THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as Nelper v. Akinaga, Pangelinan & Sita Co. ,
8 FSM Intrm. 528 (Pon. 1998)

[8 FSM Intrm. 528]

DOUGLAS NELPER and MALPIHNA NELPER,
Plaintiffs,

vs.

AKINAGA, PANGELINAN and SITA
COMPANY (APSCO),
Defendant.

CIVIL ACTION NO. 1995-100

ORDER AND MEMORANDUM OF DECISION

Andon L. Amaraich
Chief Justice

Trial:  March 18-21, May 26-June 3, 1997
Decided:  December 28, 1998

APPEARANCES:

For the Plaintiff:          Delson Ehmes, Esq.
                       P.O. Box 1018
                       Kolonia, Pohnpei FM 96941

For the Defendant:     Brian Stowell, Esq.
                       Law Offices of R. Barrie Michelsen
                       P.O. Box 1618
                       Kolonia, Pohnpei FM 96941

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HEADNOTES

Torts ) Trespass
     An action for trespass has been broadly defined in the FSM as a wrongful interference with another's possessory interest in property.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 533 (Pon. 1998).

Torts ) Trespass
     One is subject to liability to another for trespass, irrespective of whether he causes harm to any legally protected interest of the other, if he 1) intentionally and without consent enters land in the possession of the other, or causes a thing or person to do so, or 2) intentionally and without consent remains on the land of the other, or 3) intentionally fails to remove from the land a thing which he is

[8 FSM Intrm. 529]

under a duty to remove.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 533-34 (Pon. 1998).

Torts ) Trespass
     When the intrusion is the result of reckless or negligent conduct, or the result of an abnormally dangerous activity, trespass liability attaches only where harm is caused to the land, to the possessor, or to a thing or a third person in whose security the possessor has a legally protected interest.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 534 (Pon. 1998).

Torts ) Nuisance
     Nuisance is generally regarded as a substantial interference with the use and enjoyment of another's land caused by intentional and unreasonable conduct, or caused unintentionally by negligent or reckless conduct, or the performance of an abnormally dangerous activity.  A substantial interference is actual, material, physical discomfort, material annoyance, inconvenience, discomfort, or hurt, or significant harm, that affects the health, comfort, or property of those who live nearby.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 534 (Pon. 1998).

Torts ) Nuisance
     An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if a) the gravity of the harm outweighs the utility of the actor's conduct, or b) the harm caused by the conduct is serious and the financial burden of compensating for it and similar harm to others would not force the defendant out of business.  In determining the gravity of harm, a court will consider the extent and character of the harm, the social value and suitability to the community of the use and enjoyment involved, and the burden on the person harmed of avoiding the harm.  In determining the utility of the conduct, a court will consider the social value and suitability to the community of the conduct, and the impracticability of preventing or avoiding the invasion.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 534 (Pon. 1998).

Torts ) Nuisance
     Nuisances are classified as either permanent, continuing, recurring or temporary in nature.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 534 (Pon. 1998).

Torts ) Nuisance
     A permanent nuisance is one which may be expected to continue indefinitely, and is generally caused by a single act that permanently affects the property's value.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 534 (Pon. 1998).

Torts ) Nuisance
     A temporary, recurring or continuing nuisance is one which is intermittent or periodic and can be abated, such as an ongoing or repeated disturbance caused by noise, vibration or a foul odor.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 534 (Pon. 1998).

Torts ) Nuisance
     Nuisances that affect the public at large are classified as public nuisances, while those that affect an individual or a small number of individuals are classified as private nuisances.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 534 (Pon. 1998).

Torts ) Negligence; Torts ) Nuisance
     Negligence is a separate tort from nuisance.  Although negligence is one kind of conduct upon which liability for nuisance may be based, negligence is not a necessary ingredient for a nuisance.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 534 (Pon. 1998).

[8 FSM Intrm. 530]

Torts ) Negligence
     Under Pohnpei law, negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances.  It is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 535 (Pon. 1998).

Torts ) Negligence
     The elements of actionable negligence are:  1) a duty of care, 2) a breach of that duty, and 3) damages proximately caused by that breach.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 535 (Pon. 1998).

Torts ) Duty of Care; Torts ) Negligence
     One who carries on a dangerous activity must use care commensurate with the risk or danger of injury involved or suffer liability for resulting injuries.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 535 (Pon. 1998).

Torts ) Strict Liability
     Strict liability arises where the activity performed is not merely dangerous, but abnormally dangerous.  One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 535 (Pon. 1998).

Torts ) Strict Liability
     Strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.  In determining whether an activity is abnormally dangerous, the following factors are to be considered:  a) the existence of a high degree of some harm to the person, land or chattels of others; b) the likelihood that the harm that results from it will be great; c) the inability to eliminate the risk by the exercise of reasonable care; d) the extent to which the activity is not a matter of common usage; e) the inappropriateness of the activity to the place where it is carried on; and f) the extent to which its value to the community is outweighed by its dangerous attributes.  Whether the activity is an abnormally dangerous one is to be determined by the court.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 535 (Pon. 1998).

Torts ) Nuisance
     There is no liability for nuisance when the structural damage to the plaintiffs' house was caused by the plaintiffs' improper construction, poor maintenance and general deterioration and not by vibrations from the defendant's nearby blasting.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 539 (Pon. 1998).

