KOSRAE STATE COURT
TRIAL DIVISION
Cite as Melander v. Kosrae,
3 FSM Intrm. 224 (Kos. S. Ct. Tr. 1988)

[3 FSM Intrm. 324]

TEDRICK MELANDER,
Plaintiff,

vs.

STATE OF KOSRAE,
Defendant.

CIVIL CASE NO. 5-85

OPINION AND ORDER GRANTING
SUMMARY JUDGMENT

Before the Honorable Harry H. Skilling
Chief Justice
April 21, 1988

APPEARANCES:
          For the Plaintiff:          Delson Ehmes
                                               Micronesian Legal Services
                                               Corporation
                                               Kosrae, FSM 96944

[3 FSM Intrm. 325]

          For the Defendant:     Richard Kaminski
                                               Asst. Attorney General
                                               Kosrae, FSM  96944

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HEADNOTES
Contracts;
Land
     Where two clauses within an agreement are inconsistent, the Court  should attempt to interpret the agreement so that each provision has meaning, but the paramount rule is that the deed must be construed so as to give effect to the intention of the parties as collected from the whole instrument.  Melander v. Kosrae, 3 FSM Intrm. 324, 327 (Kos. S. Ct. Tr. 1988).

Land;
Contracts
     Where fraud or mistake are involved, the court can reform or cancel a deed, but relief will be denied in either situation if the misunderstanding of the aggrieved party was caused by his unexplained failure to read the necessary documents.  Melander v. Kosrae, 3 FSM Intrm. 324, 329 (Kos. S. Ct. Tr. 1988).

Land;
Contracts
     A court interpreting a deed should attempt to determine the meaning of the words used rather than what the signator later says he intended.  Melander v. Kosrae, 3 FSM Intrm. 324, 328 (Kos. S. Ct. Tr. 1988).

Land;
Constitutional Law - Interpretation
     Read in the light of its legislative history, article XIII, section 5 of the Constitution of the Federated States of Micronesia was intended to cover leases, not easements, and therefore an easement that is indefinite in term does not violate this constitutional section.  Melander v. Kosrae, 3 FSM Intrm. 324, 330 (Kos. S. Ct. Tr. 1988).

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COURT'S OPINION

HARRY H. SKILLING, Chief Justice:
     This case came before the Kosrae State Court on April 21, 1988 on a motion for summary judgment brought by the defendant, State of Kosrae.  Richard Kaminski represented Kosrae State (hereinafter State) and Delson Ehmes represented the plaintiff, Tedrick Melander (hereinafter Tedrick.) At the hearing, I took the motion under advisement and summary judgment is hereby granted.  However, I feel that at least one issue is still remaining and therefore the case is not dismissed.

[3 FSM Intrm. 326]
 
Facts
     Tedrick alleges that the State unlawfully entered his property, traditionally known as Inpuspus (or Inpuspusa) in 1983 when the State constructed a road across the property.  In the process of building the road, the State allegedly trespassed and removed 56 coconut trees giving rise to Tedrick's claim for damages for the loss of the land, the value of the trees and for removing trash and debris.

     Both parties agree that Tedrick signed a "Statement of Intent" dated October 29, 1977.  However, in Tedrick's affidavit, he says that when he signed the Statement of Intent, "he was made to believe" that that document says something other than what it says.

Issues
     The issue is whether the Statement of Intent, which Tedrick signed, represents his consent to having the State enter Inpuspus and clear the right of way by removing necessary trees.  Tedrick raises three arguments:  one, the Statement of Intent did not give the State the authority to enter the property; two, the Statement of Intent is invalid because Tedrick did not agree to the terms contained in the document; and three, the Statement of Intent is in violation of article XIII, section 5 of the Federated States of Micronesia (FSM) Constitution.

Analysis1
What did Tedrick Grant When He Signed the Statement of Intent?
 
     Analysis of the Statement of Intent begins with the language of the document itself.  The court should interpret the words according to their usual meaning unless that meaning is unclear.  The first paragraph provides in relevant part:

I, Tedrick Melander, in consideration of similar grants by other property owners hereby grant a sixty (60) foot wide easement and right to way across may real property situated at Inpuspusa, Section, Utwe Municipality, Kosrae District for all public purposes including: the right to grade, level...

[3 FSM Intrm. 227]

"The second paragraph provides:

Said document of Intent shall suffice until such time that a survey can, be conducted, to accurately locate and describe said Main road.  When this is completed, I agree to execute a deed between myself and the Trust Territory Government for said sixty (60) foot wide right of way.

