Francis v Chuuk Public Utilities Corporation [2019] FMCSC 6; 22 FSM R. 417 (Chk. S. Ct. Tr. 2019) (31 October 2019)

CHUUK STATE SUPREME COURT TRIAL DIVISION
CSSC-CIVIL ACTION-NO. 001-2017

YOKICHY FRANCIS,
Plaintiff,

vs.

CHUUK PUBLIC UTILITIES CORPORATION,
Defendant.
__________________________________________

FINDINGS OF FACT CONCLUSIONS OF LAW

Repeat R. Samuel
Associate Justice

Trial: September 17, 2019
Decided: October 31, 2019

APPEARANCES:

For the Plaintiff: Pastor Suzuki
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

For the Defendant: Erick B. Divinagracia, Esq.
Ramp & Mida Law Firm
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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HEADNOTES

Evidence - Burden of Proof
To prevail on a claim of trespass, nuisance, or a civil action for a due process violation, the plaintiff must prove each element of the claims by the preponderance of the evidence. Francis v. Chuuk Public Utilities Corp., 22 FSM R. 417, 421 (Chk. S. Ct. Tr. 2019).

Torts - Trespass
To maintain an action for trespass, the plaintiff must prove that: 1) he had actual possession of land and 2) the defendant wrongfully interfered with 3) the plaintiff’s possessory interest in that property. Francis v. Chuuk Public Utilities Corp., 22 FSM R. 417, 421 (Chk. S. Ct. Tr. 2019).

Torts - Trespass
An action for trespass has been broadly defined as a wrongful interference with another’s possessory interest in property, and 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. Francis v. Chuuk Public Utilities Corp., 22 FSM R. 417, 421 (Chk. S. Ct. Tr. 2019).

Torts - Trespass
To maintain a trespass action, a plaintiff must prove that at the time of the alleged trespass he had either actual possession or the right to immediate possession. Francis v. Chuuk Public Utilities Corp., 22 FSM R. 417, 421 (Chk. S. Ct. Tr. 2019).

Torts - Damages - Nominal; Torts - Trespass
Failure to demonstrate actual damages often warrants only nominal damages for the trespass. Francis v. Chuuk Public Utilities Corp., 22 FSM R. 417, 421 (Chk. S. Ct. Tr. 2019).

Torts - Nuisance
Nuisance as a substantial interference with the use and enjoyment of another's land. Nuisance occurs if the substantial interference with the enjoyment of one’s land arises from intentional (or negligent) unreasonable conduct, or the performance of an abnormally dangerous activity. "Substantial interference" is an 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. Francis v. Chuuk Public Utilities Corp., 22 FSM R. 417, 422 (Chk. S. Ct. Tr. 2019).

Constitutional Law - Taking of Property
No person may be deprived of property without due process of law. Francis v. Chuuk Public Utilities Corp., 22 FSM R. 417, 422, 424 (Chk. S. Ct. Tr. 2019).

Property - Easements; Public Utilities
By Chuuk state law, a public utility may enter on any private land to dig out and replace or redistribute at the landowner’s instruction earth or soil for the maintenance of any pipe or line, but the landowner’s instruction is required only if the soil is to be redistributed. Francis v. Chuuk Public Utilities Corp., 22 FSM R. 417, 422 (Chk. S. Ct. Tr. 2019).

Evidence - Hearsay
A court may attach the most limited amount of credibility to hearsay testimony that fails to fall under any exception, but to which no objection was made. Francis v. Chuuk Public Utilities Corp., 22 FSM R. 417, 422 (Chk. S. Ct. Tr. 2019).

Property - Easements; Public Utilities; Torts - Trespass
No trespass was committed when the public utility already had an easement over the pipes that it replaced on the plaintiff’s land, and the law did not require instruction from the land owner since the soil that the utility dug up to replace the pipes was never redistributed - it was placed over the pipes again. Francis v. Chuuk Public Utilities Corp., 22 FSM R. 417, 423 (Chk. S. Ct. Tr. 2019).

Property - Easements; Public Utilities; Torts - Trespass
No trespass was committed when the public utility placed primary utility poles to connect the general public in that area to electricity because the landowner’s right to possessory interest remains subject to the public utility’s right to use the soil above and below the land for public utility purposes. Thus, no interference with the land owner’s possessory interest occurred. Francis v. Chuuk Public Utilities Corp., 22 FSM R. 417, 423 (Chk. S. Ct. Tr. 2019).