Torts ) Trespass
     There is no liability for trespass when the construction and use of a turnaround area did not exceed that contemplated by the parties in a valid lease agreement.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 539 (Pon. 1998).

Contracts; Torts ) Trespass
     When the parties did not reach a full understanding of what would be provided in exchange for the right to build an access road across the plaintiffs' land, but the defendant did agree to compensate the plaintiffs in some way, and when the defendant represented to the plaintiffs that the access road, once constructed, would be usable by the plaintiffs' vehicle, the defendant is liable to make the road

[8 FSM Intrm. 531]

passable by car or truck.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 539-40 (Pon. 1998).

Torts ) Trespass
     Defendant committed a trespass when it caused two to three inches of soil to deposit on plaintiffs' land in an area approximately 12 by 14 feet.  Defendant is liable to plaintiffs for the cost to return this area of plaintiffs' land to its original condition.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 540 (Pon. 1998).

Torts ) Nuisance
     Defendant created a permanent nuisance with its creation of a cliffline at the boundary of plaintiffs' property that has made plaintiffs' land susceptible to erosion over time, diminishing the value of plaintiffs' land.  Defendant shall compensate plaintiffs for the diminished property value, and further undertake reasonable efforts to stabilize the cliffline to prevent future erosion.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 540 (Pon. 1998).

Torts ) Duty of Care
     It is a breach of a duty of care to fail to warn persons known to be on nearby land when blasting will occur.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 540 (Pon. 1998).

Torts ) Nuisance
     The first step in evaluating nuisance liability is to determine whether there has been substantial interference with plaintiffs' use and enjoyment of their land.  The second step is to determine whether the harm caused by the defendant was intentional or unintentional.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 540 (Pon. 1998).

Torts ) Nuisance
     When harm is intentionally caused, liability attaches if the harm is unreasonable.  Under the definition of nuisance, interference is unreasonable if the gravity of the harm outweighs the utility of the conduct, or the harm is serious and the financial burden of compensating for it and similar harm to others would not force the defendant out of business.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 540-41 (Pon. 1998).

Torts ) Nuisance
     If harm is unintentionally caused, nuisance liability will attach when it is the result of negligent or reckless conduct, or the result of an abnormally dangerous activity.  If defendant's conduct was unintentional, the next step would be to evaluate whether the conduct was reasonable (i.e. negligence analysis), or the result of an abnormally dangerous activity.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 540-41 n.2 (Pon. 1998).

Torts ) Negligence; Torts ) Nuisance
     The focus of a negligence analysis is on the actor's conduct, while the focus of an intentional nuisance analysis is on the resulting interference.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 541 (Pon. 1998).

Torts ) Nuisance
     The logic behind an intentional nuisance analysis is that, regardless of whether a defendant acted with reasonable care, it is unfair (i.e. unreasonable) to allow the defendant to intentionally cause serious harm to a plaintiff without compensating the plaintiff.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 541 (Pon. 1998).

[8 FSM Intrm. 532]

Torts ) Nuisance
     A defendant will not be required to abate its nuisance when it operates under permits granted by appropriate state agencies, its quarrying operation uses proper blasting methods, its quarry operation is necessary, and its quarrying activities have substantial public utility for the people in Pohnpei.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 541 (Pon. 1998).

Torts ) Strict Liability
     A strict liability claim will be rejected when the defendant's blasting was not performed in an abnormally dangerous manner.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 541 (Pon. 1998).

Torts ) Damages
     Punitive damages will be rejected when the defendant conducted its blasting and quarrying activities with an intentional, reckless or wanton disregard of the of the plaintiffs' rights and safety.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 541 (Pon. 1998).
 
Torts ) Damages
     Plaintiffs' children are not entitled to recover damages when they are not named as plaintiffs to the action.  Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 542 (Pon. 1998).

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COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:

Introduction
     In this action, plaintiffs Douglas and Malpihna Nelper assert a series of claims against Defendant Akinaga, Pangelinan, and Saita Company ("APSCO") for personal injury and property damage arising out of defendant's quarrying activities on land adjacent to plaintiffs' own.  Plaintiffs also seek injunctive relief against defendant's quarrying activities.

     This matter came before the Court for trial beginning on March 18, 1997. Delson Ehmes, Esq. appeared on behalf of the plaintiffs.  Brian Stowell, of the Law Offices of R. Barrie Michelsen, appeared on behalf of the defendant.  After fully considering the testimony and physical evidence presented by both parties, and after visiting the quarry and plaintiffs property, the Court finds in favor of plaintiffs on certain of their trespass, nuisance and negligence claims, and against plaintiffs on their strict liability claim, prayer for punitive damages, and certain of their trespass, nuisance and negligence claims.  The Court finds that injunctive relief is not appropriate.  The reasoning for the Court's decision is set forth below.

Procedural History
     Plaintiffs' original Complaint was filed on September 4, 1995.  After the parties engaged in discovery, on September 25, 1996 plaintiffs moved for leave to file a First Amended Complaint.  The Court granted that motion on October 16, 1996. Defendant answered that First Amended Complaint on November 5, 1996. Plaintiffs filed a Pretrial Statement on January 7, 1997.  On January 17, 1997, defendant moved to reopen discovery.  On January 21, 1997, the Court granted that motion, vacated the existing trial date and rescheduled trial for March 18, 1997.  Plaintiff filed an Amended Pretrial Statement on March 11, 1997.  Trial commenced on March 18, 1997.  The parties submitted post trial

[8 FSM Intrm. 533]

briefs on June 24, 1997.