The third and last substantive paragraph provides:

AND THE GRANTOR FURTHER GRANTS, without compensation, the right to the Government to clear said right of way and   keep it clear of brush, trees and fire hazards, including the right to cut, trim, and remove trees and overhanging branches, if any.

The first and third paragraphs are understandable on their face.  In the first paragraph, the language, "I...hereby grant" reflects the parties' understanding that when the document was executed, Tedrick gave the State a sixty foot wide easement across Inpuspus.  The third paragraph is equally certain because it states, without ambiguity, that Tedrick gave the State the authority to clear trees and bushes from the right of way without compensation.

     However, there is an ambiguity in the second paragraph.  The first sentence says "[s]aid document of Intent shall suffice until such time that a survey can be conducted ... " without explaining what it shall suffice to do.  When the language in a deed is ambiguous, the court should interpret the document according to the parties', and especially the grantors, intentions.  23 Am. Jur. 2d Deeds 221 (1983).  One way of discovering the parties' intent is by looking at the document as a whole, not in isolated parts, and where two clauses are inconsistent, the paramount rule is that the deed must be construed so as to give effect to the intention of the parties as collectedfrom the whole instrument.  23 Am. Jur. 2d Deeds 226, 234 (1983).  Similarly,the court should interpret the document in such a way that each provision has meaning.  23 Am. Jur. 2d Deeds 227 (1983).

     One possible theory for the `shall suffice' language is that the  parties intended for the Statement of Intent to remain in effect until the survey was completed and a new deed was executed.  Under this theory, all three paragraphs of the document are consistent because, together, they reflect the parties' understanding that Tedrick intended to give the State an easement, effective when the document was executed.

     Another theory is that the `shall suffice' language represents  Tedrick's consent to granting the State an easement, but that the easement was not transferred until the survey was conducted.  The difficulty with this interpretation is that the second paragraph then conflicts with the language in the first and third paragraphs.  As mentioned above, these paragraphs indicate that Tedrick gave the State an easement when the Statement of Intent was signed.  Thus, this interpretation renders these two paragraphs meaningless.

[3 FSM Intrm. 328]

     In considering both theories for the `shall suffice' language, I find the better interpretation is that the easement embodied in the Statement of Intent went into effect when the document was executed, and that it remains in effect at least until a survey is conducted.  Looking at the document as a whole, this is the only interpretation which gives it an uniform voice and which ensures that each paragraph has a separate meaning that is consistent with the other paragraphs.  When Tedrick signed the Statement of Intent, therefore, he consented to having the State enter Inpuspus and to having a road constructed.  He also agreed that the State could clear the right of way by removing necessary trees without compensation.

What Is The Effect Of Tedrick's Misunderstanding?
     In Tedrick's affidavit, he says he believed that he gave the State an easement which is different from what is embodied in the Statement of Intent.  The general rule is that when the court interprets a deed, it should look at the terms of the deed, not at what people say they intended.  The general rule can be stated like this:

While all clauses and words in a deed will be considered   in construing it, the courts are not concerned with what  the parties meant to say, but the meaning of what they did say.  The court cannot act on surmise as to intention, or even effectuate a manifest intention where the grantor has omitted to use words required to give effect to such intention; it must construe the instrument as it is  written.

23 Am. Jur. 2d Deeds 225 (1983).

Under the general rule, therefore, the court should disregard Tedrick's statement in his affidavit and should not consider it as an effective challenge to the validity of the Statement of Intent.

     In his affidavit, Tedrick also says that "he was made to believe" that the Statement of Intent says something other than what it says.  This raises the possibility that the State committed some form of fraud, or that Tedrick made a mistake and that the court should not apply the general rule.

     Where fraud or mistake are involved, the court can reform or cancel a deed.  However, in both situations, relief will be denied if the aggrieved party failed to read the necessary documents.  23 Am. Jur. 2d Deeds 194, 216 (1983).

     In this case, the Statement of Intent was written in both English and Kosraean and Tedrick does not explain why he misunderstood the document.  I find that Tedrick's statement in his affidavit, by itself and without explanation, fails to give the court a basis for disregarding the general rule.  Thus, Tedrick's misunderstanding does not effect the validity of the Statement of Intent.

