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https://www.courtlistener.com/api/rest/v3/opinions/8485119/ | DECISION
MORROW, Chief Justice.
Falemalu filed his application with the Registrar of Titles to be registered as the Fonoti of Tafuga. Aufata filed his objection .to such proposed registration and became a candidate for the name. The undisputed evidence shows *412that each of the candidates is eligible to succeed to a matai title pursuant to the provisions of Sec. 926 of the American Samoa Code.
Sec. 933 of .the Code provides that:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority or plurality of the family. : ■
2. The forcefulness, character, personality and capacity for leadership of the candidate.
3. The best hereditary right in which the male and female'descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
Each candidate filed with the Clerk of the Court a petition purporting to be signed by various members of the Fonoti family in support of his candidacy. There are 173 names on Aufata’s and 123 on Falemalu’s. However, an inspection of purported signatures, numbered 78 to 173 inclusive, on Aufata’s petition makes it clear that these signatures were not put on by the persons whose signatures they purport to be. Practically all of them are in the same handwriting. Aufata admitted on the witness stand that he did not see these alleged signatures written. In view of our conclusion that these signatures were not written, by the persons whose names they purport to be we cannot consider them. Of.the remaining 77 names on Aufata’s petition 11 are of persons under 14 years of age. These may not be considered. Moa v. Faasa, No. 27-1948 (Am. Samoa) ; Kosi et al. v. Viliamu, No. 77-1948 (Am. Samoa). That leaves 66 names which may properly be counted. There are 123 signatures on Falemalu’s petition. Aufata claimed on the witness stand that 18 of Falemalu’s signers were not members of the Fonoti family. Falemalu testified that all of the signers on his petition were Fonoti family *413members. Conceding Aufata’s claim that 18 are not,, it is clear from his testimony that there are 105 signers, on Falemalu’s petition who are. One signer on this petition is under 14. His signature cannot be counted. That leaves 104 members of the family who without question favor Falemalu. Since only 66 signers on Aufata’s petition may be counted, it follows from the evidence that Falemalu prevails over Aufata on the issue of the wish of the majority of the family.
Aufata is 32 years of age, has completed the 8th grade in school and has plantations from which, he derives income of approximately $100.00 a month. Falemalu is 48 years of age and- completed the work of the 5th grade in school. He has plantations from which he too derives income of about the same amount as- Aufata. Aufata is a young man. Falemalu has had experience as a matai for almost 20 years. The court observed the personalities of the two candidates at the hearing. Based upon the evidence and our observations of the two candidates, our conclusion is that Falemalu prevails over Aufata on the issue of forcefulness, character, personality and capacity for leadership. . .
Aufata is the son of Fonoti Yili who married into the Fonoti family. His mother is the granddaughter of Fonoti Filo. Consequently Aufata has five-eighths Fonoti blood in his veins. Falemalu is the grandson of Fonoti Filo. He has one-fourth Fonoti blood in his veins. Aufata prevails over Falemalu on the issue of best hereditary right.
The value of the holder of a matai title to the government depends to a great degree upon his ability as the leader of his family. We think from the evidence and our observations of the two candidates that Falemalu will prove to be the better leader. He is an older man and already experienced in performing the duties of a matai. Another factor to consider on the issue of the value of the holder of a matai title to the government is the industry of *414the matai as evidenced by his production of goods. The candidates seem to be on a par with respect to this matter. Our conclusion is that Falemalu prevails over Aufata on the issue of value of the holder of the title to the Government of American Samoa.
Falemalu is already a matai. Since we find that he prevails over Aufata on the first, second and fourth issues, the law requires us to award the title Fonoti to him subject to his resignation from the title Falemalu. We have heretofore ruled that a man cannot hold two matai titles at the same time. Kosi et al. v. Viliamu, No. 77-1948 (Am. Samoa); Fega v. Eveni, No. 83-1948 (Am. Samoa).
Accordingly it is ORDERED, ADJUDGED AND DECREED that Falemalu shall be registered as the holder of the matai title Fonoti of Tafuga upon his filing with the Registrar of Titles his resignation from the matai title Falemalu, such resignation to be filed within 15 days from the date of this decision. The Registrar of Titles will be advised of this decree.
Court costs in the amount of $12.50 are hereby assessed against Aufata the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485120/ | DECISION
MORROW, Chief Justice.
Tuufuli of Leone offered certain land designated Leapuapua (part of a larger tract by the same name) in Leone for registration as his individually owned property. The offer to register was accompanied by a survey of the tract. Atofau K. filed an objection to such proposed registration claiming that the tract was the communal family land of the Atofau family. Hence this litigation. Sec. 905 of the Code of American Samoa. On the day preceding the hear*416ing the court viewed the land in the presence of both parties.
It is admitted by both Atofau and Tuufuli that it is a part of . a larger tract which was declared to be the property of the Atofau title in litigation between the Atofau and the People of Malaeloa in High Court Case No. 13-1918 (see also the decision of the High Court in No. 5-1915 to the same effect).
Tuufuli claims that he rendered service to Atofau Noaese, Atofau K.’s immediate predecessor, and that for such service Atofau Noaese made a gift to him of a part of the land offered for registration; and that Atofau Noaese’s widow and Sei, a young man in the Atofau family, some years later sold the remaining part to him for $100.00.
Tuufuli is not a member of the Atofau family and was not obligated in accordance with Samoan custom to render any service to the matai of that family, Atofau Noaese. We think from the evidence that this service so-called consisted of no more than an occasional act of neighborliness common among all peoples of the world. In answer to the question “When you rendered this service did you do it with the expectation of getting anything or was it just a gift on your part?” Tuufuli replied “I did not think of any reward from it.” Again in response to the question “Why did you render the service to Atofau Noaese if you are not related to him?” Tuufuli replied “Atofau Noaese is my neighbor and the way he treats me I treat him the same.” It is clear to us that there was no service but merely reciprocal acts of kindness between neighbors.
There was no legal obligation on the part of Atofau Noaese to give a piece of family land to Tuufuli. The situation was somewhat analogous to that in-which there is a subsequent promise to pay for what has been done as a gratuity. It is well established that a past gratuity cannot *417be turned into a consideration by. a subsequent promise to pay therefor so as to make a valid contract. Allen v. Bryson, 67 Ia. 591, 25 N.W. 820. Furthermore the matai of a Samoan family is not authorized either by law or Samoan custom to give away family land to a person not a member of his family. A matai in control of family lands is substantially a trustee. The beneficial interest in the lands belongs to the clan not the matai, except insofar as he may be a member of the clan. As such matai he cannot give away family land to an outsider and the attempted gift by Atofau Noaese was void. A trustee has no power to give away trust property. Julian v. Reynolds, 8 Ala. 680; Park Falls State Bank v. Fordyce, 206 Wis. 628, 238 N.W. 516, 79 A.L.R. 1339.
The widow of a matai cannot sell family lands nor can a young man of the family. Neither the widow nor the young man owns the land. A man cannot sell what he does not own except as an agent of the owner, and there is no claim that the widow or the young man Sei were agents of the clan when they attempted to sell this other part of the surveyed tract to Tuufuli. It follows therefore that the title to the part that was attempted to be sold by the widow and Sei did not pass to Tuufuli. The attempted sale was void just as was the attempted gift by Atofau Noaese to Tuufuli.
The court is exercising equity jurisdiction in this case. It is a cardinal principle of equity that “he who seeks equity must do equity.” 30 C.J.S. 456; 19 Am.Jur. 319. Although the $100.00 paid by Tuufuli to the widow and Sei was not paid to the clan this court knows judicially, since it is familiar with Samoan customs, that the money was used for the benefit of the clan. Applying the familiar equitable maxim above quoted it follows that the $100.00 paid by Tuufuli should be refunded by Atofau K. the present matai of the Atofau family as a condition of having *418the land registered as the communal family land of that family. Under Samoan customs the $100.00 will be provided by the clan.
Accordingly it is ORDERED, ADJUDGED and DECREED that upon Atofau K.’s payment of $100.00 to Tuufuli and filing Tuufuli’s receipt therefor with the Clerk of the High Court, the land as shown on the survey accompanying the offer to register the same shall be registered as the property of Atofau K. in his capacity as the matai of the Atofau family. The Registrar of Titles will be advised of this decree.
Since Tuufuli paid for the survey and the benefit thereof will inure to the Atofau family upon registration of the land it is equitable that the costs should be paid by Atofau K. Costs in the sum of $12.50 are hereby assessed against him as the matai of his family, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485121/ | DECISION
MORROW, Chief Justice.
Leuma of Aloa filed his application with the Registrar of Titles to be registered as the holder of the matai name Manaea of Amouli. Tuitui and Maliga, both of Amouli, and Vaimaona of Laulii filed objections to the proposed registration, each of the objectors becoming a candidate for the name. Maliga withdrew his objection on November 15,1948 thereby withdrawing his candidacy.
Sec. 926(a) of the Code provides that in order to be eligible to succeed to a matai title, a candidate must have “at least three-quarters Samoan blood.” The evidence in this case shows that Manaea Petero, the father of Tuitui, and the grandfather of Leuma was a Wallis Islander and not a Samoan. The mother of Tuitui, as was the mother of Leuma, was a Samoan woman. Tuitui has one-half Samoan blood in his veins and Leuma three-quarters.
The High Court in the case of Utu Samuelu of Amouli v. Tuitui of Amouli, No. 22-1945 (Am. Samoa), held that Tuitui was not eligible to succeed to the matai name Gogo. The record of the testimony in that case reads in part as follows: “Cross examination by Fuata. Q. I want to ask you Tu’itu’i. Where is your father come from? A. He came from Wallace [sic] Island.” Our finding in this case to the effect that Tuitui does not have three-quarters Samoan blood in his veins is consistent with his testimony in the Gogo case. Since we find that Tuitui does not meet the requirements of Sec. 926(a) of the Code so as to be eligible to succeed to a matai title, we shall put his candidacy to one side.
The other candidates meet all the requirements of Sec. 926 and are eligible to succeed to a matai title.
*420Sec. 933 of the Code provides that:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority or plurality of the family.
2. The forcefulness, character, personality and capacity for leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail. ■ ■
4. The value of the holder of the Matai name to the Government of American Samoa.”
Leuma and Vaimaona each filed with the court a petition purporting to be signed by various members of the Manaea family in support of his candidacy. At the hearing a supplementary petition was filed by Fuata in behalf of Vaimaona.
There were 35 names on Leuma’s petition, ten of them being the names of persons under the age of fourteen. In considering “the wish of the majority or plurality of the family” persons under the age of fourteen cannot be counted. Aufata v. Falemalu, No. 95-1948 (Am. Samoa); Moa v. Faasa, No. 27-1948 (Am. Samoa). After deducting the ten names of those under fourteen there remain 25 members of the family on Leuma’s petition which may properly be counted. On Vaimaona’s original petition there were 102 names and 90 on the supplementary petition. Counting out three names appearing on both petitions there remain a total of 189. It did not appear that any of the signers on Vaimaona’s petition were under fourteen. While there was a conflict in the evidence as to the membership in the Manaea family of the signers for Vaimaona nevertheless we believe that the weight of the evidence favors the view that they are members of the family. Conceding that all the signers on Leuma’s petition of fourteen, or over, are members of the Manaea family (and we think that there is no doub.t about such being the fact) it follows *421that Vaimaona prevails over Leuma on the issue of the wish of the majority or plurality of the family.
Leuma is twenty-five years of age. He has completed the sixth grade in school. He has plantations, cuts copra, and his wife weaves mats from laufala procured by him. He does not make Samoan curios. His income from all sources is approximately $120.00 a year. He speaks English. Vaimaona is thirty-one years of age and is a sophomore in the Samoan High School. He has had about a year’s experience as a matai. He was a teacher in the public schools for four years and was in the Samoan Marines for four years during the war. He has plantations and cuts copra. He makes Samoan curios which he sells. He also operates a bush store. -His income from his plantations and curios aggregates about $500.00 a year. He makes about $500.00 a year in profits from the operation of his store. While going to school he receives $120.00 a month from the U.S. Government under the G.I. Bill of Rights. He speaks English. The court observed the personalities of these two candidates at the hearing. Based upon such observation and the evidence the court concludes that Vaimaona prevails over Leuma on the issue of forcefulness, character, personality and capacity for leadership.
Vaimaona is the grandson of Manaea Anapu. Leuma is the grandson of Manaea Petero, a Wallis Islander. Leuma’s grandmother Siva had one-half Manaea blood in her veins. Leuma has three-eighths Manaea blood. It follows that he prevails over Vaimaona on the issue of best hereditary right.
The value of a matai to the Government of American Samoa depends in a large measure upon his ability as the leader of his family and his capacity to look after the needs of family members. His ability as a producer of goods is also a factor. We .conclude from the evidence that Vaimaona will be of more value .to the Government as the ma*422tai of the Manaea family than will Leuma. Vaimaona prevails over Leuma on the issue of value of holder of the title to the Government.
In view of our findings the law requires us to award the title to Vaimaona since he prevails over Leuma on the first, second and fourth issues.
Vaimaona is already the holder of a matai title. It is the law that a man cannot hold two matai titles at the same time. Aufata v. Falemalu, No. 95-1948 (Am. Samoa); Kosi et al. v. Viliamu, No. 77-1948 (Am. Samoa); Fega v. Eveni, No. 83-1948 (Am. Samoa). Pursuant to the provisions of Sec. 934 of the Code, a matai must, with certain exceptions, live with his family or be subject to removal.
It is ORDERED, ADJUDGED and DECREED that Vaimaona shall be registered as the holder of the matai title Manaea of Amouli upon his filing with the Registrar of Titles his resignation from the matai title Vaimaona, such resignation to be filed within fifteen days from the date hereof.
The Registrar of Titles will be advised of this decree.
Court costs in the amount of $12.50 are hereby assessed against Tuitui and a like sum against Leuma, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485122/ | DECISION
MORROW, Chief Justice.
The right to the succession to the matai name Talolo of Vaitogi is to be determined in this proceeding. Tasi filed *424his applicátion on July 28, 1948 to be registered as thé holder of the name. On July 30, 1948 Selusi filed his objection to the proposed registration thereby becoming a candidate for the name. Hence this litigation.
Sec. 92.6 of the American Samoan Code prescribes the requirements for eligibility for succession to a matai title. From the evidence it is clear that both Selusi and Tasi comply with the requirements of Sec. 926 and are eligible to succeed to a matai title.
Sec. 933 of the American Samoan Code provides as follows:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority or plurality of the family.
2. The forcefulness, character, personality and capacity for leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
The. candidates filed petitions purporting to be signed by various members of the Talolo family in support of their respective candidacies. There were 119 signatures on Tasi’s petition and 92 on Selusi’s. It was admitted by Tasi that five signatures on his petition were not made by the persons whose signatures they purported to be, .they having been in Hawaii when their signatures were put upon the petition in Tutuila. There was no evidence that they gave anyone authority to sign their names. It follows that the five cannot be counted as supporters of Tasi. Selusi claimed that 105 of the signers on Tasi’s petition were not members of the Talolo family. While the evidence on this point was conflicting, we believe that it preponderates in favor of the view that the 114 persons (we exclude the *425five living in Hawaii) who signed Tasi’s petition are members of the Talolo family. Tasi claimed that 90 of the 92 signers on Selusi’s petition were not members of the family, while Selusi claimed that they were. We believe from the evidence, despite conflict therein, that all of the 92 signers are members, of the family. Our conclusion is that a majority-of the family favor Tasi and that he prevails over Selusi on the issue of the wish of the majority or plurality of the family.
Tasi has completed the sixth grade in school. He has plantations which he works, For two years during the war he was a truck driver for the Navy, receiving $37 a week. He then went to work as an auto mechanic (learner), receiving $11 a week for two years. He now has an income of about $1,200 a year from the sale of copra, bananas and taro and mats. Selusi has plantations on which he works. He was in the Marine Corps for four years during the war. He has an income of about $300 a year from the sale of products from his own plantations. In addition he receives about a $1,000 a year from the sale of copra which is produced by himself and other members of his immediate family. He- rendered considerable service to Talolo Simene, a former holder of the title. Tasi also rendered service to Talolo Simene but much less than Selusi. The court observed the personalities of the two candidates during the course of the hearing. Based upon our observation and the evidence, our conclusion is that Selusi prevails over Tasi on the issue of forcefulness, character, personality and capacity for leadership.
Tasi is the great grandson of Talolo Tilesa. He has one-eighth Talolo blood in his veins. Selusi is the legally adopted son of Talolo Simene, he having been adopted by other than judicial proceedings pursuant to what is now Sec. 787 of the Code. Subsection (d) of Sec. 787 reads as follows:
*426“After the registration of adoption, as herein provided, the matai and the adopted person shall sustain toward each other the legal relation of parent and child, including the rights of inheritance from each other, and have all the rights and be subject to all the duties of that relation and such registration shall thereby terminate all the rights and legal responsibilities and incidents existing between the adopted person and his or her natural parents, except such child may still inherit property from his or her natural parents.”
It will be observed that this subsection fixes the relationship between the matai and the adopted child “including the rights of inheritance from each other.” The matai .title belongs to the family. It does not belong to the matai. He is merely the holder of it during his mataiship. The above statute does not expressly confer upon an adopted child any hereditary right to the matai title. Applying the familiar maxim of the law that the expression of one thing is the exclusion of another, it would follow that the conferring of the “rights of inheritance from each other” would exclude by implication the conferring of any hereditary right to the title upon the adopted child. In Toilolo Lui v. Tuliloa, No. 60-1948 (Am. Samoa), a case involving the right to the succession .to the matai name Poloa, we said:
“Toilolo is the great grandson of Poloa Fualemilo. Consequently he has Poloa blood in his veins. Tuliloa is not a descendant of a former holder of the Poloa title. He has no Poloa blood in his veins. His only connection with the Poloa title is through his marriage with Sesi, who is the daughter of Poloa Mikaele. It is our opinion that the term ‘hereditary right’ used in subdivision 3 of Sec. 933 of the Code means right based upon blood and not upon marriage.”
In Gagamoe v. Toti, No. 48-1948 (Am. Samoa), which case involved the right to succession to the matai name Faasii, we hold that the term “hereditary right” as used in subdivision 3 of Sec. 933 means a right based upon blood.
Inasmuch as Selusi is merely the adopted son of a former holder of the title and has no Talolo blood in his veins, *427we hold in accordance with our rulings in the Poloa and Faasii cases that Selusi has no hereditary right to the Talolo title. It follows that Tasi having one-eighth Talolo blood in his veins prevails over Selusi on the issue of hereditary right.
Inasmuch as Tasi has the majority of the family favoring his candidacy he will probably be able to consolidate it into a harmonious unit sooner than Selusi despite the fact that we believe that Selusi is better qualified for a mataiship than Tasi because of his forcefulness, personality and capacity for leadership. The value of the holder of a matai title to the Government of American Samoa depends in a large measure upon the manner in which he handles the affairs of the family. Everything considered we believe from the evidence that Tasi and Selusi are substantially upon a par with respect to the issue of the value of .the holder of the title to the Government.
Under Sec. 933 we must give more weight to the wish of the majority or plurality of the family .than to the forcefulness, character, personality and capacity for leadership of the candidate. Likewise we must give more weight to the matter of hereditary right than we do to the value of the holder of the matai name to the Government.
Since we find that Tasi prevails over Selusi on the first and third issues and is on a par with Selusi with respect to the fourth, it follows that we must award the matai name Talolo to Tasi although Selusi prevails over him on the issue of forcefulness, personality, character and capacity for leadership.
Accordingly it is ORDERED, ADJUDGED and DECREED that Tasi shall be registered as the holder of the matai title Talolo of Vaitogi. The Registrar of Titles will be advised of this decree.
Costs in the sum of $12.50 are hereby assessed against Selusi, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485123/ | DECISION
MORROW, Chief Justice.
Aea filed his application to be registered as the holder of the name Letele attached to the village of Pavaiai. Taulelei filed an objection to such proposed registration and became a candidate for the name.
With respect to eligibility requirements for holding a matai title Sec. 926 of the Code provides as follows:
“No person not having all the following qualifications shall be eligible to succeed to any Matai title.
(a) Must be at least three-quarters Samoan blood.
(b) Must have resided continuously within the limits of American Samoa for five years either immediately preceding the vacancy of the title, or before he becomes eligible for the title.
(c) Must live with Samoans as a Samoan.
(d) Must be a descendant of a Samoan family and chosen by his family for the title.
*429(e) Must have been bom on American Soil, except persons bom of parents of Samoan blood who are (1) inhabitants of American Samoa (2) but temporarily residing outside of American Samoa or engaged in foreign travel at date of birth of such child and (3) whose matai at any time within 13 years after the birth aforementioned files with the Registrar of Titles a sworn declaration that such child bom outside of American Samoa now resides in American Samoa and desires such child to be an inhabitant of American Samoa.”
The evidence showed that candidate Taulelei meets all of such requirements and that candidate Aea meets all of them with the possible exception of continuous residence “within the limits of American Samoa for five years either immediately preceding the vacancy of the title, or before he becomes eligible for the title.” Aea testified that he had lived in Upolu for a year after World War II. In answer to the question “You say you lived in Upolu for one year after the war, is that World War II?” Aea answered “Yes World War II.” Again in answer to the question “Was this year you spent in Upolu the year after the fiu epidemic when so many died or was it after the war when the Marines were down here?” Aea answered “The war when the Marines were here.” When Aea went on the witness stand the second time and after he had learned of requirement (b) of Sec. 926, supra, he testified that he spent the year in Upolu after World War I and still later he testified that it was after a Samoan War which must have occurred prior to the establishment of the Government here in 1900. Aea was asked “Do you mean to tell us you are a little crazy?” to which he answered “Yes” and again to the question “Do you mean sometimes you are crazy and sometimes you are not?” he said “It is from Heaven, from God.” While the court could readily dispose of this case by holding that Aea’s own testimony to the effect that he spent a year in Upolu after World War II shows that he is disqualified from holding a matai title nevertheless since it was appar*430ent to the court that Aea’s mind is impaired, due probably to old age, we shall not dispose of the case upon that ground.
Sec. 933 of the Code provides that:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority or plurality of the family.
2. The forcefulness, character, personality and capacity for leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
Each candidate filed a petition with the court signed by those members of the family supporting his candidacy. There were 51 signatures on Aea’s petition and 60 on Taulelei’s. Of the 60 signers on Taulelei’s 5 were under the age of 14 and one of these 5 signed twice. In determining “the wish of the majority or plurality of the family” persons less than 14 years of age cannot be counted. Aufata v. Falemalu, No. 95-1948 (Am. Samoa); Moa v. Faasa, No. 27-1948 (Am. Samoa). It follows that there are only 54 names on Taulelei’s petition which we may consider. Aea claimed that the 54 signers for Taulelei were not members of the Letele family. Since he admitted that he was crazy at times and since it was apparent to .the court that his mind was impaired we do not believe that much weight should be given to this testimony. It was claimed in behalf of Aea that Taulelei was not a descendant of a Letele, yet Exhibit “C” filed by Aea himself to show his own descent from a Letele shows that Taulelei is a descendant of Letele Faalalai and also of Letele Mu. If we are to believe that this genealogy is the truth (and certainly Aea would not claim in the genealogy filed in his own behalf that Taulelei was a *431descendant of these two Leteles unless it were true) we can come to no other conclusion than that Taulelei has Letele blood in his veins. We believe that the evidence clearly preponderates in favor of the view that all of the 54 signers on Taulelei’s petition (we do not count the 5 under 14) were members of the Letele family. Witnesses for Taulelei testified that 29 of the 51 signers for Aea were not members of the Letele family. The witnesses for Aea testified that they were. Considering all of the testimony on this point, we believe that it preponderates in favor of the view that all 51 signers for Aea were members of the Letele family. We conclude from the evidence that a majority of the family (54 to 51) wish Taulelei to be the matai. It follows that Taulelei prevails over Aea on the issue of the wish of the majority of the family.
Aea is 60 years of age. It was obvious to the court after seeing him and hearing him testify that his mind is impaired. He has very little education. In answer to the question “Can you read?” he said “Very little but I can see clearly with my eyes.” In answer to the question “How much education have you?” he said “Only teach how to say the A.B.C. and learn how to read the Bible.” Aea has plantations. He testified that he received about $200 a month from produce from these plantations and in addition received about $100 a month from the sale of copra. We think from the evidence that most of this income is the result of labor of other members of the Aea family and that Aea receives the income from their labor. Because of the impairment of his mind it was apparent to the court that he has very little forcefulness and capacity for leadership. We think his character is good.
Taulelei is 30 years of age. He completed the 5th grade in school. He has plantations from which he testified that he derived an income of $80 to $100 a month. He makes Samoan curios. During the war he worked on a drilling *432gang at the airbase at Tafuga. At the start his wages were $8 a week and at the end $25'a week. He is in the prime of life. His character is good. With respect to forcefulness and capacity for leadership it was quite obvious to .the court, when comparing the candidates, that Taulelei is superior to Aea, particularly since the latter’s mind is impaired. Taulelei prevails over Aea on the second issue.
There was considerable conflict in the evidence as to the amount of Letele blood in Taulelei’s veins. Aea is the great grandson of a Letele. Also he held the title Letele for many years. We believe from the evidence that Aea prevails over Taulelei on the issue of best hereditary right and we so find.
The value of the holder of a matai name to the Government of American Samoa depends in a large measure upon the skill with which he handles the affairs of the family. If he is a good matai he is much more valuable to the government than if he is a poor one. Everything considered we believe that Taulelei prevails over Aea on this last issue. Because of Aea’s impairment of mind and his age we do not believe that he would be able to give the family as high a quality of leadership as Taulelei, a much younger man with more education and a good mind.
In view of our findings that Taulelei prevails over Aea on the first, second and fourth issues it follows that the court must award him the title Letele.
Accordingly it is ORDERED, ADJUDGED and DECREED that Taulelei be registered as .the holder of the matai title of Letele of Pavaiai. The Registrar of Titles will be so advised.
Costs in the sum of $25 are hereby assessed against Aea the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485124/ | DECISION
MORROW, Chief Justice.
The right to the succession to the matai name Moliga attached to the village of Siufaga in Manua is for determination in .this proceeding. Aunuua Lolo filed his application to be registered as the Moliga on December 9, 1947. Vaefaga filed an objection to such proposed registration on December 19, 1947 and became a candidate for the name. Hence this litigation.
Sec. 926 of the A. S. Code prescribes the requirements for eligibility for succession to a matai name. The evidence showed that both Aunuua Lolo and Vaefaga meet the requirements of this section.
Sec. 933 of the A. S. Code provides as follows:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
*4341. The wish of the majority or plurality of the family.
2. The forcefulness, character, personality and capacity for leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
Each of the candidates filed a petition purporting to be signed by the various members of the Moliga family supporting his candidacy. There were 159 signatures on the petition for Aunuua Lolo and 141 on Vaefaga’s. Lolo introduced evidence to the effect that 83 of the signers on Vaefaga’s petition are members of the Moliga family. Vaefaga introduced evidence to the effect that 120 signers on Lolo’s petition were not members of the family. There was much contradictory testimony as to which candidate the majority of the family favored. In view of our findings on the other three issues it is not necessary for the court to determine the issue as to the wish of the majority of the family.
Aunuua Lolo after completing the 8th grade attended Fagalele School for 2 years and Atauloma for a part of a year. He has been a matai for about 30 years. He is the Assistant Copra Clerk in the Manua District and a member of the advisory committee on native labor for Island Packers, Inc. He has plantations and is one of the largest copra producers in the Manua District. He is a member of the House of Representatives in the Samoan Legislature. He testified that he has an income of from $200 to $300 a month. A good share of this income, however, is produced by the labor of his children. Vaefaga completed the 5th grade of Poyer School. He speaks some English. He spent 8 years in America where he worked as an electrician and as a laborer. He was employed as a sub-leaderman on Palmyra Island by contractors engaged in the construction of *435the airbase there. For two years during the war he was a lumber yard foreman. He rose to the position of rigger while being employed by the Navy at the U.S. Naval Station at Tutuila. At present he is second engineer on the Manuatele at a salary of $50 per month.
At the hearing the Judges had an opportunity to observe the personality and forcefulness of the .two candidates. We believe that the character of both candidates is good. It is our opinion, based upon the evidence and our observation of the candidates at the hearing that Lolo prevails over Vaefaga on the issue of forcefulness, character, personality and capacity for leadership.
Lolo is the son of Siale Moliga. He has one half Moliga blood in his veins. His blood brother Tuumalo was the Moliga. Vaefaga is the great grandson of Moliga Milo. He has one eighth Moliga blood in his veins. Lolo prevails over Vaefaga on the issue of best hereditary right.
The value of a matai to the Government of American Samoa depends upon the skill with which he handles .the affairs of his family. Economic value is another factor to be considered on the issue of the value of the holder of the name to the Government. Our conclusion from the evidence is that because of his forcefulness, capacity for leadership, and long experience as a matai Lolo will be better qualified to handle the affairs of the Moliga family than Vaefaga. Also the evidence shows that his economic value to American Samoa is greater than that of Vaefaga. We conclude that Lolo prevails over Vaefaga on the issue of the value of the holder of the name to .the Government of American Samoa.
In view of our findings that Lolo prevails over Vaefaga on the second, third and fourth issues we are required by the law to award the title to Lolo.
Since Lolo is already the holder of a matai title he must resign from .the title Lolo before he can be registered as the *436Moliga. A man cannot hold two matai titles at the same time. Aufata v. Falamalu, No. 95-1948 (Am. Samoa); Kosi et al. v. Viliamu, No. 77-1948 (Am. Samoa).
It is ORDERED, ADJUDGED and DECREED that Auniraa Lolo shall be registered as the holder of the matai title Moliga of Siufaga upon his filing with the Registrar of Titles his resignation from the matai title Lolo, such resignation to be filed within 20 days from the date hereof. The Registrar of Titles will be advised of this decree.
Court costs in the sum of $25.00 are hereby assessed against Vaefaga the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485125/ | DECISION
MORROW, Chief Justice.
Lagafua of Nuuuli filed his application to have the land Suaavamuli in Nuuuli registered as the communal family land of the Lagafua family. The application was accompanied by a survey of the .tract. Soliai filed an objection to such proposed registration claiming that the land was the communal family land of the Soliai family. Hence this litigation. Sec. 905 of the A. S. Code. On the day preceding the hearing the court viewed the land in the presence of the parties.
The surveyed tract is now being used as a stone quarry by the Island Government. It lies on the land side of the main highway from the Naval Station to Leone. In response to the question as to whether the Lagafua people had ever had any plantations on the land in dispute Lagafua answered “No.” And again in response to the question “You or your people never did anything to take possession of the land?” he answered “No.” In answer to the question *438“You just said it (the land) was yours?” he answered “Yes, I am the pule of this ground.” To the query “You never did anything more than just claim to own it?” Lagafua responded “No.” Contractors began to take stone from the quarry as early as 1940 and it has been used as a source of stone for governmental purposes at various times since. However Lagafua testified that he had never asked the government for money in payment for the stone taken.
The evidence showed that that part of the land from which rock has been taken was covered by soil prior to the entry of the Contractors. Soliai testified that he and the members of his family had had plantations in that soil for many years and that he remembered that there were plantations of his family there when the government was established in 1900. He further testified that these plantations were maintained by his family from the time of the establishment of the government up until the time they were destroyed in 1940 by the Contractors.
It is clear to us that the Lagafua people never did enough to establish a title in the surveyed land. They did not clear the land and occupy any part of it according to Lagafua’s own testimony. They did no more than claim to own it. Mere claim of ownership of bush land will not establish an original title to it. Occupation coupled with a claim of ownership will establish ownership to what was bush land before such occupation. See II Blackstone 8. The view that the occupant who first takes possession of land with the intention of having it as his own thereby becomes the owner of it is approved in Maine’s Ancient Law (3rd Am. Ed.) at p. 238. This doctrine of acquisition of an original title by first occupant, accompanied by claim of ownership, was approved by this court in the case of Faataliga v. Fano, No. 80-1948 (Am. Samoa). The Lagafua people did not acquire the original title to the land by occupation and *439the testimony is barren of any evidence that they acquired a title in any other way.
We believe from the evidence that the Soliai family had plantations on this tract at least from the time the government was established up until the Contractors destroyed them in 1940 when they began to take rock from the quarry; that such occupation was accompanied by a possession which was actual, open, notorious, continuous, exclusive and under a claim of title. Under these circumstances any claim that Lagafua or anyone else may have had to the ownership of this land has long since been outlawed through the operation of the Statute of Limitations and title has become vested in the Soliai. Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 607; Vaimaona v. Mulitauaopele S., No. 67-1948 (Am. Samoa); Puailoa v. Leapaga, No. 64-1948 (Am. Samoa); 2 Corpus Juris 251. Applying the law to the evidence our conclusion is that this surveyed tract is the communal family land of the Soliai family.
Sec. 905 of the A. S. Code prescribes that “When land is offered for registration, the offer shall be accompanied by a survey of the land proposed to be registered. The point of departure in such survey shall be either (a) tied in with an established naval coordinate or (b) be a concrete monument procured from or poured in place by the Public Works Department for that purpose and set at least three feet in the ground at the corner of the land.” Neither of these alternative requirements has been complied with. Until one of .them has been complied with the land cannot be registered.
It is ORDERED, ADJUDGED and DECREED that the land Suaavamuli as shown in the survey accompanying the offer to register the same shall be registered as the communal family land of the Soliai family upon satisfactory evidence being filed with the court that one of the two alterna*440tives referred to in the quotation from Sec. 905 of the A. S. Code in the next preceding paragraph has been complied with. The Registrar of Titles will be advised of this decree.
Costs in the amount of $12.50 are hereby assessed against Lagafua the same to be paid within 15 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485127/ | DECISION
MORROW, Chief Justice.
This is an action to determine the ownership of the lands Tuuu and Ataita in Taputimu. During the proceedings both parties requested that the lands be partitioned.
As a result of the proceedings in the case of Me of Taputimu v. Aneki and Sinatau, No. 12-1945 (Am. Samoa) the above named pieces of land were registered in the names of Aneki and Sinatou. It was agreed by the parties to that litigation that the land should be so registered. Some two years later Sinatou died. She was survived by her then husband Aneki and three children by a former marriage, viz. a daughter, Emmelina, the petitioner, and two sons, Taio and Toalua. Sinatou had no children by Aneki.
By registration of the lands Aneki and Sinatou became tenants in common thereof, and not joint tenants. In the case of Joseph Willis v. Robert Willis et al., No. 49-1947 (Am. Samoa) this court said:
“At the common law if two or more persons disseised another for their own use, the disseisors were joint tenants. I Tiffany on Real Property (2nd Ed.) p. 635; Littleton, Sec. 278; Co. Littleton 181a. Subject to certain limitations not here applicable ‘so much of the common law of England as is suitable to conditions in American *446Samoa’ is a part of the law of this U.S. possession. Sec. 1, A. S. Code. We do not believe that the doctrine of joint tenancy with the attendant rights of survivorship as exists among joint tenants is suitable to conditions in American Samoa.”
We then held that joint disseisors became tenants in common and not joint tenants.
Common law judges, though not perhaps at first, favored joint tenancy with its right of survivorship. This was the result of a desire to lessen the feudal burdens of .the tenants.
“With practical abolition of tenures, however, the reason for such policy ceased, and thereafter courts of equity, regarding the right of survivorship as productive of injustice, in making no provision for posterity, showed a disposition to lay hold of any indication of interest in order to construe an instrument as creating a tenancy in common, and not a joint tenancy. The same position has been taken by the courts generally in this country.” 2 Tiffany on Real Property (3rd Ed.) Sec. 421.
Legislatures have greatly restricted the cases in which joint tenancies arise.
“In pursuance of the same policy as that of the courts in hostility to joint tenancy, it has been provided by statute in many States that a conveyance or devise to two or more persons shall create a tenancy in common and not a joint tenancy unless a contrary intent is plainly apparent, or, in some states, is expressly declared. In some states, the legislature has entirely abolished joint tenancy, making what would have been a joint tenancy at common law a tenancy in common. As has been seen heretofore, in some jurisdictions the doctrine of survivorship has been abolished by statute.” Id., Sec. 424.
The system of feudal land tenures existing in England and out of which the doctrine of joint tenancy with the attendant right of survivorship grew never existed in American Samoa. Clearly that doctrine with its consequent injustice to the heirs of a deceased joint tenant is not suitable to conditions here as we held in the Willis case, supra.
*447Holding as we do that Aneki and Sinatou were tenants in common of the lands, it would follow that each had an undivided half interest therein. Since Sinatou was the wife of Aneki when she died, Aneki has dower in her undivided half, or one third in fee simple of her share. Sec. 959, A. S. Code. Sinatou died without a written will. A written will is necessary to devise land. Sec. 956, A. S. Code. It follows, therefore, that Aneki has an undivided two thirds interest in the property while Sinatou’s three children, Emmelina, Taio and Toalua have the other third.
Inasmuch as the litigants requested partition of the property, the court viewed it in their presence on the day following the hearing.
The court after due consideration finds that an equitable and just partition and allotment of the property is as follows:
1. To Emmelina, Taio and Toalua, the land Tuuu; also a five sided piece out of the north corner of the land Ataita, such five sided piece being described as follows:
Beginning at the most northerly corner of the land Ataita (as shown on the registration of such land in Volume I, Register of Native Titles at p. 414 and which corner is also the northern end of the boundary marked S 54° 12' W, 196.5' between Ataita and Tuuu) thence S 54°12' W, a distance of 87.5 feet; thence S 35°58' E, a distance of 105.5 ft.; thence N 54° 12' E, a distance of 56 ft. to the intersection of this boundary and the boundary of Ataita marked N 35°37' W, 51.9' in the above registration thereof in Volume I, Register of Native Titles at p. 414; thence N 35°37' W, a distance of 35.2 ft.; thence N 12°05' W, a distance of 77.4 ft. to the place of beginning. (This five sided piece includes the grave of Sinatou, the mother of Emmelina, Taio and Toalua and the grave of their sister adjacent to that of the mother.)
2. To Aneki the land Ataita except the above five sided piece in the northern corner thereof which is allotted to Emmelina, Taio and Toalua.
It is ORDERED, ADJUDGED and DECREED that the land Tuuu and the above five sided piece in the north*448ern corner of the land Ataita, allotted to Emmelina, Taio and Toalua shall be and the same are hereby vested in them, the said Emmelina, Taio and Toalua, as tenants in common in fee simple, and that they be let into possession thereof immediately; and that they shall hold the same absolutely free from any and all claim, interest, possession or right of possession of respondent Aneki.
And it is by .the court further ORDERED, ADJUDGED and DECREED that the land Ataita, except the above five sided piece in the northern corner thereof allotted to and vested in Emmelina, Taio and Toalua shall be and the same is hereby vested in respondent Aneki in fee simple and that he shall hold the same absolutely free from any and all claim, interest, possession or right of possession of Emmelina, Taio and Toalua, or of any of them. Reference is made to the registration of the lands Tuuu and Ataita in Volume I, Register of Native Titles at p. 414 for a description of such lands.
Costs in the sum of $12.50 are hereby assessed against Aneki and a like sum against Emmelina, all costs to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485128/ | *449DECREE
WHEREAS it has appeared to the court that Vaimaona and Aulava were not able to reach an agreement between themselves as to the proper location of the boundary line between their respective communal properties as suggested to them in the next to the last paragraph of the decision filed in the above entitled case on October 2, 1948; and
WHEREAS the court visited the land on April 28, 1949 with a view to a determination of such boundary; and
WHEREAS the court did view the land Falemalama, shown on the survey filed with the application to register the same, in the presence of the parties and took further evidence, now, therefore, it is ORDERED, ADJUDGED and DECREED that the land Falemalama, as shown on such survey, is, subject to exceptions 1, 2 and 3 hereinafter noted, the communal family land of the Aulava family and shall be registered as such.
EXCEPTION 1.
It is ORDERED, ADJUDGED and DECREED that the seven sided tract lying in the southwestern corner of said Falemalama, which seven sided tract is described as follows: Beginning at the iron pin at the most southwesterly corner as shown on such survey of Falemalama, thence N 51°54' E, 101.25 ft.; thence N 29°49' W, 140.9 ft.; thence N 20°49' W, 167.5 ft.; thence N 86°32' W, 29.15 ft.; thence S Io34' E, 159.15 ft.; thence S 2°23' W, 47.38 ft.; thence S 29°49' E, 157.14 ft. to the place of beginning, is the communal family land of the Vaimaona family and that it be registered as such.
EXCEPTION 2.
WHEREAS evidence satisfactory to the court was adduced showing that the four sided tract lying in the southeastern corner of the land Falemalama, and described as *450follows: Beginning at the Point of Beginning (Y=45, 582.01, X=211,462.26) as shown on such survey of Falemalama, .thence N 8° 12' W, 115.0 ft.; thence S 62°20' W, 151.43 ft.; thence S 33°14' E, 127.90 ft.; thence N 51°54' E, 102.20 ft. to the point of beginning, is the Malae of the Pele and Aulava families, now, therefore, it is ORDERED, ADJUDGED and DECREED that such Malae is the Malae of the Pele and Aulava families, and that it be registered as such.
EXCEPTION 3.
The court finds from evidence adduced before it that the graveyard lying within the borders of that part of Falemalama herein decreed to be the communal family land of the Aulava family has been dedicated for many years as a burial ground for members of both the Aulava and Vaimaona families. Accordingly the court ORDERS, ADJUDGES and DECREES that such burial ground has been dedicated as a burial ground for both the Aulava and Vaimaona families, and it further ORDERS, ADJUDGES and DECREES that it may continue to be used as such for the members of the said Aulava and Vaimaona families.
It is further ORDERED, ADJUDGED and DECREED that the part of the land Falemalama herein decreed to be the communal family land of the Vaimaona family; that the part of the land Falemalama herein decreed to be the communal family land of the Aulava family; and that part of the land Falemalama herein decreed to be the Malae of the Pele and Aulava families, are held by their respective owners subject to the easement of the public in the highway crossing Falemalama on the southern side as shown on such survey.
Costs in the sum of $6.25 are hereby assessed against Aulava and a like sum against Vaimaona, the same to be paid within 15 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485129/ | DECISION
MORROW, Chief Justice.
Fao, a matai of Iliili, filed his application to have the land Lesoliga situated near Futiga village registered as his individually owned property. A survey of the tract accompanied the application. Leasiolagi of Fagatogo, a member of the Fao family, filed an objection in behalf of the family .to such proposed registration claiming that the land was the communal property of the Fao family. Hence this litigation. Sec. 905 of the American Samoan Code. Prior to the hearing the court viewed the land in the presence of the parties.
Fao received his title shortly before the establishment of the government in 1900. The Register of Adoptions shows that in 1909 he adopted Malu and Mena (now Fia), the wife of Faamao. In 1910 a number of other persons were living with Fao under his matai jurisdiction. Among them were Ali, Pepe, Lafitaga and Pua. Lafitaga and Pua were members of the Fao family. Ali and Pepe were considered by Fao to be his adopted children. It is our conclusion from the evidence that Malu, Ali, Pepe, Lafitaga, Pua and Fia were under Samoan custom all members of the Fao family. In 1910 Fao and his adopted children *453(we include those living with him even though not recorded as adopted in the Register of Adoptions, since he considered them as adopted in accordance with the Samoan customs of the time) began to clear the land involved, it being at that time bush. The large trees growing on it were cut and plantations put in by Fao and his adopted children and the two who were born family members. This land has been occupied by Fao and his children (he has no blood children) ever since it was cleared. The clearing began in 1910 and extended over a period of years. As late as 1922 Faamao who married Mena (now Fia) cleared some of the land. He and Fia live with Fao.
Title to bush land is gotten by occupation thereof under a claim of ownership. In the case of Soliai v. Lagafua, No. 5-1949 (Am. Samoa) we said “Occupation coupled with a claim of ownership will establish ownership to what was bush land before occupation. See 2 Blackstone 8. The view that the occupant who first takes possession of land with the intention of having it as his own thereby becomes the owner of it is approved in Maine’s Ancient Law (3rd Am. Ed.) at p. 238. This doctrine of acquisition of original title by the first occupant, accompanied by a claim of ownership, was approved by this court in the case of Faataliga v. Fano, No. 80-1948 (Am. Samoa).” In the case of Soliai v. Levu, No. 6-1949 (Am. Samoa) we said “This court judicially knows that when the members of a Samoan family took possession of bush land and used it in the early days, ownership was claimed not by such members in their own right but in behalf of their matai as owner of the communal family property.” And it was the custom for the matai and members of his family clearing bush land and occupying it to claim it as communal family land and not as the individually owned land of either the matai or the family members occupying it.
*454The question in this case is whether the land when it was cleared and occupied under a claim of ownership by Fao and his adopted children, who under Samoan custom were members of the Fao family, became communal family property or the individually owned property of the matai. We think it became communal family property in accordance with Samoan customs and we so hold. Sec. 2 of the American Samoan Code provides that “The customs of the Samoans not in conflict with the laws of American Samoa or the laws of the United States concerning American Samoa shall be preserved.” There is no law of American Samoa or of the United States concerning American Samoa providing that when a matai and members of his family clear bush land and occupy it under a claim of ownership that it shall become the individually owned property of the matai. Fao filed a claim for war damage to this land and received compensation therefor from the United States. He filed the claim as a matai and swore that he held title to this property, as a matai and head of the family for himself and members of his family. We think he told the truth when making his sworn claim and that he and the members of the family who cleared .the land and occupied it intended at the time that it should be communal family property and not Fao’s individually owned land.
We are convinced from the evidence that Fao, who is 82 years of age, now claims the land as his own because he fears that when he dies the other members of the Fao family will chase those members now living on it away from the land and deprive them of its use. In answer to the question “If you knew that these so-called adopted children of yours could live on the land after you died you would not have any objection to it being registered as Fao family land would you?” Fao replied “No.” Fao further testified that he had the land surveyed and he offered it for registra*455tion as his own in order to keep his family from chasing out his adopted children after he died.
Holding as we do that the children of Fao now occupying the land along with him are Fao family members under Samoan custom (they render service to him) .the other members of the Fao family including the new matai cannot deprive them of the use of family lands after Fao’s death. Clan lands belong to the clan and are held by the matai for the use of the clan members. A member of a Samoan clan has a right to live on clan land and he cannot be deprived of that right by other members of the clan. When the objector Leasiolagi was on the witness stand he testified as follows :
“Q. Fao states that the real trouble is that he fears when he dies the people who are living on there will be kicked out by the family, what have you to say about that ?
A. During the meeting of the family when all the chiefs of the family were together the family chiefs told Fao he did not have to worry anything about his adopted children they are adopted with according to law and are considered family members.
Q. Are you telling the court that the members of the family would not chase out Malu or any others who are living out there now?
A. No.
Q. If they have been living there on the land for a long time and have been rendering service to Fao would they not be allowed to live on the land if Fao died ?
A. That is the real Samoan custom but the reason why we object to this offer is because he offered it as his own individual land.
Q. If he offered it as communal family land and he died would you consider that you could put any of these people off?
A. No the family expressed their answer to Fao already that they would not chase these people out if he died.”
We think that Leasiolagi was right when he said that .those people could not be “put off.” The right to the occupation and use of clan lands by family members is secured by the law of American Samoa since such right is *456recognized by those Samoan customs which are preserved by Sec. 2 of the Code. In this connection it is not inappropriate to refer to Sections 826 and 827 of the Code. The former reads:
“If two or more persons conspire to injure, oppress, threaten, or intimidate any person in the free exercise or enjoyment of any right or privilege secured to him by any law of the United States applicable in American Samoa, or by any law of American Samoa, or because of his having so exercised the same, they shall, upon conviction, be fined not more than $1,500.00, or imprisoned not more than three years, or both.”
The latter provides:
“If any Samoan chief by reason of his rank, or title, shall injure, oppress, threaten, subject to indignities, or intimidate any person in the free exercise or enjoyment of any right or privilege secured to him by any law of the United States applicable in American Samoa, or by any law of American Samoa, or because of his having so exercised the same, he shall, upon conviction, be fined not more than $500.00, or imprisoned not more than three years, or both.”
If after Fao’s death the new matai and family members attempt to deprive the adopted children of Fao of the use of clan lands, they have the right to apply to the courts for relief against such attempted violation of their rights. They can also bring the matter before the Attorney General in his capacity as Secretary of Native Affairs. In view of the above quoted testimony of Leasiolagi representing the family and the law protecting the right of family members in family lands we think that the fear of Fao that after his death the new matai and other members of the family will deprive his adopted children who are living with him of their right to use and occupy Fao family land is groundless.
It is ORDERED, ADJUDGED and DECREED that the land Lesoliga be registered as the communal family land of the Fao family, and the Registrar of Titles will be so advised.
*457Since Fao paid for the survey it is equitable and just that the family represented by Leasiolagi pay the costs. The survey will inure to .the benefit of the family. Accordingly costs in the sum of $12.50 are hereby assessed against Leasiolagi, representing the family, the same to be paid within 15 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485130/ | DECISION
MORROW, Chief Justice.
Tuaolo of Pago Pago filed his application with the Registrar of Titles to have the land Tamasaunoa in Pago Pago registered as the communal family land of the Tuaolo family. A survey of the tract accompanied the application. Fanene filed an objection to the proposed registration claiming that a part of the surveyed tract was the commu*458nal family land of the Fanene family. Lago and Leaoa likewise filed an objection claiming that the surveyed tract was “the communal family land of .the Lago and Leaoa family.” Siaivao also filed an objection as a representative of the Yaivao title claiming that the survey included her “own land.” This litigation arises as a result of such objections. See Sec. 905 of the A. S. Code.
The court viewed the land in the presence of the parties before the hearing was had. After the view by the court and prior to the hearing the surveyor marked on the survey the part of the tract claimed by Fanene. Tuaolo, Lago, Leaoa and Siaivao, the objectors, then filed with the Registrar of Titles an admission and acknowledgment that that part “of the land Tamasaunoa as offered for registration by Tuaolo and objected to by Fanene is the property of Fanene and has been so shown on the plan of Tamasaunoa as filed by Tuaolo.” As a result of such admission and acknowledgment by the other parties to the case, Fanene withdrew therefrom and the Court considers .that such land claimed by Fanene was withdrawn by Tuaolo from the original application to register it.
We shall consider Siaivao’s objection first. Siaivao has plantations on that part of the surveyed tract lying east of the Pago Pago-Fagasa Road which crosses it on the east. She has had plantations there for many years. In the first part of her testimony she claimed that this part of the tract lying east of the road was her individually owned land. Later she testified that the land she claimed was the “communal family land of Vaivao.” It is the opinion of the court, particularly in view of the testimony to the effect that Siaivao and her parents have used this part of the tract east of the highway for many, many years, that such part is the communal family land of the Vaivao title. Despite some conflict in the evidence, it clearly preponderates in favor of this view. Siaivao also claimed that a section of *459the western part of the surveyed tract belonged to the Vaivao title. Suffice it to say that the weight of the testimony is clearly against this view of the facts.
The evidence showed beyond dispute that there are graves of Tuaolo people, Leaoa people and Lago people on that part of the surveyed land west of the Pago Pago-Fagasa highway. It also showed beyond dispute that this part of the tract has been in the possession of members of the Leaoa family for many years and that they have had plantations on it during that time. It appears from the evidence that there is a family known as the Vaiala family of Pago Pago; that Vaiala is not a title but that it refers to the people who live on Vaiala land. Tuaolo testified that he was a chief of the Vaiala family and its head. He further testified .that members of the Tuaolo, Leaoa and Lago families were buried on the land and that the people now living on it, viz. Katina and his wife, Maaele and his wife and a widow, were rendering service to Leaoa. In response to the question on cross-examination “Do you admit that the land belongs to the title Tuaolo and Leaoa?” Tuaolo answered “Yes I admit that the land belongs to Leaoa and Tuaolo family because Leaoa was a Tuaolo.” In another part of his testimony he said that “. . . this land belongs to Tuaolo and Leaoa.” Amisone, a member of the Tuaolo family, a witness for Tuaolo in answer to the question as to whether or not the land belonged to the Tuaolo and Leaoa titles said “Yes.” Tuaolo testified that he was the senior matai of the Tuaolo and Leaoa family. Amisone told the court that “. . . this land belongs to Vaiala family and the two matais are Leaoa and Tuaolo.”
Leaoa testified that there were three matais in the Vaiala family, viz. Tuaolo, Lago and himself. Lago, in response to the question “I understand you to say that the Lago and Leaoa family are the same family, the same people?” answered “Yes one family and same people.” *460Lago was asked . . if Tuaolo when he surveyed .the land had offered it for registration in the name of Tuaolo, Lago and Leaoa would you have filed any objection?” To this Lago answered “No.” Leaoa was asked in substance the same question to which he answered “No objection because there are three matais in one family.” We think these answers by Leaoa and Lago are an implied admission by both of them that the Tuaolo title has an interest in the land Tamasaunoa. Leaoa’s answer is also an admission by him that the Lago title has an interest in the land. Similarly Lago’s answer is an admission by him that the Leaoa title has an interest in it.
We have concluded that the evidence preponderates in favor of the view that Tuaolo, Leaoa and Lago are all matais in the Vaiala family. Katina so testified; also that Lago and Tuaolo were talking chiefs and that Leaoa was a chief; that inside the Vaiala family Leaoa was the highest; that outside of it Tuaolo was the highest. He also testified that the Lago title was related to the Tuaolo and Leaoa titles.
Taking the testimony as a whole, and despite some conflict therein, we have concluded that that part of the surveyed tract lying west of the highway, and excluding that part thereof which is admittedly the property of the Fanene family, is the property of Leaoa, Tuaolo and Lago titles; that all three titles are in the same Vaiala family and that within the family Leaoa is the senior matai. It is not necessary for us to make any finding on the relative rank of these three chiefs outside the Vaiala family and we do not.
In view of our findings, the court ORDERS, ADJUDGES and DECREES that that part of the surveyed tract lying east of .the Pago Pago-Fagasa Road, as shown on the survey, is the communal family land of the Vaivao title. It further ORDERS, ADJUDGES and DECREES *461that the remainder of such surveyed tract, excluding that part thereof now shown on the survey as the property of the Fanene and described as follows: Beginning at the western end of the boundary marked N 51°36/ W, 118.59 feet on the survey, thence N 27°15/ E, 180 feet; thence N 71°25' W, 200 feet; thence S 27°23' W, 151.20 feet; thence S 71°00' E, 76.50 feet; thence S 58° 15' E, 12.75 feet to the place of beginning is, subject to the easement of the public in the Pago Pago-Fagasa Road crossing it on the east, the communal family land of the Leaoa, Tuaolo and Lago in their capacity as matais of the Vaiala family, in which family Leaoa is the senior matai.
The present occupants of the land herein decreed to be the communal property of the three above matais have the right to continue to occupy and use it in accordance with Samoan customs. Siaivao likewise has the right in accordance with Samoan customs to continue to occupy and use the part of the surveyed tract decreed to be the property of the Yaivao title.
Since Tuaolo paid for the survey and the benefit thereof will inure in part to the Vaivao, Leaoa and Lago, it is equitable that these latter three pay the costs. We consider that a just division thereof is $10.00 to Yaivao, $20.00 to Leaoa and a like sum to Lago. Accordingly $10.00 of the costs are assessed to Vaivao, $20.00 to Leaoa and $20.00 to Lago. All costs are to be paid within 30 days.
The Registrar of Titles will be advised of the above decree. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485131/ | DECISION
MORROW, Chief Justice.
Uele of Faleniu filed his application with the Registrar of Titles to have a piece of land described by him as Toa in Mesepa registered as his individually owned property. The application was accompanied by a survey of the tract. Siufanua of Faleniu filed an objection to the proposed registration claiming that the surveyed land was .the communal family land of the Tuiaana title. This litigation arises as a result of these .two objections. See Sec. 905 of the A. S. Code. The court viewed the land in the presence of all claimants prior to the hearing.
As above stated, Uele in his application to register claimed that the land was his individually owned property. However, at the hearing he was asked how he claimed it. He answered “As Seigafo communal family land.” Seigafo is a matai name. The Seigafo filed no objection to the pro*463posed registration. This is an indication that the Seigafo makes no claim to the land involved. When Uele was asked at the beginning of the hearing “Are you a member of the Seigafo family?” he answered “Yes.” Later he testified that he was not a member of this family; also that his wife Bella was not a member. Bella testified that neither she nor Uele were members of the Seigafo family. She further testified that her husband Uele was a member of the Tuiaana family. The Tuiaana testified to the same effect. Uele testified that he was connected with the Tuiaana family. It is clear from the evidence that a part of the land Lualea adjoining the surveyed tract on the east is the property of the Tuiaana. It is also clear both from the evidence and the statement in support of his title filed before the hearing that included in the survey a part of the land Lualea adjoining a part thereof which is admittedly the property of Tuiaana. In fact Uele testified that he included part of Lualea in the survey. Uele has .some small plantations on the part of the land Lualea covered by the survey. Despite the conflict in the evidence we are convinced that these plantations have been put in by Uele as a member of the Tuiaana family. We are further convinced that the surveyed land is not Seigafo property.
At the hearing Tuiaana claimed that the eastern part of the surveyed tract was the communal family land of the Tuiaana. Siufanua claimed that the western part of the surveyed tract was the communal family land of the Siufanua.
Both Uele and Bella testified that they had had three houses on the land prior to December 1948 when they stopped the completion of a fourth house at the suggestion of the Attorney General to whom Siufanua had made complaint about the erection of such house. A number of witnesses including Siufanua and Tuiaana testified that the three above mentioned houses had never existed. Uele tes*464tified that two of them stood on the same spot where the so-called fourth house was being erected; that they were living houses. However there was neither coral nor stones on the spot to indicate that a living house had ever been there. The circumstantial evidence clearly supports the testimony of the witnesses who testified that the three houses never existed. Uele and Bella both admitted that for a period going back at least to the date of their marriage in 1907 Uele had had his living house in another locality.
Siufanua put up a house in 1932. We believe from the evidence that much of the timber for this house came from the disputed land. So testified Moeai, one of the carpenters who worked on Siufanua’s house. Bella testified that she was a member of the Siufanua family. Misileve, age 70, the true sister of objector Siufanua, testified that Siufanua Faalafua, her father, “gave authority to Bella to go ahead to the Toa land and do whatever she wants.” Again she testified that the land was given “by my father to Bella to go ahead and plant their plantations to live on.” Taking the testimony as a whole we are convinced that Bella was considered a member of the Siufanua family and that when Bella and Uele were married, or sometime thereafter, the Siufanua, in accordance with Samoan custom, authorized them to plant their plantations on the part of the surveyed tract which is now claimed by Siufanua. This would account for the fact that Bella and Uele do have some plantations on the western part of the surveyed tract. When the Claims Commission visited Mesepa for the purpose of settling war claims Siufanua admitted to the Commission that Uele had some plantations on this land which were damaged by the Marines.
We have concluded from the evidence that that part of the surveyed tract lying east of a line (bearing S 6°20' E, length 587.50 ft.) connecting the western end of the bound*465ary marked N 75°24' W, length 114.06 feet on the survey, and the western end of the boundary marked N 58° 11' E, length 90.28 feet thereon, is that part of the land Lualea included in the survey and that it is the property of the Tuiaana.
We also conclude from the evidence that Toa is a misdescription of the land included in the survey. We are convinced that the part of the surveyed tract lying west of the above mentioned line (bearing S 6°20' E, length 587.50 feet) includes Aumalagasa and Matavai as stated by Siufanua in his testimony, and that such part is the communal family land of the Siufanua.
In view of our findings from the evidence it is ORDERED, ADJUDGED and DECREED that that part of the surveyed tract lying east of the above mentioned line having a bearing of S 6°20' E, length 587.50 feet (the north end of such line is the western end of the boundary marked N 75°24' W, length 114.06 feet, on the survey; the southern end of such line is the western end of the boundary marked N 58° 11' E, length 90.28 feet on the survey) is the communal family land of the Tuiaana title and it will be so registered.
And it is further ORDERED, ADJUDGED and DECREED that the land included in the survey lying west of such line (bearing S 6°20' E, length 587.50 feet) is the communal family land of the Siufanua title and it will be so registered.
Uele’s plantations do not cover all of the surveyed tract. However, he has the right under Samoan custom, upon the rendition of proper service to the proper matai, to continue to use those parts of the land now covered by his plantations.
Inasmuch as Uele paid for having the survey made and the benefits thereof will inure to the Siufanua and Tuiaana titles, it is equitable that Siufanua and Tuiaana pay the *466costs. Accordingly $12.50 of the costs are assessed to Siufanua and a like amount to Tuiaana. Costs are to be paid within 30 days.
The Registrar of Titles will be advised of the above decree. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485133/ | DECISION
MORROW, Chief Justice.
Vaiao and Vaiinupo (hereinafter referred to as the “claimants”) offered certain land, named Paepaetele, in Fagatogo for registration as their individually owned property. The offer to register was accompanied by a survey of the tract. An objection to the proposed registration was filed by Ifopo under the claim that the tract was the communal family land of the Ifopo clan. Hence this litigation. See Sec. 905 of the Code of American Samoa. Prior to the hearing the court viewed the land in the presence of both parties.
It was admitted by the parties that prior to December 30, 1937 the land Paepaetele was the communal property of the Ifopo clan. Claimants, who are brothers, claimed that on December 30, 1937 Ifopo and Gatiso (respectively the matai and former matai of the clan) conveyed the land to their parents who later went to live in Upolu and who, prior to their departure from Tutuila, transferred to them whatever rights the parents had in the land, together with any other rights they had growing out of the transaction which resulted in the conveyance to the parents.
The testimony, particularly that of Tofatu, showed that Ifopo as the matai did not have the consent of the family to make the conveyance to the parents of the claimants. Under these circumstances the conveyance was void. In Atofau v. Tuufuli, No. 94-1948 (Am. Samoa) we said “Furthermore the matai of a Samoan family is not author*474ized either by law or Samoan custom to give away family land to a person not a member of his family.... The beneficial interest in the lands belongs to the clan, not the matai, except insofar as he may be a member of the clan. As such matai he cannot give away family land to an outsider and the attempted gift by Atofau Noaese was void.” In American Samoa, a matai in control of family lands cannot sell them without the consent of the family. This is common knowledge.
The evidence showed that sometime prior to the aforementioned conveyance Ifopo had tried to sell this same land to one Faumausili without the consent of the family and that Faumausili had paid him $61.00 as part of the purchase price. When the family learned of the attempted sale without their knowledge or consent they raised so much objection that Ifopo and Faumausili rescinded the contract to sell. Ifopo, however, in the meantime had spent the $61.00 and was not able to return it to Faumausili. The parents of the claimants who were then living on the land as pastors in accordance with Samoan custom gave $61.00 to Ifopo who in turn paid it to Faumausili, and Ifopo together with Gatiso (a former Ifopo) made in return therefor the conveyance of Dec. 30, 1937 upon which claimants must rely to establish their title. Since we hold that the conveyance of Dec. 30, 1937 to the parents of the claimants was void, it follows that the transfer of the land by the parents to the claimants did not convey any property in the land to the claimants.
Claimants have lived on the land since about 1931 when it was assigned by the Ifopo to their parents as pastors in accordance with Samoan customs. They have rendered service to the Ifopo title while living on the land. Ifopo and members of his family considered that claimants were members of the Ifopo clan, not having been born into it but having been taken into it by the clan pursuant to Samoan *475custom. We believe from the evidence that they rendered service to the Ifopo title upon the understanding that they had become members of the clan.
This case is on the equity side of the court’s jurisdiction. It is a familiar maxim of equity that “he who seeks equity must do equity.” 30 C.J.S. 456; 19 Am.Jur. 319.
