RECENTLY, while driving to my home in Barrigada, I was shocked by three property markers on Lizama Street – the public access easement serving our residence. Equally as disquieted was a neighbor who found the same surveyor markers in his back yard. These markers are the consequence of a poorly-drafted ruling in a Superior Court civil case. The ruling dates back to 1999.

The case – CV 97-1117 – began when six elderly siblings claimed they literally owned the public access easement and filed suit against their new neighbors. During the five years of litigation, this case morphed into a boundary dispute involving four conjoined cases and numerous litigants. As officials studied the various disparate property lines along the roadway, they discovered that two different surveying approaches were used and these led to a disparity of 15 feet between them. Incidentally, all of the inconsistent maps in this case had been approved by the Department of Land Management.

The case was eventually moved to Judge Manibusan’s court. He conjoined the above land case with three others, all dealing with the same ambiguous property lines.

The positives in this case were the work of Master Surveyor Ronald Perry. Perry did extensive surveying of the 22-acre subdivision and discovered the cause of the 15-foot discrepancy. More importantly, he determined the correct property lines. In April 1999, the court accepted Perry’s findings and ordered him to place concrete markers along the roadway.

Unfortunately, this case did not end with finality. In a decision regarding ownership of the easement, Manibusan set the precedent for Guam’s oxymoronic “private” public access easements. He claimed that because the plaintiffs did not dedicate the easement to the government, the public access easement was private.

The problem with this reasoning is that Guam’s subdivision law requires a dedication of easement as a condition for subdividing the property. And because the controlling section of subdivision law is prefaced by the verb “shall,” Guam law mandates that the subdivider must dedicate. The word “shall” has meaning, and frankly, for the average church-going citizen, the Commandment “You shall not steal” doesn’t mean that you are given the option to do otherwise.

Consider also the following: A subdivider retains no special property rights regarding a public access easement. Under Guam law he can’t exclude others from the easement, he can’t obstruct the easement, he can’t use the easement for personal gain, and he can’t alienate the easement. Since there would be no real-world effect, why would the court even consider the issue of ownership? Could it be to set the grounds for subdividers eventually filing claims against the government for the public’s use of these easements?

Judge Manibusan also did not order all litigants to remove their erroneous markers, to register new maps incorporating the correct, newly-established points, or to stop obstructing the roadway. As a consequence, this lengthy struggle over ambiguous property lines ended with limited legal consequence – with little legal documentation and no legally enforced shift of property lines.

This instance of judicial laxity would eventually cause grief for a number of residents along Lizama Street. In 2004 the heirs of a plaintiff had a survey conducted regarding the property they inherited. Rather than using a nearby correct Perry marker, they used as their point-of-beginning a GGN station that ties in with a marker bordering an adjacent mother lot. The map, although questionable, is registered by Land Management.

The consequence of this map: On site, rather than a 40-foot-wide roadway, we have a public access easement that is actually 34 feet wide. Under the unwatchful eye of DLM planners, 320 square meters of land have been lost from the easement.

The heirs of another plaintiff, according to DPW, “are unreasonably obstructing the passage of ... vehicular traffic.” The obstructions take up approximately 25 feet of the 40-foot-wide right-of-way. The couple received their notice of violation in July 2010, but the DPW Rights-of-Way Section has still not taken action.

Recently, the heirs of a third plaintiff had their newly acquired property surveyed. This survey – with surveying markers 15 feet into Lizama Street – seems to re-establish the very property lines previously rejected by the Court.

What can we draw from all of this?

If you’re thinking of buying property on Guam, don’t automatically assume that any registered DLM map is accurate. It may not be.

If you’re a homeowner, don’t expect that the DPW Rights-of-Way Section will aggressively stop illegal encroachment of public roadways in your neighborhood. Unfortunately, the political will at DPW is such that the good intentions and efforts of Rights-of-Way personnel are often thwarted.

And most surprisingly, don’t expect our local courts to defend your property rights diligently, thoroughly – or even equitably.

We Guam folks recently celebrated Law Week, but unfortunately, when it comes to truly observing and enforcing the law, the government of Guam still has a long way to go.

Philip Dauterman,
Barrigada