rights over property. Akinaga has cited case law indicating that ownership of land includes the right to expel others from the land. Eleija v. Edmond, [1999] FMKSC 10; 9 FSM Intrm. 175, 180 (Kos. S. Ct. Tr. 1999). While this generality may apply to challenges to Akinaga's control of Fwinfoko arising after she gained ownership, it cannot be invoked by Akinaga to disregard land use rights established prior to her acquisition of Fwinfoko. Akinaga's ownership of Fwinfoko is subject to the Mikes' right of way pursuant to statute, the explicit language of the Trust Territory judgment and common law principles.

B. Issue (2)

Akinaga is correct in her assertion that the doctrine of res judicata applies to Trust Territory High Court decisions. However, the trial court's order in this matter does not run afoul of the Trust Territory judgment. The Trust Territory judgment granted the Mikes some rights to use and control the use of Fwinfoko and the trial court's order is consistent with this ruling. Again, the Trust Territory judgment explicitly stated that it does not affect any rights of way already existing over the land. Accordingly, the trial court's affirmation of the Mikes' preexisting right of way over Fwinfoko does not violate or contradict the Trust Territory judgment.

C. Issue (3)

Akinaga is correct that Kosrae State Code § 6.303 bits the trial court'ourt's application of custom and tradition unless there is satisfactory evidence of the tradition or custom. However, as discussed above, the Mikes' right to enter Fwinfoko for the purpose of tending to existing burial sites was established when Elise Akinaga verbally granted the Mikes a right of way prior to Masako Akinaga taking ownership of the land. Hence, the proper or improper application of custom does not affect this ultimate question of whether the Mikes possess a valid right of way over Fwinfoko for the tending of existing burial sites. The existence of the right of way is established by the trial court's undisputed factual findings and, therefore, the trial court's affirmation of the Mikes' right of way is correct despite any potential flaw in the application of custom. We may affirm lower court judgments on grounds other than those employed by the lower court. Nahnken of Nett v. United States, [1996] FMSC 9; 7 FSM Intrm. 581, 589 (App. 1996).

While the Mikes' general right to enter Fwinfoko to tend to existing burial sites is established by the undisputed facts, the same cannot be said of the ten-foot buffer zone that Akinaga was ordered to maintain around the exiting burial sites. The trial court ordered Akinaga to "provide a 10 foot perimeter around existing burial sites to allow [the Mikes] to care for the burial sites." The trial court did not elaborate as to the exact operation of this "perimeter." If the restricted area means ten feet of space extending outward from all sides of the grave area, this would equal a roughly six hundred square foot area that Akinaga is excluded from using, not including the area occupied by the graves themselves. The undisputed facts which establish the Mikes' right of way do no support such a precisely defined area being designated for the Mikes' enjoyment and Akinaga's simultaneous restriction. Norita v. Tilfas, [2005] FMKSC 30; 13 FSM Intrm. 424 (Kos. S. Ct. Tr. 2005), relied upon by the trial court in its decision, is factually distinguishable from the present matter and does not alone justify the trial court's mandate of such a large buffer zone. Accordingly, the invocation of custom remains as the only basis for the trial court's order in this regard. Furthermore, the trial court was not provided supporting evidence of a custom or tradition involving such a specifically demarcated perimeter around burial sites. Therefore, this single issue is remanded to the trial court with instructions to strike the portion of its order that reads, "Plaintiff shall also provide a 10 foot perimeter around existing burial sites to allow Defendants to care for the burial sites." The trial court may then receive supporting evidence of custom or tradition, pursuant to Kosrae State Code § 6.303, about the size of etrimeters around graves and then may enter an amended order based upon its findings.

VII. Conclusion

The trial court's ruling that Akinaga must give the Mikes access to their existing burial sites on Fwinfoko is hereby affirmed. The trial court's ruling with regard to Akinaga maintaining a ten-foot perimeter around the Mikes' existing burial sites is vacated and the case is hereby remanded to the trial court for further proceedings consistent with this opinion. The appellant is to bear her own costs.

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