Undisputed Facts
     Defendant APSCO operates a rock quarry on land in Sokehs, Pohnpei, that was leased by defendant from the now-deceased Karl Kohler.  Defendant has conducted blasting with explosives at various times as part of its quarrying operations.  Plaintiffs Douglas and Malpihna Nelper own and occasionally occupy one third of Parcel No. 074-A-09 which is adjacent to defendant's rock quarry. Plaintiffs have a three bedroom concrete house on that portion of Parcel No. 074-A-09 close to the quarry site.

Arguments of the Parties
     Plaintiffs claim that vibrations from defendant's blasting and quarrying operations have caused damage to them, to their house, and to their land. Specifically, plaintiffs claim that defendant's blasting has:  (1) caused structural and other damage to their home; (2) prevented them from using or accessing their house or land when blasting is occurring; and (3) caused them emotional distress by dislodging rocks close to their house and making them fear for their family's safety and the safety of their home.  Plaintiffs also claim that defendant's quarrying activities have resulted in the creation of a cliffline at the boundary of their property, removing lateral support and leaving their land susceptible to erosion. Finally, plaintiffs contend that they were never fully compensated by defendant for defendant's construction of an access road over their land, or for defendant's use of a portion of their land for a turnaround area.

     Plaintiffs seek to recover damages for these injuries under a variety of theories, including trespass, nuisance, negligence and strict liability.1  Plaintiffs seek compensatory damages, punitive damages, abatement of the nuisance and its effect, and restoration of the lateral support of their land.

     With respect to plaintiffs' claims grounded in negligence, trespass, nuisance and strict liability, defendant argues that it has conducted its operations using the safest procedures possible, and that any inconvenience to plaintiffs is outweighed by the public utility of the quarry's operation and therefore is not compensable.  In addition, no damages are warranted because plaintiffs moved to Kolonia in 1990 or 1991, and have not changed the use of their land since that time as a result of defendant's activities.  Defendant further argues that plaintiffs have waived any potential trespass claims against it for construction of the access road and turnaround area by entering into a lease agreement for defendant's ingress and egress over that portion of plaintiffs' land.

Applicable Law
     Plaintiffs assert claims for trespass, negligence, nuisance and strict liability.

A.  Trespass
     An action for trespass has been broadly defined in the Federated States of Micronesia as a wrongful interference with another's possessory interest in property.  In re Parcel No. 046-A-01, 6 FSM Intrm. 149 (Pon. 1993).  Drawing from this principle, this Court finds that one is subject to liability to

[8 FSM Intrm. 534]

another for trespass, irrespective of whether he causes harm to any legally protected interest of the other, if he (1) intentionally and without consent enters land in the possession of the other, or causes a thing or person to do so, or (2) intentionally and without consent remains on the land of the other, or (3) intentionally fails to remove from the land a thing which he is under a duty to remove.  Restatement (Second) of Torts 158 (1977).  Where the intrusion is the result of reckless or negligent conduct, or the result of an abnormally dangerous activity, liability attaches only where harm is caused to the land, to the possessor, or to a thing or a third person in whose security the possessor has a legally protected interest.  Id. 165.

B.  Nuisance
     Neither party has pointed to any FSM or Pohnpei State case addressing common law nuisance claims and this Court has located none.  Accordingly, the Court will explain what is meant by the term "nuisance" in those jurisdictions that recognize such causes of action.  See Semens v. Continental Air Lines, 2 FSM Intrm. 131 (Pon. 1985) (this Court may look to the law of other jurisdictions, including United States law, for guidance where the law of this jurisdiction has not yet addressed substantive areas of tort law).

     "Nuisance" has many definitions, but is generally regarded as a substantial interference with the use and enjoyment of another's land caused by intentional and unreasonable conduct, or caused unintentionally by negligent or reckless conduct, or the performance of an abnormally dangerous activity.  58 Am. Jur. 2d Nuisance 69, 92-95 (1989); Restatement (Second) of Torts 822 (1977).  A substantial interference is "actual, material, physical discomfort, material annoyance, inconvenience, discomfort, or hurt, or significant harm, that affects the health, comfort, or property of those who live nearby."  58 Am. Jur. 2d. Nuisance 92 (1989).

     An intentional invasion is one where the actor acts for the purpose of causing it, or knows that it is resulting or substantially certain to result from his conduct. Restatement (Second) of Torts 825 (1977).  An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if (a) the gravity of the harm outweighs the utility of the actor's conduct, or (b) the harm caused by the conduct is serious and the financial burden of compensating for it and similar harm to others would not force the defendant out of business.  Id. 826.  In determining the gravity of harm, the Court will consider the extent and character of the harm, the social value and suitability to the community of the use and enjoyment involved, and the burden on the person harmed of avoiding the harm. Id. 827.  In determining the utility of the conduct, the Court will consider the social value and suitability to the community of the conduct, and the impracticability of preventing or avoiding the invasion.  Id. 828.

