9 FSM Intrm.335-345

The waters, land, and other natural resources within the marine space of Kosrae are public property, the use of which the state government shall regulate by law in the public interest, subject to the right of the owner of land abutting the marine space to fill in and construct on or over the marine space. Jonah v. Kosrae, 9 FSM Intrm. 335, 340 (Kos. S. Ct. Tr. 2000).

Private individuals lack standing to assert claims on behalf of the public and cannot bring claims against the state on behalf of the public with respect to state land. Therefore a private landowner does not have standing to sue the state with respect to black rocks deposited below the ordinary high water mark because that is state land, but he does have standing to sue with respect to black rocks located above the high water mark and on his land. Jonah v. Kosrae, 9 FSM Intrm. 335, 341 (Kos. S. Ct. Tr. 2000).

Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances. Duties of care differ according to the circumstances. The exact parameters of each person's responsibilities towards others will be defined through time by judicial decisions and statutes. Jonah v. Kosrae, 9 FSM Intrm. 335, 341 (Kos. S. Ct. Tr. 2000).

The elements required to prevail on a negligence claim are: a duty of care, a breach of that duty, and damages proximately caused by that breach. Only when there is a duty of care, breach of this duty, damage caused by the breach, and determination of the value of the damage can there be a liability for negligence. Jonah v. Kosrae, 9 FSM Intrm. 335, 341 (Kos. S. Ct. Tr. 2000).

Because the state had a duty of care to construct the seawall in a manner which a reasonably careful person would have done in similar circumstances and a reasonably careful person would have constructed the seawall in accordance with accepted methods of seawall construction in Kosrae at that time during the late 1980s, and because at that time black rock was routinely used for seawall construction as the best method to dissipate wave energy from the ocean, the state did not breach its duty to, and is not liable to the plaintiff for negligence by using black rocks for erosion control measures and construction of the seawall. Jonah v. Kosrae, 9 FSM Intrm. 335, 341 (Kos. S. Ct. Tr. 2000).

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 by the performance of an abnormally dangerous activity. Jonah v. Kosrae, 9 FSM Intrm. 335, 341-42 (Kos. S. Ct. Tr. 2000).

The first step of the two-step analysis for nuisance requires that there be a substantial interference with the use and enjoyment of another's land. 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. Jonah v. Kosrae, 9 FSM Intrm. 335, 342 (Kos. S. Ct. Tr. 2000).

A Kosrae state regulation that covers all persons wanting to fill in and construct on or over land below the ordinary high water mark does not provide any private right of action and cannot be the basis of a claim against the state for violation of law or regulation even if it did not have a specific plan for the seawall that was part of a road-widening project for which it had an overall plan. Jonah v. Kosrae, 9 FSM Intrm. 335, 342-43 (Kos. S. Ct. Tr. 2000).

When a plaintiff has been granted the right to utilize the land through land use agreements he holds a sufficient possessory interest to give him standing to maintain an action for trespass. It is unnecessary to have a fee simple title to land in order to bring an action for trespass. Jonah v. Kosrae, 9 FSM Intrm. 335, 343 (Kos. S. Ct. Tr. 2000).

An action for trespass has been broadly defined in the FSM as a wrongful interference with another's possessory interest in property. A trespass cause of action accrues when there is an intrusion upon another's land which invades the possessor's interest in the exclusive possession of his land. To prevail in an action for trespass, a plaintiff must prove a wrongful interference with his possessory interest in the property. Jonah v. Kosrae, 9 FSM Intrm. 335, 343 (Kos. S. Ct. Tr. 2000).

When the state did not intentionally cause the black rocks to appear on the plaintiff's land, it did not intentionally cause a trespass to plaintiff. s land, and when the state was not negligent or reckless in constructing the seawall and constructing the seawall was not an abnormally dangerous activity, no trespass liability attaches to, and the state is not liable to, the plaintiff for trespass.Jonah v. Kosrae, 9 FSM Intrm. 335, 343 (Kos. S. Ct. Tr. 2000).