Property - Easements; Public Utilities; Torts - Nuisance
A public utility did not create a nuisance when it installed primary electric poles and replaced pipes because neither qualify as unreasonable conduct nor an abnormally dangerous activity. Public utilities often engage in the installation and replacement of utilities to provide the entire community with a higher standard of living. Neither create any realistic danger to the landowner or surrounding landowners and they provide benefits to the community. Francis v. Chuuk Public Utilities Corp., 22 FSM R. 417, 423-24 (Chk. S. Ct. Tr. 2019).

Constitutional Law - Chuuk - Due Process; Public Utilities
Chuuk Public Utilities Corporation is a semi-public entity where the governor of Chuuk appoints its board of directors; it is thus a government actor whose actions are subject to the mandates found within the Chuuk Constitution - including the declaration of rights clause. Francis v. Chuuk Public Utilities Corp., 22 FSM R. 417, 424 (Chk. S. Ct. Tr. 2019).

Constitutional Law - Chuuk - Interpretation
Because Chuuk’s people have continuously recognized that "land is life"and because of the particular sacredness with which the Chuukese as a community, value land, this must be reflected in the court’s interpretation of the Chuuk Constitution. The protections extended to "real property" under the Chuuk Constitution are more extensive than those guaranteed under the FSM Constitution. Francis v. Chuuk Public Utilities Corp., 22 FSM R. 417, 424 (Chk. S. Ct. Tr. 2019).

Constitutional Law - Chuuk - Due Process; Property - Easements; Public Utilities
Chuuk state law requires a public utility to consult with the land owner and announce entry before it works on public utilities - but provides no relief for failure to consult. Due process requires consultation with the landowner before installing a new structure on the land (or extending another easement through that land), but the replacement of existing pipes falls outside that due process requirement since that easement already existed. Francis v. Chuuk Public Utilities Corp., 22 FSM R. 417, 424 (Chk. S. Ct. Tr. 2019).

Constitutional Law - Chuuk - Due Process; Property - Easements; Public Utilities
The respect for real property, as implicitly recognized under the Chuuk Constitution, requires that if the real property owner is known, a public utility must consult with the landowner before creating a new easement over a land - in part to alleviate the landowner’s concerns and to create a practical easement which limits the easement’s effect on the owner. But consultation with the real landowner may sometimes be impossible; so when the real property owner is absent or unknown, a public utility company may broadcast two radio announcements about its intent to place a new structure on a particular parcel of land and invite any parties who might have an ownership claim to attend a consultation meeting. Francis v. Chuuk Public Utilities Corp., 22 FSM R. 417, 424 (Chk. S. Ct. Tr. 2019).

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COURT’S OPINION

REPEAT R. SAMUEL, Associate Justice

I. INTRODUCTION AND PROCEDURAL HISTORY

On January 4, 2017, Plaintiff Yokichy Francis filed an action for trespass, violation of due process rights, nuisance, and unintentional infliction of emotional distress against Defendant Chuuk Public Utilities Corp (hereinafter CPUC). Francis alleged that CPUC placed two utility poles on his land without permission. The Court dismissed the unintentional infliction of emotional distress claim on summary judgment. The other three counts remain. Trial concluded on September 17, 2019. This Court took the matter under advisement and now issues this decision.

II. ISSUES

1. 1. Whether Francis has proven by the preponderance of the evidence that CPUC committed trespass when it installed a utilities pole on his property without consultation?
   
2. 2. Whether Francis has proven by the preponderance of the evidence that CPUC committed nuisance when it installed a utilities pole on his property without consultation?
   
3. 3. Whether Francis has proven by the preponderance of the evidence that CPUC committed a due process violation when it installed a utilities pole on his property without consultation?
   

III. WITNESS TESTIMONY

Below is the record of relevant testimony by the witnesses before the Court:

A. Yokichy Francis

Francis testified on behalf of the Plaintiff’s case. Francis testified to the following:

- Francis lives in Eten and has often went to Hawaii for medical treatment

- In 2006, Francis purchased Nefo No. II, a parcel of land next to the Government house

- Francis gave the seller $4,000 and a $11,000 pick-up truck.

- Francis has no documentary evidence of the transaction involving the car.

- Francis has documentary evidence of the $4,000 to purchase the Nefo II.

