THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Nena v. Kosrae (I),
6 FSM Intrm. 251 (App. 1993)

[6 FSM Intrm. 251]

EZRA NENA,
Appellant,

vs.

STATE OF KOSRAE,
Appellee.

APPEAL CASE NO. K2-1990

OPINION

Reargued:  February 16, 1993
Decided:  November 25, 1993

BEFORE:
     Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
     Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
     Hon. Lyndon L. Cornelius, Temporary Justice, FSM Supreme Court*

     * Chief Justice, Kosrae State Court, Lelu, Kosrae

APPEARANCES:
For the Appellant:     Delson Ehmes, Esq. (on the brief)
                                    Mr. Canny Palsis (argued) (supervised by Charles Greenfield, Esq.)
                                    Micronesian Legal Services Corporation
                                    P.O. Box 38
                                    Lelu, Kosrae, FM  96944

[6 FSM Intrm. 252]

For the Appellee:      Glenn Jewell, Esq. (on the brief)
                                    Tim Stumpff, Esq. (argued)
                                    Assistant Attorney General
                                    Office of the Kosrae Attorney General
                                    P.O. Box AG
                                    Lelu, Kosrae, FM  96944

*    *    *    *

HEADNOTES
Appeal and Certiorari
     Where no motion has been made to amend the complaint at the trial level and the issue was not tried with the express or implied consent of the parties the general rule is that one cannot raise on appeal an issue not presented in the trial court.  Nena v. Kosrae (I), 6 FSM Intrm. 251, 253-54 (App. 1993).

Constitutional Law ) Indefinite Land Use Agreement; Property ) Easement
     An easement for a road is not an indefinite land use agreement prohibited by the Constitution because it is perpetual.  It is not indefinite in that it is effective into perpetuity.  Nena v. Kosrae (I), 6 FSM Intrm. 251, 254 (App. 1993).

Appeal and Certiorari ) Standard of Review
     Where the trial court found no negligence and the appeal court upon review of the record does not find the trial court's factual findings to be clearly erroneous the trial court's dismissal of the negligence claim will be affirmed.  Nena v. Kosrae (I), 6 FSM Intrm. 251, 254 (App. 1993).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:

FACTS AND PROCEDURAL HISTORY
     The plaintiff is the owner of land known as Wan Taf located in Utwe Municipality, Kosrae State.  In 1979 or 80 he executed a statement of intent which appears as an appendix to this opinion.  The State built a road on the easement, and the plaintiff thereafter complained of flooding which caused crop and other damage he attributed to faulty design and construction of the road.

     The plaintiff then filed a complaint on July 3, 1985 alleging four causes of action:

     1.  Building the road was without the plaintiff's permission.  It was a trespass and resulted in damages;

     2.  Negligent construction of the road resulted in damages to plaintiff's crops;

     3.  The easement was taken in violation of the plaintiff's due process rights, and was without just compensation; and

[6 FSM Intrm. 253]

     4.  The deprivation of due process entitled the plaintiff to damages pursuant to 11 F.S.M.C. 701.

     In its findings of fact and conclusions of law the court determined,

     1.  That the state was not negligent;

     2.  That the statement of intent is not an indefinite land use agreement forbidden by the FSM Constitution; and

     3.  That the state did not deprive the plaintiff of his due process rights.  Nena v. Kosrae, 5 FSM Intrm. 417, 425 (Kos. S. Ct. Tr. 1990).

     This appeal followed.

ISSUES PRESENTED
     1.  Is the question of whether the government complied with the land acquisition provisions of 67 TTC 451 et seq. properly before the court?  We conclude that it is not.

     2.  Is the grant of an easement by the appellant to the appellee "an agreement for the use of land for an indefinite term" prohibited by the FSM Constitution? We conclude that it is not.

     3.  Did the trial court err in dismissing appellants negligence cause of action?  We conclude that it did not.

REASONING
Land Acquisition Provisions
     Title 67 of the Trust Territory Code, sections 451-456 set forth in detail procedures which "shall be applicable to the acquisition of real property."  Id. 451.  We assume without deciding that these provisions of Title 67 were applicable to the actions of the state government at the time the state obtained the statement of intent from the plaintiff.

     In his first issue on appeal the plaintiff states that the easement was acquired without following the provisions of Title 67, and is therefore invalid.  The government opposes on the ground that this issue was not raised in the trial court.

     As seen above, violation of land acquisition procedures was not alleged in the complaint.  Title 67 was raised by the plaintiff in closing argument in this way:  his lawyer acknowledged that his client agreed that the government could go on his land and construct the road, and executed the statement of intent, however, that procedure did not comport with Title 67.  The lawyer then recalled the plaintiff's testimony that the government failed to discuss value with him.  No motion was made by the plaintiff to amend the complaint to include the alleged violation as a cause of action.  Kos. Civ. R. 15.