When a plaintiff at trial failed to introduce evidence that would show one defendant's liability, that defendant may be dismissed and excused from the remainder of the trial, and when the other defendant fails to object to that defendant's withdrawal the court may accept that as the other defendant's abandonment of its cross claims against that defendant. Jonah v. Kosrae, 9 FSM Intrm. 335, 344-45 (Kos. S. Ct. Tr. 2000).

This matter was called for trial on June 15, 1999. Plaintiff Donald Jonah was represented by Delson Ehmes. Ronald Bickett, from the Kosrae State Office of the Attorney General, appeared for the Defendant State of Kosrae (State). Ronald Moroni represented Defendant Kosrae Utilities Authority (KUA). Mr. Bickett filed a Motion to Appear for a Particular Case. After hearing argument from all parties I granted Mr. Bickett's Motion to appear in this case. Before beginning trial, Defendant State's Motion to exclude witnesses was heard and granted, pursuant to Kosrae Rules of Evidence, Rule 615. Defendant State's Motion to Preclude Evidence of Financial Damages was heard and granted, consistent with this Court's Order entered on July 27, 1998.

Trial was commenced on June 15, 1999 and was continued on June 16, 1999. On June 16, 1999, following presentation of the Plaintiff's case-in-chief, Defendant KUA made a verbal motion for dismissal of the complaint against KUA. Defendant KUA's Motion for Dismissal was granted and the complaint against KUA was dismissed. The State's Motion for Dismissal of the complaint against the State was denied. The trial was concluded following presentation of Defendant State. s case-in-chief and closing arguments were heard on June 16, 1999. The Court took this matter under advisement.

Plaintiff Donald Jonah is the sole owner and operator of the Sandy Beach Hotel and Restaurant. The Hotel is situated in Tafunsak, on land adjacent to the Lelu-Tafunsak municipal boundary. Dedication of the Sandy Beach Hotel took place on May 13, 1982. The original hotel room units were built as local style cottages and the name Sandy Beach Hotel was chosen by Plaintiff to reflect the attractive nature of the property. Plaintiff has been granted land use rights by the fee simple owners of the land beneath the Hotel and Restaurant. Plaintiff is the sole owner and proprietor of the Sandy Beach Hotel and Restaurant. At the time of trial, the Hotel consisted of six concrete buildings, which contained a total of 16 rooms, and a restaurant. The construction of the current hotel buildings began in 1992 and replaced all nine of the original local style cottages. The Sandy Beach Hotel has continued its expansion since 1982. At the time of trial, construction of another cottage was underway.

black rocks on the beach at that time. Several years after the opening of the Hotel, some changes occurred on the property. During the late 1980s, the Department of Public Works brought rock material from the Wiya quarry and placed the rocks beachside of the road to protect the road from erosion. These erosion control measures were taken as part of the road widening project. Sometime in the late 1980s, but no later than April 28, 1989, black rocks appeared on the beach fronting the hotel buildings. The black rocks were brought up on the beach by the tide and waves. Some black rocks stay on the beach after the tide goes out.

It is difficult to determine the number of black rocks on the beach because some rocks are located on top of the sand, and some are buried in the sand. The black rocks appeared on the beach and in the water adjacent to the beach. Most of the black rocks are located below the high water mark. However, some of the rocks are located above the high water mark.

Plaintiff wrote a letter to Yosiwo George, then Governor of the State of Kosrae, on April 28, 1989. In that letter, Plaintiff complained about the appearance of black rocks from the Public Works project at the adjacent beach. Plaintiff claimed that the black rocks caused the beach fronting the Sandy Beach Hotel to become dirty and polluted, and that the black rocks were ruining his business. In that letter, Plaintiff also requested assistance from the Governor's Office. Shortly thereafter, a meeting was held with former Governor George, the Acting Director of Public Works and a representative from the Division of Construction & Engineering to discuss the Plaintiff's letter. After this meeting, workers from the Public Works Department visited the Plaintiff's Hotel property on two occasions. The workers collected the black rocks from the beach and put them in a loader. The following week the workers returned and picked up more black rocks from the beach. After the clean up was conducted by the Public Works employees, more black rocks appeared on Sandy Beach.