The application of the above equitable maxim requires that the $61.00 received by Ifopo from the claimants’ parents be refunded. The land cannot be registered as the property of claimants because their parents did not have any title to transfer to them. It can be registered as the property of the Ifopo title and will be upon Ifopo’s paying $61.00 to claimants. Under Samoan customs this money will be provided by the Ifopo clan. The claimants have the right to receive the $61.00 since the court finds that their parents transferred to them whatever rights they (the parents) had growing out of the transaction culminating in the attempted conveyance of Dec. 30, 1937.
Since Vaiao and Vaiinupo have rendered service to the Ifopo title and are considered as members of that clan and since Ifopo as .the evidence shows has considered that this land has been assigned to them for their use as members of the family in accordance with Samoan customs, it follows that they have the right to continue to occupy and use the land in accordance with such customs. At the hearing Ifopo stated that if the land should be decreed to be the property of his title he would not interfere with the continued possession and use of it by .the claimants.
Sec. 905A of the American Samoan Code provides that “When land is offered for registration, the offer shall be accompanied by a survey of the land proposed to be registered. The point of departure in such survey shall be either (a) tied in with an established naval co-ordinate or (b) be a concrete monument procured from or poured in *476place by the Public Works Department for that purpose and set at least 3 feet in the ground at a corner of the land.” The survey accompanying the offer to register the land Paepaetele met neither of these alternative requirements with respect to the point of departure. Until it does the land cannot be registered. See Leatutufu v. Iull, No. 62-1948 (Am. Samoa).
Upon the survey being tied in with a naval co-ordinate with an appropriate indication thereof by the surveyor on the filed plat or upon satisfactory evidence being filed with the court of the installation of a concrete monument complying with alternative requirement (b) in Sec. 905A of the Code and subject to the further conditions that Ifopo pay Vaiao and Vaiinupo $61.00, and file their receipt therefor with the Clerk of the High Court, the Court will order that the land Paepaetele, as shown' on the survey, be registered as the communal land of Ifopo in his capacity as the matai of the Ifopo family.
Since claimants paid for the survey of the land and the benefit thereof will inure to the Ifopo when the land is registered it is equitable and just that he bear the costs in this court. Accordingly, costs in the sum of $12.50 are hereby assessed against Ifopo, the same to be paid within 30 days.
In accordance with the above decision of the High Court in the case of the title to the land Paepaetele, the surveyor having filed with the High Court satisfactory evidence showing the installation of two concrete monuments on said land and Ifopo having filed a receipt from Vaiinupo for the sum of sixty-one dollars ($61.00), it is accordingly ORDERED, ADJUDGED and DECREED that the land Paepaetele in Pagatogo be registered in the name of Ifopo as the matai of the Ifopo family. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485134/ | DECISION
MORROW, Chief Justice.
The right of succession to the matai name Liufau of Aua, formerly held by Liufau Filiga now deceased, is to be determined in this proceeding. Filipo filed his application to be registered as the holder of the title. Moelata Sauafea and Kupa filed objections to this proposed registration, each becoming a candidate for the name.
Judges Muli and Nua, who were assigned to participate in the decision, informed the writer of this opinion that many years ago they were related by marriage to certain members of that branch of the Liufau family of which Sauafea is a member. They felt since such relationships by marriage had long since terminated through the death of certain members of the Sauafea branch that they had no actual bias in his favor. However, they withdrew from the case because of the appearance of possible bias. This *479was the proper judicial practice under the circumstances. In the case of Wiedemann v. Wiedemann, 36 N.W.2nd 810, 812 decided by the Supreme Court of Minnesota on April 1, 1949, Mr. Justice Matson speaking for the court said: “The controlling principle is that no judge, when other judges are available, ought ever to try the cause of any citizen, even though he be entirely free from bias in fact, if circumstances have arisen which give a bona fide appearance of bias to litigants.”
The eligibility requirements for holding a matai title are prescribed by Sec. 926 of the Code, as amended by Amendment No. 1-1949. As amended the Section reads:
“No person not having all the following qualifications shall be eligible to succeed to any matai title:
(a) Must be at least one-half Samoan blood;
(b) Must have resided continuously within the limits of American Samoa for five years either immediately preceding the vacancy of the title, or before he becomes eligible for the title;
(c) Must live with Samoans as a Samoan;
(d) Must be a descendant of a Samoan family and chosen by his family for the title;
(e) Must have been born on American soil, except persons born of parents of Samoan blood who are (1) inhabitants of American Samoa, (2) but temporarily residing outside of American Samoa, or engaged in foreign travel at date of birth of such child, and (3) whose matai at any time within 13 years after the birth aforementioned files with the Registrar of Titles a sworn declaration that such child born outside of American Samoa now resides in American Samoa and desires such child to be an inhabitant of American Samoa.”
Candidate Kupa was born in Western Samoa. He was not registered by his matai as an inhabitant of American Samoa so as to comply with the provisions of subdivision (e) of the above Sec. 926. During the hearing he became aware of his ineligibility to hold a matai title and withdrew his candidacy.
*480During the course of the hearing it appeared that candidate Filipo, who is a member of the Fita Fita Guard, for two and a half weeks in 1947 had gone to Hawaii, as a member of a soft-ball team of that organization, in order to participate in certain athletic events there. Inasmuch as he intended to return to his home in American Samoa at all times while he was in Hawaii and continued to regard his home as being in American Samoa during his merely temporary absence he did not become ineligible to hold a matai title. We think that Sec. 926(b) requiring continuous residence in American Samoa for five years preceding the vacancy in the title, or before the candidate becomes eligible to hold the title means having a domicil in American Samoa for the required time. “A mere temporary presence in a place for purposes of pleasure, health or business does not affect domicil. Thus domicil is not affected when one goes to another residence for a temporary reason, leaving his family behind at his home. So a temporary residence at another place while a new dwelling house is being built, does not change domicil.” 1 Beale on Conflict of Laws, p. 163.
The Court finds from the evidence that candidates Filipo and Sauafea meet all the requirements of Sec. 926 as amended and are each eligible to succeed to a matai title.
Sec. 933 of the Code provides that:
“In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The wish of the majority or plurality of the family;
(b) The forcefulness, character, personality and capacity for leadership of the candidate;
(c) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
(d) The value of the holder of the matai name to the Government of American Samoa.”
*481Candidates Sauafea and Filipo filed petitions purporting to be signed by various members of the Liufau family in support of their respective candidacies. There were 183 names on Filipo’s petition and 136 on Sauafea’s. By mistake counsel stated at the hearing that there were 174 on Filipo’s and 121 on Sauafea’s. Filipo admitted that the name of Herbert Scanlan should not be on his. There are 10 names of members of the Leger family of Nukualofa on Filipo’s petition the purported signatures of which the merest inspection shows to be in the same handwriting. Sauafea objected to the inclusion of these names in determining the wish of the majority of the family. The objection is well taken. And there are 9 other signatures (presumably of members of the Leger family) which are obviously in the same handwriting. They should not be counted. And on Filipo’s petition there are the names of Taimilo, age 21, Vasaki, age 19, Gatula, age 25, Tamala, age 15, Mulu, age 25, Tala, age 22, all of whom purport to sign by their marks. An inspection of the petition shows without a doubt that their names were written by the same hand. That these 6 young people ranging in age from 15 to 25 could not write their own names is ridiculous. Their names should not be counted. Vaimoa T., age 27 from Ofu, Tumusa, age 25 from Upolu, Maele, age 23 from Ofu and Toelau, age 20 from Ofu also purport to sign by their mark. Their names were obviously written' on the petition by the same hand. That these 4 people ranging in age from 20 to 27 could not write their own names is likewise ridiculous, and their names should not be counted. Sauafea objected to 51 other names on Filipo’s petition, claiming that 42 of them were names of persons who were not members of the Liufau family and that the names of 9 others were names of descendants of Liufau Mativa who are not entitled to participate in determining who shall hold the *482particular Liufau title involved in this case. There are two Liufau titles.
The evidence with regard to the 42 claimed not to be members of the Liufau family was in serious conflict. The court believes, however, that it clearly preponderates in favor of the view that the said 42 are not members of the family and it so holds. It further holds that the 9 signers on Filipo’s petition who are descendants of Liufau Mativa have no right to participate in the selection of the holder of the title Liufau involved here and that they should not be counted. There were 4 names which were on both petitions. The Court will not count them for either candidate in determining the wish of the majority of the family. There are thus, a total of 85 names on Filipo’s petition which cannot be counted. The deduction of this number from the 183 leaves 98 which may be counted.
The question “Do you object to any names on Sauafea’s petition on the grounds that they are not members of the Liufau clan?” was put to Filipo while on the witness stand. He answered “No.” The evidence showed that 7 names on Sauafea’s petition were in the same handwriting. Filipo objected to the inclusion of these names in the final count. The objection is well taken. Also one person signed his name twice on Sauafea’s petition. One of his signatures cannot be counted. Sauafea admitted that 4 other signatures on his petition were not genuine. These cannot be counted. Nor shall the court, as heretofore stated, count the 4 names of those who signed both petitions. There are thus a total of 16 names on Sauafea’s petition which cannot be considered in determining the wish of the majority of the family. The deduction of these 16 from the 136 names on his petition leaves 120 which may be counted, as against 98 on Filipo’s. Sauafea prevails over Filipo on the issue of the wish of the majority or plurality of the family.
*483Filipo completed eight grades in school and speaks English. He is 29 years of age. Filipo is a member of the Fita Fita Guard with an income of $112.00 per month. Prior to his enlistment in the Fita Fita Guard in 1943 he worked as a surveyor’s assistant and also as a stevedore. He has plantations.
Sauafea completed the fourth grade in school and speaks a little English. At one time he was a member of the Fita Fita Guard but was given an undesirable discharge from that organization. He testified that the discharge grew out of an argument with one Goodall. There was no other evidence concerning the circumstances which resulted in his discharge. Several years ago he committed an assault and battery upon a woman in Aua and ran afoul of the law. He testified that he spanked the woman “as all matais do for small children. That is the matai’s duty according to Samoan custom. He should give a lesson to that boy or girl but never take him into court.” During part of the war period Sauafea worked as a boss of stevedores. He was also the foreman of a road gang for the Contractors during the early part of the war. He has an income of about $50.00 per month from the sale of Samoan curios which he makes. He is 39 years old. Sauafea has been a lesser matai in the Liufau family for 11 years. He is well versed in Samoan tradition. Due to his maturity and experience as a matai we think that his capacity for leadership is superior to that of Filipo. The court had an opportunity to observe the personality and forcefulness of the two candidates during the course of the hearing, and finds that Sauafea is slightly superior to Filipo with respect to these two matters. On the other hand the evidence shows that Filipo’s character is better than Sauafea’s. The court concludes from the evidence and its observation of the two candidates at the hearing that they are substantially on an equality with respect to the second issue.
*484Filipo is the son of Liufau Filiga. Sauafea is the son of Liufau Mulitalo, Each candidate therefore has half Liufau blood in his veins. It follows that they are on a parity with respect to the issue of hereditary right.
The court finds from the evidence that Sauafea will be more valuable to the Government of American Samoa as the holder of the Liufau title than will Filipo. It is believed that he will be better able to get the family to live together in peace and harmony. Filipo’s branch of the family has held the title for many years. When a Samoan family selects a matai itself, it frequently passes the title from branch to branch as a matter of fairness. This promotes harmony in the family. The court has the petitions of both candidates which it has examined, and finds that a majority of the members of the family living in Aua desire Sauafea to be their matai. The members of Liufau family living in other villages of course live in other families. Those living in Aua will be most concerned about who is named as the holder of the title. It is our conclusion that Moelata Sauafea largely as a result of his experience as a matai and capacity for leadership will be better able to weld the family into a happy unit than will Filipo. Sauafea will devote much more time to family affairs than will Filipo who testified that it was his intention to continue in the Fita Fita Guard.
In view of the findings that Moelata Sauafea prevails over Filipo on the first and fourth issues and is on a parity with him with respect to the second and third issues it follows that Moelata Sauafea should be awarded the title Liufau, subject to his resignation from the title Sauafea. We have heretofore held that a man cannot hold two matai titles at the same time. Kosi et al. v. Viliamu, No. 77-1948 (Am. Samoa); Fega v. Eveni, No. 83-1948 (Am. Samoa); Aufata v. Falemalu, No. 95-1948 (Am. Samoa) .
*485Accordingly it is ORDERED, ADJUDGED and DECREED that Sauafea shall be registered as the holder of the matai title Liufau of Aua upon his filing with the Registrar of Titles his resignation from the matai title Sauafea within 15 days from the date of this decision. The Registrar of Titles will be advised of this decision.
Costs in the sum of $87.50 are hereby assessed against Filipo the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485136/ | DECISION
MORROW, Chief Justice.
This is a proceeding to determine the right to the succession to the matai name Mao of Ofu. Siperini filed his application on March 17, 1949 to be registered as the Mao. On March 28, 1949 Siva Faimalo filed his objection to the proposed registration and became a candidate for the name. Hence this litigation. Sec. 926 as amended of the Code prescribes the requirements for eligibility to hold a matai title. It is clear from the evidence that both Siperini and Siva meet the requirements and are eligible to succeed to a matai title.
Sec. 933 of the Code provides:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority or plurality of the family.
*4902. The forcefulness, character, personality and capacity for leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder .of the Matai name to the Government of American Samoa.”
Each candidate filed a petition purporting to be signed by various members of the Mao family in support of his candidacy. There were 118 signatures on Siva’s petition including his own. There were 121 signatures on Siperini’s. He did not sign it; however he indicated to the court at the time of the hearing that he favored his own candidacy. We shall therefore treat his petition as if it contained 122 signatures. The court has examined the signatures on Siperini’s petition with great care. It also heard testimony of William Manuel, Cashier of the Bank of American Samoa, a banker with 15 years of experience behind him, as to the genuineness of the signatures on both petitions. We do not believe from the evidence that any of the signatures on Siva’s petition were written by persons other than those whose signatures they purport to be. We think that all of the signatures on his petition are genuine. We are convinced however that a number of groups of signatures on Siperini’s petition were not written by the persons whose signatures they purport to be. We have concluded that at least 8 signatures, and probably more, on this last-mentioned petition are not in the handwriting of the purported signers. We are unwilling to count these 8 signatures in determining the wish of the majority of the family because we think they are not genuine. Excluding these signatures we have left 114 members of the family favoring Siperini while 118 favor Siva. We find therefore that the-majority of .the family favor Siva and that he prevails on the first issue.
Siva completed the. 8th grade in school. He has held the *491matai name Siva for 13 years. It is a lesser title in the Mao family. He was foreman of a Samoan group of workmen sorting stores for the Marines during the war. Siva has plantations on the Island of Ofu from which he produces copra and laufala for mats. His income from copra and mats aggregates about $600.00 per year. Siperini is a graduate of Poyer School, having completed the 9th grade. He has been a member of the Fita Fita Guard for 8 years. Presently he has the rank of Seaman first class. Prior to his joining the Fita Fita Guard he was a school teacher for 4 years. He has some plantations from which he sells bananas and taro. He also sells chickens and pigs. His total income is between $1,500.00 and $1,600.00 a year. The court had an excellent opportunity to observe the personalities of the two candidates during the hearing. In view of our observations and the evidence, it is our conclusion that both candidates are on a substantial equality with respect to forcefulness, character, personality and capacity for leadership.
Siperini’s mother’s father was Mao Samusamu. Siperini has Vé Mao blood in his veins. While the testimony in regard to Siva’s relationship to a former Mao was somewhat conflicting, it is our conclusion that he is the grandson of Natia who was the daughter of Mao Tauiliili. It would follow that he has % Mao blood in his veins. The evidence in conflict with this finding indicated that Siva has no Mao blood in his veins but that his mother’s brother was a Mao; also that his grandmother’s brother was a Mao. Regardless of this conflict it is certain that Siperini has more Mao blood in his veins than Siva. Consequently Siperini prevails over Siva on the issue of hereditary right.
The value of the holder of the matai name to the government depends in a very large measure upon the skill with which the matai handles the family affairs. Siperini proposes to stay in the Fita Fita Guard for the next 12 years. *492Needless to say he will not be able to visit Ofu very often with the result that if given the title he would not be in very close touch with family affairs and will continue to be. Everything considered we believe that Siva will handle the affairs of the Mao family better being on the ground in Ofu than will Siperini, 70 miles away with only an occasional visit to Ofu. We are taking into consideration that Siva prevails over Siperini on the issue of the value of the holder of the name to the government of American Samoa.
In view of the findings that Siva prevails over Siperini on the first and fourth issues, and is on an equality with him with respect to the second, it follows that he should be awarded the title Mao subject to his resignation from the title Siva. A man cannot hold two matai titles at the same time. Kosi v. Viliamu, No. 77-1948 (Am. Samoa); Fega v. Eveni, No. 83-1948 (Am. Samoa); Moelata Sauafea & Kupa v. Filipo, No. 18-1949 (Am. Samoa). The fact that Siperini prevails over Siva on the issue of hereditary right makes no difference. Under Sec. 933 of the Code, supra, the court must give more weight to the wish of the majority of the family than to the matter of hereditary right.
Accordingly it is ORDERED, ADJUDGED and DECREED that Siva Faimalo of Ofu shall be registered as the holder of the matai name Mao of Ofu upon his filing with the Registrar of Titles his resignation from the matai name Siva within 15 days from the date of this decree and the Registrar of Titles will be so advised.
Costs in the sum of $25.00 are hereby assessed against Siperini, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485138/ | DECISION
MORROW, Chief Justice.
This is a proceeding to determine the right to the succession to the matai name Tulifua of Taputimu. Faaaliga Sii filed his application to be registered as the holder of the title. Maile, Pua and Epati each filed an objection to the proposed registration and became a candidate for the name. This litigation has resulted. The requirements for eligibility to hold a matai name are prescribed by Sec. 926 of the A. S. Code. All of the candidates according to the evidence meet the requirements of this section and hence are eligible to hold matai names.
*498Sec. 933 of the Code provides:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority or plurality of the family.
2. The forcefulness, character, personality and capacity for leadership of the candidate.
8. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
Each candidate filed a petition with the court purporting to be signed by various members of the Tulifua family in support of his candidacy. There were 52 signatures on Maile’s petition, 68 on Pua’s, 37 on Epati’s, and 97 on Faaaliga Sii’s. Each candidate testified that all of the signers on his petition were members of the family. There is very serious conflict in the testimony as to whether the majority of the signers on Maile’s and Faaaliga Sii’s petitions belong to the family. Epati testified that 70 of the signers on Faaaliga’s were not family members. Tuitele, who was the last holder of the Tulifua title and who according to the evidence has been looking after the affairs of the Tulifua family since he became the Tuitele in 1941, testified that, in addition to the 70 named by Epati, Lakai, Silia and Masoli, also on Faaaliga’s petition, were not members of the family. Tuitele also testified that “Most of the people on Maile’s petition are not members of the Tulifua family, they are Maile’s family members.” There are 12 signers on Maile’s petition under 14 years of age. These cannot be counted. Aufata v. Falemalu, No. 95-1948 (Am. Samoa); Moa v. Faasa, No. 27-1948 (Am. Samoa). Deducting the 12 we have left 40 names. Epati testified that 25 of the signers on Maile’s petition were not family members. However, he included in the 25 Maile himself and the 12 under 14 years of age. We think the objection to *499Maile himself is not well taken. We conclude from the testimony that not over 28 on Maile’s petition were family members entitled to sign. It was admitted by all the candidates except Maile that all of the 37 signers on Epati’s petition were members of the family. Maile testified that 5 of the 37 were not. Maile and Faaaliga admitted that the 68 on Pua’s petition were members of the Tulifua family. Epati claimed that some of them were not, without stating the number or giving their names. In view of the fact that Tuitele was the Tulifua from 1933 to 1941 and has been looking after the affairs of the family since that time we think that we must give considerable weight to his testimony as to its membership. We must either disregard his testimony by saying that he does not know the membership of the family of which he was the matai for eight years and that he was misleading the court, or we must give weight .to it and say that he knows the membership of the family and was telling the truth. Both the Samoan judge and the writer of this opinion believe he was telling the truth.
We conclude from the evidence that a plurality of the family members favor Pua for the title; that the next greatest number favor Epati; that the next greatest number favor Maile; and that the smallest number favor Faaaliga Sii. It follows, therefore, that on the issue of the wish of the majority or plurality of the family Pua prevails with Epati second, Maile third, and Faaaliga fourth.
Maile completed the seventh grade in school. He was the foreman of 35 or 40 men engaged in clearing the bush at the Tafuga airbase at the beginning of the war. He was also foreman of a gang of stevedores engaged in unloading military supplies from ships during the war. Before the war he was a foreman at the Island Government farm. He speaks English. He testified that he had an income from the sale of products of his plantations, including mats and poultry of “$100.00 a month on the average.” He is 45 years old.
*500Faaaliga completed the sixth grade in school. He is 40 years old. Prior to the war he was in charge of supplies at the Atauloma School. He has been a matai for ten years. During the war he worked as a laborer on a drilling gang and as a stevedore. He was Pulenuu of the village of Taputimu for two years during the war and is its present Pulenuu. He has plantations from which he testified that he derived an income of about $100.00 a month. He speaks no English.
Epati testified that he “graduated from the 8th grade at the Marist Brothers School.” However, it is a matter of common knowledge, of which this court may take judicial notice, that at the time Epati graduated in 1910 education in American Samoa did not go beyond the seventh grade. Epati joined the Fita Fita Guard in 1916 becoming a hospital corpsman. In 1986, after having served 20 years, he was transferred to the Fleet Reserve. He is now fully retired with pay of $70.40 per month. During .the war he was recalled to active duty. He is an experienced carpenter. He has plantations and makes some Samoan curios from which he testified he derives an income of about $500.00 a year. He speaks English. He is the leader of the young men in Lealataua County from Leone to Fagamalo. He is 54 years old.
Pua is 64 years of age and speaks a little English. He testified that he finished the sixth grade at Fagalele School. He worked as a stevedore during the war. He also worked at the Tafuga airbase clearing bush land. He testified that he had an income of about $100.00 a month from his plantations, mats, etc.
In his final argument to the court Meauta, counsel for Pua, sized up the situation with respect to him by saying that “Pua as we all know is a very old man. At the present time I would say he has no value to the Government of American Samoa according to his age but living for a long *501period in the Tulifua family and serving that title without interrupting any of the family of the Tulifua family shows his value to the family and Government of American Samoa.” The court had an opportunity to observe the personalities of all of the candidates at the hearing. In view of all the evidence and our observations we think that candidates Maile and Faaaliga rank first with respect to the issue of forcefulness, character, personality and capacity for leadership. We regard them as being substantially on any equality on. this issue. Maile is 45 years old, Faaaliga 40. Both are in the prime of life. Ranking second is Epati, 54 years of age; third Pua, 64 years of age and as his counsel says “a very old man” and of “No value to the Government of American Samoa according to his age . . .”
Each of the candidates filed a statement of his genealogy which was admitted in evidence. Maile is the great-great-grandson of Tulifua Taunuuga. He has Vi6 Tulifua blood in his veins. Epati is the great-grandson of Tulifua Toomata. He has Vs Tulifua blood in his veins. Faaaliga answered “No” to the question “Do you have any ancestor who was named Tulifua?” He has no Tulifua blood in his veins. He did testify that one of his ancestors was a sister of a Tulifua and that his grandfather’s brother was Tulifua Noaese. Pua admitted on the witness stand that he had no Tulifua blood in his veins; however he stated that his brother Sianini was a Tulifua and that his mother’s brother was likewise a Tulifua. We conclude from the evidence that on the issue of hereditary right Epati stands first, Maile second, Pua and Faaaliga third.
The value of the holder of a matai name to the Government depends mostly upon the skill with which he handles the affairs of his family. A good matai is of more value to the government than a poor one. Obviously the skill with which a matai handles the affairs of the family depends mostly upon his forcefulness, character, personality and *502capacity for leadership. We conclude from the evidence and our observations of the candidates at the hearing that Maile and Faaaliga stand on substantially the same basis with respect to the issue of the value of the candidate to the government; that Epati stands second and Pua third. As we have stated Pua is 64 years of age and is in his declining years.
While Pua stands first among the candidates on the issue of the wish of the majority or plurality of the family, he stands lower than the others on the other three issues. Under the statute, Sec. 933, supra, of the Code we must give more weight to the wish of the majority or plurality of the family than to the forcefulness, personality, character, and capacity for leadership of the candidate. We must give less weight to the matter of hereditary right than to forcefulness, personality; character and capacity for leadership. We must give the least weight to the value of the holder of the matai name to the government. However, we think that it was the intention of the Fono that adopted what is now Sec. 933 that the wish of the majority or plurality of the family should not be given as much weight in awarding a matai name as the other three matters set out in the statute put together. In view of this interpretation of the statute the court should not award the title to Pua despite the fact that he prevails over the other candidates on the first issue. Putting Pua’s candidacy to one side, Epati prevails over Maile and Faaaliga on the first and third issues and they prevail over him on the second and fourth. Since the statutes require the court to be guided by the matters set out therein “in the priority listed” it follows that we must give more weight to the “wish of the majority or plurality of the family” and to “the best hereditary right” than we do to “forcefulness, character, personality and capacity for leadership” and “the value of the holder of the matai name to the Government of American Samoa.” It follows *503therefor [sic] that Epati, prevailing over Maile and Faaaliga on the first and third issues, should be awarded the title Tulifua despite the fact that we find that they prevail over him on the second and fourth issues.
It is ORDERED, ADJUDGED and DECREED that Epati be registered as the Tulifua. The Registrar of Titles will be so advised.
Costs in the amount of $8.34 are hereby assessed against Maile; a like amount against Faaaliga Sii and a like amount against Pua. Costs are to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485139/ | DECISION
MORROW, Chief Justice.
Lutu and Taesali, matais of the family of which they together with Afoa and Tupua are the head matais, filed their petition alleging in substance that defendant Ponali, having their permission to erect a single story European style house on land of their family did erect such house; that later over their objection, he remodeled the house increasing its height and making it into a two-story European style house in violation of the permission given.
The foregoing allegations were clearly established by the evidence at the hearing. The remodeling of the house consisted of increasing the height of the supporting posts from about three or four feet to six feet and then putting weatherboarding around the outside posts so as to convert the house from a single story to two stories.
The permission given constituted a license. See 33 Am.Jur., Tit. Licenses, Sec. 91. “A license may be granted to do any of an almost infinite variety of things on another’s land. Thus, one may have a license to flood land, to erect buildings or other structures thereon, to erect advertising signs on another’s land or building, to pass on the land, to maintain a ditch, or drain, to cut timber, to maintain wires and poles, to use land for railroad purposes.” Ill Tiffany on Real Property (3rd ed.) Sec. 829. The permission given in the instant case was oral. “No formality *505is necessary to establish or create a license. It may be in writing or oral, no particular words being necessary.” Id. Sec. 830.
We follow the rule in American Samoa that after the licensee has entered and made expenditures in money or labor in reliance upon a parol license, such license becomes irrevocable. See Tago Loe v. Sami & Faafeu Mauga, No. 33-1947 (Am. Samoa). It would be inequitable to permit a revocation of the license under these circumstances. “In many jurisdictions where a licensee has entered under a parol license and has expended money or its equivalent in labor, it becomes irrevocable, and the licensee acquires a right of entry upon the lands of the licensor for the purpose of maintaining his structures, or, in general his rights under the license, and the license will continue for so long a time as the nature of it calls for.” 33 Am.Jur. Tit. Licenses, Sec. 103.
We conclude that defendant Ponali has the right to maintain the house in accordance with the original licensé given. But he has no right to maintain it in its present condition in direct violation of the license.
If the Court were to order the house removed from the land, it would result in a destruction of a valuable piece of property. A Samoan family would be without a home. It would constitute a totally unnecessary economic loss to a Samoan community.
The rights of the plaintiffs may be fully protected (and they have a right to have the defendant not exceed the scope of the license, the land being theirs) and the home of a Samoan family preserved, by the issuance of a mandatory injunction requiring the defendant Ponali to remove the weatherboarding attached to the outside posts of the house and lowering it so that the supporting posts will not exceed four feet in height. Such an injunction will be issued. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485140/ | DECISION
MORROW, Chief Justice.
The right to .the succession to the matai name Mageo of Pago Pago is for determination in this proceeding. Maaele filed his application with the Registrar of Titles to be registered as the holder of the title. Gi filed an objection to the proposed registration and became a candidate for the name. Hence this litigation. Sec. 926 of the A. S. Code prescribes the requirements for eligibility to hold a matai name. We find from the evidence that each of the candi*507dates meets these requirements and is eligible for registration as a matai.
Sec. 933 of the Code provides:
“In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The wish of the majority or plurality of the family;
(b) The forcefulness, character, personality and capacity for leadership of the candidate;
(c) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail;
(d) The value of the holder of the matai name to the Government of American Samoa.”
The candidates filed petitions with the court purporting to be signed by various members of the Mageo family in support of their respective candidacies. There were 169 signatures on Gi’s petition and 140 on Maaele’s. Thirty-three of the purported signers on Gi’s petition live in Upolu. The petition was apparently sent to Upolu for their signatures but there was no evidence whatsoever that any of their purported signatures were genuine. It is apparent from an inspection of the 33 signatures that many of them were written by the same hand. Mr. Manuel, Cashier of the Bank of American Samoa and a handwriting expert, testified that in his opinion 16 or 17 of them were not genuine. No one testified that he saw any of the signatures written or that they were genuine. As far as the evidence goes every one of the 33 signatures might have been written by a person or persons other than those whose signatures they purported to be. In view of the total lack of evidence as to the genuineness of the 33 signatures and the affirmative evidence that 16 or 17 of them were written by the same hand it is our conclusion that we cannot count them in determining the wish of the majority of the family.
*508We believe that those 33 should not be counted for another reason. They are merely descendants of Upolu people who were related to Mageo Kini before he was brought from Upolu and given the Mageo title in Tutuila. The bestowal of a Tutuila title upon a young man brought from Upolu does not make all of his former relatives in Upolu and their descendants members of his matai family in Tutuila. Such people in Upolu do not render service to the title nor do they live in the family in Tutuila. They are merely related to the man who holds the title, but they are not related to the title.
Exclusive of the 33 Upolu names, Maaele objected to 39 names on Gi’s petition on the ground that they were not members of the Mageo family. Gi objected to 59 names on Maaele’s list claiming likewise that they were not members of the family. We believe that the evidence preponderates in favor of the view that all of the 140 signers on Maaele’s list are members of the family and that all of the signers on Gi’s petition (excluding the purported 33 from Upolu which we cannot count) are also family members. Counsel for Maaele asked the court to count the names of family members who signed Maaele’s original application to the Registrar of Titles to have him registered as the Mageo. That we cannot do except in the case of Alofaituli.... There was no proof that the signatures on such application other than Alofaituli’s were genuine.
We conclude from the evidence and our finding that the 33 purported signatures from Upolu on Gi’s petition must be excluded in determining the wish of the family, that a majority favor Maaele to hold the Mageo title and we so hold. Maaele prevails over Gi on the first issue.
In view of our findings on the other three issues, as will appear later in this opinion, it may be stated that the decision would be the same whether we counted the 33 purported signatures from Upolu or not. A candidate who *509prevails on the second, third and fourth issues must be awarded the title over a candidate who prevails on the first issue only. See Maile, Pua & Epati v. Faaaliga Sii, No. 21-1949 (Am. Samoa). It is obvious from Sec. 933 supra that the court must give more weight to the second, third and fourth issues combined than to the first issue relating only to the wish of the majority or plurality of the family.
Gi testified that he was 59 years of age. He speaks a little English. He completed the third grade in school. Gi spent about six months of his youth in the United States as a member of a siva dancing team. During that time he earned about $15.00 a month and received free board and clothing. He has plantations. He has held the Gi title for about 30 years. For a number of years he was a policeman at the Samoan Hospital but was discharged, apparently because of failure to get to his work on time. He has been the Pulenuu of Pago Pago three times. Gi catches fish which he sells. He has income from his plantations and from Samoan curios. At one time he testified that his total income was between $300.00 and $400.00 a month. At another time he said it was between $30.00 and $40.00 a month. In one part of his testimony he said that he was selected by the family to hold the title Mageo; in another part that the vote was in favor of Maaele. When his inconsistent statements were called to his attention he replied “Some of my answers are correct and some I answered too fast.” Gi is obviously in his declining years. He testified that he went to the United States in 1903 or 1904. Poi, one of the witnesses, who went with him, testified that they went in 1915. Gi testified that at the time of the trip he was 20 or 21. If he is 59 years old now as he says and was 20 or 21 when he went he obviously missed the date of his departure by a good many years when he said that it was in 1903 or 1904. We think the fact that he “talked too fast” and was obviously confused in other parts of his testimony is a clear *510indication that he is in his declining years. His capacity for leadership is waning.
Maaele is 58 years old. He spent 11 years in the United States on the vaudeville stage as a dancer. He had an income of about $150.00 a week as such, not counting extra earnings of as much as $50.00 a week for non-scheduled dances. He returned to American Samoa from the United States in 1929. He has been the leading young man in the Mageo family for the past four or five years. He speaks English. Maaele completed the fourth grade in school. He has worked for the Public Works Department as a carpenter. During the war he was a diver in the service of the Navy. He also worked as foreman of a group of stevedores. He has plantations and is a preacher. He makes Samoan curios which he sells. His income ranges from $400.00 to $500.00 a year. He was not confused in his testimony as was Gi. He is obviously an alert and capable Samoan. From the evidence and our observation of the candidates at the hearing, the court concludes that Maaele prevails over Gi on the issue of forcefulness, character, personality and capacity for leadership.
Maaele is the blood son of Mageo Veevalu. He has one half Mageo blood in his veins. The late Mageo Lauoi was his brother. He is the grandson of Mageo Manu. Gi is the grandson of the same Mageo Manu. He has one fourth Mageo blood in his veins. Maaele has twice as much Mageo blood in his veins as Gi and prevails over him on the issue of hereditary right.
The value of a matai to the Government of American Samoa depends mostly upon his ability to handle the affairs of his family. Such ability in turn depends upon his forcefulness, character, personality and capacity for leadership. We have said this many times in prior decisions. We believe from the evidence and our observation of the two candidates that Maaele will be of more value to the *511Government as the holder of the Mageo title than will Gi, and we so find.
In view of our conclusion that Maaele prevails over Gi on all four issues we must under .the law award him the title. Accordingly it is ORDERED, ADJUDGED and DECREED that Maaele shall be registered as the holder of the title Mageo of Pago Pago. The Registrar of Titles will be so advised.
Costs in the sum of $62.50 are hereby assessed against Gi, the same to be paid with 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485141/ | DECISION
MORROW, Chief Justice.
The right to the succession of the matai name Poloa of Leone is to be determined in this proceeding. Leti of Nuuuli filed his application with the Registrar of Titles to *512be registered as the holder of the Poloa title. Leano of Leone filed an objection to the proposed registration and became a candidate for the name. Hence this litigation. Sec. 926 of the A. S. Code prescribes the requirements for eligibility to hold a matai name. The evidence shows that each of the candidates meets all these requirements and is eligible for registration as the holder of a matai title.
Sec. 933 of the Code provides:
“In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The wish of the majority or plurality of the family;
(b) The forcefulness, character, personality and capacity for leadership of the candidate;
(c) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail;
(d) The value of the holder of the matai name to the Government of American Samoa.”
Each candidate filed a petition with the court purporting to be signed by various members of the Poloa family in support of his candidacy. There were 113 names on the petition for Leano and 49 on Leti’s. Leti claimed that 58 of the signers on Leano’s petition were not members of the family. Leano claimed that 31 on Leti’s petition were non-family members. If we were to concede for the sake of argument that all of the signers on Leti’s petition were members of the family and that all of the 58 on Leano’s petition claimed by Leti not to be members of the family, were not, it still would follow that a majority of the family favor Leano to hold the title. One hundred and thirteen less 58 or 55 exceeds 49. We reach the conclusion from the evidence that a majority of the family wish Leano to be registered as the Poloa. We find therefore that she prevails over Leti on the first issue.
*513Poloa Lui who was the last holder of the title was removed therefrom by the Governor upon the advice of the County Chief and District Governor in accordance with the provisions of Sec. 934 of the Code. It appeared from the evidence that Leti circulated the petition to get Poloa Lui removed and that he did so not with the object of helping the family but for the selfish purpose of getting the title himself. The removal of Poloa Lui was legal, he having been in the United States for a period of more than six months prior to the removal and not engaged in performing the duties of a public officer of American Samoa. While Leti’s participation in securing the removal of Poloa Lui was also legal nevertheless the object with which he did it has alienated many members of the family from him since his actions were for a selfish purpose and not to help the family.
Leti testified that he was 58 years of age; that he was married in 1904 and that at the time of his marriage he was 20 or 21. We believe that he is about 65. When he was 9 or 10 he left Leone to live in Nuuuli and has lived there ever since. Of course he has not lived in the Poloa family during any part of his approximately 55 years of residence in Nuuuli. He reached the 6th or 7th grade in a faifeau’s school. He does not speak English. During the war he was foreman of a road gang. He was also foreman of a gang of workmen employed to build the reservoir for the Naval Station many years ago. For a short time he was a movie actor here at $2.50 per day. He has plantations from which he sells produce. He testified that he had an income of $500.00 to $600.00 per year.
Leano is 34 years of age and the mother of six children. She testified that she did washing for palagis during the war and earned as much as $50.00 a week at it. She has plantations on Poloa land and cuts copra from Poloa land. She makes mats. She speaks English. She testified that she *514had an income of $500.00 per month. The court it may be stated in passing did not believe this latter part of her testimony.
Leti is in his declining years. He has lived away from the Poloa family for about 55 years. He does not live on Poloa land. Leano is in the prime of life and has lived in the Poloa family. She is acquainted with its affairs. The court had an opportunity to observe both candidates during the hearing. It is our conclusion from the evidence and our observations that Leano prevails over Leti on the issue of forcefulness, character, personality and capacity for leadership and we so find.
Leti is the son of Poloa Neli. He has one half Poloa blood in his veins. Leano is the great granddaughter of Poloa Pualemilo. She has one eighth Poloa blood in her veins. Leti prevails over Leano on the issue of best hereditary right.
The value of the holder of a matai title to the Government of American Samoa depends mostly upon his ability to look after the affairs of his family. That ability in turn depends upon his forcefulness, character, personality and capacity for leadership. In view of Leti’s part in securing the removal of Poloa Lui from the Poloa title we believe that he would have a great deal of difficulty in getting the Poloa family to live together in peace and harmony. Going around behind Lui’s back when he was absent in the States for selfish purposes would make it well nigh impossible for him to get the majority of the family who favor Leano for the title (Leano is the blood sister of Poloa Lui) to live together in peace and harmony with the members of the family supporting Leti. Also in view of our findings on the second issue we think that Leano will be of more value to the Government as the Poloa than will Leti. We find that Leano prevails over Leti on the fourth issue.
*515In view of the fact that we find that Leano prevails over Leti on the first, second and fourth issues it follows that under the provisions of Sec. 933 above quoted we must award the title Poloa to Leano.
It is ORDERED, ADJUDGED and DECREED that Leano be registered as the holder of the title Poloa of Leone. The Registrar of Titles will be advised of this decree.
Costs in the sum of $25.00 are hereby assessed against Leti, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485142/ | DECISION
MORROW, Chief Justice.
Poloa filed an application to have the land Feologi in Leone registered as the communal family land of the Poloa title. Aigamaua filed an objection to the proposed registration claiming that the land was the property of the Aigamaua family. Salavea Otela also filed an objection claiming that the surveyed land was his individually owned property. Hence this litigation. See Sec. 905 of the A. S. Code. A survey of the land was filed with the application. The court viewed the land in the presence of the parties prior to the hearing.
At the hearing Aigamaua claimed only a strip approximately 20 feet wide on the north side of the tract. The witnesses for Poloa testified that the entire surveyed tract had been used by the Poloa family for plantations for many years. Poloa herself testified that she was 34 years old and that her people had been going on the land and using it to her knowledge since she was 6 years old. The witnesses for Salavea Otela testified that the land except the above 20 foot strip claimed by Aigamaua had been used by the Salavea people ever since 1909. There was evidence indicating that Feologi was not used by the Poloa people prior to the end of World War II. However, the evidence warrants the conclusion that whatever use was made of Feologi by the Poloa people it was in conjunction with a similar and concurrent use by the Aigamaua people with respect to the 20 foot strip and the Salavea people with respect to the remainder. The witnesses for Salavea as well as the witnesses for Aigamaua testified that the strip claimed by Aiga*517maua had been used by the Aigamaua people for many years. We believe that this is true.
Even if the whole or any part of the surveyed tract was used by the Poloa people for 20 years preceding the offer to register such use did not ripen into a title by adverse possession, as the evidence clearly showed that the possession of the Poloa people was not exclusive but in conjunction with the possession of the Aigamaua people as to the 20 foot strip and the Salavea people as to the remainder. Exclusiveness of possession is a necessary element of title by adverse possession. “In order that title may be acquired by adverse possession, the possession of the claimant must be clear, distinct, exclusive, and likewise must be unequivocal. ... It is impossible for each of two persons or corporations to be in the exclusive possession of the same premises at the same time.” 2 C.J.S. 565-6. “The possession must be adverse, exclusive and uninterrupted, and inconsistent with the existence of title in another.” Mr. Justice Peckham in Peabody v. U.S., 175 U.S. 546, 550. “To be effective as a means of acquiring title, the possession of an adverse claimant must be exclusive of the true owner. The owner must be wholly excluded from possession by claimant. Any sort of joint or common possession by claimant and the owner or a tenant of the owner prevents the possession of claimant from having the requisite quality of exclusiveness. In these circumstances, the law refers the possession to the person having the legal title.” 2 C.J.S. 566-7.
We are convinced from the evidence that the use, occupation and possession by the Poloa people was in common with the Aigamaua people with respect to the 20 foot strip claimed by Aigamaua and in common with the Salavea people with respect to the remainder of the tract claimed by Salavea Otela. Under the law and the evidence we reach the conclusion than [sic] that the Poloa people did not acquire title to any part of it by adverse possession.
*518The evidence clearly preponderates in favor of the view that the 20 foot strip on the north side of the surveyed tract has been occupied and used by the Aigamaua people for many, many years and for a period long antedating any partial use of it by the Poloa people in conjunction with them. We believe from the evidence that this 20 foot strip is the communal family land of the Aigamaua title.
There is no dispute in the evidence that prior to 1909 the part of the surveyed tract south of the above 20 foot strip was the property of the Poloa. However, the evidence is almost conclusive to the effect that in 1909 Poloa Taufusia crept under the mosquito net of Siene, a 12 year old girl of the Salavea family and committed a sexual offense upon her body; that the custom was to kill such an offender; that to save the life of Poloa Taufusia the land not including the 20 foot strip was given by the Poloa people to the Salavea people. Siene, now 52 years old, testified as to the wrong done her by Poloa Taufusia. Vailuu testified that he was present at the ceremony when the gift was made. Seliga, an older member of the Poloa family, said on the stand “I admit that this land Feologi was owned by the Poloa family and it was given outright by the Poloa family on account of misconduct done by Poloa Taufusia. He forced a virgin girl of the Salavea family.” She said that she heard the speech “made when this was given.”
In the light of the evidence we can reach no other conclusion than that the part of the land claimed by Salavea (that is the surveyed tract excepting the 20 foot strip) is Salavea property. The Poloa people, if they did occupy this land as claimed by them, did not gain title to it by adverse possession, their possession not being exclusive.
We hold that that part of the surveyed tract south of the 20 foot strip is the property of the Salavea and that the 20 foot strip is the communal family land of the Aigamaua title.
*519We now have to determine whether the part of the surveyed tract owned by Salavea is owned by him as an individual or in his capacity as matai of the Salavea family. He claimed at first that it was his individual property on the theory that it was given by the Poloa people to his father as an individual and not as a matai. If such was the case then the property is not owned by Salavea alone but by Salavea and his living brothers and sisters and the heirs of his deceased brothers and sisters. Referring to the ownership of the land Salavea said on the stand “What my sister has is mine and what I have is hers and what belongs to my brothers belongs to me also.” Again he testified “. . . why I am calling the land mine is because I am holding the mataiship now and I am responsible for all that happens.” He was then asked “Then you feel you are responsible as the matai of the family?” to which he answered “Yes.” This query was put to him: “Then you really must consider this as land of the family?” he answered “It could be.” We conclude that the evidence preponderates in favor of the view that the part of the land claimed by Salavea is the communal family land of that family and not the individually owned property of Salavea himself, and we so hold.
In accordance with the foregoing it is ORDERED, ADJUDGED and DECREED that the aforementioned 20 foot strip shall be registered as the communal family land of the Aigamaua. Such 20 foot strip is described as follows:
Beginning at a point lying in and 29.15 feet from the northern end of the boundary marked N 51°57/ E, 87.91 feet on the survey; thence N 51°57' E, 29.15 feet; thence S 86°21' E, 164.49 feet; thence S 82°22' E, 47.16 feet; thence N 89°11' E, 82.36 feet; thence S 0°57' E, 23 feet; thence N 86°21'' W, 315 feet to the point of beginning.
It is further ORDERED, ADJUDGED and DECREED that the remainder of the land Feologi as shown in the *520survey (which remainder lies south of the above boundary designated N 86° 21' W, 315 feet) shall be registered as the communal family land of Salavea Otela in his capacity as matai of the Salavea family. The Registrar of Titles will be advised of this decree.
Inasmuch as Poloa paid for having the survey made and the Aigamaua and the Salavea will derive the benefit therefrom, costs will be assessed against them instead of Poloa. It is ORDERED that Aigamaua pay costs in the sum of $2.50 within 30 days and that Salavea Otela pay costs in the sum of $22.50 within such period. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485143/ | DECISION
MORROW, Chief Justice.
Gatai of Asu filed his application with the Registrar of Titles to be registered as the Maneafaiga of Asu. Lagafuaina of Nuuuli filed an objection to the proposed registration. Hence this litigation. See Sec. 932 of the A. S. Code. At the hearing Lagafuaina claimed that there was no such title as Maneafaiga attached to the village of Asu. He did claim that at one time, probably a thousand years ago, there was a Maneafaiga attached to the village of Nuuuli. He also claimed that there never had been but one holder of the Maneafaiga title and that during his time the name of the title was changed to Lagafuaina. Gatai did not deny that at one time there was a Maneafaiga title attached to the village of Nuuuli, nor did he deny the change in the name of the title as claimed by Lagafuaina. His claim was that, conceding there was at one time a Maneafaiga title attached to the village of Nuuuli, there was also a Maneafaiga title attached to the village of Asu.
It is a significant fact that during the 49 years of existence of the government a Maneafaiga title has never been registered as belonging to either Asu or Nuuuli. There was testimony as to tradition concerning this alleged non-registered title. Lagafuaina testified that the tradition in his family was that there was a Maneafaiga about a thousand years ago; that there never had been but one holder of the name and that during his incumbency the name of the title had been changed to Lagafuaina. Gatai testified that the title had been given to a palagi Marine during the war, which was the first time it had been used *522since it fell into disuse. In response to an inquiry as to how long it had been since the Maneafaiga title had been used Leasio of Asu, a witness for Gatai, testified “about 500 years ago and Lagafuaina said about a thousand years ago.” He also testified that it was “About 500 or 200 years ago since the last holder of this name died.” Savea of Apia in Western Samoa testified that the tradition in his family was that “Malietoa Faiga landed in Nuuuli at Maneafaiga Lagafuaina.” Later he testified “No it was not Malietoa Faiga it was Malietoa Uilimatuu. He turned ashore when he saw a fire of Maneafaiga.” He said that this occurred “... about a hundred years ago.”
Since writing was not introduced into Samoa until the missionaries came a little over a hundred years ago, tradition before that time was necessarily handed down by word of mouth and a great deal of tradition has been so handed down even since writing was introduced. Tradition handed down by word of mouth, especially when it relates to events that are supposed to have occurred a thousand years ago, five hundred years ago or one hundred years ago cannot be very reliable. If A tells B a story and B repeats it to C five years later and C repeats it to D still five years later and D repeats it to E another five years later and E repeats it to F still another five years later and F repeats it back to A, everybody knows that what A hears from F may have very little resemblance to what A told B twenty years before. In fact he might not even recognize it as the same story. Now if this process be stretched over a hundred years, five hundred years or a thousand years it requires very little imagination to see that what was told at the end of this period may bear very little resemblance to what was told at the beginning. And this is true no difference how honest each person who repeats the tradition may have been. As an indication as to how inaccurate tradition may become we may point to the testimony of *523Gatai to the effect that “... I said the Lualemana is the sole pule of this name.. . .” Maneafaiga, while in another place in his testimony in response to the question “So the Salanoa in Fagasa is the pule of this name?” answered “Yes.” Again he said in answer to the question “Is the Maneafaiga title a lesser matai title in the Lualemana?” “Yes Lualemana is the supreme title.”
Gatai claimed that there was a piece of land which was the property of the Maneafaiga but he did not know the name of it; said he had forgotten the name and that the land was in the possession of Lualemana and had been in his possession for many years before the war.
The very fact that a name so-called has not been used for hundreds of years is a pretty strong indication that there is no such name. The fact that it has never been registered supports this indication. With tradition going back hundreds of years and handed down by word of mouth only, necessarily very unreliable, we cannot say that the evidence in support of the existence of a Maneafaiga title in Asu preponderates over the evidence in denial of the existence of such title. In fact we think that the evidence as a whole clearly preponderates against the existence of the Maneafaiga title in Asu and we so find.
In view of our finding that a title Maneafaiga attached to the village of Asu does not exist it cannot be registered. The Registrar of Titles will disregard the application of Gatai to be registered as the Maneafaiga of Asu.
Costs in the sum of $25.00 are hereby assessed against Gatai the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485146/ | DECISION
MORROW, Chief Justice.
The right to the succession to the matai name Malaga of Iliili is to be decided in this case. Lafu filed his application with the Registrar of Titles to be registered as the Malaga. Ioasa filed an objection to the proposed registration and became a candidate for the name. Hence this litigation. Sec. 926 of the A. S. Code prescribes the qualifications which a person must have in order to be registered as a matai. According to the evidence, each of the parties meets all the requirements of this section, and is therefore eligible for registration as the holder of a matai name.
Sec. 933 of the Code provides as follows:
“In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The wish of the majority or plurality of the family;
(b) The forcefulness, character, personality and capacity for leadership of the candidate;
(c) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail;
(d) The value of the holder of the matai name to the Government of American Samoa.”
Each candidate filed a petition with the court purporting to be signed by the various members of the Malaga family supporting his candidacy. There were 82 names on Ioasa’s petition and 76 on Lafu’s. Lafu testified that not a single name on Ioasa’s petition belonged to a member of the Malaga family; that all of such signers were non-family members. Ioasa (in retaliation we think) testified that all of the 76 signers on Lafu’s petition were likewise not members of the Malaga family. If we were to believe the testimony of both of these candidates we would have to conclude that not a single member of the Malaga family wished either candidate to be its matai. Suffice it to say *536that, taking the testimony as a whole, we are of the opinion that there were some members of the Malaga family on each petition. It is not necessary, however, for the court to decide which candidate the majority of the family favors, because the decision, in view of our findings on the other three issues, would under the law have to be the same regardless of the wish of the majority of the family.
Lafu is 64 years old. During the course of the hearing the court had an excellent opportunity to observe him both on and off the witness stand. He is obviously in his declining years. He has lost that alertness of mind which the average man has in his prime of life. He was very slow in answering questions. He became badly confused on the witness stand and, apparently without knowing it, at times gave contradictory testimony which we do not believe he would have done had he been as mentally alert as he doubtless was in his prime. During the war he worked at the airport and as a stevedore on the dock in Pago Pago. He does not speak English. His formal education was limited to the first three grades in a faifeau’s school. He works on plantations and has a little income from the sale of breadfruit, taro and bananas at the market; also some income from the sale of copra. However he did not know how much his annual income was. A few months ago Lafu was convicted of cruelty to animals. He lost his temper and cut a horse with a bushknife.
Ioasa is 60 years of age. He reached the eighth grade in Leulumoega School in Upolu. He is an experienced carpenter. He spent 24 years as a member of the Fita Fita Guard, retiring with the rank of coxswain. He speaks English. He has an income of $114.00 a month as a retired Fita. He has plantations and makes curios. He answered questions rapidly and did not become confused on the witness stand. He is alert mentally and physically vigorous. It is our conclusion from the evidence and our observation of the two can*537didates at the hearing that Ioasa prevails over Lafu on the issue of forcefulness, character, personality and capacity for leadership. Counsel for Lafu stated in his argument that Ioasa prevailed over Lafu on this issue.
Lafu became confused on the witness stand when giving testimony bearing upon the issue of hereditary right. He finally said “The right thing is Malaga Pesini is a brother of my mother.” In spite of his confusion as to his pedigree we believe that this is a correct statement. The evidence does not support the conclusion that he has any Malaga blood in his veins. Also we believe from the evidence that Ioasa has no Malaga blood in his veins. His grandfather was the brother of Malaga Tagaloa. Our conclusion from the evidence is that on the issue of hereditary right both candidates stand on an equality and we so find.
We have said many times that the value of the holder of a matai name to the government depends mostly upon the skill upon which he handles the affairs of his family. That in turn depends upon his forcefulness, character, personality and capacity for leadership. It is obvious to us from the evidence and our observations of the two candidates at the hearing that Ioasa is better qualified to handle the affairs of the Malaga family than is Lafu. He is a younger man, much more alert mentally and is superior in personality to Lafu. He has much more education than Lafu and in addition speaks English. Counsel for Lafu stated in his final argument that Ioasa prevailed over Lafu on the fourth issue. We think Ioasa’s capacity for leadership is definitely superior to that of Lafu and that as the Malaga he will be of more value to the Government than could Lafu. We find for Ioasa on the fourth issue.
This case is on all fours with that of Maea Taleni and Uele v. Talio, No. 37-1949 (Am. Samoa) in which we awarded the matai name Magalei to Talio. In that case we found it unnecessary to decide which candidate the major*538ity of the family favored. We found that Talio prevailed over Uele on the issue of forcefulness, personality, character and capacity for leadership and the issue of the value of the holder of the matai name to the government and stood on an equality with Uele with respect to the issue of hereditary right. We awarded the matai name to Talio saying “. . . since we . . . find that Talio prevails over Uele on the second and fourth issues and stands on an equality with him with respect to the third issue, we must award the name (Magalei) to Talio.” We are confident that the Fono when it enacted what is now Sec. 933 of the Code intended that forcefulness, personality, character and capacity for leadership together with the value of the holder of the matai name to the government should be entitled to more weight than the wish of the majority or plurality of the family. In view of our findings we must award the name Malaga to Ioasa.
Accordingly it is ORDERED, ADJUDGED and DECREED that Ioasa shall be registered as the holder of the matai name Malaga of Iliili. The Registrar of Titles will be so advised.
Costs in the amount of $20.00 are hereby assessed against Lafu the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485149/ | DECISION ON REHEARING
MORROW, Chief Justice.
Upon the petition of candidate Togafau joined in by Lemanu, the Court granted a rehearing upon the issue of hereditary right.
At the argument on the petition Togafau informed the court that he was then in a position to prove that the alleged agreement signed by the matais of the Logo family on October 8, 1919 to the effect that the successor to Logo Nuu should come from the Fanuatanu branch of the family was a forgery. He further informed the court that he had in his possession a Logo family history book which would establish the fact that there never was any such person as Logo Tua of whom candidate Puaatuua claimed at the first hearing to be a descendant. He hoped to prove by such family history book (it was, he said, prepared by himself-24 years ago from old family history records of the Logo family) that Puaatuua had no hereditary right.
Candidate Nuu refused to join in the petition for a rehearing. After Nuu made a statement to the court suggesting that he was satisfied with the decision awarding the Logo name to Puaatuua the Chief Justice said to Nuu “I rather take it from your statement that you are satisfied with the decision and are not asking for a rehearing” to *551which Nuu answered “Yes.” Mamea, a representative of candidate Malaeola, informed the court that Malaeola was satisfied with the decision. Malaeola did not join in the petition for a rehearing.
There was no evidence whatever introduced at either the original hearing or at the rehearing indicating that the document, dated October 8, 1919, purporting to be signed by the matais of the Logo family and containing an agreement that the successor to Logo Nuu should come from the Fanuatanu branch was not genuine. Its proper execution was fully established by the testimony of an unimpeached eye witness to its execution who was personally acquainted with all the signers. Under the law, it being more than 30 years old, its authenticity was established also by its age. 20 Am.Jur. 784; II Jones on Evidence (4th ed.) 1012. The document is obviously an ancient one, both the paper and the signatures being discolored by age. We are convinced that it is genuine.
As we stated in the original decision, the court in awarding the title is bound by Sec. 933 of the A. S. Code and not the document, but the document nevertheless is evidence of an admission by Logo Nuu the then matai, and the other matais of the Logo family who signed it that there is a Fanuatanu branch of the Logo family.
At the rehearing candidate Togafau, after assuring the court at the argument on the petition that he personally had possession of a Logo family history book that would establish that there never was a Logo Tua, failed to produce such book in court or account for its absence. “There is a recognized legal presumption that a party will produce evidence which is favorable to him if such evidence exists and is available. And the mere withholding or failing to produce material evidence which is available and would in the circumstances of the case, be expected to be *552produced, gives rise to a natural inference — less forceful than that arising from the destruction, fabrication or suppression of evidence in which other parties have a legal interest but constantly acted upon by the courts — that such evidence is held back because it would be unfavorable or adverse to the party withholding it.” I Jones on Evidence (4th ed.) p. 49. We think that the failure of Togafau to produce the Logo family history of which he said he had possession warrants an inference that if he had produced it, the evidence would have been unfavorable to him. “It is a well-established rule that where relevant evidence which would properly be a part of a case is within the control of the party whose interest it would naturally be to produce it, and he fails to do so, without satisfactory explanation, the jury may draw an inference that such evidence would be unfavorable to him.” 20 Am.Jur. 188-189. Togafau made no explanation whatever as to why he did not produce the family history.
If Togafau had possession of a Logo family record which would show that there was no Logo Tua and that Puaatuua has no hereditary right, why did he not produce it? The natural inference is that he either does not have the history book, or if he does its production would result in evidence unfavorable to Togafau.
Togafau put his aiga Afemata, a member of the Logo family, on the witness stand to prove that there was no Logo Tua. However, on cross-examination Afemata was asked: “Did you see Logo Tua?” to which query he answered : “I did.” Not only did witness Afemata admit that there was a Logo Tua and that he had seen him, but he further admitted that candidate Puaatuua descended from Logo Tua. He was asked: “Are you telling us that Puaatuua descended from Logo Tua?” He answered: “Yes.” Afemata’s testimony on cross-examination leads to the *553conclusion that Puaatuua is the grandson of Logo Tua and has hereditary right to the Logo title.
Witness Afemata told the court a story about Logo Tua which the court does not consider worthy of belief. He said Logo Tua’s real name was Tualogo (one word); that it was a young man’s name and that the two parts of the name were reversed with the result that he was called Logo Tua instead of Tualogo. Suffice it to say that witness Afemata was not referred to in the case as Mata Afe or Togafau as Pau Toga or candidate Puaatuua as Tuua Puaa. The judges of this court know that the village of Fagatuia is not referred to as Tuia Faga; nor is the village of Fagatogo referred to as Togo Faga.
The Fanuatanu branch, of whom Puaatuua is admittedly one, met with the other branches of the Logo family to select a matai. At that meeting it was agreed by the family that there should be three holders of the name. One of the three was Puaatuua.
On cross examination Afemata testified at the rehearing in part as follows:
Q. “. .. will you tell the court how the whole family get together and decide on three to hold the title jointly?”
A. “I remember very well that he (Puaatuua) was the one that first made a speech when the family was together and I made a speech before the family that there should be three holders of the one title on this ground. First I do not like the title to be brought before the court. Second I do not like this to have trouble in the family and that is the reason why I want three to hold the title jointly. The other parties would like one to hold the title and another person jump up that he would like two to hold the title jointly. One of the candidates stood up and said he would like five candidates to hold the title.”
Q. “Who were the three that you (Afemata) were willing to hold the title jointly?”
A. “Puaatuua on one side. Lemanu Tuitui on the other side and Togafau or Nuu on my side but it is up to Nuu or Togafau whoever of them wants to hold the title their side is perfectly willing to have one.”
*554Q. “Is the court to understand that you (Afemata) wanted three to hold the title jointly and said so ?”
A. “Yes.”
Q. “And the three that you wanted were Puaatuua, Lemanu and either Nuu or Togafau. Is that what you told the family?”
A. “Yes.”
Q. “You suggested that Puaatuua be one of the three. You suggested that to the family ?”
A. “Yes I did.”
Afemata was further questioned on cross examination with regard to what he told the family at the meetings as follows:
Q. “But you did not directly tell the family that you Puaatuua have no right to this family ?”
A. “No.”
Q. “During the meeting of the family appointing three, Puaatuua, Nuu and Lemanu to hold the title jointly — during that meeting you did not raise any objection that you Puaatuua have no right to this title, is that correct ?”
A. “I did not raise any objection.”
This court is fully aware of the customs of the Samoans and knows that a Samoan family will not select a man to be its matai unless he has some hereditary right to the title. That the Logo family at a meeting attended by all branches should have selected Puaatuua to be a joint holder of the name Logo, if he did not have some hereditary right to the name, is simply incredible in view of Samoan custom. That Afemata, the witness, admittedly a member of the Logo family and the holder of a matai name himself should have stood up in the Logo family meeting and suggested that Puaatuua, unless he had some hereditary right to the name, should be one of the three joint holders is likewise incredible.
We think Togafau’s witness Afemata told the truth on cross-examination when he testified there was a Logo Tua and that Puaatuua is one of his descendants.
*555Puaatuua produced that part of his family record relating to the Logo family. It was prepared from old family documents in 1947, about two years before the death of Logo Nuu. Puaatuua’s family record showed that he is the son of Saloga, the daughter of Logo Tua by Sa, a daughter of Tapopo. Afemata, witness for Togafau, testified that Logo Tua “married Sasagi and their daughter was Saloga the mother of Puaatuua.” He further testified that “I am connected with Puaatuua in the Tapopo family,” and “Puaatuua is a true member of my family in Alao.” Tapopo is a matai title of Alao. This part of the testimony of Afemata tends to confirm the truth of Puaatuua’s family record.
Whether Puaatuua is the grandson of Logo Tua and has hereditary right to the Logo name is a matter of fact.
The issue must be determined from the evidence. “It is elementary that in civil cases a mere preponderance of the proof is all that is necessary to establish the point in issue. . .” I Jones, Evidence (4th ed.) 6. The evidence on the issue of the existence of hereditary right in Puaatuua very clearly preponderates in his favor. On the one hand we have the assertion of Togafau and his witness Afemata that Puaatuua is without hereditary right. On the other hand we have the testimony of Afemata on cross examination that there was a Logo Tua and that Puaatuua is his grandson. We also have the failure of Togafau to produce the Logo family record which he stated he had in his possession. We have the direct testimony of Puaatuua that he is the grandson of Logo Tua. The truth of his testimony is strengthened significantly by the family history record which he produced showing that his grandfather was Logo Tua. The failure of Togafau to produce the Logo family record which he prepared and had in his possession greatly weakens the case for Togafau. Also the testimony of Afemata that he was a member of the Logo family and con*556nected with Puaatuua through the Tapopo family of Alao taken with the testimony of Puaatuua that his grandmother was Sa, the daughter of a Tapopo, who married Logo Tua, strengthens the case for Puaatuua.
We can come to no other conclusion particularly in view of Togafau’s failure to produce the Logo family record book and the testimony of his own witness Afemata on cross examination that Puaatuua is the grandson of Logo Tua than that the evidence preponderates in favor of Puaatuua.
