Nena v Kosrae (II) [1994] FMSC 18; 6 FSM Intrm. 437 (App. 1994) (29 June 1994)

FSM SUPREME COURT
APPELLATE DIVISION

APPEAL CASE NO. K2-1990

EZRA NENA,
Appellant,

vs.

STATE OF KOSRAE,
Appellee.
___________________________________

ORDER

Decided: June 29, 1994

BEFORE:

Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin 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: Charles Greenfield, Esq.
Micronesian Legal Services Corporation
P.O. Box 38
Lelu, Kosrae, FM 96944

For the Appellee: Tim Stumpff, Esq.
Assistant Attorney General
Kosrae Attorney General's Office
P.O. Box AG
Lelu, Kosrae, FM 96944

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HEADNOTES

Appeal and Certiorari
After an appellate court has issued its opinion it may grant a petition for a rehearing if it has overlooked or misapprehended points of law or fact. Ordinarily, such petitions are summarily denied. Nena v. Kosrae (II), [1994] FMSC 18; 6 FSM Intrm. 437, 438 (App. 1994).

Appeal and Certiorari
Where the appellant at oral argument contended that a grant of an interest in land was for an indefinite term and the court inquired of the appellant whether the grant was perpetual or forever the issue of whether a perpetual grant was for an indefinite term was fairly before the appellate court and could be decided by it even though the issue had not ben briefed nor had the appellee urged it. Nena v. Kosrae (II), [1994] FMSC 18; 6 FSM Intrm. 437, 439 (App. 1994).

Constitutional Law - Indefinite Land Use Agreements; Property - Easements
An easement may be created for a permanent duration, or, as it is sometimes stated, in fee, which will ordinarily continue in operation and be enforceable forever. The grant of a permanent easement is for as definite a term as the grant of a fee simple estate. Both are permanent and not for a definite term. Nena v. Kosrae (II), [1994] FMSC 18; 6 FSM Intrm. 437, 439 (App. 1994).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

Our opinion in this case was entered on November 25, 1993. Appellant filed a timely petition for rehearing pursuant to FSM Appellate Rule 40(a). Under Rule 40(a) we may grant a petition for rehearing if the court has overlooked or misapprehended points of law or fact. Cf. Carlos v. FSM, 4 FSM Intrm. 32, 33 (App. 1989). We requested the appellee to file an answer. We have carefully reviewed the submissions and hereby deny the petition. Our reasoning follows.

I.

Ordinarily, after review, we summarily deny petitions for rehearing. See Carlos v. FSM, 4 FSM Intrm. 32 (App. 1989); Loch v. FSM, [1985] FMSC 8; 1 FSM Intrm. 595 (App. 1985); but cf. Wito Clan v. United Church of Christ, [1993] FMSC 42; 6 FSM Intrm. 291 (App. 1993). In this case, however, the appellant has raised two points the court believes need to be addressed.

In our previous holding we determined that the easement the appellant granted the appellee was not void under the constitutional provision banning indefinite land use agreements because it was a perpetual, and therefore not indefinite, grant. Nena v. Kosrae, [1993] FMSC 49; 6 FSM Intrm. 251, 254 (App. 1993). Appellant asks us to reconsider this holding as erroneous. He requests a rehearing because this position "has neither previously been urged by any of the parties in this case nor been briefed." Appellant's Petition for Rehearing at 2. Appellant further concludes that we rejected the trial court's conclusion that the constitutional prohibition of indefinite land use agreements did not apply to road easements, id. at 12 n.3, so that if we reverse our current "erroneous" holding we should then order judgment be entered for him.

II.

The petitioner is correct that the holding that the grant was perpetual and therefore not indefinite (under article XIII, section 5 of the FSM Constitution) had not been briefed, nor was it urged by the government. However, one issue on appeal was the petitioner's contention that the grant found in the Statement of Intent was an indefinite land use agreement in violation of the Constitution.

In oral argument the petitioner stressed in several ways that the grant was indefinite. For instance, that "the grant did not provide for a specific term for its termination" and that it was for an "indefinite term." The court then inquired of the petitioner whether the grant could be "perpetual, forever."

In this posture we feel the matter was fairly before us, and could be decided by us.

III.

Appellant misconstrues our opinion when he concludes that we rejected the trial court's holding that the constitutional ban on indefinite land use agreements did not apply to road easements. We never reached the merits of that holding. When we determined that the grant in question was for a definite term there was no need to go further and decide whether the constitutional ban applied to all easements. Nor do we need to reach the merits of the trial court's holding now.

IV.

Petitioner relies on a number of definitions found in a lay dictionary to argue that a grant of an easement is for an indefinite term. Petitioner particularly relies on Webster's definition of forever as "for a limitless time," and the similarity of the dictionary definition of indefinite to that of limitless. Basing legal arguments on dictionary definitions can be an uncertain proposition. See, e.g., In re Extradition of Jano, 6 FSM Intrm. 93, 107-08 (App. 1993).

"[A]n easement may be created for a permanent duration, or, as it is sometimes stated, in fee, . .;. which will ordinarily cily continue in operation and be enforceable forever." 25 Am. Jur. 2d Easements and Licenses &#99, at 504 (1966). That is the case here. This easement is of permanent duration. The grantgrant of a permanent easement is for as definite a term as the grant of a fee simple estate. Both are permanent.

V.

The constitutional provision at issue here was amended in 1991. The State of Kosrae points out that the Constitution no longer bans indefinite land use agreements, but rather prohibits "[a] lease agreement for the use of land for an indefinite term by . . . anyrnmenSM CoSM Const. art. art. XIII, § 5. The State argues in its answer for the first time that this amendment was meant to retrtive effect. While this may be a meritorious argument we do not reach it because ause of ouof our conclusion that our earlier decision did not overlook or misapprehend the law. If we were to reach this argument we would have accepted the petitioner's offer to reply to the appellee's answer.

VI.

A petition for rehearing may be granted if the appeals court has overlooked or misapprehended the law. That not being the case here, the petition for rehearing is accordingly denied.

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