It is the responsibility of the Department of Public Works to oversee, maintain and repair State infrastructure. The duties of the Department of Public Works include the maintenance, repair and building of the roads of Kosrae. In maintaining and upgrading the roads, reclamation and stabilization measures are sometimes necessary to widen the road and to protect the beachside of road from erosion. One of the duties of Public Works is to prevent erosion and protect the road base, where necessary. The State has built seawalls and has implemented other erosion control measures along the coastline to protect the road. If no protective measures taken by the State, then the road would be washed away and upland property would be damaged and eroded.

The seawall and reclamation immediately south of Sandy Beach was constructed by the Public Works employees as part of the road widening project in the late 1980s. The reclamation, erosion control measures and seawall using the black rocks, completed by Public Works during the late 1980s, on the beachside of the road from Tropical Breeze to the Sandy Beach area is hereafter collectively referred to as the seawall. The road was widened as necessary, to maintain a 20 foot width, plus a 5 foot shoulder on each side, wherever possible. On the beach side of the road, reclamation was done, using rocks from Wiya quarry to create a foundation. The seawall was constructed using coarse black rocks, two to three feet in diameter. A geotextile filter cloth was anchored to the wall to allow passage of water, but not soil. The seawall was constructed because erosion threatened the road between Tropical Breeze and the Sandy Beach properties. Before the black rocks were placed on the beach, strong waves would take materials from the beach into the water. The State was required to take this action to protect the road. This road is the main road for vehicle transportation between the airport, Tafunsak and Lelu.

widening project south of Sandy Beach are similar to the rocks used by the CAT Team in their gabion baskets. Although gabions are used all over the world, high wave action may cause the contents to spill. Therefore, the existing seawall just south of Sandy Beach is the best type of stabilization and erosion control measure for this location.

The State's expert witness, Mr. Ramsey, a coastal engineer, testified that the presence of the black rocks on the beach fronting Sandy Beach Hotel is a benefit to the Plaintiff. There is erosion currently taking place in 80% of the coastlines around the world, including Sandy Beach. The sand at Sandy Beach is being sucked out by the waves, leaving behind rocks and cobbles on the beach. The presence of rocks and cobbles on the beach show a natural hardening of the beach. The wave conditions in the Sandy Beach come from the north east direction, and the current moves the sand, rocks and other sediment in the westerly direction. The black rocks, as well as other rocks, are continuing to move west from the wave action. The current is not significantly affected by the seawall. Mr. Ramsey testified that the black rocks came from the gabion structures and other fill used on the beach south of Sandy Beach. The natural progress of erosion is that the beach becomes rocky. Removal of the black rocks will not bring back the sand to Sandy Beach. The black rocks should be left on the beach to promote hardening. It would not be beneficial to remove the rocks from the beach.

Plaintiff testified that the presence of the black rocks disappointed him, his children and his employees. Children swimming at Sandy Beach were injured by the rocks. Plaintiff has suffered weight loss. Plaintiff's claim is for loss of use and loss of enjoyment of his land. The Plaintiff did not present any expert witnesses regarding construction of the seawall, coastal processes or on any other issues in support of his case.

This Court must first determine the extent of Plaintiff's claims with respect to the location of the black rocks at Sandy Beach. Most of the black rocks are located below the high water mark and are therefore covered with water with the change of the tide. However, some of the rocks are located above the high water mark. These rocks are rarely, if ever, covered with water.

the waters, land, and other natural resources within the marine space of the State are public property, the use of which the State Government shall regulate by law in the public interest, subject to the right of the owner of land abutting the marine space to fill in and construct on or over the marine space . . . .

