THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
CHUUK STATE TRIAL DIVISION
Cite as Sipia v. Chuuk ,
8 FSM Intrm. 557 (Chk. S. Ct. Tr. 1998)

[8 FSM Intrm. 557]

RESEN SIPIA,
Plaintiff,

vs.

CHUUK STATE,
Defendant.

CSSC CIVIL ACTION NO. 189-94

JUDGMENT

Wanis R. Simina
Associate Justice

Hearing:  October 22, 1997
Decided:  February 17, 1998

APPEARANCES:
For the Plaintiff:          Nahoy Selifis, trial counselor
                       Micronesian Legal Services Corporation
                       P.O. Box D
                       Weno, Chuuk FM 96942

[8 FSM Intrm. 558]

For the Defendant:     Ermino Fritz, trial counselor
                       Office of the Chuuk Attorney General
                       P.O. Box 189
                       Weno, Chuuk FM 96942

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HEADNOTES
Judgments ) Default Judgments; Statutes of Limitations
     In the Chuuk State Supreme Court, a hearing for judgment after a default is entered that is held to allow the plaintiff to present to the court further evidence to establish the plaintiff's right to a claim or relief, includes the court's determination of whether the action was brought within the limitation period provided by law.  Sipia v. Chuuk, 8 FSM Intrm. 557, 558, 560 (Chk. S. Ct. Tr. 1998).

Statutes of Limitations; Torts ) Trespass
     Actions for trespass shall be commenced within six years after the cause of action accrues.  Sipia v. Chuuk, 8 FSM Intrm. 557, 558 (Chk. S. Ct. Tr. 1998).

Statutes of Limitations; Torts ) Trespass
     For trespass the period of limitation begins to run when the project causing the damage is completed, if substantial damage has already occurred, or when the first substantial injury is sustained.  Sipia v. Chuuk, 8 FSM Intrm. 557, 559 (Chk. S. Ct. Tr. 1998).

Statutes of Limitations; Torts ) Trespass
     The cause of action arises, and the general statute of limitations begins to run on tort actions for injury to property at the time the injury is sustained.  Sipia v. Chuuk, 8 FSM Intrm. 557, 559 (Chk. S. Ct. Tr. 1998).

Statutes of Limitations; Torts ) Trespass
     When the plaintiff claims the state trespassed on her property by installing poles, a road and pipes sometime before the end of 1987 but did not file suit until 1994, recovery will be barred by the six year statute of limitations.  Sipia v. Chuuk, 8 FSM Intrm. 557, 559-60 (Chk. S. Ct. Tr. 1998).

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COURT'S OPINION
WANIS R. SIMINA, Associate Justice:
     This case comes before the court for judgment after default was entered and hearing was held to allow the Plaintiff to present further evidence satisfactory to the Court that will establish a claim or relief to which she has a right as required by Rule 55(e), CSSC Rules of Civil Procedure.  The CSSC Trial Division has previously held that this hearing includes a determination of whether the action is brought within the limitation period provided by law.  See Andrew v. Chuuk, CA NO. 210-96 (Jan. 22, 1998).

     The Court directed the Plaintiff to file a written brief on the issue of whether her action is barred by the Statute of Limitations provided for by 6 TTC 305 which states, in substance, that actions for trespass "shall be commenced within six years after the cause of action accrues."

[8 FSM Intrm. 559]

     Ownership of the land in question was not disputed.  A hearing required by Rule 55(e), was held on October 22, 1997, during which the Plaintiff testified that she departed Chuuk in 1974 for Saipan where she remained until 1987.  Upon her return to Chuuk in 1987, Plaintiff discovered that Defendant had installed two electric poles, a roadway and various water pipes on the land in question without Plaintiff's knowledge or consent.

     Plaintiff filed the complaint in this case on September 1, 1994, more than six years after her return to Chuuk and her discovery of the alleged trespass by Defendant.  However, Plaintiff seeks to avoid the application of the six year Statute of Limitation provided for by 6 TTC 305, by arguing that the acts of Defendant amount to a continuing trespass and that an action is proper at any time while the trespass continues.  This argument is contrary to the prevailing rule of law.

     In the absence of a controlling precedent by the Chuuk State Supreme Court, issues of law are determined generally by the persuasive authority of the English Common Law and the decisions of the state and national courts of the United States.

     The issues in the case of Papac v. City of Montesano, 303 P.2d 654 (Wash. 1956) , are almost identical to those before this Court.  In the Papac case, the alleged trespass involved a culvert across the property in question which was originally put in place in 1913.  Thereafter, in 1933, repairs were made to the culvert which included replacing some of the drainage pipes.  It was alleged that all of this caused the Plaintiff's house to rot, mold, and deteriorate for which suit was filed against the City.

     The City maintained that Plaintiff's action was long since barred by the 3 year Statute of Limitations for the tortious invasion of her property.  The Supreme Court of Washington agreed saying:  "The period of limitation begins to run when the project causing the damage is completed if substantial damage has already occurred . . . or when the first substantial injury is sustained."  Id. at 656.

     Needless to say, the placing of poles, a road and water pipes across Plaintiff's land results in substantial damage and causes immediate substantial injury.  Thus, the period of limitation of six years began to run from the date of the completion of the project to install the poles, road and pipes, which, from the Plaintiff's own testimony was prior to the end of the calendar year 1987.

     It is a mathematical certainty that the Complaint filed on September 1, 1994 was done so more than six years after the acts of Defendant about which Plaintiff complains.

     The applicable rule is stated in City of Los Angeles v. McNeil, 326 P. 2d 29, 31 (Calif. 1958) as follows:  "The cases indicate that the cause of action arises, and the general statute of limitations begins to run on tort actions for injury to property . . . at the time the injury is sustained."
 
     This rule of law prevails throughout the western United States as indicated by the following cases:

Idaho, Davidson v. Davidson, 188 P.2d 329, 333 (Idaho 1947) the Court held that the cause of action arose at the time of the alleged wrongful act of Defendant and "No action being brought within the statutory period, the bar of the statute is applicable."

Kansas, Adams v. Arkansas City, 362 P. 2d 829, 835 (Kan. 1961) the Court held: "It must be conceded that an action for recovery of permanent damages to land accrues when the injury first occurs."

Montana, Pappas v. Braithwaite, 162 P.2d 212, 215 (Mont. 1945) the Plaintiff

[8 FSM Intrm. 560]

sued for damage to real property.  The Court held:  "It was at the time of the [damage] that the cause of action accrued and the statute of limitations commenced to run."

Oklahoma, Magnolia v. Norvell, 240 P.2d 80, 82 (Okla. 1952) the Court held that the statute of limitations begins to run when it becomes obvious that damage to the real property has occurred.

Washington, Gillam v. City of Centralia, 128 P.2d 661, 664 (Wash. 1942) the city installed a viaduct over Plaintiffs land.  The court held that the statute of limitations began to run on the day of the final completion of the viaduct and was barred three years after that date.

     As stated in the Andrew case, CA NO. 210-96 (Jan. 22, 1998), this Court sees its duty under the requirements of CSSC Rule 55(e) as reviewing the facts of the case to determine if the action is barred by the applicable statute of limitations. The testimony of Plaintiff herself establishes the fact that her action is barred.

     Therefore, the Court determines that the Plaintiff has not met the burden of proof in support of her cause of action and is not entitled to recovery against the Defendant in any amount.
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