Kautu v Rinikatawa [1996] KIHC 87; HCLA 023.90 (30 July 1996)

IN THE HIGH COURT OF KIRIBATI
HELD AT MARAKEI
(BEFORE THE HON R LUSSICK C.J.)

HCLA 23/90

BETWEEN:

NARIKI KAUTU
Appellant

AND:

MAKIRITE RINIKARAWA
MANUERA TEBWEBWE
TOKIRA TEKARIMWI
N. EMA TENRIA
Respondents

Mr B Berina for Appellant
Respondents in person

JUDGMENT

When we delivered our decision dismissing this appeal on 22nd July 1996 on Marakei we indicated then that we would give our reasons upon our return to South Tarawa. We now set out our reasons.

The appellant applied to the lower court to be registered as the owner of an accretion which had built up over the years from his land. The accretion had spread across the Baretoa passage, which was a body of water running from the ocean to the lagoon, completely closing off the passage. The accretion had also spread so as to adjoin the lands owned by the respondents.

The land magistrates' court refused the appellant's application to be registered as the sole owner of the accretion. Instead, the court divided the accretion along the middle of the passage and shared the accreted land between the landowners from either side of the passage as shown in the sketch attached to the court's decision.

The appellant's grounds of appeal are as follows:

(1) The Lands Court erred in law in sharing the accretion with other landowners in that the accretion accretes upon the Appellant's land.

(2) The Lands Court erred in law and in fact in failing to take into account the fact that the sea area covered by the accretion belongs, in custom, to the Appellant and his family and as a result erred in failing to award the accretion solely to the Appellant.

(3) The Lands Court erred in failing to call for evidence to ascertain the actual size of the accretion before dividing it up between the Appellant and the Respondents.

In seeking to establish ground no. 1 counsel for the appellant relies on section 16(i) of the Lands Code which provides as follows:

"16(i) If a land accretes naturally towards the sea from an owner's land then the accretion belongs to the landowner upon whose land it accretes; if it accretes upon a seawall then the accretion belongs to the owner of the wall; and if it accretes from a land and from a seawall then the accretion is shared between them".

Counsel for the appellant submits that since the land accreted from the appellant's land he owns the whole of the accretion. Counsel argues that the further the land accreted towards the sea the closer it got to other lands. If the accretion had spread across the passage and stopped 2 inches away from other lands there would have been no doubt that the appellant owned the accretion. This is not changed by the fact that the accretion actually spread so as to adjoin the other lands. The accreted land still belongs to the appellant.

The magistrates, after inspecting the site, found that the accretion from the appellant's land went on to block the mouth of the Baretoa passage and then to adjoin lands on the other side of the passage. Although the magistrates found that the accretion was from the appellant's land, they also found that the accretion was not naturally towards the sea but adjoined other lands instead. The magistrates therefore concluded that section 16(i) of the Lands Code did not apply.

We have also inspected the site of the accretion and agree with the magistrates' findings. It cannot be said that the land accretes naturally towards the sea from the appellant's land. It very clearly runs from the appellant's land, crosses the passage and adjoins land on the other side.

We do not think the magistrates fell into error in not applying s.16(i). That provision applies only to an accretion which does not affect the land of others. The accretion contemplated by s.16(i) is an accretion towards the sea. In the present case the accretion was towards lands owned by other persons and was such as to actually adjoin those lands. The Lands Code does not make any provision for an accretion of this nature.

As regards ground of appeal no. 2, the appellant and his family may well have had customary rights to set fish traps in the waters that were covered by the accretion. However, in our view those rights disappeared when the water disappeared. We do not consider it possible to convert a right to set fish traps into a right to a title in land.

In respect of ground of appeal no. 3, we do not consider that it was necessary for the magistrates to have had before them a precise metes and bounds description of the accreted land in order for them to apportion the accretion between the owners of the lands adjoining it. In doing so the court described the various divisions of the accretion, laid boundary stones and prepared a sketchmap. If, despite all this, any confusion arises as to the extent of each share then that can be cleared up by having the area surveyed.

The type of accretion we are considering here is not provided for by statute nor, as far as we know, by custom either. We note that at some point in its history this case was referred to the Attorney-General. Since there is nothing on record to indicate otherwise, we assume that the Government makes no claim to the accreted land.

Although we have not been referred to any authorities on the point, in our view the decision of the land magistrates' court is in accordance with the common law. Where land is bounded by a river its boundary is presumed to extend to the middle of the river bed (ad medium filum aquae) and where land is bounded by a road its boundary is presumed to extend to the middle of the road (ad medium filum viae). We think that the accreted land in the present case falls within this principle.

It follows from what we have said that it has not been demonstrated to us that the land magistrates' court fell into error in reaching its decision.

The appeal therefore fails and is dismissed.

THE HON R B LUSSICK
Chief Justice
(30/07/96)

TEKAIE TENANORA
Magistrate
(30/07/96)

BETERO KAITANGARE
Magistrate
(30/07/96)