Section 1.1. Applying the State's definition relating to State ownership of marine space, all land inland or above the high-water mark is land that belongs to the Plaintiff. Mr. Ramsey testified that the majority of the black rocks are below the ordinary high tide mark. These rocks are located within the marine area of Kosrae State and belong to the State government of Kosrae.

Private individuals lack standing to assert claims on behalf of the public. Private individuals cannot bring claims against the State on behalf of the public with respect to State land. See In re Parcel No. 046-A-01, 6 FSM Intrm. 149, 157 (Pon. 1993). Here, the Plaintiff does not have standing to bring suit against the State with respect to the black rocks located below the high water mark. These black rocks are located on State land and belong to the State.

The Plaintiff has alleged that the Defendant was negligent in its construction of the seawall. Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances. Pohnpei v. M/V Miyo Maru No. 11 , 8 FSM Intrm. 281, 293 (Pon. 1998). Duties of care differ according to the circumstances. The exact parameters of each person's responsibilities towards others will be defined through time by judicial decisions and statutes.Asher v. Kosrae, 8 FSM Intrm. 443, 449 (Kos. S. Ct. Tr. 1998).

The elements required to prevail on a negligence claim are: a duty of care, a breach of that duty, and damages proximately caused by that breach. Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 535 (Pon. 1998). Only when there is a duty of care, breach of this duty, damage caused by the breach, and determination of the value of the damage can there be a liability for negligence. Nena v. Kosrae, 5 FSM Intrm. 417, 420 (Kos. S. Ct. Tr. 1990).

The State had a duty of care to construct the seawall in a manner which a reasonably careful person would have done in similar circumstances. A reasonably careful person would have constructed the seawall in accordance with accepted methods of seawall construction in Kosrae at that time, during the late 1980s. Expert witnesses testified that the black rock was routinely used for seawall construction during that time. Later, around 1992, gabion baskets were used for erosion control near the CAT Camp. However, even today, the large black rocks continue to be used for erosion control projects in Kosrae. Plaintiff did not prove that the use of black rocks for the seawall during the late 1980s was improper or that another method of construction should have been used for the seawall.

The State's expert witness, Mr. Ramsey, testified that the current seawall utilizes the best method to control erosion. Use of the large black rocks is the best method to dissipate wave energy from the ocean. Therefore, the State did not breach its duty to the Plaintiff by using black rocks for erosion control measures and construction of the seawall. The State is not liable to the Plaintiff for negligence.

The Plaintiff has alleged that the Defendant State created and maintained a nuisance through construction of the seawall. 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 by the performance of an abnormally dangerous

The Court in Nelper established a two step analysis to determine liability for the tort of nuisance. The first step of the analysis for nuisance requires that there be a substantial interference with the use and enjoyment of anothers land. A substantial interferenceis further defined as 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. Plaintiff in this case suffered inconvenience and discomfort from the presence of the black rocks on his beach which affected his property, his comfort, his family's and his guests' comfort. People did not want to swim at the beach because of the rocks. Children swimming at the beach were injured by the black rocks. Thus, I conclude that the first step of the analysis for nuisance is satisfied.

The second step of the analysis for nuisance describes the actions of the potential liable party. The interference with the use and enjoyment of another's land must be caused by intentional and unreasonable conduct, or caused unintentionally by negligent or reckless conduct, or the performance of an abnormally dangerous activity. There was no evidence presented at trial that the State intentionally caused the black rocks to appear on Plaintiff's land. There was no evidence presented at trial that the State's actions in building the seawall to protect the road from erosion were unreasonable. To the contrary, the evidence showed that the construction of the seawall was necessary to protect the road and inland properties from erosion damage. There was no evidence at trial that the building of the seawall for erosion control is an abnormally dangerous activity or that the State's actions in building the seawall were reckless. Finally, as this Court concluded above, the State was not negligent in its construction of the seawall, by using construction methods and materials which were applicable and appropriate at the time of construction. Consequently, the State's actions in building the seawall south of Plaintiff's property were not negligent, reckless, unreasonable or abnormally dangerous. The State did not intentionally cause the black rocks to appear on Plaintiff's property. Therefore, under Nelper, the second prong of the nuisance analysis is not satisfied. The Court concludes that Defendant State is not liable to Plaintiff for nuisance.