- Francis holds a certificate of title to this land - a copy is admitted into evidence.

- Francis knows a certain, Yunis Seymor, as she is from Satawan

- While Francis received treatment in Hawaii in March 2016, CPUC entered on his land

- Francis’ neighbor, Quentin Assito, informed Francis of CPUC’s actions,

- Francis flew down from Hawaii on a return ticket purchased by his relatives for $1,200

- Francis has no further evidence of the ticket’s cost

- Francis arrived on March 15, 2016 and saw that some land was dug up, CPUC installed 2 new poles and dug up the ground. He also saw a pipe there.

- Francis observed that CPUC cut down some trees nearby. He provided a picture of the disturbed area from March 2016.

- After Francis complained, CPUC covered up the ditch and replaced the ground soil.

- Francis claimed that he planned to build a house on this land, but as a result of the pole was unable to.

- Two of the poles were installed next to a dirt road, which runs through Francis’ property and is used by two other residences to get to them.

- Francis sold the land to Chuuk State in 2018 and received $16,575 for the land and an addition amount of $2,356 for previous use of this land for a period of time

- Francis cashed the check.

B. Quentin Assito

Quentin Assito testified on behalf of the Plaintiff to the following:

- Assito lived near Nefo II for twenty years and called Francis when he saw CPUC placing the telephone poles on Francis’ property.

- Assito is a friend of Francis and works as a dentist.

C. Linda Francis

Linda Francis, the wife of Plaintiff, testified on behalf of the Plaintiff:

- Linda confirmed that she and Yokichy planned to build a house on the land

- Francis then went to Hawaii for medical treatment

- After CPUC dug into the ground, they lost interest in building a house on the land and sold it to Chuuk State.

D. Fernie Esah

Esah testified on behalf of CPUC:

- Esah worked at CPUC since 1996, and is the PR person for CPUC

- Esah negotiates with landowners and has a procedure for determining ownership

- Esah consulted with the Land Commission and learned that Nefo II belonged to Yunis Simor, but the Land Commission lacked a copy of a certificate of title or other documents.

- CPUC dug up dirt on Nefo II in March 2016 and replaced pipes that were previously there.

- CPUC never redistributed the soil away from the location.

- CPUC never removed any trees.

- CPUC also installed two primary poles at a distance of 5 ft away from the road

- CPUC installed the primary poles 5 ft. away from the road because CPUC has an easement over that area.

E. Julian Hartman

Julian Hartman testified on behalf of CPUC

- Hartman works as the head of the power distribution section of CPUC

- Hartman oversaw the installation of two primary poles on Nefo II in 2016

- CPUC installed the poles to service the families in that area with electricity

IV. LAW

To prevail for a claim of trespass, nuisance, or a civil action for a due process violation; the Plaintiff must prove each element of the claims by the preponderance of the evidence.

A. Trespass

To maintain an action for trespass, the Plaintiff must prove that: 1.) He had actual possession of land and 2.) Defendant wrongfully interfered with 3.) Plaintiff’s possessory interest in that property.

An action for trespass has been broadly defined in the FSM as a wrongful interference with another’s possessory interest in property, and 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. Nakamura v. FSM Telecomm. Corp., 17 FSM R. 119, 124 (Chk. 2010). To maintain a trespass action, a plaintiff must prove that at the time of the alleged trespass he had either actual possession or the right to immediate possession. Sana v. Chuuk, 7 FSM R. 252, 254 (Chk. S. Ct. Tr. 1995). Failure to demonstrate actual damages often warrants only nominal damages for the trespass. Nakamura, 17 FSM R. at 124.

B. Nuisance

Our jurisprudence defines nuisance as a substantial interference with the use and enjoyment of another's land. Rosokow v. Bob, 11 FSM R. 210, 215 (Chk. S. Ct. App. 2002). Nuisance occurs if the substantial interference with the enjoyment of one’s land arises from intentional (or negligent) unreasonable conduct, or the performance of an abnormally dangerous activity. The FSM Courts have defined a "substantial interference" as an 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. Nakamura v. Mori, [2009] FMSC 6; 16 FSM Intrm. 262, 269 (Chk. 2009). I find this definition for substantial interference persuasive.

C. Due Process

The Chuuk State Constitution, Article III, Section 2 provides that "[n]o person may be deprived of . . .erty ut due prue process oess of law." This follows the wording of Article IV of the FSM Constitution.