We can see no reason for changing our prior decision. We hold that Puaatuua prevails over the other candidates on the first, second and fourth issues and that while Puaatuua has hereditary right with one-fourth Logo blood in his veins, nevertheless both Togafau and Nuu, each with one-half Logo blood in his veins, and Lemanu, with more than one-fourth and less than one-half Logo blood in his veins, prevail over Puaatuua on the third issue.
Since Puaatuua prevails over the other candidates on three issues, nevertheless under Sec. 933(1) of the A. S. Code the title must be awarded to him by the court despite the fact that other candidates prevail over him on ,the third issue of hereditary right.
Accordingly, it is ORDERED, ADJUDGED and DECREED that Puaatuua Salofi shall be registered as the holder of the matai name Aumoeualogo of Aoa upon his filing with the Registrar of Titles his resignation from the matai title Puaatuua within 15 days from the date hereof. The Registrar of Titles will be so advised.
The provision for payment of costs as set out in the last paragraph of the original decision will remain in force. An additional $25.00 in costs incident to the rehearing are hereby assessed against Togafau and a like additional sum against Lemanu Tuitui who joined with Togafau in the petition for rehearing.
*557/s/ A. A. Morrow, Chief Justice
/s/ Tiumalu, District Judge
/s/ Muli, District Judge
July 31, 1950.
(1) Sec. 933 reads as follows:
“In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The wish of the majority or plurality of the family;
(b) The forcefulness, character, personality and capacity for leadership of the candidate;
(c) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise the male descendant shall prevail;
(d) The value of the holder of the matai name to the Government of American Samoa.” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485150/ | DECISION
MORROW, Chief Justice.
Isumu of Nuuuli filed his application with the Registrar of Titles to have certain land located at Tafuga registered as his individually owned property. Objections to the proposed registration were filed by Maluia, Fagaima, the Fagaima family by Aifai, Lavatai, Leapaga M., and the Puailoa family by Mapuilefala. The various objectors claimed title to the land as the communal property of their respective families. Hence this litigation. See Sec. 950 of the A. S. Code. The application was accompanied by a survey of the land on which it was designated Leatuvai. Prior to the hearing the court viewed the property involved in the presence of the parties with the exception of Leapaga M. and Fagaima who were nevertheless represented by members of their respective families. With the approval of the court the Fagaima family by Aifai withdrew their objection at the beginning of the hearing.
The surveyed tract was originally bush as was the case with most land in American Samoa. At the present time it contains a number of clearings mostly around its perimeter. There is a pig fence in the inner part of the tract and another pig fence on its north side. Title to bush land as we have held heretofore is acquired by occupation thereof under a claim of ownership. In the case of Soliai v. Lagafua, No. 5-1949 (Am. Samoa) we said: “Occupation coupled *559with a claim of ownership will establish ownership to what was bush land before occupation. See II Blackstone 8. The view that the occupant who first takes possession of land with the intention of having it as his own thereby becomes the owner of it is approved in Maine’s Ancient Law (3rd Am. ed.) at page 238. This doctrine of acquisition of original title by the first occupant, accompanied by a claim of ownership, was approved by this court in the case of Faataliga v. Fano, No. 80-1948 (Am. Samoa).” In Soliai v. Levu, No. 6-1949 (Am. Samoa) we said: “This court judicially knows that when .the members of a Samoan family took possession of bush land and used it in early days, ownership was claimed not by such members in their own right but in behalf of their matai as owner of the communal family property.” We said in Leasiolagi v. Fao, No. 12-1949 (Am. Samoa): “And it was the custom for the matai and members of his family clearing bush land and occupying it to claim it as communal family land and not as the individually owned land of either the matai or the family members occupying it.” While not all of the surveyed land has been cleared nevertheless since there are so many clearings and plantations in its perimeter and since it contains pig walls within it, we think there has been sufficient occupation to convert it from a state of unclaimed land, res nullius, to land which is now the subject of ownership.
The evidence clearly establishes the fact that at various times persons from different families have had plantations on the land and that the families of which they were members have claimed the land as owners.
Puailoa claimed that his family had had some plantations on the land. This was disputed by a number of witnesses. Whether or not the Puailoa family ever had plantations on the property is purely a question of fact. “It is elementary that in civil cases the mere preponderance of the proof is all that is necessary to establish the point in *560issue. ...” I Jones, Evidence (4th ed.) 6. We think the evidence as a whole clearly preponderates against the view that the Puailoa people have ever had any plantations on the disputed tract. Isumu testified that “There are no plantations of Puailoa on this land; the only plantations that are on the land are mine.” Lavatai when asked whether the Puailoa people had any plantations on the land answered “No plantations.” He did say, however, that the Puailoa people had some land adjacent to the surveyed tract. Masani testified “I am well familiar with this land; Puailoa land is not in the surveyed tract.” Puailoa was fined in the village court at Nuuuli for pulling up plants in one of Isumu’s plantations on the land in dispute. It may be that the Puailoa people do have some land in the neighborhood of the surveyed tract but however that may be (and we make no decision whatsoever on that point) we are convinced and we hold from a preponderance of the evidence that the Puailoa family has no land within the confines of the surveyed tract.
In a statement of his right to the land in dispute filed prior to the hearing, claimant Isumu said “My father Leapaga Tapili gave me .the authority to cultivate and plant the land. My father informed me that the land was given to him by his father Paitala. It is more than 20 years since I planted the first plantation in this land. That is my right to the land now in dispute.” Isumu .testified as follows:
“Q. You filed a statement with the court to the effect that your father Leapaga Tapili gave you the authority to plant and cultivate the land in dispute, is that correct ?
A. No.
Q. You mean you did not tell the truth when you made your statement to the court?
A. I want the first question before that.
Q. Your statement handed in to the court to show your right to the land in dispute in the first line says this “My father Leapaga Tapili gave me the authority to cultivate and plant the land.”
*561A. Yes it is Leapaga Tapili.
Q. He gave you authority to go on that land?
A. He authorized me to enter upon the land, cultivate the land and plant plantations.
Q. Did he own it?
A. Tapili also told me to go on the land and plant plantations.
Q. In the second line you said: “My father informed me that the land was given to him by his father Faitala.”
A. That is what my father told me.
Q. So Failtala [sic] gave the land to Leapaga Tpili [sic] and Leapaga Tapili gave you authority to cultivate it?
A. The bush.
Q. When did he give you that authority ?
A. 1929.
Q. That is when you came from Upolu ?
A. Yes.”
Tapili himself who was the Leapaga testified that he gave permission to his true son Isumu to go on the land and cultivate it and that said permission was given “after the war when the Marines moved away.” He further testified that “Before I gave permission to my son I put up one banana plantation on one side and one banana plantation on the other.” To the query “Did Isumu have any plantations in there (on the land) before the war?” Tapili, the father, answered “No.” Masani also testified that Isumu had no plantations on the land before the war. Isumu did not notify the Pulenuu of the intended survey of the land before it was made. Isumu was born in Upolu. We are convinced from the testimony of Isumu himself and his father Tapili that the surveyed land is family land and not Isumu’s individual property. While Isumu entered upon the land and put in some plantations in the clearing, he did it under the authority of the Leapaga his father. We think from the evidence and the circumstances that Isumu conceived the idea of claiming the land as his own sometime after he had put in his plantations under the authority of Tapili Leapaga. The evidence clearly preponderates in *562favor of the view that this land is not the individual land of Isumu and we so hold.
Fagaima claimed that all of the surveyed tract was Fagaima land; that the Fagaima people had had some plantations on the land and claimed it, thereby making it the property of the Fagaima family in accordance with Samoan customs and the law as we have stated it from Blackstone and Maine. But we are convinced from the evidence, and it clearly preponderates in favor of our view, that the Maluia people also had plantations on the land before the war; that the Leapaga people likewise did as did the Lavatai people. We think that Isumu’s entry and whatever clearing he did was for his family under the Leapaga title. A number of witnesses testified to the existence of the Paepaeuli family in Nuuuli, that it has six matais, to wit: Leapaga, Lavatai, Maluia, Fagaima, Taumua and Tonu. We do not believe from the evidence that the plantations on the land prior to the war were put in solely by the Fagaima people. We hold that the evidence, in spite of the conflict therein, preponderates in favor of the view that the Paepaeuli people (and the evidence shows that Fagaima is one of the Paepaeuli family matais) occupied and used this land before the war and claimed it as theirs. Also we are convinced that Isumu, a member of the Paepaeuli family through the Leapaga, put in plantations on the land after the war under the authority of Leapaga Tapili. Part of the land was cleared by the Marines during the war. Isumu clearly has plantations on that part of the land adjacent to the highway marked “Ordnance Road” on the survey.
This court must decide this case according to the evidence and the law. The court does not make the law nor does it produce the evidence. The evidence comes from the witnesses; the law from the legislative branch of the Government. Applying the law to the evidence we hold that the *563surveyed tract is the communal land of the Paepaeuli family having the above named six matais.
Accordingly it is ORDERED, ADJUDGED and DECREED that .the surveyed tract, designated Leatuvai on the survey, shall be registered as the communal land of the Paepaeuli family, which family has the following matais, to wit: Leapaga, Maluia, Lavatai, Fagaima, Taumua and Tonu. The Registrar of Titles will be so advised.
While we hold that Isumu does not own the surveyed land, nevertheless since he entered thereon under the authority of the Leapaga, he is entitled, under Samoan customs, to keep any plantations which he has put in on the part of the land cleared by him, also he is entitled to keep plantations first put in by him on the part of the land cleared by the Marines and/or war contractors. See Sec. 8, A. S. Code. This decree is not a license to drive Isumu from the land.
Inasmuch as Isumu paid for the survey and the benefit of it will inure to the Paepaeuli family it is ORDERED that $40.00 of the costs totaling $50.00 shall be paid by Leapaga, Lavatai, Maluia and Fagaima, each of the four paying $10.00. The remaining $10.00 of the costs shall be paid by Puailoa. All costs to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485152/ | DECISION
MORROW, Chief Justice.
Meapala Ma’ae, a young man of Nuuuli, filed his application with the Registrar of Titles to have the land known as Vaitele near the Tafuna Airport registered as his individually owned property. Mataafa filed an objection to such proposed registration in the style of “Mataafa of Nuuuli for Ma’ae Lio deceased.” Hence this litigation. Sec. 905 of the A. S. Code. A survey of the land was filed with the application. Prior to the hearing the Court viewed the land in the presence of the interested parties. At the hearing it became apparent that Mataafa was really claiming the land as the property of the heirs of Ma’ae Lio, deceased. We shall treat his objection, therefore, as if it had been made in the name of such heirs. It was so considered by the parties and the Court at the hearing.
*576The undisputed testimony was to the effect that the surveyed tract is composed of two lesser tracts. One of the two lesser tracts was given to Meapala’s mother as her individually owned property by the Lavatai family. Mataafa claimed that the donor was the Usoalii family. However, the Lavatai family is included in the Usoalii. But be that as it may the fact of gift is the material thing, not the name of the donor. The Lavatai himself testified that the Lavatai family was the donor, and we think, considering all the evidence on the point, that that is correct. This lesser tract given to Meapala’s mother lies in the southwest part of the surveyed tract offered for registration.
The other lesser tract lies in the northeast part of the surveyed tract. It was the gift of the Savusa Soosemea many years ago either to Ma’ae Lio or to Ma’ae Lio and Tupelu, his son. Savusa Vae testified as to the fact of the gift. Parts of his testimony indicate that the gift was made to Ma’ae Lio only; other parts indicate that it was to Ma’ae Lio and Tupelu. When the Court visited the land prior to the hearing Savusa told the judges that the gift was to Ma’ae Lio. He made no mention of Tupelu as one of the donees. Tupelu is the blood son of Ma’ae Lio. He is the present Ma’ae and the blood father of proponent Meapala.
At the hearing objector Mataafa admitted that the lesser tract lying in the southwestern part of the surveyed tract had been a gift to Meapala’s mother and he made no claim to that part. That part is separated from the other part, the gift of .the Savusa, by a boundary having a bearing of S 53°31'20// E and a length of 400.25 feet. At the instance of the Court, this boundary line between the two lesser tracts was marked in red on the survey by J. Hall who made the original survey. Mr. Hall calculated mathematically the bearing and length of this dividing'boundary. At the hearing all parties agreed that the foregoing bofindary was the correct dividing line between the two lesser tracts.
*577While Meapala paid for the survey and offered the entire tract for registration in his own name as the individual owner, nevertheless we are convinced from the surrounding circumstances and the evidence that the part of the surveyed tract which we find to have been given by the Lavatai family to Meapala’s mother has been in turn given by her not to Meapala alone, but to Meapala and his sister Meavali. When Meapala was questioned as to whether his sister had any rights in the land, he replied “Myself and my sister” meaning that they owned it jointly. It is our conclusion that the part of the surveyed tract lying southwest of the boundary having the bearing S 53°31'20" E, length 400.25 feet and marked in red on the survey should be registered in the name of proponent Meapala and his sister Meavali as tenants in common and we so hold.
We shall now consider the other lesser tract lying north and east of the foregoing boundary line. It is agreed by all parties that this part was a gift from the Savusa Soosemea made many years ago. The only dispute is whether it was given by the Savusa to Ma’ae Lio alone or to Ma’ae Lio and his blood son Tupelu, the present Ma’ae and the father of proponent Meapala. The witnesses for Meapala testified that it was the latter while Mataafa’s witnesses testified it was the former.
The Court called Savusa Vae as a witness. He testified that he was present when the gift was made; that it was in return for a fine mat given by Ma’ae Lio to Savusa Soosemea when one Igafo, an old man who was a Savusa family member, was taken back by Ma’ae Lio to the Savusa family after he (Ma’ae) had cared for Igafo for many years. As heretofore stated parts of Savusa’s testimony at the hearing indicate that the gift was made to Ma’ae Lio alone; other parts that it was to Ma’ae Lio and Tupelu (the blood father of proponent Meapala and younger blood brother of objector Mataafa). And we have already said that when *578the Court viewed the land in the presence of the parties Savusa Vae told the judges that the gift was from the Savusa to Ma’ae Lio without any mention of Tupelu. Savusa Vae is 66 years old. He placed the gift as being made about 1905 or 1906.
Tupelu (now the Ma’ae and father of Meapala) testified that he was present at the time the gift was made and that it occurred before the Government was established in 1900. When asked how long before he said “My only guess about 40 or 20 years but I do not remember the years.” He was asked how tall he was at the time and he indicated about three to three and one half feet. If he was correct as to his height at the time, he was obviously less than ten years old. He is 63 years old now. He testified that the gift was to his father Ma’ae Lio and himself.
Mataafa, Tupelu’s older brother and the objector, testified that he was present when the Savusa made the gift; that it was made before the establishment of .the Government in 1900 and that the gift was to Ma’ae Lio, his father only, and not to Ma’ae Lio and Tupelu together, Mataafa is 72 years old.
Falegaui, the daughter of Savusa Soosemoa who made the gift and sister of witness Savusa Vae, testified as to her knowledge of the gift. She was confused as to whether the gift was made to Ma’ae Lio or to Ma’ae Lio and Tupelu. However, her final statement on the witness stand was “I confirm Savusa’s testimony that the land was given to Lio by Savusa.”
We are convinced .that the confusion in the testimony of both Savusa Vae and his sister arises from the fact that the gift was made many, many years ago and that the passage of time has dimmed their memories. We believe that the gift was made before the Government was established more than 50 years ago. Both Ma’ae Tupelu and Mataafa so testified. If Tupelu was only three to three and a half *579feet tall at the time (he as before stated is 63 now) it must have been more than 53 years ago. An average 10-year-old boy (and Tupelu is a man of about average height) is over three and one half feet tall.
Despite the contradictory testimony, we believe that the evidence preponderates in favor of the view that the gift from Savusa Soosemea was to Ma’ae Lio only, and not to Ma’ae Lio and Tupelu. It is most unlikely that a matai would make a gift of land to a boy less than 10 years old. Of course we know that Tupelu claims that he helped take care of the old man Igafo. But we think that any care Tupelu could have given when he was so young was so slight, if there was any care at all, that it could hardly have occasioned a gift of land to him from Igafo’s matai Savusa. As stated before, we think the evidence preponderates in favor of the view that the gift was to Ma’ae Lio only and we so find. “It is elementary that in civil cases a mere preponderance of the proof is all that is necessary to establish the point in issue ...” I Jones, Evidence (4th ed.) Sec. 5. The evidence shows that this land is individually owned; that it was given to Ma’ae Lio, as an individual and not in his capacity as the matai of the Ma’ae family.
Having determined that the part of the surveyed tract which was the gift of the Savusa became the individually owned property of Ma’ae Lio, we shall determine in whom the title thereto is now vested, Ma’ae Lio being dead.
Ma’ae Lio died intestate leaving surviving him three sons, viz. Tupelu, Mataafa and Nimo. Nimo became the Seui. He died leaving three surviving children, viz. Fua, a daughter living in Yaitogi, Vaealuga, a student in Malua College in Upolu, and Sivana living in Upolu. Upon Ma’ae Lio’s death, the title to the gift from the Savusa vested in Tupelu, Mataafa and Nimo, each acquiring an undivided one third interest in the property. Upon Nimo’s death intestate, his undivided third vested in Fua, Vaealuga and *580Sivana, each of the latter three acquiring an undivided one-ninth interest in the property.
Ma’ae Tupelu was the principal witness for Meapala, the proponent. He consented to the survey of the entire tract by Meapala. We conclude, particularly from the circumstantial evidence in this case, that Ma’ae Tupelu has given his interest in the land comprising the Savusa gift to Meapala and Meavali, his son and daughter respectively.
In accordance with the Court’s findings as to the facts, it is ORDERED, ADJUDGED and DECREED that that part of the surveyed tract offered for registration by Meapala lying southwest of the boundary marked in red on the survey and having a bearing of S 53031/20" E, length 400.25 feet, shall be registered as the individually owned land of Meapala and Meavali, as tenants in common; and it is further ORDERED, ADJUDGED and DECREED that that part of the said surveyed tract lying northeast of said boundary shall be registered as the individually owned land of Meapala, Meavali, Mataafa, Fua, Vaealuga and Sivana as tenants in common; and it is further ORDERED, ADJUDGED and DECREED that the respective undivided interests of each of said last-men.tioned tenants in common in said part of said tract lying northeast of said boundary, bearing S 53°31/20" E, length 400.25 feet, are as follows:
Mataafa, one-third; Fua, one-ninth;
Meapala, one-sixth; Vaealuga, one-ninth;
Meavali, one-sixth; Sivana, one-ninth.
The Registrar of Titles will be advised as to the provisions of this decree and will register the surveyed tract in accordance therewith.
Since Meapala paid for having the survey made and part of his expenditure is inuring to the benefit of objector Mataafa, the Court considers it equitable and just that Mataafa should pay half the court costs of $25.00 and Mea*581pala the other half. It is therefore ORDERED that Mataafa pay $12.50 and Meapala pay $12.50 of said court costs within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485158/ | FINAL DECREE
WHEREAS it appears to the Court from the record in the above matter that the provisions of Section 993 (a) to (f) inclusive of the Code of American Samoa have been complied with; and
WHEREAS it appears from the statement of John M. Poyer, Acting Registrar of Titles, filed in such matter, that *615Chiefs Leao’a, Lago, and Tuaolo have accepted the tender of $700.00 made to them by the Government of American Samoa for the Pago Pago Well property, particularly described as follows:
“Beginning at an Iron Pin, ‘Y’ — 50,327.45 ‘X’ — 191,593.79, run thence S 27°17'30" W a distance of 62.37 ft. to an Iron Pin; thence N 83°39'30" W a distance of 46.52 ft. to an Iron Pin; thence N 11°46' E a distance of 82.09 ft. to an Iron Pin; thence S 62°42' 30" E a distance of 65.45 ft. to the Iron Pin at Point of Beginning. The above described land contains 0.09 acres more or less. Bearings given in the above description refer to the True Meridian”; and
WHEREAS said John M. Poyer, Acting Registrar of Titles, has recommended to the Court that the Government of American Samoa be declared and adjudged owner of the above described property, pursuant to Section 993(f) of the Code of American Samoa,
NOW, THEREFORE it is ORDERED, ADJUDGED and DECREED that the Government of American Samoa is the owner in fee simple of the above described property. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485159/ | DECISION
MORROW, Chief Justice.
The right of succession to the matai title Lauvale of Fagatogo is to be decided in this proceeding. On July 19, 1950 Fiapapalagi of Fagatogo filed her application with the Registrar of Titles to be registered as the Lauvale. Vai of Fagatogo filed an objection to such proposed registration on July 25, 1950, and became candidate for the name.
Section 926, as amended, of the Code of American Samoa prescribes the requirements for eligibility to hold a matai title. Both candidates meet these requirements, Section 933 of the Code provides as follows:
“Consideration Given By Court: In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The wish of the majority or plurality of the family;
(b) The forcefulness, character, personality and capacity for leadership of the candidate;
(c) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail;
(d) The value of the holder of the matai name to the Government of American Samoa.”
The title Lauvale is a talking chief’s (tulafale) title in the Lutu family. The evidence establishes the fact that members of the Lutu family headed by Lutu Molioo petitioned the Registrar of Titles on November 6, 1922, to register Rimoni as the holder of the “matai name Lauvale in the village of Fagatogo, County of Mauputasi.” Pursuant *617to the petition, Rimoni was duly registered as the Lauvale. Candidate Fiapapalagi was asked on the witness stand, “Are you a Lutu family member?” She answered, “I am a true heir of one Lutu.” We are convinced from the evidence that both candidates, who are blood sisters, are members of the Lutu family.
Each candidate filed a petition purporting to be signed by various members of the Lauvale family supporting her candidacy. There was much contradiction in the evidence as to whether many of the signers on each of the petitions were members of the Lauvale family. Each candidate testified that the great majority of the signers of other’s petition were not members of the family. Suffice it to say that it is possible for us to decide this case without making any determination as to which candidate the majority of the members of the family favor.
The two candidates are daughters of Lauvale Rimoni. Fiapapalagi, the proponent, is the older of the two sisters, being 42 years of age, while Vai, the objector, is 39. Both candidates are housewives, and each has a number of children. Fiapapalagi, the older sister, was dismissed from the Marist School for fighting when she was in the third grade. She later attended the Poyer School and was in the 5th grade when she quit school. She speaks English quite well; she is familiar with family affairs; is a skilled Samoan dancer, having danced the siva for visitors from ships; she has worked plantations and has plantations of her own; she has received high chiefs in her home. She has been a leader in basketball and baseball as well as other sports. She receives about twenty dollars a month from her brother Lafoai who is enlisted in the U.S. Army; also twenty dollars a month from her son who is also enlisted in the U.S. Army; and seventy-five dollars a month from her husband, Maene.
*618Vai was dismissed from school for fighting when she was in the second grade. She speaks very little English; she has worked in plantations, and has received visitors. She sells some of the products of her plantations. However, her income is very much less than that of her sister, the other candidate. During the course of the hearing the Court had an excellent opportunity to observe the personalities of the respective candidates. It is our opinion, based upon the evidence and our observations during the hearing, that Fiapapalagi, the older sister, prevails over Vai on the issue of “forcefulness, character, personality and capacity for leadership ...”
Since both candidates are sisters, born of the same father and the same mother, they have equal hereditary rights. As heretofore stated, each is a blood daughter of Lauvale Rimoni, each has half Lauvale blood in her veins.
We have said many times that the value of the holder of a matai title to the Government of American Samoa depends primarily upon his ability to look after the affairs of his matai family. The ability in turn depends upon his forcefulness, character, personality and capacity for leadership. Since we have decided that the older sister, Fiapapalagi, prevails over her younger sister, Vai, with respect to forcefulness, character, personality and capacity for leadership, we are led to the conclusion that Fiapapalagi will be of more value to the Government of American Samoa as the holder of the matai title Lauvale than would her younger sister.
In view of our findings to the effect that Fiapapalagi prevails over her sister, Vai, on the second and fourth issues and stands on an equality with her sister with respect to the issue of hereditary right, Fiapapalagi is entitled to be registered as the Lauvale regardless of the first issue.
*619Accordingly, it is ordered that Fiapapalagi of Fagatogo be registered as the holder of the matai name Lauvale of Fagatogo.
Costs in the amount of twenty-five dollars are hereby assessed against Yai and a like amount against Fiapapalagi, all costs to be paid within 80 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485160/ | DECISION
MORROW, Chief Justice.
On October 3, 1950 Laulusa of Utulei filed his application with the Registrar of Titles to have certain land in the village of Utulei registered as communal land of the Laulusa family. The land was designated Gataivai on the survey thereof accompanying the application. On October *62019, 1950, Nomaaea Ta’a of Utulei' filed an objection to such proposed registration claiming that the land was his individually owned property. On November 27, 1950, Tavai Esera of Utulei also filed an objection to such proposed registration claiming that the land was communal land of the Tavai family. Hence this litigation. See Section 905 of the American Samoa Code.
Prior to the hearing the Court, in order that it might have a better understanding of the evidence when presented, viewed the land with all the parties present. Prior to World War II all of the land, except a small part thereof adjacent to the public highway running through Utulei, was swamp. During the War the swampy part was filled in.
Nomaaea testified that about 1919 he was assigned the land by Laulusa Faoato and thereupon began to occupy it. At that time he was a young man with the name of Ta’a. About 1941 he was registered as the holder of the matai name Nomaaea. He further testified that he had plantations on the dry part of the land from the time he began to occupy it and that prior to the War he had kept the swampy part clean at the direction of a representative of the Public Health Department. Our conclusion from the evidence is that he did not become the owner of the land in his individual capacity but that instead he merely occupied it in accordance with Samoan customs through the authority of Laulusa Faoato, his matai. It is customary in American Samoa for the matai of a family to assign pieces of communal land to various members of the family for their use. We are convinced that there was no intention on the part of the Laulusa family to give this land (now claimed by them as their own communal land) to Nomaaea. We believe from the evidence that the matai merely assigned it to him for his use as a member of the family in accordance with Samoan custom.
Laulusa was unable to give any satisfactory explanation *621to the Court as to how the land became the property of the Laulusa title. His claim that it was the property of the Laulusa title was based upon no more than an assertion by him that it was. The evidence in support of Laulusa’s claim does not warrant the conclusion that the property is the communal family land of the Laulusa title.
We are convinced that the weight of the evidence supports the view that this land was at one time the property of Fano of Fagaalu; that a Tavai, many years prior to the establishment of the Government, married one Lealaisea, the daughter of the then Fano, and that said Fano made a gift of the land to the. Tavai title for the use and benefit of the then Tavai and his (Fano’s) daughter Lealaisea and their descendants. In other words, the gift was made not to the title Tavai generally but to the Tavai title for the use of particular persons, as above stated. There are many descendants of the Tavai and his wife Lealaisea. Of course the Tavai and his wife Lealaisea have been dead for many years. In fact, they must have died long before the establishment of the Government here in 1900 as the evidence indicated that the gift was made between a hundred and two hundred years ago.
We believe from the evidence that Laulusa, Tavai Esera and Nomaaea are descendants of the said Tavai and his wife Lealaisea, and that their respective claims to the land arise out of the fact that they are such descendants, but that they are confused as to their respective rights in the land.
In accordance with our findings as to the facts, it is ORDERED, ADJUDGED and DECREED that the land “Gataivai,” as shown in the survey accompanying the application of the Laulusa to have it registered shall be registered as the property of the Tavai title for the use and benefit of the descendants of Tavai and Lealaisea, the daughter of Fano. And it is further ORDERED, ADJUDGED and DE*622CREED that Laulusa, Tavai Esera and Nomaaea are among such descendants. The Court makes no finding and no decree as to who the other descendants of said Tavai and Lealaisea may be, if there are any such.
Costs in the amount of $16.67 are hereby assessed against each of the parties, namely, Laulusa, Nomaaea and Tavai Esera. All costs are to be paid within thirty days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485161/ | DECISION
MORROW, Chief Justice.
The right to the succession to the matai name Fuga of Pago Pago is to be determined in this case. On September 26, 1950 Pele filed his application with the Registrar of Titles to be registered as the Fuga; on October 5, 1950, *623Tafisi Fale filed an objection to the proposed registration and became a candidate for the name, and on October 23, 1950, Selega filed his objection and became a candidate for the name. Hence this litigation.
Section 926 of the Code of American Samoa, as amended, prescribes the requirements for eligibility to hold a matai title. It reads as follows:
“No person not having all the following qualifications shall be eligible to succeed to any matai title:
(a) Must be at least one-half Samoan blood;
(b) Must have resided continuously within the limits of American Samoa for five years either immediately preceding the vacancy of the title, or before he becomes eligible for the title;
(c) Must live with Samoans as a Samoan;
(d) Must be a descendant of a Samoan family and chosen by his family for the title;
(e) Must have been born on American soil, except persons born of parents of Samoan blood who are (1) inhabitants of American Samoa, (2) but temporarily residing outside of American Samoa, or engaged in foreign travel at date of birth of such child, and (3) whose matai at any time within 13 years after the birth aforementioned files with the Eegistrar of Titles a sworn declaration that such child bom outside of American Samoa now resides in American Samoa and desires such child to be an inhabitant of American Samoa.”
Both Tafisi Fale and Selega meet all the requirements of the above section 926 and are eligible for registration as the holder of a matai title.
The evidence showed that Pele was outside the limits of American Samoa for six days during early 1950 on a trip to Upolu, Western Samoa; also that he was outside the limits of American Samoa for a week while on a trip to the Island of Niue in the fall of 1950. Whether these absences from American Samoa disqualify him under section 926 (b) from holding a matai title we shall not decide in view of our findings upon the issues raised by section 933 of the Code hereinafter quoted. We shall assume, without making *624a decision on the point, that Pele meets all the requirements of section 926.
Section 933 of the Code provides that:
“In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The wish of the majority or plurality of the family;
(b) The forcefulness, character, personality and capacity for leadership of the candidate;
(c) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail;
(d) The value of the holder of the matai name to the Government of American Samoa.”
Each of the candidates filed a petition with the clerk of the court purporting to be signed by those members of the Fuga family favoring his candidacy. There were 159 signers on Pele’s petition, 171 on Fale’s and 241 on Selega’s. Each candidate testified that all the signers on the petition favoring him were members of the Fuga family. Fale objected to 10 signers on Pele’s petition, saying that they were not members of the Fuga family. He later admitted on cross-examination that only five of the 10 were not members. Selega testified that all of the 150 signers on Pele’s petition were members of the family; also that all of the 171 on Fale’s petition were family members. Pele objected to 58 names on Fale’s petition. However, on cross-examination he admitted that a number of these names objected to by him were those of Fuga family members. Pele claimed that 116 on Selega’s petition were not family members but admitted later that a number of these 116 were. Despite the conflict in the evidence, it is our belief therefrom that a plurality of the family favor Selega to be its matai; that Pele stands second on this issue, and Fale third. And we so find.
*625The testimony of all the witnesses including Selega himself indicates that Selega’s character is not good. The testimony also indicates that Pele’s character is likewise not good. Nothing will be gained by our delineation of the past delinquencies of these two candidates. According to the testimony Fale’s character is good.
Pele completed the 4th grade in school, Fale the 5th and Selega the 5th. Pele speaks English fairly well while Fale and Selega speak very little English. Pele was a member of the Fita Fita Guard and Band for 24 years, retiring in 1950. He has plantations and he rendered service to the Fuga title for many years. He has some skill as a carpenter. He received some good conduct medals for his military service. His retired pay is $114.66 a month. He attends the Veterans’ Vocational School and receives $60.00 a month subsistence. However, this will come to an end when the school closes. He has two sons in the military service each of whom gives him $20.00 a month. Fale has plantations. He is a carpenter and has built a number of houses. He worked for the Island Government and the Navy as a carpenter and cement worker for many years including part of the war period. During a part of the war he was foreman of a 30-man stevedoring gang. He works for the Native Industry making crates and packing goods for shipment, earning $57.00 a month therefor. He has an income of about $50.00 a month in gifts from his aigas and receives $5.00 a month as village policeman. He has held a matai title for 32 years. During the last twelve years he has held the matai title Fale, a talking chief’s (tulefale) title in the Fuga family. Selega is a carpenter having been employed by the Public Works Department' as such for many years prior to the war and during the war. He has plantations. He testified that since the war he has made from three to five hundred dollars a year as a carpenter and about a thousand dollars a year as a furniture builder *626and repairman. He receives about $40.00 a month in gifts from aigas.
The Court had an excellent opportunity to observe the personalities of the three candidates during the hearing. It may be that both Pele and Selega prevail over Fale when forcefulness, personality and capacity for leadership alone are considered. However, when we take into consideration character we reach the conclusion, in view of the evidence concerning the characters of Pele and Selega, that Fale prevails over both Pele and Selega on the entire issue of character, forcefulness, personality and capacity for leadership. It is our belief from the evidence that Pele and Selega are on a substantial equality with respect to this issue.
Pele is the great-grandson of Fuga Sala and has one-eighth Fuga blood in his veins. Fale is likewise the great-grandson of Fuga Sala and has one-eighth Fuga blood in his veins. Selega is the grandson of Fuga Sala and has one-quarter Fuga blood in his veins. Selega is the blood brother of the last holder of the Fuga title. We find that Selega prevails over Pele and Fale on the issue of hereditary right, while Fale and Pele are on an equality with respect to this issue.
In view of Fale’s good character and his experience for 32 years as a matai we believe that he would be of more value to the Government of American Samoa as the holder of the matai name Fuga than either Pele or Selega. A matai should have a good character so as to be able to set a good example for his family and to command its respect and the respect of the community. Testimony with respect to the character of these two last-named candidates militates against our finding that either of them would be of more value to the Government as the holder of the matai name than Fale. We find that Fale prevails over both Selega and Pele on the fourth issue.
*627In awarding a matai title, this Court has interpreted section 933, supra, as requiring it to give the most weight to the wish of the majority or plurality of the family, less weight to forcefulness, character, personality and capacity 'for leadership, still less weight to the matter of the best hereditary right and the least weight to the value of the holder of the matai name to the Government. See Mailo, Pua and Epati v. Faaliga Sii, No. 21-1949 (Am. Samoa); Leano v. Leti, No. 27A-1949 (Am. Samoa). Any other interpretation would ignore the significance of the language “in the priority listed” in the statute.
Since we find that Selega prevails over the other candidates on the first and third issues, it follows that under the law this Court must award him the title. Accordingly, it is ORDERED, ADJUDGED AND DECREED that Selega shall be registered as the holder of the matai name Fuga of Pago Pago. The Registrar of Titles will be advised of this decree.
Costs in the sum of $37.50 are hereby assessed against Pele, and a like sum against Tafisi Fale. Costs are to be paid within thirty days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485162/ | DECISION
MORROW, Chief Justice.
The right of succession to the matai name Lemasaniai of Vatia is involved in this proceeding. On January 9, 1951, Tee of Vitia [sic] filed his application with the Registrar of Titles to be registered as the Lemasaniai. On February 2, 1951, H. E. Stevens of Leloaloa filed an objection to the proposed registration and became a candidate for the name.
*629Section 926 of the A. S. Code, as amended, prescribing the requirements for eligibility to hold a matai title, reads as follows:
“Eligibility Requirements for Matai Title: No person not having all the following qualifications shall be eligible to succeed to any matai title:
(a) Must be at least one-half Samoan blood;
(b) Must have resided continuously within the limits of American Samoa for five years either immediately preceding the vacancy of the title, or before he becomes eligible for the title;
(c) Must live with Samoans as a Samoan ;
(d) Must be a descendant of a Samoan family and chosen by his family for the title;
(e) Must have been born on American soil, except persons born of parents of Samoan blood who are (1) inhabitants of American Samoa, (2) but temporarily residing outside of American Samoa, or engaged in foreign travel at date of birth of such child, and (3) whose matai at any time within 13 years after the birth aforementioned files with the Registrar of Titles a sworn declaration that such child born outside of American Samoa now resides in American Samoa and desires such child to be an inhabitant of American Samoa.”
Testimony with respect to Tee’s eligibility to hold a matai title was heard. It satisfied the Court that he meets all the qualifications prescribed by section 926 as amended. Tuasivi, a witness for Stevens and obviously called by him to prove that Tee was born in Western Samoa instead of American Samoa, testified that Tee was born in American Samoa. In view of the testimony we have no doubt about Tee’s having been born in American Samoa. Also certain naval records were introduced in evidence which showed that Tee was born in American Samoa. Tee served almost twenty years in the naval Fita Fita Guard and Band in Tutuila.
When Stevens was called as a witness he testified that he went to Hawaii in 1935 and remained there until 1946, returning to American Samoa on March 1, 1946. It fol*630lows, according to his own testimony, that he was not eligible to hold the matai title on February 2, 1951 when he filed his objection and became a candidate for the title. See Sec. 926(b), supra. Neither did he meet the requirements of Section 926(b) on February 8, 1951, which was the last day of 30 days allowed by Sec. 931 of the Code for filing objections to the registration of an applicant for a matai title.
At the hearing counsel for Stevens contended that Stevens’ eligibility to hold the title should be determined as of the time (August 30, 1951) of the hearing which was more than five years after he returned to American Samoa on March 1, 1946; that it should not be determined as of February 2, 1951 when he filed his objection or as of February 8, 1951, the last day for filing objections to the proposed registration. It is obvious to us that on February 8, 1951, the date of the expiration of the 30 days allowed by Sec. 931, supra, within which to file objections, Tee was entitled to be registered as the holder of the Lemasaniai title unless there was on file an objection by a candidate having more right to be registered as the Lemasaniai than he. Since Stevens was not eligible on February 8, 1951, to hold a matai title on account of noncompliance with Section 926(b) of the Code, and there being no other objectors, it necessarily follows that Tee had a right to be registered as the holder of the title as of that day. We are unable to see how Stevens’ subsequent eligibility, which could not exist until the last day of February, 1951, could take away Tee’s right (which accrued at least as early as February 8,1951) to be registered as the Lemasaniai. If the Court were to hold that Stevens was entitled to be registered as the holder of the title when he was ineligible to hold it on February 8, 1951, it would follow that Tee’s vested right to be registered as of that date would be *631destroyed. We can not agree with a view of the law that would reach such a result.
It was also contended by counsel for Stevens that the High Court in the Misa case, No. 7-1951, ruled that eligibility of a candidate with respect to Section 926(b) was determined as of the date of the hearing. Neither the decision in the Misa case nor anything said by the Court during the hearing warrants this conclusion. In that case, one Ropati, who was a candidate for the matai name Misa, was dismissed by the Court as a party to the proceedings when he testified that he left American Samoa for the United States on November 5, 1946, and that he did not return to American Samoa until some time in June, 1947. In its opinion in the Misa case the Court said that Ropati “did not comply with Section 926 (b) of the Code and dismissed him as a candidate, since it was obvious that he had not ‘resided continuously’ within the limits of American Samoa for five years either immediately preceding the vacancy of the title or before he becomes eligible for the title; ...!” The hearing in the Misa case was held on March 5-9, 1951. In orally dismissing Ropati as a candidate the Court said, “The fact that the Court finds that Ropati is at the present time not eligible to acquire a matai title and he will be eligible five years after June 1947 — the mere fact that we find him to be not eligible at the present time does not mean he has lost any rights to the Misa family. He has all the rights he had in the Misa family. All that we have done is to decide that Ropati is not eligible to become a matai until some time in June of next year. That is all.” There is nothing in either the decision in the Misa case or in the oral ruling of the Court dismissing Ropati as a candidate, to warrant the conclusion that the eligibility of a candidate for a matai title with respect to the five-year requirement in Section 926(b) of the Code is to be determined as of the time of the hearing. The Court made this clear when it *632said, as above quoted, that “All that we have done is tu decide that Ropati is not eligible to become a matai until some time in June of next year.” If the contention that eligibility with respect to the requirements of Section 926 (b) were to be determined as of the date of the hearing rather than as of the time of filing the objections or 30 days therefrom, it would follow that an eligible applicant for the name might have his right to be registered as the matai taken away from him through the simple device of an objector’s counsel securing postponement of the hearing until after the five years’ residence within the limits of American Samoa required of the objector had elapsed. We do not believe that an interpretation of Section 926(b) which would permit the destruction of the vested right of an applicant to be registered as a holder of a matai name through any such subsequent act by an objector’s counsel is sound.
“The rights and liabilities of the parties — that is, their rights to an action or to judgment or relief — depend upon the facts as they existed at the time of the commencement of the action, and not at the time of the trial.” 1 American Jurisprudence, Title Actions, Section 59.
At the conclusion of the testimony the Court, upon motion by Tee’s counsel, orally dismissed Stevens as a candidate and ordered that Tee be registered as the holder of the name Lemasaniai, having found him to meet all the requirements of Section 926 as amended.
For the purpose of providing a written decree, it is now ORDERED, ADJUDGED and DECREED that Tee be registered as the holder of the matai name Lemasaniai of Vatia. The Register of Titles will be so advised.
Costs in the sum of $25.00 are hereby assessed against the objector H. E. Stevens, the same to be paid within thirty days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485163/ | MORROW, Chief Justice.
Sale was convicted of the larceny of certain taro from Hale’s plantation and has appealed from the judgment. It is contended by the appellant that inasmuch as the evidence upon which the finding of guilt was based was wholly circumstantial the judgment must be reversed. We *636conceive the law to be that it is not necessary to have direct evidence to support a conviction for crime; that a conviction upon circumstantial evidence only is proper if the court is convinced beyond a reasonable doubt from the evidence that the accused is guilty of the offense with which he is charged. “Any fact which becomes material in a criminal prosecution may, as a rule, be established by circumstantial as well as by direct evidence. A resort to proof of circumstances is often the only means of establishing the ultimate fact of guilt; and such evidence alone will support a conviction if it produces a belief, beyond a reasonable doubt in the minds of the jury, that accused is guilty, and the conclusion of guilty need not necessarily follow from the circumstances in proof, but may be obtained therefrom by probable deduction.” 16 C.J. 762. An examination of the cases cited in support of this statement shows it is a correct statement of the law.
In Carlton v. The People, 150 Ill. 181; 37 N.E. 244; 41 A.S. Rep. 346 the defendant was convicted of the crime of arson upon circumstantial evidence. The judgment of the lower court was affirmed, the court saying that “In both criminal and civil cases ‘a verdict may well be founded on circumstances alone; and these often lead to a conclusion far more satisfactory than direct evidence can produce’; 1 Greenleaf on Evidence, sec. 13a.” The principle that a conviction may be based upon circumstantial evidence only was approved in Winslow v. State, 76 Ala. 42.
The contention that the conviction of Sale cannot stand because no one testified that he saw Sale taking the taro from Hale’s plantation is without merit.
It was also contended by the appellant, that, in view of the conflict in the evidence, the conviction cannot be sustained. We have gone over the evidence with great care and believe that the District Court was warranted in *637finding the defendant guilty. Taeaoge who was the chief witness for the Government testified that on the day of the alleged theft she met Sale on the trail from Hale’s plantation carrying taro in a basket; that she asked him where he got it and that he replied from his own plantation; that she immediately went to Sale’s plantation and found that no taro had recently been taken therefrom; that she found upon examining Hale’s plantation that taro had just recently been taken from it; that the taro in Sale’s plantation were green; that many of .the taro in Hale’s plantation were ripe and that the taro which Sale had were ripe; that she found green taro tops near Hale’s plantation. Silivia who was with Taeaoge at the time she met Sale with the taro and who also went with her to both plantations corroborated the testimony of Taeaoge. Hale testified that the next day he visited both his and Sale’s plantations, found that taro had just recently been taken from his plantation and that none had been taken from Sale’s'; that Sale’s had only green .taro in it, the same being newly planted, while his contained many ripe taro. Since there was obviously an abundance of evidence to support the verdict the High Court will not interfere. “Ordinarily it is not the province of the appellate court to determine the credibility of conflicting' evidence. The presumption is in favor of the verdict, and the appellate court will not interfere when the evidence is conflicting, if there is material evidence tending to support the verdict, although it may differ from the jury as to the preponderance of the evidence.” 17 C.J., pp. 264 and 267.
In American Samoa the court itself ordinarily passes upon the evidence, but the principle just quoted is applicable nevertheless. The above statement of the law was approved in the case of American Samoa v. Makuati of Leone, No. 4-1938.
*638High Court costs in the sum of $10.00 are hereby assessed against Sale, the same to be paid within 30 days. The judgment of the District Court is affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485164/ | MORROW, Chief Justice.
lose was convicted in District Court No. 4 of the larceny of some bananas from the plantation of Taulua and has appealed. He testified in his own behalf at the trial. In the course of his testimony lose admitted that he took the bananas from Taulua’s plantation as charged. It appears from the record that both Taulua and lose, at least prior to the time that lose went to Lepapa to live, which was before the alleged theft, were under the mataiship of Tuiagamoa, and that Taulua’s plantation was on the matai lands of said Tuiagamoa. Whether lose remained a member of Tuiagamoa’s family after his removal to Lepapa is questionable from the evidence. However, we shall assume in disposing of this appeal that he did. This assumption can do no injury to appellant lose since it is very clear that if upon his removal to Lepapa he ceased to be a member of Tuiagamoa’s family he would have no right to take the bananas from Taulua’s plantation without Taulua’s prior consent. The question then is, assuming that lose and Taulua were both members of the Tuiagamoa family, did lose have the right to take bananas from Taulua’s plantation on the matai land of the Tuiagamoa family without the prior consent of Taulua? There was no pretense of such prior consent.
It has been decided that the matai does not own the family lands absolutely, but that he holds them as a sort of trustee for the benefit of the family. Satele v. Faga, No. 6-1938. The Samoan custom is for a member of the family to plant his plantations on the matai land of his family either at the direction of or with the consent of his matai. Under such custom it is the duty of a member of the family planting such plantation to render service to the matai; and if called upon by the matai for some fruits of the land, to furnish the same to him. However, under the Samoan *640custom, it is not the right of one member of the family to take the fruits from a plantation of another member of the family on family lands. The plantation and the fruits thereof are the property of the man putting in the plantation subject to the duty of service to the matai. Consequently another member of the family has no right according to the Samoan custom to the fruits of such plantation. This court judicially knows of the existence among the Samoan people of the customs just alluded to. Section 3(2) of the Codification provides that “The customs of the Samoans, not in conflict with the laws of the United States concerning American Samoa, shall be preserved, unless otherwise requested by representatives of the people.” The customs referred to are not in conflict with any law of the United States concerning American Samoa, nor have they been annulled by statutory enactment. Consequently they are still in force in American Samoa.
The record shows that lose apologized to Taulua for taking the bananas. Iose’s own testimony confirms this statement as well as the testimony of Nemaia. The very fact that lose apologized is an implied admission on his part that he was conscious of wrongdoing when he took the bananas. Since it is clear that under Samoan customs lose had no right to take the bananas for his own use without Taulua’s consent, it follows from the record that the conviction was warranted.
High Court costs in the sum of $10.00 are hereby assessed against lose, the same to be paid within 30 days. The judgment of the District Court is affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485165/ | DECISION
The High Court convened at the Courthouse of District Court No. 4 at Iliili, Tutuila, American Samoa on Saturday, July 19, 1947 at 0900, all parties being present and participating in a trial of the case de novo. Each party appeared for himself.
MORROW, Chief Justice.
This is an action to recover damages for an alleged trespass by the defendants upon the plaintiffs’ land. Plaintiffs claim that defendants pulled their taro.
The evidence is in serious conflict. Nevertheless the court is unanimously of the opinion upon the evidence that the plaintiffs were mistaken as to who pulled their taro on May 5, 1947. No doubt the plaintiffs honestly believed that it was the defendants, but we are convinced that it was not.
In the first place Fe’a is blind in one eye and does not have very good vision with the other. It was early morning when Fe’a and Fiatagata went to their taro patch, and not during full daylight. In response to the question “How come you did not see them until you got 15-18 feet from them?” Fiatagata replied: “Because I could not tell their *642name because .they were bending down and cutting taro.” And again Fiatagata testified “... and my husband told me to keep on walking and when we came close to them they had their backs to us . . .” Fe’a testified that the men pulling the taro were bending down. The men ran away when approached by Fe’a and Fiatagata. In these circumstances, since it was early morning, Fe’a and Fiatagata could well have made a mistake as to the identity of the men.
That they did make a mistake is indicated by the testimony of Faamasini, Ie, Saunoa. Faamasini and le testified that Siluano was working on the church house in Malaeloa on May 5th. Siluano testified to the same effect. Saunoa testified that Faamaile was a teacher at Yailoatai and that he lived with Saunoa from Sunday to Friday; that he went home on Friday and returned to Vailoatai about three o’clock on Sunday afternoon. May 5, 1947 was on a Monday. It would be most peculiar for Siluano to get up in the night and walk from Malaeloa to Iliili and steal taro when his family was already supplied with plenty of taro as County Chief Amituanai indicated to the court. And it would be equally peculiar for Faamaile a school teacher to have left Vailoatai during the night to come to Iliili to steal taro early the next morning. The evidence clearly preponderates in favor of the defendants. As before stated the court is convinced that the defendants did not pull the taro of the plaintiffs.
The judgment of the District Court in the above entitled case is reversed. High Court costs in the amount of $10.00 are hereby assessed against Fe’a and Fiatagata, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485166/ | DECISION
MORROW, Chief Justice.
Simi was convicted in District Court No. 4 of trespass, a violation of Sec. 882 of the Code and sentenced to pay a fine. He appealed. The High Court heard the case de novo at Iliili on January 27,1949.
The testimony of the prosecution’s witnesses, viz. Sagia, and Fosi, does not warrant a conviction. The alleged trespass consisted of entering upon the land of Sagia and planting .thereon coconuts and bananas. Not a single *644prosecuting witness had any knowledge that any such trespass was committed by the defendant and each such witness so admitted on the stand. Each prosecuting witness admitted that he relied upon a hearsay statement made by a Faifeau to the effect that the defendant had committed the alleged trespass. Such hearsay testimony was not admissible and cannot be considered by the court.
There being no evidence to warrant a conviction, Simi is found not guilty and is discharged. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485167/ | DECISION
MORROW, Chief Justice.
Leinati and Tulei were convicted of trespass in District Court No. 4 and appealed. Upon hearing in the High Court, the judges are convinced from the evidence that they are not guilty beyond a reasonable doubt.
The defendant in a criminal case is aided by the presumption of innocence. “It is a well established principle of the common law... that a person accused of crime is presumed to be innocent until he is proved guilty. ... In a criminal prosecution the state has the burden of establishing all the essential elements of the crime with which the accused is charged and must prove his guilt beyond a reasonable doubt.” 20 Am. Jur., Tit. Evidence, Sec. 222.
We have considerable doubt as to the guilt of the defendants. Prosecuting witness Vao and Fao, defendants’ matai, own adjoining lands in Iliili. There is a dispute as to the boundary line between the two tracts. Defendants cut down some banana, giant taro and laufala plants growing on what they claim to be Fao land. Vao claims that the plants were cut on his side of the line.
We shall make no attempt to decide who owns the land on which the plants were cut. Suffice it to say that the testimony indicates that defendants may very well have honestly believed that the destroyed plants were on the Fao side of the line and the property of the Fao family. In order to find the defendants guilty of the alleged criminal trespass we should have to believe beyond a reasonable doubt from the evidence that they had a criminal intent. A crime consists of a criminal act and a criminal intent, or mens rea. Clark and Marshall, Crimes (4th Ed.), p. 56. If *646the defendants honestly believed that .they were cutting plants belonging to the Fao family, they did not have the necessary criminal intent to make their act a crime even though they were mistaken. The guilty mind would be lacking. See Id., pp. 83-85.
The evidence is quite contradictory. It may be that the plants were growing on the Vao side of the disputed boundary and were his property. On the other hand, it may be that they were growing on the Fao side and belonged to that family. At any rate we are not convinced from the evidence if they were on the Vao side that the defendants knew it.
We do not believe beyond a reasonable doubt that the defendants had the necessary criminal intent to make their act a crime.
We therefore find them not guilty and discharge them. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485169/ | DECISION
MORROW, Chief Justice.
This is an appeal by Malaea Lepe from a judgment of District Court No. 1 dismissing her petition for an order to put her in possession of a house located on Lauvale communal family land in Fagatogo and to put Fiapapalagi, the occupant, out of possession. The court in its judgment ordered that $123.00 be paid by Fiapapalagi to Meanoa, the mother of Malaea Lepe. There is no appeal from the order for payment of $123.00 which amount was paid without objection. There is no dispute as to the *652ownership of the land on which the house is built. It belongs to the Lauvale family of which Fiapapalagi is a member.
Malaea is 20 years old. The house was built before she was born. She testified that it was built by her father and mother, viz., Taumaoe and Meanoa. Obviously she knew nothing whatever about who built the house except through hearsay. The evidence as a whole convinces the court that the house was originally built by Lauvale while he was the holder of the Lauvale title; that his- son Taumaoe, the father of Malaea, who was a young man at the time and employed by the Public Works Department as an electrician, did contribute some money to his matai father Lauvale which ultimately went into the house. This was Samoan custom with which the court is very familiar. Lauvale himself was a retired sailor who drew retirement pay. He spent some of his own money in building the house together with the part which his son Taumaoe gave him as his matai in accordance with Samoan custom. The house was built for the Lauvale family. It was Samoan style. Fiapapalagi carried stones for the foundation; also thatch. In accordance with Samoan custom other family members also helped build the house. It was a family Samoan house and not the property of Taumaoe and Meanoa. Lauvale moved into it as did Taumaoe and his wife Meanoa. Fiapapalagi the defendant lived in it also. Malaea was born while her father and mother occupied the house along with Lauvale and other members of the Lauvale family. When Malaea was a small child she was sent by Meanoa, her mother, to Fagaitua to live with aigas who brought her up.
In 1936 Taumaoe died. Meanoa continued to live in the house with other members of the Lauvale family for some time, probably some two or three years, when she married a Manua man and left the Lauvale family. Meanoa is not a *653Lauvale family member. She was of course at one time a married woman to the family, as we say in Samoa, but that relationship has ceased long ago. Meanoa has no standing in this case for possession of the house because she is not a member of the Lauvale family. She has no interest whatsoever in the house or the ground on which it stands.
We are convinced from the evidence that Malaea, who is a Lauvale family member but living with her husband in another family, is an unwilling plaintiff being urged by her mother for some reason unknown to the court to try to get Fiapapalagi out of possession of the property. Shortly before the action was begun Malaea signed a document in which she asked that Fiapapalagi be given the Lauvale title. Exhibit A, which is a letter written by Meanoa to her daughter Malaea during the course of the proceedings contains the following statement:
“Malaea I know now that you have no love to your mother as your mother is trying to work for your own good but you do not care. The only thing that is in your heart is your husband and your husband’s family. As you know you are not coming until your mother sent for you. I want you to come and have things for your house settled. The house where the case was heard. I can see you have no interest in it. You don’t worry about the family of Lepe as I told you Lepe’s parents are still living and it is the same thing if your father was living, I would not be worried. As you have seen now Palagi is trying to chase you away. You can talk to Lepe and tell him what I am asking you, Lepe is not a fool. ... You are just like Palagi. Mother Meanoa.”
By 1937 or 1938 the house had gotten into bad condition and needed renewal. Lauvale, Fiapapalagi and Meanoa, who was still living with the family after her husband’s death, each made contributions for the renewal of the house. In 1939 Lauvale died. Fiapapalagi married Maene in 1941 and has continued to live in the house with him and their children ever since. Maena and Fiapapalagi have *654built a palagi addition to the house; also a separate palagi kitchen which is used in connection with it.
When asked why the house should be turned over to her by the court, Malaea testified:
“Because Palagi married to a Fita man and they have enough money to build a house for themselves from these many years. I am already married and my husband has no work and no money to build a house and this is the only home we have to live in.”
We do not regard this as a good reason for putting Fiapapalagi, her husband and her children out of the house which is the property of the Lauvale family, and of which family they are members. The same situation in which Malaea and her husband claim to find themselves has arisen in Samoa hundreds of times and it can be readily taken care of, if necessary, under Samoan custom. The matai who receives the service takes care of such matters. It is not out of place in this connection to say that Malaea and her husband are already, as a matter of fact, supplied with a place to live. They have a roof over their heads now.
This house with the palagi addition built by Fiapapalagi and her husband and the palagi kitchen used in connection therewith is just about large enough for Fiapapalagi and her family. Fiapapalagi and her husband have spent their own money to keep the house in repair during the last ten years. Section 2 of the Code of American Samoa provides that
“The customs of the Samoans not in conflict with the laws of American Samoa or the laws of the United States concerning American Samoa shall be preserved.”
The court judicially knows that when members of a Samoan family are occupying a family house other members of the family can neither put them out nor move in under Samoan custom if the house is no larger than reasonably necessary for the occupants. The court is *655fortified in its knowledge of this fact by the testimony of three Samoan chiefs called as witnesses all of whom testified that they were familiar with Samoan customs and that Samoan custom did not permit family members to be put out of a family house occupied by them in order that other family members might occupy it; also .that other members of the family could not move in with the occupants if the house is no larger than reasonably necessary for the present occupants. Certainly there is no law in American Samoa or of the United States applicable in American Samoa which would require this court to order Fiapapalagi and her family out of the house in order that Malaea and Lepe her husband might occupy it. We think the lower court did complete justice in this case when it ordered Fiapapalagi to pay to Meanoa $123.00 which represents in full any contributions that Meanoa or her aigas may have made for renewing the house or keeping it in repair before 1941. We suspect that $123.00 more than pays for any such contributions; however, since the order for the payment of $123.00 is not appealed from we shall not disturb it. Fiapapalagi did pay the $123.00 to Meanoa who refused to keep it and has deposited it with the Clerk of the Court who will turn the same over to her.
The judgment of the lower court is affirmed.
Costs in the sum of $25.00 are hereby assessed against Malaea, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485172/ | DECISION
MORROW, Chief Justice.
On July 25, 1950 Aumua of Tula filed his application with the Registrar of Titles to have the land designated SI’UFANUA in the survey accompanying the application as the communal property of the Aumua family. On August 24, 1950 Togia’i filed an objection to the proposed registration claiming that part of the land included within the survey was the property of the Togia’i family. On September 20, 1950, Logo, a member of the Salanoa family and a former holder of the Pua’atu’ua title, filed an objection in the name of .the Pua’atu’ua and Salanoa family claiming that certain parts of the land included in the survey were the property of that family. Hence this litigation. See Sec. 905 A. S. Code.
Prior to the hearing the Court viewed the land in the presence of the parties concerned in order that it might have .a better understanding of the evidence when it should be presented at the hearing.
Togia’i while on the witness stand denied that there was any such family as the Salanoa family. He said there was a Iuli family instead. There was much testimony contrary to this, and it is our conclusion from the evidence that there is a Salanoa family and that such family has four matais, namely, Salanoa, the senior matai, Iuli, Togia’i and Pua’atu’ua.
When the “Salanoa family” is referred to hereafter it will be understood .that it means the Salanoa family having *5these four last-mentioned matais. When the word “survey” is used hereafter it means the survey filed by Aumua with his application to register the land designated SI’UFA-NUA therein.
The land as shown in the survey is divided into four parts: (1) the first part lying east of the main road on which part is located the LDS church, (2) the second part lying west of the east side of the main road and extending therefrom to the more easterly rock wall, (3) the third part lying between the last-mentioned rock wall and another rock wall to the west thereof, and (4) the fourth part lying immediately west of the last-mentioned rock wall.
The LDS church of Tula is located on the first part; also three pastor’s houses and a number of coconut trees. The Salanoa who died about 1937 is buried at the southwest corner of the church. Both Togia’i and Aumua testified that he Salanoa was buried there at his (the Salanoa’s) request since he was connected with the LDS church and that his burial place was not on Salanoa land. Aumua testified it was on his land while Togia’i said it was on his. Salanoa said it was on Salanoa land. The Court is thoroughly familiar with Samoan customs and we judicially know that it is the custom to bury a matai on his own family land and not on that of some other family. Aumua claimed that all of the land east of the main road included in the survey (i.e. the first part) was his property and dedicated by him to the LDS church for church purposes. Togia’i claimed that the southern half of such land was dedicated by his predecessor in title to the LDS church for church purposes. Witnesses for the Salanoa family claimed that the Salanoa buried at the southwest corner of the church had dedicated to the LDS church for church purposes that part of the surveyed tract lying east of the main road and south of a dividing line running through the middle of the church lengthwise.
*6After due consideration of all the evidence the Court is convinced that the Salanoa family has been in possession of and using that part of the surveyed tract lying south of a line running lengthwise through the middle of the LDS ' church for many years, certainly many more than twenty, with the exception that that part of such land lying south of such line and east of the main road has been used by the LDS church for church purposes since 1936 when the church was erected.
Togia’i has a round guest house most of which is located on that part of the surveyed land lying south of such line and west of the main road as shown on the survey. However, we are convinced from the evidence, and also since Togia’i is a member of the Salanoa family and one of its matais, that his possession of the land on which such guest house is located is to be referred to his membership in the Salanoa family; that he occupies such by virtue of such membership and not as the Togia’i separate and independent from the Salanoa family. The aforesaid dividing line running through the middle of the LDS church lengthwise is 298 feet long with a bearing of N 66° 30' E. The east end of such dividing line terminates in the eastern boundary of the surveyed tract which boundary has a bearing S 32°48' E as shown on the survey. The west end of such dividing line terminates at a point 67 feet west of the point of beginning (the concrete monument) as shown on the survey, and lies in the boundary having a bearing of S 88° 19' W, as marked on the survey.
Togia’i has two living houses and a cookhouse on the second part of the surveyed tract which lies between the east side of the main road and the more easterly rock wall as shown on the survey. The testimony of Togia’i was to the effect that the first cookhouse on the spot where the present cookhouse is located was built in 1910; that the present cookhouse is the fourth one built upon such spot. *7He also testified that a living house was built in 1910 upon the spot where the more westerly living house now stands that such present living house is the fifth on such spot. He-, further testified that a living house was built in 1920 upon the spot where the more easterly living house now stands, and that a number of living houses had been erected on such spot since, these two living houses and the cookhouse and their predecessors all having been built, used, and occupied by members of the Togia’i family. Tiamanu, a witness for Aumua, testified that all of the present Togia’i’s children were born in one or the other of these two living houses. Togia’i’s oldest daughter testified she was 24 years of age, and her appearance indicated that such was the fact. Aumua himself testified that the Togia’i people had been in possession of this particular part of the surveyed tract on which these two living houses and the cookhouse are located for between 17 and 18 years. We are convinced that the weight of the evidence is to the effect that the Togia’i people have possessed this part of the surveyed tract for more than 20 years, and that such possession has been actual, open, notorious, peaceable, exclusive, hostile, and continuous under a claim of title during such time. Under the doctrine of acquisition of title by adverse possession the title to this part of the property would be vested in the Togia’i family at the end of twenty years of such possession. Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 607; Perry v. Clissold, (1907) App. Cases, 72; Puailoa v. Leapaga, No. 64-1948 (Am. Samoa); Vaimaona v. Mulitauaopele S., No. 57-1948 (Am. Samoa); IV Tiffany on Real Property (3rd ed.), Sec. 1171. “A presumption of ownership or title is derived from the possession of real property, the probative weight or force thereof being independent upon the duration of the possessor’s tenure. The universal favor which this presumption enjoys is evidenced by legislative recognition in substantially all juris*8dictions. Such recognition takes the form of express enactments, statutes of limitations, and the innumerable procedural statutes for establishment of title by adverse possession, and the like.” 1 Jones on Evidence in Civil Cases (4th ed.) Sec. 75. “The possession of real property during a prolonged period affords ground for a presumption that the possessor has held under a grant. . . . Accordingly where it is shown that there has been adverse possession of land during twenty years or the period fixed by the statute of limitation, a presumption will be indulged that the possessor or some grantor had a deed and that all acts necessary to give it effect had been performed.” Id., Sec. 76. Sec. 907 of the American Samoan Code fixes the period governing the acquisition of title by adverse possession at twenty years.