     Nuisances are classified as either permanent, continuing, recurring or temporary in nature.  58 Am. Jur. 2d Nuisance 32 (1989).  A permanent nuisance is one which may be expected to continue indefinitely, and is generally caused by a single act that affects the value of the property permanently.  Id. at 27.  A temporary, recurring or continuing nuisance is one which is intermittent or periodic and can be abated, such as an ongoing or repeated disturbance caused by noise, vibration or a foul odor.  Id. at 28.  Nuisances that affect the public at large are classified as public nuisances, while those that affect an individual or a small number of individuals are classified as private nuisances.  Id. at 32.

C.  Negligence
     Negligence is a separate tort from nuisance.  Although negligence is one kind of conduct upon which liability for nuisance may be based, negligence is not a necessary ingredient for a nuisance.  58 Am. Jur. 2d Nuisance 9 (1989). Because tort law is primarily state law, plaintiffs' negligence claims are governed by the substantive state law of Pohnpei.  The FSM Supreme Court's duty is to apply the

[8 FSM Intrm. 535]

law the same way the highest state court in Pohnpei would.  Fabian v. Ting Hong Enterprises, 8 FSM Intrm. 63, 64-65 (Chk. 1997).

     In Koike v. Ponape Rock Products, 3 FSM Intrm. 57 (Pon. S. Ct. Tr. 1986), the Pohnpei Supreme Court adopted the common law definition of negligence as follows:

Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances.  It is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances.

3 FSM Intrm. at 66.  The elements of actionable negligence are: (1) a duty of care, (2) a breach of that duty, and (3) damages proximately caused by that breach. Fabian, 8 FSM Intrm. at 65.

D.  Strict Liability
     There appear to be no FSM cases applying strict liability principles based on the use of abnormally dangerous devices.  The cases plaintiffs cite are negligence cases.  See Koike Rock Products, Inc., supra; Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21 (App. 1985).  These cases recognize the general principle that one who carries on a dangerous activity must use care commensurate with the risk or danger of injury involved or suffer liability for resulting injuries.  See also 65 C.J.S. Negligence 66 (1966).

     Strict liability arises where the activity performed is not merely dangerous, but abnormally dangerous.  One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. Restatement (Second) of Torts 519(1) (1977).  This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.  Id. 519(2).

     In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) the existence of a high degree of some harm to the person, land or chattels of others; (b) the likelihood that the harm that results from it will be great; (c) the inability to eliminate the risk by the exercise of reasonable care; (d) the extent to which the activity is not a matter of common usage; (e) the inappropriateness of the activity to the place where it is carried on; and (f) the extent to which its value to the community is outweighed by its dangerous attributes.  Restatement (Second) of Torts 520 (1977).  Whether the activity is an abnormally dangerous one is to be determined by the Court.  Id. 520 cmt. l.

Testimony at Trial
     The Court heard testimony from the following witnesses: Douglas Nelper, plaintiff; Malpihna Nelper, plaintiff; Del Pangelinan, officer and president of APSCO; Daniel Isaac, civil engineer for FSM Office of Planning and Statistics, and relative of plaintiffs; Donna Scheuring, Environmental Consultant for Pohnpei State Environmental Protection Agency; Melsohr Gilmete, expert on customs and traditions of Pohnpei; Arnel Perez, civil engineer for A & P Construction, a company related to the defendant; Shiro Akinaga, current Manager of APSCO; Timothy McVey, licensed surveyor for Pacific Survey; Oscar Saimon, former worker for the quarry in Sekere; Eldan Hellan, Executive Officer of Pohnpei State Environmental Protection Agency; Eugene Douglas, instructor of Earth Sciences at College of Micronesia-FSM; Emensio Eperiam, Deputy Chief of Historic Preservation and Cultural Affairs for Pohnpei State; and Serino Peter, driller and blaster for APSCO since 1995.  The deposition of Inek

[8 FSM Intrm. 536]

Santos, who formerly worked at APSCO, and who died after this litigation commenced, was admitted into evidence.  The deposition of Yukiyoshi Kitamura, former Manager for APSCO, was also admitted into evidence.

Findings of Fact and Conclusions of Law
     Based on the testimony presented during days of trial, the numerous exhibits presented by both parties, the site inspection, and the arguments of counsel, the Court now makes the following findings of fact and conclusions of law:

A.  Findings of Fact
     1.  Defendant operates a quarry in Ipwal, Sokehs, on Parcel No. 074-A-08, under a 25 year lease with an option to re-lease for another 25 years, entered into with the now-deceased Karl Kohler.  Test. of D. Pangelinan.  Defendant selected Ipwal for its quarry site because of the quantity and quality of the rock available. Id. At the time of trial, defendant's quarry in Ipwal was the only operating quarry on Pohnpei.  Id.

     2.  Douglas and Malpihna Nelper own one-third of Parcel No. 074-A-09.  Test. of D. Nelper.  The one-third portion of Parcel No. 074-A-09 owned by Douglas and Malpihna Nelper is directly adjacent to Parcel No. 074-A-08.  Id.  On plaintiffs' land is a three bedroom cement house built in 1970 by Douglas Nelper's father. Id.  Plaintiffs' did a $3,500 renovation on the house in 1987, which involved replacing the original tin roof with a cement roof, and repairing the rooms.  Id. Plaintiffs' house is about 50 feet from the property line of Parcel 074-A-08.  Test. of T. McVey.

