THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Nena v. Walter,
6 FSM Intrm. 233 (Chuuk S. Ct. Tr. 1993)

[6 FSM Intrm. 233]

SOUKICHY NENA et al.,
Plaintiffs,

vs.

KACHEM WALTER,
Defendant.

CSSC-CA. NO. 200-91

OPINION

Wanis R. Simina
Associate Justice
Chuuk State Supreme Court

Decided:  September 29, 1993
Amended:  October 19, 1993

[6 FSM Intrm. 234]
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HEADNOTES
Constitutional Law ) Chuuk; Property
     The reversion of reefs, tidelands and other submerged lands to private owners granted by article IV, section 4 of the Chuuk Constitution does not apply to any tidelands that were previously filled or reclaimed.  Nena v. Walter, 6 FSM Intrm. 233, 236 (Chk. S. Ct. Tr. 1993).

Property
     Tideland is land below the ordinary high water mark.  Filled or reclaimed land, by its nature, is not land below the ordinary high water mark, and it cannot be considered tideland or submerged land.  Nena v. Walter, 6 FSM Intrm. 233, 236 (Chk. S. Ct. Tr. 1993).

Constitutional Law ) Chuuk; Constitutional Law ) Interpretation
     When the language of the Chuuk Constitution does not define the term "tidelands" contrary to the common usage of the word or its accepted legal definition, and the legislative history does not indicate that the framers intended another meaning the court will employ the meaning of the term consistent with its legal usage at the time of the Constitution's enactment.  Nena v. Walter, 6 FSM Intrm. 233, 236 (Chk. S. Ct. Tr. 1993).

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COURT'S OPINION
WANIS R. SIMINA, Associate Justice:

CASE BACKGROUND
     This is dispute over boundaries between tideland and dryland in Nemwan, Sapuk Village, Weno, Chuuk State, in the Federated States of Micronesia, and the ownership of filled land in the same area.

     The plaintiffs claim the filled land as part of his tideland known as Nenono. The defendant owns the dryland known as Winipiepi or Fairekich from his mother. Defendant acquired a permit from the United States Army Corps of Engineers, a Permit No. PODCO-O 1937-S, dated September 22, 1986.  Defendant also acquired Earthmoving Permit to fill a part of the tideland Nenono to build his concrete building there from the Chuuk State Government.  Permit No. EP-Z-87. These permits authorize defendant, Kachem Walter to landfill 7,500 sq. ft of the tideland to build his concrete house on it.  The house has been built but not yet fully completed.

     The plaintiff claims the filled land as his property, coming from his ancestors down to him, his brothers and sisters.  When defendant filled the tideland with rocks and sand, he did not obtain plaintiff's permission to fill the tideland called Nenono, since he is the owner of said tideland.

OPINION
I.  BOUNDARIES
     The first issue to be analyzed here is basically the boundaries between the tideland known as Nenono, belonging to the plaintiff, and the dryland known as Winipiepi or Fairekich, belonging to the defendant.  Winipiepi and Fairekich are used interchangeably.

[6 FSM Intrm. 235]

     Plaintiffs have claimed that the tideland Nenono extends from the tree called "rekich" which is supposed to have grown up on the boundary.  This tree used to grow on the beach close to water.  It is obvious from the evidence that the defendant does not claim the tideland.  He agrees with the plaintiffs that Nenono is the property of Pukos, of which the plaintiffs represent the lineage of Pukos. Nor does the plaintiffs have any interest in the land Winipiepi, and Fairekich.  The only issue, then, before the court, is the determination of the boundaries between this dryland and this tideland.  Winipiepi or Fairekich is adjacent to the tideland Nenono.

     The court has listened to the evidence presented on the site of the disputed area where both sides presented evidence as to their boundaries.  A seawall was built near the area in dispute, at what would normally be the appropriate shoreline, after listening to defendant who asserted that his land was eaten away by the action of the water, and possibly by the current that causes the eaten-away of defendant's land.  This does not change the truth that the proper boundaries between the dryland and the tideland is the "shoreline."

     Plaintiffs testified that the "rekich" is the proper boundary between the tideland and the dryland.  The court has viewed both areas and decided that the only appropriate boundary at this time is the shoreline of which the seawall is the boundary.  It is not the Rekich nor the 32 feet from the Rekich to the unfinished cement block house built on the filled land.  It is also clear that the filled land at issue here, where defendant is building a cement house, is on the tideland side of the seawall, and therefore not a part of the defendant's dryland.

II.  FILLED LAND
     The second issue that needs to be resolved is whether plaintiff or the Chuuk State Government is the owner of the filled land, where the defendant has been constructing a building.

     The holding of this Court in the case of Nimeisa v. Department of Public Works, 6 FSM Intrm. 205, 212 (Chk. S. Ct. Tr. 1993) stated that article IV, section 4, of the Chuuk State Constitution, effectively granted ownership of the Chuuk State tidelands back to the Chuukese individual land owners, prospectively from the date of the issuance of the Court's judgment in that case.1  The case at bar raises the new issue of whether this constitutionally mandated reversion of ownership also applies to tidelands that were filled or reclaimed by the government, prior to the ruling in the Nimeisa case.