If the Togia’i family cleared this particular part from the bush and occupied it under a claim of ownership they became owners of it through the acquisition of an original title by first occupation in accordance with Samoan customs. Faataliga v. Fano, No. 80-1948 (Am. Samoa). Also see 2 Blackstone 8; Maine’s Ancient Law (3rd. Am. ed.) 238. As far as .the instant decision is concerned it makes no difference whether the Togia’i family acquired title through first occupancy or through adverse possession. That they did acquire title by one or the other of these methods is clear.
That part of the surveyed land on which the two living houses and cookhouse stand and which we now find to be the communal property of the Togia’i title is described as follows: Beginning at the point where the rock wall (the first rock wall west of the main road as shown on the survey) makes the most northerly 90° (approximate) turn to what is substantially north, thence S 8°30/ E, 211.5 ft. .to the northwest corner of the LDS church; thence by the west wall of such church S 23°30/ E, 15 ft.; thence S 66° *930' W, 141 ft.; thence S 88°19/ W 109.35 ft. to said rock wall; thence by said rock wall to the said place of beginning where said rock wall makes said 90° (approximate) turn.
With reference to the third piece of land lying between the two rock walls as shown on the survey, the evidence is overwhelming that all of this third part is the communal property of the Aumua title. And we so hold. Togia’i claimed that he owned a small triangular piece in the southern part of this third section; however, his only vegetation growing on such triangular piece was a very small number of banana trees and two coconut trees growing quite close together. We believe from the evidence that these bananas and the two coconut trees were planted by him with the permission of the Aumua, and that the land occupied by such trees has never been held adversely by the Togia’i so as to enable him to acquire title thereto by adverse possession. The Aumua family has been in possession of and used this third piece of the surveyed tract for many years. Such possession creates a presumption of ownership which was not rebutted.
As heretofore stated the fourth part of the surveyed tract lies west of the more westerly rock wall as shown on .the survey. It was admitted by all parties that the Salanoa family owned the kapok tree standing in the most westerly boundary (bearing N 14° 40' E) of the surveyed tract 24 feet from the south end of such boundary as shown on the survey. Togia’i has a cookhouse through which a southern boundary passes, such boundary having a bearing N 58° 28' W and a length of 165.75 feet as shown on the survey. Most of the cookhouse is on land within the surveyed tract. Togia’i claims that a small triangular tract around the cookhouse is his property. The Salanoa family claims that it owns a five-sided piece on the southern side of this fourth part of the surveyed tract which includes the land *10claimed therein by Togia’i. It is admitted that the Salanoa family owns a piece of land called LATA lying immediately south of this fourth part of the surveyed tract. We believe that this last-mentioned cookhouse of Togia’i is on Salanoa land through his membership in the Salanoa family.
The dispute between Aumua and the Salanoa family is over the location of the dividing line between the land LATA and the fourth part of the surveyed tract. Despite the conflict in the evidence we are convinced that the weight of the testimony is to the effect that the Salanoa family owns, and has possessed and occupied for many years, certainly more than twenty years, the five-sided piece on the southern part of this fourth parcel, which five-sided piece is described as follows: Beginning at an iron pin at the most westerly corner of the surveyed tract as shown on the survey, thence N 14° 40' E, 24 feet to the kapok tree hereinbefore mentioned; thence S 60° 15' E, 244 feet to the intersection of the more westerly wall with the boundary having a bearing N 88°36' W as shown on the survey; thence N 88°36' W, 25.5 feet; thence N 79°32' W, 61.70 feet; thence N 58°28' W, 165.75 feet to the aforementioned pin, the point of beginning of this five-sided piece. We find such piece to be the communal land of the Salanoa family.
We are also convinced from the evidence, and in fact it is admitted by all parties, that the Aumua possesses and owns the remainder of this fourth part of the surveyed tract lying north of the above boundary having a bearing of 60° 15' E and a length of 244 feet. Neither the Salanoa nor the Togia’i claims to own any part of such remainder.
Returning now to the part of the surveyed tract lying east of the main road (heretofore designated the first part) as shown on the survey, we find from the evidence that the Aumua dedicated to .the Congregation of the LDS Church of Tula for church purposes that part of the sur*11veyed tract lying east of the main road and north of a line the west end of which begins at the mid-point (on the ground) of the west wall of the aforementioned LDS church and extends N 66° 30' E a distance of 157 feet to a point in the boundary having a bearing of S 32° 48' E, as shown on the survey, such point being 81 feet from the south end of said last-mentioned boundary and 34.35 feet from its north end.
And we further find from the evidence that the Salanoa dedicated to the Congregation of the LDS Church of Tula for church purposes that part of the land included in the survey lying east of the main road and south of the line the east end of which begins in the said boundary (bearing S 30°48' E, as shown on the survey) at a point 81 feet from the south end thereof and which line extends S 66°30' W through the middle of the LDS church lengthwise to the east side of the main road as shown on the survey.
And we further find that the Togia’i dedicated to the Congregation of the LDS Church of Tula for church purposes that part of the land in the survey lying between the main road and the north half of the west wall of the LDS church as shown on the survey.
The Congregation of the LDS Church of Tula has the right to use the land lying east of the main road and included in the surveyed tract for church purposes as a result of these dedications. “By analogy, rather than in strict conformity to common-law principles, the theory of dedication has been invoked to uphold gifts for pious and charitable uses, as for churches, schools, and cemeteries, though their benefits are enjoyed by a certain class, and not by the public at large, some of the specific applications of this analogy being found in cases sustaining dedications for the residence of a minister of a particular religious congregation, for a church or for a religious purpose, for a camp ground for holding religious meetings, for a ceme*12tery, and for a public school.” 16 Am.Jur. 351. Land “may be dedicated for the use of a particular religious sect or denomination, or a particular church society, as a place for worship, as a cemetery, or as a parsonage.” IV Tiffany on Real Property (3rd ed.) Sec. 1098. We upheld a dedication of land for purposes of a Mormon parsonage in Leiato v. Satele & Tapopo, No. 68-1948 (Am. Samoa). We said in the case of Gi and Teo v. Taetafea, John Poti and Faalanu, No. 88-1948 (Am. Samoa) “That land may be dedicated by the owner for church purposes we have no doubt.”
When the Salanoa, the Aumua, and the Togia’i dedicated parts of their respective lands to the LDS church they gave only an easement in the land, not the fee title. “By a common-law dedication, the fee does not pass. The public acquires only an easement or such interest in the land as is necessary for its enjoyment of the use. The fee ordinarily remains in the proprietor, the public holding the easement in trust.” 16 Am.Jur. 402-3. In the Gi case, supra, we said “Of course the church has only an easement in the portion of the land used for church purposes, the fee simple being in the dedicators.”
In accordance with the foregoing opinion and findings it is ORDERED, ADJUDGED and DECREED that the land within the surveyed tract described as follows: Beginning at the concrete monument (described as the point of beginning in the survey) thence S 88° 19' W 67 feet; thence N 66°30' E 298 feet (this boundary line runs lengthwise through the middle of the LDS church aforementioned); thence S 32°48' E 81 feet; thence S 78°30' W 254.56 feet to the point of beginning (the concrete monument) is the communal family land of the Salanoa family having four matais, to wit, Salanoa, the senior matai, Iuli, Togia’i and Pua’atu’ua, subject to the right of the Congregation of the LDS Church of Tula to use that part of the quadrangular *13piece of land just described lying east of the main road, as shown on the survey, for church purposes, and also subject to the right of the public to use the main road crossing such quadrangular piece for highway purposes.
It is further ORDERED, ADJUDGED and DECREED that the land described as follows: Beginning at the iron pin at the most westerly corner of the surveyed tract as shown on the survey, thence N 14° 40' E 24 feet to a kapok tree; thence S 60° 15' E 244 feet to the intersection of the more westerly rock wall as shown on the survey and the boundary marked on the survey with a bearing of N 88° 3 6' W 25.5 feet; thence N 79°32' W 61.70 feet; thence N 58° 28' W 165.75 feet to the said iron pin (the point of beginning) , is the communal family land of the Salanoa family having four matais, to wit, Salanoa, the senior matai, Iuli, Togia’i and Pua’atu’ua, and
It is further ORDERED, ADJUDGED and DECREED that the land described as follows: Beginning at the northwest corner of the LDS church as shown on the survey, thence S 23°3O' E by the west wall of said church 15 feet; thence south 66°30'. W 141 feet; thence S 88°19' W 109.35 feet to the more easterly rock wall as shown on the survey; thence by said rock wall to a point where said rock wall makes the fourth 90° (approximate) turn as shown on the survey; thence S 82°30' E 211.5 feet to the northwest corner of said LDS church (which northwest corner was the point of beginning of this tract), is the communal family land of the Togia’i family, subject to the right of the Congregation of the LDS Church of Tula to use for church purposes that part of this tract just described which lies between the east boundary of the main road as shown on the survey and the north half of the west wall of said church, and also subject to the right of the public to use the main road crossing such described tract for highway purposes.
*14■ It is further ORDERED, ADJUDGED and DECREED that the remainder of the land as shown in the survey is the .communal family land of the Aumua family, (such remainder being all the land in the surveyed tract with the exception of the land herein decreed to be the property of the Salanoa family and of the Togia’i family respectively) subject to the right of the Congregation of the LDS Church of Tula to use for church purposes that part of such remainder which lies east of the main road as shown on the survey; and also subject to the right of the public to use the main road crossing such remainder for highway purposes.
The Registrar of Titles will be advised of this decree.
Aumua bore the expense of making the survey which will inure in part to the benefit of Togia’i and Salanoa. It is equitable under these circumstances that Togia’i and Salanoa should pay the costs.
Accordingly costs in the amount of $25.00 are hereby assessed against Salanoa and a like sum against Togia’i. Costs are to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485173/ | DECISION
MORROW, Chief Justice.
The right to the succession to the matai name LUTALI of Aunuu is to be determined in this proceeding. On September 28, 1950 Taupule filed his application with the Registrar of Titles to be registered as the LUTALI. Lauvao of Aunuu, Suesue of Amouli, and Agae of Amouli each filed an objection to the proposed registration and became a candidate for the name.
When the hearing began Suesue filed a motion ,to withdraw his candidacy which the court granted, and he ceased to be a candidate.
Section 926 of the A. S. Code, as amended, which prescribes the requirements for eligibility to hold a matai title reads as follows:
“Eligibility Requirements for Matai Title: No person not having all the following qualifications shall be eligible to succeed to any matai title:
(a) Must be at least one-half Samoan blood;
(b) Must have resided continuously within the limits of American Samoa for five years immediately preceding the vacancy of the title, or before he becomes eligible for the title;
(c) Must live with Samoans as a Samoan;
(d) Must be a descendant of a Samoan family and chosen by his family for the title;
(e) Must have been born on American soil, except persons born of parents of Samoan blood who are (1) inhabitants of American Samoa, (2) but temporarily residing outside of American Samoa, or engaged in foreign travel at date of birth of such child, and (3) whose matai at any time within 13 years after the birth aforementioned files with the Registrar of Titles a sworn declaration that such child born outside of American Samoa now resides in American *16Samoa and desires such child to be an inhabitant of American Samoa.”
During the hearing it appeared that candidate Agae had no LUTALI blood in his veins. He .testified that his pedigree filed in the case was correct. The pedigree affirmatively showed that he had no LUTALI blood. Utu, who prepared the pedigree, stated that the pedigree was correct. Agae is a member of the Utu family. Upon motion of counsel for Lauvao, joined in by counsel for Taupule, Agae was dismissed as a candidate by the court since it was apparent in the light of all the evidence that he did not meet the requirement of Sec. 926(d) of the Code.
The evidence convinced the Court that both Taupule and Lauvao do meet the requirements of Section 926 of the Code, as amended, and are eligible to hold a matai name.
Section 933 of the A. S. Code provides that:
“Consideration Given by Court: In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The wish of the majority or plurality of the family;
(b) The forcefulness, character, personality and capacity for leadership of the candidate;
(c) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail;
(d) The value of the holder of the matai name to the Government of American Samoa.”
Taupule, Lauvao, and Agae each filed a petition purporting to be signed by those members of the LUTALI family supporting his candidacy. There were 621 names on Taupule’s petition, 440 on Lauvao’s, and 436 on Agae’s. Taupule testified that all of the 621 signers on his petition were members of the LUTALI family. Lauvao testified that not a single signer on Taupule’s petition was a member of the family. Agae testified that the 621 signers in *17Taupule’s list were not LUTALI family members but were members of the Taufi family instead. Both Lauvao and Agae testified that Taupule was not a member of the LU-TALI family. We shall make no finding on that matter since it is not necessary to a decision.
Taupule objected to 13 names on Lauvao’s petition, not upon the ground that they were not members of the family but upon the ground that they had also signed Agae’s petition. He admitted that all the signers on Lauvao’s petition were members of the family. Agae testified that 429 of the 440 signers on Lauvao’s petition were not members of the family. Taupule admitted that the 436 signers on Agae’s petition were members of the family but objected to the 13 who had also signed Taupule’s petition. Lauvao testified that not a single signer of the 436 of Agae’s petition was a member of the LUTALI family. The Court is of the opinion after hearing the witnesses that the plurality of the family favor Lauvao rather than Taupule. It is not necessary for us to consider Agae’s petition inasmuch as he was dismissed as a candidate. The court is convinced that many of the signers on Taupule’s petition are not members of the LUTALI family. However, in deciding this case it is not necessary that we determine which of the two candidates, Taupule or Lauvao, the plurality of the family favors. We can decide the case upon the other three issues without considering the issue of the wish of the majority or plurality of the family. We make no finding on this issue since it is not necessary. See Vai v. Fiapapalagi, No. 11-1951 (Amer. Samoa); Faaloloi Magaea v. Foloi Leatisua, No. 19-1950 (Amer. Samoa).
Taupule completed the 4th grade in the faifeau’s (pastor’s) school. He speaks no English. He has had no experience as a matai. During the war he was a stevedore working on the dock at the Naval Station in Fagatogo. He also worked for the Public Works Department as a laborer for *18a period of two years. He has plantations. He is the leading young man for the title Taufi. Prior to his becoming such he held a similar position in the Yaa family, and prior to that time he was the leading young man in the Tai family. Taupule testified that he has up to $30 a month income from the produce of his plantations, that he has two sons who give him $40 a month and that he receives $60 a month from other aigas, that he sold from $30 to $60 worth of copra a year and that he received $40 a month from the sale of mats.
Candidate Lauvao completed the 6th grade in the faifeau’s (pastor’s) school. He speaks a little English. He has had 16 years experience as a matai having held the Lauvao title for that period. He is a talking chief. He served 16 years in the Fita Fita Guard and Band which was part of the U.S. Navy for fifty years. He has plantations. He worked as a stevedore at the dock in Fagatogo during the war. He is now pulenuu (mayor) of the village of Aunuu. He is also a deacon in the LMS church. The evidence shows that Lauvao has played a leading part in village affairs. Among other things he was instrumental in getting a modern school house erected in Aunuu. He gave the teacher a house in which to live as well as assistance in other ways. He has carried the burden of entertaining important visitors in the village. He has an income of $66.30 a month as retired pay for his past service in the Naval Fita Fita Guard and Band. He sells mats, copra, oranges, pigs, and receives money from his aigas in the Marines. The court had an excellent opportunity to observe the personality of candidates Taupule and Lauvao during the hearing. It is our opinion, in view of the evidence and our observation, that Lauvao prevails over Taupule on the issue of forcefulness, character, personality and capacity for leadership, and we so find.
*19Lauvao is a great-grandson of LUTALI Tautalaso’o. He has one-eighth LUTALI blood in his veins. As to this we have no doubt whatever from the evidence. Taupule testified that his blood father was Lutali Taofi Taupule and that he had one-half LUTALI blood in his veins; that his blood grandfather was Lutali Tuulopa. Lauvao testified that neither Tuulopa nor Toafi Taupule ever held the LU-TALI title. Considering the evidence as a whole we are of the opinion that Lauvao’s testimony is correct. We are supported in our conclusion that Taofi Taupule and Tuulopa never held the LUTALI .title by the decision of the High Court in the case of Pola and Motoi against Taofi, Utu and Pepa, No. 9-1908 (Amer. Samoa). In the course of its decision in that case the court said:
“However, no Taofi ever held the name LUTALI and it will be noted that the name has not passed out of the control of the true descendants of LUTALI Alii, as the present Taofi (the Taofi here referred to by the Court is the Taofi Taupule who candidate Taupule says in the instant case was his blood father) proposed to do with it. The true descendants of LUTALI Alii have ultimately come into their inheritance, although at times adopted sons and other relatives have held the name. Taofi’s claim of absolute and entire control cannot be entertained by this Court. It is vigorously repudiated by both of the other sides, and is of such a nature as would require the clearest and most indubitable proof to sustain. In considering the arbitrary and illogical conduct of Taofi and his testimony upon the witness stand, the Court will state in passing that Taofi’s claim seems to have been based upon an arbitrary assumption of right by the Taofi family.
“The Court has been fortunate in having before it the testimony of Taofi, Utu and of LUTALI Taimoa, deceased, upon the subject of the name LUTALI, as given in the case of Utu et al. v. Taofi et al. (H.C. No. 6-1903) from which it was enabled to compare the statements of the witnesses in this trial with their testimony in the former trial. The testimony of Lutali Taimoa was of especial value to the Court. There was no testimony whatever in that case, showing that Taimoa held merely a life-interest in the name LUTALI, or that he was unable to pass it down to his lineal descendants.”
*20We are further supported in our conclusion that Taofi Taupule, father of candidate Taupule, never held the LU-TALI title by Taofi Taupule’s own testimony in the 1903 case. On the witness stand in that case he testified, Q. “Are you the real Taofi?” A. “I am Taofi.” Q. “Who is your father?” A. “Tuulopa.” If Taofi had been the LUTALI he would have said so. If Tuulopa had been a LUTALI, his son Taofi would have referred to him as such. In another part of his testimony in the 1903 case, in answer to the question by Pele, “Where did you and LUTALI live after I left Aunuu?” Taofi Taupule answered, “On LUTALI’s lands.” And again in response to Pele’s question “Were you together with this Lutali in the time of Faumuina or Faumuina’s case?” witness Taofi Taupule answered, “We were together with Lutali up to the present day.” Again Taofi Taupule was asked, “Who is the present LUTALI?” His answer was “This (pointing him out in the court)” He was also asked, “Are you the only claimant to these lands?” Answer, “Lutali and I.” Then he was asked the question, “Who is the highest of you two?” (meaning Lu-tali or Taofi). He answered, “We are equal.” When LU-TALI was called to the witness stand in the 1903 case he testified: “I am Lutali and I live in Aunuu at present.” In answer to the question, “Are you living with Utu or Taofi at present?” Lutali answered, “With Taofi.”
We think Taupule, candidate and witness in the instant case, “talked too fast”; however, not quite fast enough to convince the court that his father and grandfather were Lutalis.
It is our conclusion from the evidence that Lauvao has x/s LUTALI blood in his veins and prevails over Taupule on the issue of hereditary right, and we so find.
We have said many times that the value of the holder of a matai title to the Government depends mostly upon his ability to handle the affairs of his family. That in turn *21depends upon his forcefulness, personality, character, and capacity for leadership. In view of the fact that we find that Lauvao prevails over Taupule on the issue of forcefulness, character, personality and capacity for leadership we are forced to the conclusion that he will be of more value to the Government as the matai of the LUTALI family than would Taupule; and this particularly in view of the fact that Lauvao has already had 16 years of experience as a matai and talking chief. Lauvao has a very pleasing personality. We are confident from the evidence and our observation of him during the hearing that he has the capacity to get along well with other people, and that that capacity will be a great help to him in handling the affairs of the LUTALI family. We find for Lauvao on the fourth issue.
In view of our findings that Lauvao prevails over Tau-pule on the second, third and fourth issues it follows that the Court must award him the title of LUTALI.
A man cannot hold two matai titles at the same time. Aufata v. Falemalu, No. 95-1948 (Amer. Samoa); Kosi v. Viliamu, No. 77-1948, (Amer. Samoa); Vaefoga v. Aunuua Lolo, No. 4-1949 (Am. Samoa). Before Lauvao can be registered as the LUTALI, it will be necessary for him to resign from his present title.
Accordingly, it is ORDERED, ADJUDGED and DECREED that Lauvao shall be registered as the holder of the title LUTALI of Aunuu upon his filing his resignation as the holder of the title LAUVAO with the Registrar of Titles within fifteen days from the date of this decree.
Costs in the sum of $25.00 are hereby assessed against Taupule and a like sum against Agae, the same to be paid within thirty days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485174/ | DECISION
MORROW, Chief Justice.
The right to the succession to the matai name FANENE of Nu’uuli is to be determined in this case. Talimanava filed his application with the Registrar of Titles to be registered as the FANENE on September 21,1950. Maisu Pasene of Vaitogi and Penilosa Sainila of Nu’uuli each filed an objection to the proposed registration and became a candidate for the name. Hence this litigation.
Section 926, as amended, of the A. S. Code prescribes the requirements for eligibility to hold a matai name. No question was raised as to Talimanava’s and Pasene’s meeting these requirements. It was contended by the other candidates that Penilosa was born in Western Samoa and was *23therefore not eligible under section 926(e) to hold a matai name in American Samoa. We have considered the question carefully and have concluded that the weight of the testimony is to the effect that Penilosa was born in American Samoa. We find that he is eligible to hold a matai title here.
Section 933 of the A. S. Code provides:
“Consideration Given by Court: In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The wish of the majority or plurality of the family;
(b) The forcefulness, character, personality and capacity for leadership of the candidate;
(c) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail;
(d) The value of the holder of the matai name to the Government of American Samoa.”
Each of the candidates filed a petition with the Court purporting to be signed by those members of the FANENE family supporting his candidacy. Each candidate testified that all the signers on the petition in his behalf were members of the family. There were 34 on the petition for Talimanava, 273 on the petition for Penilosa, and 318 on the petition for Pasene. Pasene testified that all of the signers on Talimanava’s petition were members of the family. Penilosa, while admitting that all 34 signers on Talimanava’s petition were members of the family, claimed that 1 of the signatures were forged. Talimanava objected to 264 of the signers on Penilosa’s petition claiming that they were not FANENE family members. He admitted that the other nine were family members. Pasene testified that all of the 273 signers on Penilosa’s petition were family members. Talimanava swore that 303 of the 318 signers on Pasene’s petition were not family members. He admitted that 15 were. Penilosa objected to 199 signers on Pas*24ene’s petition; to one on the ground that the signer was under age and to the other 198 on the ground that they did not belong to the FANENE family. He also objected to 173 names on Pasene’s petition on the ground that the signatures were forged. It is very apparent to us that signatures Nos. 205 to 239, both inclusive, on Pasene’s petition were written by the same hand. It is also quite apparent from an examination of the other signatures that many of them were written by the same hand. We have concluded from the testimony that the majority of the family favor Penilosa and wish him to be the FANENE. We find that Penilosa prevails over Talimanava and Pasene on the issue of the wish of the majority or plurality of the family.
Talimanava is 31 years of age. He completed the 7th grade in school and speaks English well. He has plantations, and for a number of years has had charge of the Insect and Rodent Control Unit of the Public Health Department of the Island Government. During the war he was a leading man in the tire repair shop for .the local Supply Department of the Navy. He has also been a driver of Supply trucks. Prior to the war he worked as a carpenter. Altogether he has worked for the Government for ten or twelve years. Talimanava is a lesser matai in the FANENE family. He has held this title for about a year. Talimanava’s salary is $50 a month. He receives $75 a month from a brother who is in the military service in Hawaii; also $25 to $50 a month from sisters in Honolulu. He has an income of $20 to $25 a month from the sale of copra.
Pasene is 51 years of age. He completed the 5th grade in the LMS Mission School. He speaks very little English. He has plantations. During the war he worked as a stevedore on the dock at Fagatogo. He is the pulenuu (mayor) of Vaitogi. He has held the matai name MAISU for two years. MAISU is a matai name in his wife’s family at Vaitogi. He testified that he had an income from all sources of *25from two to three thousand dollars a year, this income being derived from sales of produce from his plantations, from copra, and from .his aigas who make gifts .to him. He also receives a small salary as pulenuu.
Penilosa, 36 years of age, completed the 7th grade in school and speaks a little English. He has plantations. During the war he worked as a driver of trucks carrying ammunition for the Marines. Since the war he has been a bus driver for a private concern. Prior to the war he worked as a laborer on the public roads. He has been the leader of the Nu’uuli Band for about two years. He has also done work as a carpenter and as an electrician. He is a faifeau (pastor) in the LDS church. He has a salary of $75 a month as bus driver. He sells produce from his plantations for which he receives about $25 a month. He makes chests from the sale of which he derives about $50 a month. Aigas give him about $15 to $20 a month; also he has some income from his service as a band leader.
During the course of the hearing the judges had an excellent opportunity to observe the personality of the three candidates. In view of the evidence and our observations we are of the opinion that Penilosa prevails over Talimanava and Pasene on the issue of forcefulness, character, personality and capacity for leadership. And we so find.
Talimanava is a blood son of FANENE Tu’utau, the last FANENE. Talimanava has half FANENE blood in his veins. Pasene is the blood son of FANENE Tuiloli who held the FANENE title prior to FANENE Tu’utau. He is a FANENE descendant through the female line. However, the evidence established that it is customary in the FANENE family for descendants through both the male and female lines to hold the title. Pasene has one-half FANENE blood in his veins. Penilosa is the blood grandson of FANENE Te’etai. He has one-fourth FANENE blood in his veins. He descends through the male line of the fam*26ily. We find that Talimanava and Pasene are on an equality with respect to the issue of hereditary right, and that they both prevail over Penilosa on this issue.
The value of the holder of a matai title to the Government depends mostly upon the skill with which he handles the affairs of his family. That in turn depends primarily upon his forcefulness, character, personality and capacity for leadership. Everything considered, we are of the opinion that Penilosa prevails over Talimanava and Pasene on the issue of the value to the Government.
Since we find that Penilosa prevails over the other candidates on the first, second and fourth issues, we must, pursuant to the above section 933 of the A. S. Code, award the title FANENE to him.
Accordingly, it is ORDERED, ADJUDGED and DECREED that Penilosa Sainila of Nu’uuli shall be registered as the holder of the matai name FANENE of Nu’uuli. The Registrar of Titles will be advised of this decree.
Costs in the amount of $37.50 are hereby assessed against Talimanava, and a like amount against Pasene, the same to be paid within thirty days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485176/ | DECISION
MORROW, Chief Justice.
On May 10, 1951 Tomasi acting in behalf of himself and Tulei, his wife, filed an application with the Registrar of Titles to have the land designated LEULUASI in the survey accompanying the application registered as their individually owned property. On June 21, 1951 the Salemeanai family acting through Willie Meredith filed an objection to the proposed registration claiming that the land was the communal family land of the Salemeanai family. On July 2, 1951 Leasiolagi of Asu, a member of the Fao family of Iliili and acting in its behalf, also filed an objection to the proposed registration claiming that the land was the communal family land of the Fao family. Hence this litigation. See section 905 of the American Samoa Code.
*37Prior to the hearing the judges of the Court, with the exception of Judge Malepeai who was unable to be present, viewed the land in the presence of the parties concerned to the end that the court might have a better understanding of the evidence when it should be presented at the hearing.
It appears from the evidence that Tomasi, the proponent, was born in Western Samoa 37 years ago. In 1932 when he was about 18 years of age he came to American Samoa. At first he lived in the Sagapolu family in Iliili. After living for six months with that family he went to live in the family of Fale who was married to a Salemeanai man. He continued to live with Fale until her death some years later. He then lived a short time with the Muli family. Next he lived with Malama, a member of the Salemeanai family. There is some dispute in the testimony as to the truth of this last statement, but we believe that the weight of the evidence is to that effect. According to Tomasi’s testimony he entered upon the tract in dispute in 1936 without the consent or authorization of anyone and began to cut down the large trees upon it, it being bush, as he said at that time. He says that this was while he was living in Fale’s family. Malama testified that he entered upon the land in 1936 under her authorization and with her consent, which consent was later confirmed by Vao, the matai of the Salemeanai family in charge of its affairs at the time. She also testified that the entry was made while Tomasi was living in her family. We believe the weight of the testimony favors the view that the entry occurred in 1936 under the authorization of and with the consent of Malama while Tomasi was living in her family; that Vao later gave his approval through Malama.
Vao himself testified that he (Vao) went upon the disputed tract more than 20 years ago while it was bush and cut away many of the large trees growing upon it; that Tomasi did not clear it from bush; that it was he who *38cleared it. Malama’s testimony was to the same effect. District Judge Noa who has land adjoining the disputed tract testified that Vao cleared the land from bush. Aumavae, a matai of Iliili but residing in Leone and a member of the Salemeanai family, also testified that to his knowledge Vao cut down the big .trees growing on the land originally. Malama testified that the first plantations on the land were put in by Vao; that he put in bananas, coconuts and breadfruit. When the judges viewed the land they saw a number of breadfruit trees growing on it which were obviously planted before 1936, when Tomasi entered.
We believe from the evidence that Vao entered upon the land, cleared it from the bush, and put in some plantations all before Tomasi’s entry; that Vao claimed ownership of the land on behalf of the Salemeanai family, being a matai of that family. Samoan families did not originally acquire ownership of their land by purchase from the Government, but through first occupancy coupled with a claim of ownership. Maluia et al. v. Isumu, No. 12-1950 (H.C.Am.S). On this method of acquisition of title to land, see II Blackstone 8 and Maine’s Ancient Law (3rd Am.ed.) 238.
We believe from the evidence that Vao, the matai in charge of the affairs of the Salemeanai family, assigned a piece of land adjoining the piece in dispute to losia a paster [sic] in Iliili for the pastor’s use during his pastorate and that losia used such land from 1940 to 1947. Sagia, a son-in-law of Vao, occupies land of the Salemeanai family adjoining the Fagogogo side of the tract in dispute. We also believe from the evidence that members of the Salemeanai family are occupying land joining the disputed tract on the sea-side.
The evidence establishes quite clearly that Tomasi began to put in plantations on the land in 1936; that in 1938 he married Tulei, a Fao family woman, and that from 1938 to date Tomasi and Tulei have continued to occupy and use *39the land, having plantations upon most of it. It seems that since Tomasi married Tulei in 1938 they have rendered service to the Fao title and not to the Salemeanai title. The possession of the land by Tomasi coupled with the possession by Tomasi and Tulei aggregates only 15 years. That is not a sufficient length of time to acquire title to land by adverse possession. Section 907 of the Code prescribes 20 years as the period for the acquisition of title to land by adverse possession.
Leasio was the chief witness for the Vao family. He admitted he did not know who cleared the land from the bush. He did not claim that the Fao family acquired title from any other family, or from Tomasi, or Tomasi and Tulei. It appears from his testimony that he did not know whose land it was, but he nevertheless claimed it belonged to the Fao title. He testified that the land was bush in 1919, and he knew nothing more concerning it from 1919 to 1944 when he quit working for the Government. We regard the evidence for the Fao family as unsatisfactory and not warranting a conclusion that the land belongs to that family.
Taking the evidence as a whole we are convinced that the weight of the testimony is distinctly in favor of the view that the disputed tract is the property of the Salemeanai family; that its matai Vao entered upon the land more than 20 years ago, cleared it from the bush, put in plantations and claimed it as the property of the Salemeanai family. The land thereby became theirs. Maluia et al. v. Isumu, supra; Soliai v. Lagafua, No. 5-1949 (H.C.Am.S.). We think that Tomasi’s occupation followed by Tomasi’s and Tulei’s occupation has been by authorization of the Salemeanai family acting through Malama and Vao, its matai, and that the family put up no serious objection to such continued occupation until Tomasi had the land surveyed intending to offer it for registration as the individually owned property of himself and his wife Tulei.
*40Inasmuch as we find that Tomasi entered upon the land in accordance with Samoan customs under the authorization of and with the consent of Malama, later confirmed by Vao the matai of the Salemeanai family, we think it would be unjust, even though we do find that the disputed tract is Salemeanai family land, to order Tomasi and Tulei to surrender possession now, leaving their plantations, the product of their hard labor, behind for the use of the Salemeanai people. We think that they have a charge against the property under the circumstances. At the close of the arguments, Willie Meredith, who filed the objection in this case in behalf of the Salemeanai family, stated to the Court, “If the Court will decide in our favor (meaning in favor of the Salemeanai family) it is for them (meaning Tomasi and Tulei) to use the fruits of the land until such time (as) the Court may decide.” When asked by the Court as to whether he was speaking in behalf of the Salemeanai family in making such statement, his answer was “Yes.”
It is the opinion of the Court after viewing the land and the plantations thereon and hearing the testimony in the case, that Tomasi and Tulei, in order that they may have advantage of their charge against the property, should be permitted to possess, occupy and use that part of the surveyed tract on which they presently have their plantations for a period of six years from January 15, 1952, i.e. until January 15, 1958, and .that on said last-mentioned date they should surrender possession of such land together with the then existing plantations on it in an unharmed condition to the Salemeanai family. The land could not be sold to satisfy the charge. See Sec. 1205, A. S. Code.
Accordingly, it is ORDERED, ADJUDGED and DECREED that the land LEULUASI as shown on the survey filed with the application to register the same shall be registered as the communal family land of the Salemeanai family of Iliili; that Tomasi and Tulei shall have the right to *41continue to possess, occupy and use that part thereof on which they now have plantations until January 15, 1958, at which time they shall surrender possession of such part together with the then plantations upon it in an unharmed condition to the Salemeanai family.
Tomasi paid for the survey. Under our decree it will inure to the benefit of the Salemeanai family. In view of these circumstances we consider that it is equitable and just that the Salemeanai family should pay the costs.
Accordingly, costs in the sum of $50 are hereby assessed against the Salemeanai family of Iliili, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485177/ | FINDINGS OF FACT AND DECREE
Now on this 14th day of August 1952, this cause comes on for hearing, the plaintiff appearing in person, and the Court after an inspection of the record finds that due and legal service of notice of the pendency of this cause has been made upon the above defendants and that the Court has jurisdiction, and that said defendants having failed to *42appear did make default, and it is therefore ordered by the Court that said defendants be adjudged in default.
And the cause coming on for proof and decree, upon consideration of the pleadings and evidence introduced, and the Court being fully advised in the premises, finds that Satala, the property, hereinafter described was purchased in 1920 by the plaintiff, James L. Kelsall, from Noma for $300.00 paid by said plaintiff; that title to said land was taken in the name of Savaliga Kelsall, then wife of said plaintiff; and that said land was registered in the name of Savaliga Kelsall in Volume I Register of Native Titles at pages 161 and 162; that said plaintiff as a result of the payment of the purchase price of $300.00 became the equitable and beneficial owner of said land and that he went into actual possession thereof about 1920; that he has been in actual possession thereof, either personally or through his tenant, ever since 1920; that said Savaliga Kelsall died in 1931 and that said plaintiff has been in adverse possession of said land Satala ever since said Savaliga Kelsall’s death in 1931, i.e. for more than .twenty years; that said plaintiff has three fourths Samoan blood in his veins; that said plaintiff leased said land Satala to Vincent Scanlan about 1947; that there is a dwelling house on said land Satala occupied by one George Curry; that said dwelling house is not the property of the plaintiff and that it is personal property and not real property.
It is ADJUDGED and DECREED that the plaintiff James L. Kelsall was, at the time of the commencement of this cause, and now is, the owner in fee simple absolute of the land Satala hereinafter described, subject to his aforesaid lease thereof to Vincent Scanlan, and his right and interest in said premises as such owner in fee simple, subject to said lease, is hereby declared and established.
It is further ADJUDGED and DECREED that the above defendants, and all persons claiming under them *43subsequent to the publication of the notice of the pendency of this cause on May 24, 1952, be and they are hereby, forever barred from any and all claim of right or title to said premises or lien thereon, or any part thereof.
The following is a description of the land Satala affected by this decree:
All that piece or parcel of land situated on the northern side of U.S.G.L. and or the northern shore of Pagopago harbor and known as “SATALA” commencing at a point 107.7 feet along the northern boundary line and west of the N.E. corner monument of said Gov. Land, proceed thence and continuing along same boundary 167.6' bearing S. 77°22' W .to a stake, thence 118' bearing N 7° 43' E. to center of a breadfruit tree, .thence 155' bearing N 87° E. to a Soga tree, thence 89' bearing S 4° 17' W. back to starting point.
Costs in the sum of $15.00 are hereby assessed against said James L. Kelsall, the same to be paid within 30 days from August 14,1952. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485179/ | OPINION AND DECREE ON REHEARING
OPINION OF THE COURT
MORROW, Chief Justice.
The Court granted a rehearing in this case because of its belief that there had been certain irregularities in the procurement of the original decree. At the rehearing the testimony was different in many respects from that given at the original hearing. In fact a considerable amount of the testimony on the second hearing was in direct conflict with testimony which the Court had before it on the first hearing. The only parties participating in the rehearing were candidates Tausulu, Sauitufuga, Malaeti’a and Faaili.
This case involves the determination of which of these four shall be registered as the holder of the matai title *51Misa of Ofu. Tausulu filed his application with the Registrar of Titles to be registered as the Misa on December 12, 1949. The other three filed objections and became candidates for the name. There were other objectors but we shall not notice them since they are not parties to the rehearing.
Section 926 of the A. S. Code, as it read prior to March 17, 1952, when it was amended prescribes the qualifications for eligibility to hold a matai title applicable in the instant case. The amendment provided that it should not apply to pending cases. This case was pending on the date of the amendment. All of the above four candidates have the necessary qualifications. One of the requirements of said section is that a matai must have at least one-half Samoan blood in his veins. A question was raised as to whether candidate Tausulu complied with this requirement since he has some Tongan blood in his veins. Suffice it to say that his Tongan ancestor was so remote in his chain of ancestors that Tausulu has only an insignificant amount of Tongan blood, and has much more than the required one-half Samoan blood. He is eligible to hold a matai title.
Section 933 of the A. S. Code, prior to an amendment thereto dated October 8,1952, read as follows:
“In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The wish of the majority or plurality of the family;
(b) The forcefulness, character, personality and capacity for leadership of the candidate;
(c) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail;
(d) The value of the holder of the matai name to the Government of American Samoa.”
The amendment of October 8, 1952 provided that it should “not apply to any cases pending on the effective date” thereof. The instant case was pending on the effective date *52of the amendment. The amendment, therefore, has no application to this case.
Sauitufuga, Tausulu, Malaetfa and Faaili each filed a petition with the Court purporting to be signed by those members of the Misa family supporting his candidacy for the title Misa. In view of our findings on the second, third, and fourth issues, it is not necessary for the Court to make a finding on the first issue, i.e. the issue of the wish of the majority or plurality of the family. A candidate who prevails on the second, third and fourth issues must be awarded the title over a candidate who prevails on the first issue only. In Gi v. Maaele, No. 26-1949 (H.C.Am.S.) a case involving the right to the matai name Mageo we said: “A candidate who prevails on the second, third and fourth issues must be awarded the title over a candidate who prevails on the first issue only. See Maile, Pua and Epati v. Fa’aaliga Si’i, No. 21-1949 (Am.S.). It is obvious from Section 933 supra that the Court must give more weight to the second, third and fourth issues combined than to the first issue relating only to the wish of the majority or plurality of the family.”
While it is not necessary for the Court to make a finding on the first issue, nevertheless we point out, in passing since it has a hearing upon character, that Sauitufuga’s petition had on it the names of 78 persons who signed twice and of 5 who signed three times. It also contained the names of 2 who were in Honolulu at the time of their supposed signing in Tutuila 2500 miles away. Obviously their signatures were forgeries. The Court must seriously question the character of a candidate who relies upon and presents to the court a petition permeated with so much falsity. Malaeti’a’s petition contained the names of two dead people and there was testimony indicating that some of the signatures on his petition were forged. The testimony was in serious conflict as to whether signers on the various pe*53titions were members of the Misa family. Tausulu testified that all of the signers on the petitions of the other three candidates were not members. On the other hand each candidate testified that all the signers on his petition were members. Each candidate also testified that certain members of the family who did not sign any of the petitions favored his candidacy.
There were 735 signatures on Sauitufuga’s petition, 606 on Malaeti’a’s, 500 on Faaili’s and 252 on Tausulu’s. The large number of signatures on Sauitufuga’s, Malaeti’a’s and Faaili’s petitions casts a cloud of suspicion upon them. We said in the Leiato title case, No. 4-1952 (H.C.Am.S.) “There are a little over 19,000 people in all of American Samoa. There are about 700 matais in these islands. No person under the age of 14 years signs a petition. At the very minimum thirty per cent of the population is under 14. Using that figure there are not over 14,000 people in American Samoa of 14 years of age or above. Counting the number of matais at 700, we have an average of only 20 people of 14 years or over to a matai. We, of course, know that the same person may and does belong to a number of families. We also know that many families have more than one matai.” After making allowance for the fact that a person may belong to a number of families in accordance with Samoan custom and that families may have more than one matai, and allowing for the fact that the Misa family may be a large one, we are convinced, nevertheless, that hundreds of the signers on Sauitufuga’s, Malaeti’a’s and Faaili’s petitions are not members of the Misa family. It should be added that there was much direct testimony in support of this conclusion. And we think from the evidence also that a number of the signers on Tausulu’s petition are not members. However, we are convinced that a much higher proportion of the signers on his petition are true family members than on the petitions of the other three *54candidates. But we shall not make a finding on the issue of the wish of the majority or plurality of the family, since, as heretofore stated, it is not necessary.
We shall now consider the issue of “forcefulness, character, personality and capacity for leadership of the candidate.” There is much evidence before the Court on this issue that was not before it when the case was first heard in Ofu. With respect to character it should be stated that candidate Malaeti’a’s record in District Court No. 1 shows that he pleaded guilty to the charge of larceny on August 30, 1940 and was sentenced to pay a fine with an alternative jail sentence if the fine should not be paid, and that on July 7, 1942 he pleaded guilty to another charge of larceny and was sent to jail for two months. On August 30,1943 he was found guilty of burglary and sentenced to one year in Jail. Malaeti’a, now 32 years old, was 23 years of age when sent to jail for burglary. He graduated from the Marist Brothers’ School, completing the 9th grade. He had religious instruction after school hours while attending school. He speaks English very well. Malaeti’a worked as a clerk for the Public Works Department and later in the same capacity for Samoan Industry. He has also worked as a clerk in the legislative office. He resigned in August 1952 from his position in that office and went to Ofu to live. At one time he worked as a crane operator. He has been an official recorder at a number of ceremonies. He testified that he has an income of about $3.00 a day from cutting copra while aigas give him about $110.00 a month. He was a choir leader of Atu’u village in Tutuila during a part of 1952. With the exception of his early boyhood and the last three months spent in Ofu he has spent practically all of his life in Tutuila, making only an occasional visit to Ofu. Consequently he has little familiarity with the affairs of the Misa family in Ofu. While there he lives with the Velega family, not the Misa family. He does not have planta*55tions on Misa land nor has he ever lived in the Misa family. Malaeti’a did not render service to the Misa title, though he claims that his father did.
Candidate Tausulu, 37 years old, completed 6 grades in the Marist Brothers’ School. He speaks English brokenly. He has plantations on Misa family lands, and has rendered a large amount of service to the Misa title. During the war he worked for Public Works in Tutuila, first in a power plant and later in a lumber yard. He also worked for sometime during the war, he has spent practically all of his life in Ofu where he was born. He is very familiar with the affairs of the Misa family. He has some income from copra and in addition about $225.00 a month given to him by his brothers in the U.S. military service. He formerly operated a small store in Ofu. It is our conclusion from the testimony and our observations of the two candidates during the hearing that Tausulu prevails over Malaeti’a on the issue of forcefulness, character, personality and capacity for leadership.
Candidate Sauitufuga, 38 years old, completed the 8th grade in the Marist Brothers’ School. He has a good command of English. He is a machinist in the ice plant operated by the Public Works Department. He has held this job for .the last thirteen years. For five years prior to taking his present job he worked as a storekeeper for Burns Philp (SS) Co. He has held a matai title for about 4x/2 years. His salary as a machinist is $107.17 a month. He has an income of about $40.00 a month from other sources. Sauitufuga has a pleasing personality. The fact that he foisted a petition on the court with 78 names signed twice, 5 signed 3 times and also containing some forgeries compels us to question his character. There was convincing evidence that a little over a year ago he brought a bottle of whiskey into American Samoa in violation of customs regulations and that he had possession of it in violation of law. The testi*56mony of a customs official that he did not personally search Sauitufuga’s trunk containing the liquor and that customs clerks did not report finding hard liquor in his baggage does not mean that Sauitufuga did not bring in the liquor illegally. It merely means that no liquor was found by those charged with the duty of searching baggage. Furthermore there was no proof that his baggage was searched, although it was supposed to have been. When questioned during the first hearing of this case as to whether he (Sauitufuga) had ever lived in Ofu, he answered “about fifteen years.” This time he testified that it was five years while he was a school boy. He claimed to have progressed two grades in school during those five years. We think that he did not live in Ofu (there was testimony that he had never lived in Ofu at all) more than two years and that his testimony during the first hearing on his residence in Ofu misled the Court. Sauitufuga was born in Masefau. Having lived in Tutuila practically all of his life Sauitufuga has rendered very little service to the Misa title. He has little knowledge of the affairs of the Misa family. He has never lived on Misa land.
Sauitufuga was awarded the Misa title by the Court after the first hearing. He was not able to consolidate the family into an harmonious unit. As witnesses stated, the family “chased him out.” Just after he was awarded the name, he took the late Misa Vaeva’s daughter’s body from Tutuila to Ofu for burial. He stayed two days trying to consolidate the family, then came back to Tutuila and has never been back to Ofu since. Several months prior to the Clerk of the Court’s giving out petitions in blank for the candidates to have signed by those members of the Misa family favoring their respective candidates, Sauitufuga had a petition circulated in his behalf. This was not illegal, but it was an effort to secure an unfair advantage over the other candidates. A man who will take an unfair advan*57tage of his opponents in a matai name case would not be above taking an unfair advantage of family members, if a matai. Such conduct would impair his usefulness as a leader of a Samoan family. While Sauitufuga has a pleasing personality, nevertheless, in view of the evidence on the second hearing (and it was considerably different in a number of respects from that adduced on the first hearing) and our observation of the candidates, we conclude that Tausulu prevails over Sauitufuga on the issue of personality, forcefulness, character and capacity for leadership.
Candidate Faaili, 37 years old, was born in Olosega and lived on that island until he went to Ofu shortly before the war to live in the Misa family. He finished the 6th grade in school and speaks broken English. He has rendered considerable service to the Misa title. He operates a small store in Ofu from which he testified he makes a profit of about $320.00 a month. When the first hearing was had in Ofu he testified that his profit from the same store was only about $20.00 a month. He has plantations on Misa land. Faaili is the policeman for County Chief Faoa. He worked on a road-gang for two years in Tutuila. During part of the war period he worked as a stevedore unloading war supplies from ships in Pago Pago harbor. He testified that he also worked as a rigger during the war but there was an indication that instead of being a rigger he was a water-boy. Faaili dived 30 or 40 feet into the sea and recovered the body of a drowned U.S. Marine. This act took courage and skill. Faaili testified that he had a total income of more than seven hundred dollars a month, a small part of it being given to him by aigas. We think that his real income is very much less than he claimed. The Court had an opportunity to compare the personalities of Faaili and Tausulu during the hearing. It is our conclusion from the evidence and our observation that Tausulu prevails *58over Faaili on the issue of forcefulness, personality, character and capacity for leadership.
Candidate Tausulu is without question the grandson of Misa Poto. He has one-fourth Misa blood in his veins.
There is very grave doubt as to whether candidate Faaili has any Misi blood in his veins. He claims to be the great-great grandson of Misa Logona and to have one-sixteenth Misa blood. However, we think that the evidence preponderates in favor of the view that Misa Logona never had any children and that Faaili instead of being a descendant of Misa Logona is a descendant of Misa Logona’s sister Faafo’i. Molipe, 70 years old and the only living chief in the Misa family, testified that Logona had no children, as did a number of other witnesses. However, even if it be conceded that Misa Logona did have children and that Faaili is one of his descendants, and has one-sixteenth Misa blood, nevertheless Tausulu, who has one-fourth Misa blood, prevails over Faaili on the issue of hereditary right.
Candidate Sauitufuga claims to be the grandson of Misa Palaita. While there was considerable evidence indicating that there never was a Misa Palaita, nevertheless we believe that the evidence preponderates in favor of the view that there was a Misa Palaita but that he lived and died many years before the establishment of the Government in American Samoa in 1900. Misa Vaeva testifying in the case of Palaika v. Misa, No. 22-1913 (H.C.Am.Samoa) testified that the Misas, starting from the first and continuing in the order of succession, were Misa Alefua, Misa Tuimalie, Misa Vaepala, Misa Maiava, Misa Palaika, Misa Logona, Misa Puniuea, Misa Poto, Misa Elia and Misa Vaeva. We think that Vaeva would not have included a Misa Palaita in the list of Misas unless Palaita had held the title. It is unquestioned that Suiaunoa, who was a plaintiff together with Alesana (now witness Molipe heretofore re*59ferred to) in High Court Case No. 16-1919 involving the land Toaga on Ofu was the father of candidate Sauitufuga. In that case Suiaunoa testified that “Misa Palaita married Finau the daughter of Sootoa of Ta’u. They had a child named Siva my father.” Suiaunoa was then asked “Your true father?” to which he answered “Yes.” It is quite clear from Sauitufuga’s own father’s testimony in that case that Siva was the grandfather of Sauitufuga and that Misa Palaita was his great-grandfather. Molipe, who is 70 years old and the only living chief in the Misa family as we have stated, testified that Suiaunoa’s father was Siva. This accords precisely with the testimony of Suiaunoa (Sauitufuga’s father) himself in the 1919 case. On cross-examination Sauitufuga was asked “Palaita is the father of your grandfather. Is that correct?” He answered “Yes.” Then he was asked by the Court: “Palaita is the father of your grandfather. Was that what you say?” And to this question Sauitufuga answered “Yes.” Later he changed his testimony, saying that Palaita was his grandfather.
We are convinced from the evidence that Misa Palaita was not Sauitufuga’s grandfather and that Siva was his grandfather. If Misa Palaita was the father of Siva, and we believe he was, then Sauitufuga has one-eighth Misa blood in his veins, and we so conclude from the evidence. It follows that Tausulu with one-fourth Misa blood prevails over Sauitufuga on the issue of hereditary right.
There is strong circumstantial evidence indicating that Misa Palaita died a good many years before Sauitufuga’s father was born thereby making it impossible for Misa Palaita to have been the father of Suiaunoa who was the father of Sauitufuga. Sauitufuga is 38 years old and was born in 1914. According to the testimony of Sauitufuga’s brother, their father died in 1931 when about 60 years of age. If that testimony be true, and we believe it is, then Suiaunoa was born about 1871. Elia was the Misa when the *60government was established in 1900. He was put on the Misa throne by Tuimanu’a Alalamua. When the government was established in 1900 the Tuimanu’a was Elisara. The historical evidence (and we take judicial notice of historical facts. 31 C.J.S. 637) is to the effect that there were two Tuimanu’a’s [sic] between Tuimanu’a Alalamua and Tuimanu’a Elisara. Now according to Yaeva’s testimony in the Palaika v. Misa case, supra, there were three Misas, viz: Logona, Puniuea and Poto after Misa Palaita and before Misa Elia. The evidence indicated the Misa Palaita held the title until he died. From 1871 when Sauitufuga’s father Siuaunoa was born until 1900 when the government was established is only 29 years. Assuming that Palaita died a year before Suiaunoa’s birth in 1871, and in the nature of things he could not have died any earlier than that and still have been the father of a child born in 1871, it would follow that not more than thirty years elapsed between Palaita’s death and the establishment of the government in 1900. That there were three successive mataiships followed by two kingships, all within the short space of thirty years, is obviously highly improbable.
Malaeti’a has one one-hundred-twenty-eighth Misa blood through his mother. He claims that there was a Misa Iosefa and that he is the grandson of Iosefa through his father Túfele. Despite his claim the evidence clearly preponderates in favor of the view that there never was a Misa Iosefa. Molipe who is familiar with Misa family tradition testified that Iosefa, Malaeti’a’s grandfather, was not a Misa. Iosefa was a faifeau which is a strong circumstance indicating that he did not hold a matai title. Iosefa died in Atu’u in Tutuila, and was buried there. Later his remains were taken up and reburied in Fitiuta. If he had ever been a Misa his remains would have been buried in, accordance with Samoan customs in the land Lagi on Ofu where other holders of the Misa title are buried. Samoans *61bury .their matais on family land. They do not bury them in land on another island. Iosefa was a faifeau in Fitiuta. When Misa Vaeva named the former Misas in his testimony in the Palaika v. Misa case, supra, he did not include Iosefa as one of the Misas. We believe that the Misa blood in Malaeti’a’s veins is limited to the one one-hundred-twenty-eighth part derived through his mother and we conclude that Tausulu with one-fourth Misa blood in his veins prevails over Malaeti’a on the issue of hereditary right.
However, if we take Malaeti’a’s claim as true that there was a Misa Iosefa and that Malaeti’a is his grandson we would still reach the conclusion that Tausulu prevails over Malaeti’a on the issue of hereditary right. Malaeti’a testified that Iosefa held the title Misa jointly with Elia for two or three years beginning in 1890. If Iosefa did hold the title jointly with Elia, then Iosefa had only an undivided half interest in the title and could pass to his son, now Túfele Faiaoga, Malaeti’a’s father, only one half as much hereditary right as he would have passed had he held the title alone all of which means that Malaeti’a would have only one half as much hereditary right derived from his grandfather Iosefa as Tausulu has derived from his grandfather Misa Poto who held the title singly. Even if Iosefa had been a Misa (and we are convinced he was not) holding the title jointly with Elia, Malaeti’a would have only seventeen one-hundred-twenty-eighths Misa blood in his veins which is less than Tausulu’s one-fourth. However, our decision on the issue of hereditary right is based upon our conclusion that Iosefa did not hold the title at all, and not on the theory that he was a joint holder with Elia. We want that clearly understood. Consequently anything we may have said about hereditary right through joint holding of a title should be understood as dictum only and that it is not binding on the Court as a precedent.
*62We believe from the evidence, and we so find, that Tausulu prevails over Malaeti’a, Faaili and Sauitufuga on the issue of the value of the holder of the matai name Misa to the Government. We have said in prior cases that the value of a matai to the Government depends in a very large measure upon the skill with which he handles the affairs of the family, and that in turn depends upon his forcefulness, personality, character and capacity for leadership. Since we found that Tausulu prevails over the other three candidates with respect to these matters, we conclude, as the holder of the Misa title that he will be of more value to the government than any one of the other three.
Since Tausulu prevails over Malaeti’a, Sauitufuga and Faaili on the second, third and fourth issues it follows that he must be awarded the matai name Misa of Ofu.
DECREE
Accordingly the decree dated May 3, 1951 awarding the title Misa to Sauitufuga is hereby set aside and annulled, except the part thereof assessing costs. And it is ORDERED, ADJUDGED and DECREED that Tausulu be registered as the holder of the matai name Misa of Ofu. The Registrar of Titles will be advised of this decree.
The costs aggregate $225.00 of which sum $75.00 is hereby assessed against each of the following: Sauitufuga, Malaeti’a and Faaili. All costs are to be paid within 60 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485180/ | OPINION AND DECREE
OPINION OF THE COURT
MORROW, Chief Justice.
Salome filed her application with the Registrar of Titles to have the land Fogaolo, containing 0.827 of an acre, in Luma, Tau registered as her individually owned property. A survey of the tract accompanied the application. The surveyed tract is part of a larger tract also named Fogaolo. At the hearing, it became clear that Salome’s real claim was that the land was the individually owned land of herself and her seven brothers and sisters, the brothers and sisters being Tamaoleao, Faleu, Leatulagi, Enoka, Paniolo, Fogaolo and Faatasiga. Tauala Tulaga, a member of the Maui family, filed an objection to the proposed registration claiming that the land Fogaolo was the communal family land of the Maui title. Hence this litigation. See Sec. 905 of the A. S. Code.
*64Salome introduced evidence to the effect that about 90 years ago Sotoa Leatulagi gave the surveyed tract to Selema, the great-grandmother of Salome, to have as her (Selema’s) individually owned land; that the land passed from Selema to Salome’s grandfather Fagafa and from Fagafa to her father Paniolo and from Paniolo to her and her brothers and sisters. Salome’s father, her grandfather and her grandmother are buried on the land. It was occupied and used by Fagafa from about 1898 until his death and after him by Paniolo until his death in about 1941. Salome’s mother and her children occupied and used the land after Paniolo’s death until the mother remarried at which time she took all the children except Salome, the oldest, to live with her and her new husband. Salome remained on the land for sometime after her mother remarried.
After Salome left the land the Maui took possession of the disputed tract claiming that it was communal family land of the Maui title. He tore down one or two of the houses on it and built others. We do not believe from the evidence that the Maui forced either Salome, her brothers and sisters, or her mother to leave the land. We think all of them left it voluntarily.
The evidence in behalf of the objector indicated that the land in dispute is Maui family land; that sometimes, before the establishment of the Government, probably about 1898, Fagafa, Salome’s grandfather, had some differences with Pa’u Young with whom he had been living with the result that Fagafa stopped living with Pa’u Young; that at that time, due to the marriage of a member of the Maui family to a relative of Fagafa, the Maui gave permission to Fagafa to occupy the land in dispute and have plantations on it; that this permission was continued for the benefit of Fagafa’s son Paniolo and by implication for the benefit of Paniolo’s children, viz. Salome and her brothers and sisters. The evidence in behalf of the objector indicated *65that both Salome’s grandfather Fagafa and her father Paniolo rendered service in accordance with Samoan customs to the holder of the Maui title.
The objector stated on the witness stand that if Salome and her brothers and sisters wished to return to the land in dispute and occupy and use it in accordance with Samoan customs, they were at liberty to do so.
While the testimony was conflicting we believe that the preponderance of the evidence favors the view that there was no Sotoa Leatulagi; also that the preponderance of the evidence likewise favors the view that Salome’s grandfather, Fagafa, her father, Paniolo and herself and her brothers and sisters lived on the land in accordance with Samoan customs through permission originally given by Maui Sepe and after him his successors. We think that Fagafa and Paniolo rendered service to the Maui.
DECREE
Accordingly it is ADJUDGED and DECREED that the land Fogaolo, as shown on the survey accompanying the application to register it, is the communal family land of the Maui title, subject to the right of Salome and her brothers and sisters, viz. Tamaoleao, Faleu, Leatulagi, Enoka, Paniolo, Fogaolo and Faatasiga or any of them, to return to the land, when they may wish to do so, and occupy and use it in accordance with Samoan customs.
And it is further ORDERED that the land Fogaolo be so registered. The Registrar of Titles will be advised of this decree.
Salome paid for having .the survey made. Under the decree most of the benefits therefrom will accrue to the Maui title. It is equitable, therefore, that the objector Tauala Tulaga should pay the costs in this case.
The costs aggregate $37.50 and they are hereby assessed against Tauala Tulaga. The same shall be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485181/ | OPINION AND DECREE
*67OPINION OF THE COURT
MORROW, Chief Judge.
Tiualii Samoa filed his application with the Registrar of Titles to have the land Papaatai in Pago Pago registered as his individually owned land. The application was accompanied by a survey of the land. Sione Poti and Suafoa filed an objection in behalf of Taetafea claiming that Papaatai was the individually owned land of Taetafea. Viavia, a member of the Te’o Family, acting in its behalf also filed an objection to the proposed registration claiming that the land was the communal family land of the Te’o Family.
Prior to the hearing the Court viewed the property in the presence of the parties.
It is admitted by all parties that the land Papaatai was the communal family property of the Te’o Family when the Government was established in 1900. Taetafea claims that sometime thereafter and prior to 1906 Te’o Tauvaga conveyed the same to her husband Poti. It seems that Te’o Tauvaga was a gambler and that Poti let him have some money in order that he might gamble and also build a guest house. Taetafea claims that the conveyance, if there was one, was oral. Te’o testified that the conveyance to Poti was annulled by the Court because the family did not consent and also because the conveyance was part of a gambling transaction.
We believe from the evidence that the Te’o Family never gave its consent to the claimed conveyance to Poti. Without such consent no title could pass. Communal family land is the property of the family (clan), not the matai, although the matai has certain control over it in accordance with Samoan customs. Our conclusion from the evidence is that Poti did not become the owner of Papaatai as a result of Te’o Tauvaga’s purported conveyance since the family (clan) of Te’o did not consent to the transfer of the *68land. It follows therefore that Taetafea, who claims ownership through inheritance from Poti, is not the owner of Papaatai.
Te’o Tauvaga was removed as the matai of the Te’o Family about 1900 and the present Te’o Falepopo succeeded him. Tiualii Samoa claims title through a conveyance from Te’o Falepopo about 1923. The Te’o Family was involved in a law suit over some land in Fagatogo in 1923 and had $75.00 costs to pay. In order to pay the costs, Te’o Falepopo borrowed the $75.00 from Tiualii Samoa and agreed that if it was not paid within 30 days, then Tiualii Samoa was to have the land Papaatai in satisfaction of the debt. The money was not repaid and Te’o Falepopo conveyed the land to him. This conveyance, according to the testimony of Te’o Falepopo himself, was made with the consent and approval of the Te’o Family. Yiavia testified that the family did not consent to the conveyance. However, he was only about 12 years old at the time. That he should have any actual knowledge of the matter is highly improbable. The contract to convey was in writing and signed by Te’o (Falepopo), Tauvaga and Su’euga. The Court believes the testimony of Te’o Falepopo that the family consented to the conveyance. After the conveyance Tiualii Samoa went into possession of Papaatai. His possession has been continuous for about thirty years. During that time he has used the land primarily for plantations. A few years ago his son’s wife was buried on the land.
It makes no difference that the conveyance itself was not in writing since Tiualii Samoa paid the consideration and went into possession and used the land for plantations for more than 20 years, claiming it as his own.
“While the law seems to be otherwise in some states, the decided weight of authority is to the effect that a vendee of land in possession under a contract of sale by parol or in writing holds adversely to his vendor from the *69moment of payment or performance of the conditions of the contract, although a deed is not executed, and if this possession is continued for the statutory period the purchaser acquires title by the statute of limitations.” 2 Corpus Juris 154 citing in support of the majority rule Dolton v. Cain, 14 Wall. 472, 20 L.Ed. 830 and Boone v. Chiles, 10 Pet. 177, 9 L.Ed. 388. In Gaoteote P. Foster et al. v. George Fiaalii, No. 11A-1952 (H.C.Am.Samoa) we approved the majority rule. “Where, however, the terms of the contract have been performed, the possession thereafter is adverse.” 2 Corpus Juris 153.
The evidence clearly showed that Tiualii Samoa has been in possession of Papaatai for more than 20 years — in fact almost 30 years — and that such possession has been actual, open, notorious, peaceable, exclusive, continuous, hostile and adverse. Under these circumstances any claims of the Te’o Family or of Taetafea have been outlawed through the operation of the statute of limitations and title at the end of such twenty year period vested in Tiualii Samoa, the proponent. Gaoteote Foster et al. v. George Fiaalii, supra; Maxwell Land Grant Company v. Dawson, 151 U.S. 586, 607; Vaimaona v. Mulitauaopele S., No. 58-1947 (H.C.Am.Samoa); Puailoa v. Leapaga, No. 64-1948 (H.C.Am. Samoa).
“The effect of the operation of the statute of limitations is to vest title to the property involved in the adverse possessor.” Lauvale Family v. Pauesi and Fiamaua, No. 22-1949 (H.C.Am.Samoa). Sec. 907 of the A. S. Code prescribes 20 years as the statutory period governing acquisition of title by adverse possession. We find that the land Papaatai is the individually owned property of Tiualii Samoa.