D. Chuuk Public Utilities Act

Chuuk State Law No. 3-97-0amend 8-05-14 (o)(2), (2), proviprovides that CPUC may enter on any private . . . land to dig ou repdace orce or redistribute at the instruction of the landowner earth . . . soil . . . fo mthetenan e of any pipy pipe or line. The aboveision requires the instruction of the landowner if thef the soil soil is to be redistributed - an alternative reading would simply defy lo/p>

Subon (o)(5) pr5) provideovides thas that CPUC may enter to erect poles upon any land.

Subsection (o)(6) provides that CPUC shall announce its entry and consult with the landowner as to its proposed actions for any of the above-mentioned activities. This section also provides CPUC with the right of use and requires compensation to the land owner where a nuisance occurs or a loss of the value of land occurs.

V. ANALYSIS

A. Findings

The Court finds the Francis purchased Nefo II in 2007 somewhere between $4,000 and $15,000. Francis was the owner of Nefo II in March 2016. In early March 2016, CPUC installed two electric poles along a road that runs through Francis’ property to service electricity to residents in the area. CPUC installed the poles within five feet of the road to comply with the easement the CPUC has for installing primary poles. CPUC also replaced pipes that already ran through the area and covered the replaced pipes with the same soil. No soil was redistributed. CPUC failed to consult with Francis prior to installing the utility poles or replacing the pipes. However, CPUC consulted with Yunis Seymor.

The Court will only place the most marginal amount of credibility to Esah’s statement that the Land Commission lacked a certificate of title and referred him to Seymor, however. While Francis failed to object on hearsay grounds as to the Land Commission’s statements regarding Seymor’s role as the landowner, nothing precludes this Court from attaching the most limited amount of credibility to hearsay that fails to fall under any exception. Esah failed to provide enough testimony for the Court to deem a land commissioner’s statement as something which qualifies under the "Reputation concerning boundaries or general history exception."

Francis was in Hawaii in March 2016 and flew down to Chuuk in March 2016 - possibly to address CPUC’s construction of two poles in Nefo II. Francis never reached out to CPUC from Hawaii, although such opportunity existed. Francis’ relatives covered the cost of Francis’ flight - although Francis has not shown the expense he incurred to fly to Chuuk in March 2016 to actually be $1,200. His testimony noted that a round trip ticket typically costs $1,200 - but never presented any evidence as to his flight expenses.

Francis previously planned to build a house upon Nefo II. After CPUC replaced the pipes, he no longer desired to build a house there - although the Court fails to find the Francis’ refusal to build a house on the land reasonably stems solely from CPUC’s replacement of pipes which already existed - nor from the construction of utility poles along the dirt within the easement area. Francis sold Nefo II to Chuuk State in 2018 for $16,575 for the land and an addition amount of $2,356 for previous use of this land. Francis made a profit between the time of his acquisition of Nefo II and his sale of Nefo II.

B. Trespass

Francis’ claim for trespass fails.

As Francis’ certificate of title demonstrated, he was the actual land owner of Nefo II in March 2016. No dispute exists as to this matter.

CSL 8-05-14 subjects anyone’s possessory interests over their land to CPUC’s right to use the area "under or over the soil" of that land for the purpose of provided public utilities. Stated differently, CSL 8-05-14 vests CPUC with the power to create a public utility easement over another’s land. Here, CPUC already had an easement over the pipes that CPUC replaced on Francis’ land. Further, the law did not require instruction from the land owner since the soil which was dug by CPUC to replace the pipes was never redistributed - it was placed over the pipes again.

CPUC had the right to create an easement to place primary utility poles to connect the general public in that area to electricity. While such easement may constitute a taking, CSL 8-05-14 limits Francis’ possessory right over his land so long as CPUC abides by 8-05-14 when it enters upon his land. While CSL 8-05-14 also mandates CPUC to announce its entry and consult with the landowner prior to accessing an easement for public utilities, this Court has already determined that consultation is not a prerequisite to make an interference with a landowner’s possessory interest, lawful. The landowner’s right to possessory interest remains subject to CPUC’s right to use the soil above and below the land for public utility purposes under CSL 8-05-14. As no interference with the land owner’s possessory interest occurred, Francis has failed to establish an action for trespass.