Plaintiff has alleged a violation of statute or regulation by constructing the seawall during the road widening project in the late 1980s without a permit from the State. Kosrae State Code, Section 7.402 gives the Development Review Commission (DRC) the authority to adopt and enforce regulations. The regulations of the DRC are set forth at Regulation 4 and were adopted in May 1986. The scope of Regulation 4 is intended to cover all persons wanting to fill in and construct on or over land below the ordinary high water mark. In this case, it was the State's actions in placing the black rocks on the beachside of the road as part of the road widening project. Regulation 4 sets forth the permit program requirements, which requires a plan of the construction as part of the permit application.

Regulation 4 does not provide any private right of action. In other words, violation of the Regulation does not give the Plaintiff any cause of action against Defendant State. Even assuming that the State did not have a specific plan for the seawall, and if even such failure was in violation of Regulation 4, the Plaintiff does not have any right of action against Defendant for violation of Regulation 4.See Damarlane v. United States, 6 FSM Intrm. 357, 360-61 (Pon. 1994). A violation

Plaintiff claims that the State is liable for trespass because it intentionally and without consent caused the black rocks to enter his land. Plaintiff possesses land which lies above the high water mark. Plaintiff has been granted the right to utilize the land for the Sandy Beach Hotel and Restaurant through land use agreements. Plaintiff holds a sufficient possessory interest to give him standing to maintain an action for trespass. It is unnecessary to have a fee simple title to land in order to bring an action for trespass. See Ponape Enterprises Co. v. Soumwei, 6 FSM Intrm. 341, 343 (Pon. 1994); In re Parcel No. 046-A-01, 6 FSM Intrm. at 154.

An action for trespass has been broadly defined in the FSM as a wrongful interference with another's possessory interest in property. Nelper, 8 FSM Intrm. at 533. A trespass cause of action accrues when there is an intrusion upon the land of another which invades the possessor's interest in the exclusive possession of his land. Nahnken of Nett v. Pohnpei, 7 FSM Intrm. 171, 177 (Pon. 1995). To prevail in an action for trespass, a plaintiff must prove a wrongful interference with his possessory interest in the property. In re Parcel, 6 FSM Intrm. at 155. Thus, Plaintiff here must prove a wrongful interference by Defendant State with his possessory interest in the property. Plaintiff claims that the presence of the black rocks from the State. s seawall, is a wrongful interference with his possessory interest in his property.

One is subject to liability to another for trespass, regardless of whether he causes harm to any protected interest of the other, if he intentionally and without causes a thing to enter land in possession of another, or intentionally fails to remove from the land a thing which he is under a duty to remove. Nelper, 8 FSM Intrm. at 533-34. 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 or to the possessor. Id. at 534.

The State did not intentionally cause the black rocks to appear on the Plaintiff's land. Therefore, the State did not intentionally cause a trespass to Plaintiff's land.See id. at 533-34. This Court concluded that the State was not negligent or reckless in construction of the seawall. This Court has also concluded that the construction of the seawall is not an abnormally dangerous activity. Therefore, no trespass liability attaches to the State. Id. The State is not liable to the Plaintiff for trespass.

All actions in Kosrae State Court must be commenced within the time period stated in Kosrae State Code, Title 6, Chapter 25. An action for damages for loss of land is subject to a six-year statute of limitations. Nahnken of Nett v. United States, 7 FSM Intrm. 581, 590 (App. 1996). The claims brought by Plaintiff in this matter involve damages to land and are subject to the six year statute of limitations. Therefore, Plaintiff must have filed his complaint within six years after accrual of the cause of action. Kos. S.C. § 6.2506; Kos. Civ. R. 2 , 3.