DECREE
Accordingly it is ORDERED, ADJUDGED and DECREED that the land Papaatai in Pago Pago, as shown on *70the survey accompanying the application to register the same, shall be registered as the individually owned land of Tiualii Samoa. The Registrar of Titles will be advised of this decree.
Costs in the sum of $12.50 are hereby assessed against Yiavia and a like amount against Sione Poti and Suafoa. Total costs $25.00. Costs are .to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485182/ | OPINION AND ORDER
OPINION OF THE COURT
MORROW, Chief Judge.
This is a petition by certain members of the Mauga family to remove Palepoi as matai of the Mauga family.
On December 22, 1952 Mauga Palepoi was convicted of a felony, viz: smuggling alcoholic liquor into American Samoa and illegally possessing the same, in violation of Sec. 1327 of the A. S. Code. He was sentenced to pay a fine of $50.00 and to serve 3 months in jail. This was his third conviction. In 1924 he was convicted of assault and battery and sentenced to pay a fine of $100.00 and $25.00 costs while in 1946 he was convicted of illegally possessing alcoholic liquor and sentenced to pay a fine of $150.00 or go to jail for six months. It is claimed by the petitioners, in view of these convictions and an alleged very poor general reputation, that Palepoi should be removed as matai of the Mauga family.
It should be stated that upon his having been sentenced to jail for this third offence the Governor granted him a stay of execution of the jail sentence in order to afford the family an opportunity to bring proceedings to remove him *72from the Mauga title so that if he should be removed he would not take the title to jail with him, [and] thereby bring disgrace upon the members of his family.
The members of the Mauga family seeking Pale-poi’s removal as matai proceeded under Sec. 934 of the Code, the applicable part of which section reads as follows:
“Whenever three-fourths of all adult persons in a family desire the removal of the matai, and they so state their desires to the Registrar of Titles in writing, setting forth their reasons, a notice to that effect, containing all signatures shall be posted for thirty days in the usual manner. A copy of such notice will be furnished to the matai and upon his request he will be given a hearing on the subject before the High Court of American Samoa. If, within a reasonable time no hearing is requested by the matai, or if upon hearing, no sufficient reason is shown to the Court why the matai should not be removed from office, such fact will be certified by the Court to the Registrar of Titles and the Registrar of Titles will remove the name of the matai from the records of matai titles.”
The petition was signed by 168 persons claiming to be members of the Mauga family. The petition and signatures were posted according to law and a copy given to Mauga Palepoi. Within a reasonable time he requested a hearing before the High Court.
The petitioners claim that they constitute at least three-fourths of all adult persons in the Mauga family. Mauga Palepoi claims that they do not.
A person reaches his majority in American Samoa at eighteen. Sec. 978, A. S. Code. Thirty-nine of the petitioners indicated after their respective signatures that they were less than 18 years of age. There was no evidence to the contrary. We consider that these 39 signatures on the petition should be disregarded. That leaves 129 signatures to consider. Mauga who has been the matai for 18 years testified that only 10 of the signers on the petition were true family members. Fesagaiga, a blood member of *73the family and a principal witness for the petitioners as well as counsel for them, when asked by the Court as to how many blood members there were in the Mauga family, estimated that there were about 500 in all and of these he estimated that 400 were adult blood members.
Of course those related by blood to the title are members of the family. But there are others also. A Samoan marries outside his clan. Consequently when a young man marries, either his wife comes to live with him in his family or he goes with her to live in her family. Under Samoan customs both are considered members of the family in which they live. This results in those who are called “married persons to the family” being family members although they have no blood of the family in their veins. They are family members but not blood members.
Mauga is a very high title. Related to it but not by blood are certain chiefs in Pago Pago who constitute the Tei, Anoalo, Nofofanau, Anoaloifale and Launiusaelua. On account of the relationship between these chiefs and the Mauga title Mauga claims that such chiefs and their family members are members of the Mauga family and that all such persons should be counted in determining whether three-fourths of the adult members of the family have petitioned for Mauga’s removal. While the evidence indicates that these chiefs do have some historical connection with the Mauga title and in certain circumstances something to do with the selection of a Mauga, we do not believe that they and their family members are members of the Mauga family in the sense that the word “family” is used in Sec. 934 of the Code. We think the word “family” as used in that section is intended to include only those persons related by blood to the title, married persons to the family (as that phrase is clearly understood in American Samoa) plus an occasional person who may be actually living in the *74family on family land, rendering service to the title and who is considered by the family as one of its members. Such- occasional persons are very rare.
If Fesagaiga’s estimate of 400 adult blood members of the family be twice the actual number and if all of the 129 adult signers on the petition are blood members (and not only 10 of them as claimed by Mauga) then it is very apparent that three-fourths of the adult members of the family have not signed the petition as required by Sec. 934. Three-fourths of 200 (which is one half of Fesagaiga’s estimate of the 400 adult blood members) is 150 which is 21 more than 129. And if we take Fesagaiga’s estimate of 400 as correct, then the 129 (conceding for the sake of argument that all of the 129 are adult blood members) fall short by 171 of being three-fourths of 400 (three-fourths of 400 being 300).
Mauga filed a list of 549 persons which he claimed to be members of the Mauga family and which the evidence indicated opposed his removal. Some of the signatures on the list of 549 were obviously written by the same hand and Mauga admitted that he wrote 64 of them himself. It was very clear from the evidence that many members of the family did not wish to be involved either for or against the removal of Mauga, as matai and their names do not appear either on the petition or in the list of 549. We, of course, must consider the adult members of the family whose names do not appear on either list as well as those whose names are on the lists. Section 934 reads “Whenever three-fourths of all (emphasis ours) adult persons in a family desire, etc.” and not “Whenever three-fourths of all adult persons in a family who are included in lists, etc.”
Even if it be conceded for the sake of argument that all of the 129 adult signers on the petition are blood members of the Mauga family, the judges are unanimously of the opinion that these 129 do not constitute three-fourths of *75all the adult persons in the Mauga family. In order that the 129 should constitute three-fourths of all the adult members there could not be more than a total of 172 (three-fourths of 172 is 129) adult members in the Mauga family altogether. If the 129 are three-fourths of all the adult family members, that would mean that there could not be more than 43 (172 less 129) adult members who did not sign the petition. We are satisfied from the evidence (and particularly from the estimate of witness Fesagaiga, counsel for the petitioners and a blood member of the family, that there are 400 adult blood members — and this does not count married persons to the family) that there are many more than 43 adult blood members who did not sign the petition.
It is our conclusion from the evidence that three-fourths of all the adult persons in the Mauga family did not sign the petition as required by Sec. 934 of the Code.
It follows, therefore, that the petition to remove Mauga Palepoi as the matai of the Mauga family should not be considered on the merits, and that it should be dismissed.
ORDER DISMISSING PETITION
Accordingly it is ORDERED that the petition filed in this case to remove Mauga Polepoi as the matai of the Mauga family be and it is hereby dismissed.
Costs in the amount of $100.00 are hereby assessed against Asuega and Fesagaiga, the same to be paid within 60 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485183/ | OPINION AND DECREE
OPINION OF THE COURT
MORROW, Chief Judge.
Alisa Poialii filed a petition praying for a mandatory injunction requiring Olotoa to remove his boat house from land which she claimed to own; also to enjoin said Olotoa from using a path, or road, across the same land to Olotoa’s house situated on the shore adjoining said land.
At the hearing it developed that the land involved had been the property of Wesley Foster now deceased and that Alisa Poialii, who has since remarried, was his widow and that Daniel Foster and Samuel Foster were their only children. Samuel died unmarried and without children. Upon the foregoing appearing to the Court from the evidence, Daniel upon motion was substituted for his mother Alisa as plaintiff.
The land on which the boat house stands and across which is the path, or road, hereinbefore referred to, is a part of a larger tract at the headwaters of Pago Pago bay named Lotopesega through which runs the main highway from what was formerly the Naval Station to Pago Pago. On March 31, 1897, the Supreme Court of Samoa vested title to the land Lotopesega in Jane Sophia Foster by Court grant, No. 852, recorded in Vol. 1, Court Grants at pages 169-170. Jane Sophia Foster devised a part of Lotopesega to her grandson Heman by her will recorded in Yol. 1, Miscellaneous Register at pages 271-272, using this language, “I give, devise and bequeath to my grandson He-man that piece of my land on the inland side of the main *78road in Pago Pago extending from Wolbert’s leasehold to the little creek.” The land referred to in the will was Lotopesega. It borders on the headwaters of Pago Pago bay.
Some years after Jane Sophia Foster’s death, Heman’s father, Fanene, apparently considering the land which had been devised to his son as his own, conveyed it to one Teutnsi, who went into possession thereof and continued in such possession for more than 20 years, claiming the land conveyed as his individually owned property. In the case of Gaoteote Foster et al. v. George Fiaalii, No. 11-1952, the High Court held that this land devised to Heman became the property of Teutusi through adverse possession. Teutusi’s heirs let George Fiaalii (who is Olotoa and the defendant in this case) into possession of the part of Lotopesega which was devised to Heman.
Jane Sophia Foster by her will devised the part of Lotopesega on the seaside of the road to her son Wesley Foster, the father of Daniel, the plaintiff. This devise reads as follows: “I give, devise and bequeath to my son Wesley Foster all that piece of my land in the village of Pago Pago on the seaward side of the main road together with all buildings, etc., appertaining thereto.” As heretofore stated, the main highway running from the former naval station to Pago Pago intersects the land Lotopesega and it is the road referred to in said will. Wesley Foster died about 1944 devising this same land on the seaward side of the road to his sons Samuel and Daniel. As heretofore stated, Samuel died unmarried and without children. There was no evidence that he left a will. Under the law of inheritance his undivided interest in the land passed to his brother Daniel. The Court viewed the land Lotopesega in the presence of the parties to this case during the hearing. It is obvious to us from the testimony of the witnesses and what we observed that defendant Olotoa erected a boat house on the seaward side of the land Lotopesega which *79side is now the property of plaintiff Daniel Foster. Foster has the right to have Olotoa remove said boat house from his premises.
Sometime during the recent war defendant Olotoa erected a house between the low tide mark and the high tide mark on shore land adjoining Foster’s land. The erection of said house involved a considerable sum of money. We are convinced from the evidence, however, that prior to the erection of the house, Wesley Foster and his wife Alisa gave Olotoa permission to use the path or road across what was then Wesley Foster’s land. The path or road across the land ran from the main highway to the house. In reliance upon this permission, Olotoa built the house and since the war has built additions to it.
During the course of the hearing, Foster indicated that he desired the Court to issue an order to Olotoa requiring Olotoa to remove his house. We shall consider his request as an amendment to the petition originally filed by his mother Alisa.
We think that .the land below high tide mark on which Olotoa built his house belongs to the Government and not to plaintiff Foster. “By the common law, both the title and the dominion of the sea, and of rivers and arms of the sea, where the tide ebbs and flows, and of all the lands below high-water mark, within the jurisdiction of the crown of England, are in the king. Such waters, and the lands which they cover, either at all times, or at least when the tide is in, are incapable of ordinary and private occupation, cultivation, and improvement; and their natural and primary uses are public in their nature, for highways of navigation and commerce, domestic and foreign, and for the purpose of fishing by all the king’s subjects. Therefore the title, jus privatum, in such lands, as of waste and unoccupied lands, belongs to the king, as the sovereign; and the dominion thereof, jus publicum, is vested in him, as the *80representative of the nation and for the public benefit.” Mr. Justice Gray in Shively v. Bowlby et al., 152 U.S. 1, 11; 14 U.S. Sup. Ct. Rep. 548, 551. Section 1 of the Code of American Samoa provides that “The following are declared to be in full force and to have the effect of law in American Samoa: (a) such parts of the Constitution and such laws of the United States of America as shall, by their own force, be in effect in American Samoa; (b) this Code of Laws of the Government of American Samoa, amendments thereto, and executive orders, promulgated by the Governor of American Samoa; (c) so much of the common law of England as is suitable to conditions in American Samoa and not inconsistent with the aforesaid.” No part of the Constitution, no law of the United States applicable in American Samoa, nor any statutory law of American Samoa is inconsistent with the common law of England on this subject. We believe that the common law of England governing ownership of the land between the high tide mark and the low tide mark is suitable to conditions in American Samoa. Since by that law the ownership of such land was in the king, it would follow that the land on which Olotoa built his house, being land below the high tide mark, is in the Government, and not in the adjoining landowner Daniel Foster. Therefore it follows that Foster has no right to have Olotoa remove his house, it not being on Foster’s land. In the United States “. . . after the American Revolution, the title to the shore below high-water mark became vested in the individual states as sovereigns, subject only to the restricted constitutional powers of control of the Federal government.” 56 Am.Jur. 871. We do not decide whether the land on which Olotoa built his house belongs to the Government of American Samoa or to the Government of the United States. It is not necessary.
The question still remains whether Foster is entitled to an order restraining Olotoa from using the path or *81road to the house. We think he is not. In our opinion, when Wesley Foster and his wife Alisa gave Olotoa permission to use such path or road and in reliance upon such permission, he built his house between the high and low tide marks, such permission being a license became irrevocable. “In many jurisdictions where a licensee has entered under a parol license and has expended money or its equivalent in labor, it becomes irrevocable, and the licensee acquires a right of entry on the lands of .the licensor for the purpose of maintaining his structures, or, in general, his rights under his license, and the license will continue for so long a time as the nature of it calls for____”
“The cases holding to this rule as to the irrevocability of certain licenses proceed on two distinct theories, one theory being that when the licensee expends large sums of money in making the improvement, and such expenditure is made without opposition by the licensor, the license becomes executed and, as such, irrevocable; and that, in fact, what was at its inception a license becomes in reality a grant. The other theory and the reason most frequently given is that after the execution of the license, it would be a fraud on the licensee to permit a revocation; and the principles of equitable estoppel are invoked to prevent what would work a great hardship in many instances.” 33 Am. Jur. 408. There is a line of cases holding that even though expenditures have been made in reliance on the license it may nevertheless be revoked. 33 Am. Jur. 410. We think the rule that the license becomes irrevocable where the licensee has expended money in reliance thereon making it inequitable to revoke it is the better rule and we have adopted it in prior cases.
DECREE
Accordingly, it is DECREED that Olotoa shall remove his boat house from that part of the land Lotopesega which *82is the property of Daniel Foster, such removal to be made within thirty (30) days.
The amendment to the petition asking for an order requiring Olotoa to remove his house from the shore adjoining the land Lotopesega is hereby denied; and that part of the petition praying for an order to enjoin Olotoa from using the path or road leading from the main highway across the land of Daniel Foster on the seaward side of the highway to Olotoa’s house is likewise denied.
Court costs in the sum of $12.50 are hereby assessed against Olotoa, the same to be paid within thirty (30) days.
Olotoa is hereby ORDERED to pay to Alisa Poialii $5.00, this being the amount of the fee paid by her in filing the petition. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485184/ | OPINION AND DECREE
Taliutafa pro se assisted by Faamausili.
OPINION OF THE COURT
MORROW, Chief Judge.
Taliutafa filed his application with the Registrar of Titles to have certain land in Tau, described as Lalopua in the survey accompanying the application for registration, registered as the communal family land of the Taliutafa title. Mulu filed an objection to the proposed registration claiming that the property was his own individually owned land. Laolagi filed an objection to the proposed registration and claimed the land in the right of Matautia. Levale filed an objection to the proposed registration claiming that a part of the land called Avasii was owned by her as an individual. Sotoa filed an objection claiming that the property offered for registration was the communal land of the Sotoa family. During the course of the hearing the Government of American Samoa filed its petition of intervention claiming that if the Court should find that the land which was the subject of the litigation was crown land then it was the property of the Government of American Samoa.
It was stated by Chief Justice Wythe in the case of Levale et al. v. Toaga (No. 26A-1945, High Court of American Samoa) that “The question of title to real estate in American Samoa is always a difficult one to solve for the reason that in most cases there is no recorded title to, nor description of the property. Title to real estate is generally proved by family tradition.” There is no recorded title to the property involved in this case. Consequently the Court must rely mostly upon family tradition to ascertain ownership and that has been the practice in similar cases here for many years. In this case the tradition goes back hundreds of years. Each of the parties, with the exception *85of .the intervenor and Levale, tried to establish ownership through the tradition of his own family with respect to the land. Consequently, the Court heard four different traditions, no two of which were the same.
Taliutafa claimed that the land described in the survey as Lalopua was one piece composed of three smaller pieces, viz., Avasii, Lalovi and Lalopua. The other claimants claimed that these three smaller pieces were entirely separate, having no connection with each other.
In the case of Levale et al. v. Toaga, supra, the Court decided that the land known as Avasii was the property of Levale. In view of the evidence in this case, we think that the decision was correct. While Sotoa claimed in this case that Avasii was the communal family land of the Sotoa title, nevertheless, the record of the testimony in the 1945 case shows that he himself testified that his people had given that very piece of land to Levale. Levale is, we believe, a member of the Sotoa family, and that the family should give her the land Avasii is quite understandable. It appears from the evidence in this case that Levale’s parents had used the land Avasii for many years, that some of her ancestors are buried on it and that she herself has used it for a number of years. In view of the Court’s decision in the 1945 case and of the evidence before us, we believe and we hold that Avasii is the individually owned land of Le-vale. We can see no reason for disturbing the decision in the 1945 case.
While there is considerable difference in the various family traditions introduced in evidence with respect to Lalopua, all of them have a number of elements of agreement. It is an historical fact that Manua, composed of the islands of Tau, Olosega and Ofu, constituted an independent kingdom for several hundred years preceding the cession of the islands by the king and his chiefs to the United States in July 1904. The tradition in the Sotoa family is to *86the effect that there were about thirty-five Tuimanuas and that their pule covered the period from about 839 A.D. to the time of the cession in 1904. The Sotoa tradition was also to the effect that during this time the land Lalopua was occupied and used by these kings. It had on it a house called the Faleula. The king and his councilors met in the Faleula for the transaction of the king’s business as a sovereign. Tuimanua Tauveve, Tuimanua Elisara, Tuimanua Alalamua and Queen Margaret, who was also a Tuimanua have their graves on Lalopua. These graves are well marked. There was evidence that other Tiumanuas are buried on Lalopua in unmarked graves. We believe from the evidence that the Tuimanuas resided on Lalopua although there was some evidence that some of the thirty-five did not actually occupy the land for residential purposes. The Tuimanua was not a matai, he was a king. Tuimanua was. a king’s title, not a matai title. Sotoa in his written statement to the Court, duly filed, stated that Lalopua was known as “the crown estate.” He testified that “Whenever he (Sotoa) is granted the crown he came and reside in Lalopua which is the land called the land of the crowns.” In response to the question “Then it is correct to say that Tuimanuas were crowned in Lalopua?” Sotoa answered, “Yes.” He testified in the Levale v. Toaga case, supra, that Lalopua was Tuimanua land. Sotoa testified that the crown was kept in a small cage-like affair also called the Faleula and that this small Faleula containing the crown was kept on Lalopua. Itulagi, a member of the To’oto’o, in response to the question “Now, is Lalopua a crown land?” answered “It is a crown land.” He also testified that the Tuimanuas resided in Lalopua. Fa’amausili, another member of the Tootoo, claimed that the Anoalo family was established by Tuimanua Moaatoa (one of the late Tuimanuas) and that his descendants constituted its membership. Leota, a blood brother of Sotoa, testified that *87the Anoalo family was established about 840 A.D. by Sotoa Aliimanaia (claimed by Leota to be the first Tuimanua to occupy Lalopua) and his brother. It would seem if Anoalo means descendants of kings, which it undoubtedly does, that there would be as many Anoalo families as there were kings who had descendants; and presumably most of the thirty-five Tuimanuas did have descendants and therefore there would be many Anoalo families. Mulu is a descendant of Tuimanua Moaatoa. It appears to us from the weight of the evidence that Lalopua was Tuimanua land, crown land, for several hundred years before the establishment of the Anoalo family in which Taliutafa claims membership and also for several hundred years before the establishment of the Anoalo family in which Laolagi and Moetoto (who represents claimant Mulu in this case) claim ownership.
Taliutafa claims that the Court in the case of Silia v. Chris Young (No. 5-1925, High Court of American Samoa) decided that the Anoalo family was the owner of the land Lalopua. The Court in the opinion in that case said “The Court also finds that the Anoalo family are entitled to the custody of the land Lalopua and that in the absence of Chris Young from Manua his brothers and sisters as members of that family and as lineal descendants of the Tuimanuas have the right to the custody and control over this land in the same measure and degree as they have had in the past.” It is to be noticed that this is not a statement at all that the Anoalo family is the owner of Lalopua. It merely says that the Anoalo family has the same right with respect to custody and control that it had in the past without deciding what the intent of that right was. The Silia case involved the right to the matai name Taliutafa, not the ownership of the land Lalopua. Chris Young filed an application to be registered as the Taliutafa and Silia filed an objection and became a candidate for the name himself. *88The only question before the Court was whether Silia or Chris Young, or neither of them, should be given the name. The Court decided that neither should be given the name. The statement about the right and custody and control of Lalopua was obiter dictum made by the Court as a passing remark. It was not decision as the case in no way involved the ownership of the land Lalopua but only the right to the matai name Taliutafa. Furthermore, a judgment is binding only on the parties in it and their privies. Strangers are not bound by a judgment. Harris v. Hardeman, 55 U.S. 334, 14 Howard 334, 14 L.Ed. 444. It is elementary law that a judgment or decree affecting property rights binds only the portion before the Court and those who stand in privity with them. In re Howard, 76 U.S. 175, 9 Wall. 175, 19 L.Ed. 635. Even if the statement in the opinion in the Silia case were a judgment, which it is not, such judgment would not be binding upon objectors Mulu, Levale, Laolagi, Sotoa or the Government of American Samoa, intervenor, they being neither parties in the Silia case, nor privies. Furthermore the Court’s statement was based upon the testimony of Chris Young (now Taliutafa) and his sister Toaga without the objectors in the present case having had an opportunity to give testimony, they not being parties.
It is our conclusion from the evidence, and we think that the evidence was overwhelming, that Lalopua was crown land and the property of the Tuimanua in his capacity as king and sovereign. The Tuimanuas did not inherit their title. The kingship, as we have already said, was not hereditary. The Tootoo (Sotoa testified the Tootoo and the Sotoa) and the Faletolu selected the Tuimanua and he might come from any family; might be anybody. Lalopua was clearly not matai land.
The question now is, in whom did the title to Lalopua vest when the kingship came to an end in 1904 upon the *89cession of the Manua Islands to the United States by Tuimanua Elisara and his chiefs? The cession of the Islands passed the sovereignty from the Tuimanua to the United States of America.
When the king of France lost his throne in 1870 and the Republic of France was established, the royal property, that is the property owned by the king as king, was vested in the Ministry of Finance of the new French Government. The decree as vesting it reads in part as follows: “The buildings of the crown, the Movable and immovable property of the crown, are vested in the Ministry of Finance.” When the German Kaiser lost his throne at the end of World War I, the property which he owned in his capacity as the king of Prussia was by decree vested in the new German Government. A similar thing happened in Austria, a law of April 3, 1919 providing that “The Republic of German-Austria is the owner of all movable and immovable crown property located in her territory. . . .” And when the king of Spain lost his throne a decree provided that “All patrimonial property of the crown is transferred to the State.” It should be noticed from the foregoing instances that the transfer of property to the new government was effected by an internal law proclaimed by the new government.
While these instances can not serve as precedents for determining what became of the crown land of the Tuimanua, nevertheless, they do show what, in these particular instances, property owned by a king as a king was vested in the succeeding government. However, in none of these cases was property which was owned by the king as a private individual vested in the succeeding government.
We think that when the kingdom of the Tuimanua came to an end and the sovereignty of the king (Tuimanua) passed to the United States of America, then, pursuant to the principles of international law, the land Lalo*90pua, being crown property owned by the king in his capacity as king and sovereign, became, as the result of the cession, the property of the United States of America. The deed of cession from Tuimanua Elisara and his chiefs passed the sovereignty over the Manua Islands to the United States of America. The general rule of international law is that, unless otherwise stated in a treaty of cession, private property remains private property but the title to public property and crown property vests in the new sovereign. See I Moore’s Digest of International Law, p. 281; I Hyde’s International Law (2d Rev. Ed.), p. 381; 12 A.J.I.L. 475. The United States of America became the new sovereign.
Instances can be found in various treaties of cession between the United States and other countries in which public and crown property became the property of the United States. The treaty of cession between France and the United States, April 1803, ceding Louisiana, provided that the cession “included the designated lands belonging to Louisiana, all public lots and squares, vacant lands, and all public buildings, fortifications, barracks and other edifices which are not private property. . . .” The treaty of cession between Spain and the United States, 22 February 1819, ceding Florida provided that the cession included “the designated islands dependent on said provinces, all public lots and squares, vacant land, public edifices . . . which are not private property.” The treaty of cession between the United States and Russia, 30 March 1867, ceding Alaska declared that the cession included “the right of property in all public lots and squares, vacant land and all public buildings . . . which are not private individual property.” The cession of the Danish West Indies from Denmark to the United States in 1916 provided that “This cession includes the right of property in all public, government, or crown lands____”
*91The cession of Manua to the United States in 1904 in no way affected private land titles. Land which was the property of a matai title prior to the cession remained the property of the same matai title after the cession. When the sovereignty of a country is transferred, the inhabitants are protected in the possession of their private property and such is the law of nations. “The cession of a territory by its name from one sovereign to another, conveying the compound idea of surrendering at the same time the lands and the people who inhabit them, would be necessarily understood to pass the sovereignty only and not to interfere with private property.” Chief Justice Marshall in the United States v. Percheman, 32 U.S. 51, 7 Pet. 51, 8 L.Ed. 604, 617. A cession does not impair the rights of private property. Such rights are consecrated by the law of nations. United States v. Juan Moreno, 68 U.S. 400, 1 Wall. 400, 17 L.Ed. 633, 635.
It is our conclusion from the evidence that the land Lalopua also includes a small piece of land known as Lalovi (designated as such in the northeast corner of the survey) and that as a part of Lalopua it also became the property of the United States upon the cession of the Islands, it being crown land.
The survey shows that the surveyed tract includes .747 of an acre slightly less than three-quarters of one acre. Lalopua and Lalovi together make up approximately one-half of the surveyed tract and consequently they have an area of about three-eighths of an acre. The remainder of the surveyed tract is made up of the land Avasii.
We do not believe .that the crown land Lalopua (including Lalovi) passed to the government of American Samoa upon the cession of the Islands since the cession was to the United States of America and not the Government of American Samoa. The succeeding sovereign was the United States of America, not the Government of Ameri*92can Samoa. Lands in Hawaii which belonged to the sovereign passed to the United States as part of the public domain on the annexation of those islands by the United States. Liliuokalani v. United States, 45 C.Cl. 418.
Section 905 of the Code provides that no land shall be registered unless the description clearly identifies the boundaries of the land by metes and bounds.” We are unable to determine from the survey and the evidence precisely the location of the boundary between Avasii and Lalopua (including Lalovi). We are satisfied from the evidence, however, that such boundary is a line crossing the surveyed tract and lying about eight or ten feet west of the Tuimanua graves (as marked on the survey) with a bearing of approximately eight degrees West of Ñorth (i.e. approximately parallel to the eastern boundary of the surveyed tract).
Being unable to determine the exact location of the boundary between Avasii and Lalopua (including Lalovi) we cannot order the registration of any part of the surveyed tract, as above stated, since Sec. 905 of the Code requires that the description of registered land clearly identify “the boundaries of the land by metes and bounds.” Consequently our decree must be limited to what shall be done with the application of Taliutafa to have the surveyed tract registered as the communal family land of the Taliutafa title. Our conclusion is that it should be denied.
DECREE
Accordingly it is ORDERED, ADJUDGED and DECREED that the application of Taliutafa to have the surveyed tract (described by him as Lalopua in the survey accompanying the application) registered as the communal family land of the Taliutafa title be and the same is hereby denied.
The Registrar of Titles will be advised of this decree.
*93Costs aggregating $210.00 are hereby assessed against Taliutafa, Sotoa, Mulu and Laolagi, each to pay $52.50 within sixty days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485185/ | OPINION AND DECREE
OPINION OF THE COURT
MORROW, Chief Judge.
T. Mulitauaopele and twenty-eight others claiming to be members of the Paleafei family filed a petition to enjoin Paleafei, matai of the Paleafei family, from permitting a church building to be erected on land of the Paleafei family alleged to be the residential site of the Paleafei title.
It appeared from the evidence that Paleafei had given permission to the faifeau of a certain church to erect a church building on land of the Paleafei family in Laulii and .that construction of the church had been started. However, construction was halted within a day or so after the filing of the petition on August 5,1953.
That the place where the church was being built is a residential site of the Paleafei title is clear from the evidence. Paleafei himself at one place in his testimony claimed that the residential site is where the guest house of the Paleafei now stands rather than where the church was being built. However, taking his testimony as a whole, we are convinced therefrom that the residential site is where the church building was being put up and not where the guest house is located. It appeared from the evidence that a school building formerly stood on the location where the *95church was being built and .that it was removed at the instance of Paleafei in order that he might build his residence as a matai of the Paleafei family there. Referring to the place where the church was being built, Judge Malepeai asked Paleafei the following question: “But why do you authorize the Methodist Church to go ahead with the construction but you had in your own heart that you are going to put your living house there?” to which Paleafei replied, “As I have answered Judge Noa’s question, I rather have the church house put on there .than my living house.” In response to the question “Why did you have it (the school house) moved across the road for?” Paleafei answered “The reason why they took the school house on the other side of the road because I had in mind to build a house in that place (the place in dispute) .to live in.” And again in his testimony Paleafei said “As I have stated yesterday, that I had the intention to build my living house there . (where the church was being built), but I prefer the house for God and leave mine behind. And it’s best for me to go and live in any other place or in any land of the Paleafei title.” These answers of Paleafei himself as well as other evidence show very clearly that the residential site of the Paleafei title is where the school house was and that that location is where the church was being built.
This Court knows judicially that the custom in most of the families in American Samoa is for the matai to have a particular place for his living or residential fale. And the succeeding matais continue to use that place for residential purposes. That is the custom with but few exceptions. It is a matter of family pride for a Samoan clan to have its matai reside on a particular piece of the family land and to have succeeding matais live in the same place.
Section 2 of the Code of American Samoa, among other things, provides that “The customs of the Samoans not in conflict with the laws of American Samoa or the *96laws of the United States concerning American Samoa shall be preserved.” There is no law of American Samoa, nor any law of the United States concerning American Samoa, contrary to the custom of the Samoans to have the matai occupy a particular piece of family land for residential purposes.
It appears that before Paleafei gave permission for the church to be built on the residential site of the Paleafei title, he called a meeting of the Paleafei family members in the village of Lauli'i. Eleven or twelve members attended and apparently they approved having the church built on the residential site. Shortly thereafter Paleafei went to different places in Tutuila to consult with some other members of the Paleafei family in regard to the matter. It appears from the evidence that he consulted with four other members. The evidence is conflicting as to whether those four other members agreed; nevertheless, the permission was given by Paleafei to put up the church on the residential site. Paleafei himself testified that there were about hundred-fifty members in the Paleafei family saying with respect to the number in the family “I guess it’s around hundred-fifty. . . .” Then he was asked, “Well, then, is it correct to say you have about hundred-fifty members of the Paleafei family scattered around the island?” to which he replied “Yes.”
If it be conceded that all of the fifteen consulted agreed, it would appear that only about ten per cent [of] the entire membership of the family approved the plan. Without objection Paleafei introduced in evidence a document purporting to be signed by various members of the Paleafei family approving his action in granting permission to have the church built. There are sixty-two purported signatures on the document. It appears from .the evidence that Paleafei signed a number of the purported signatures himself. One of the purported signers Letasi appears to be two *97yeárs old; Peni II and Meleli II appear to be three; Epa, Malatoese, Tolua S., Sifua, Sina, Leuia, and Afaese appear to be four. Obviously these young children weren’t able to write with the skill with which their signatures appear to be written on the document. Their purported signatures were written by other people. Three alleged signers appear to be seven years of age.
If it be conceded that all these young children who didn’t sign their names as well as the people whose names were signed by Paleafei favor the plan (and some of them are so young they could have no intelligent understanding of the matter involved) still the entire sixty-two do not constitute one-half of the about one hundred-fifty who constitute the membership of the Paleafei family. It is very obvious that Paleafei did not secure the approval of the majority of the Paleafei family before he gave the permission to have the church built.
The land on which the church is being built is not the private property of the Paleafei. It is clan property over which he as matai has certain control, but he does not have the power or authority under the customs of the Samoans to do what, in practical effect, is to give away a part of the family land without the consent of at least the majority of the family. It follows, therefore, that the permission, being unauthorized, should be recalled.
The pastor of the church which was being built claims that Mulitauaopele and the other members of the Paleafei family who objected to the building of the church on the residential site of the Paleafei title were interfering with the freedom of religion. The Code provides that “No law shall be enacted respecting an establishment of religion; or prohibiting the free exercise thereof. . . .” This, it will be observed, is a prohibition against the Government, not against individuals who object to the use of their land for an unauthorized purpose. There has been no law en*98acted prohibiting the putting up of any church or churches anywhere. Tele, representing himself and the other twenty-eight who joined with him in the case, said that they had no objection whatever to the use of other land of the Paleafei family for the purpose of erecting the very church which is sought to erect here. Misa, a member of the Paleafei family and one of the twenty-eight co-parties with Mulitauaopele, in his testimony said, “I as Misa I am perfectly willing to have the church house in any of the Paleafei land with the exception of this place (meaning the residential site of the matai).” And Tele told the Court that “wherever on any lands of the Paleafei family in their village of Laulii Tuai or the other side Laulii Fou this church house will be put on, we are absolutely satisfied, but not for this certain places is designated to be the residential place for our head. What is dear in our hearts is to upkeep the traditions of the Samoan people and also to upkeep our matai systems in everywhere we go. And this work began without the full consent of the whole family.” The objectors are not interfering with the freedom of religion under these circumstances. They have no objection whatever to the church being built on other land of the Paleafei title. They just object to its being built on the residential site of the matai with the approval of only a minority of the family.
We think the objectors headed by T. Mulitauaopele have the right to have the Samoan custom with reference to the residential site of the matai of the Paleafei family preserved in accordance with Section 2 of the Code heretofore quoted. Furthermore, we think from the evidence that Paleafei did not have authority to give the permission to have the church built on the residential site of the Paleafei title.
DECREE
Accordingly, Paleafei is hereby ORDERED to stop the further construction of the church building which has been *99started on the residential site of the Paleafei title in the village of Laulii, Tutuila. He is further ordered to pay T. Mulitauaopele $5.00 court costs.
Additional costs in the sum of $50.00 are hereby assessed against Paleafei, the same to be paid within 60 days to the Clerk of the High Court. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485186/ | OPINION AND DECREE
OPINION OF THE COURT
MORROW, Chief Judge.
Fereti filed his application with the Registrar of Titles to be registered as the holder of the matai name Le’i of Ofu. Tupua filed an objection to the proposed registration and became a candidate for the name himself.
*100It was clear from the evidence that both Tupua and Féreti meet the requirements of Sec. 926 of- the Code as amended and are eligible to hold a matai title.
Sec. 933 of the Code as amended reads as follows:
“Consideration Given by Court: In the trial of matai name cases, the High Court shall be guided by .the following in the. priority listed:
(a) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise the male descendant shall prevail;
(b) The wish of the majority or plurality of those members of the family related by blood to the title;
(c) The forcefulness, character, personality, and capacity for leadership of the candidate;
(d) The value of the holder of the matai name to the government of American Samoa.”
The undisputed evidence shows that Tupua is the son of Le’i Lelologatele and Vaoia who was the daughter of Le’i Moala. It is apparent that Tupua has one-fourth Le’i blood through his mother. Tupua claims that he has one-half Le’i blood through his father. Fereti claims that Le’i Lelologatele, being a married man to the Le’i family, had no Le’i blood in his veins and that, therefore, Tupua has no Le’i blood through his father. It is not necessary for us to decide whether or not Tupua acquired any Le’i blood from his father since, as will appear later on, Tupua has more Le’i blood in his veins, acquired from his mother Vaoia alone, than has candidate Fereti. Without deciding, we shall assume that Tupua acquired Le’i blood from his mother only. Fereti is the great-great grandson of Le’i E’e and has one-sixteenth Le’i blood in his veins. It is apparent, therefore, that Tupua, counting the one-fourth Le’i blood acquired through his mother Vaoia only, prevails over Fereti on the issue of hereditary right.
We shall next consider the issue of the wish of the majority of those members of the family related by blood to *101the title. Each of the candidates filed a petition with the Court purporting to be signed by those blood members of the family supporting his candidacy. There were 529 purported signatures on the petition for Tupua and 244 on the petition for Fereti.
Tupua after swearing that all of the purported signatures on the petition for him were signatures of blood members of the Le’i family admitted upon cross-examination that one of the signers Matila, born in New Guinea and without any Samoan blood in his veins, was not a blood member of the family. He also admitted that Utú was not a member. It was clear to us from his cross-examination that he had no knowledge one way or the other as to whether a number of signers for him were blood members of the family.
Fereti claimed that 504 of the 529 on Tupua’s petition were not blood members of the family. Fereti has spent practically all of his life in Ofu whereas Tupua has spent the last 18 years in Tutuila with only an occasional visit to Ofu. Obviously Fereti is in a much better position to know the blood membership of the family, particularly the young membership, than Tupua. We think that Tupua’s hesitancy and difficulty in answering questions on cross-examination as to the blood membership of the family arose in part because of his almost complete absence from the family for so many years. Le’i Siluano, 82 years old, the former holder of the title who resigned, testified that there was no Le’i Eleele, no Le’i Pule and that Le’i Toofala had no descendants. Over 200 of the signers on Tupua’s petition claimed to be blood descendants of these supposed three. Certainly Le’i Siluano, if anyone, was in a position to know the tradition of the Le’i family.
Tupua admitted that all but 27 of the 244 signers on Fereti’s petition were blood members of the family. The very great number (529) of purported signers on Tupua’s *102petition is a circumstance in itself raising a very substantial doubt that all of them are blood members of the family. In view of this obvious fact, of Le’i Siluano’s testimony, Fereti’s testimony, and the weakness of Tupua’s own testinony on cross-examination, we believe that a majority of the blood membership in the Le’i family favor the candidacy of Fereti. We conclude, therefore, that Fereti prevails over Tupua on the issue of the wish of the majority or plurality of the blood members of the family.
Tupua has lived in Nu’uuli for 18 years. He is the leading young man in his wife’s family (the Levu family) in Nu’uuli. He is a graduate of Poyer school and speaks English fairly well. He has had a clerical position in the Property Management Division of the Island Government for about 5 years. His salary is $105 per month. Prior to securing his present position, he worked for about 5 years for the Navy in the auto spare parts branch of the Ship Repair Unit. Prior to that time he was a school teacher for 12 or 13 years. His son, who is in the U.S.Armed Forces, •has made an allotment to Tupua of $60 per month. He also sells some copra and a few pigs and chickens which add roughly $200 a year to his income. He is an assistant LMS pastor in Nu’uuli.
Fereti has been the leading young man in the Le’i family for many years. He speaks little English. He, like Tupua, is a graduate of Poyer school. Fereti is the government copra clerk in Ofu. He receives a salary of $50 per month. He owns and operates a small store in Ofu. Also he sells copra, pigs and mats. His income in addition to his salary nets him something over $500 a year. Fereti is an assistant pastor in Ofu. He has rendered service to and for the Le’i title for many years. While Tupua has rendered some service to the title Le’i, naturally his service, since he has lived away from the family for 18 years, has not been nearly as continuous or extensive as Fereti’s service.
*103Fereti who has lived in the Le’i family all of his life, who has rendered much service to the title, and who has been the family’s leading young man for many years is obviously much better acquainted with the family and its needs than is Tupua who has spent most of his adult life in Tutuila with only an occasional visit to Ofu. Having lived away from the Le’i family for 18 years, it was not unnatural for Tupua to exhibit considerable confusion on the witness stand as to whether certain signers on his petition were blood members of the Le’i family. Fereti had no hesitancy about answering queries as to who were members and who were not. He knows the family and its needs. He has lived with the family, not away from it during most of his adult life.
The Court had an excellent opportunity to observe the personalities of the two candidates during the hearing. It is our conclusion from the evidence and our observation during the hearing that Fereti prevails over Tupua on the issue of forcefulness, character, personality and capacity for leadership.
The value of the holder of a matai name to the Government depends mostly upon his ability to look after the affairs of his family. That ability is necessarily measured by his forcefulness, character, personality and capacity for leadership. Since we have found that Fereti prevails over Tupua on that issue, we are forced to conclude that Fereti prevails over Tupua on the issue of the value of the holder of the name to the Government. Furthermore we think that a good copra' clerk in Ofu is just as valuable to the Government as a good clerk in the Property Management Division of the Island Government.
Since we find that Fereti prevails over Tupua on the second, third and fourth issues, Fereti should be awarded the name Le’i.
*104DECREE
Accordingly it is ORDERED, ADJUDGED and DECREED that Fereti shall be registered as the holder of the matai name Le’i of Ofu. The Registrar of Titles will be advised of this decree.
Costs in the sum of $43.75 are hereby assessed against Tupua, the same to be paid within 60 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485187/ | OPINION AND DECREE
OPINION OF THE COURT
MORROW, Chief Judge.
The heirs of the Lemeanai Family filed their petition praying for the removal of Iosia from the land Foganono at Tafuna.
*105The government land records show that the land Foganono has been registered as the communal property of the Lemeanai Family. Iosia admitted that he is living on this land with his family and that he has built a palagi house and four Samoan houses on it. He and his family have lived on the land for several years and have plantations on it. He has been ordered by representatives of the Lemeanai Family to vacate the premises.
Iosia claims to be a member of the Lemeanai Family. He also claims that he entered upon Foganono and has made his home on it for several years upon the authority of Atualevao, a matai of the Lemeanai Family. The heirs claim that he entered upon the authority of Saiselu who, though not a registered matai, was the head of the family; that Saiselu only gave Iosia permission to put up a small Samoan house on .the land Foganono for his use when he should go out fishing. Saiselu passed away some years ago while Atualevao died in 1952. Consequently it is impossible to secure their testimony on pertinent matters relating to any permission given to Iosia to enter upon Foganono.
There was a very sharp conflict in the testimony as to Iosia’s membership in the Lemeanai Family. We think that the weight of the evidence favors the view that he is not a member of the Lemeanai Family, and we so find. Iosia was born on the island of Aunuu and is a member of the Taufi family there. He was a pastor in Iliili for a number of years. Under the customs of the church he would not have been assigned to the church at Iliili as pastor if he had been a member of the Lemeanai Family of that Village.
In accordance with the custom in Samoa Iosia was given a piece of land on which to have his plantations while he was pastor. That land was known as Saimealili. It was the property of .the Lemeanai Family. We believe from the evidence that Atualevao, a matai in the Lemeanai Family, did give him permission to put in plantations on Foganono *106and live there and we think that Saiseln, the head of the Family, may also have given him permission to put up a small Samoan house on Foganono for use in connection with his fishing. However, we believe from the evidence that permission given Iosia to enter upon Foganono was not given to him as a member of the Lemeanai Family. In other words, it was not a case of the matai assigning a piece of family land to a young man in the family for his use. Nor do we think the permission with respect to Foganono had any connection with Iosia as a pastor.
We believe from the evidence that in reliance upon .the permission given, Iosia did put in plantations and erect a palagi house (now in a state of disrepair) and some Samoan houses upon Foganono.
In the case of Sa-Lemeanai Family and Leasiolagi of Asu for the Fao Family v. Tomasi and Tulei of Iliili, No. 22-1951 (High Court of American Samoa) the facts were essentially the same as in the present case except that in that case the labor involved in preparing the land for plantations was much greater than in this case. In that case we said:
“Inasmuch as we find that Tomasi entered upon the land in accordance with a Samoan custom under the authorization of and with the consent of Malama, later confirmed by Vao the matai of the Salemeanai family, we think it would be unjust, even though we do find that the disputed tract is Salemeanai family land, to order Tomasi and Tulei* to surrender possession now leaving their plantations, the product of their hard labor, behind for the use of the Salemeanai people.”
We think it would be unjust to turn Iosia out of his houses and his plantations forthwith after he and his family have entered upon the land with permission of the matai and put in plantations and put up houses. Under the circumstances it would not be morally right to oust Iosia at once and to turn the plantations put in by him and the *107houses built by him, all the product of hard labor, over to the Lemeanai Family even though the plantations and houses are on Lemeanai land. We said in Tomasi and Tu-lei’s case, supra, “We think that they have a charge against the property under the circumstances” and we say in this case that Iosia has a charge against the land Foganono, he having put in plantations and erected houses on it in reliance upon permission.
We think, following the principle of our decision in Tomasi and Tulei’s case, supra, that the charge can best be liquidated by permitting Iosia to remain in the possession of the plantations and use the fruits thereof until January 1, 1956. At that time Iosia should vacate the property Foganono and, if he desires, remove his houses therefrom. Samoan houses can easily be taken down and moved and since the palagi house is on posts, it can likewise be removed. In the meantime Iosia should not convert any new land to plantations. The land could not be sold to satisfy the charge. Sec. 1205, Code of American Samoa.
DECREE
Accordingly it is ORDERED, ADJUDGED and DECREED that Iosia shall have the right to continue to possess, occupy, and use for plantation purposes that part of the land Foganono on which he now has plantations until January 1,1956 and shall also have the right to continue to use and occupy his houses thereon until January 1,1956 at which time he shall vacate the land Foganono taking his houses with him if he so desires. He shall leave such of his plantations as may be on Foganono on January 1, 1956 in an unharmed condition.
Costs in the sum of $25.00 are hereby assessed against Iosia, the same to be paid within 60 days.
Tulei was Tomasi’s wife. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485189/ | OPINION AND ORDER DISMISSING PETITION
OPINION OF THE COURT
MORROW, Chief Judge.
The plaintiffs Tauoa et al. filed their petition seeking an order restraining the further construction of a church in *116the village of Nu’uuli. The church building was almost completed prior to the filing of the petition. The evidence in the case shows that the church is being erected upon the land of four families, viz., the Sialega Family, the Tago Family, the Maluia Family and the Lagafua Family. The head matais of these four Families consented to the building of the church before construction was started. The Sialega Family approved the consent given by Sialega; the Tago Family approved the consent given by Tago. The last Maluia passed away some time ago and no new Maluia has been chosen. However, the Maluia Family members acting through Taufetee, who is a member of the Family, consented to the building of the church. We believe from the evidence that the members of the Lagafua Family living in Nu’uuli with Lagafua also consented. The plaintiffs complained because Lagafua did not call a family meeting and obtain consent of the Family before giving his consent to the building of the church on land, part of which is the communal family land of the Lagafua Family.
The evidence shows that the Lagafua Family has no objection to having the church built. In fact they approve of it as do the members of the Sialega and Tago and Maluia Families. Tauoa, who was the chief witness for the plaintiffs and who is their leader in this case, himself testified “They (the Family of Lagafua) want the church house to be built in their village and members of the Lagafua Family are attending the construction of the house.” And again Tauoa in response to the question “In other words, you don’t object to the building of the church?” answered “No.” Tauoa filed with the petition a list of 73 signers in Tutuila and 17 in IJpolu. He said the 90 were members of the Lagafua Family. The Court inquired of him whether these signers objected to the building of the church. He answered “No, they do not object to the construction of the church house, but they object to the authority of their ma*117tai.” We are satisfied from the evidence that the plaintiffs have no objection whatever to having the church built. What they object to is the conduct of their matai in consenting to have a part of the church constructed on Lagafua communal land without his having first procured consent of the Family.
In our view it makes no difference whether the Family in a case like this consents to the action of their matai before he acts or ratifies his action afterwards. Subsequent ratification is equivalent to prior authorization.
Lagafua testified that church was not being built on any part of the Lagafua communal lands. However, we think the weight of the testimony is to the effect that a part of Lagafua communal family land is being used for the construction of the church. However, in the view we take of the case it makes no difference whether Lagafua’s testimony is correct or not. All four families want the church built.
Since it is apparent to us from the evidence that Tauoa and the other plaintiffs have no objection to the building of the church and since other members of the Lagafua Family do not, as well as the members of the Sialega, Maluia and Tago Families, we think that a restraining order should be denied and that the petition of the plaintiffs should be dismissed.
It may very well be that Lagafua should have called a family meeting in accordance with Samoan customs before giving his consent to the building of the church. We think he should have. And we suggest to him that as matai of the Lagafua Family he call a family meeting for the purpose of re-establishing peace and harmony in the Family.
It should be understood that the sole matter decided in this case is whether or not an order restraining the further construction of the church should be made, and it is our decision that it should not be. The petition should be dis*118missed, since, according to the evidence, none of the Families on whose land the church is being built has any objection to its construction, but instead want it built.
ORDER
Accordingly, the petition of the plaintiffs should be and it is hereby dismissed.
Costs in the amount of $12.50 are hereby assessed against Tauoa, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485190/ | OPINION AND ORDER DISMISSING PETITION
OPINION OF THE COURT
MORROW, Chief Judge.
Fesagaiga filed his petition claiming in substance that he and his family members had entered upon and were in possession of a part of the land known as Mafa which had been unoccupied “and growing wild and had been so for over 8 years,” that they had “cut down the wild and heavy *120forest and planted and put it under cultivation a part of the aforesaid land,” and that family members of defendants Alo-Pepe and Suesue had cut down and damaged the plaintiff’s plantations on the land and threatened his two sons with a shotgun and bush knives. The plaintiff prayed for an injunction restraining the defendants from entering upon the area or interfering with the new plantations on it and for damages. In the alternative plaintiff asked that if the Court should find that the land was the property of the defendants, then he should be awarded the sum of $200.00 for the benefit conferred upon the defendants in cultivating their premises. The land adjoins the highway from Pago Pago to Fagasa and is at the top of the ridge between these two villages. Mafa is a large tract of land on the Pago side of the ridge and only a part of it is involved.
The proper solution of this case hinges on who is the owner of the land. The right of possession follows ownership. Fesagaiga testified that the land was first cleared from the bush in 1918 by the Asuega Family members of which the plaintiff is one. He further testified that the Asuega Family members put in plantations on the land in 1918 and then continued to occupy and use it up to about 1922; that later Fagasa people put in taro and bananas on it; that they vacated it and later the Asuega people put in plantations. He testified that the Fagasa people cultivated the land from 1923 to 1927 when Falealili, an Asuega man, began to cultivate it; that Falealili vacated it about 1930; that it was vacant from time to time and used sometimes by the Fagasa people and at other times by the Asuega people. Finally in September or October 1953, after the land had been vacated for some years, the plaintiff and his aigas cleared it of light bush and vines and put in plantations. During the war the land in dispute was occupied by the U.S. Marines.
*121Some witnesses for the plaintiff testified that the land was first cleared by the Asuega people before the Government was established in 1900. This does not square with the testimony of Fesagaiga himself who in response to the question “Do you know when this land was first cleared of the big trees, I mean the trees that were growing on it originally before anybody took possession of it?” answered “In 1918 Chief Asuega Afasa, deceased, was a matai of the Asuega Family then, and Talking Chief Falealili also was a junior matai of the Asuega Family while I was living in there in that Family, during then we usually went up to this same property and cut down the wild forest up there.” He was then asked “Now, was that the first time the forest had ever been cut on this land?” to which he answered “That is the best of my knowledge, your Honor.” A witness for the defendants testified that the land was first cleared by Alo Taisi before the Government was established in 1900. Alo Simanu, who is a co-holder of the title Alo with defendant Alo-Pepe, testified that the tradition in his Family was that Alo Taisi and his brother Alo Feso cultivated the land in dispute before the Government was established. The Court called as a witness Pulu of Pago Pago who is 70 years of age or over. He testified that the land was first cleared from the bush by Alo Taisi and that this occurred before the Government was established in 1900. Pulu has some land immediately below the cliff which cliff is just below the land in dispute and he has been in the position to know the facts in connection with clearing it. Pulu is a member of the Asuega Family. While the evidence is conflicting, we believe that the weight of the testimony favors the view that the land in dispute was first cleared from the wild bush by Alo Taisi and his aiga and that this occurred before the Government was established.
We have held a number of times that title to bush land is acquired by occupation thereof under claim of own*122ership. In the case of Soliai v. Lagafua, No. 5-1949 (H.C. of Am. Samoa) we said “Occupation coupled with a claim of ownership will establish ownership to what was bush land before occupation. See 2 Blackstone 8. The view that the occupant who first takes possession of land with the intention of having it as his own thereby becomes the owner of it is approved in Maine’s Ancient Law (3rd .Am. Ed.) at p. 238. This doctrine of acquisition of original title by the first occupant, accompanied by a claim of ownership, was approved by this court in the case of Faataliga v. Fano, No. 80-1948 (H.C. of Am. Samoa).” In the case of Soliai v. Levu, No. 6-1949 (H.C. of Am. Samoa) we said “This court judicially knows that when the members of a Samoan family took possession of bush land and used it in the early days, ownership was claimed not by such members in their own right but in behalf of their matai as owner of the communal family property.” And we said in Leasiolagi v. Fao, No. 12-1949 (H.C. of Am. Samoa) that “And it was the custom for the matai and members of his family clearing bush land and occupying it to claim it as communal family land and not as the individually owned land of either the matai or the family members occupying it.” It is our conclusion from the evidence that the Alo Family became the owner of the land in dispute through first occupancy coupled with a claim of ownership before the Government was established. Of course, the cession of the Islands to the United States Government in 1900 did not affect private land titles. A Samoan family that owned land before the cession owned it after the cession. The effect of the cession was to transfer the sovereignty over the Islands to the United States Government.
Having reached the conclusion that the Alo Family owned the land through occupancy coupled with claim of ownership prior to the establishment of the Government, we are next met with the question as to whether or not the *123plaintiff and his aiga have acquired title to the land by adverse possession. “Continuity of possession is an essential element of adverse possession, and its existence and sufficiency depend upon the acts and conduct of the claimant. . . .” 1 Am.Jur. 877. “In addition to the necessity of having an open, notorious, exclusive, and hostile possession, as stated heretofore, it is also essential that such possession, in order that it may ripen into title, should be shown to have been continuous and uninterrupted for the full statutory period. The moment the possession is broken, it ceases to be effectual, because as soon and as often as a break occurs, the law restores the constructive possession of the owner.” I Am.Jur. 877-878. The period for the acquisition of title to land by adverse possession in American Samoa is 20 years. Sec. 907, A. S. Code. According to Fesagaiga’s own testimony, the Asuega people did not enter upon the land until 1918. They had possession of it for about four years and then vacated it letting the land grow to bush. In response to the question “Well, now, you say they (Asuega people) quit about after two years, that’s about 1920. Now, how long did they let it grow to bush after 1920?” Fesagaiga answered “Possibly four years.” In response to the question “Now, then, I believe you said the Asuega people had plantations on there (the disputed land) after they cut the big trees from about 1918 to 1922, that was for about four years and then the Fagasa people came in and plant plantations, is that correct?” Fesagaiga answered “After we left the land, your Honor, during those years the land was vacated there was no plantation then.” Then Fesagaiga was asked “Well, how long was it vacated with no plantations at all?” and he answered “I believe about at least five years.” He further testified that the Fagasa people began to cultivate the land about 1923 and that “they quit planting taro patches there approximately 1926 or 1927. Then, your Honor, a man by the name of *124Falealili began — we occupy again the land somewhere around 1930 and plant taro patches there again.” He testified that from 1927 to 1930 there were no plantations on the land but that Falealili, the Asuega man, had plantations on it from about 1930 to 1934. Then in answer to the question “Now, then, from 1934 when he (Falealili) quit having plantations, what happened to the land?” he answered “I believe the land was vacated again until somewhere around 1938.1 have seen some taro patches there on the particular part of the land owned by someone in Fagasa village. I don’t know I did not have a chance to inquire who the family was.” Then he was asked “All right, we’re up to 1938. Now, then, what happened?” to which he answered “The land — this part of the land toward Pago was vacated again and Fagasa people been upkeep the Fagasa side of the mountain until 1 or 2 years just prior the last World War.” No one had plantations on the land during the World War, it being occupied by the U.S. Marines as heretofore stated. It is very apparent from the testimony of Fesagaiga himself that the Asuega people, in whose right Fesagaiga claims the right of possession, did not have continuous possession of the land for 20 years. And it follows under the principles of law heretofore stated that they did not acquire title to it by adverse possession. Our conclusion then is that the disputed land is the property of the Alo Family of which Alo-Pepe and Suesue, the defendants, are both members and of which Alo-Pepe is a matai. There was no evidence of Alo people transferring the right of possession to Fesagaiga. In fact, they disputed his right of possession. Right of possession follows title. It follows, therefore, that the right of possession at the time Fesagaiga entered upon the land in September or October, 1953, and put in plantations was in the Alo people and it is still in them. Therefore, we conclude that the plaintiff is not entitled to an injunction restraining the defendants *125from entering upon the disputed land and taking possession of it.
While Alo-Pepe herself denied it, the witnesses for Fesagaiga testified that she pushed one of Fesagaiga’s sons off the highway when he was about to enter upon the land to put in plantations. Alo-Pepe is a little old lady about 70 years of age. There was no evidence that she hurt the boy in the slightest. Under the law she had the right as matai of the family owning the land in dispute to protect it against trespassers by using reasonable force. Harper on Torts, Sec. 49. The evidence clearly showed that before this alleged assault by Alo-Pepe occurred the Alo people had retaken possession of the disputed land. In fact, they had destroyed some of the plantations put in by Fesagaiga and replaced them with their own plants. It is clear that Alo-Pepe was justified in using reasonable force to prevent Fesagaiga’s son from trespassing on Alo land. “On the part of one in legal possession of real or personal property, a privilege to defend the possession thereof exists against intruders who, without the possessor’s consent, interfere with such possession by trespass.” Harper on Torts, Sec. 49. To the same effect is the Restatement of Torts, Sec. 77. The plaintiff is not entitled to damages under the circumstances even if it be true that Alo-Pepe, the little old lady, did push the young man off the road. The boy wasn’t hurt in any way.
The plaintiff also claims $2,000 damages for an assault upon his two boys with a shotgun and bush knives. Witnesses for the defendants testified that there was no such assault. Witnesses for the plaintiff testified that there was. However, we think that at most some boys in the Alo Family merely threatened some boys in the Fesagaiga Family with the gun and bush knives and that the acts of the boys never went beyond threats. “An assault is an apparent attempt, by violence to do corporal hurt to *126another.” Sec. 816 Am. Sam. Code. A mere threat to commit violence is far from an attempt to commit violence. “It is a general rule that a cause of action may not be predicated upon mere rudeness or lack of consideration of one person for another. Again, a mere threat to commit an injury is not an actionable private wrong (emphasis ours), since it is only the promise of doing something which in the future may be injurious, and may never be carried in effect. Similarly an action will not lie for mere abusive language.” 52 Am.Jur. 380. There was no proof whatever of any mental pain or anguish as the result of the threats and no evidence of any actual injury. Furthermore, Fesagaiga’s own testimony indicates that the acts of the Alo Family members were no more than threats although these were denied by the Alo Family members. In his testimony Fesagaiga said “And furthermore, my main purpose is to petition the Honorable Court for an injunction against these people because I’m afraid with my sons or family members to continue clearing the premises and maintain it for my new crops because every time we about to enter the land the family members of Alo-Pepe and Suesue using ammunition more like an army to threaten us away from the land.”
We do not think that plaintiff is entitled to compensation for the plantations which he put in on Alo land when he was committing a trespass by putting them in. A trespasser cannot put in plantations on another man’s land against his will and then get paid for it. We think that the plaintiff’s petition should be dismissed.
ORDER OF DISMISSAL
Accordingly the petition of the plaintiff is hereby dismissed.
Costs in the sum of $37.50 are hereby assessed against Fesagaiga, the plaintiff, the same to be paid within 60 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485191/ | OPINION
OPINION OF THE COURT
MORROW, Chief Judge.
The complainants filed their petition asking for an injunction to restrain Pila Patu from erecting a store building on certain land in the vicinity of Happy Valley between the main highway and Pago Pago Bay. A temporary restraining order was issued on March 18, 1954. Complainants claim that Pato Honey Belle Luce has an undivided one-third interest in the parcel of land located in the village of Pago Pago lying between the main highway and Pago Pago Bay upon which Pila Patu had started to erect a store building. Rev. Maurice Luce is the natural guardian of Pago [sic] Honey Belle Luce, she being his adopted daughter. On March 24, 1954, the Government of American Samoa filed a petition of intervention claiming that the land upon which the building was being erected was the property of the Government of American Samoa and prayed that both the complainants and respondent Pila Patu be permanently enjoined from asserting title thereto and from exercising any rights therein.
On the 12th day of May, 1924, the land Autapini containing 8.84 acres was registered in the name of one Poi Tui of Pago Pago. The land as registered included the land in the vicinity of Happy Valley between the main highway and the high water mark of Pago Pago Bay. On July 17, *1291930, the foregoing registration of the land having been declared null and void by the Court and a new trial of the issue as to the ownership of the land (raised by the posting of said land for registration by the heirs of Patea and the filing of objections thereto by Poi Tui) having been had and a final decree having been made, said land Autapini was registered in the name of Leulu, Mama and Tasali who were the heirs of the Patea. This decree and registration vested the record title to Autapini in Leulu, Mama and Tasali as tenants in common with the result that each had an undivided one-third interest therein. The record of the original registration will be found in Eegister of Native Titles, Vol. I at pages 170-172. The record of the decree of J uly 17,1930, is on page 172 of the same volume.
By deed dated 12 May 1950, Tasali who has succeeded to the matai name Patea, using the name Patea, deeded his undivided one-third interest in a certain part of this land Autapini lying between the road and the high water mark of Pago Pago Bay to Pato Honey Belle Luce for a valuable consideration. The deed was approved by the Governor of American Samoa. About four-fifths of the building which Pila Patu has started to erect stands upon the land conveyed by this deed and the other fifth upon land just west of the land conveyed.
Tenants in common Leulu and Mama are not parties in this case. If we were to decree, as asked by the Government, that the land upon which the building is being erected is the property of the Government of American Samoa, Mama and Leulu would not be bound by the decree. We can, however, decide the case without determining whether the ownership of the land upon which the building was being built is the property of the Government. It should be stated that the registration of the land under the decree of 17 July 1930 is not necessarily binding upon the Government since, if the land between the road and the sea *130is government land, the failure of the Government to object in 1930 to its registration in the name of Leulu, Mama and Tasali would not bar the Government from asserting its claim. “Laches on the part of the government in bringing suit is said not to be a defense in the case of a claim which is founded on sovereign right. It is also observed that the laches of the officers of the government cannot be set up as a defense to a claim which is made by the government.” 19 Am.Jur. 342.
The government claims ownership of the land between the highway and Pago Pago Bay by virtue of condemnation proceedings had pursuant to regulations Nos. 15 and 16 enacted September 3, 1900, and referred to and substantially re-enacted in Section 1291 of the new Code of American Samoa. Regulation No. 16 provided among other things “It shall be unlawful for any person or persons to erect any fence, wharf, boat house, building or other structure whatsoever to seaward of the Public Highway or Road running along high water mark of the Harbor of Pago Pago as described in Section I of the Ordinance relating to a Public Highway in Pago Pago being number 15 of 1900, without special permission from the Commandant of the United States Naval Station, Tutuila;...” The same provision is contained in Section 1291, sub-Section 5, of the new Code with the exception that the words “Governor of American Samoa” have been substituted for “Commandant of the United States Naval Station, Tutuila.” The Governor succeeded to the civil authority of the Commandant. It is our opinion that this limitation upon the use of the land between the public highway and the high water mark in the harbor of Pago Pago is valid. Regulation No. 16 was enacted at the same time and in connection with Regulation No. 15 which provided for condemnation of land for a public highway around Pago Pago Bay. Such limitation as to the use of the land between the highway *131and the Bay was paid for by the Government when the land which now comprises the highway was condemned.