     We conclude that we cannot properly entertain this issue for these reasons:

     1.  The issue was not "tried by express or implied consent of the parties."  Kos. Civ. R.

[6 FSM Intrm. 254]

15(b).  The questions posed to the plaintiff found in the record as to whether the government informed the plaintiff that he could refuse to grant, that the government can purchase and pay money for the land, might be relevant to the plaintiff's causes of action for trespass (that the construction was without plaintiff's permission and without him granting an easement), for unlawful taking (violating the Kosrae State Charter, the Kosrae State Constitution, and the FSM Constitution), and for deprivation of due process under the FSM Constitution. The questions thus would not have caused the court or defendant's lawyer to believe that a new cause of action was being raised.

     2.  The trial court found that "Nena did not indicate unhappiness with the road itself; he appeared concerned with water inundation to his land that he thought was caused by the road."  This finding is not appealed.  The trial court then applied this finding to conclude that the grant of easement was voluntary and so his due process rights had not been violated.

     3.  The general rule that one cannot raise on appeal a ground not presented in the trial court is a part of this court's jurisprudence.  Paul v. Celestine, 4 FSM Intrm. 205, 210 (App. 1990); Loney v. FSM, 3 FSM Intrm. 151, 154 (App. 1987); Loch v. FSM, 2 FSM Intrm. 234, 236 (App. 1986) (which sets out the salutary reasons for the rule).

Indefinite Land Use Agreement
     The plaintiff's position is that the Statement of Intent is clear on its face, and it conveys an indefinite land use in violation of the FSM Constitution.  Article XIII, section 5 of that document provides, "An agreement for the use of land for an indefinite term is prohibited."
 
     The trial court reaffirmed its earlier decision in Melander v. Kosrae, 3 FSM Intrm. 324 (Kos. S. Ct. Tr. 1988) which held, relying on constitutional history and general understanding at the time of ratification, that the prohibition applied only to leases obtained by the Trust Territory Government, and did not apply to road easements.1

     We arrive at the same result (that no constitutional violation exists) but for a different reason.  We conclude that the grant (the statement of intent) is not indefinite; it is definite in that it is effective into perpetuity.  It will definitely last forever.

     We attribute no significance to the title "Statement of Intent."  We do note that the plaintiff executed the instrument saying "I . . . hereby grant," and that the instrument recites valuable consideration "in consideration of similar grants by other property owners . . . ."  The place of the plaintiff's signature is identified as "GRANTOR."  The instrument identifies the property and states in detail the purposes of the easement.

     The second paragraph of the instrument reads,

     Said document of Intent shall suffice until such time that a survey can be conducted, 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.

[6 FSM Intrm. 255]

     We do not conclude that this passage makes the easement subject to termination.  Instead the easement gives a right of way across the plaintiff's property, at a time when no survey of the location of the easement had been made.  This paragraph authorizes the government to enter the land and clear as necessary for surveying.  That when the survey is completed, it governs the easements's location.

Negligent Construction
     Mr. Nena claims that the road was constructed in a negligent fashion, thereby causing buildup of water and frequent flooding on his land, and the consequent loss of his crops.

     The trial court found no negligence in the design or construction of the road and concluded that other factors caused the flooding.  Having reviewed the record in this case we do not find the trial court's factual findings to be clearly erroneous.  Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21, 24 (App. 1985); FSM Civ. R. 52(a).  The trial court's dismissal of the negligence claim is therefore affirmed.

     For the reasons stated the order dismissing the complaint is affirmed.

*    *    *    *

APPENDIX

STATEMENT OF INTENT
     I,   Ezra Nena   , in consideration of similar grants by other
property owners hereby grant a sixty (60) foot wide easement and right of way
across my real property situated at      Taf      , Section    Utwe    
Municipality, Kosrae State for all public purposes including:  the right to
grade, fill, drain, construct, erect, maintain, operate, inspect, remove,
repair, and rebuild the following:
 
(a)     a road or highway of the usual width and character sufficient for all purposes of transportation and travel, together with such bridges, culverts, ramps and cuts as may be necessary; and
 
(b)     underground and above ground pipelines, mains and pumps for the purpose of conveying water and sewage; and
 
(c)     electric transmission, distribution and telephone poles with all necessary wires, cables and fixtures thereon; and

[6 FSM Intrm. 256]

(d)     all other facilities that are determined by the Government to be in the public interest.

     Said document of Intent shall suffice until such time that a survey can be conducted, 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.

     IN WITNESS WHEREOF, the parties have subscribed their names below.

GRANTOR                         GOVERNMENT OF THE KOSRAE STATE
 
By:    /s/  Ezra Nena           By:     /s/ Jacob Nena          
                                                      Jacob Nena
                                                      Governor of the Kosrae State

     I, Norio Skilling, employee under State Government hereby certify that
the above - written STATEMENT OF INTENT was executed in my presence by
the above-named Grantor.

                                     /s/  Norio Skilling  
                                     Norio Skilling

*    *    *    *
 
Footnote:
 
1.  The statement of intent in Melander is similar, but distinct from the statement of intent in the Nena case which is appended to this decision.