     Some of the land at issue in the present case is conceded by all parties to have once been tideland ) that is, land below the ordinary high water mark. However, prior to the ruling in the Nimeisa case, part of that tideland was filled or reclaimed by the plaintiff, pursuant to the government's permission and permits, as discussed above.  The plaintiffs contend that such reclaimed land should still be considered tideland, for the purpose of land reversion under article IV, section 4 of the Chuuk State Constitution, and that as a result, such reclaimed or filled land should revert to the individual land owners just the same as if the filled land were still ordinary tideland.  Specifically, plaintiff argues that since the filled land at issue in this case would have reverted to him under the Nimeisa ruling, were it still ordinary tideland, then this filled land should also be

[6 FSM Intrm. 236]

considered "tidelands" for the purpose of reverting the ownership of this filled land, in accordance with the ruling in the Nimeisa case.

     The Court finds no merit to this claim.  According to article IV, section 4 of the Chuuk State Constitution, the customary rights of ownership are only "recognized" and thus reverted in regards to "reefs, tidelands and other submerged lands."  Id. (emphasis added).  The explicit reference to "other submerged lands," read in the context of the preceding phrase referring to tidelands and reefs, gives a clear indication that the framers of the constitution were only referring to lands of a submerged nature in granting these rights of ownership reversion.  Reclaimed land, on the other hand, is not submerged, by its nature.  To read this provision to also include reclaimed or filled land, without any explicit reference within the constitutional text to so modify this provision, would be counter-intuitive and in conflict with the plain, ordinary meaning of the text.

     Further, the ordinary meaning of this provision is also in accordance with the usual legal definition associated with the word "tidelands," as used here in Chuuk prior to the enactment of the State Constitution.  Prior to the adoption of the state constitution, the primary law dealing with the ownership of tidelands and other submerged lands was Trust Territory Code title 67, sections 1 and 2, and it defined "tidelands" solely as those lands below the ordinary high water mark. The legal use of the word "tidelands" is thus synonymous with land below the ordinary high water mark, or land of a submerged nature.  Conversely, filled or reclaimed land, by its nature, is not land below the ordinary high water mark, nor can it be considered submerged land.  As a result, the common legal definition of "tidelands" in the State of Chuuk has not included reclaimed or filled land.

     Had the framers of the constitution intended for the "tidelands" referred to in article IV, section 4, to include land such as reclaimed or filled land, and thus employ a meaning of that term that was not only inconsistent with the legal usage of that term up to the time of the enactment of the constitution, but also, contradictory to the other language in the same section, it is logical to assume that such a counter-intuitive interpretation would have been explicitly stated within the language of the constitution itself.  No such language appears in any part of the constitution to support such a novel reading of this constitutional language. Further, there is no indication in any of the Constitutional Convention Committee reports that the interpretation of the word "tidelands" in article IV, section 4, should be made in defiance of the either the common use of that word or its accepted legal definition.

     It is therefore the ruling of this court that any tideland that was owned by the state government in accordance with the law prior to the Nimeisa ruling, and was either filled or reclaimed in a manner consistent with the law prior to the ruling in the case of Nimeisa v. Department of Public Works, 6 FSM Intrm. 205 (Chk. S. Ct. Tr. 1993), such land shall not revert to individual land owners under article IV, section 4 of the Chuuk State Constitution.  The reversion of tidelands granted by article IV, section 4 does not apply to any tidelands that were so filled or reclaimed, prior to the ruling in the Nimeisa case.

     The result of this holding is that in this case, the filled land at issue here is held to belong to the government, and not the plaintiff or the defendant.

JUDGMENT
     It is then the opinion of this court based on the evidence presented by both parties and the

[6 FSM Intrm. 237]

laws applied to it, that:

     1)  the boundaries between the tideland Nenono, and the dry land known as Winipiepi or Fairekich is the seawall located from the southern to the northwestern part of Winipiepi and Noporu Ueda's portion of land located on the northwestern part of this land;

     It is the judgment of this court:

     1.  The landfill area in Nemwan, Sapuk Village, Weno Island, Chuuk State, located in the previous tideland, is owned by the government of Chuuk State.

     2.   The incomplete cement house is owned by the defendant, and permission to use this said house and the filled land has been given to the defendant by the government.
 
     3.   The plaintiffs continue to be the owner of the ordinary tideland (land below the ordinary high water mark) located in Nemwan, Sapuk Village, Weno, Chuuk State, Federated States of Micronesia.

     4.  Neither the plaintiffs nor the defendant own the portion of the tideland that was filled by the defendant.

     Each party shall bear its own court expenses and costs.

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Footnote:
 
1.  The constitutionally mandated reversion of the Chuuk State tidelands to the individual land owners does not in any way limit the inherent power of the government to regulate the reasonable use of those lands, to the same extent that the government has the power to regulate the use and abuse of other privately owned lands within the state.
                                                                                                                                                                                                                                                                                                           
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