Assuming that the land upon which the four-fifths of the building is being erected is owned by Mama, Leulu and Honey Belle Luce as tenants in common, (and we will so assume since it is not necessary for us to determine whether the Government owns the land between the highway and the Bay, it being owned either by the Government or the tenants in common) Honey Belle Luce has the right to enjoin the erection of the four-fifths part of the building started upon land in which she has the undivided one-third interest as the result of the deed of Patea. Each co-tenant has the right at all times to enter upon and enjoy every part of a common estate. Petraborg et al. v. Zontelli, 217 Minn. 536, 15 N.W.2d 174, 177. To the same effect see 62 Corpus Juris 421. In Byam v. Bickford, 140 Mass. 31, 2 N.E. 687, it was held that where one of two or more co-tenants, without consent, erects a building on common property, such other co-tenant may remove such building without becoming liable in trespass for so doing. Honey Belle Luce neither by herself nor by her guardian, Rev. Maurice Luce, consented to having four-fifths of this building put upon the land in which Honey Belle has the undivided one-third interest. She has the right, therefore, not only to enjoin the construction of that part of the building which has been started upon the land owned in common by her and Mama and Leulu, but also the right to have the part of the uncompleted building on such land removed. It was contended by the respondent Pila Patu that Patea, Leulu and Mama had partitioned such land among themselves prior to Patea’s conveyance to Honey Belle Luce. However, the evidence did not support the contention. Mama testified that she and Leulu and Patea did not have a meeting to divide the property and also that they did not make a legal division of it. Leulu also testified that there was no *132legal division of the land between Patea, Mama and herself. There was evidence that Patea occupied the east end of the land, Leulu the middle, and Mama the west end upon which end approximately four-fifths of the building was being erected before the issuance of the temporary injunction. However, that was a mere division of possession and not a division of ownership. It follows that Honey Belle Luce and Leulu and Mama are still tenants in common of such land and that Honey Belle Luce as a tenant in common has the right to enjoin further construction of the building on such land, and to have so much of the building as has been already erected on it removed.
Respondent Pila Patu claims that he has a permit from the Governor to build a building upon the land the third undivided interest in which was deeded to Honey Belle Luce. We find nothing in the permit indicating authority from the Governor to erect any building on land between the highway and the bay. The permit makes no reference to any permission to put up a building there. Respondent also claims, since the ground location of the building proposed to be erected was set out in the building plans submitted to the Public Works Department, that the approval of the plans constituted permission by the Governor to erect the building. However, such location was approximately in the middle of the land the one-third interest in which was deeded to Honey Belle Luce and not on the west end of such land where Pila Patu started to erect the building. In other words, respondent did not start to erect his building on the location set out in the plan at all but at a different place. If the Governor did give permission by implication, and we do not think he did, it was to erect a building at a place different from the location where respondent has started his building.
The Government, as intervener, is entitled to have further erection of the building stopped, not only on the *133part of the land the one-third interest in which was deeded to Honey Belle Luce by Patea, but also on the part immediately west of such land on which approximately one-fifth of the started building stands, all of such land being between the highway and Pago Pago Bay. See Sec. 1291, sub-sec. 5, of the A. S. Code. The Government is also entitled to have so much of the building as has . already been erected removed. Our conclusion is that the complainants are entitled upon the record to an injunction restraining any further construction of the building upon that part of the land an undivided one-third interest in which was deeded by Pa-tea to Honey Belle Luce and to an order requiring removal of so much of the building as has already been started on such land. Let a decree issue restraining further construction of the building and requiring so much thereof as has already been erected to be removed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485192/ | OPINION
OPINION OF THE COURT
MORROW, Chief Judge.
The complainant Taesalialii, hereinafter called Taesali, filed his petition asking for an injunction to restrain Tuloto and Pauesi, respondents, from erecting a house on certain land in the village of Utulei.
- At the hearing it appeared to the Court from the weight of the testimony that four matais, namely Lutu, Taesali, Afoa and Tupua are jointly the head of the Lutu, Taesali, Afoa and Tupua clan; that such clan is a larger clan made up of the membership of four smaller clans one of which Lutu is the matai, another of which Taesali is the matai, another of which Afoa is the matai, and the other of which Tupua is the matai. The evidence clearly indicated that the larger clan composed of the members of the four smaller elans is the owner of the certain lands in Utulei and Fagatogo ; and it further indicated that while the land is still the property of the larger clan headed by the four matais, nevertheless, there was a division of its possession by the matais, approved by each of the clans, such division giving to the Taesali clan the right of possession of a certain part of the land; to the clan headed by Lutu the right of possession of another part; to the clan headed by Afoa the right of possession of another part; and to the clan headed by Tupua the right of possession of a fourth part. In other words, the right of possession of the entire property of the *135larger clan was divided among the four smaller clans, but not the ownership of the property itself.
That there is communal ownership of the property by the larger clan as such is quite clear to us from the fact that in 1941 Tupua, Taesali, Lutu and Afoa, acting as matáis and for their respective families, deeded certain land in Utulei, which was originally a part of the land the possession of which had been divided, to the Government of the United States. Furthermore, the testimony clearly shows communal ownership of the property by the larger clan composed of the members of the four smaller clans.
Lutu has leased a part of the land, the right of possession of which was given to the Lutu clan in the division, to Ronnie Pritchard, and the rent is paid to him for the use of himself and the Lutu clan. The other three clans get no part of the rent. Some years ago Taesali leased the very land on which the respondents have started to build their house to one Viliamu Reid and he received the rent for the use of himself and members of the Taesali clan. The other three clans headed by Lutu, Afoa and Tupua, respectively, received no part of the rent. Lutu people are assigned land by Lutu for their use in the tract or tracts owned by the larger clan, possession of which tract or tracts was given to the Lutu clan. Taesali, as matai of the Taesali clan, assigns land for the use of the Taesali family members from the land owned by the larger clan, the possession of which was given to his clan in the division of possession. And Afoa assigns land for the use of Afoa family members from lands, the possession of which was given to Afoa clan in the division. And the Tupua likewise assigns land to Tupua family members, the possession of which was given to the Tupua clan in the division. We believe from the evidence that the division of the right of possession was made prior to the establishment of the Government in 1900.
*136The respondents Tnloto and Pauesi are members of the Afoa Family, Tuloto by blood and Pauesi through marriage to Tuloto. After their marriage Pauesi came to live with Tuloto on land assigned to them by the Afoa in the tract or tracts owned by the larger clan, the possession of which was given to the Afoa clan pursuant to the old agreement of division of possession.
It is the custom in Samoa for the matai of a family to assign a piece of family land to each of the various members of their family for his use. Section 2 of the Code provides among other things that “The customs of the Samoans not in conflict with the laws of American Samoa shall be preserved.” There is no statutory law of American Samoa or of the United States in conflict with this custom. We believe that pursuant to Samoan custom the Tupua family members as such have the right to have their matai assign to each of them a part of the lands owned by the larger clan of which the four matais are the head and the possession of which was given to the Tupua clan. And likewise a member of the Afoa family has a right to have assigned to him by the Afoa a part of the land owned by the larger clan as such and the possession of which was given to the Afoa clan in the division of possession. And the same with respect to members of the Lutu family and the Taesali family. We do not believe that under the customs of the Samoans a member of the Afoa family has the right to take possession of and use a part of the land of the larger clan, possession of which was given to the Taesali clan in the division of possession, unless Taesali acting for himself and his clan consents.
It is clear to us from the evidence that only Lutu has consented to the occupation by Tuloto and Pauesi of the land on which they have started to build their house, which land is a part of the land of which the Taesali clan was given possession in the division. Taesali has objected to the *137building of the house. Tupua was not consulted. It further appears very doubtful whether the Afoa has consented.
Since Tuloto and Pauesi already have a right to occupy and have been assigned a part of the lands, the possession of which was given to the Afoa clan pursuant to the agreement, we conclude that under Samoan custom they have no right to occupy the land on which they seek to build their house without the consent of Taesali representing his clan. Taesali is entitled to an injunction restraining Tuloto and Pauesi from building a house on the land of the larger clan, the possession of which was given to the Taesali clan pursuant to the agreement dividing possession.
Costs in the sum of $18.00 are hereby assessed against Tuloto and Pauesi, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485194/ | DECREE
Now on this 23rd day of November 1954 the above entitled cause comes on regularly for hearing, objector Ene Tofili appearing in person and being represented by his counsel Atofau, objector Tuina Tauoa appearing in person and being represented by his counsel Tauoa, objector Puiai Túfele appearing in person and being represented by his counsel Malaetia Túfele, and Talalefalealii, the applicant for the name Moaaliitele, appearing in person and being represented by her counsel Sianava R. S. Tago. And the objectors, viz., Ene Tofili, Tuina Tauoa and Puiai Túfele having in open court withdrawn their respective objections filed in said cause, and the Court having thereupon taken evidence showing that said Talalefalealii is eligible to hold a matai title pursuant to the provisions of Sec. 926 of the Code as amended, and the Court having so found from said evidence,
Now, therefore, it is ORDERED, ADJUDGED and DECREED that Talalefalealii of Fitiuta be registered as the holder of the matai name Moaaliitele of Fitiuta and the *145Registrar of Titles is hereby directed to so register said Talalefalealii. The fifteen dollars costs assessed in open court have been paid by Talalefalealii. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485195/ | OPINION AND ORDER
OPINION OF THE COURT
MORROW, Chief Judge.
Tapoti Vaotuua, the matai of the Vaotuua Family of Leone, acting for himself and the Family, filed a petition for an order to evict Púletele from certain land of the Vaotuua Family near Leone.
In 1916 and 1917 when Púletele was about 12 years old, her mother married Vaotuua Tapili. He died in 1946. The present Vaotuua succeeded Tapili as the holder of the Vaotuua title. Púletele, upon the marriage of her mother to Tapili, went to live with Tapili and her mother on Vaotuua land and continued to do so until she was about 19 years of age when she married Lau. After his marriage to her mother Tapili treated Púletele as his daughter and considered her a member of the Family. Upon her marriage to Lau, Tapili Vaotuua assigned Púletele certain Vaotuua land upon which to have a house and plantations for the use of herself, her husband Lau, and their children. This is the same land from which Tapoti is seeking to evict Púletele in this proceeding. She and Lau *147have had 12 children, 9 of whom are living.' She testified that all of them were born on the land in question.
The plaintiff claims that Púletele is not a member of the Vaotuua Family and that she should be evicted for that reason. The fact of the matter is that in the case of Fega v. Eveni, No. 83-1948 (High Court of American Samoa), Fega, who is the present Tapoti Vaotuua, testified •under oath that she was a member of the Vaotuua Family. And he admitted on the witness stand in this case that he had so testified. We think that his testimony in that case was correct. He was seeking the matai title Vaotuua in that case and Púletele signed his petition as a member of the Family. Púletele has lived in the Vaotuua Family ever since her mother married Tapili about 40 years ago. In answer to a question by the Court in this case Tapoti Vaotuua testified “As I have stated, it’s the Samoan customs all those who live in the family they are recognized as a family member and she also signed her name freely.” The reference to Puletele’s signing her name freely is to her signature on Tapoti’s (Fega’s) petition which he filed with the Court in the matai name case in which he got the title. We are convinced from the evidence, including the testimony of Vaotuua himself, that under Samoan customs Púletele is a member of the Vaotuua Family, although not a blood member. Under Samoan customs she has a status in the family somewhat similar to that of a “married person to the family” who is living in the family.
Another complaint of the present Vaotuua against Púletele is that she sued some members of the Vaotuua Family including himself in the district court at Iliili for entering her plantations and destroying her crops. No doubt she had the right to maintain the suit because the court rendered judgment in her favor. There is nothing wrong about enforcing one’s legal rights in a court of law. A per*148son has the right to resort to the courts for the vindication of his rights.
Another complaint against Púletele is that she does not render service to the present Vaotuua. She testified that for a month or two after he got the title in 1948 she did render service and that then there occurred differences between her and the matai.
At this point it should be stated that under Samoan customs a member of the family living on family land, as Púletele was, is obligated to render service to the matai. But the matai is likewise obligated to perform the duties of a matai properly. The matai has duties as well as rights and one of his duties is to protect the members of his family against wrongdoing by other members of the family. When the other members of the family including Vaotuua himself destroyed Puletele’s plantations on family land, Vaotuua failed in his duty as a matai. A matai who does not perform his duties as such can hardly expect service from family members. Good matais are entitled to service. We think that Vaotuua failed to fulfill his obligations with respect to giving Púletele the protection which she as a member of the family was entitled. And the judgments of the district court in the cases at Iliili are silent witnesses to that effect.
It is the duty of the matai to make every effort to get the members of his family to live together in peace and harmony. In the Fega v. Eveni case, supra, the present Vaotuua was asked on the issue of the value of the holder of the title to the Government of American Samoa why he thought he would make a good matai and he answered “I am sure that I can bring my family together and make up again. . . .” In other words, by his very testimony in that case Vaotuua admitted that a good matai should get his family to live together in peace and harmony. But he has failed to do this. The plaintiff’s other complaints against *149Púletele are of a trivial nature and, even if true, are matters which a good matai can readily correct.
While Púletele may have done some things which displeased her matai and possibly some indiscreet things by giving him too much advice, as the evidence shows, nevertheless, her conduct does not warrant her eviction from family lands previously assigned to her.
Vaotuua complains that Púletele is not rendering service and yet at the very same time in response to the question “Now, if she offer to serve you, will you accept the service?” he answered, “No.” It is very obvious that if the matai will not accept service, the family member cannot render service. At the trial Vaotuua displayed an attitude of animosity toward Púletele. In response to the question by Puletele’s counsel Tago “If you as matai is a good matai of the Vaotuua family can settle this disagree between you and a member of your Vaotuua family who is Púletele and have her render service to you as her matai, will you be kind to her and have the family live in peace and harmony again?” he answered “I will never admit her.” It is our conclusion from the evidence that Vaotuua has made up his mind without good cause to drive Púletele out of the family and off family land, if he can, and not to accept service from her. His own counsel asked him this question “Vaotuua, isn’t it a fact the reason why you brought Púletele before this court is because she didn’t render the satisfactory service to you?” Vaotuua answered, “Yes.” How can Vaotuua complain of Puletele’s not rendering service when at the very same time if she should offer to render service he would not accept it?
A matai should treat his family members with kindness. He should not display an attitude of animosity toward them. The good matai is kind to his family members, not cruel to them. While we think from the evidence that *150Púletele has not been completely free from fáult in that she has been too liberal with advice to the matai, nevertheless; we think Tapoti Vaotuua as a good matai should advise her with respect to this minor matter and not have an attitude of animosity toward her. In contrast with his attitude toward her is her attitude toward him. In response to the question “Púletele, can you after this case apologize to your matai if there is anything between you and the matai which both do not agree? Can you apologize to your matai and then render service to him?” she answered “I can by-going over and see Vaotuua here and apologize to him and straighten up the difficulties between him and I and render service to him.”
Under Samoan customs a matai has very much the same relationship to the members of his family that a father has to his children. A matai frequently refers to his family members as “my children” and considers it his duty to look after their welfare.
In view of the fact that Púletele is a member of the Vaotuua Family in accordance with Samoan customs, as the Vaotuua has testified, and the further fact that she has been assigned Vaotuua land by the former holder of the title on which to live and bring up her family, this Court finds no ground for ordering her eviction from the land at this time.
Since Vaotuua cannot complain of Puletele’s not serving him as long as he is unwilling to accept service, and he testified that he was, it is ORDERED that if he desires to do so, Vaotuua may file with the Clerk of the High Court a statement to the effect that he is willing to accept service in accordance with Samoan customs from Púletele and the Clerk will then notify Púletele of such filing. At that time it will become her duty to begin rendering service to her matai in accordance with Samoan customs.
*151It is ORDERED and ADJUDGED that the petition of the plaintiff be and it is hereby DENIED. -
Costs in the sum of $37.50 . are hereby assessed against Tapoti Vaotuua, the same to be paid within 60 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485196/ | OPINION AND DECREE
*152OPINION OF THE COURT
MORROW, Chief Judge.
Faafeu of Pago Pago filed his application with the Registrar of Titles on October 19, 1954 to be registered as the holder of the name Tamaalemalo, claiming that it was a matai name. R. S. Manuma filed an objection to the proposed registration alleging that there was no such matai name. Both the proponent and the objector are members of the Mauga Family of Pago Pago.
At the hearing Faafeu claimed that the name Tamaalemalo is a lesser matai title in the Mauga Family, while objector Manuma, admitting that there is a title Tamaalemalo, claimed it to be an honorific one attached to the matai name Mauga.
There have been 15 Maugas. The title Tamaalemalo had its origin with Mauga Ili who, according to witness Mauga Palepoi (the present and 15th Mauga), “was the first matai in the Mauga Family by blood.” The witness further testified that the title Tamaalemalo had laid vacant during the time of the 14 Maugas following Mauga Ili.
It is clear to the Court from the evidence that the title Tamaalemalo must have originated some two to three hundred years ago. And it is further clear that whether the title be an honorific one or a matai title must be determined from tradition. Tradition in this case is hearsay passed from generation to generation over a period of from 200 to 300 years. It is not surprising that after such a long period of time different stories as to the nature of the name should arise. Not a single witness had any first-hand knowledge of what he was testifying about when he testified that the name was a matai name or an honorific name, as the case might be. He only knew what he had heard after the traditional story or stories had been handed down by word of mouth for a period going back 200 to 300 years. *153Allowing 14 years for a mataiship on the average, Ili, with whom the name originated, has certainly been dead at least 200 years since 14 other holders of the Mauga title have come after him.
Sec. 930 of the A. S. Code requires that every person claiming succession to a matai title shall give notice of his claim to the Registrar of Titles and it further requires that the notice be accompanied by “A certificate from the chiefs of the village in which the claimant lives that such matai name is an old matai name of the Samoan people.” Proponent Faafeu lives in Pago Pago. His application to the Registrar was accompanied by a certificate signed by 28 chiefs of Pago Pago that Tamaalemalo was “an old matai title of our village.” This certificate was introduced in evidence. Mageo, one of the 28 chiefs, testified that he signed the certificate “without looking in the paper,” thinking that it was a certificate for the Ili title. However that may be, there was no evidence that the other 27 did not know what they were signing. Leaving Mageo out of consideration, we think that the other 27 knowingly certified that Tamaalemalo was an old matai title of the village of Pago Pago.
We are of the opinion that the weight of the evidence favors the view that Tamaalemalo is a matai name — a lesser matai name — in the Mauga Family and that it is not an honorific title. Much weight must be given to the certificate of the chiefs of the village.
Our conclusion that the name is not an honorific one is fortified by two published works on Samoan titles. The honorific titles of the Mauga are listed by Kramer in his book Die Samoa-Inselu, published in 1902, at p. 320. The title Tamaalemalo is not included in the list. The Book of Salutations of Samoa, Savaii, Upolu, Manono and Apolima, Tutuila and Manua, published in 1902 by the London *154Missionary Society, lists Mauga’s honorific titles at p. 165. The title Tamaalemalo is likewise not included in that list.
We find from the evidence that the name Tamaalemalo is a lesser matai name in the Mauga Family, Mauga being the senior matai.
The Court heard testimony showing that applicant Faafeu meets the requirements of Sec. 926 of the A. S. Code, as amended, for eligibility to hold a matai title.
Our conclusion is that Faafeu is entitled to be registered as the holder of the matai name Tamaalemalo of the village of Pago Pago, a lesser matai name in the Mauga Family.
DECREE
Accordingly it is ORDERED, ADJUDGED and DECREED that Faafeu shall be so registered as the holder of the matai title Tamaalemalo of Pago Pago.
The Registrar of Titles will be advised of this decree.
Costs in the sum of $15.00 are hereby assessed against R. S. Manuma and a like sum against Faafeu, all costs to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485199/ | OPINION AND DECREE
*168OPINION OF THE COURT
MORROW, Chief Judge.
On May 2,1955 Tufaga of Aua filed his application with the Registrar of Titles to have certain land (designated as Gautavai on the survey accompanying the application) in the village of Aua registered as the communal family land of the Tufaga Family. On June 29, 1955 Soogapu purporting to act in behalf of the Liufau Family of which she is a member, filed an objection to the proposed registration claiming that a part of the land offered for registration was communal family land of the Liufau Family. Hence this litigation. Sec. 905, A. S. Code. It should be stated that the land offered for registration under the name “Gautavai” is a part of a much larger tract in Aua, the whole of which is also known as Gautavai.
Prior to the hearing the Court viewed the surveyed tract in the presence of the parties.
At the hearing it was admitted by Soogapu that all of the land included in the survey accompanying the application was Tufaga land, except a small triangular piece in the southwest corner of the tract.
The single question in the case is whether the small triangular piece is the property of the Liufau title or of the Tufaga title.
High Chief Liufau T. of Aua referring to the part of the land in dispute, testified that “Ever since I was born the Tufaga people possessed that part.’” In response to the question “Has that little piece (the disputed part) been in dispute between the two families (the Liufau and Tufaga Families) for a long time?” he answered “There was no dispute happened before because I told my family not to interfere to overlap on somebody else land. But nowadays I have seen my family members trying to push Tufaga in.” Again in response to the question “Now, when you were a *169boy was this little triangular piece considered to be Liufau land or Tufaga land?” Liufau T. answered “Ever since I was born to this world I knew it was Tufaga land; I didn’t claim any part of it.” Liufau T. who is 89 years old, must have been born in 1866 which was 34 years prior to the establishment of the Government of American Samoa by the U.S. Navy in 1900.
Talking Chief Tuatoo of Alofau, 50 years old, a member of the Liufau Family who has spent most of his life in Aua, testified that he was familiar with the land in dispute. In response to the question “According to the tradition in your family who owns that little triangular piece that’s in dispute?” Tuatoo answered “Tufaga.” He also testified that when he was a boy in Aua the Tufaga people had possession of it and that “Members of the Tufaga Family” had plantations on it and more particularly that one Siaua, a member of the Tufaga Family, had laufala plants on it. And to the question “Now, according to tradition in the Liufau Family who owns that land, that’s the little triangular piece?” the witness answered “Tufaga.”
In American Samoa, due to the lack of land records and the further fact that there was no government in Tutuila prior to 1900, it is necessary in many cases to use tradition, even though it is hearsay, to establish land titles. Springing from necessity, this practice has been approved by the Courts. As stated by Chief Justice Wyche in Levale et al. v. Toaga, No. 26A-1945 (H.C. of Am. Samoa) “The question of title to real estate in American Samoa is always a difficult one to solve for the reason that in most cases there is no recorded title to, nor description of the property. Title to real estate is generally proved by family tradition.” '
Before the Government was established, Samoans acquired title to their lands through first occupancy coupled with a claim of ownership. Soliai v. Lagafua, No. 5-1949 *170(H.C. of Am. Samoa); Faataliga v. Fano, No. 80-1948 (H.C. of Am. Samoa). See 2 Blackstone 8; Maine’s Ancient Law (3rd Am.Ed.) 238. The ownership of a particular piece became a matter of family tradition. The triangular piece was cleared from the bush, occupied and claimed, long before the Government was established.
Tufaga, 53 years old, testified that objector Soogapu had put in some laufala plants on the disputed triangular piece sometime after World War II; that prior to the war he (meaning his family) had had possession of it and had plantations on it; that when the war started the Marines destroyed such plantations in installing the tank farm at Aua. In answer to the query “Now, when you were a little boy, were there any plantations on this triangular piece that you can remember?” Tufaga testified “There were plantations of my parents.” He further testified that when the Standing Claims Commission came to Aua to settle war damage claims after the war Liufau T. showed the Commission the boundary between Tufaga land and Liufau land and indicated to the Commission that this little triangular piece was on the Tufaga side of the boundary and not on the Liufau side. This act by the matai showed that the tradition in the Liufau Family was that the triangular piece did not belong to it.
Objector Soogapu, 43 years old, who was the only witness for the Liufau Family, testified that she was a member of that Family and that she had planted the laufala plants now growing on the disputed triangle; that the plantations on it destroyed by the Marines belonged to “My parents and myself and sisters.” She also testified that her father Silifai had filed a war damage claim for the destruction of the plantations on the little triangle and that he had been paid for the damage. The records of the Claims Commission were produced and they showed that Silifai had never filed a claim. When she learned that Sili*171fai had not filed a claim, Soogapu then testified . . but may it please the Court, my statement was wrong in the first place.” Then she testifiéd that it was Tuu’u and the title Sagapolu who filed the claim on the triangle. Sagapolu (a matai) was Soogapu’s husband at the time she said that the claim was filed. Her husband now is Douglas.
In our judgment Soogapu’s contradictory stories as to who filed the war damage claim on the triangle very seriously affect her credibility as a witness.
It is our opinion after hearing the testimony and seeing the witnesses that the evidence very clearly preponderates in favor of the view that the triangular piece is the communal family land of the Tufaga title, and we so find.
DECREE
Accordingly, it is ORDERED, ADJUDGED and DECREED that the land Gautavai, as shown on the survey accompanying Tufaga’s application to have such land registered, shall be registered as the communal family land of the Tufaga Family of Aua.
The Registrar of Titles will be advised of this decree.
Costs in the sum of $25.00 are hereby assessed against Soogapu, the same to be paid within 45 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485200/ | OPINION AND DECREE
OPINION OF THE COURT
MORROW, Chief Judge.
On March 3, 1955 Mauga S. P. of Pago Pago filed his application with the Registrar of Titles to have certain land (designated as Avau on the survey accompanying the the application) on the mountain side of the main highway between the villages of Faganeanea and Nu’uuli registered as his individually owned property. On March 17, 1955 Lagafua Laisene, purporting to act in behalf of the Sialega Family of Nu’uuli, filed an objection to the proposed registration claiming that the land was the communal family land of the Sialega Family of Nu’uuli. On March 21, 1955 Uaea Sialega filed a similar objection and made the same *173claim. Hence this litigation. See Sec. 905 of the A. S. Code.
Prior to the hearing the Court viewed the surveyed tract in the presence of the parties.
At the hearing, in order to establish his title, Mauga S. P. testified that the land belonged to his grandmother Taelimu, a member of the Sialega Family, prior to the establishment of the Government in 1900; that Taelimu had two children, viz. a son, Moimoi, and a daughter, Faafeumalo; that Taelimu died; that Moimoi died without children and that Faafeumalo died leaving the witness Mauga S. P. and Fuifuitaua as her surviving children; that Fuifuitaua died leaving Faafeumalo II and Uato’a as his surviving children. Mauga S. P. also testified that he would be 60 years old on Nov. 30, 1955 but he did not know the year of his birth. He further testified that the land Avau was cleared from the bush about “5 or 6 years or 10 years” before the Government was established; that he saw it cleared and that he helped cut down the big trees growing on it.
If it be true that Avau was cleared “5 or 6 years or 10 years” before April 17, 1900 when the Government was established then, since Mauga S. P. must (he will be 60 years old on Nov. 30, 1955 as he testified) have been born on Nov. 30, 1895, it would follow that Mauga S. P. saw the land cleared from the bush and helped cut down the big trees on it somewhere between 7 months and 5^2 years before he was born, a truly remarkable feat.
He also testified that Avau land had been occupied by the Sialega people ever since it was cleared; that all the occupants had been Sialega people except a Tokelau islander (he is married to a Sialega woman) who is presently occupying one end under permission of Lina, a Sialega woman who is the other occupant.
Mauga S. P. further told the Court while on the witness stand that his grandmother Taelimu was the “sole pule of *174the family” (meaning the Sialega Family). We are quite certain that under Samoan customs this could not have been true since she was not the matai of the family.
Lagafua testified that he and Lina (as before stated, she is a Sialega woman) went on the land to live in 1926; that they put up a house on it and Lagafua (he was enlisted in the U.S. Navy) paid men to come and cut down the big trees on the land so as to clear it from the bush; that they went on the land through the permission of Sialega Minute who was Lina’s matai; that they lived together on the land until 1938 when they were divorced. After the divorce Lagafua went to live in Nu’uuli but Lina has continued to live on the land — sometimes with one or two other Sialega family members — ever since.
When Lagafua cleared the land, according to his testimony, he followed Samoan custom and claimed the land as Sialega property since he was living in that family and a member of it through his marriage to Lina. He did not claim the land as his individually owned property.
Samoans acquired title to their lands by first occupancy coupled with a claim of ownership. In the case of Soliai v. Lagafua, No. 5-1949 (H.C. of Am. Samoa) we said: “Occupation coupled with a claim of ownership will establish ownership to what was bush land before occupation. See 2 Blackstone 8.” The view that the occupant who first takes possession of land with the intention of having it as his own thereby becomes the owner of it is approved in Maine’s Ancient Law (3rd Am.Ed.) at p. 238. The doctrine of acquisition of original title by the first occupant with a claim of ownership has been approved by this Court in the case of Faataliga v. Fano, No. 80-1948 (H.C. of Am. Samoa) and a number of other cases. In the case of Leasiolagi v. Fao, No. 12-1949 (H.C. of Am. Samoa) we said “. . . it was the custom for the matai and members of his family clearing bush land and occupying it to claim it *175as communal family land and not as the individually owned land of either the matai or the family members occupying it.”
We think the weight of the evidence is clearly to the effect that this land was cleared from the bush by members of the Sialega Family acting under the authority of its matai; that it has never been occupied by anyone other than Sialega Family members (excepting that a part of it, as heretofore stated, is now occupied, through permission of Lina, by a Tokelau islander who is married to a Sialega woman) under a claim of communal ownership by the Sialega Family in accordance with well known and ancient Samoan custom as to land ownership.
True, Mauga S. P. introduced in evidence a document purporting to be signed by Lina admitting that her occupancy of Avau was first through permission of Moimoi and after his death through permission from Mauga S. P. She denied her purported signature to the document under oath.
Even if her signature be genuine, since the document was obviously not written by her but was prepared by Mauga for her signature and in view of the other circumstances surrounding its alleged signing by Lina, we think that it does not state true facts as to how she came to occupy the land. Her blood father was a Sialega and we are convinced by the evidence as a whole that her occupancy was and has always been through the permission of the Sialega, and not through the permission of either Moimoi or Mauga S. P.
Mauga surveyed and offered for registration only a small part — a rectangular piece 60 feet by 80 feef> — of Avau, yet he claims to own all of it. Why would a man survey only a small part of an entire tract owned by him and offer that part for registration, neglecting the remainder? This peculiar circumstance, when we consider all of the testimony, further convinces us that Mauga S, P. is *176not the owner of the land he offered for registration. On the other hand we are convinced from the evidence as a whole that it is the communal family land of the Sialega Family of Nu’uuli. The evidence clearly preponderates in favor of this view and we so find.
DECREE
Accordingly, it is ORDERED, ADJUDGED and DECREED that the land Avau, as shown on the survey* accompanying Mauga S. P.’s application to register it as his individually owned property, shall be registered as the communal family land of the Sialega Family of Nu’uuli.
The Registrar of Titles will be advised of this decree.
Since Mauga S. P. paid for the survey and his expenditure therefor will inure to the benefit of the Sialega Family, we .think it just that the costs be taxed to the objectors rather than to him.
Accordingly, costs in the total sum of $30.00 are hereby assessed against Lagafua Laisene and Uaea, $15.00 to be paid by each of them within 30 days.
NOTE: Survey was made on May 1, 1954. Magnetic North is shown on survey. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485202/ | OPINION AND DECREE
OPINION OF THE COURT
MORROW, Chief Judge.
Lemoe Aiumu filed his application with the Registrar of Titles on February 18, 1955 to be registered as the holder of the matai name Tuaolo of Pago Pago. Alo S. filed his objection to the proposed registration on March 11, 1955 and became a candidate for the name. Hence this litigation. Sec. 932, A. S. Code.
Sec. 926 of the A. S. Code, as amended, prescribes the qualifications for holding a matai title. It was clear from the evidence that each of the candidates meets these qualifications and is, therefore, eligible for registration as the holder of a matai title.
Sec. 933 of the A. S. Code, as amended, prescribes the law which the Court must follow in determining which of *183eligible opposing candidates for a matai title shall be registered as the holder. It reads as follows:
“Consideration Given by Court: In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise the male descendant shall prevail;
(b) The wish of the majority or plurality of these members of the family related by blood to the title;
(c) The forcefulness, character, personality, and capacity for leadership of the candidate;
(d) The value of the holder of the matai name to the government of American Samoa.”
We shall first consider the issue of best hereditary right. The uncontradicted evidence as to Alo’s lineage was that Tuaolo Ao had a daughter Moe who had a son Lepa who had a son Tutuila who was the father of Alo S. It is apparent from this evidence that candidate Alo S. is the great-great grandson of Tuaolo Ao and has one sixteenth Tuaolo blood in his veins. The evidence as to Lemoe’s lineage, also uncontradicted, was that Tuaolo Maumau had a daughter Faifaia who had a daughter Vatau who was the mother of candidate Lemoe. It follows from this evidence that candidate Lemoe is the great-grandson of Tuaolo Maumau and has one eighth Tuaolo blood in his veins. Since Lemoe has one eighth Tuaolo blood while Alo has one sixteenth, Lemoe prevails over Alo on the first issue.
Each of the candidates filed a petition with the court purporting to be signed by those blood-members of the Tuaolo Family supporting his candidacy for the title. There were 73 signatures on the petition for Lemoe and 23 on the petition for Alo. Lemoe admitted that 20 signatures on Alo’s petition were those of blood-members but claimed that 3 of the signers for Alo were not blood-members. Alo admitted that 69 of the signers on Lemoe’s petition were *184blood-members of the Family while denying that 4 of them were. If we consider that all of the 23 signers on Alo’s petition were blood-members and at the same time admit that only 69 of the 73 signers on Lemoe’s petition were blood-members, as claimed by Alo, it would follow that there are three times as many blood-members of the Family who wish Lemoe to hold the title as there are who wish Alo to hold it. The evidence clearly shows that a majority of blood-members wish Lemoe to be the matai. It follows, therefore that Lemoe prevails over Alo on the issue of the “wish of the majority or plurality of those members of the family related by blood to the title.”
Since the statute provides that the Court “shall be guided by the following (meaning the four issues) in the priority listed” it follows that the Court must give more weight to the issues of hereditary right and wish of the majority or plurality of the family than it does to the third and fourth issues, viz., “.the forcefulness, character, personality and capacity for leadership of the candidate” and “the value of the holder of the matai name to the Government of American Samoa.”
Since Lemoe prevails over Alo on the first two issues he is entitled to be registered as the holder of the .title even though Alo should prevail over Lemoe on the last two issues. Therefore, no useful purpose would be served by lengthening this opinion by setting out the evidence in the case with respect to the last two issues. Suffice it to say, however, that the Court is of the opinion from the evidence that Lemoe prevails over Alo, not only on the first two issues, but also on the last two.
DECREE
Accordingly, it is ORDERED, ADJUDGED and DECREED that Lemoe Aiumu of Pago Pago be registered as the holder, of the matai name Tuaolo of Pago Pago.
*185The Registrar óf Titles will be advised of this decree.
Costs in the sum of $25.00 are hereby assessed against Alo S., the same to be paid within 45 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485203/ | OPINION AND DECREE
OPINION OF THE COURT
MORROW, Chief Judge.
On November 14, 1955 T. Magalei together with a number of other chiefs of the village of Faleniu filed their petition seeking the eviction of defendant R. S. Tago Sianava from certain land in the Tualauta County. The land adjoins and lies to the right of the highway from New Mapusaga to New Aoloau. On the day preceding the hearing, the Court viewed the land in the presence of the Chiefs of Faleniu and Tago’s sister who lives on it. Tago was notified of his right to be present at the viewing but did not appear.
Chief Moea’i, 76 years old, and Talking Chief Si’ufanua, who is close to 80, both testified that the land involved in this case was originally cleared from the bush by the people of Faleniu about 1922. These Chiefs are from Faleniu.
Chief Moea’i testified in part:
“Q Are you familiar with the land which is the subject matter of the dispute between the chiefs of Faleniu and Tago ?
“A Yes.
. “Q You know who cleared that land from the bush?
“A. Ido.
*187‘ ‘Q Did you see it cleared ?
“A Yes.
“Q Now, when was it cleared?
“A In 1922.
“Q Who cleared it?
“A Us, village of Faleniu.
“Q Now, just what chiefs and young men?
“A All young men they were cutting big trees down are now holding matai names, like Filo, Manu, Nu’u, Sagapolu, Uga and others that are not in court today.”
Si’ufanua testified in part as follows:
“Q Who cleared it (meaning the land involved) ?
“A Faleniu.
“Q Well, now, do you know what chiefs of Faleniu or what young men from the village that did it?
“A Yes.
“Q Who were they?
“A These are the people that cut down big trees the first time, Magalei Faapauli, Moeai Sekio, deceased, Muasau Tulaga, and some able men they were old men but able to do the work is Moe Aupiu, Faalafua Tamo, Tuiaana Moi, Iosua Pua’a, and myself when I was a strong man at that time still holding a matai name. Those are the matais. And the young men that helped the chiefs in cutting down trees were the present Uga, Matagi, and the present holder of the title Sagapolu, the present Malufau, the present Manu and some other people who are not in court today.
“Q Well, now, will you tell us, if you can, how it came about that Tago from another village got on that land?
“A His wish.
“Q Well, you tell us what happened, if you know, which resulted in his getting on the land?
“A In 1946 Tago came over to our village of Faleniu trying to check up the people who filed claims for damaged properties during the war. And when Tago came along in that year 1946 on the same day he asked me if I can get the people, the chiefs in my village in the school house. I told Tago I can get the people. Then the people were called and they got together and Tago gone ahead with his work, signed, put down the claims of the village — each individual’s claim. Then after that then we had our ava ceremony. Then while after this ava ceremony was through then Tago made a fine speech *188to the chiefs. Then at the conclusion of his speech he asked the people of Faleniu that he wants a piece of land of this land ¡now in question to live. Then the village chiefs made a conference with respect to Tago’s request. Then it was all agreed by the chiefs of the village to let him have a piece of land for him to live. So all the chiefs give me their opinion that they agree to let Tago have a piece of land and I was the one that talked to Tago about his request telling the wish of the village. Then I was the one that answer the speech of Tago and I told Tago your wish is granted by the village. We will give you a piece of land to put in your plantations. It was his wish. But it was not the wish of the village to give away to give outright. Then Tago thanked the village of Faleniu then again Tago requested us that day that he wanted a piece of land for me to plant taros, bananas, giant taros for the use of his immediate family and maybe for the use of the Faleniu chiefs in the future. And I and talking chief Moeai and another chief Filo went up to the place and this was the same place that I pointed out to Tago for him to live and plant his plantations. And before the first house was put up Tago also requested me that he want just a small house for him to rest while he go and work in the plantation and come and rest. I told Tago, all right, but I have to tell the young men of the village to come and build a house for you. Our village didn’t ask for any payment for building the house for the young men, but Tago in his own heart feels that he should give something for the chiefs and young men. So Tago offered some keg of beefs, cans of pisupo; we accepted. Then after the house was built Tago moved in with his family and lived there and worked on his plantations. Starting from then on we were just like good pals with Tago during those days.
“Q Was that in 1946 ?
“A I think it’s after ’46 because this was happened in the late part of ’46.”
Chief Moea’i also testified about this same matter as follows:
“A On the day that Tago came to our village to check up with our claims then the chiefs gathered together then we told Tago what our damage properties were. Each chief told Tago how much of his plantations were destroyed. Then after all claims were settled then Tago request the chiefs of Faleniu that he wants a place for him to live on this particular land. Then the people of Faleniu told him all right, but wait until we are through with all our claims here and we *189can move to another house and have an ava ceremony there and then discuss the matter that you brought up. Then we moved to another house and had our ava ceremony. Then when we’re through with the ava then Siufanua was the first one to make a speech. He says let us discuss the point about Tago asked. Then the discussion took place between the chiefs of Faleniu village. Then comes to a conclusion that they all agree to the request presented by Tago at that time. Then it was. Siufanua again that told Tago that the village had agreed to your request. Then we went up there to the place and showed Tago this place to live. The village chiefs of Faleniu all of them didn’t go except myself, Siufanua and one Filo. And that was the location that Siufanua pointed out to Tago, the location where Tago’s house now stands. And that is my verification to the Court.”
While there was testimony by Tago that he went upon the land involved by the authority of Fuimaono of New Aoloau (Tago is a member of the Fuimaono Family) we believe the weight of the evidence is to the effect that he took possession of the land late in 1946 pursuant to permission granted by the Chiefs of Faleniu to enter and put in plantations thereon and to put up houses thereon; that the permission to occupy and use the property was to continue as long as Tago should live if he so desired. However, Tago’s procurement of the permission from the Chiefs of Faleniu is not inconsistent with his having asked permission of the Fuimaono also.
Tago claims that the land involved in this case (it is a small part of a larger tract known as Tafeata) is the property of the Fuimaono title of Aoloau. He bases the claim of Fuimaono ownership upon an ancient legend originating about 1822 and passed down by word of mouth for over 125 years. The ancient legend is set out in the opinion of this Court in the case of High Chief Fuimaono by Sianava R. S. Tago v. Moananu and Felila, No. 12-1955 (H.C. of Am. S.). It need not be repeated here. It is sufficient to say that even if it be conceded (and it is not necessary for us to decide the point) that the part of the land Tafeata involved in this case was the property of the Fuimaono *190title, it does not follow that it was still the property of that title when Tago entered upon it late in 1946 after obtaining permission of the Faleniu chiefs to enter.
It is quite clear to us from the evidence that the Chiefs of Faleniu had continuous possession of the tract now in dispute for more than 20 years from the time they cut down the big trees on it in 1922 and that their possession was such as to be adverse to any claim of ownership by the Fuimaono. Under these circumstances the ownership of the part of Tafeata involved in this case passed to the Chiefs of Faleniu at the end of the 20 year period of possession which began in 1922. Adverse possession for the statutory period (it is 20 years in American Samoa. See Sec. 907 of the A. S. Code) vests title in the adverse possessor. Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 607; Puailoa v. Leapaga, No. 64-1948 (H.C. of Am. S.); Pelenato Sa Manoa v. Maea et al, No. 11-1955 (H.C. of Am. S.). The 20 year period would end in 1942 which was 4 years prior to the entry by Tago through permission of the Chiefs of Faleniu.
We believe, furthermore, from the evidence that when Tago entered late in 1946 there were no plantations on the land, though no doubt the Faleniu Chiefs did have plantations on it prior to and during part of the war.
Tago entered upon the land, cleared it of grass, weeds and small bushes that had grown up on it. He also built a Samoan house on it and a short time thereafter a palagi house, both of which are still standing and being used by Tago and his people. He also put in plantations on the land and greatly improved it.
No difficulty arose between Tago and the Chiefs of Faleniu over the land until 1952. With respect to the start of these difficulties Siufanua testified: “Yes, we were in good terms from then on the first time Tago entered upon the *191land, up to the time he surveyed the land then he started turning his back towards us.” Tago surveyed the land together with certain adjoining land in 1950 and offered it for registration as his own property in 1952.
These difficulties have culminated in this lawsuit and in the Chiefs of Faleniu retaking possession of the lower part of the land. The lower part of the re-possessed part was planted in coconuts by Tago. The upper part thereof was formerly planted with taro and bananas by Tago, but is now planted in taro by Chief Filo of Faleniu. There is a very small patch of taro just above Filo’s taro patch which was just recently planted by Tago’s people. Tago still has possession of all the land down to Filo’s taro patch, which patch begins at a boundary line approximately 275 feet below the lower side of Tago’s palagi house on the land.
We find from the evidence that Tago (1) entered upon the land pursuant to and in reliance on permission granted by the Chiefs of Faleniu (2) cleared the land of small growth and put in plantations thereon (3) built a Samoan and a palagi house thereon (4) and still has possession of the land first occupied by him down to Filo’s taro patch the upper part of which begins at a boundary line roughly perpendicular to the highway and about 275 feet below the lower side of Tago’s palagi house on the land.
We further find that the Faleniu Chiefs have revoked the permission granted to Tago in 1946 to enter upon the land, occupy, and use it and have re-possessed that part extending up to the upper side of Filo’s taro patch, the upper boundary of which is a line roughly perpendicular to the adjoining highway. This line is about 275 feet from the lower side of Tago’s palagi house. We further find that there was no intention on the part of the chiefs to convey to Tago an interest or estate in the land.
There is no qualified surveyor in Tutuila at the present time and the Court cannot, as a practical matter, order a *192survey ,to be made with a view to describing with greater accuracy the part still occupied by Tago.
Hereinafter in this opinion we shall refer to the part still occupied by Tago as the “upper tract” and the part re-possessed by the Faleniu Chiefs as the “lower tract.”
In view of our finding that there was no intention on the part of the Chiefs to convey to Tago an interest or estate in the land, we think the permission granted to him to enter upon, occupy, and use it constituted a parol license and not an interest or estate. A license is “An authority to do a particular act or series of acts upon the land of another without possessing any estate or interest therein. Polley v. Ford, 190 Ky. 579, 227 S.W. 1007, 1008; Haas v. Brannon, 99 Okl. 94, 225 Pac. 931, 936.” Black’s Law Dictionary (3rd edition). The question then arises as to whether the Chiefs may legally revoke the license after Tago in reliance on it has cleared the land of small growth, improved it, put in plantations and built houses thereon, i.e. after the license has been executed.
Some courts have held that such a license, although not an interest or estate in land, may nevertheless not be revoked. “In many jurisdictions where a licensee has entered under a parol license and has expended money or its equivalent in labor, it becomes irrevocable, and the licensee acquires a right of entry on the lands of the licensor for the purpose of maintaining his structures, or, in general, his rights under his license, and the license will continue for so long a time as the nature of it calls for.” 33 Am.Jur. 408 citing Chesapeake & Ohio Canal Co. v. Ray, 101 U.S. 522, 25 L.ed. 792 and many other cases.
On the other hand “The courts of many of the states uphold the general rule that a parol license to do an act on the land of .the licensor, while it justifies anything done by the licensee before revocation, is nevertheless revocable at the option of the licensor, and this although the intention was *193to confer a continuing right, and money has been expended by the licensee on the faith of the license.” 33 Am. Jur. 410 citing Hicks Bros. v. Swift Creek Mill Co., 133 Ala; 411, 31 So. 947, 57 L.R.A. 720 and a number of other cases.
And “In some cases, the view is taken that under the rulé that a license es revocablé although expenditures on the faith of it have been made, the licensee is not entitled to compensation for the cost of such expenditures or improvements upon the land of the licensor (citing Foster v. Browning, 4 R.I. 47). A majority of the cases, however, support the contrary view. According to these cases, if a license is revocable, the licensee, as between the parties, upon the revocation by the licensor of a license for the use of .the latter’s real property, is entitled to compensation or reimbursement for expenditures made by the former upon the property on the faith of the license (citing Wynn v. Garland, 19 Ark. 23 and many other cases).” 33 Am.Jur. 411.
We think that under the circumstances of this case the license is revocable. We also think that the last mentioned rule declaring that the licensee is entitled to compensation for expenditures made in reliance on the license is more in accordance with the principles of ordinary justice than the rule that he is not.
However, in view of the way of life of the Samoan people and their customs with respect to money, we think that it would be most impractical to require compensation to be made for expenditures in reliance on a license prior to revocation.
The A. S. Code fully recognizes that the common law may not in all respects be suitable to conditions in these islands. In Sec. 1 it is provided that “Laws applicable in American Samoa: The following are declared to be in full force and to have the effect of law in American Samoa: *194(a) such parts of the Constitution and such laws of the United States of America as shall, by their own force, be in effect in American Samoa; (b) this Code of Laws of the Government of American Samoa, amendments thereto, and executive orders, promulgated by the Governor of American Samoa; (c) so much of the common law of England as is suitable to conditions in American Samoa and not inconsistent with the aforesaid.”
The Courts of American Samoa have been faced with this same problem before. We have held under circumstances similar to those in this case that the licensee may retain possession of the property and make use of it in accordance with the terms of the license until such time as the value of the use of the property is equal to the value of his expenditures less the value (after they are torn down) of any buildings which he has erected on the land and can remove therefrom when he leaves it. There are cases in which this rule may be impossible to apply because the value of the use of the license over any specified future period within the lifetime of either the licensor or licensee may not equal the expenditure already made in reliance on the license. Such was the case of Daniel Foster v. Olotoa, No. 15-1953 (H.C. of Am. S.) in which we applied the rule that a parol executed license could not be revoked.
In the case of Sa-Leamanai Family and Leasiolagi of Asu for the Fao Family v. Tomasi and Tulei of Iliili, No. 22-1951 (H.C. of Am. S.) the facts were essentially the same as in the present case. There we said “Inasmuch as we find that Tomasi entered upon the land in accordance with Samoan customs under the authorization of and with the consent of Malama, later confirmed by Vao the matai of the Salemeanai family, we think it would be unjust, even though we do find that the disputed tract is Salemeanai family land, to order Tomasi and Tulei (Tulei was Tomasi’s wife) to surrender possession now leaving their *195plantations, the product of their hard labor, behind for the use of the Salemeanai people.” In that case decided on January 29, 1952 the court decreed “that Tomasi and Tulei shall have the right to continue to possess, occupy and use that part thereof (meaning the land involved in the litigation) on which they now have plantations until January 15, 1958, at which time they shall surrender possession of such part together with the then plantations upon it in an unharmed condition to the Salemeanai family.”
In the case of Heirs of Lemeanai Family v. Iosia of Tafuna, No. 20-1953 (H.C. of Am. S.) similar to the present case we decreed “that Iosia shall have the right to continue to possess, occupy, and use for plantation purposes that part of the land Foganono on which he now has plantations until January 1, 1956 and shall also have the right to continue to use and occupy his houses thereon until January 1, 1956 at which time he shall vacate the land Foganono taking houses with him if he so desires. He shall leave such of his plantations as may be on Foganono on January 1,1956 in an unharmed condition.”
As heretofore stated, the Court viewed the land involved in the instant case before the hearing. We saw what Tago has done in reliance upon the permission (license) given to him by the Chiefs of Faleniu. We saw the lower tract which the Chiefs have reoccupied and the coconut trees planted by Tago and Filo’s present taro patch on it. In the light of the testimony and what we saw we think Tago (it must be remembered that the lower tract has already been repossessed by the Chiefs and that they have been benefited by Tago’s expenditures and labor on that part) will be made whole despite the revocation if he has possession and use of the upper tract for seven years with the right of removing his houses standing thereon at the expiration of the seven years, at the same time leaving any plantations he may have thereon at that time in an unharmed condition.
*196DECREE
Accordingly it. is ADJUDGED, ORDERED and DECREED that Tago shall have the right to continue to occupy, possess, and use for dwelling and plantation purposes the uppér tract (i.e. the part of the land in dispute now occupied by him and extending down to Filo’s taro patch the upper boundary of which is a line approximately perpendicular to the adjacent highway and which boundary line, is approximately 275 feet from the lower side of Tago’s palagi house) for seven years from the date of this decree which is Dec. 30, 1955 at which time he shall have the right, if he has not done so before, to remove his houses on said upper tract, leaving any plantations he may have thereon at that time in an unharmed condition. Tago is hereby ORDERED to vacate said upper tract on or before Dec. 30,1962.
We think under the circumstances of this case that the costs of $25.00 should be divided equally between the parties. Accordingly costs in the sum of $12.50 are hereby assessed against T. Magalei and the other Chiefs of Faleniu who were parties plaintiff with him, the same to be paid within 30 days. And costs in a like amount are hereby assessed against R. S. Tago Sianava, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485204/ | OPINION AND ORDER
OPINION OF THE COURT
MORROW, Chief Judge.
Tolivale filed her petition seeking eviction of Ufanua from the land Matapuna in Fagatogo. Tolivale occupies a *198house on this land while Ufanua, together with her own 5 children and 2 stepchildren, occupy another house on it. James Bird and his family occupy a third house also on it.
Plaintiff Tolivale, a Samoan woman, is the widow of George Bird, an American sailor, who has been dead for many years. Tolivale and George Bird had four children, viz: George, Jr., James, Willie and Lizzie, all of whom survived their father and are still living. Lizzie, the youngest, is now about 30 years old.
The son George, Jr. married the defendant Ufanua by whom he had 5 children. He had two children by a former marriage. George, Jr., who was an electrician, was accidentally electrocuted in Utulei on January 6, 1955.'
By deed executed on June 22, 1908 and recorded in Vol. 1 of Native Titles, p. 105, Fanene Pi conveyed the land hereinbefore referred to (and from which Tolivale seeks to evict Ufanua) to Tolivale “IN TRUST, HOWEVER, for the use and benefit, maintenance, education and support of the issue of the marriage of said Tolivale and the said George Bird, (said issue at the present time consisting of George Bird, Jr. and James Bird) and upon the attainment of the age of twenty-one years by the youngest of said issue, the title in fee simple to the above described lands shall then and thereupon vest in said issue, share and share alike.” The “present time” refered to in the deed was of course the date of its execution which was June 22, 1908.
Under the terms of the deed Tolivale was a trustee. While she had the legal title the beneficial interest was in her issue by George Bird, her husband, until such time as their youngest child should attain the age of 21 years at which time the fee simple title to the land vested in the “said issue, share and share alike.” Lizzie, the youngest of the children attained the age of 21 years about 9 years ago. At that time, therefore, the ownership of the land became vested in the four children as co-owners. Each of the four *199had ah undivided one fourth interest in fee simple. When George Bird, Jr. died (he did not leave a will) his undivided fourth, subject to the dower rights of his widow, the defendant, Ufanua, descended to his 7 children. Sec. 977(a) A.S. Code.
One third in value of all the legal or equitable estates in real or personal property possessed by a husband at the time of his death are to be set apart to his surviving widow in fee simple. Sec. 958 A. S. Code. No assignment of dower in George Bird, Jr.’s undivided fourth has been made. His seven surviving children are co-owners of the land with James, Willie and Lizzie. Whether a widow is a co-owner with the heirs before assignment of dower, is a question on which the courts are divided. The great weight of judicial authority is to the effect that she is not. “Upon the death of the husband, the right of dower matures into a right of action to have her dower assigned to her in the lands of which her husband had been seized and to which her dower had not been barred. Before assignment this right rests merely in action.” 17 Am.Jur. 706. However, at least one court has decided that unassigned dower of the widow is an estate and that she is a co-owner with the heirs. Enyard v. Enyard, 190 Pa. 114, 42 Atl. 526, 70 Am. St.Rep. 623. And in McGowan v. Bailey, 179 Pa.St. 470, it was said that the widow’s interest in real estate of which her husband died seized, of which there had been neither appraisement nor partition, was a freehold estate in the land.
“It is a rule of general application that any co-owner of real property has a right to enter upon the common estate and take possession of the whole thereof, subject only to the equal right of his companions in interest,' with whose possession he may not interfere.” 14 Am.Jur. 93. “Subject to the rights of his co-tenants” a co-tenant “may occupy and utilize every portion of the property at *200all times and in all circumstances, but of course he has no right to exclude his co-owners (emphasis ours), or to appropriate to his sole use any particular portion thereof.” 14 Am. Jur. 95. One co-owner cannot oust another. Prairie Oil & Gas Company v. Allen, 2 F. (2d) 566, 40 ALR 1389.
If before her assignment of dower defendant Ufanua became a co-tenant with her children and stepchildren and James, Willie and Lizzie, this petition must be dismissed as she is entitled to possession. But we think it need not be decided whether she became a co-tenant or merely had a right to be assigned dower upon the death of her husband because it is clear to us from the deed that plaintiff Tolivale’s interest in the land as trustee came to an end upon Lizzie’s attaining the age of 21 years which was about eight years prior to the death of George Bird, Jr. Having no interest or estate in the land, Tolivale cannot maintain this action against Ufanua and her petition must be dismissed.
During the course of the hearing evidence was presented to the Court to the effect that defendant Ufanua had over a considerable period of time uttered what may have been slanderous remarks about plaintiff Tolivale, her mother-in-law; that in addition she had on various occasions threatened her and on many occasions committed an assault and battery upon her. In short the evidence indicated that Ufanua has subjected Tolivale to much personal abuse. This abuse prompted this action. Ufanua is a large woman, strong and vigorous, 41 years of age. Tolivale is about 85 years of age and small. She moves about with difficulty, being somewhat crippled. However morally wrong the abuse may have been, it is not determinative of this case. Although it would not ordinarily be included in a judicial opinion, nevertheless the Samoan Judges on the Court have requested the writer to insert herein a strong *201warning to Ufanua against continuing any abuse of her aged and infirm mother-in-law. It. should be stated that slander is a crime in American Samoa (Sec. 858, A. S. Code) as is assault and battery (Sec. 821, A. S. Code). Both crimes are punishable by fine or imprisonment or both. And of course it is common knowledge that both slander and assault and battery are torts for which civil actions for damages will lie. These facts should be sufficient warning to Ufanua not to abuse her aged mother-in-law any more. Also it should help keep the peace.
ORDER
It is hereby ORDERED that the petition of Tolivale to evict Ufanua be and the same is hereby dismissed.
Costs in the sum of $10.50 are hereby assessed against Tolivale, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485207/ | OPINION AND DECREE
OPINION OF THE COURT
MORROW, Chief Judge.
Uele of Nuuuli filed his application with the Registrar of Titles on January 20, 1955 to be registered as the holder of the matai title Maluia of Nuuuli. On January 21, 1955 Misi Taufetee of Nuuuli filed an objection to the proposed registration and became a candidate for the name. Hence this litigation. Sec. 932 of the A. S. Code.
Sec. 926 of the Code as amended prescribes the qualifications for holding a matai title. The evidence showed that each of the two candidates has the necessary qualifications and is, therefore, eligible for registration as the holder of the matai title.
Sec. 933 of the Code as amended prescribes the law which the court must follow in determining which of the *215eligible opposing candidates for a matai title shall be registered as its holder. It reads as follows:
“Consideration Given by Court: In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail;
(b) The wish of the majority or plurality of the family;
(c) The forcefulness, character, personality and capacity for leadership of the candidate;
(d) The value of the holder of the matai name to the Government of American Samoa.”
We shall first consider the issue of hereditary right. Misi is the great grandson of Maluia Vaeaitu. He has one-eighth Maluia blood in his veins. We find Uele to be the blood son of Maluia Meafua and to have one-half Maluia blood in his veins. Misi claims that Meafua never held the Maluia title. However, he admitted on the witness stand that Meafua was the blood son of Maluia Akeimo. If it be conceded that Meafua never held the title, Uele would nevertheless have one-fourth Maluia blood due to the admitted fact that he is the grandson of Maluia Akeimo. Since Misi has only one-eighth blood, it follows that Uele prevails on the first issue whether his blood-father Meafua was a Maluia or not.
Each of the two candidates filed a petition with the Court purporting to be signed by those blood members of the Maluia Family supporting his candidacy. There were 202 signatures on the petition for Uele and 75 on the petition for Misi. In addition there were 4 signatures for Misi sent by mail to the Clerk of the High Court. Misi claimed that 73 of the 202 signers on Uele’s petition were not blood members of the Family; also that 24 of the purported signatures on Uele’s petition were written by S. Fesagaiga, a member of the Maluia Family. The 24 names were those of *216members of the Fesagaiga Family who are also members of the Maluia Family. However, after hearing the testimony of S. Fesagaiga himself (he is the matai of the Fesagaiga Family) we are convinced that all 24 signatures are genuine and that S. Fesagaiga did not write them. Misi admitted .that 129 signers (202 less 73 objected to by Misi) on Uele’s petition were blood members. If we concede that all of the 75 signers on Misi’s petition, plus the 4 who indicated by mail that they favored Misi, are blood members, Uele prevails on the issue of the majority or plurality of the family, having an admitted 129 members for him. If we deduct the 17 names appearing on both petitions (and if we do not count them for one candidate we cannot count them for the other either) we then have 112 (129 less 17) for Uele and 62 (79 less 17) for Misi. Even if we were to deduct the 17 from Uele’s petition only, Uele would still prevail over Misi by 112 to 79. We find that Uele prevails over Misi on the second issue.
Uele finished the 6th grade at Poyer School. He speaks English. He joined the Fita Fita Guard and Band in 1926 and was on active duty until 1947 when he retired as a seaman 1st class. He has held the Sialega title of Nuuuli since 1938. He receives $72.52 per month as a retired Fita Fita. He sells kava roots, copra, taro and other agricultural products of his plantation from which he has an income of approximately $50.00 per month. Uele is a carpenter. He has rendered service to the Maluia title.
Misi graduated from the Marist Brothers’ School, completing the 9th grade. He speaks English well. After his graduation he worked as a printer. Then he worked as a clerk in the U.S. post office in Pago Pago. In 1942 he joined the Samoan Marines and served until the end of the war. He then went to work for the Bank of American Samoa, but returned to the post office as a clerk in 1946, and has continued in that position ever since. His annual salary as *217a postal clerk.is $4,410. He has plantations but sells nothing from them. Misi lives in the Taufetee Family in Nuuuli. He has rendered service in a number of ways to the Maluia title.
During the course of the hearing the judges of the Court had an excellent opportunity to observe the personalities of the two candidates.
It is our conclusion from the evidence and what we observed that Misi prevails over Uele on the issue of forcefulness, character, personality and capacity for leadership and we so find.
We believe also from the evidence that Misi would be of more value to the Government of American Samoa as the holder of the Maluia title than would Uele. We believe that he has greater capacity for leadership than Uele and for that reason would handle the affairs of the Maluia Family better than would Uele. It is distinctly to the advantage of the Government to have the most able men as matais to handle the affairs of Samoan families. We find that Misi prevails over Uele on the fourth issue.
Since Sec. 933 of the Code, as amended, requires the Court to give more weight to the first issue than to the second, and more to the second than to the third, and more to the third than to the fourth, it follows, since Uele prevails over Misi on the first two issues, that we must award the title Maluia to him, despite the fact that we find that Misi prevails over Uele on the third and fourth issues.
Uele is the holder of the title Sialega of Nuuuli. It is not necessary for us to cite authority to the effect that the same person cannot hold two matai titles at the same time. Uele must resign from the title Sialega of Nuuuli before he can be registered as the holder of the Maluia title.
DECREE
Accordingly it is ORDERED, ADJUDGED and DECREED that upon Uele’s filing his resignation from the *218Sialega title of Nuuuli with the Registrar of Titles, said Uele shall be registered as the holder of the matai title Maluia of Nuuuli.
Costs in the sum of $25.00 are hereby assessed against Misi Taufetee, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485208/ | OPINION OF THE COURT
MORROW, Chief Judge.
On May 25, 1955 F. Vavala of Masefau filed his application with the Registrar of Titles to be registered as the holder of the matai title Maga of Masefau. Tuna of Vatia filed an objection to the proposed registration on June 9, 1955 and Faaagi of Fagaitua did likewise on June 14, 1955. Both of the objectors became candidates for the name.
*219When the hearing opened Tuna withdrew his objection, ceased to be a candidate and was dismissed as a party to .the proceeding.
Sec. 926 of the A. S. Code, as amended, prescribes the qualifications for holding a matai title. The evidence showed that each of the two remaining candidates has the necessary qualifications, and is, therefore, eligible for registration as the holder of a matai title.
Sec. 933 of the A. S. Code, as amended, prescribes the law which the Court must follow in determining which of the eligible opposing candidates for a matai title shall be registered as its holder. It reads as follows:
“Consideration Given by Court: In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail;
(b) The wish of the majority or plurality of the family ;
(c) The forcefulness, character, personality and capacity for leadership of the candidate;
(d) The value of the holder of the matai name to the Government of American Samoa.”
The first issue for consideration is that of hereditary right. The undisputed evidence revealed that Faaagi is the blood-son of Maga Tuulima. He has one-half Maga blood in his veins. The undisputed evidence also revealed that Vavala is the grandson of Maga Sitíela. He has one-fourth Maga blood in his veins. It is obvious that Faaagi prevails over Vavala on the issue of hereditary right.