C. Nuisance

Francis has failed to established by the preponderance of the evidence that nuisance occurred. Nuisance arises when a party substantially interferes with the use and enjoyment of another's land by engaging in intentional unreasonable conduct or abnormally dangerous conduct. The parties agreed that CPUC installed two electric poles and replaced pipes which were already on the land. The installation of primary electric poles and the replacement of pipes by CPUC neither qualify as unreasonable conduct nor an abnormally dangerous activity. CPUC often engages in the installation and replacement of utilities to provide the entire community with a higher standard of living. Neither of these structures significantly obstruct the view nor make any noise. The Court had not found credible Francis’ account that the utility poles or replaced pipes prevented him from building a house on his land any more than prior to their installment/replacement. Neither created any realistic danger to the landowner or surrounding landowners despite the benefits that they provide to the community. Francis has failed to prove by the preponderance of the evidence that CPUC has created a nuisance on his land.

D. Due Process

CPUC is a semi-public entity where the governor of Chuuk State appoints its board of directors. CPUC is thus a government actor whose actions are subject to the mandates found within the Chuuk State Constitution - including the declaration of rights clause.

The Due Process Clause of the Chuuk State Constitution mandates that "[n]o person may be deprived of . . . property without due process of law." Chuuk’s people have continuously recognized that "land is life." The particular sacredness with which we as a community, value land, must thus reflect in this Court’s interpretation of the Chuuk State Constitution. The protections extended to "real property" under the Chuuk State Constitution are more extensive than those guaranteed under the FSM Constitution.

CSL 8-05-14 requires consultation with the land owner and announcement of entry prior to work on public utilities - but provides no relief for failure to consult. It would seem that due process requires consultation with the land owner prior to installing new structure on the land (or extending another easement through that land). The replacement of the pipes falls outside the due process requirement as that easement already existed. The two utility poles were new structures on Nefo II, however. The respect for real property, as implicitly recognized under the Chuuk State Constitution, requires that: if the real property owner is known, CPUC shall consult with the land owner prior to creating a new easement over a land - in part to alleviate concerns of the land owner and to create a practical easement which limits the effect of the easement on the owner.

The Court also recognizes that consultation with the real land owner may sometimes be impossible: a land owner may be unknown and no ready ability exists of ascertain ownership status, the land owner may be an absent from the jurisdiction without any opportunity to be contacted, or the land owner may purposefully attempt to avoid contact with a utilities company/State in anticipation that he may create a "windfall profit" from a future "due process" violation - a burden which will pass onto the public through higher utility rates. Where the real property owner is absent or unknown, a public utility company may broadcast two radio announcements as to its intent to place a new structure on a particular parcel of land and invite any parties who might have a claim of ownership to attend a consultation meeting.

Here, the CPUC failed to provide the Court with a rational reason for why CPUC approached Yunis Seymor instead of Yokichy Francis. The Court will not attach much weight to the Esah’s testimony as to the land commission’s advice without someone from the land commission having testified before the Court or CPUC having provided another source of evidence besides inadmissible hearsay. There was no credible evidence offered that the Land Commission lacked a Certificate of Title issued to Francis when CPUC inquired in 2016 as to the ownership of Nefo II.

The Court also observes that that Francis was an absentee land owner in 2016 (he lived in Eten and traveled often to Hawaii). Francis sustained no damages as a result of the installation of the utilities poles and sold his land at a profit two years later. Francis further received a check from Chuuk State in the amount of $2,356 for "previous use of Nefo II" - after only eleven years of ownership.

Without further proof, the Court will deem that CPUC had the opportunity to determine from the Land Commission that Francis was the owner. Had it not, CPUC should have made two radio announcements about its intent to place the utility poles on the land and invite any interested party to consult as to the placement. CPUC made a due process violation. However, Francis proved no damages. Certainly, the Court finds that Francis has provided no evidence for the $25,000 he claims entitlement towards.

VI. CONCLUSION

This Court now finds that:

1. 1. Francis has not proved by the preponderance of the evidence that CPUC committed trespass when it installed a utilities pole on his property.
   
2. 2. Francis has not proved by the preponderance of the evidence that CPUC committed nuisance when it installed a utilities pole on his property.
   
3. 3. Francis has proven by the preponderance of the evidence that CPUC committed a due process violation when it installed a utilities pole on his property without consultation.
   

This Court also finds that Francis sustained no damages as a result of this violation, and thus remains entitled to nothing.

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