     3.  In mid-1993, a representative of defendant contacted Douglas Nelper and asked to purchase his land.  Test. of D. Nelper.  Mr. Nelper refused approximately one month later.  Id.

     4.  On February 23, 1993, the Pohnpei Department of Health Services issued defendant permit no. PP-28-93, valid through December 30, 1993 to conduct quarrying activities.  Stipulated Ex. 5.  On February 3, 1994, the Pohnpei State Environmental Protection Agency ("EPA") issued defendant amended permit no. PP-28-93, valid through January 31, 1995.  Id.  The amended permit increased the fill area by approximately 50% and altered the culvert requirement.  Id.  On June 11, 1994, the Pohnpei State Department of Land issued defendant a Land Fill Permit.  Pl. Ex. 1; Pl. Ex. 2.

     5.  In June or July of 1993, Oliver Joseph, an officer of APSCO, approached Douglas Nelper about constructing an access road to defendant's leased land through plaintiffs' land.  Test. of D. Nelper and M. Nelper.  Oliver Joseph had full authority to represent defendant at that time.  Test. of D. Pangelinan.  Douglas Nelper testified that Mr. Joseph agreed to build the access road such that Mr. Nelper could get to the top of his own property by car or truck.  Test. of D. Nelper. Mr. Joseph further agreed to do some earthmoving around plaintiff's house, do a driveway, and put debris in the swamp.  Id.  Malpihna Nelper testified that Mr. Joseph had stated, in connection with the access road, that if anything went wrong with the house or the crops, defendant would pay.  Test. of M. Nelper.  Mr. Joseph also stated that defendant would maintain the road so it could be used to go up to the land, and that once the road was done they would maintain it so cars could be used on the road.  Id.  Malpihna Nelper also testified that plaintiffs asked if defendant could build a carpark, make some landfill for a cook house, and extend plaintiffs' land into the mangroves.  Id.  Mr. Joseph responded that he would meet with defendant but that he would guarantee that they would do it.  Id.  Malpihna Nelper's understanding after speaking to Mr. Joseph was that if anything happened to the house, defendant would pay.  Id.

[8 FSM Intrm. 537]

     6.  Plaintiffs agreed to allow defendant to construct the access road.  Test. of D. Nelper.  Construction began the next day and took about a week to complete. Id.  The land cleared for the access road was about six to seven feet across and approximately 70 meters long, and contained breadfruit, coconut and mango trees.  Id.  The access road was made about 50 or 60 feet from the Nelper house, and part of the road is elevated above plaintiffs' house.  Id.

     7.  Once defendant moved its machinery up the access road, it ceased work on the access road.  Id.  Soon after, defendant began building a turnaround area on a different portion of plaintiff's land, without plaintiffs' consent.  Id.  The access road was not usable by a small car or truck.  Id.

     8.  Plaintiffs drafted a Memorandum of Understanding ("MOU") between defendant and themselves dated October 1993.  Stipulated Ex. 4.  The stated "Subject of MOU" is the "Access road to APS property that crosses Nelper land, turn-around on Nelper land, and mutually agreeable monetary and non-monetary compensatory acts to make this transaction mutually beneficial."  Id.  The MOU was never signed by either party.  Id.; Test. of D. Nelper.

     9.  On January 4, 1994, Douglas Nelper and defendant entered into a Lease Agreement under which Mr. Nelper, as lessor, and defendant as lessee agreed that lessor would lease to lessee that portion of Parcel No. 074-A-09 which is located next to lessee's quarry site and used by lessee as a vehicle turnaround area for the period from July 1993 through February 1994.  Stipulated Ex. 13. Lessee agreed to pay lessor $250 per month, to be paid in one lump sum of $2,000.  Id.  That Lease Agreement recited that it constituted the "entire agreement between the parties, and supersedes any and all prior agreements between the parties."  Id.  Paragraph 5 recited that "Lessor expressly agrees that payment of the lump sum rental by lessee under this agreement fully satisfies any and all obligations of lessee to lessor, and that lessor has no further claim of any kind against lessee regarding lessee's use of the premises.  Id.  "Premises" is defined as "that portion of Parcel No. 074-A-09, located in Ipwal, Sokehs, Pohnpei, which is located next to lessee's quarry site and used by lessee as a vehicle turnaround area."  Id.  Del Pangelinan testified that his understanding was that the Lease Agreement superseded the MOU and took care of all plaintiffs' complaints.  Test. of D. Pangelinan.

     10.  Defendant's excavation and bull-dozing creates a slope which minimizes erosion.  Test. of S. Akinaga.  A "cliffline" was created by defendant's quarrying activities which slopes downward from plaintiffs' property line at an angle of between 45 and 90 degrees.  Test. of E. Douglas, D. Isaac, S. Akinaga, and T. McVey.  There is no possibility of landslide, and any erosion will run to defendant's lower-lying property.  Test. of E. Douglas.  There is a second 35 to 40 degree slope created by defendant which leads down behind plaintiffs' house.  Test. of E. Douglas.  Erosion has occurred along this slope from defendant's property onto plaintiffs' property, toward plaintiffs' cook house.  Test. of D. Nelper; Pl. Exs. 15 and 16.  Two to three inches of soil have been deposited by erosion in an area approximately 12 by 14 feet square.  Id.

