FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION

Cite as Rosario v. College of Micronesia-FSM
11 FSM Intrm. 355 (App. 2003)

[11 FSM Intrm. 355]

IUKOLINO ROSARIO,
Appellant,

vs.

COLLEGE OF MICRONESIA-FSM,
Appellee.

APPEAL CASE NO. P1-2001

CIVIL ACTION NO. 1999-092

OPINION

Argued:  October 25, 2002
Decided:  February 17, 2003

BEFORE:

Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court
Hon. Keske S. Marar, Temporary Justice, FSM Supreme Court*

*Associate Justice, Chuuk State Supreme Court, Weno, Chuuk

APPEARANCES:

For the Appellant:	Mary Berman, Esq.
P.O. Box 163
Kolonia, Pohnpei FM 96941

For the Appellee:	Stephen V. Finnen, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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HEADNOTES

Appellate Review - Standard of Review; Civil Procedure - Summary Judgment
In reviewing the trial court’s grant of summary judgment, the appellate court applies the same standard employed by the trial court under Civil Procedure Rule 56.  Under that rule, unless a court finds that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law, the court must deny the motion.  In considering a motion for summary judgment, the court views the facts and inferences in the light most favorable to the nonmoving party.  Rosario v. College of Micronesia-FSM, 11 FSM Intrm. 355, 358 (App. 2003).
[11 FSM Intrm. 356]

Property
"Color of title" is susceptible to ready definition:  Any instrument having a grantor and a grantee, and containing a description of the lands intended to be conveyed, and apt words for their conveyance, gives a color of title to the lands described.  When the College had color of title to the property because it held a quitclaim deed to the property, that recognition served as a means of assessing and comparing the quality of the respective possessory interests claimed by it and another.  Rosario v. College of Micronesia-FSM, 11 FSM Intrm. 355, 359 (App. 2003).

Torts - Trespass
As between a bare occupier of land and one holding under a deed, the deed holder has the greater right to possession.  Rosario v. College of Micronesia-FSM, 11 FSM Intrm. 355, 359 (App. 2003).

Torts - Trespass
Who had, or has, title to the property was never at issue in a trespass action in which no counterclaim was brought to quiet title to the disputed land.  Our law is clear that in an action for trespass, the judgment is for right of possession; in such a case, the issue is who has the superior right to possession, not who has title.  Rosario v. College of Micronesia-FSM, 11 FSM Intrm. 355, 359 (App. 2003).

Torts - Trespass
The trial court did not err when it found that one party’s right to possess the land was superior to another’s because it had color of title, through a quitclaim deed, to the property.  Rosario v. College of Micronesia-FSM, 11 FSM Intrm. 355, 359 (App. 2003).

Torts - Trespass
When the record is devoid of evidence that a non-party opposes or has ever challenged ownership of the disputed land, it does not bear on the question of who, as between the parties, has the greater right to possession of the disputed land.  Nor are whether, relative to the disputed property, a public hearing was held or a certificate of title issued, or alleged defects in the quitclaim deed by which the plaintiff took its interest germane because these are title questions that do not relate to the issue in a trespass action, which is one of right of possession.  These types of claims are insufficient as a matter of law to establish triable issues of fact as to the superior right of possession between the parties.  Rosario v. College of Micronesia-FSM, 11 FSM Intrm. 355, 359-60 (App. 2003).

Torts - Trespass
When the action was not one to set boundaries or to determine the ownership of any particular property, the case was not an "action with regard to interests in land" within the meaning of 67 TTC 105 because the defendant never asserted an ownership interest on his own behalf in the land, but rather asserted the alleged rights of third parties who were not before the court.  Thus the trial court, when it determined who had the greater possessory right to the disputed property, did not err when it did not refer the matter to the Pohnpei Court of Land Tenure.  Rosario v. College of Micronesia-FSM, 11 FSM Intrm. 355, 360 (App. 2003).

Torts - Trespass
It is not practical to require all landowners to construct buildings or build fences on the entirety of their property in order to protect it from trespassers.  Rosario v. College of Micronesia-FSM, 11 FSM Intrm. 355, 360 (App. 2003).

