VOLUME 7, FSM SUPREME COURT INTERIM REPORTER
 
 
 
THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Sellem v. Maras, 7 FSM Intrm. 1
(Chuuk S. Ct. Tr. 1995)

[7 FSM Intrm. 1]
KEIKO SELLEM et al.,
Plaintiffs,

vs.

SOS MARAS et al.,
Defendants,

MITER NAKAYAMA et al.,
Intervenor.

CA No. 199-86

OPINION
Michael K. Powell
Special Trial Division Justice

Trial:  November 21-30, 1994
Judgment Entered:  December 16, 1994
Opinion Entered:  January 20, 1995

APPEARANCES:
For the Plaintiffs:          Mr. Hans Wiliander
                                       P.O. Box 389
                                       Weno, Chuuk FM 96942

For the Defendants:     Mr. Joseph Muritok
                                       P.O. Box 189
                                       Weno, Chuuk FM 96942

For the Intervenor:        Mr. Eriano Eram
                                       P.O. Box 189
                                       Weno, Chuuk FM 96942

*    *    *    *

HEADNOTES
Property ) Tidelands
     The Chuuk State Constitution, effective on October 1, 1989, recognizes traditional rights over all reefs, tidelands, and other submerged lands.  Tidelands, including man-made islands, that were filled prior to this effective date are no longer classed as tidelands and have become dry land.  Sellem v. Maras, 7 FSM Intrm. 1, 3-4 (Chk. S. Ct. Tr. 1995).
 
[7 FSM Intrm. 2]    

Property ) Tidelands
     Tidelands traditionally are those lands from the dry land to the deep water at the edge of the reef, and must be shallow enough for Chuukese women to engage in traditional methods of fishing.  Sellem v. Maras, 7 FSM Intrm. 1, 4 (Chk. S. Ct. Tr. 1995).

Property ) Tidelands
     A deep water passage through a reef too deep for Chuukese women to engage in their traditional fishing methods is not a tideland.  While under Chuukese tradition and custom channels may have been owned, the constitution does not recognize traditional rights over channels.  The state thus retains ownership of the channels, as was the situation prior to the adoption of the Chuuk Constitution.  Sellem v. Maras, 7 FSM Intrm. 1, 5 & n.9 (Chk. S. Ct. Tr. 1995).

Torts ) Damages
     Actual, not speculative, damages must be proven in order to award damages for wrongful restraint.  Estimates of lost gross receipts are insufficient because a claimant is only entitled to lost profits.  Sellem v. Maras, 7 FSM Intrm. 1, 6 & n.10 (Chk. S. Ct. Tr. 1995).

Property ) Tidelands
     Tidelands within the meaning of Article IV, 4 of the Chuuk Constitution are those marine lands from the shore to the face of the reef that are shallow enough for traditional fishing activity by women.  The constitutional recognition of traditional rights in tidelands does not include deep water channels or tidelands that have become dry land prior to the effective date of the constitution, through filling or other activity that raised the level of the marine lands above the mean high tide mark.  Sellem v. Maras, 7 FSM Intrm. 1, 7 (Chk. S. Ct. Tr. 1995).

*    *    *    *

COURT'S OPINION
MICHAEL K. POWELL, Special Trial Division Justice:
     This is one of the first cases to come to trial concerning the traditional ownership of tidelands pursuant to Article IV, 4 of the Chuuk State Constitution.  Judgment was previously entered without an opinion on December 16, 1994.  This opinion constitutes the court's findings of fact and conclusions of law as required by Rule 52(a).

Course of the Proceedings
     This case began in 1986.  Both the plaintiffs and defendants claim to be the traditional owners of the tidelands located adjacent to the village of Mechchitiw. Both plaintiffs and defendants are members of the same clan of Rak.  Although of the same clan both plaintiff and defendant claim that the part of the clan they represent are the true traditional leaders of Mechchitiw.

     The intervenor Nakayama also claims on behalf of her clan Sopunipi to be the traditional owner of the area in question.

     Benjamin Niton representing a group from Tunnuk also moved to intervene. This motion was denied for the reasons stated in the order of denial.

     A member of the plaintiffs' group also filed a counterclaim against the defendants seeking damages based upon an injunction entered on the defendants behalf that restrained a project to build

[7 FSM Intrm. 3]

a gas station on a portion of the tidelands in dispute.