     11.  Defendant first began blasting on January 19, 1995.  Depo. of Inek Santos.  On June 2, 1995, defendant received an earthmoving permit from the Pohnpei State Environmental Protection Agency ("EPA"), Permit No. PP-28-93 A IV, valid through May 30, 1996 for Quarry Operation and Blasting at Ipwal, Sokehs, Pohnpei.  Stipulated Ex. 10.  Defendant had no valid permit for blasting it performed at Ipwal in January, February, and May, 1995.  Test. of D. Scheuring; Stipulated Exs. 5, 6 and 10.

     12.  Defendant typically does three blasts a day.  Test. of S. Peter.  One blast consists of approximately 10 or 11 holes, each filled with dynamite.  Id.  Defendant uses a 100 foot long string to detonate the blasts.  Id.  Each hole is detonated 25 milliseconds apart.  Id.  Defendant announces its intent to blast over the radio, and personally notifies employees and nearby residents.  Id.  The

[8 FSM Intrm. 538]

public road, which is about 250 feet from the blasting site, is closed during blasting.  Id.  Defendant's employees routinely stand within 100 feet of explosives during blasting.  Id.  Blasting is typically done in the late afternoon, and the next day a backhoe is used to break the rocks and place them into the crusher.  Test. of S. Akinaga.

     13.  The Pohnpei Environmental Protection Agency ("EPA") limited defendant's blasting permits to no more than 11 holes.  Test. of D. Scheuring.  An EPA inspection report dated June 8, 1995 stated that defendant had blasted 12 holes at the quarry in violation of defendant's permit.  Stipulated Ex. 15; Pl. Ex. 15. On December 4, 1995, the EPA wrote to defendant noting that on November 29, 1995, defendant had blasted 12 holes in violation of its permit.  Pl. Ex. 8. Defendant responded on December 6, 1995, admitting the violation and apologizing.  Pl. Ex. 7.

     14.  In January or February 1995, defendant conducted blasting without giving plaintiffs advanced warning.  Test. of M. Nelper and D. Nelper.  The strong blast frightened Malpihna Nelper and caused a large rock to fall near where she and her two youngest children were taking a shower.  Test. of M. Nelper.  Douglas Nelper was 100-200 meters from his house and felt the vibration from the blast. Test. of D. Nelper.  He was scared and worried and went to check on his wife and children at the house.  Id.  Malpihna Nelper spoke with Inek Santos shortly after the blast, and Mr. Santos apologized for not notifying plaintiffs before the blasting occurred.  Test. of M. Nelper; Deposition of I. Santos.

     15.  In mid 1995, Malpihna Nelper and Donna Scheuring observed the strength of vibration of one blast from the porch of plaintiffs' house.  Test. of M. Nelper and D. Scheuring.  Malpihna Nelper's impression was that the blast was not as strong as the previous one she had felt in January or February of 1995.  Test. of M. Nelper.  Donna Scheuring described the blast as the same feeling as when a heavy dump truck drives by in front of a house.  Test. of D. Scheuring.  The blast lasted less than five seconds.  Test. of M. Nelper and D. Scheuring.

     16.  Since the blasting started, Douglas Nelper has observed cracks in the walls, porch and ceiling of his house.  Test. of D. Nelper.  He believes that a wide crack in the ceiling beam was caused by the blasting and defendant's heavy equipment going up and down to the quarry site.  Id.

     17.  In June 1995, plaintiffs' house had cracks running along each of its four exterior walls, and along the flat upward surface of the front porch.  Stipulated Ex. 7.

     18.  In April and October, 1996, Daniel Isaac observed damage to the walls, flooring, ceiling beams and roofing slab of plaintiffs' house.  Test. of D. Isaac.  Mr. Isaac believed that the damage was a result of the quarrying activities in the area. Id.  Mr. Issac and plaintiff Douglas Nelper are first cousins.  Id.

     19.  Arnel Perez inspected plaintiffs' house and is of the opinion that the cement roof should have been supported by a vertically-oriented beam for greater strength.  Test. of A. Perez.  The failure to use a vertically-oriented beam is the cause of the majority of structural damage to plaintiffs' house.  Id.  The beam holding up plaintiff's roof was deflected and cracked by the weight of the cement roof.  Id.  A beam was also improperly placed across a door jamb.  Id.  The house has been poorly maintained.  Id.  The strength of plaintiffs' house has declined since it was constructed in the 1970's because the white sand used in construction is taken from the sea, and corrodes rebar over time.  Id.

     20.  Douglas Nelper moved to Kolonia in 1991, and thereafter travelled back and forth between houses in Kolonia and Ipwal.  Test. of D. Nelper.  Before the quarrying, he had spent most nights in Ipwal.  Id.  He now stays primarily in Kolonia because he feels it is no longer safe to stay in Ipwal.  Id.  Kolonia is closer to his children's school, and easier for him to commute to work.  Id.

[8 FSM Intrm. 539]

     21.  Malpihna Nelper has been more nervous and moodier after the blasting. Test. of M. Nelper.  She feels it is not possible to stay or live on the land because of the blasting.  Id.  On one occasion she was prevented from entering her land by defendant's employees because defendant was going to blast.  Id.