Civil Procedure - Summary Judgment; Torts - Trespass
When the College presented competent evidence that the land to which a deed refers is located 

[11 FSM Intrm. 357]

miles from the disputed property and when Rosario produced only incompetent evidence regarding other people and other tracts of land that was wholly unrelated to land at issue, the trial court correctly concluded that Rosario’s evidence relating to his claim of a possessory interest was insufficient to create a genuine issue of material fact as to his right to possess any part of the land.  Thus, as between the parties, the College has the greater right of possession.  Rosario v. College of Micronesia-FSM, 11 FSM Intrm. 355, 360-61 (App. 2003).

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COURT’S OPINION

MARTIN YINUG, Associate Justice:

On December 22, 1999, the plaintiff College of Micronesia-FSM ("the College"), now the appellee, filed in the trial division of this court a complaint for trespass against the defendant Iukolino Rosario ("Rosario"), who is now the appellant.  The College also sought an injunction prohibiting Rosario from operating a small store.  Rosario had built the store on the property that was the subject of the trespass action.  On January 6, 2000, the trial court granted the preliminary injunction.  After a December 11, 2000, hearing on the parties’ cross motions for summary judgment on the trespass claim, the trial court on May 14, 2001, granted the College’s motion, denied Rosario’s motion, and entered a permanent injunction prohibiting Rosario from further using or occupying the disputed property.  This appeal followed.

For the reasons discussed, we affirm the trial court.

I.  Factual Background

The disputed property in this case, Parcel No. 020-B-01, is located at the College’s campus in Palikir, Pohnpei.  On January 20, 1986, the Pohnpei Public Lands Authority quitclaimed all of its right, title and interest to Parcel No. 020-B-01, as shown on approved Cadastral Plat No. 020-B-00, to the College’s predecessor in interest, which was then known simply as the College of Micronesia.  Thereafter, on July 15, 1996, the College of Micronesia quitclaimed all of its right, title, and interest in Parcel No. 020-B-01 to its successor entity, the College of Micronesia-FSM (as previously noted, referred to throughout as "the College").  As a result of subsequent revisions, Cadastral Plat No. 020-B-00 became Cadastral Plat No. 020-B-01, and Parcel No. 020-B-01 became Parcel No. 020-B-02 when Parcel No. 020-B-01 was subdivided.  In the interest of consistency, the trial court kept the 020-B-01 designation for the parcel which is the subject of this case, and this court will follow suit.

In late November of 1999, Rosario cleared the disputed property and built a small store within its boundaries.  In December of 1999, he began operating the store.  By a letter dated December 3, 1999, the College asked Rosario to cease his development because the College believed that he was building on College land.  The College also requested the Pohnpei Division of Lands to conduct a survey, which it did on December 8, 1999.  The survey results indicated that the store was located on the parcel that had been deeded to the College.  When Rosario continued his activities on the disputed parcel, the College filed the December 22, 1999, action for trespass and injunctive relief.

II.  Issues

Rosario frames the issues on appeal as follows:

1.  Did the trial court err in ruling that the College of Micronesia has "color of title" to the property Parcel No. 020-B-01?

[11 FSM Intrm. 358]

2.  Did the trial court err in finding that the College of Micronesia has a superior right to the property on which Hugo Rosario’s store stands?

3.  Did the trial court err in ruling that Hugo Rosario is trespassing on land that is possessed by the College of Micronesia?
4.  Did the trial court err in finding that Hugo Rosario, through his lessor Benjamin Luis, has no claim to the property on which his store stands under the Pohnpei Public Lands Act of 1980?

	III.  Standard of Review

In reviewing the trial court’s grant of summary judgment in the College’s favor, we apply the same standard employed by the trial court under Rule 56 of the FSM Rules of Civil Procedure.  Nahnken of Nett v. United States, 7 FSM Intrm. 581, 585-86 (App. 1996).  Under that rule, unless a court finds that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law, the court must deny the motion.  Id. at 586.  In considering a motion for summary judgment, the court views the facts and inferences in the light most favorable to the nonmoving party.  Id.