     Each of the main parties claimed all of the tidelands in question.  The names that each party assigned to various sections of the tidelands was different.  The intervenor claimed that all of the tidelands were known by the name Tawanap.  The defendant claimed that the tideland sections were called Tawanap, Ifites, Wisino and Achenemai.  The plaintiffs claimed the same tidelands were known as Tawanap, Pechemetek, Netewechis, Ifites, Wisino, Achenemai, and Wonpou.  At the time of the pre-trial conference the actual names of the tidelands and which the plaintiff has plead were in dispute.  The court pursuant to Rule 15 ordered the plaintiff's complaint be amended to include every name that any of the tidelands in dispute had been known.  This amendment of the pleadings was included in the pre-trial order so there would be no question that all parties had adequate notice of all the areas in dispute and to preclude additional litigation.

     There have been a series of justices that presided over this case.  Initially the case was assigned to Justice Welle.  He recused himself when then attorney (now Justice O'Sonis)1 became co-counsel for one of the parties. The case was next assigned to Justice Marar who recused himself due to a family relationship to the parties.  The case was next assigned to Justice Simina who entered a preliminary injunction on behalf of the defendants.  Thereafter a motion was made to disqualify Justice Simina and as a result he also recused himself.2

     The court appointed an Assessor, Chief Kintoky Joseph, to sit as an additional finder of fact concerning Chuukese custom and tradition.

     The trial began on November 21, 1994 and final argument was had on November 30, 1994.  The plaintiffs were represented by Mr. Hans Wiliander. The defendants were represented by Mr. Joseph Muritok and the intervenors were represented by Mr. Eriano Eram.3 The judgment was entered on December 16, 1994 without opinion.

     The court sitting with assessor makes the following findings of facts based upon the pleadings as amended, the evidence presented including testimony and exhibits and the argument of counsel.

Findings of Fact
A.  Tidelands
     Article IV, 4 of the Chuuk State Constitution provides that "Traditional rights over all reefs, tidelands, and other submerged lands, . . . are recognized."  This provision of the constitution became effective on October 1, 1989.  Tidelands that were filled prior to the effective date of this provision are

[7 FSM Intrm. 4]

no longer classed as tidelands and have become dry land.  This includes man-made islands.

     Tidelands traditionally are those lands from the dry land to the deep water at the edge of the reef.  Tidelands must be shallow enough for Chuukese women to engage in traditional methods of fishing, including net fishing, gathering of shellfish, octopus and the building of fish traps [pounopun].  Tidelands have several divisions.  Closest to the shore is either Chiya (mangrove) or woon chomwochomw (edge of the sea or beach).  After that in order are Faan Chomwochomw (under the rocks at seaside); Faanippi (sandy shore wet at high tide); orosset (ankle deep at high tide); Neeneene (calf to waist deep); woon piru (on the flat sea rocks ) ankle deep at low tide to calf deep at high tide); Woon onoot (on the sea grass or place of the fish nets [neechew or woon achekken]); Neefat (deep area toward edge of reef ) waist deep water); Woon anang (on the branching coral); Woon wooch (surface of the reef edge ) thigh deep water); and finally mesen wooch (face of the reef) and thereafter deep water.4

     Based on this general description of what constitutes a tideland the court finds that the following tideland divisions exist.  The general location of each tideland is set forth and the court has used defendants' Exhibit B to sketch tentative boundaries and a generalized location.5

     The court and the assessor find that the nominal boundary between Tunnuk and Mechchitiw runs along the deep water of Pou Bay that is near the center of the bay up to the causeway and from there runs in a northerly direction that is bounded by the western edge of the channel known as Namen Nenomonen which also forms the eastern boundary of the tideland Wisino.  The man-made island on the eastern side of Wisino is excluded from the judgment of this case as it is no longer a tideland as it was formed prior to the effective date of the constitution.6  The court expresses no opinion on the ownership of this man-made island.

     Achenemai is located inside Pou Bay and consists primarily of Chiya.  It begins adjacent to the dry land Naman on the north at the causeway and continues south toward Nantaku to a point at the southern (Nantaku side) boundary of Apitaw taro patch.

     Wonpou is located to the east of Achenemai and is also inside Pou Bay.  It is not clear to the court how much of the tideland Wonpou is on the declared boundary between Tunnuk and Mechchitiw.7

     Wisino is outside the causeway and begins at the coral point of the same name.  The eastern boundary of Wisino runs from this point in a southerly direction along the western side of the channel known as Namen Nenomonen. The western side of Wisino starts from the coral point and runs in a

[7 FSM Intrm. 5]

southerly direction along the eastern side of the channel Namen Tawanap.

     Ifites is adjacent to Wisino to the west.  Wisino and Ifites have a common boundary.  On the west Ifites if bounded by the channel Namen Tawanap.  Its northern boundary follows the reef contour as shown on the map.  The southern boundary is not clear from the testimony or the map.