B.  Conclusions of Law
     1. Structural Damage
     Defendant is not liable for the following structural damage to plaintiffs' house: (1) cracking in the ceiling beam; (2) generalized cracking around the base of the windows and along each of the four exterior walls; (3) cracking on the surface of the front porch; (4) cracking in the roofing slab; and (5) cracking in the floor. Plaintiffs have failed to establish by a preponderance of the evidence that defendant's blasting and quarrying activities were the proximate cause of this structural damage.  The Court finds that this damage was proximately caused by a combination of general deterioration, improper construction, inadequate maintenance, and the replacement of the building's tin roof with a poured cement roof in 1987.

     The Court finds credible the testimony of Arnel Perez that the beam holding up plaintiff's roof was deflected and cracked by the weight of the cement roof, that the cement roof should have been supported by a vertically-oriented beam for greater strength, and that the failure to use such a beam was the cause of the majority of structural damage to plaintiffs' house.  The Court also finds credible Mr. Perez's testimony that poor maintenance and general deterioration were causes of the structural damage.  The exhibits introduced at trial and the condition of the house as observed by the Court during the site inspection support these findings.

     The Court is not persuaded by Mr. Isaac's testimony that the structural damage was caused by vibrations.  Mr. Isaac, who is plaintiff Douglas Nelper's first cousin, employed no methodology, nor offered any factual basis linking the vibrations to any particular structural damage.  Finally, the strength of the blasting was limited by the EPA, and the vibrations as described by the various witnesses did not appear strong enough to have caused the structural damage.

     2. Turnaround Area
     Defendant is not liable to plaintiffs for defendant's creation of a turnaround area.  The parties entered into a valid Lease Agreement, dated January 6, 1994, whereby defendant agreed to pay plaintiffs $2,000, and in return were given permission to construct and use the turnaround area.  Neither the construction or use of the turnaround area exceeded that as contemplated by the parties.

     3.  Access Road
     The Court finds that the parties never reached a full understanding of what defendant would provide in exchange for permission to build an access road across plaintiff's land.  Nevertheless, defendant did agree to compensate plaintiffs in some way for access through their land, and plaintiffs relied on that representation in allowing defendant to use their land for an access road.  It is significant that the land cleared for the access road is about 6 to 7 feet wide and 70 meters long, and had crops growing on it that were destroyed.

     Mr. Pangelinan testified that his understanding was that the Lease Agreement superseded the MOU and took care of all plaintiffs' complaints.  However, the Lease Agreement, by its terms, is expressly limited to compensation for the turnaround area.

[8 FSM Intrm. 540]

     The Court finds credible plaintiffs' testimony that defendant represented to them that the access road, once constructed, would be usable by a vehicle operated by plaintiffs.  The access road is not currently passable by car or truck and does not have a stable surface.  Defendant is liable to plaintiffs for the cost to make the road passable by car or truck.

     The Court further finds that defendant did not agree to maintain the road for any specific period of time, and therefore is not liable to plaintiffs for the value of future maintenance.  Nor did defendant agree to provide a carport, landfill, build a driveway, put debris in the swamp, or extend plaintiff's land into the mangrove, and is not liable to plaintiffs for such.

     4.  Erosion
     Defendant committed a trespass when it caused two to three inches of soil to deposit on plaintiffs' land in an area approximately 12 by 14 feet.  Defendant is liable to plaintiffs for the cost to return this area of plaintiffs' land to its original condition.

     Defendant created a permanent nuisance with its creation of a "cliffline" at the boundary of plaintiffs' property that has made plaintiffs' land susceptible to erosion.  The Court finds credible that part of the testimony of Daniel Isaac and the testimony of Eugene Douglas that erosion will occur at the cliffline.  This testimony is supported by the observations made by the Court at the time of the site inspection.  Defendant presented the testimony of Eugene Douglas that any erosion created by the cliffline will wash materials onto defendant's lower-lying land.  While this may be true, the Court finds that the value of plaintiffs' land is still diminished by the creation of the cliffline and by the gradual erosion of the cliffline over time.  Defendant shall compensate plaintiffs for the diminished property value, and shall further undertake reasonable efforts to stabilize the cliffline to prevent future erosion.

     5.  Blasting and Other Related Quarrying Activities
     The Court finds the failure to notify plaintiffs of the blasting in January or February 1995 was negligent.  Defendant knew plaintiffs were on the land, had a duty to warn them that blasts would occur, and failed to do so.  It is also significant that defendant was conducting this blasting without a valid permit.  The Court finds plaintiffs suffered fear and mental anguish as a result of the blast.

     The Court also finds that defendant breached its duty of care when on at least two separate occasions it blasted 12 holes in violation of its permit.  However, plaintiffs failed to link these blasts to any alleged damage to their property, or to a time when they were present on the property.  The Court finds that plaintiffs have not proven causation, and that defendant is not liable for having violated its permit.