Faaagi and Vavala each filed a petition with the Court purporting to be signed by those blood members of the Maga Family supporting their respective candidacies. There were 273 signatures on the petition for Faaagi and 188 on the petition for Vavala. Each testified that all of the signers on his petition were blood-members of the Maga *220Family. However, Faaagi testified that 7 of the signers on Vavala’s petition were not blood members but only married persons to the Family. He also claimed that 3 groups of 5 signatures each on Vavala’s petition were not genuine, each separate group being written by a single hand. An examination of the signatures will make it apparent to the most casual observer that this claim is well founded. Also we believe from the evidence that the seven signers above referred to are members of the Maga Family through marriage only and .that, therefore, they are not members through blood. We conclude that 166 signers for Vavala are blood-members. Faaagi admitted on the witness stand that 164 of the 166 were blood-members.
There were 273 signers on Faaagi’s petition. Vavala objected to 185 of them claiming that they were not blood-members because they did not indicate on the petition from what former holder, or holders, of the title they had descended. The form of the petition used had spaces for indicating such information. However, it does not follow because a signer did not indicate what former holder of the title he descended from that he did not descend from such holder. In other words, if A is the grandson of B it does not follow that he is not the grandson of B because he does not say that he is. A man can be the descendant of an ancestor without naming the ancestor. Vavala did not object to any signer for Faaagi who put down on the petition the name of the former holder of the title from whom he descended. While no doubt it would have been better for those signers who did not indicate the names of the former holder, or holders, of the title from whom they descended to have done so, still it does not follow that we should disregard their names for that reason when there is evidence in the record, as there is, from which we may properly conclude that they are descendants of former holders of the title. Faaagi testified that all of the signers on his petition were *221blood-members, , i.e. they carried in their veins the blood of former holders of the title Maga. We think that the weight of the evidence is to the effect that the signers for Faaagi, who did not indicate the title holders from which they had descended, are blood-members. It follows from this evidence that Faaagi prevails over Vavala on the issue of the wish of the majority or plurality of the family.
Vavala is 42 years old. He graduated from the 9th grade at Poyer School. Then he attended Feleti School for three years and was graduated therefrom. He speaks English. He worked as a laborer for Public Works from 1937 to 1941 when he was made a foreman by Public Works and placed in charge of a group of laborers. He continued as a foreman until the war was over. He then went to Masefau and has remained there up to the present time, devoting his efforts to the care of Maga Family plantations. He sells vegetables, taro and bananas, the product of his labor on the plantations. He raises pigs and chickens for sale. He is industrious. He has lived in the Maga Family for many years and is familiar with family matters.
Faaagi is 53 years old. He graduated from the 6th grade in a faifeau’s school. He then attended the public schools being in the 2nd grade. However, he never completed the 2nd grade. He speaks very little English. He has spent most of his life working on plantations. He has done a little carpentering. He worked for a short time as a laborer on the road from Laulii to Fagaitua and also worked with a Marine gang during the war. He has been a policeman for a pulenuu, for a county chief and for a district governor. For one year he was the pulenuu of Fagaitua. He left the Maga Family in Masefau many years ago to live in Fagaitua where he spent most of his life. He lacks familiarity with Maga Family matters, since he has not lived in the Family for many years. He sells taro, pineapples, bananas, *222and copra from his plantations. He has held a matai title in Fagaitua for a number of years.
The Court had an opportunity to observe the personalities of Vavala and Faaagi during the hearing. It is our conclusion from the evidence and our observation of the two Candidates that Vavala prevails over Faaagi on the issue of forcefulness, character, personality and capacity for leadership, and we so find.
On the issue of the value of the holder of the matai name to the Government of American Samoa, we are convinced from the evidence that Vavala would be of more value to the Government of American Samoa as the holder of the Maga title than would Faaagi. A matafis value to the Government depends mostly , upon the quality of his work as a matai and that in turn hinges mainly upon his capacity for leadership. We have concluded that Vavala has more capacity for leadership than has Faaagi. We find that Vavala prevails over Faaagi on the 4th issue.
Since under Sec. 933 of the Code, as amended, the Court must give more weight to the 1st issue than to the 2nd, more to the 2nd than to the 3rd and more to the 3rd than the 4th, it follows that Faaagi, having prevailed over Vavala on the first two issues, must be awarded the title by the Court. However, Faaagi cannot be registered as the holder of the Maga title unless he resigns within a reasonable time from the Faaagi title. It is not necessary for us to cite authority for the proposition that the same person cannot hold two matai titles in American Samoa at the same time.
DECREE
Accordingly it is ORDERED, ADJUDGED and DECREED that upon Faaagi’s filing his resignation from the Faaagi title with the Registrar of Titles within 15 days, he shall be registered as the holder of the matai title Maga of Masefau.
*223Costs in the sum of $25.00 are hereby assessed against Y avala, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485209/ | OPINION AND DECREE
OPINION OF THE COURT
MORROW, Chief Judge.
On January 16,1956 Taimane Tiumalu filed her application with the Registrar of Titles to be registered as the holder of the matai title Tiumalu of Fagatogo. Faamao Tiumalu filed his objection to the proposed registration the same day and became a candidate for the name. Hence this litigation. Sec. 932 of the A. S. Code.
Sec. 926 of the Code as amended prescribes the qualifications for holding a matai title. The evidence showed clearly that each of the two candidates has these qualifications and *224is, therefore, eligible for registration as the holder of a matai title.
Sec. 933 of the Code as amended prescribes the law which the Court must follow in determining which of the eligible opposing candidates shall be registered as the holder of a matai title. It reads as follows:
“Consideration Given by Court: In the trial ,of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the mále descendant shall prevail;
(b) The wish of the majority or plurality of the family;
(c) The forcefulness, character, personality and capacity for leadership of the candidate;
(d) The value of the holder of the matai name to the Government of American Samoa.”
We shall first consider the factor of hereditary right. The evidence showed that Taimane is the blood-daughter of Tiumalu Silailai and that Faamao is the blood-son of Tiumalu Faigata. Taimane has one-half Tiumalu blood in her veins. Faamao also has one-half Tiumalu blood in his veins. It follows, therefore, that Taimane and Faamao are on an equality with respect to hereditary right.
Each of the candidates filed a petition with the Court purporting to be signed by those blood-members of the Tiumalu Family supporting his candidacy. There were 33 signatures on the petition for Faamao. There were also listed on his petition 21 names (all written by the same hand) of blood-members who had indicated by letters sent to Faamao that they favored Faamao’s candidacy. These letters were introduced in evidence. There were 54 members who indicated their desire that Taimane be the matai, 33 on the petition for Taimane, the remainder by letters sent to the Clerk of the High Court. Objection was made by counsel for Taimane to the 21 who indicated their desire *225for Faamao by letter since'the letters were sent to Faamao himself instead of to the Clerk. It is not necessary for us to consider whether the objection is well taken since, as will appear later, a majority of the blood-members favor Taimane. We will say, however, that it would have been much preferable- for candidate Faamao to have had his supporters send their letters direct to the Clerk. Faamao admitted on the witness stand that all of 54 supporters of Taimane were blood-members of the Tiumalu Family. Taimane’s testimony was to the same effect. Even if we include the 21 who sent the letters direct to Faamao instead of the Clerk, nevertheless Taimane prevails over Faamao on the issue of the wish of the majority or plurality of the family since two of the signers on Faamao’s petition, viz., Sione and Asalele, are not blood-members. Faamao admitted that they were not, they having come into the Family through adoption. Taimane testified that Sione and Asalele are not blood-members. Counting the 21 who sent letters to Faamao instead of the Clerk together with the 31 (33 less Sione and Asalele) on his petition who are blood-members, Faamao has 52 blood-members supporting his candidacy while Taimane has 54 such members supporting her candidacy. It should be stated that in several instances a number of the signatures in one of the letters sent to Faamao were apparently written by the same hand. The Court finds that Taimane prevails over Faamao on the issue of the wish of the majority or plurality of the Family.
The next matter for consideration is the forcefulness, character, personality and capacity for leadership of the respective candidates. Taimane, 49 years old, quit the public school in the 3rd grade and then attended faifeau’s school for 6 years. She is married and is the mother of 7 children, all grown. She speaks English and has spent a year in Hawaii. She bakes a large number of pies which her son-in-law sells for her in his ice-cream parlor.
*226Faamao, 62 years old, completed the 6th grade. This was in 1906 when it was the highest grade in which instruction was provided by the public schools. He speaks English. After leaving school he became a laborer for Public Works looking after officers’ quarters. Later he became a foreman for Public Works and in the course of his work as such supervised a large number of laborers engaged in building a water reservoir for the U.S. Navy here. He has been a policeman and for some time was the chief of police, a position from which he resigned during the war to become a dock foreman. He has been in the taxicab business for a number of years and still operates a taxi service. He served as a member of the Fono during 1953 and 1954. The Court had an opportunity to observe the personalities of the candidates during the hearing. With respect to forcefulness, character and personality we think that the candidates are equal but with respect to capacity for leadership we think Faamao is superior at the present time because of his prior experience. However, he is 62 years old and has long since passed the prime of life which fact will adversely affect his capacity for leadership as time goes on. Taimane is 13 years younger than Faamao and much nearer the prime of life. We think, however, that Faamao prevails over Taimane by a narrow margin on the 3rd issue and we so hold.
It has been the practice for many years in the Tiumalu Family to alternate the matais between Taimane’s branch and Faamao’s branch. Faamao’s blood-brother Tiumalu Male was the last holder of the title, and in accordance with the Family practice, it would be Taimane’s branch from whom the next matai would be chosen. This is the first time in all the history that resort has been had to the Court for the determination as to who will be the matai of the Tiumalu Family. There is considerable bitterness in the Family because Faamao is trying to secure the title a *227second consecutive time for his branch. Many people in Taimane’s branch and a number also in Faamao’s branch feel that this attempt by Faamao to get the title for himself when, under the family practice, it is the Taimane’s branch’s turn is wrong. In fact the blood sons and daughters of Tiumalu Male, the last holder of the title and the blood-brother of Faamao, are opposed to Faamao. They want Taimane to have the title. Taimane, as before stated, is 13 years younger than Faamao and there is no bitterness in the Family toward her as there is toward Faamao. He is trying to make Taimane’s branch continue to be servers which fact many members of the Family deeply resent. Largely because of these facts both the Samoan judges and the writer of this opinion believe that in the long run Taimane will be of more value to the Government as the holder of the title than will Faamao. Even though Faamao, if awarded the title, might be able to unify the Family on the surface yet the underlying discord because of the feeling that it is Taimane’s branch’s turn to have the title will not disappear. Taimane is a kind woman. We believe from the evidence that she can easily win the good will of all the Family, even the good will of Faamao himself. We think she can unify the Family more readily than can Faamao because of the circumstances of this case. Tuiasosopo, a senior and leading member of the Tiumalu Family, told the Court that the Tiumalu Family is a unit. We think from the evidence that Taimane, who is much nearer the prime of life than is Faamao, will in the long run be of greater value to the Government as the holder of the Tiumalu title than would Faamao. We hold that Taimane prevails over Faamao on the fourth issue.
Since the parties are on an equal footing on the first issue and Taimane prevails over Faamao on the second and fourth issues, while Faamao prevails over Taimane on *228the third issue only, it follows that the Court must award the name Tiumalu to Taimane.
DECREE
Accordingly it is ORDERED, ADJUDGED and DECREED that Taimane shall be registered as the holder of the matai name Tiumalu of Fagatogo.
Costs in the sum of $25.00 are hereby assessed against Faamao, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485210/ | OPINION AND DECREE.
OPINION OF THE COURT
MORROW, Chief Judge.
On March 9, 1956 the Vaimaona Family of Laulii filed their petition seeking the eviction of the defendants from the land Mulipa located at Aumi. Prior to the hearing, the Court viewed the land involved in the presence of the parties. The plaintiffs claimed that the land Mulipa was the communal family land of the Vaimaona Family and the defendants admitted that that was true.
The evidence showed that defendant Meafou is the widow of one Vaimaona Pauulu who became the Vaimaona in 1941 and held the title until June 1946 when he resigned. Meafou and Pauulu had three children. Meafou was married prior to her marriage to Pauulu, having three children by her first marriage, viz., defendants Potoae, (the wife of defendant Fouvale), Tóese and Taulolomi. After Pauulu became the Vaimaona in 1941, he, his wife Meafou, their children and Meafou’s 3 children by her former marriage moved onto and began occupation of the land Mulipa. They continued to occupy it after Pauulu’s resignation from the title in 1946, and with the exception of Pauulu, who died in 1952, have continued to occupy it until the present time. Fouvale, who is married to Potoae, and their small children, also live on the land.
Vaimaona Foloi, the present holder of the title, testified in part as follows:
*230“Q Now, whom do you want to get off, just name the people you want to get off this land?
A Meafou, Potoae, Fouvale, Tóese, Taulolomi, five.
Q You want to get off those five?
A Yes.
Q Are those all that you want to get off ?
A Yes.
Q Now, you don’t want to get off Pauulu’s children by Meafou?
A No.
Q Now, why do you want to put these people off?
A Because they don’t render service to the matai and they didn’t discuss together with the Vaimaona Family.
Q Why won’t they render service ?
A They just don’t render service that’s all, but they are rendering service to other matais.
Q What matais ?
A They first render service to Leaana Lui.
Q Then whom did they render service to ?
A Now, they are serving Pele Tamotu.
Q That’s the chief of police ?
A Yes.
Q Is that all you’ve got against them?
A Yes.
Q Now, you say they disturb the peace within the Vaimaona Family. What do you mean by that ?
A First is that they rejected the people of the Vaimaona Family and second Meafou is trying to lead the children of Pauulu in other ways which is against the custom of the Samoan families.
Q What other ways is she trying to lead them ?
A Because the children were living together with me, two of the boys were living with me and one Taufuiava was living with my sister Folasa Ialiva. Meafou came along and took the children along and advised the children not to go to the Vaimaona Family anymore.
Q Were they her own children?
A Yes, by Vaimaona Pauulu.
Q In other words, she wanted her own children back?
A Yes.
Q And you obj ected ?
A I told Meafou not to treat the children like that, leave the children alone. If they want to come to the family, let them. If they *231want to come to her, let them come. Don’t force the children to any place.
Q Now, they are her own children, are they?
A Yes.”
We think this testimony sets forth quite clearly the reason for the plaintiffs’ complaint against the defendants. Whether such complaint has any basis in fact is for the Court to decide upon the evidence.
Meafou is not a member of the Vaimaona Family by blood. Her three children by Vaimaona Pauulu are. Her three children by her first husband, viz., defendants Potoae, Tóese and Taulolomi, are not. Neither is Potoae’s husband, defendant Fouvale; nor are the children of Potoae and Fouvale. It is the custom in Samoa for a widow who has children to continue to live in her deceased husband’s family with their children on family land. If she has no children by her husband, then she usually goes back to live in her own family, that is the family in which she was born. Section 2 of the American Samoan Code provides that “The customs of the Samoans not in conflict with the laws of American Samoa or the laws of the United States shall be preserved.” There is no law of the United States nor of American Samoa prohibiting a widow together with her children by her deceased husband from continuing to live on communal lands of his family after his death. It follows that widow Meafou and her children by Pauulu have the right to continue to live on land of the Vaimaona Family unless that right has been forfeited.
Vaimaona Foloi claims that she has forfeited that right due to alleged failure “to render service to the matai and they didn’t discuss together with the Vaimaona Family,” and because of her “rendering service to other matais,” viz., Leaana Lui and Pele Tamotu, and also because she insists on having her own children live with her.
*232. While the evidence is contradictory in many respects, we believe that it preponderates in favor of the view that Meafou has and is rendering some service (not as much as the matai has demanded, but still a substantial amount for a widow with three children) to the matai Vaimaona Foloi. As far as rendering service to Leaana Lui and Pele Tamotu is concerned, we think that the evidence preponderates in favor of the view that if Meafou did render any such service it was an insignificant amount. In fact Pele Tamotu, who is chief of police for the Island Government and a responsible person, testified that she had rendered no service to him. We believe the weight of the evidence indicates that Meafou “didn’t discuss together with the Vaimaona Family.”
A chief owes duties to the members of his family. He should serve as well as lead his people. A chief who cannot serve his people and lead them hasn’t much reason for being a chief. A chief does not exist for the purpose of being served. He exists to serve his family and lead them. He is the father, the family members the children. In return for a chief’s service to his family, the members of the family also serve him. It is a reciprocal arrangement having its roots embedded in Samoan customs going back hundreds of years.
We do not believe, in the light of the evidence, that defendant Meafou should at this time be evicted from .the land Mulipa. However, if Meafou is serving other matais (and there was a conflict in the evidence as to whether she is) she should stop it at once. Meafou should “discuss together with the Vaimaona Family.” Also she should serve the Vaimaona title in a reasonable way. However, since she is a widow with children, her matai Vaimaona Foloi should not expect as much service from her as the title is entitled to from male members of his family. Meafou should not participate in village affairs contrary to Sa*233moan customs. If Meafou does not in the future conduct herself toward the Vaimaona Family as a member thereof (she is not a blood member, but under Samoan customs, being a widow with children of a former holder of the Vaimaona title, she is nevertheless a member) in accordance with Samoan customs then the Vaimaona Family may apply to the Court for such relief against Meafou as it may at that time be entitled to. As far as insisting on living with her own children by Pauulu is concerned, of course she has a right to have them live with her.
Vaimaona Foloi should conduct himself toward Meafou and her children by Pauulu as a matai ever conscious of his duties toward his family members should. He has a duty to serve his family as well as a right to service from family members in accordance with Samoan customs.
Defendant Potoae (Meafou’s daughter by her first husband) and her husband, defendant Fouvale, and their children are not Vaimaona Family members. Neither are. defendants Tóese and Taulolomi, who are Meafou’s children by her first marriage, Vaimaona Family members. The occupancy of the land Mulipa by these non-family members has been with the permission of the matai of the Vaimaona Family, beginning with respect to Potoae, Tóese and Taulolomi with Vaimaona Pauulu. The occupancy by the non-family members is pursuant to a license, which this proceeding as respects it constitutes a revocation. In reliance upon the license these non-family members have either put in some new plantations or improved old plantations on the land. Under these circumstances they cannot be summarily evicted and the product of their labor turned over to the members of the Vaimaona Family. We have held in prior cases that while an executed license is revocable (and the license was executed when these non-family members expended labor in putting in or cultivating plantations in reliance on it) nevertheless the licensee is entitled to corn*234pensation or reimbursement for expenditures or for labor expended in reliance on it. T. Magalei et al. v. R. S. Tago Sianava, No. 28-1955 (H.C. of Am. S.); Lagolau Tuileata and Saufu uileata [sic] for the Tuileata Family v. Talivaa Liupua, No. 2-1956 (H.C. of Am. S.). See 33 Am.Jur. 411. In the case first cited we held that the licensee might continue to occupy and use the land involved until the value of its use should compensate him for his labor and expenditures in reliance on the license and the principle applied in the first case was approved in the second. We think that if these non-family members are permitted to continue the occupation and use of Mulipa (in conjunction with Meafou and her three children by Pauulu) for one year from the date of the decree herein, they will be properly compensated.
I
ORDER
It is ORDERED that if Meafou fails to observe her obligations to the Vaimaona Family as a member thereof in accordance with Samoan customs, then the Family, after a three-month trial period for Meafou, may apply to the Court for such relief as it may then be entitled to.
II
DECREE
It is ORDERED, ADJUDGED and DECREED that defendants Potoae and Fouvale, her husband, together with their children, and defendants Tóese and Taulolomi shall have the right (in conjunction with Meafou and her three children by Pauulu) to continue to occupy and use for dwelling and plantation purposes the land Mulipa (the communal family land of the Vaimaona Family at Aumi) for one year from the date of this decree which is April 20, 1956 at the expiration of which time said Potoae and Fou*235vale, together with their children, and Tóese and Taulolomi shall vacate such land leaving any plantations thereon in an unharmed condition. If Potoae, Fouvale, Tóese or Taulolomi have any Samoan houses which they, or any of them, have erected on Mulipa, the one or those erecting such Samoan house or houses may remove it or them at any time prior to April 20,1957.
Costs in the sum of $33.00 are assessed as follows:
Foloi Vaimaona .......................................................... $20.00
Meafou ........................................................................ 3.25
Fouvale ........................................................................ 3.25
Tóese ............................................................................ 3.25
Taulolomi...................................................................... 3.25
All costs are to he paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485211/ | OPINION AND DECREE
T. F. Solaita and Pnnefn Paogofie, counsel and assistant counsel respectively, for Tagata.
R. S. Tago, counsel for Mapuilefala Tavete.
Fuaimamao, counsel for Puapuaga L. Vagi.
Malaetia, counsel for Faumui.
OPINION OF THE COURT
MORROW, Chief Judge.
On June 14, 1954 Faümui óf Faganeaneá filed his application with the Registrar of Titles to be'registered as the holder of the matai name Levu of Nu’uuli. Within the thirty-day limit prescribed by law (See Sec. 931 of the A. S. Code) objections to the proposed registration were filed by Leasiolagi, Tagata, Mapuilefala Tavete, Puapuaga L. Vagi and T. F. Solaita, respectively, each of the five objectors becoming a candidate for the name. Hence this litigation. See Sec. 932 of the A. S. Code.
At the outset of the hearing objector T. F. Solaita withdrew his objection and ceased to be a candidate. He was thereupon dismissed as a party to the case.
Sec. 926 of the Code as amended prescribes the qualifications for holding á matai title. The evidence clearly showed that each of the remaining candidates possesses these qualifications and is, therefore, eligible for registration as the holder of a matai title.
Sec. 933 of the Code as amended prescribes the law which the Court must follow in determining which of the eligible opposing candidates shall be registered as the holder of a matai title. It reads as follows:
“Consideration Given by Court: In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The best hereditary right in which the male and female de*237scendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail;
(b) The wish of the majority or plurality of the family;
(c) The forcefulness, character, personality and capacity for leadership of the candidate;
(d) The value of the holder of the matai name to the Government of American Samoa.”
We shall first consider the factor of hereditary right. Applicant Faumui .testified that he is the great-great grandson of Levu Leo’o and that he had x/i6 Levu blood. A number of witnesses (among them Tagata, Puapuaga and Gaulua, who are admittedly Levu Family members) testified that according to the tradition in the Levu Family there was no Levu Leo’o. Of course no witness testified that he had even seen a Levu Leo’o. If there was any such person he must have lived many years before the establishment of the Government in 1900 in order to have a great-great grandson 54 years old as is Faumui. The testimony of Faumui purported to be based upon tradition only (and tradition is hearsay) and not upon actual knowledge. We believe that the weight of the evidence is clearly to the effect that there was no Levu Leo’o and that candidate Faumui has no Levu blood in his veins, and, therefore, has no hereditary right, and we so find. We believe from the evidence that Faumui is an adopted member and not a blood-member of the Levu Family.
Leasiolagi is the great-great grandson of Levu Lualemana. As such he has x/ie Levu blood in his veins. However, he claims that his blood father Gauta was a Levu. His testimony indicates that Gauta was not recognized as the Levu by the village, but was recognized by the Family. There was much testimony to the effect that Gauta never held the Levu title. Leasiolagi says that Gauta gave the title back and returned to Asu, his home. Leasiolagi never saw his father Gauta and his .testimony about Gauta’s holding the Levu title is based upon pure hearsay. We *238think that the weight of the evidence is to the effect that Gauta never held the Levu title. We find .that Leasiolagi has li6 Levu blood in his veins, being the great-great grandson of Levu Lualemana.
Tagata is the grandson of Levu Paoaga. We find that he has xk Levu blood in his veins.
Mapuilefala Tavete is the grandson of Levu Ufisasa. We find that he has xk Levu blood in his veins.
Puapuaga L. Vagi is the blood son of Levu Vagi. He has x¡2 Levu blood in his veins and we so find.
From the foregoing findings it is clear that Puapuaga ranks first on the issue of hereditary right, having xh Levu blood; that Tagata and Mapuilefala rank second (and equally as between themselves), each having xk Levu blood; that Leasiolagi ranks third, having 1/i6 Levu blood; and that Faumui ranks fourth having no Levu blood. If there had been a Levu Leo’o and Faumui were his great-great grandson ( as he claimed to be) then Faumui would rank third with xli6 blood and on an equality with Leasiolagi. However, as we have said, we think the weight of the evidence is to the effect that there was no Levu Leo’o.
Each of the candidates filed a petition with the Court purporting to be signed by those blood-members of the Levu Family supporting his candidacy. There were 165 signatures on the petition for Faumui, 39 on the petition for Leasiolagi, 224 on the petition for Mapuilefala, 37 on the petition for Puapuaga, and 64 on the petition for Tagata.
It was claimed by Faumui that all of the 165 signers on the petition for him were blood descendants of Levu Leo’o. We have already found from the weight of the evidence that there never was a Levu Leo’o. Leasiolagi testified that 143 of the signers on Faumui’s petition were not Levu Family members while Tagata, Mapuilefala and Puapuaga *239all testified that 164 of the 165 were not family members. Mapuilefala also testified that Faumui himself was not a blood-member of the family, but only an adopted member.
Leasiolagi claimed that all 39 signers on the petition for him were Levu Family members by blood. Faumui testified that 30 of the 39 had no Levu blood in their veins. Tagata testified that all 39 signers on Leasiolagi’s petition were blood-members. Puapuaga testified that 19 were not blood-members. Despite the conflict in the evidence we believe that all of the 39 were blood-members. We think the weight of the evidence is to that effect.
Mapuilefala testified that all of the 224 signers on the petition for him were blood-members. Faumui admitted that 77 of the 224 were blood-members. Leasiolagi testified that 154 on Mapuilefala’s petition were not blood-members while Tagata testified that only 15 of the 224 were blood-members. Puapuaga testified that only 30 of the signers on Mapuilefala’s petition were blood-members. He said not a single one of the remaining 194 lived on Levu land and that none of the 194 was ever called in to discuss Levu Family matters. We are convinced from the evidence that less than 50 of those on Mapuilefala’s petition are real blood-members of the Levu Family.
Leasiolagi, Puapuaga, Tagata and Mapuilefala testified that all of the 64 signers on the petition for Tagata were blood-members of the Levu Family. Faumui admitted that 60 of the 64 were blood-members. The weight of the evidence is clearly to the effect that all of the 64 are blood-members, and we so find.
Puapuaga, Tagata, Leasiolagi and Mapuilefala testified that all of the 37 signers on Puapuaga’s petition were blood-members. Faumui admitted that 29 of the 37 were. We believe the weight of the evidence is to the effect that all of the 37 on Puapuaga’s petition are blood-members.
*240We are of the opinion from the evidence that Tagata has more blood-members of the Levu Family supporting his candidacy than any of the other four candidates and we so find. It follows that Tagata prevails over the other four candidates on the issue of the wish of the majority or plurality of the family. In view of our findings on the other issues it is not necessary for us to determine how the other four candidates rank as among themselves on this issue.
The next matter to be considered is the issue of forcefulness, character, personality and capacity for leadership.
Faumui is 54 years old. He finished the sixth grade in school and speaks some English. He was a member of the Fita Fita Guard and Band for 16 years, attaining the rank of seaman 1/c. His work in the Navy was that of a bugler. During the war Faumui worked as a stevedore and also as foreman of a gang of laborers. He has been a pulenuu and at present is a member of the Samoan legislature. He has held the Faumui title since 1936 and has been a choir leader for many years as well as a deacon in his church. Faumui receives retirement pay aggregating $54.31 a month. His son-in-law makes a contribution to him. His pay as a member of the legislature is $150.00 a year. He has a small income from the sale of taro and bananas. He has rendered service to the Levu title. He has held a title in Faganeanea for 20 years and does not live in the Levu Family and has not while holding his title in Faganeanea.
Leasiolagi, 57 years old, finished the sixth grade in school and speaks broken English. He worked for the government for 22 years, mostly as an auto driver. He was a member of the Fono for four years and has held the Leasiolagi title of Asu since 1934. He lives in Nuuuli. Apparently he pays little attention to his duties as a matai in Asu. He has no regular income but receives support from some of his sons in the Armed Forces of the United States, two of his sons being in the Army and two in the Navy. *241Leasiolagi has rendered a very substantial amount of service to the Levu title.
Tagata, 53 years old, finished the second grade and then attended a faifeau’s school for four or five years. He speaks English well. He has been a lesser matai in the Levu Family for a number of years and lives in the Family. He has held the Tagata title for 10 years. He has rendered a very substantial amount of service to the Levu title. During the war he was a foreman directing the work of 40 laborers. He has been pulenuu of Nuuuli and a pulenuu’s policeman. Tagata works on family plantations. He has two sons in the Armed Forces of the United States who make substantial contributions to him.
Mapuilefala, 43 years old, graduated from the 8th grade in Poyer School. He finished the sixth grade in a faifeau’s school also. He attended a teachers’ institute but did not become a teacher. He worked in the government printing shop for 6 months, was a clerk for the Public Works Department for 3 months, a clerk for the Supply Department from 1931 to 1938. He then followed barbering for 9 years. Since 1948 he has been employed in the Department of Agriculture and is now a special agricultural assistant. He has plantations and 5 acres of cocoa. Mapuilefala receives a salary of $1,144 a year. His son in the U.S. Marines contributes about $40 a month to him. His daughter also gives him some money. He receives about $20 a month from the sale of vegetables from his plantations. He has been a matai 9 years and was recently registered as the Pauiloa of Nuuuli. He teaches a class in agriculture at the Feleti Teacher’s Training School. Mapuilefala has served the Levu title.
Puapuaga, 37 years old, completed the fifth grade in the Marist Brothers School. Later he attended the Fagalele School for two years. He speaks English fairly well. For two years during the war he worked as a stevedore. Since *242then he has worked on family plantations. He has served the Levu title and lives in the Levu Family. He has no regular income, but gets some money from some of his sisters who have sons serving in the Armed Forces of the United States. He sells produce from his plantations for which he receives approximately $30 a month on the average. This is his only income from his own efforts. In 1940 Puapuaga was sent to jail for 4 months for larceny. In 1941 he was sent to jail for 6 months for stealing a bicycle. In 1945 he was sent to jail for 6 months for assault and battery.
During the course of the three day hearing the judges had an excellent opportunity to observe the personalities of the candidates. It is our opinion from the evidence and what we observed during the hearing that Tagata, Faumui and Mapuilefala rank ahead of the other two candidates on the issue of forcefulness, character, personality and capacity for leadership and that among themselves they are on an equality with respect to this issue; that Leasiolagi ranks second to these three and that Puapuaga, particularly in view of his criminal record, ranks after Leasiolagi.
On the issue of value to the government as the holder of the title we believe from the evidence that among the 5 candidates Tagata ranks first, particularly in view of the fact that he has been a lesser matai in the Levu Family for many years, and is very familiar with family affairs. Faumui has lived away from the Family for 20 years and could not have the familiarity with family affairs that Tagata has. We think from the evidence that Mapuilefala ranks third on this issue while Leasiolagi ranks fourth. We cannot overlook the fact that while Leasiolagi holds a title in Asu he does not live there with his family. We think in view of this fact that he would be more interested in holding the Levu title than in serving the family. In the recent case of Vaimaona Family of Laulii v. Meafou et al., No. 8-1956 (H.C. of Am. S.) we said that “A chief owes duties to the *243members of his family. He should serve as well as lead his people.” A chief who lives away from his family is not primarily concerned with its welfare. He is not serving it to any great extent. Sec. 934 of the Code provides that “Whenever a matai shall live away from his family for a period of six months or more, unless engaged in the performance of the duties of a public office of American Samoa, or shall otherwise neglect to perform the duties of his office of matai” he may be removed as such matai. We believe that Puapuaga ranks fifth with respect to this issue of the value of the holder of the matai name to the Government. He has been in jail three different times. It costs the Government money to keep a man in jail. A man who has had to be sent to jail three different times for crime is not very likely to be of great value to the Government as the holder of a matai title.
We have found that Tagata ranks first among the candidates on the issue of the wish of the majority or plurality of the family and also first on the issue of the value of the holder of the matai name to the Government; that he is on an equality with Mapuilefala with respect to the issue of hereditary right, each having xk Levu blood in his veins and that Tagata is on an equality with Mapuilefala and Faumui with respect to the issue of forcefulness, character, personality and capacity for leadership; that he ranks ahead of Leasiolagi on the issue of hereditary right, Leasiolagi having only x/i6 Levu blood and also ahead of Faumui on this same issue, Faumui having no hereditary right. From these findings it is apparent that as between candidates Tagata, Mapuilefala, Faumui and Leasiolagi, Tagata is entitled under Sec. 933, supra, to the title.
That leaves the question as to whether Tagata has a better right to the title than does Puapuaga. We have found that Puapuaga has % Levu blood while Tagata has 1k, which means that Puapuaga prevails over Tagata on the *244issue of hereditary right. However, we have found that Tagata prevails over Puapuaga on the other three issues, which together carry more weight than the issue of hereditary right alone. Hence it follows that as between candidate Tagata and candidate Puapuaga, Tagata is entitled to be registered as the holder of the title. Since we find that as between all 5 candidates Tagata is entitled to be registered as the holder we must so decree. However, Tagata is already the holder of a matai name. We have held many times that the same person cannot hold two matai names at the same time. It follows that Tagata must resign from his present title before he can be registered as the Levu.
DECREE
Accordingly it is ORDERED, ADJUDGED and DECREED that upon Tagata’s filing his resignation from the title Tagata within 15 days, he shall be registered as the holder of the matai title Levu of Nuuuli.
Costs in the sum of $70.00 are hereby assessed against Faumui, Mapuilefala, Leasiolagi and Puapuaga L. Vagi, each of them to pay $17.50. All costs are to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485212/ | OPINION AND ORDER
OPINION OF THE COURT
MORROW, Chief Judge.
Plaintiff filed his petition on May 18, 1956 praying for an order requiring defendant Lua Mamoe to remove the Samoan-type fale Which he is erecting on certain land lying at the foot of Mount Olotele and on the righthand side of the road between New Mapusaga and New Aoloau. Lua Mamoe claimed his right to erect the fale through permission of Tuiaana, a chief of Faleniu. Plaintiff Galoia claimed that the land on which the fale is being erected is the communal family land of the Galoia title of Pavaiai and that the defendant has no right to erect his fale thereon.
The Court viewed the premises involved in the presence of the parties on the day preceding the hearing.
*246The basic question in this case is whether the spot (place) on which the fale is being erected is the land of the Galoia title or the land of a chief or chiefs of the village of Faleniu.
It is clear from the evidence, in fact it is undisputed, that the defendant Lua Mamoe did receive permission from chief Tuiaana of Faleniu to put up his. fale. And it is also clear and undisputed that before giving the permission Tuiaana consulted with the other chiefs and the talking chiefs of Faleniu about whether he should give it and that the other chiefs and the talking chiefs authorized Tuiaana to give it. From the evidence we conclude that in legal effect the permission came not from Tuiaana alone, but from all the chiefs and talking chiefs of Faleniu including himself and that Tuiaana was acting in behalf of all the chiefs and talking chiefs when he gave the permission.
There was a conflict in the evidence as to who first cleared the very place where the fale is being built from the bush, i.e. who cut down the big trees on it.
Title to land in Samoa has been acquired through first occupation coupled with a claim of ownership. In the case of Soliai v. Lagafua, No. 5-1949 (H.C. of Am. Samoa) we said: “Occupation coupled with a claim of ownership will establish ownership to what was bush land before occupation. See 2 Blackstone 8.” And in the case of Lagafua Laisene for Sialega Title and Family et al. v. Mauga S. P., No. 17-1955 (H.C. of Am. Samoa) we further said: “The view that the occupant who first takes possession of land with the intention of having it as his own thereby becomes the owner of it is approved in Maine’s Ancient Law (3rd Am. Ed.) at p. 238. The doctrine of acquisition of original title by the first occupant with a claim of ownership has been approved by this court in the case of Faataliga v. Fano, No. 80-1948 (H.C. of Am. Samoa) and a number of other cases.” And in Leasiolagi v. Fao, No. 12-1949 (H.C. of *247Am. Samoa), we said that “it was the custom for the matai and members of his family clearing bush land and occupying it to claim it as communal family land and not as the individually owned land of either the matai or the family members occupying it.”
When the Court viewed the fale and the land it occupies, Galoia told it that he did not see the big trees cut down on the land but was told about it. On the witness stand he was asked “Were you in Malua college when this was done, that is the trees cut?” and he replied “I was in Leulumoega.” Leulumoega is a school in Upolu. However, he later testified that the trees were cut during his vacation and that he saw it done and helped do it. His testimony was to the effect that the trees were cut by Pavaiai chiefs and their young men under the jurisdiction of the Galoia title; that it was done in Í938. Galoia testified that chief Vele was one of the chiefs who participated in the cutting and that Vele was under the jurisdiction of the Galoia. However, when Vele, who was a witness for Galoia, was asked “Is Vele a lesser chief in the Galoia Family?” he replied “No.” Vele testified also that the Vele was not under Galoia’s jurisdiction. However, Vele did testify that Aea, admittedly a chief subject to Galoia’s jurisdiction, did cut down the big trees. Galoia later called Aea as a witness. The record covering Aea as a witness is as follows:
“Q. Now, you’re Aea of Pavaiai ?
A. Yes.
Q. How old are you ?
A. I cannot remember how old I am but I guess 70 or 80.
Q. Now, is your mind pretty good or is it a little weak at times?
A. Sometimes it’s weak.
Q. How is it right now pretty weak or pretty strong?
A. Neutral, not very strong, not very weak.
Q. Now, you know where this house is being built which Lua is putting up, up there on the righthand side of the road?
A. Yes.
*248Q. Well, you know who cut the big trees there years ago?
A. I do.
Q. Who was it?
A. Myself, Vele, Leatumauga, Fuapapa, Poloai, Touao and Galoia.
Q. There wasn’t any Galoia at that time.
GALOIA: How about go slow because the old man’s mind is weak as I told you.
INTERPRETER: Galoia is telling the witness just make your statements in accordance with the place now in dispute, where the house is now being built.
Q. Now, did Galoia help cut the big trees there? Did this Galoia here when he was a boy help cut those big trees up there where this house is being put up ?
A. (no answer)
CJ: Let the record show that there is no answer.
GALOIA: As I have stated that this witness of mine is weak in mind so therefore I ask the Court to discharge him from the witness stand.
TAGO: I object, your Honor.
CJ: Well, I think we have to allow Tago to cross-examine him on the testimony that he’s given, that’s only fair.
CROSS EXAMINATION BY TAGO:
Q. You’re quite an old man and you have already taken an oath and it is for you to tell the truth. Did you see Galoia cut any big trees in that area?
A. Yes, I’ve seen him when he returned back from Malua.
Q. After the big trees were cut, is that correct ?
A. Yes.”
It is noted that Aea failed to answer the question “Now, did Galoia help cut the big trees there?” but he did testify that Galoia returned from Malua after the big trees were cut. If he returned after they were cut he did not see them cut which would be consistent with Galoia’s statement to the Court when it viewed the land that he did not see the trees cut but was told about it.
Talking chief Siufanua of Faleniu testified in respect to cutting the trees as follows:
*249“Q. Now, you’re Siufaiiua of Faleniu?
A. Yes.
Q. You’re a chief or talking chief?
A.' Talking chief.
Q. How old are you?
A. Nearly 80.
Q. Now, are you familiar with all this land Tafeata out there around New Mapusaga leading up to New Aoloau?
A. Yes.
Q. Have you lived in Faleniu almost all of your almost 80 years?
A. Yes.
Q. Did you know who cut the big trees on the righthand side of the road leading from New Mapusaga up to New Aoloau ?
A. Faleniu.
Q. Faleniu chiefs?
A. Yes.
Q. Now, will you name them ?
A. Magalei Siasulu, Magalei Faapouli, Tuiaana Moi, Moeai Saitia, Maiava Uula, myself; all these people were matais. If the Court wants me to give the names of the young men but they are holding matai names now I will.
Q. Well, were those Faleniu chiefs or Pavaiai chiefs that you named?
A. Chiefs and talking chiefs of Faleniu village.
Q. Are you familiar with the location where Lua is building his new fale up there at the foot of the mountain on the righthand side of the road?
A. Yes.
Q. Did you see the big trees cut there ?
A. Yes.
Q. Do you know when they were cut, can you remember that far back?
A. The whole area was cut in 1922.
Q. Who cut the big trees where this fale is being put up, that’s Lua’s ?
A. Tuiaana Moi.
Q. Did Galoia people have anything to do with it?
A. No.
*250Q. Did they cut any big trees on the lefthand side of the road, that’s the Galoia people?
A. I didn’t see.
Q. Well, did they cut any on the righthand side of the road? A. No.
Q. Did you see Galoia Upuese cut a single tree in this area? A. No.
Q. Did you see any members of Galoia Family cut any big trees in this particular area and work?”
A. No.
Later in answer to questions by Judge Malepeai regarding war damage claims Siufanua testified:
“Q. Siufanua, who filed claims, war damage claims on the plantations that were destroyed on this land?
A. Faleniu.
Q. You mean in the place where Lua’s house is now located?
A. Yes.
Q. Did the Faleniu people get the compensation out of this land?
A. Yes.”
Talking chief Moeai of Faleniu testified:
“Q. Now, you’re Moeai of Faleniu ?
A. Yes.
Q. How old are you ?
A. 76.
Q. You talking chief?
A. Yes.
Q. Are you familiar with this land Tafeata out there above New Mapusaga toward New Aoloau?
A. Yes.
Q. Do you remember when the big trees were cut on that land ?
A. The year that’s already mentioned.
Q. What year was that?
A. The year Siufanua mentioned.
Q. 1922?
A. Yes.
Q. You were living in Faleniu then ?
A. Yes.
Q. Did you help cut the -big trees ?
A. Yes.
*251Q. Do you know where Lua’s house is where Galoia is trying to get the Court to order it removed?
A. I do.
Q. You know who cut the big trees, that is where the house is?
A. Faleniu.
Q. You know what chief of Faleniu or chiefs?
A. All the answers that was mentioned first.
Q. Well, you might tell us, too, we’d like to know what you’d know about it?
A. Magalei Siasulu, Magalei Faapouli, Tuiaana Moi, Siufanua, Savea, Maiava Taisi, Moeai Saitia, those are matais.
Q. What village does Savea belong to?
A. Faleniu.
Q. You know who put in plantations where the house is after the war was ended?
A. Children of Tuiaana Moi.
Q. And Galoia people come over there and put in plantations?
A. No.
Q. Did the Galoia people from Pavaiai ever cut down any big trees on the righthand side of the road if you know?
A No.
Q. Did they cut down any on the lefthand side if you know?
A. I do not know.
CJ: Any additional questions, Tago?
DIRECT EXAMINATION BY TAGO:
Q. This particular spot where Lua Mamoe is now building his house, do you believe and know for sure it was Tuiaana and his children cut the big trees on that, first cut the big trees on that particular spot?
A. Yes.
Q. And for that reason Tuiaana could grant permission for Lua to build his house on that very spot?
A. Yes.
Q. And the chiefs of the village of Faleniu agreed to it because the whole village involved, is that correct?
A. Yes.”
After observing the witnesses on the stand and weighing the testimony, we are of the opinion that the evidence preponderates in favor of the view that the big trees on the *252land occupied by the fale of the defendant were cut by the Faleniu people in 1922 and not by the Galoia people in 1928. It follows that we must find, in view of the weight of the evidence as to occupation and claim of ownership of the land, that it is the property of the Faleniu chiefs and talking chiefs of Faleniu, speaking through the Tuiaana of Faleniu, gave permission to the defendant to build his fale where it is being built, it follows that he has the right to build it there. Since we find that the land on which it is being built is not property of the Galoia title, it follows that the plaintiff’s petition should be dismissed.
ORDER
Accordingly it is ORDERED that the plaintiff’s petition be and it is hereby dismissed.
Costs in the sum of $20.00 are hereby assessed against Galoia, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485217/ | OPINION OF THE COURT
MORROW, Chief Judge.
On February 11, 1955 Aga and Siliga of Fagaitua applied to the Registrar of Titles to have certain land, designated as Afulei and Mafa on the survey accompanying the application, registered as the communal family land of the Aga and Siliga families. The land lies between the villages of Auto and Amaua and borders on the sea. On March 1, 1955 Tialavea of Amaua filed an objection to the proposed registration claiming that the land was the communal family land of the Tialavea Family. On March 18, 1955 Mulitauaopele S. and Savea also filed an objection claiming that *274the land was the communal family land of the Mulitauaopele, Savea, Tialavea and Niuamoa Families.
Prior to the hearing the Court viewed the land in the presence of the parties.
At the hearing it appeared that the three objectors are the senior matais in one family and that Niuamoa is a lesser matai in the same family, and that when the senior matais filed their respective objections, they were acting in behalf of the one family known as the Mulitauaopele, Tialavea and Savea Family, and we shall treat the objections as having been made in behalf of that family.
There is a stream (marked Afulei on the survey) which runs across the surveyed tract generally in a southeasterly direction from the north side to its southern side and terminates in the sea.
There is no dispute as to the ownership of the land in the surveyed tract lying west of this stream. It was admitted by the objectors that this part west of the stream is the communal family land of the Aga and Siliga Family and we so find. And we further find from the evidence that this part of the surveyed tract lying west of the stream Afulei is also called Afulei.
There was conflicting testimony as to whether the land Afulei did not also include a small portion of the land in the southwestern corner of the remaining part of the surveyed tract. A Samoan fale which has been occupied by the Aga and Siliga people for more than 40 years stands on this small portion. The fale is surrounded by nearby plantations of the Aga and Siliga people. We believe from the weight of the evidence that this small portion, on which are the house and plantations, is a part of the land Mafa and not a part of the land Afulei lying to the west of it, and we so find. We are confident that the stream Afulei separates the land Afulei lying west of the stream from the land Mafa which adjoins and lies east of it.
*275To establish their ownership of the land east of the stream the objectors rely in part upon a decision of the High Court in the case of Leiato (Teo) et al., Plaintiffs v. Howden, W. et al., Defendants, Pele et al., Interpleaders, No. 10-1901 (H.C. of Am. S.). That case involved the ownership of the land Amaua. The Court rendered a decree to the effect that such land was the property of Pele, Tialavea, Niuamoa and Savea. Pele, Tialavea and Savea were the predecessors in title (matai) of the three objectors in the present case. The Niuamoa in the 1901 case was a lesser matai in the Mulitauaopele-Tialavea-Savea Family. The decision in the 1901 case — and we have examined the proceedings in that case carefully — does not indicate whether all or any part of Mafa was included in the land Amaua. Whether such was the fact or not, the decree in the 1901 case is not binding upon Aga and Siliga in the present case since neither Aga nor Siliga nor anyone with whom they are in privity were parties to that case. “The rights of a person who is not a party to a suit, nor in privity with a party, are not affected by the judgment rendered therein; as between him and a party to the action, their rights are to be determined as if the judgment had never been rendered. Such a third person is not bound or concluded by the judgment, or in other words the judgment is not res judicata as to him, it not being permissible to adjudicate the rights of a person in an action to which he is not a party, and a judgment or decree being deemed not to be an adjudication of the rights of a person who is not a party, or to be an adjudication of any question as between a party and a person not a party.” 34 Corpus Juris 1043.
Also to establish their title to the part of the land Mafa in the surveyed tract the objectors relied upon their family tradition as to the ownership of such land, the tradition going back about 300 years. Most of the tradition was handed down orally — all of it orally for about 200 *276years for Samoans did not use writing to any extent until a good many years after the missionaries came to Samoa about 1830. And while some of the tradition may have come down through writing during the last 100 years, yet very little of the whole tradition has. It is common knowledge that tradition handed down orally over a long period of time is frequently not very trustworthy. If A tells B a story today and B repeats it to C 20 years from today and C to D 20 years later and so on every 20 years for 200 years, what K will tell L in the year 2157 may bear little resemblance to what A told B 200 years before. This elementary fact is the reason that tradition in one family about an event occurring years before is frequently entirely different from the tradition in another family about the same event. And the longer the tradition is handed down, the more it is subject to error. After all, tradition is only hearsay. But in American Samoa, due to the lack of government land records and the fact that there was no government in Tutuila prior to 1900 it is necessary to use tradition to establish land titles in most cases even though it is hearsay and is frequently subject to considerable error. Springing from necessity, this practice has been approved by the courts. Chief Justice Wyche in the case of Levale et al. v. Toaga, No. 26A-1945 (H.C. of Am. S.) said: “The question of title to real estate in American Samoa is always a difficult one to solve for the reason that in most cases there is no recorded title to, nor description of property. Title to real estate is generally proved by family tradition.”
The objectors also relied in part upon use and occupation of part of Mafa by their family members, particularly the northern part thereof included in the survey. The Court is convinced from what it saw when it viewed the land in the presence of the parties and from the testimony that the northern part of the surveyed tract lying east of *277the stream Afulei has been used by .the Tialavea people for many years. In a part of this area the Court saw long coconuts. Judging from their height, they must have been planted more than 25 years ago. They were planted by the Tialavea people. The same people have banana plantations in this area, and have had for a good many years.
To establish their title to the part of Mafa east of the stream and included in the survey, Aga and Siliga relied in part upon use and occupation and upon a decision of the High Court in the case of Aga and Siliga v. Pele, Savea and Tialavea, No. 30-1907 (H.C. of Am. S.), hereinafter referred to as the 1910 case. The ownership of Mafa was involved in that case as well as other land.
The parties in that case were the predecessors in title (matai) to the parties in this case.
In the course of its opinion, dated February 3, 1910, the Court said: “Let a decree therefore issue vesting the title of the lands Vailaau, Avaio, Afulei and that part of Mafa not included in the decree of the High Court referred to supra (the decree referred to was that rendered in the 1901 case) in the plaintiffs, Aga and Siliga. The plaintiffs are advised .to have the land Mafa resurveyed and register a proper plan in conformity with the decree.” No decree was ever actually entered in that case vesting the title in Aga and Siliga. It is undisputed in the present case that no survey was made by the plaintiffs in the 1910 case and that makes it quite clear why no decree was actually entered.
The present Aga and Siliga, the prior Aga and Siliga being long since dead, did have a survey made by John Hall on Dec. 9, 1950 — 40 years later and it is that survey that was filed with the application to register in this case. The Court in the 1910 case found that Aga and Siliga were the owners of the western part of the land Mafa, but as heretofore stated no decree was ever actually entered vesting the title in them. The “western part of the land Mafa” is an *278indefinite description. It might mean a tenth part or a hundredth part.
In the 1910 case the Court in its opinion said: “In the trial held in 1910 Pele and Tialavea (both deceased), the predecessors of the present defendants, testified positively that Aga, one of the plaintiffs, was the owner of the land adjoining the land Amaua on the western boundary.” The transcript of the testimony in the 1910 case shows that the then Pele on the witness stand in response to questions by the court as tó the boundaries of the land Amaua testified as follows:
Court: “This is on the western boundary ?”
Answer: “Mafa is the western boundary.”
Court: “Who are the people who adjoin the land on the west?”
Answer: “Aga.”
Court: “To what town does he belong ?”
Answer: “Fagaitua.”
Court: “Does Aga go down to the sea coast?”
Answer: Yes.”
Court: “What marks the boundary with Aga on the sea coast?”
Answer: “The sea.”
The evidence in the present case showed clearly that the Aga and Siliga people have occupied and used a fale in the southwestern part of Mafa for more than 40 years; that they have had plantations about the fale for many years; and that in addition they have also had possession (a possession disputed by the objectors at various times) of Mafa for a considerable distance up the stream from the fale for many years.
The weight of the evidence is to the effect that the northern part of that portion of Mafa (Afulei lies west of the stream Afulei and Mafa east of it) included in the survey is the communal land of the Pele-Tialavea-Savea Family and that the southern part of such portion, subject to the easement of the public in the highway thereon next to the sea, is the communal land of the Aga-Siliga Family, *279and we so find. Furthermore we find that the dividing line between such northern and southern parts is a line having a bearing of S 52° 03' W and a length of 318.75 feet, which line begins at the north end of the boundary marked N 46° 04' W length 103.05 feet on the survey, and extends therefrom to the middle of the stream Afulei.
The Court has caused the aforementioned dividing line to be marked by a broken line in red on the survey. The fact is that the Tialavea people long ago planted coconuts on the northern part of Mafa included in the survey and have harvested and used the produce therefrom ever since. This was admitted to the Court by the Aga and Siliga people when it viewed the land prior to the hearing. These coconuts, in view of their height, are necessarily more than 25 years old. The Tialavea people have also had banana plantations on the northern part for a good many years. The Tialavea people have claimed ownership of this northern part in behalf of the Pele-Tialavea-Savea Family ever since the coconuts were planted by them, and for a long time prior thereto. We are convinced from the evidence that the Aga and Siliga people have never occupied and used this northern part, or had actual possession of it as have the Tialavea people.
It is clear to us from the evidence, if any other Samoan family, the Aga and Siliga Family included, had any claim of ownership valid or invalid, to the northern part prior to the time of the occupation, use and possession of the same by the Tialavea people from the time the coconuts were planted more than 25 years ago, that such claim has been rendered null and void by operation of the law of adverse possession which vests title in the adverse possessor after 20 years of such possession, and that title to such northern part became vested in the Tialavea people prior to the institution of this case. Even if the Court in the 1910 case had decreed that the northern part was the property *280of the Aga and Siliga Family (which it did not for no decree was entered in that case), nevertheless ownership of such northern part would have vested in the Pele-Tialavea people subsequent to the 1910 case. Adverse possession for the statutory period (it is 20 years in American Samoa, A. S. Code, Sec. 907) vests title in the adverse possessor. Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 607; Puailoa v. Leapaga, No. 64-1948 (H.C. of Am. S.).
Before the government was established by the U.S. Navy in Tutuila in 1900, Samoans acquired title to their lands through first occupancy coupled with a claim of ownership. Soliai v. Lagafua, No. 5-1949 (H.C. of Am. S.); Faatiliga v. Fano, No. 80-1948 (H.C. of A. S.) See 2 Blackstone 8; Maine’s Ancient Law (3rd Am. Ed.) 238.
In accordance with our findings we decree as follows:
DECREE
Part I
It is ORDERED, ADJUDGED and DECREED that a parcel of land located in Sua County between Auto and Amaua villages and more particularly described as follows shall be registered as the communal family land of the Aga and Siliga Family of Fagaitua:
For Point of Reference commence from the northeast corner of the Auto Bridge bearing N 19° 56' E a distance of 249.90 feet; thence N 83° 36' E a distance of 277.40 feet; thence N 38° 30' W a distance of 25.10 feet to a concrete Monument for the True Point of Beginning.
From the True Point of Beginning run thence S 38° 30' E a distance of 25.10 feet to a point on the centerline of the Main East-West Highway 11 feet more or less from the Gatae tree; run thence following Bearings and distances on the centerline of said Highway; N 40° 12' E a distance of 76.50 feet; thence N 41° 59' E a distance of 99.80 feet; thence N 48° 31' E a distance of 229.65 feet; thence N 25° 16' E a distance of 298.48 feet; thence N 61° 55' E a distance of 118.21 feet; thence N 70° 42' E a distance of 301.60 feet; thence *281N 45° 95' E a distance of 52.78 feet; thence N 4° 27' E a distance of 152.22 feet to an iron pin set on the edge of road; run thence S 39° 53' W a distance of 62.50 feet to a point set on the hill; run thence following the Top of ridge S 40° 32' W a distance of 161.36 feet; thence N 89° 51' W a distance of 141.95 feet; thence N 66° 40' W a distance of 202.25 feet; thence N 46° 04' W a distance of 103.05 feet; thence S 52° 03' W a distance of 318.75 feet to a point in the middle of the stream Afulei (this stream being the boundary between the land Afulei on the west and the land Mafa on the east); thence by the thread of such stream to a point in the middle thereof (such two last-mentioned points being the ends of a line 367.7 feet long with a bearing of N 30° 12' W and indicated by a broken blue line on the survey at the direction of the Court); thence N. 81° 30' W following the said stream a distance of 224.27 feet; thence N 84° 56' W leaving the said Stream a distance of 153.73 feet; thence S 30° 44' W a distance of 86.12 feet to an iron pin; thence S 18° 47' E a distance of 209.24 feet to a point on the hill; run thence S 14° 17' E following the side of hill a distance -of 121.06 feet; thence S 53° 28' E a distance of 72.43 feet; thence S 85° 46' E a distance of 65.30 feet to an iron pin; run thence S 61° 39' E a distance of 28.87 feet; thence S 42° 42' E a distance of 97.62 feet; thence S 38° 14' E a distance of 123.38 feet; thence S 37° 24' E a distance of 142.85 feet to an iron pin; run thence S 3° 27' E a distance of 241.50 feet to an iron pin; thence S 38° 30' E a distance of 70.55 feet to the concrete Monument the True Point of Beginning. (It is recited herein that the foregoing description in Part I of this decree includes the land Afulei lying west of the stream Afulei as shown on the survey together with that part of Mafa included in the survey and lying south of the broken red line as marked on the survey at the direction of the Court which line has a bearing of S 52° 03' W and a length of 318.75 feet. Such broken red line begins at the north end of the boundary marked N 46° 04' W length 103.05 feet on the survey and ends in the middle of the stream Afulei.)
Part II
And it is further ORDERED, ADJUDGED and DECREED that the following described land shall be registered as the communal family land of the Mulitauaopele, Tialavea and Savea Family:
*282Beginning at the north end of the boundary on the survey having a bearing of N 46° 04' W and a length of 103.05 feet (such boundary is referred to in Part I of this decree), thence N 17° 14' W a distance of 114.21 feet; thence N 33° 24' W a distance of 230.92 feet; thence S 68° 44' W a distance of 18.28 feet; thence S 52° 03' W a distance of 232.91 feet; thence S 68° 56' W a distance of 80.92 feet to a point in the middle of the stream Afulei; thence by the thread of such stream to a point in the middle thereof (such two points being at a distance of 367.7 feet from each other and being at the ends of a line having a bearing of S 30° 12' E); thence N 52° 03' E a distance of 318.75 feet to the point of beginning at the northern end of the aforementioned boundary with a bearing of N 46° 04' W and a length of 103.05 feet. (It is recited herein that the foregoing description in Part II of this decree covers that part of Mafa included in the survey which lies East of the stream Afulei and north of the aforementioned broken red line as marked on the survey at the direction of the Court. Also it should be understood that the land lying between the aforementioned line with a bearing of N 30° 12' W length 367.7 feet (marked by a broken blue line on the survey at the direction of the Court) and the stream Afulei as shown on the survey is a part of the land Afulei decreed by the Court in Part I of this decree to be the communal family land of the Aga and Siliga Family).
All bearings set out in this decree refer to magnetic north. Date of survey when the bearings were taken was Dec. 9, 1950. Afulei and the part of Mafa included in the survey have a combined area of 14.825 acres, more or less.
Costs in the sum of $50.00 are hereby assessed against the parties, $25.00 to be paid by Aga and Siliga and $25.00 by Mulitauaopele S., Tialavea and Savea. All costs are to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485218/ | OPINION
OPINION OF THE COURT
MORROW, Chief Judge.
This is a petition by the plaintiffs for an order directing the defendants to vacate the land Apolima and the dwelling house thereon, in the western part of Leone. Apolima was formerly an island south of the land Tutu. It is the communal family land of the Olo Family of Leone. On October 12, 1933 Chief Olo leased the island to Henry Forsgren for 20 years. Sometime thereafter Forsgren built a dwelling house on it and filled in the area between the island and the land Tutu so that Apolima ceased to be an island. This lease from Chief Olo to Forsgren is recorded in Vol. II, Register of Native Leases, pages 37-38.
On June 4, 1945 Forsgren and his wife executed an assignment of the lease to Mrs. Oilau Payes, which assign*284ment is recorded in Vol. Ill Register of Miscellaneous p. 119. On the same day Forsgren and his wife also executed a bill of sale of the dwelling house which Forsgren had built on Apolima to Mrs. Oilau Payes, the assignee of the lease. The bill of sale is recorded in Vol. Ill Register of Miscellaneous P. 118.
On March 11, 1947 Mrs. Oilau Payes assigned the lease to Gladys Pritchard (now plaintiff Mrs. Gladys Picon). This assignment is recorded in Vol. Ill Register of Miscellaneous P. 151. Also on March 11, 1947 Mrs. Oilau Payes executed a bill of sale of the dwelling house to Gladys Pritchard, which bill of sale is recorded in Vol. Ill Register of Miscellaneous P. 150.
About 1952 the dwelling house of Mrs. Faalanu Pritchard, a widow and the aunt by marriage of Gladys Pritchard, burned down. At the same time most of .the personal belongings of Faalanu and the four of her daughters then living with her were burned. They were homeless. Frank W. Pritchard, Gladys’ father, after caring for Faalanu and her daughters for about a month at his home, gave Faalanu permission to live in the dwelling house on Apolima rent free. Gladys was in the States at the time and upon learning what her father had done with her house gave her approval. Faalanu’s four daughters went to Apolima to live with her.
Faalanu continued to occupy the house until her death in December 1956. Prior to her death, defendant Taetafea, Faalanu’s mother, visited Faalanu at Apolima at various times, some of the visits being quite extended. Also prior to her death two of the daughters had left Apolima to live in the States. Shortly after her death the other two left for the States.
When Faalanu’s body was returned from the Samoan Hospital to Leone for burial defendant Taetafea was brought from Pago Pago to Apolima to attend her daugh*285ter’s funeral. Since the funeral she has continued to occupy the premises; lately with the other three defendants.
Plaintiff Gladys Picon, nee Gladys Pritchard, returned to American Samoa from the States in August 1956. Sometime after the death of her aunt Faalanu, she asked Taetafea to vacate the premises in order that she might effect some repairs on .the house and then move into it with her children. Later Taetafea and the other defendants were given notice to vacate hut have refused to do so.
Prior to the institution of this action Chief Olo executed a new lease of Apolima to plaintiff Gladys Picon. The lease has not yet been approved by the Governor. This, however, is immaterial as far as this action is concerned since Chief Olo has joined Gladys Picon as a plaintiff.
It is clear to us from the evidence that Apolima is the communal family land of the Olo Family represented by its matai Chief Olo and that the title to the house passed to Gladys Pritchard, now plaintiff Gladys Picon, in 1947 in virtue of the bill of sale from Mrs. Oilau Payes. Defendants are not the owners of the property involved and have no interest thereon. They have no right to continue to occupy the premises. Notices to quit having been given to the defendants, judgment must go against them.
It should be stated here that Taetafea is a very old woman, blind and unable to look after herself. The other three defendants are young women and they are taking care of Taetafea.
The Samoan judges are of the opinion, since Taetafea is a blind woman, aged and helpless, that, for humanitarian reasons, the defendants should have 15 days within which to vacate the premises. In view of conditions in American Samoa, the writer of this opinion concurs with that view.
Accordingly an order will be issued requiring the defendants to vacate Apolima and the dwelling house thereon within 15 days.
*286Costs in the sum of $10.00 are hereby assessed against defendants Taetafea, Maselina, Mareta and Talasu, each of them to pay $2.50. All costs are to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485219/ | OPINION OF THE COURT
MORROW, Chief Judge.
Plaintiff Misa Tausulu filed his petition for an order requiring the defendants to vacate certain land (described in the petition as Togalei) and the guest house thereon, in the village of Ofu. Plaintiff is the matai of the Misa Family in Ofu. He claims that the land involved is the communal family land of the Misa title; that the house on such land is the *287guest house óf the Misa title; and that the land and guest house are wrongfully occupied by the defendants, thereby depriving him in his capacity as the matai. of Misa Family of their possession.