     Netewechis is bounded on the south by the causeway, on the west by the channel Namen Tawanap, on the east by the Mechchitiw-Tunnuk boundary. The northern boundary is uncertain from the map and the testimony.8

     Pechemetik is bounded on the east (Tunnuk side) by the western side of the channel Namen Tawanap.  The western boundary of the dry land Nekinin forms the western boundary of the tideland which runs perpendicular (90E) to the shoreline until it intersects the channel Namen Tawanap.

     Tawanap is not a tideland but is a deep water channel.  The court finds that a channel is a deep water passage through a reef that is too deep for Chuukese women to engage in traditional fishing methods such as those mentioned above as commonly conducted in tidelands.  While it may be true that under Chuukese tradition and custom channels were owned, Article IV, 4 of the constitution does not mention recognizing traditional rights over channels.9

B.  Ownership
     Both of the plaintiff and defendant have asserted traditional ownership of the tidelands in question based in part on their claim of being the true Rak clan from which the traditional chiefs of Mechchitiw come.  As part of each sides proof they traced their lineage back several generations to particular clan mothers that they claimed to be their punufas.

     The court and the assessor both noted that each of the plaintiffs' and the defendants' named punufas came from the same generation.  Neither side's genealogy goes beyond this same generation.  The court and the assessor infer from this evidence that the two named punufas both had the same mother or were sisters under custom.  The court and the assessor also noted that both sides had male members who had at sometime been chief of Mechchitiw.  The court and the assessor find that there is in fact only one clan of Rak-Mechchitiw and from that clan comes the traditional leader of Mechchitiw.  This finding was confirmed by the current traditional chief of Mechchitiw Chitaro.  The assessor stated the relationship between the plaintiff and the defendant in the following manner:

     Ou munuto mwo fefin me mwan,
     Nengin me at chon napeni fonu,
     Chon osonapeni fonu sipwe ne ineti,
     Ineti nopung inetin namenin,
     Inom nge inei inachupok
     Semom nge semei samachupok

[7 FSM Intrm. 6]

     Pwim nge pwi pwichupok
     Osom nge osei osachupok
     Fanuwom nge fonuei fonuwachupok
     Onom nge enei anachupok
     Nonom nge nonoi nonochupok
     Sipwe ne urur non nomosepi sipwe
     Ochuwawu punguni nomosepi sia ta ren
     Sia os ren afan afan afan mwarisom

     The intervenor's claim rests on the premise that her clan was the original clan in the Mechchitiw area and therefore her clan was the traditional owner of the area.  In addition the intervenor asserts that her clan is the traditional chief clan of all of Weno.  The intervenor claimed all the tidelands in question were in fact the channel Tawanap.  The intervenor's own testimony demonstrated that her clan left the Mechchitiw area sometime before the coming of foreigners (this would have been approximately 200 years ago).  According to the testimony of the intervenor the only return of any members of her clan to the tideland to do any traditional fishing was sometime between 1947 and 1949 and again in 1977.

     The assessor is of the opinion and the court finds that the intervenor's clan can no longer claim traditional ownership of the tidelands in question because part of traditional ownership of tidelands comes from the continued use of that tideland.  Additionally, the fact that Chief Petrus Mailo himself recognized the Rak clan as the traditional chief clan of Mechchitiw also implies that the Rak clan has the traditional tideland rights over the area in question.

     The court and the assessor find that the Rak clan of Mechchitiw is the traditional owner of all the tidelands in question with the exception of Pechemetik and Wonpou.  The court finds that the defendants denied the existence of a tideland named Pechemetik and therefore did not claim any title to a tideland of that name.  The court finds that the plaintiff proved by a preponderance of the evidence that Pechemetik exists and therefore finds that the plaintiff and her lineage are the owners of that tideland.

     As for Wonpou the defendants did not claim any ownership in that tideland and therefore the court finds that the plaintiff's lineage is the owner of that tideland subject to any claims by individuals not parties to this action.

     The court as noted above also finds that the boundaries of Wisino may be subject claims by individuals not parties to this action.

C.  Counterclaim
     While it is true that the counterclaim for wrongful restraint of the gas station project that involved the tideland Pechemetik has been proven because the plaintiff has prevailed, the court can not award any damages since the counterclaimant failed to prove any specific loss of income.  Although the counterclaimant estimated that had the gas station not been restrained his research indicated that the station would have grossed $1000.00 dollars per day.  Nonetheless the counterclaimant failed to prove the net amount that was lost.  Therefore the court finds that the counterclaimant was only able to speculate as to the actual damage suffered.10

[7 FSM Intrm. 7]

     Based upon the foregoing findings the court makes its conclusions of law as follows.

