KOSRAE STATE COURT
TRIAL DIVISION

Cite as Shrew v. Killin
10 FSM Intrm. 672 (Kos. S. Ct. Tr. 2002)

[10 FSM Intrm. 672]

TAKASY SHREW,
Plaintiff,

vs.

ALIKSA KILLIN,
Defendant.

CIVIL ACTION NO. 96-01

MEMORANDUM OF DECISION; JUDGMENT

Yosiwo P. George
Chief Justice

Trial:  May 30, 2002
Decided:  June 3, 2002

APPEARANCES:

For the Plaintiff:	Charlton Timothy, trial counselor
P.O. Box 479
Tofol, Kosrae FM 96944

[10 FSM Intrm. 673]

For the Defendant:	Clanry Likiaksa, trial counselor
P.O. Box 764
Tofol, Kosrae FM 96944

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HEADNOTES

Torts ; Trespass
An action for trespass is for a wrongful interference with another’s possessory interest in property.  The court’s role in a civil trespass is to determine which party has the greater possessory right to disputed property.  A trespass action is one for violation of possession, not for challenge to title.  Shrew v. Killin, 10 FSM Intrm. 672, 674 (Kos. S. Ct. Tr. 2002).

Property ; Certificate of Title; Torts ; Trespass
A plaintiff with a certificate of title for a parcel clearly has greater possessory interest to the disputed property so that a defendant is liable for trespass on the plaintiff’s parcel when he has entered, cleared and planted crops inside the established boundaries of the plaintiff’s parcel without the plaintiff’s consent.  Shrew v. Killin, 10 FSM Intrm. 672, 674 (Kos. S. Ct. Tr. 2002).

Civil Procedure; Civil Procedure ; Pleadings
A defendant who has failed to raise any affirmative defenses in his answer, or to amend his answer to add any, or to assert at trial any counterclaims or crossclaims, or third party claims, has waived and lost his right to assert at trial affirmative defenses and to assert any counterclaims or crossclaims, or third party claims.  Shrew v. Killin, 10 FSM Intrm. 672, 674 (Kos. S. Ct. Tr. 2002).

Constitutional Law ; Due Process; Torts ; Trespass
A trespass action is one for violation of possession, not for challenge to title. It is therefore not a proper proceeding for the defendant to challenge title and allege due process violations in the proceedings that determined the plaintiff’s title to the parcel.  The defendant may challenge the title through separate proceedings as appropriate.  Shrew v. Killin, 10 FSM Intrm. 672, 674-75 (Kos. S. Ct. Tr. 2002).

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COURT’S OPINION

YOSIWO P. GEORGE, Chief Justice:

This matter was called for trial on May 30, 2002.  Plaintiff was represented by Charlton Timothy.  Clanry Likiaksa appeared for the Defendant.  Takasy Shrew and Orlando Joseph testified on behalf of the Plaintiff.  The Defendant did not present any witnesses.

Based upon the evidence presented at trial, I conclude that the Defendant did commit the tort of trespass upon land owned by the Plaintiff, parcel 068-M-11, by planting crops.  Defendant is liable to the Plaintiff for trespass.  Accordingly, judgment must be entered in favor of the Plaintiff and against the Defendant.  This Memorandum explains the Court’s reasoning for its decision and judgment.

I.  Findings of Facts.

This case involves trespass claims.  Plaintiff is the title holder to parcel 068-M-11, called 

[10 FSM Intrm. 674]

Takatae, Malem.  The Certificate of Title to parcel 068-M-11 was issued to the Plaintiff in December 1997 by the Kosrae State Land Commission.  Parcel 093-M-17 is located adjacent to parcel 068-M-11 and these two parcels share a common boundary.  The Defendant is a claimant to ownership of parcel 093-M-17.  A formal hearing took place in August 2000, however, no Determination of Ownership has been issued for parcel 093-M-17.

The Defendant has planted crops on a portion of parcel 068-M-11, near the boundary with parcel 093-M-17.  The Plaintiff did not give the Defendant permission to enter, clear, or plant crops on parcel 068-M-11.

II.  Analysis.

Plaintiff claims trespass by the Defendant.  An action for trespass is a wrongful interference with another’s possessory interest in property.  Jonah v. Kosrae, 9 FSM Intrm. 335 (Kos. S. Ct. Tr. 2000).  The Court’s role in civil trespass is to determine which party has the greater possessory right to disputed property.  Nelson v. Kosrae, 8 FSM Intrm. 397 (App. 1998).  A trespass action is one for violation of possession, not for challenge to title.  Ponape Enterprises v. Soumwei, 6 FSM Intrm. 341 (Pon. 1994).

The Defendant has entered, cleared and planted crops inside the established boundaries of parcel 068-M-11, without consent of the owner, the Plaintiff.  Through these actions, the Defendant has wrongfully interfered with the Plaintiff’s possessory interest in parcel 068-M-11.

This Court’s role in this civil trespass action is to determine which party has the greater possessory interest to the disputed property.  Based upon the Certificate of Title issued to the Plaintiff for parcel 068-M-11, the Plaintiff clearly has greater possessory interest to the disputed property.  I conclude that the Defendant has trespassed upon and violated the possession of the Plaintiff’s property, parcel 068-M-11.  The Defendant is therefore liable to the Plaintiff for his actions.

III.  Defenses.

Defendant raised the issue of due process as a defense to his clearing and planting activities on parcel 068-M-11.  Defendant claims ownership of the adjacent parcel 093-M-17, for which a formal hearing took place in August, 2000.  However, since no Determination of Ownership has been issued for that parcel, the Defendant remains merely a claimant for parcel 093-M-17 and holds no ownership status.

Defendant claims that the Kosrae State Land Commission violated due process in the proceedings for parcel 068-M-11 because he, as a claimant to an adjacent parcel, was never given notice of hearing for parcel 068-M-11.  This defense was never raised in the Defendant’s Answer.  Indeed, Defendant’s Answer does not list any affirmative defenses.  The Defendant’s Answer also does not raise any counterclaims, crossclaims or third party claims.  The first time that Defendant raised this issue of due process was in Defendant’s Pre-trial Brief, filed shortly before trial.

Defendant failed to raise any affirmative defenses in his answer, and failed to amend his answer to add any affirmative defenses.  Defendant failed to assert any counterclaims, crossclaims or third party claims under KRCP Rules 13 and 14.  Under KRCP 12(b), Defendant has waived and lost his right to assert affirmative defenses at trial.  Defendant has also waived and lost his right to assert any counterclaims, cross-claims or third party claims at trial.

A trespass action is one for violation of possession, not for challenge to title.  Ponape Enterprises 

[10 FSM Intrm. 675]

v. Soumwei, 6 FSM Intrm. 341 (Pon. 1994).  This proceeding, on Plaintiff’s claims for trespass, is not the proper proceeding to challenge Plaintiff’s title to parcel 068-M-11.  The Defendant may challenge title to parcel 068-M-11 and allege due process violations through separate proceedings as appropriate.

IV.  Judgment.

Judgment is entered in favor of the Plaintiff against the Defendant.  The Plaintiff is the fee simple owner of parcel 068-M-11 and everything within its boundaries, as set forth in the Certificate of Title.  A permanent injunction is hereby issued against the Defendant as follows:

a.	The Defendant is prohibited from entering, planting, clearing or taking any crops or other materials from parcel 068-M-11.

b.	This permanent injunction applies to the Defendant and his family members.  Defendant shall communicate the contents of this Order to his family members.

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