The road widening project near Sandy Beach began sometime in the late 1980s. The road widening project included the placement of black rocks for beach stabilization, erosion prevention and construction of the seawall. By letter dated April 28, 1989, Plaintiff complained to the Governor of the State of Kosrae regarding the appearance of black rocks on his beach from the Public Works project at the adjacent beach. Plaintiff claimed that the black rocks caused Sandy Beach to become dirty and polluted, and that the black rocks were ruining his business. Plaintiff testified that the rocks started

to appear before he sent the April 28, 1989 letter to the Governor. Therefore, the latest date that the Plaintiff could have discovered the black rocks on his beach is April 28, 1989. The complaint in this matter was filed on June 22, 1995, more than six years after Plaintiff's discovery of the black rocks on his property from the Public Works project.

A cause of action accrues, and the statute of limitations begins to run, when a suit may be successfully maintained thereon. Waguk v. Kosrae Island Credit Union, 6 FSM Intrm. 14, 17 (App. 1993). In this case, the Plaintiff could have brought suit at the time that the black rocks started appearing on his beach, no later than April 28, 1989. It is apparent from the Plaintiff's letter to the Governor that the Plaintiff had knowledge of the black rocks, and the source of the black rocks from the road widening project.

Here, the presence of the black rocks on Plaintiff's property has continued, up until the present time. Thus Plaintiff claims a continuing injury based upon trespass and nuisance. The statute of limitations does not begin to run as to a continuing injury until damages are sustained. Mid-Pacific Construction Co. v. Semes (I), 6 FSM Intrm. 171 (Pon. 1993). The Plaintiff here sustained property damage from the day of appearance of the black rocks, no later than April 28, 1989.

The general rule applicable to negligence actions is that the statue of limitations runs from the time of the negligent act or omission, even though the total damage cannot be ascertained until a later date. 51 Am. Jur. 2d Limitations of Actions § 136 (1970). Here the alleged negligent act was the State. s construction of the seawall during the road widening project. Plaintiff's cause of action based on negligence is barred by the statute of limitations.

Plaintiff's cause of action of trespass and nuisance are also based upon the State's construction of the seawall during the road widening project, using black rocks. The black rocks that appeared on Plaintiff. s property were permanent and their presence on Plaintiff's property were to continue indefinitely. Where the original cause of injury is permanent in nature, and the damages may be recovered in one action, then the statute of limitations generally attaches at the time the act complained of is done. Id. § 121. Here the original cause of injury was the State's use of the black rocks in building the seawall during the road widening project. Plaintiff's damages to his property may be recovered in one action. Therefore, Plaintiff's causes of action based on nuisance and trespass are barred by the statute of limitations.

At the close of Plaintiff's case-in-chief, Defendant KUA made a verbal motion for dismissal of the complaint against KUA, pursuant to Kosrae Rule of Civil Procedure, Rule 41(b). KUA based its motion for dismissal upon two grounds: expiration of the statute of limitations and failure of the Plaintiff to introduce evidence which would support liability of KUA in this case. After hearing argument from the parties and review of the testimonies, I granted KUA's Motion to Dismiss.

The Plaintiff had failed to introduce evidence which would show liability of KUA in this case. The road widening and erosion control projects carried out by the State were completed for the road widening purposes and were not related to power generation. There was testimony that one power pole needed to be moved during the project, but this was completed as an incident to the overall road widening project. Plaintiff did not carry his burden in proving the involvement of KUA in the activities which were alleged to be the cause of the black rocks appearing on Plaintiff's property. Accordingly, Defendant KUA was dismissed from this action.

be excused from the trial. There was no objection to KUA's request by either the Plaintiff or by Defendant State. Accordingly, KUA was excused from the remainder of the trial. This Court accepted the State's failure to object to KUA's departure from trial as the State's abandonment of the State's cross-claims against KUA.

For the reasons stated in this Memorandum, I find that Defendant State is not liable to the Plaintiff for negligence, nuisance, violation of law, or trespass. The Plaintiff's claims are barred by the statute of limitations. The Complaint has been dismissed against Defendant KUA and must be dismissed against Defendant State. Let judgment be entered accordingly.