Conclusions of law
     The court concludes that tideland within the meaning of Article IV, 4 of the Chuuk Constitution means those marine lands from the shore to the face of the reef that are shallow enough for traditional fishing activity by women.  The court concludes that the constitutional recognition of traditional rights in Article IV does not include deep water channels.  Therefore the court concludes that Namen Tawanap is not a tideland.  The court also concluded that tidelands that have become dry land, prior to the effective date of the constitution, through filling or other activity that raised the level of the marine lands above the mean high tide mark, are not covered by Article IV of the constitution.  This conclusion is based on the holding of Aizawa v. Mori, CA No. 16-92 (Trial Div. May 11, 1994).

     The court and the assessor conclude that the tidelands Wisino, Pechemetik, Ifites, Achenemai, Wonpou, Netewechis exist.

     The court and the assessor conclude that there is only one Rak Clan of Mechchitiw and they are the joint owners of the tidelands Wisino, Ifites, Netewechis, Achenemai.

     The court concludes that the tideland Pechemetik was proven to exist by a preponderance of evidence and therefore belongs to the lineage represented by the plaintiff since the defendants denied it existed and make no claim to any tideland of that name.  The court also concludes that as between the parties the plaintiff's lineage has the better title to Wonpou as the defendants did not claim ownership of that tideland.  This tideland may be subject to claims by others not a party to this action.

     The court and the assessor conclude that the nominal boundary between Mechchitiw and Tunnuk runs along the center of Pou bay in the deep water to a point near the center of the causeway and then along the western edge of the channel Namen Nenomonen.

     The court concludes that since the tideland Pechemetik exists and is owned by the lineage represented by the plaintiffs the preliminary injunction is dissolved and is of no force and effect.  The court concludes that the counterclaimant failed to sustain his burden of proving damages to a necessary certainty for wrongful restraint.

     The court and the assessor conclude that intervenor and her clan were the original people in Mechchitiw, and that her clan left the Mechchitiw area before the arrival of foreigners.  The court and the assessor further conclude the tidelands in question have passed to the Rak clan of Mechchitiw by virtue of Rak's continued use since the time of the leaving of intervenor's clan.

     These are the findings and conclusions upon which the court's judgment previously entered on December 16, 1994 were based.

*    *    *    *
 
Footnotes:
 
 1.  The fact that Justice O'Sonis had been counsel of record precluded his appointment to the case once he became a Justice of the court.
 
 2.  Justice Petewon was not assigned because he had purchased property in the disputed area.  Also the Chief Justice did not assign the case to himself as he is a member of the clan of Rak.  Thus no sitting justice on the court was eligible to act in this case.  As a result the Chief Justice appointed a Special Trial Court Justice to hear this case pursuant to General Court Order 2-94.
 
 3.  All of the trial counsellors are members of the Chuuk State Office of the Attorney General. The court by order required all counsel to advise their clients of the possible conflict of interest by being represented by trial counsellor that all worked at the same office and to have their clients waive in writing any conflict.
 
 4.  Not all of these divisions are represented in all tideland areas.
 
 5.  Defendant's Exhibit B admitted into evidence is an aerial photo map of the location which accurately represents the area prior to the major of the dredging that occurred in the area for the expansion of the airport.
 
 6.  This man-made island is clearly apparent on Defendants Exhibit B admitted into evidence. The aerial photos upon which the map is based were taken in 1976.  The land contours of the map were based on a survey done in 1970.
 
 7.  The court notes that this tideland is subject to claims from Tunnuk people as to whether the tideland is partially or totally on their side of the boundary.
 
 8.  The common boundary between Ifites and Netewechis is not certain because it is obvious to the court from the map being used that some dredging has taken place in the area between these two tidelands before the map was made.
 
 9.  The court is also of the opinion that since the framers of the constitution did not specifically mention recognizing the traditional ownership of channels the state retains ownership of such channels as was the situation prior to the adoption of the constitution.
 
 10.  Any claimant that seek damages from the court must prove the actual damages suffered. The fact that had the gas station business opened on time it would have grossed the amount of $1000.00 a day is only a estimate. Further even if that amount could be proved by a preponderance of the evidence the claimant is entitled only to lost profits.  This would be the amount that the claimant would have netted after deducting expenses such as the cost of obtaining the gas sold, the payment of salaries to workers and any other payments that constitute the cost of doing business.
                                                                                                                                                                                                                                                                                                           
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