THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Atin v. Eram, 7 FSM Intrm. 269
(Chk. S. Ct. Tr. 1995)

[7 FSM Intrm. 269]

KASPER ATIN et al.,
Plaintiffs,

vs.

NENITA ERAM et al.,
Defendants,

ASER OSIENA and LINEAGE,
Intervenors.

CA No. 136-85

FINDINGS OF FACT,
CONCLUSIONS OF LAW AND JUDGMENT
 
Soukichi Fritz
Chief Justice

Decided:  April 6, 1995

APPEARANCES:
For the Plaintiff:          Johnny Meippen, Esq.
                                     P.O. Box 705
                                     Weno, Chuuk FM 96942
 
For the Defendant:     Wesley Simina, Esq.
                                     P.O. Box 189
                                     Weno, Chuuk FM 96942

For the Intervenor:      Ben Enlet, Trial Counselor
                                     Weno, Chuuk FM 96942

[7 FSM Intrm. 270]
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HEADNOTES
Property ) Public Lands; Property ) Tidelands
     Prior to the effective date of the Chuuk Constitution the ownership of the filled marineland was with the Japanese government and that title was transferred to the Trust Territory pursuant to 67 TTC 1 and 2 and later to Truk State.  Atin v. Eram, 7 FSM Intrm. 269, 271 (Chk. S. Ct. Tr. 1995).

Property; Property ) Tidelands
     Any filling of marineland prior to the effective date of the Chuuk Constitution is dry land and has become part of the land adjacent to the fill activity.  Atin v. Eram, 7 FSM Intrm. 269, 271 (Chk. S. Ct. Tr. 1995).

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COURT'S OPINION
SOUKICHI FRITZ, Chief Justice:
     This matter came before the court for trial on plaintiffs' complaint alleging ownership of a parcel of land known as Winipiepi, located in Neuo Village, Weno Municipality.  The plaintiff personally appeared and was represented at trial by Mr. Johnny Meippen.  The defendant (Nenita Eram) was present and was represented by Mr. Wesley Simina as was the intervenor (Simiko Meitou) who was represented by Mr. Ben Enlet.  The only issue before the court is the ownership of the land in question.

Background
     The plaintiff claims that the land in question was a tideland owned by his lineage. During the Japanese Administration the land was filled in by the Japanese and has now become a dry land.  Plaintiff claims the filled land continues to be lineage land and has never been transferred to anyone other than the Japanese government, which at the time claimed to own all the marine land below the high water mark.

     The defendant claims that the land in question is known as Winipiepi which was a dry land before the Japanese filled it along the edges for their use.  The defendant further claims that she along with her father (Mesek) and her husband planted coconut, breadfruit, bananas and taro on the land after the war.  They also built a house on the land.  They were undisturbed in their use and possession on this land except for an objection by the Manager of the Continental Hotel and the then Chief of Police Mr. Boise.  These individuals informed the defendant that the land belonged to the government.  The house and many of the trees were destroyed by the typhoon in 1985.  The defendants also offered into evidence a previous decision by the Trust Territory High Court in Civil Action No 54-79, entered May 9, 1985 that awarded title to the land to them.

     The intervenor claims that the tideland Mesenawar is owned by her lineage. Mesenawar is located to the west of winipiepi.  The intervenor does not claim any interest in the dry land.
 
     Based upon the pleadings and papers on file, the exhibits admitted as evidence, the testimony of the witnesses and the argument of counsel, the court makes the following findings:

Findings of Fact
 
[7 FSM Intrm. 271]

     The property in question is dry land which is commonly known as winipiepi, located in Neuo Village, Weno Municipality.  The edges of the dry land were filled by the Japanese Government sometime during the war years of 1940-41.  The court finds that the defendant, her husband and her father (Mesek) planted coconut, breadfruit, banana, taro and sugarcane on the land after the war.  The defendants also made other improvements including a house without objection by the plaintiff. The house and other improvements were destroyed in the typhoon of 1985.

     The court finds that the only objection to the defendants' use of the land came from the manager of the Continental Hotel and the government.  The government claimed the land as the successor to the Japanese government.  The defendants did not stop or give up there possession and improvement of the land, but instead brought suit in the Trust Territory High Court.  In that High Court action, the defendants were awarded title to the land in question. (HC CA No. 54-79).  The court finds that the plaintiff was a witness for the government in HC CA No. 54-79 but did not assert any claim to the land.  The court finds that the intervenor has no interest in the dry land at issue in this case.  The court finds that the ownership of the marineland is not at issue in this case.  Upon these findings the court makes the following legal conclusions:

Conclusions of Law
     The court concludes that winipiepi was a dry land before the Japanese government conducted any fill activity.  The court concludes that the prior to the effective date of the constitution the ownership of the filled marineland was with the Japanese government and that title was transferred to the Trust Territory pursuant to 67 TTC 1 and 2 and later to Truk State.  The court concludes that HC CA No. 54-79 terminated the government's interest in the filled portion of the land.  The court concludes that the fill activity was adjacent to the dry land winipiepi and this fill activity occurred before the effective date of Article IV, 4 (Oct. 1, 1989) of the Chuuk Constitution.  Therefore based on the holding of Aizawa v. Mori, CA No. 16-92 (Tr. Div. May 11, 1994) any filling of marineland prior to the effective date of the constitution is dry land and has become part of the land adjacent to the fill activity.

     The court concludes that the plaintiff had actual notice of the defendants' claim of ownership in HC CA No. 54-79 and did not assert any ownership interest in the land.

     The court concludes that the preliminary injunction previously entered is no longer of any force and effect.
 
     The court concludes that the intervenor has no interest in the land in dispute.  The court concludes that it is not necessary to determine ownership of the marineland (Mesenawar) adjacent to the dry land at issue in this case.  Therefore based upon these findings and conclusions the court issues it judgment as follows:

JUDGMENT
     It is hereby ordered, adjudged and decreed that the preliminary injunction previously in force is dissolved and is no longer of any effect and the Judgment of HC CA No. 54-79 is valid and it is further

     Ordered that the land known as winipiepi and the adjacent fill is awarded to the defendant, and it is further

     Ordered that the plaintiffs take nothing for their complaint, and it is further

     Ordered that the intervenor has no interest in the land in dispute and is therefore awarded nothing, and it is further

[7 FSM Intrm. 272]

     Ordered that the court makes no determination of the ownership of the marineland (Mesenawar) that is adjacent to the dry land in dispute, and it is further

     Ordered that no costs are awarded any party.

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