     Defendant's blasting and other related quarrying activities is a continuing private nuisance which has caused plaintiffs fear, annoyance, discomfort and mental anguish.  The first step in evaluating nuisance liability is to determine whether there has been substantial interference with plaintiffs' use and enjoyment of their land.  The Court finds that the vibrations, falling rocks, erosion, noise, landslides and road closures amount to substantial interference.  The second step is to determine whether the harm caused by the defendant was intentional or unintentional.  The Court finds the interference was intentionally caused because defendant knew or was substantially certain that its blasting was harming plaintiffs. Where harm is intentionally caused, liability attaches if the harm is unreasonable.2 Under the

[8 FSM Intrm. 541]

definition of nuisance, interference is unreasonable if the gravity of the harm outweighs the utility of the conduct, or the harm is serious and the financial burden of compensating for it and similar harm to others would not force the defendant out of business.  Restatement (Second) of Torts 826 (1977).  The Court finds that the gravity of the harm to plaintiffs does not outweigh the utility of APSCO's conduct.  However, the Court finds that the harm to plaintiffs is serious and that the financial burden of compensating for this and similar harm to others would not force APSCO out of business.  As such, the Court finds that APSCO's interference was unreasonable.

     The Court's finding of unreasonable interference is not meant to infer that APSCO negligently conducted its day to day blasting and quarrying activities. The focus of a negligence analysis is on the actor's conduct, while the focus of an intentional nuisance analysis is on the resulting interference.  The logic behind the intentional nuisance analysis is that, regardless of whether a defendant acted with reasonable care, it is unfair (i.e. unreasonable) to allow the defendant to intentionally cause serious harm to a plaintiff without compensating the plaintiff. Thus, despite having concluded that defendant conducted its blasting in a reasonable manner,3 the Court may still find that the interference caused is unreasonable.

     The Court finds all elements of intentional nuisance have been met, and that plaintiffs are entitled to compensation for the fear, annoyance, discomfort and mental anguish they have experienced.  The Court recognizes that plaintiffs moved to Kolonia before the blasting began, and that plaintiffs' house in Kolonia is more convenient for their children's school and Douglas Nelper's work.  These facts will be considered when assessing damages.

     Defendant is not required to abate its nuisance.  Defendant operates under permits granted by appropriate state agencies, and the quarrying operation uses proper blasting methods.  Defendant's operation of the quarry is necessary.  At the time of trial, defendant's quarry at Ipwal was the only quarry in Pohnpei. Defendant's quarrying activities have substantial public utility for the people in Pohnpei.  As such, the Court allows defendant to continue its quarrying activities.

     6.  Strict Liability
     The Court rejects plaintiffs' strict liability claim, finding based on the evidence presented that defendant's blasting was not performed in an abnormally dangerous manner.

     7.  Punitive Damages
     The Court rejects plaintiffs' prayer for punitive damages, finding insufficient evidence that defendant conducted its blasting and quarrying activities with an intentional, reckless or wanton disregard of the rights and safety of the plaintiffs.

[8 FSM Intrm. 542]

     8.  Plaintiffs' Children
     In their post-trial brief, plaintiffs requested damages on behalf of their children. Plaintiffs' children are not entitled to recover damages as they are not named as plaintiffs to this action.

Conclusion
     The Court hereby finds that defendant APSCO: (a) is not liable for the alleged structural damage to plaintiffs' house; (b) is not liable to plaintiffs for the creation of a turnaround area; (c) is liable to plaintiffs for the cost to make the access road passable by car or truck; (d) is not liable for future maintenance of the access road, or to provide a carport, landfill, build a driveway, put debris in the swamp, or extend plaintiffs' land into the mangrove; (e) is liable to plaintiffs for the cost to return the 12 by 14 foot area where erosion occurred to its original condition; (f) is liable for the diminished value of plaintiffs' property caused by the creation of the cliffline and by the gradual erosion of the cliffline over time; (g) shall undertake reasonable efforts to stabilize the cliffline to prevent future erosion; (h) is liable for failing to notify plaintiffs of the blasting in January or February 1995; (i) is not liable for blasting 12 holes in excess of its permit; (j) is liable for nuisance damages caused by its blasting and other related quarrying activities; (k) is not liable for punitive damages; and (l) is not liable for any damages suffered by plaintiffs' children.

     The Court hereby sets a hearing for February 25, 1999, at 10:00 a.m., at the FSM Supreme Court in Palikir, at which time the parties shall present evidence of damages in accordance with the findings set forth in this order.

*    *    *    *
 
Footnotes:
 
1.  Plaintiffs' Amended Complaint includes a civil rights claim under 11 F.S.M.C. 701, alleging that defendant's activities constitute a deprivation of plaintiff's property without due process of law.  Plaintiffs did not pursue this claim at trial. Pls.' Amended Pretrial Statement at 4.

2.  If harm is unintentionally caused, liability will attach where it is the result of negligent or reckless conduct, or the result of an abnormally dangerous activity.  If defendant's conduct was unintentional, the next step would have been to evaluate whether said conduct was reasonable (i.e. negligence analysis), or the result of an abnormally dangerous activity.  As set forth more fully in this opinion, the Court finds that defendant used proper blasting procedures and was therefore not negligent in its day to day operations of the quarry.  The Court also finds that said blasting was not an abnormally dangerous activity.  Thus, had APSCO's conduct been unintentional, because it was not the result of negligent or reckless conduct, or the result of an abnormally dangerous activity, APSCO would not be liable for nuisance.

3.  See supra note 2.
 
                                                                                                                                                                                                                                                                                                           
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