[3 FSM Intrm. 329]

Is The statement of Intent in Violation of the FSM Constitution?
     Tedrick claims that the Statement of Intent is an indefinite land use agreement which is in violation of article XIII, section 5 of the FSM Constitution.  This section provides:

An agreement for the use of land for an indefinite term is prohibited.  An existing agreement becomes void 5 years after the effective date of this Constitution.  Within   that time, a new agreement shall be concluded between the parties.  When the national government is a party, it   shall initiate negotiations.

     On its face, Tedrick's argument has merit because the Statement of Intent is an agreement for the use of land and because, at this time, it seems to be indefinite.  However, when the legislative history for article XIII, section 5 is considered, it becomes clear that this section was only intended to cover leases, not easements.

     The proposal which became article XIII, section 5 was offered by the Committee on General Provisions as Committee Proposal No. 20.  This proposal, titled "Renegotiation of Certain Leases," required that the national government renegotiate all land lease agreements of an indefinite term entered into between any person and the Government of the Trust Territory of the Pacific Islands (TTPI).  II J. of Micro Con. Con. 913.

     In its explanation of this proposal, the Committee on General Provisions reported that some people leased land to the TTPI under conditions which seemed unfair to the Micronesians.  SCREP No. 32, II J. of Micro Con. Con. 812.  Chief Delegate Bossy, a member of the Committee on General Provisions, further explained the problems created by these land leases:

I am speaking of the many land leases which the present T.T. Government, through its agents--a few bad, ugly Americans and their confused Micronesian partners--intentionally and in bad faith, mischievously lured and tricked some Micronesians  into signing these agreements not knowing that such leases gave the government the right to use  their land indefinitely.  It was expounded to them that these lands will be returned to them after or during the early 1960's.  When the time of reversion came, these landowners tried to moveback on to their land but, much to their surprise, they were bluntly told that they could not because  the government has indefinite use right over these lands.

I J. of Micro.  Con.  Con. 340.

[3 FSM Intrm. 330]

Chief Delegate Bossy said that the Micronesians involved in these land leases were not able to get relief from the TTPI, the Congress of Micronesia or the courts and that: "Having exhausted ill possible avenues to undo these wrongs, the only last place that may surely correct these wrongs is here--this convention."  Id. at 341.

     Following Chief Delegate Bossy's comments, the Committee of the Whole amended Committee Proposal No. 20, clarifying that indefinite land leases are void, and increasing the number of years that the national government had to renegotiate the existing indefinite leases.  Id. at 342.

     Subsequently, the proposal went to the committee on Style and Arrangement who further amended the proposal and clarified the language to reflect that the creation of new indefinite land leases is unconstitutional, and to require the termination of existing indefinite leases. SCREP No. 47, II J. of Micro. Con. Con. 875.

     At the second and final reading of the proposal, Delegate Wiliander moved to amend it because he realized that technically a lease for an indefinite number of years is impossible.  He recommended that the wording "lease agreement" be changed to "use agreement" and the Committee of the Whole acted upon his recommendation by making the necessary amendment.  Shortly thereafter, the proposal passed the second and final reading thus becoming part of the Constitution.  I. J. of Micro. Con. Con. 417-18.

     The legislative history shows, therefore, that article XIII, section 5 was intended to rectify injustices created by the indefinite land leases entered into by the TTPI and to prohibit the creation of any new indefinite leases.  It is significant that this section was discussed only with regard to leases since this is a strong indication that the framers of the Constitution did not intend for this provision to apply in other situations.  Further, Delegate Wiliander's comments indicate that the term "use agreement" was adopted only because it was the technically correct term, not because the framers intended to broaden the scope of the provision.  I find, therefore, that the FSM Constitution, article XIII, section 5 does not apply to easements and that it does not render the Statement of Intent invalid.

Conclusion

     I find that the Statement of Intent is valid and that Tedrick consented to the State entering Inpuspus and building a road.  Accordingly, the claims for relief pursuant to the theories of trespass, loss of land, violation of due process and unlawful taking are hereby dismissed.  In addition, the claim for damages for the loss of 56 coconut trees is hereby dismissed to the extent that the trees were located within the easement.

[3 FSM Intrm. 331]

     Tedrick also claims that when the State entered Inpuspus, the workers left trash and debris behind.  It is not clear from the Statement of Intent that Tedrick consented to removing the State's trash and debris; therefore, this claim remains.

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Footnote:

1. It should be noted that both counsel failed to introduce evidence of customary or traditional law.  Pursuant to KC 6.303, the court cannot consider tradition unless satisfactory evidence of it is introduced.  In resolving this case, I have relied upon American authorities, however, in other cases, traditional or customary law may be more relevant.