IV.  Discussion

A.  Rosario’s issues 1 and 2

Rosario treats these two issues together.  His main points are that the disputed land is actually Sokehs municipal land, and that he has a better right than the College to the use and possession of Sokehs municipal lands under the Pohnpei Supreme Court case of Pohnpei v. Damarlane, 4 Pon. L.R. 228 (Tr. 1991).  He argues that the Pohnpei Court of Land Tenure has not completed title determination on this land as required by 67 TTC 101 et seq., and asks that on remand the FSM Supreme Court trial division be ordered to refer this issue to the Court of Land Tenure for that determination.  He asserts that the trial court erred when it ruled that under the doctrine of color of title, the College has constructive possession of the land where Rosario’s store is located.  He points out that there was nothing (such as a fence, etc.) to warn him that the land upon which he was building his store was claimed by the College.  Rosario also contends that various defects exist in the quitclaim deed under which the College takes its interest.  Lastly, he claims that the trial court erred in finding that he was trespassing on the land because he had a right to be there through permission granted by one Benjamin Luis.

The College responds that it has established a chain of title going back to at least 1983.  According to the College, Rosario has attempted to raise the claims of persons other than himself to the land, but has failed to demonstrate any error of law in this trespass action.  The College emphasizes that a trespass action seeks to vindicate the right to possession, and not to challenge title.  The College also asserts, and the trial court concluded, that Rosario does not have standing in a trespass action to bring the putative claims of Sokehs Municipality, or to challenge either Pohnpei’s or the College’s title on behalf of unnamed other persons.  The College urges that the only potential claim for possession that Rosario can make is through Benjamin Luis, for whose claim to the land the trial court determined there was insufficient competent evidence to raise any issue of material fact.

We turn to the specific sub-issues that Rosario presents under his first two issues:

[11 FSM Intrm. 359]

1.  Color of title is a foreign doctrine that has not been adopted in Pohnpei.

2.  The Pohnpei Supreme Court has previously held that the citizens of the municipalities own the municipality’s land.

3.  The FSM Supreme Court should let the Pohnpei authorities determine important land issues.

4.  No public hearing was held and no certificate of title was issued to the College.

5.  The quitclaim deed is invalid.

6.  Delivery of the deed was invalid.

7.  The grantor did not have title to the land.

8.  Sokehs Municipality did not authorize the College’s use of the land beyond the stream abutting Rosario’s store.

9.  No offer of compensation was made to Sokehs Municipality.

10.  A quitclaim deed cannot transfer title when the grantor does not have title to give.

As to the first sub-issue, Rosario urges that the trial court erred by establishing a dangerous, undefined "color of title" doctrine for Pohnpei municipal lands that "can have very serious consequences for innocent people."  Appellant’s Opening Brief at 4.  We disagree.  "Color of title" is susceptible to ready definition:  "Any instrument having a grantor and a grantee, and containing a description of the lands intended to be conveyed, and apt words for their conveyance, gives a color of title to the lands described."  Black’s Law Dictionary 266 (6th ed. 1999).  We are not persuaded that the trial court’s acknowledgement of this straightforward principle of real property documentation, and its effects, gives rise to the dangers that Rosario foresees.

The trial court concluded that the College had color of title to the property because it held a quitclaim deed to the property.  That recognition served as a means of assessing and comparing the quality of the respective possessory interests claimed by the College and Rosario.  The trial court looked to the fact that the College took its interest by quitclaim deed from its predecessor in interest, the College of Micronesia, which in turn took its interest by a 1986 quitclaim deed from the Pohnpei Public Lands Authority to the College of Micronesia.  In contrast, Rosario presented no competent evidence to substantiate his claim that Benjamin Luis had given him permission to use the property.  The trial court concluded, and we agree, that as between a bare occupier of land, Rosario, and one holding under a deed, the College as the deed holder had the greater right to possession.  This did not mean that the trial court determined who had, or has, title to the property.  That was never at issue in this trespass action in which no counterclaim was brought to quiet title to the disputed land.

Our law is clear that in an action for trespass, the judgment is for right of possession; in such a case, the issue is who has the superior right to possession, not who has title.  Ponape Enterprises Co. v. Soumwei, 6 FSM Intrm. 341, 345 (Pon. 1994).  Accordingly, the trial court did not err when it found that the College’s right to possess the land was superior to Rosario’s because it had color of title, through a quitclaim deed, to the property.

As to sub-issues 2, 7, 8, and 9, Rosario has not claimed that he is on the land by permission of 

[11 FSM Intrm. 360]

Sokehs Municipality, but rather by permission of Benjamin Luis.  The record is devoid of evidence that Sokehs Municipality opposes or has ever challenged ownership of the disputed land by the State of Pohnpei, which conveyed its interest to the College’s predecessor in interest.  Certainly, Sokehs Municipality is not a party to this action.  Sub-issues 2, 7, 8, and 9 do not bear on the question of who, as between the College and Rosario, has the greater right to possession of the disputed land.

Nor are sub-issues 4, 5, 6, 7, and 10, germane.  The first of these sub-issues states that relative to the disputed property, no public hearing was held nor was any certificate of title issued, while the rest of the sub-issues point to alleged defects in the quitclaim deed by which the College took its interest in the land.  These are title questions that do not relate to the issue in this trespass action, which is one of right of possession.  We concur with the trial court that these types of claims were insufficient as a matter of law to establish triable issues of fact as to the superior right of possession of Rosario versus the College.

Sub-issue 3 remains.  Rosario urges that the trial division should have deferred to the Pohnpei Court of Land Tenure so that local authorities could have determined what he characterizes as a land dispute under 67 TTC 105.  The trial court, however, found that this action was not one to set boundaries or to determine the ownership of any particular property, and concluded that this case was not an "action with regard to interests in land" within the meaning of 67 TTC 105.  The trial court looked to the fact that Rosario never asserted an ownership interest on his own behalf in the land, but rather asserted the alleged rights of third parties who were not before the court.

We agree with the trial court that Rosario presented no claim of land ownership that implicates 67 TTC 105.  Again, the issue is one of trespass, not ownership.  We find no error in the trial court’s decision not to defer to the Pohnpei Court of Land Tenure when it determined that the College had the greater possessory right to the disputed property.

B.  Rosario’s issue 3

Rosario contends that the trial court erred when it concluded that he was trespassing on land possessed by the College.  The thrust of his argument in this regard is that the College had not fenced in the area where he had built his store.

Based on the undisputed facts, the trial court concluded that the College had established actual possession of the whole of the land covered by the quitclaim deeds prior to Rosario’s clearing the land and building the store.  The court further determined - again looking to the undisputed facts - that the College had vigorously defended its right to possession by its immediate reaction to Rosario’s trespass on the land.  The trial court concluded, and we concur, that it is not practical to require all landowners to construct buildings or build fences on the entirety of their property in order to protect it from trespassers.

C.  Rosario’s issue 4

Lastly, Rosario contends that the trial court erred when it concluded that he had no claim to the property through the permissive use granted to him by Benjamin Luis.  Benjamin Luis took his interest in the land through Sakies Luis, who in turn allegedly took an interest through what is described as the "Lot No. 255 deed."  Competent evidence presented below by the College demonstrated that the land to which this deed refers is located miles from the disputed property.  While Rosario contests this, there are no facts of record in support of his contention sufficient to create a genuine issue of material fact as required by Civil Rule 56(c).  We agree with the trial court that Rosario produced only incompetent evidence regarding other people and other tracts of land that was wholly unrelated to land to which the College holds its quitclaim deed.  Thus, based on the undisputed facts, the trial court correctly concluded that Lot No. 255, purportedly owned by Sakies Luis, was not located on any land that was either claimed by the College or relevant to the case.  It follows that Rosario’s evidence relating to his claim of a possessory interest through Benjamin Luis and Sakies Luis was insufficient to create a genuine issue of material fact as to his right to possess any part of Parcel No. 020-B-01.  As between the College and Rosario, the College has the greater right of possession.

V.  Conclusion

For the foregoing reasons, we affirm the judgment of the trial court in its entirety.

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Footnotes:
 Subsequent to the granting on May 14, 2001, of the College’s motion for summary judgment, a certificate of title to the disputed property was issued to the College on July 25, 2001.