Defendants claim that the land in dispute belongs to their branch of the Misa Family and that it is not communal family land of the Misa title. They claim it was given by one Leui before the establishment of the Government in 1900 to Misa Elia the grandfather of defendant Vao as his individual property and that it came to the defendants’ branch of the family through Elia’s prior ownership as an individual. Misa Vaeva, the next Misa after Elia, was the blood son of Elia and the father of defendant Vao. Elia and Vaeva are both dead.
The plaintiff was the principal witness in his own behalf. He testified in effect that the land on which the guest house is located is known as Togalei; that the tradition in the Misa Family was to the effect that such land was the communal family land of the Misa Family and the traditional site for the guest house of the Misa title and that the guest house was the guest house of the Misa title; that the land had been occupied by Misa Alefua (the first Misa) and then in succession by Misa Tuimalie, Misa Vaepala, Misa Lagono, Misa Puni and Misa Poto, from all of whom including Misa Alefua the plaintiff claims descent.
He did not claim descent from Misa Palaika or Misa Iosefa. Utu, a member of the Misa Palaika branch of the Family, testified that all the Misas (Tausulu excepted) had lived on the disputed land, and specifically that the Palaika did. Utu is a member of the Misa Family.
Lauoo, an old man in the Leui Family, testified that he had never heard that a Leui had given .the land in dispute to Misa Elia.
To support defendants’ claim that the land in dispute is the property of their branch of the Misa Family (and by *288branch the defendants testified that the land was at one time — a time before the Government was established in 1900 — the communal property of the Leui Family); that Misa Elia was married to Sina, a daughter of the Leui; that Elia wanted some land for a guest house and that because of the blood relationship of Sina to him, he gave the land to her husband Elia as an individual. Her testimony on this latter point reads:
“Q Well, now, to what title does this land Togalei belong, the Leui title or the Misa title?
A Title Leui.
Q Then it isn’t Misa land at all ?
A No.
Q Then Misa Vaeva your father had his guest house on another matai’s land for over 50 years, is that right?
A Because of the intermarriage of one Misa. Foialilia, daughter of Leui, had a girl name of Sina then this Elia married Sina then the offspring was Vaeva my father.
Q Now, Misa Elia your grandfather had the Misa guest house on another matai’s land, is that correct?
A Yes.
Q And your father, that’s Misa Vaeva had his guest house on another matai’s land for more than 50 years?
A Yes.
Q Well, do you render service, what matai do you render service to and Apeape and Loisulu?
A There is another lesser matai in the Misa family in Lagi and that is Matau.
Q What matai do you render service to, you and Loisulu and Apeape?
A Matau.
Q Now, you’re living on Leui land and rendering service to a different matai?
A We are living on a piece of land which was given from Leui and rendering service to Matau who is now living in Lagi.
Q Well, now, to whom was it given?
A To Misa Elia.
Q Why are you rendering service to this Matau ?
A That’s my brother.
*289Q How old a manís he?
A He’s here.
CJ Where is he?
SPECTATOR STANDS UP
CJ: How old are you, Matau ?
MATAU: 44.
Q Then you don’t render service to the Misa at all ?
A Not every day but sometimes I furnish Misa with some.
Q Now, are you rendering service to the Matau, how come you are rendering service to the Misa, you are living on Leui Land? How’s come you are rendering service to the Misa?
A Because those are the titles of the family.
Q But you don’t render service to the Leui ?
A No.
Q Although you are living on Leui land ?
A Yes.
Q Well, isn’t that a strange thing under Samoan customs you are living on Leui land and not rendering service to Leui?
A Even though that Leui is the original owner of this place it was given outright to my clan.
Q Well, to the Misa clan ? What is your clan ?
A MisaEliatoMisaVaeva.
Q Well, then, it’s Misa land, isn’t it, instead of Leui land?
A Since this land was given outright by Leui to Misa Vaeva to my father, people knew it very well that it belongs to only those two and their clans.
Q Yes, but why do you render service to Matau when it was given to Misa and became Misa land?
A It was not given to the title Misa, it was given to Elia by blood, through his blood.
Q The Elia became the owner of it as an individual, is that it?
A Yes, because it was Elia who asked this Leui and asked that he wants a piece of land for a guest house, because Lagi is filled with people not enough space for him to build his house. That’s why Leui gave this piece of land to Elia.
Q Did he give it to him as an individual or as a holder of the Misa title?
A That is true, it was given to him as his individual.”
She also testified that the land in dispute was named Auma and not Togalei; that Togalei was the name of the *290guest house put up on the land by Misa Elia, her grandfather, and that Togalei continued to be the guest house of her blood father Misa Vaeva who succeeded Elia.
It was undisputed that Vaeva became the Misa before the establishment of the Government in 1900 and that he continued to be the Misa until his death. According to the death records he died on Nov. 25, 1948. Vao together with others of the Elia-Vaeva branch have continued to occupy the guest house and the land in dispute since Vaeva’s death and have refused to surrender possession to plaintiff Misa Tausulu. The witness Vao further testified that the original guest house was built by Elia and rebuilt by Vaeva, the whole village of Ofu assisting in the rebuilding. Defendant Apeape is a member of the Elia-Vaeva branch. Defendant Loisulu is her husband.
The present Leui, a witness for the defendants, testified that the land that Vaeva had his guest house on was, according to the tradition in the Leui Family, given by a former Leui to Misa Elia, defendant Vao’s grandfather, and that the name of the land is Auma.
Tivao, another witness for the defendants, testified that he was a member of the Misa Palaita branch of the Family and that “In accordance with the tradition of my clan, Misa Palaita was living at Vaiula where the Muasau is.” On cross examination he re-affirmed his statement.
The determination of the ownership of land in American Samoa is normally a very difficult one because there is usually no title of record to assist the Court. This land in dispute has never been surveyed and registered. To determine the title the Court must rely upon tradition, i.e. hearsay handed down by word of mouth from generation to generation. And tradition in one branch of a family may be and frequently is different from the tradition in another branch of the same family respecting the same matter.
All of the witnesses in this case based their testimony as *291to the ownership and name of the tract in dispute upon tradition only. Witness Tausulu is 44 years old. All of his testimony relative to the ownership, occupation, and name of the disputed tract was based upon events that transpired before the Government was established in 1900. He had no personal knowledge of the truth or untruth of the parts of his testimony bearing upon these matters. His testimony was based on what he had heard relative to events that transpired years before he was born. For instance he testified that Misa Alefua, the first Misa, occupied the disputed tract and had his guest house on it. Misa Alefua had no doubt been dead more than a hundred years before Tausulu was born. Likewise Yao’s testimony as to the ownership of the land and the guest house was based upon events which transpired many years before she was born (she is 37 years old) and about which she had no personal knowledge. She was testifying as to what the tradition was in her branch of the Family as to matters (those respecting the ownership of the land and its name) about which she had no personal knowledge.
The Court heard the witnesses and saw them. It must weigh the evidence. Our conclusion is that the evidence preponderates in favor of the defendants and is to the effect that (1) the land in dispute is named Auma, not Togalei; (2) the name of the guest house is Togalei; (3) the land Auma was given to Elia by the Leui as his individually owned property. We think substantial weight must be given to the testimony of the present Leui to the effect that the land was given by a former Leui to Misa Elia as an individual. Elia was married to Sina, the daughter of the Leui, and this could well have been the motive for the gift. If this land had been Misa communal family land and the traditional site for the guest house of the Misa, as Tausulu testified, Misa Palaita would have occupied it. Witness Tivao, a member of the Palaita branch, testified that Palaita *292occupied Vaiulu. This was of course before the Government was established. Also it is a significant fact that there are no Misa blood members buried on this land. And no person is buried on it except'the wife of Vaeva who was an Upolu woman and not a blood member of the Misa Family. There is no dispute whatever about the land having been in the possession of Elia’s son Vaeva from the time he got the title Misa before the Government was established in 1900 until his death on Nov. 25, 1948, and that during that time he used the guest house on it.
We think the fact that both Misa Elia and Misa Vaeva used the guest house on the land in dispute for what must have been approximately sixty years has led Misa Tausulu, the plaintiff, and his branch of the family to assume erroneously that it was communal land of the Misa title.
We find that the land in dispute is the property of the descendants of Misa Elia. It follows, therefore, that the petition of the plaintiff should be dismissed.
ORDER
Accordingly, the petition of the plaintiff is hereby dismissed.
Costs in the sum of $21.00 are hereby assessed against the plaintiff Misa Tausulu, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485220/ | OPINION OF THE COURT
MORROW, Chief Judge.
On December 9, 1955 Ofisa Asoau of Faleasao filed his application with the Registrar of Titles to be registered as the holder of the matai name Asoau of Faleasao. Siaosi Tuimoloau, Taofi Tamasoa, Siave, Leaisefeau M. Asoau, Tevesi Faapouli, Faaloloi, Siva, Tuiofea, and Sea each filed an objection to the proposed registration within the statutory limit for filing objections. Each objector became a candidate for the name. Hence this litigation. See sections 931 and 932 of the Code.
Siaosi Tuimoloau did not appear at the hearing, either in person or by counsel. He is considered to have abandoned his claim, if any, to the title. During the hearing Taofi Tamasoa, Siave (acting by his father Samifua, who represented him), Leaisefeau M. Asoau, Tevesi Faapouli, Siva, and Tuiofea withdrew their respective objections and ceased to be parties to the case. The remaining candidates for the title were the applicant Ofisa and objectors Sea and Faaloloi.
Sec. 926 of the Code as amended prescribes the qualifications for holding a matai title. The evidence showed that each of the three remaining candidates has these quali*295fications and is, therefore, eligible to be registered as the holder of a matai name.
Sec. 933 of the Code as amended prescribes the law which the Court must follow in making its determination as to which of the eligible opposing candidates in a matai name case shall be registered as the holder of the title. It reads as follows:
“Consideration Given by Court: In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise the male descendant shall prevail;
(b) The wish of the majority or plurality of those members of the family related by blood to the title;
(c) The forcefulness, character, personality, and capacity for leadership of the candidate;
(d) The value of the holder of the matai name to the government of American Samoa.”
We shall first consider the matter of hereditary right. The applicant Ofisa Asoau is the blood son of Asoau Faasulu. He has one-half Asoau blood in his veins. Faaloloi is the great grandson of Asoau Maugatele. He has one-eighth Asoau blood in his veins. Sea is the great grandson of Asoau Sea. He has one-eighth Asoau blood in his veins. There was no contradiction in the testimony as to hereditary rights of these three remaining candidates. We find that Ofisa prevails on the issue of hereditary right and that Faaloloi and Sea are second with respect to Ofisa and on an equality with respect to each other.
We shall refer to the issue of the wish of the majority or plurality of the blood members of the family later in this opinion.
Ofisa is 43 years old. After completing the 7th grade in school, he had a year in the Leulumoega school in Upolu. He speaks English. He has worked as a plumber in the De*296partment of Public Works since 1939. His salary is approximately $100 per month. After hours, he does plumbing work for private individuals thereby earning an additional $80 a month on the average. He testified that he received about $6,000 a year from the sale of copra cut on family lands on the island of Tau. However, we think his brothers and sisters cut most of the copra, Ofisa himself cutting only a part of it. While the $6,000 a year may be paid over to him, only a fractional part of it should be considered as income for him. He has a son in the U.S. Armed Forces who sends him $60 a month. Since 1955 he has been the foreman in the plumbing branch of the Department of Public Works. He had charge of the laying of the pipe line leading from the Pago well up to the mountain back of the village of Pago Pago in 1955. Ofisa has been the leader of the Aumaga in Faleasao since 1948. On March 17, 1939 while in a long boat with about 40 other persons near the island of Olosega on the way to Tau the boat capsized. Ofisa swam about 6 miles to the island of Tau and got aid so that all the people in the boat were saved.
Faaloloi is 40 years old. He attended grade school, Fagalele, and junior high before entering the American Samoan High School from which he graduated in 1951. He speaks English. He has taught school and served both as a district clerk and district administrator. He has worked as a clerk in the store of Burns Philp, (SS) Co., Ltd. About a year and a half ago he became a bookkeeper for the Bank of American Samoa. During the last few months he has been a teller in the Bank. His salary is $73.24 per month. He sells pigs, chickens, mats and taro, his total sales from such aggregating between $500 and $600 per year. His aiga in the States send him about $500 a year. Faaloloi was a Samoan Marine during the war. He has been a matai for 9 years, having first held the Yaimaona title of Laulii for *297about 2 years. He has held the Manaea title of Amouli for 7 years. The evidence indicated that it took about 5 years for him as the Manaea to get his family to live together in peace and harmony. He lives in Laulii; not with the Manaea Family in Amouli.
Sea is 48 years old. He graduated from Foyer School, having completed the 9th grade. He speaks English. After his graduation from Poyer in 1934 he returned to Manua and rendered service to his matai Sea and also to the Asoau. He has worked on plantations. Sea has been clerk of the district court on the island of Tau for 20 years and has held a matai title for 20 years. His mataiship has been characterized by a state of peace and harmony in his family. There are 20 members of the Sea Family living with Sea. He is authorized by the L.M.S. church to serve as a pastor during the absence of a regular pastor on Tau and he has done so a number of times. He receives a remuneration of about $25 a month as clerk of the court. He has plantations and raises pigs and chickens. He has a yearly income of from $225 to $275 from the sale of copra and oranges. He does not sell his pigs or chickens, they being used for Samoan affairs in accordance with Samoan customs. Sea has cocoa plantations. The cocoa produced is used by his family and aiga. He receives about $250 a year from aiga in the States.
During the three-day hearing, the judges had an excellent opportunity to observe the personalities of Ofisa, Faaloloi and Sea.
It is our conclusion in the light of our observation and the evidence that Ofisa and Sea rank first and equally on the issue of forcefulness, character, personality and capacity for leadership and that Faaloli ranks second and we so find.
In the case of Ioane, Mase Molioo, and Tupua v. I. Malaga, No. 23-1956 (H.C. of Am. Samoa), we said: “The *298value of the holder of a matai title to the Government of American Samoa depends primarily upon his ability to handle the affairs of his family well. This ability in turn depends largely upon his forcefulness, character, personality and capacity for leadership.” We reiterate that statement. Ofisa is a responsible and valuable employee of the Public Works Department, serving, as we have said, as foreman of the plumbing division. Sea has been a district court clerk for 20 years. Faaloloi is a teller in the Bank of American Samoa. In view of our finding that Ofisa and Sea rank first and equally on the issue of forcefulness, character, personality and capacity for leadership and Faaloloi second and also in view of their respective services to the government, past and present, we find that Ofisa and Sea rank first and equally on the fourth issue and that Faaloloi ranks second to both Ofisa and Sea on this issue.
Sec. 933 of the Code as amended requires the court in deciding a matai name case to give more weight to hereditary right than to the wish of the majority or plurality of those members of the family related by blood to the title; and more weight to the wish of the majority or plurality of those members of the family related by blood to the title than to the forcefulness, character, personality, and capacity for leadership; and more weight to forcefulness, character, personality and capacity for leadership than to the value of the holder of the matai name to the government.
We have not made any finding as to the wish of the majority or plurality of the blood members of the Asoau Family because it is not necessary for a decision of the case. Each of the three candidates filed a petition with the court purporting to be signed by those members of the Family supporting his candidacy for the title. The six candidates who withdrew likewise filed petitions. One of the withdrawing candidates, Siave, acting by his father as his *299representative, tried to throw his support to Ofisa. Tevesi tried to throw his support to Faaloloi while Taofi, Leaisefeau, Tuiofea, and Siva tried to throw their support to Sea. Each withdrawing candidate claimed (Siave acting by his father) that the members signing his petition favored either Ofisa, Faaloloi, or Sea. However, the claim by the withdrawing candidate was just an assertion of the withdrawing candidate himself, and nothing more. It was not satisfactory proof that his supporters were supporting a particular one of the three remaining candidates. A few of the signers on the petitions of the withdrawing candidates did stand up in Court and say to the Court that they favored this one or that one of the three remaining candidates. That was evidence as to the wishes of those who stood up, and those only.
If we were to find that Ofisa ranks first on the issue of the wish of the majority or plurality of the blood members of the Family, the Court should award him the title, since it would then find that he ranks first on the first two issues and equally with Sea on the last two, both Ofisa and Sea ranking ahead of Faaloloi on the last two. If the Court were to find that Sea ranks first on the issue of the wish of the majority or plurality of the blood members of the Family, the Court would still of necessity have to award the title to Ofisa since, in reaching its decision, it must give more weight to the factor of hereditary right (Ofisa has V2 Asoau blood; Sea, Vs) than to the wish of the majority or plurality of the blood members of the Family, Ofisa and Sea ranking first but equally on the last two issues and Faaloloi second. And if the Court were to find that Faaloloi ranks first on the issue of the wish of the majority or plurality of the blood members of the Family, it would of necessity still be required by Sec. 933 of the Code as amended to award the title to Ofisa since he would prevail over Faaloloi on all the four issues except the second. In *300other words, regardless of any finding on the issue of the wish of the majority or plurality of the blood members of the Family, the Court is required in view of its findings on the other three issues, to award the title to Ofisa. Hence, there would be nothing gained by the Court’s unduly lengthening its opinion by going into the sharply contradictory testimony regarding the wish of the majority or plurality of the blood members of the Family and we shall not do so.
In view of our findings, the matai name Asoau attached to the village of Faleasao should be awarded to Ofisa.
“A Court will take judicial notice of its own records for all proper purposes, including records in cases tried in, and removed from another court.” 31 C.J.S. 619. The records of this court show that Faaloloi resigned from .the Vaimaona title to take the Manaea title and then later tried to get the Vaimaona title back. See Faaloloi Magaea of Laulii v. Foloi Leatisua of Laulii, No. 19-1950 (H.C. of Am. Samoa).
While we have already reached the conclusion from the evidence and our observations in this case that Faaloloi ranks second to both Ofisa and Sea on the issue of forcefulness, character, personality and capacity for leadership, nevertheless, without giving any consideration to what the Court had to say in its opinion written in 1950 in the case just cited, we shall quote a part of it:
“Faaloloi was the holder of the Vaimaona title from August 1947 until February 1949 when he resigned to take the Magaea title. Shortly after his resignation from the Vaimaona title, Faaloloi went to Amouli to assume his duties as the Magaea. However, the Magaea family refused to recognize him as their matai. They proceeded to beat him up and did it with so much vigor that he has been afraid to go back to Amouli ever since to assert his leadership of the Magaea family. Faaloloi himself testified with reference to his going to Amouli to assume the Magaea title T do not want to go there and the other side still has bad feeling on me. They would kill me and I made *301up my mind to wait until they cool off and they are doing that now but I do not want to go back.’ While Faaloloi held the Vaimaona title (it is a lesser title in the Pele and Aulava families) he was unable to get along with the senior matais of the family. Neither was he able to get the Vaimaona family as a whole to live together in peace and harmony. Whether his failure to do this may properly be charged to him we do not decide. However, we do remark that an excuse for failure is not the equivalent of success. It is the business of a matai to weld his family into a harmonious unit and to be able to get along with other matais so that there may not be difficulties between clans. That is what matais are for. Foloi testified that while Faaloloi was the Vaimaona he threatened to put certain members of the Vaimaona family off Vaimaona lands assigned to them under Samoan customs unless they joined his church. While we think this charge was considerably exaggerated by Foloi, nevertheless we do not think it is a complete fabrication and an invention of Foloi’s.
“It may very well be that the lack of capacity for leadership which prevented Faaloloi from welding the Vaimaona family into a harmonious unit also prevented him from getting himself recognized by the Magaea family as the Magaea.”
It is only fair to Faaloloi to say that the evidence in the present case indicates that he has now succeeded in getting the Manaea Family to live together in peace and harmony, but it took him 5 years to do it.
DECREE
Accordingly it is ORDERED, ADJUDGED and DECREED that Ofisa of Faleasao shall be registered as the holder of the matai name Asoau of Faleasao.
Costs in the sum of $70.50 are hereby assessed against Sea and Faaloloi, each to pay $35.25 within 60 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485221/ | OPINION AND DETERMINATION OF OWNERSHIP OF PLOT 8 AS SHOWN ON SURVEY DATED 1/7/57 OF TAFUNA AIRPORT AND CERTAIN ADJOINING LANDS
OPINION OF THE COURT
MORROW, Chief Judge.
The Island Government is in the process of reconstructing the airport at Tafuna on Tutuila. In connection with such reconstruction the Government has determined that it needs certain land, both in and adjoining the airport as it is intended to be reconstructed, for its proper operation. That the taking of such land is for a public purpose we have no doubt. The Government caused a survey dated January 7, 1957 to be made covering such land and then made an effort to effect an agreement pursuant to Section 992 of the Code for its acquisition by purchase. No agreement being possible on account of conflicting claims as to the ownership of the various parcels of land involved, the *303Government then proceeded in accordance with Sec. 933 to acquire the lands in the absence of an agreement. However, on account of conflicting claims as to the ownership of the various parcels of land sought to be acquired, which fact prevented “an amicable settlement of and payment for the property,” the Registrar of Titles made his certificate, pursuant to Sec. 993(h), requesting the Court to “determine the ownership of the property in question.” On October 24, 1957 the Government invoked the jurisdiction of this Court to make such determination.
There are 11 different parcels designated as Plots 3, 4, 5, 6, 7, 8, 9, 10, A, B, C on the survey. There are a total of 17 claimants. However, the claimants to the ownership of one parcel are usually not identical with the claimants to the ownership of any other parcel. Also some claimants make no claim to the ownership of the land but only to plantations or fixtures on it.
We think that our duty under Sec. 993(h) can be most expeditiously performed by taking evidence with respect to the ownership of each parcel separately. In accordance with this view we took evidence on October 28, 1957 with respect to the ownership of Plot 3 as shown on the survey which was admitted in evidence as Exhibit “A.”
Three days prior to the taking of evidence in Court, the Court viewed Plot 3 at Tafuna in the presence of the various claimants. The judges saw the land involved, went around it, walked through it at various places, and observed its boundaries.
Plot 3 is bounded on the north for a distance of 2680 feet by land leased to the Island Government by the Fagaima Family for dairy purposes. It is bounded on the south for a distance of 1130.6 feet by land which was registered in the name of the Fanene on Feb. 23, 1949 in Vol. II, Native Titles, p. 10.
*304At the outset it should be stated that claimant Aifai T. Fagaima in legal effect filed her claim in behalf of the Fagaima Family, claiming that Plot 3 was the communal family land of that family. The claim filed by Punefu Siania in behalf of the Fagaima Family was to the same effect. Hence, these two claims are in legal effect the same. Fonoti’s claim was to the effect that Plot 3 was the communal family land of the Fonoti Family.
Witness Fonoti testified that many years ago the Fonoti Family had had plantations on Plot 3; also a guest house and after the guest house was taken down in 1916 a living house which served as a guest house for the then holder of the Fonoti title. Fonoti is only 38 years old. Obviously if there was a guest house of the Fonoti on the land which was taken down in 1916 (i.e. 41 years ago and 3 years before witness Fonoti was born) witness Fonoti had no actual knowledge of it but was relying upon hearsay. When the Court viewed the property prior to the hearing, Fonoti attempted to point out to the Court the foundations of the living house which he claimed was used as a guest house by the Fonoti after the original guest house was taken down in 1916. It was obvious to the judges upon an inspection of what Fonoti claimed was a foundation was not a foundation at all but an original coral formation. He then claimed that the Navy had removed the old foundation with bulldozers when the original Tafuna airfield was constructed during the war, but such was obviously not the fact because the heavy black lava rocks overlying what he claimed was the foundation, and which was not, would have been removed too, but they were not. A bulldozer had obviously been used to build a highway some distance from where Fonoti claimed the living house used as a guest house was located, but it was quite apparent that a bulldozer had not been used at the place where Fonoti claimed the old foundation was. Fonoti also testified that the Fo*305noti people at some time in the past had had plantations on Plot 3.
Gaulua, 76 years old, a member of the Fanene Family who has lived in the vicinity of Plot 3 all of her life testified that the Fonoti people had never had any plantations or any houses on Plot 3, but that the Fagaima people had. She was a witness who was in a position to know the truth about the occupancy and use of Plot 3 ever since she, as the Samoans say, got “old enough to know things.” She has had personal knowledge of Plot 3, its occupancy and use for the last 70 years. There is a pig wall (now in a state of disrepair but which the Court saw when it viewed the property) on Plot 3 which unquestionably was used by the Fagaima people, not by the Fonoti people. Furthermore the Fagaima people have a plantation on the property at the present time. Aifai who is 57 years old and a member of the Fagaima Family corroborated the testimony of witness Gaulua. The testimony of both of these old ladies (and we saw them testify and were impressed by their candor) is, in our opinion entitled to much more weight than the testimony of Fonoti whose testimony was based mostly on his family tradition, which is just hearsay handed down from generation to generation and subject to cumulative error every time it is repeated. Fonoti, who is only 38 years old, had very little first, hand knowledge of what he was testifying about. He relied, as we have just said, mostly on family tradition, usually not very reliable. Gaulua and Aifai, whose personal knowledge of Plot 3, its occupation and use, goes back 50 years in the case of Aifai and 70 years in the case of Gaulua, are much more reliable witnesses as to both the initial and continued occupation and use of Plot 3 than is Fonoti.
It is a circumstance not without significance that Fonoti Vili is buried in Fogagogo while Fonoti Auega is buried in Vaitogi. The prevailing Samoan custom is to bury a chief *306on land belonging to the title in the village to which his title is attached, not in another village. The Fonoti title is attached to Tafnna.
Seigafo, Fonoti’s witness, testified that he had some land bordering on land of Fonoti about two miles from Plot 3. However, that is land at Pavaiai, another village, and not Tafuna and is without significance as far as the ownership of Plot 3 is concerned.
Samoans acquired title to their lands through first occupancy coupled with a claim of ownership. Soliai v. Lagafua, No. 5-1949 (H.C. of Am. S.); Faatiliga v. Fano, No. 80-1948 (H.C. of Am. S.). See 2 Blackstone 8; Maine’s Ancient Law (3rd Am. Ed.) 238.
We are of the opinion that the evidence clearly preponderates in favor of the view that the Fagaima people originally occupied Plot 3 long before the war, had plantations, houses, and a pig wall on it and claimed it as the property of the Fagaima title. And that view of the weight of the evidence is fortified by what we saw when we viewed the land in the presence of the claimants prior to the hearing. There is no evidence to indicate that the Fagaima people have lost title to Plot 3 through the operation of the doctrine of adverse possession or through any type of alienation.
DETERMINATION OF OWNERSHIP
Accordingly, pursuant to Sec. 993 (h) of the A. S. Code, the Court determines that Plot 3 as shown on the survey of Tafuna Airport and certain adjoining lands, dated 1/7/57 and marked Exhibit “A” in this proceeding, is the communal family land of the Fagaima Family of Tafuna. Said Plot 3 is more particularly described as follows:
Beginning at a ¡concrete monument, co-ordinates, Y=31,206.53 and X=185,592.14, thence N. 1°14'40" W, 1670.00' to a concrete monument; thence N 88°45'20" E, 3777.16'; thence S 28°35'40" E, 120.64'; thence 68°12'50" W, 1974.50'; thence S 0°10'10" E, 80.25'; *307thence S 89°55'50" W, 1130.60'; thence S 0°05'10" E, 813.13'; thence S 88°45'20" W, 835.10' to the point of beginning; and containing 74.25 acres more or less. Bearings refer to the True Meridian.
Costs in the sum of $25.00 are hereby assessed against Fonoti, the same to be paid within 45 days.
SUPPLEMENTAL ORDER IN RE COSTS
Filed June 17,1958
Whereas it appears to the Court upon an examination of the testimony in the above-entitled matter that claimant Fonoti’s claim was neither vexatious nor frivolous and further that in litigating his claim claimant Fonoti did not unreasonably prolong the time require [sic] for the hearing:
Now, therefore, pursuant to the directive of the Governor of American Samoa (reference GAS/1A over Serial 755) to the Director of Budget and Finance, dated December 17, 1957, it is ORDERED that the costs amounting to $25.00 originally assessed against claimant Fonoti in the above-entitled proceeding on Nov. 20, 1957 be paid by the Government in lieu of Fonoti. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485222/ | OPINION OF THE COURT
MORROW, Chief Judge.
On October 25,1957 the plaintiff, after consultations with members of the Faamuli Family (Clan) residing on the land Alega in the Village of Alega, filed a petition to evict the defendants from such land. During the course of the hearing it appeared to the Court that the plaintiff was suing on behalf of the Faamuli Family and we shall consider the petition as having been filed by the plaintiff as representative of the Family. The Court viewed the land Alega in the presence of the representatives of the parties prior to the hearing.
It is admitted that each of the defendants has a taro plantation within the limits of the land Alega as registered in Vol. I at pages 354-5, Native Titles. Plaintiff claims that these taro plantations cause the water supply for the people residing on Alega to become contaminated. Prior to instituting this action the plaintiff requested the defendants to remove their plantations from the land.
At the outset it is necessary for the Court to determine whether Alega is the communal family land of the Faamuli Family or the individually owned land of the lineal descendants of Taape Faamuli. The record in the case of Toafili of Fagaitua, Tuitele of Leone and Leiato of Fagaitua v. Taape Faamuli of Alega, No. 16-1944 (H.C. of Am. S.) shows that on August 4, 1944 Taape Faamuli filed his application to register the land Alega (as shown on a survey accompanying the application) “which is communal land under my control for said family” (quotation is from the application signed by Taape Faamuli with emphasis added). The record in that case further shows that Toafili *310of Fagaitua, Tuitele of Leone, and Leiato of Fagaitua, each filed an objection to the proposed registration, each of the objectors claiming that the land was .the communal family land of his family.
The case was heard by the High Court on Dec. 13 and 15, 1944. The decree entered in the case providing for the registration of the land Alega as shown on the survey accompanying the application to register read: “It is ORDERED, ADJUDGED AND DECREED that Taape Faamuli of Alega, be allowed to register the title to the property known as 'Alega’ in his own name for the sole benefit of himself, the members of his family (emphasis added) and his heirs, and assigns forever.” This was clearly a decree for the registration of Alega as communal family land of the Faamuli Family. Otherwise “the members of his family” would not have been included in the decree. We cannot disturb the decision in that case, the decree, which was final, having been rendered by a court having jurisdiction after a hearing participated in by all the parties. See 30 Am.Jur. 908.
The Faamuli title is a lesser matai title in the Toafili Family of Fagaitua according to the evidence in this case. In an examination by Judge Muli in the Alega land case, No. 16-1944 (H.C. of Am. S.) heretofore referred to Taape Faamuli in answer to the question “Is Toafili your matai?” answered “Yes.” And in answer to “Your father was Faamuli. Was Faamuli a matai name or not?” Taape answered “That was a matai name and my father held it.” (Page 5 of transcript in No. 16-1944, H.C. of Am. S.). In his application for the registration of the land Alega, Taape Faamuli described himself as the “matai of Faamuli Family of Fagaitua Village.”
It is our conclusion that the land Alega, as shown on the survey accompanying the application to register it filed by Taape Faamuli and duly registered, is the communal fam*311ily land of the Faamuli Family and that Afenoa T. Faamuli has the right to maintain this action as the representative of the Faamuli Family.
High Chief Leiato, a witness for the defendants, admitted on the stand that each of the defendants had a taro plantation upon Alega. He testified that the plantations had been in existence since before the war and prior to the time of the survey of Alega in 1944. Afenoa, testifying for the Faamuli Family, said that the plantations had been on the land since 1949 and that no objection to their continuance had been made until just a very short time before the institution of this action on October 25, 1957 when he complained to Leiato about the plantations and requested their removal by the defendants, all of whom are residents of Fagaitua.
There was no satisfactory proof that the plantations in and of themselves are contaminating the water supply of the Faamuli Family members residing on Alega. There was testimony that during dry weather the water supply was discolored to some extent. However, that is not proof at all that the discoloration was caused by the plantations themselves because during dry weather there would not be any surface water reaching the water supply from the plantations to carry sediment. We think if there was any contamination at all, and we are not satisfied from the evidence that there was or is any, it might have occurred during wet weather as a result of human excreta sometimes (according to the evidence) deposited in or near the plantations.
But whether there was any contamination or not, those defendants who are not members of the Faamuli Family have no right to the use of communal land of the Faamuli Family for plantations without the permission of the Faamuli Family. One man has no right to use another man’s property without the permission of the owner.
*312We do not believe from the evidence that the Faamuli Family (it has been without a matai since Taape’s death) had given any express permission. However, no complaint with knowledge of the plantations by the Faamuli Family for 8 years (according to the testimony of Afenoa and at least 16 years according to Leiato) might well be ground for inferring such permission in view of the customs of Samoans with respect to planting non-permanent crops such as taro on land not owned by the planter.
The evidence convinces us (in fact there was no contradiction in the evidence on this point) that defendants Ailua and Toafili are members of the Faamuli Family, and we so find. As such they have as much right to have taro plantations on Alega, which is communal land of the Faamuli Family, as the members of the Family who are living in Alega.
As to the other 11 defendants, they have no right without permission to continue to maintain indefinitely taro plantations on land which neither they nor their families own.
However, the 11 have their taro plantations on Alega under circumstances from which (in view of no complaint from the Faamuli Family for at least 8 years and in view of the customs of the Samoans with respect to planting non-permanent crops such as taro on land not their own) permission of the owners to put in such plantations may well be implied. Under these circumstances we cannot order removal of the plantations of the 11 defendants at once even though the implied permission may have been revoked. Such removal at once would result in a destruction of food at a time when the outbreak of war might well cut off Samoa from its sources of food from foreign countries. This Court judicially knows that food shortages occur in Samoa from time to time despite shipping lanes being open.
*313In view of the implied permission to the 11 defendants to put in the plantations they should have a reasonable time to remove them without destroying them. We think a reasonable time is nine months from December 1, 1957 by which time all the taro now in the ground will have matured. Where plantations have been put in on land with permission of the landowners in prior cases we have held that such permission cannot be revoked effective at once. See Sa-Lemeanai Family and Leasiolagi of Asu for the Fao Family v. Tomasi and Tulei of Iliili, No. 22-1951 (H.C. of Am. S.); Heirs of Lemeanai Family v. Iosia of Tafuna, No. 20-1953 (H.C. of Am. S.); T. Magalei et al. v. R. S. Tago Sianava, No. 23-1955 (H.C. of Am. S.).
A license to put in a plantation and relied on cannot be peremptorily revoked so as to require its immediate removal with the destruction of a growing crop. The cases just cited establish that proposition.
There was no satisfactory proof that the water supply on Alega was being contaminated by human excreta deposited in the vicinity of the plantations. The expression of an opinion of contamination from this source by Afenoa who is not an expert was not proof. His opinion was a mere guess without knowledge. Furthermore, there was evidence of only one instance of human excreta. However, it is not amiss to point out that Sec. 865 of the A. S. Code provides that:
“Polluting Water Supply: If any person shall wilfully corrupt or pollute in any manner any well, spring, creek or river, or other source of public water supply used for drinking purposes, he shall be fined not more than $100.00, or imprisoned not more than one year, or both.”
ORDER
In accordance with this opinion the defendants Leiato, Laumailo, Sila, Fatu, Agatupu, Ti’a Malele, Savelio, Uli, Minute, Mikaele and Kilisi are each hereby ORDERED to *314remove his taro plantation on the land Alega on or before September 1,1958.
Costs in the amount of $2.50 are hereby assessed against Afenoa T. Faamuli and costs in the amount of $13.75 are hereby assessed against defendants Leiato, Laumilo, Sila, Fatu, Agatupu, Tf a Malele, Savelio, Uli, Minute, Mikaele and Kilisi, each of whom is to pay $1.25. All costs are to be paid within 15 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485223/ | OPINION AND ORDER DISMISSING PETITION
OPINION OF THE COURT
MORROW, Chief Judge.
On November 7, 1957 plaintiff Fagafa filed his petition praying for an order requiring defendant Toia to remove his Samoan fale from the land Malae in the village of Alo*315fau. Prior to the hearing the Court viewed the land Malae in the presence of the parties. Fagafa claims that the land Malae is the communal family land of the Fagafa Family while Toia claims that it is the communal family land of the Toia Family. In early 1956 Toia built a Samoan house on Malae which house he is presently occupying. The house stands on land which was originally part of a swamp. The swamp was a part of the land Malae. A few years ago the swamp was filled in by the Department of Public Works pursuant to an arrangement made with the Department by the then County Chief Faumuina.
Fagafa testified that the tradition in his family was that Malae was the communal land of the Fagafa Family while Toia testified that his family tradition was that it was Toia communal family land. Both Fagafa people and Toia people are buried in a graveyard located on a part of Malae that was not swamp originally.
Fagafa testified that the Toia people had lived on the land Malae for 30 years. In answer to the question “You mean they (i.e. the Toia people) lived on that land (i.e. Malae) for about 30 years?” Fagafa answered “Right.” And to the question “They cleaned it?” he also answered “Right.” And in answer to the query “And did you raise any objection to them (i.e. the Toia people) for living on this land (i.e. Malae) for 30 years?” Fagafa answered “No.” And in response to a query as to why he (Fagafa) did not object to the Toia people cleaning Malae answered “I did not object because they have to clean where they are living.” Since the swamp area was included in the land Malae it is apparent from the testimony of Fagafa that the Toia people cleaned the swamp area too. Of course the regulations of the Public Health Department required that the swamp area be kept clean so that it would not be a manace [sic] to the health of the people in the village.
*316Toia testified that the Toia Family had claimed the swamp area as the communal property of his family since before the Government was established which was in 1900 and specifically during the entire 30 years that his family, according to Fagafa, had kept it clean. It appeared also from the evidence that the Toia people had a taro plantation for a number of years along the stream which ran through the swamp area. The Fagafa Family made no objection to the cleaning of the swamp area by the Toia people according to both Fagafa and Toia.
The land Malae has never been surveyed and registered and there is no recorded title from which it is possible for us to determine its ownership. In such cases the courts in American Samoa have frequently had to resort to family tradition for assistance in determining ownership of land, at the same time realizing that family tradition handed down by word of mouth from generation to generation is subject to cumulative error and is frequently not a very reliable guide. However, in this case we have .the testimony of the Fagafa himself that the Toia people had cleaned the swamp area for 30 years and had lived on Malae (it, as stated before, included the swamp area) for 30 years. It is a little difficult for us to believe that one family would keep another family’s land clean for 30 years as a gratuitous act. However, if it be true that the Fagafa people, as Fagafa claims, did originally own the swamp area, we believe the evidence preponderates in favor of the view that the land consisting of that part of the former swamp area now occupied by the house together with the area immediately surrounding the house became the communal property of the Toia people through adverse possession for 20 years.
Samoan families acquired title to their lands through first occupancy coupled with a claim of ownership. Soliai v. Lagafua, No. 5-1949 (H.C. of Am. S.); Faatiliga v. Fano, No. 80-1948 (H.C. of Am. S.); see also 2 Blackstone *3178; Maine’s Ancient Law (3rd Am. Ed.) 238. No living person has any actual knowledge as to whether it was the Toia people or the Fagafa people who first occupied Malae with a claim of ownership, nor is there any written record to establish such occupancy and claim.
Sec. 349(4) of the A. S. Code provides that actions for the recovery of real property may be brought within 20 years after their causes accrue and not afterwards.
We believe from the evidence, and especially in view of Fagafa’s sworn testimony that the Toia people cleaned the land Malae and lived on it for 30 years without objection by the Fagafa people, and the further fact that the Toia people had a taro plantation along the stream running through the swamp, that if the Fagafa people ever had any claim to the land comprising that part of the swamp area actually occupied by the house together with the area immediately surrounding it, such claim has been barred by the above statute of limitation. We believe that the evidence preponderates in favor of the view that if such land together with the immediate area surrounding it was Fagafa communal land nevertheless it was in the actual, visible, exclusive, open, continuous, notorious, and hostile possession of the Toia people for at least 20 years. Under these circumstances the possession was adverse. See 2 Corpus Juris 50. Such adverse possession vested the title in the Toia people. “While some statutes have been construed to confer merely a possessory right or defensive title, the rule which is of almost universal acceptation is that an adverse possession, accompanied by the essential prerequisites for the statutory period, not only bars an action for the recovery of the land but vests a full legal title in the possessor. Under that rule, the authorities hold that the title of the original owner is completely divested.” 2 Corpus Juris Secondum 803. In High Chief Fuiamaono v. Moanau and Felila, No. 12-1955 (H.C. of Am. S.) we said that “Adverse *318possession for the statutory period (it is 20 years in American Samoa, A. S. Code, Sec. 907) vests title in the adverse possessor” citing Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 607; Puailoa v. Leapaga, No. 64-1948 (H.C. of Am. S.); Pelenato Sa Manoa of Faleniu v. Maea et al., No. 11-1955 (H.C. of Am. S.).
The Toia Family is presently in actual possession of the land consisting of that part of the former swamp area occupied by the house together with the area immediately surrounding the house. Such possession creates a presumption of ownership. “It is an ancient principle that where a person is shown to be in possession of property, such possession is presumed to be rightful. Potior est conditio possidentis (better is the condition of the possessor).” 1 Jones on Evidence (4th Ed.) 130.
Having concluded from the evidence that the land consisting of that part of the former swamp area actually occupied by the house together with the immediate area surrounding the house is the communal land of the Toia Family, it follows that we must dismiss the plaintiff’s petition. (It should be clearly understood that the Court is expressing an opinion only as to the ownership of the land actually occupied by the house together with the land immediately surrounding it, but is not expressing any opinion as to the ownership of the remainder of the land Malae).
ORDER
Accordingly, it is ORDERED that the plaintiff Fagafa’s petition be and the same is hereby dismissed.
Costs in the sum of $12.50 are hereby assessed against Fagafa, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485224/ | OPINION AND ORDER DISMISSING PETITION
OPINION OF THE COURT
MORROW, Chief Judge.
Talanoa Esekia filed his petition praying for an injunction requiring Sesera Brown to remove Brown’s plantations from certain land in the Faleniu-Malaeimi area in Tualauta County. Prior to the hearing the Court viewed the land and plantations involved in the presence of the parties. Plaintiff Talanoa claims that he cleared the land on which the plantations are located from the bush in 1932 and that soon after such clearing he put in various kinds of plantations and that he continued to have plantations on the land until the latter part of August 1957 when the defendant entered upon it and (presumably after destroying plaintiff’s plantations) put in his own plantations. Defendant Brown claims that he and his workmen cleared the land involved from the original bush from April 1945 and that while the trees from the bush were still lying on the *320ground, he authorized Talagu, a Faleniu woman, to enter upon it and put in her plantations which she did; that Brown’s cows had damaged Talagu’s plantations in another area and to prevent her from suing him for the damage done by his cows, he agreed with her that she should enter the land and put in her plantations. Brown further claims that later Talagu permitted him to put in his plantations (the removal of which plaintiff seeks) on a part of the land in return for his cleaning the other plantations which she has on the land.
Plaintiff Talanoa is 44 years old. He testified that he cut the big trees on the land involved in 1932 and that he had plantations on it from 1932 to August 1957 when defendant entered upon the land and put in his plantations. In 1932 Talanoa was only 19 years old yet he testified that his wife and her brother cut the trees in 1932. Then he changed his testimony saying that his wife helped him cut the big trees after they were married in 1939. He also testified that he started planting coconuts on the land in 1934 and later he testified “I started planting coconuts in 1945.” None of the coconut trees which the Court saw when it viewed the area in dispute are bearing which fact shows that they were planted much later than the plaintiff says he planted them.
Filoileolo, a witness for plaintiff Talanoa, testified that Talanoa cut the big trees on the area in dispute in 1932 and put in plantations that year and that he had continued to have his plantations thereon up to 1957 when defendant Brown entered and put in his plantations. Witness Filoileolo and Talanoa are both married to Moeai women of Faleniu.
Sesela testified that he and his workmen cleared the land in which his plantations are from the original bush about April 1945 and that while the big trees were still on the ground he authorized Talagu to enter and put in planta*321tions in another area by his cows; that after Talagu had put in her plantations she authorized him (Brown) to put in plantations on part of the area in return for his cleaning her other plantations; and that the plantations which she authorized him to put in in the disputed area are those which the plaintiff seeks to have removed. Brown testified that he first put in taro plantations on the area in 1949 and that he planted some coconuts in 1951 and some cocoa in 1953.
The coconut trees Which the Court saw in the area in dispute were obviously not planted when Talanoa says he planted them, but in view of their height and the fact that they are not bearing, it was apparent to the Court when it viewed the plantations that the coconuts must have been planted about the time Brown testified he planted them. The cocoa trees are of a size to indicate that they were planted about the time Brown testified he planted them. Talanoa testified he started planting cocoa as early as 1933. Obviously none of the cocoa trees the Court saw in the disputed area were planted 24 years ago.
Tuiaana, a Faleniu chief who has plantations near those which are the subject of this litigation and who has been familiar with the land on which they are located, testified that it was defendant Browñ who cut the big trees on the land. Tuiaana testified further that plaintiff Talanoa did have plantations in another area, but that Brown did not enter upon it: and that Talanoa has never had any plantations in the place in which Brown has his plantations which plaintiff Talanoa seeks to have removed.
Talagu, a witness called by the Court, testified that it was Brown who cut the big trees in the disputed area from which Talanoa seeks to have Brown’s plantations removed. She also .testified that after Brown cut the trees he authorized her to enter upon the land and put in plantations because his cows had damaged her plantations elsewhere. *322And that later she authorized him to put in the plantations on the part of the area from which Talanoa seeks to have them removed. Her testimony indicated that it was Brown who planted coconuts and cocoa trees in the area with her permission and that it was not Talanoa. Talagu is not an aiga of Brown.
The Court is of the opinion that the evidence preponderates in favor of defendant Brown. We base our opinion not only upon the testimony of the witnesses but also upon what we saw when we viewed plantations involved in the presence of the parties.
ORDER
In accordance with the foregoing opinion it is ORDERED that the plaintiff’s petition be and the same is hereby dismissed.
Costs in the sum of $12.50 are hereby assessed against plaintiff Talanoa Esekia, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485225/ | OPINION OF THE COURT
MORROW, Chief Judge.
The facts in this case are not in dispute. The plaintiffs and the defendant are members of the Patea Family of *324Pago Pago. The defendant has his house on the land Autapini while the plaintiffs have a house on the same land where they spend part of their time. The defendant has a small pineapple and banana plantation on Autapini about 50 feet from the plaintiffs’ house. The plaintiffs put a chicken wire fence around a part (about 15 feet by 25 feet) of the plantation preparatory to making use of the area enclosed as a chicken yard. The defendant tore down the fence. The chicken fence was erected by the plaintiffs with the consent and approval of their matai Patea who is also the matai. of the defendant. Prior to the erection of the fence, there was a family meeting at which the matter of erection of the fence was considered. It was agreed, somewhat over the opposition of Malaga and Leulu, the parents of the defendant (Leulu, his mother, is a blood member of the Patea Family) that .the plaintiffs should fence in a small area between the plantation of .the defendant and the plaintiffs’ house. However, later the plaintiffs objected to the use of this area for their chicken yard because offensive odors from it might penetrate their house. When the matai was informed of .this he told the plaintiffs that they might fence in a part of the defendant’s plantation instead of the area agreed upon at the family meeting. The plantation is farther away from the plaintiffs’ house than the small area agreed upon at the family meeting.
At the outset it is necessary for us to determine who owns Autapini. The defendant claims that it is registered in the name of Leulu, Mama and Tasali and that the plaintiffs have no rights in the land.
Patea Pila had 4 children, viz: Tasali, Leulu, Mama, and Salapu. Tasali, a son and the oldest child, had a daughter Faaitu who married Sipi. Plaintiffs Fuamatala and Faaitu are the daughters of Faaitu and Sipi. Tasali, the oldest son of Patea Pila, died in-the flu epidemic in Upolu in 1918. *325After his death Salapu took his deceased brother’s name Tasali in place of the name Salapu. He is the present Patea. The opinion and decree filed in the case of Leulu, Mama, and Tasali v. Tui Poi, No. 2-1930 (H.C. of Am. S.) on Feb. 12,1930, shows that the Patea (he was Patea Pila) offered the land Autapini for registration on Mar. 10, 1924. The land was registered in the name of Poi Tui on May 12, 1924 in Vol. I, Register of Native Titles, pp. 170-172. However, an examination of the actual registration at p. 172 shows .that the name in which it was originally registered was “Patea,” that the name “Patea” was later partially erased and the name “Poi-Tui”. written in over it. A magnifying glass clearly reveals this alteration of the record of the registration. On Feb. 12, 1930, the High Court “decreed .that the registration now appearing in the books of the Registrar of Titles, of the land, ‘Auta-Pini’ in the name of Tui-Poi be, and it is hereby decreed null and void.” This decree, of course, had the effect of nullifying the registration.
Patea Pila died in 1926. Subsequent to the decree of Feb. 12, 1930, Leulu, Mama and Tasali instituted proceedings to have the land registered. Poi-Tui filed an objection. The case (Poi of Pago Pago v. Patea of Pago Pago, No. 12-1930 (H.C. of Am. S.)) came on for hearing and the court rendered a judgment which, excluding the provision as to costs, reads as follows:
“The issues in this case raised with the filing for registration of the land ‘Autapini’ by Leulu, Mama and Tasali, heirs at law of Patea, deceased, and the objection to said registration by Poi Tui having come on to be heard by this Court on the 16th day of July 1930,
“And the proponents having appeared in person and by their attorney Crossfield Hunkin and the objector having appeared in person and the testimony of witness having been heard and considered and it appearing to the Court that the title to said land ‘Autapini’ is in the heirs of Patea, it is accordingly
*326. “ADJUDGED and DECREED that the title of said land ‘Autapini’ be registered in the name of the said Patea, and that the said Poi Tui has no right, title or interest in said lands.
“It is further ordered that the registration of said land ‘Autapini’ as it appears in Volume I Register of Native Titles Page 172 declared null and void by a decree of this Court made and entered the 12th day of February 1930 be restored nunc pro tunc with the substitution of the name ‘Patea’ for the name of ‘Poi Tui’ on Page 172 of said Volume I Register of Native Titles.”
The entry made at page 172 in Vol. I, Register of Native Titles immediately following the registration decreed null and void by the decree of Feb. 12, 1930 reads as follows:
“The foregoing registration of the land ‘Autapini’ having been declared null and void, and a new trial of the issue as to the ownership of said land having been ordered by a decree of this Court made on the 12th day of February 1930 — and a new trial of said issue raised by the posting of said land for registration by the heirs of Patea and the filing of objections by Poi Tui having been heard and a final decree having been made on the 17th July 1930 by which it was held that the title to said land ‘Autapini’ is in the heirs of Patea, to wit: Leulu, Mama, and Tasali, the foregoing registration is hereby restored and will be effective nunc pro tunc, but with the substitution of the name ‘PATEA’ for the name ‘Poi Tui’ on page 172 of this Register of Native Titles Vol. I. It being understood that the heirs of Patea succeed to his right, title and interest in the land surveyed and registered.”
Is this land Autapini registered in the names of Leulu, Mama and Tasali or is it registered in the name of Patea?
The 4th paragraph of the judgment of July 16, 1930 provides that the “registration of the said land ‘Autapini’ as it appears in Volume I, Register of Native Titles, page 172 declared null and void by a decree of .this Court made and entered the 12th day of February 1930 be restored nunc pro tunc with the substitution of the name ‘Patea’ for the name ‘Poi Tui’ on page 172 of said Volume I, Register of Native Titles.” “Nunc pro tunc” means “now for then.” The legal effect of this nunc pro tunc order was to make *327the registration of the land Autapini effective in the name of Patea as of May 12, 1924. This was not a registration in the name of a dead man for Patea did not die until 1926.
The actual registration of Autapini as it appears from the registration part of the entry dated 17 July 1930 on page 172 of Yol. I, Register of Native Titles, is in the name of Patea. It is not in the name of Leulu, Mama, and Tasali. All that precedes the words “the foregoing registration is hereby restored and will be effective nunc pro tunc” in the registration entry of 17 July 1930 in Vol. I, Register of Native Titles, page 172 including the statement therein “that .the title to said land ‘Autapini’ is in the heirs of Pa-tea, to wit: Leulu, Mama and Tasali” is recital and not the actual registration. Recital is not registration.
“The general rules of construction of written instruments have been held to apply to the construction of judgments. The intention of the court must be determined from all parts of the instrument, and the words and clauses thereof should be construed according to their natural and legal import. The judgment must be read in its entirety, and it must be construed as a whole so as to bring all of its parts into harmony as far as this can be done by fair and reasonable interpretation and so as to give effect to every word and part, if possible, and to effectuate the obvious intention and purpose of the court, consistent with the provisions of the organic law, — Doubtful or ambiguous judgments are to have a reasonable intendment to do justice and avoid wrong. Where a judgment is susceptible of two interpretations, that one will be adopted which renders it the more reasonable, effective and conclusive and which makes the judgment harmonize with the facts and law of the case and be such as ought to have been rendered.” 49 Corpus Juris Secundum, pp. 863-866. “Sometimes, it is declared that the interpretation of a judgment must be characterized by justice and fairness.” 30 Am.Jur. 835.
*328We think that the only fair and just interpretation of the judgment of July 16, 1930 is to construe it as requiring that Autapini be registered in the name of Patea which it actually was by the entry of July 17, 1930 at page 172 of Yol. I, Register of Native Titles.
Furthermore, the obvious actual intention of the Court in the judgment of July 16, 1930 was that the land should be registered in the name of Patea — otherwise there would have been no provision for the restoration nunc pro tunc of the registration of May 12, 1924 with the substitution of the name “Patea” for the name “Poi-Tui.”
Referring again to the registration entry of 17 July 1930 it is noted that the last sentence thereof reads “It being understood that the heirs of Patea succeed to his right, title and interest in the land surveyed and registered.” This sentence does not say the “above-named heirs of Patea” but the “heirs of Patea (emphasis added).” The heirs of Patea at the time of the entry were Faaitu, Leulu, Mama and Tasali. The “above-named heirs of Patea” would have been the last three only. Furthermore, if the restoration of the May 12, 1924 registration nunc pro tunc with the name Patea substituted for the name Poi-Tui was to be effective it is necessary to consider that the court intended by its July 16, 1930 judgment to have the land registered in the name of Patea and not in the names of Leulu, Mama and Tasali as heirs of Patea. Patea was living on May 12, 1924. He had no heirs at that time. A living man has no heirs. An heir is a person who inherits and no person can inherit until the death of his ancestor. “In the strictly proper sense of the word, no one is an heir until after the death of the ancestor, and the word signifies one who has succeeded to a dead ancestor, and cannot be applicable to one whose ancestor is living.” 29 Corpus Juris 290.
The heirs at law of Patea included Faaitu, the *329mother of the plaintiffs, as well as Leulu, Mama and Tasali. Sec. 977 of the Code (the same provision was in previous codes) provides that, there being no devise of it, “All real property shall lineally descend forever, to the issue of the person who died last seized entitled to, or having interest therein, but shall not lineally ascend, except as hereinafter provided” and the same section further provides that “The lineal descendants of any person deceased shall represent their ancestor, and stand in the same place as the person himself would have done had he been living.”
As we have already stated, the oldest son of Patea Pila was the Tasali who died in 1918. He left a daughter Faaitu, the mother of the plaintiffs, who was living when her grandfather Patea Pila died in 1926. By statute she inherited the same rights in Autapini as her deceased father Tasali would have inherited had he been living. She was an heir at law of Patea Pila.
As before stated, Patea died in 1926. At the time of his death his heirs included Faaitu, the mother of the plaintiffs, as well as Leulu, Mama and the present Patea. Each inherited an undivided one-fourth interest in the registered land from their ancestor Patea. Faaitu died after Pa-tea died. Her undivided one-fourth was inherited by her heirs who are the plaintiffs. Defendant Lopeti has no interest in the land. His mother Leulu is still living. She was present at the hearing in. this case. Leulu’s interest will upon her death (assuming she does not dispose of her fourth prior to her death and does not will it away from her children) pass to her children including defendant Lopeti if he is then living. Lopeti has no interest in Autapini now. As we have said, an heir does not inherit until the death of his ancestor, and Lopeti’s ancestor Leulu is still living. Faaitu, the ancestor of the plaintiffs, is dead.
Upon the death of Patea intestate in 1926 his children Leula,.Mama, Tasali (the present Patea), and Faaitu, *330his granddaughter (who by Sec. 977 of the Code above quoted, represented her father Tasali, the son of Patea who died in 1918), inherited Autapini becoming tenants in common of the property. “On the death of an owner of property intestate, the descent of the property by operation of law to several heirs creates a tenancy in common.” 86 Corpus Juris Secundum 372. When Faaitu died intestate, the plaintiffs, who are her children, succeeded to her undivided one-fourth interest and became tenants in common with Leulu, Mama, and Tasali, the present Patea.
“Since each tenant in common is equally entitled to the use and possession of the common property, and may exercise acts of ownership with respect thereto, as discussed supra § 20, a tenant in common has an interest in the possession of every part of the property, and from the nature of the estate must necessarily be in possession of the whole property. So, a tenant in common has the right to occupy the whole of the common property and every part thereof, and cannot be ejected for occupying more than what would be his share of the premises on partition; nor can the rights to possession of the premises, which all tenants in common of the property are entitled to as between themselves, be affected by the acts of one dispossessing another by force or fraud.” 86 Corpus Juris Secundum 383.
In view of the foregoing statement of the law respecting the right of possession of a tenant in common we think that the plaintiffs had a right as against the defendant, who is a stranger to the title .to Autapini (though his mother is not) to put up their chicken fence where they did and that the defendant had no right to tear it down. The matai of the family had authorized the plaintiffs to put up the fence in accordance with Samoan customs which we must recognize. Sec. 2 of the Code provides that “The customs of the Samoans not in conflict with the laws of Ameri*331can Samoa or the laws of the United States concerning American Samoa should be preserved.”
It follows, therefore, that the defendant should make reparation to the plaintiffs for the damage done by him to the plaintiffs’ fence. Since the defendant did not take away the wire but left it for the plaintiffs beside their fale, the damage is not the entire value of the wire and the labor required to put up the fence. The wire was only slightly damaged by being taken down. We think that $8.00 will compensate the plaintiffs for the damage done by the defendant.
The plaintiffs’ petition contains a prayer that an “injunction be issued to the defendant to stop interference on the premises which is now under the possession of the plaintiffs.” There was no evidence introduced by the plaintiffs at the hearing showing that the defendant is interfering, or threatens to interfere, with the possession of the premises now occupied by the plaintiffs in Autapini. This prayer should be denied.
JUDGMENT
Accordingly, it is ORDERED and ADJUDGED that the prayer of the plaintiffs for an injunction be and the same is hereby denied.
It is further ORDERED and ADJUDGED that the defendant Lopeti Malaga pay the plaintiffs $8.00 plus $5.00 costs, $6.50 to be paid on or before March 15, 1958 and the remaining $6.50 on or before April 1,1958.
And it is further ORDERED and ADJUDGED that the defendant Lopeti Malaga pay to the Clerk of the High Court $12.50 as costs, the same to be paid on or before April 15,1958. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485226/ | OPINION AND DECREE
OPINION OP THE COURT
MORROW, Chief Judge.
Salapu filed his application with the Registrar of Titles to be registered as the holder of the matai name Tuuu attached to the village of Aua. Soonapu filed an objection to the proposed registration, the objector becoming a candidate for the name.
Sec. 926 of the Code as amended prescribes the qualifications for holding a matai title. The evidence showed that each.of the two candidates has these qualifications and is, therefore, eligible for registration as the holder of a matai name.
Sec. 933 of the Code as amended prescribes the law which this Court shall follow in determining which of the eligible opposing candidates shall be registered as the holder of a matai name or title. It reads as follows:
*333“Consideration Given by Court: In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise the male descendant shall prevail;
(b) The wish of the majority or plurality of those members of the family related by blood to the title;
(c) The forcefulness, character, personality, and capacity for leadership of the candidate;
(d) The value of the holder of the matai name to the Government of American Samoa.”
We shall consider first the matter of hereditary right. There has been only one Tuuu registered. He was Kapoli who, according to the matai name record, was registered on April 20, 1938. He died about 10 years ago and the title has been vacant since then. Kapoli was the son of Nauia and the brother of candidate Soonapu’s mother Faautu. Salapu’s father was Liufau Mulitalo. The witnesses for Soonapu testified that Mauia, the father of Soonapu’s mother Faautu, held the title Tuuu while the witnesses for Salapu testified that he did not hold the title.
The witnesses for Salapu testified that Liufau Mulitalo, the father of Salapu, held the Tuuu title in Upolu and that when he came to Aua he was given the title Liufau. Liufau Moelata testified that “Mulitalo Tuuu Siaumaua came over (from Upolu) to his family in Aua with three names. He brought with him three names, one is Tuuu, the other is Sauafea, and the other is Sagapolu. When this Mulitalo Siaumaua arrived in the village of Aua, he was then given the name Liufau. And during that time difficulties arose between the two Liufaus. Liufau Mativa and Liufau Mulitalo involved the land Muliti.” Salapu while on the stand was asked “Did Mulitalo hold the title (Tuuu) over here or just in Western Samoa?” to which he answered “Only in Western Samoa.” It is apparent from this testimony of *334Malapu himself and from the testimony of Liufau Moelata that Mulitalo never held the Tuuu title in Tutuila. Liufau Moelata did testify that two or three others held the title in Aua, but they were never registered and his testimony was obviously based on pure hearsay. Furthermore it is a crime to use a matai title without having it registered. Sec. 935 of the Code provides that “Any person who shall use any matai name, or permit the use of any matai name in his behalf, until the name shall have been legally registered, shall be fined no more than $25.00, or imprisoned not more than three months, or both.” The same or substantially similar provisions have been in the Codes since 1906.
The undisputed fact is that Kapoli, the brother of Soonapu’s mother Faautu, was the registered holder of the Tuuu title; also the undisputed fact is that Soonapu has furnished the monotaga for the Tuuu Family since Kapoli died about 10 years ago. Salapu did not connect himself with any registered holder of the title. Soonapu connected herself with Kapoli, the only person ever to be registered as the Tuuu. Tuatoe, 53 years old, of Aua testified that Mauia, the grandfather of Soonapu and the father of Kapoli, used the title Tuuu. Liufau Moelata testified that his brother Salapu was not related to Kapoli. We conclude from the evidence that Soonapu prevails over Salapu on the issue of hereditary right.
Each of the candidates filed a petition with the Court purporting to be signed by those blood members of the Tuuu Family supporting his candidacy for. the title. There were 68 signers on the petition for Soonapu and 60 on the petition for Salapu. Witnesses for Soonapu testified that not a single signer on Salapu’s petition was a blood member while witnesses for Salapu testified that only one of the 68 signers on Soonapu’s petition was a blood member. Salapu testified that all 60 signers on the petition for him were blood members while Soonapu testified that all 68 on *335the petition for her were blood members. Giving consideration to all of the evidence relating to the wish of the majority or plurality of the family, it is our conclusion that the weight of the evidence preponderates in favor of the view that a majority of the Tuuu Family favor Soonapu. We find that she prevails over Salapu on the issue of the wish of the majority or plurality of the family.
Salapu completed five grades in school. Soonapu completed seven. Soonapu speaks English better than Salapu according to the evidence. Salapu is a driver for the Fire Department. Soonapu is a housewife. Both have plantations and work on them. Salapu was a foreman in charge of a group of men who had a part in the construction of the Tafuna airport during the war. He has also worked as a carpenter and still does carpenter work occasionally. He makes Samoan curios which he sells on steamer days. Soonapu weaves baskets, mats, and fans which she sells. She derives income from the sale of pigs, chickens, and copra. She worked for the Van Camp cannery for about a year. Soonapu is the mother of four sons whom she sent to Honolulu with money earned by herself. One of the sons is in the U.S. Navy, two in the U.S. Marines, while the fourth is an electrician working for the U.S. Government in Honolulu. The Court had an excellent opportunity to observe both candidates during the hearing. It is our conclusion from the evidence and our observation of the candidates at the hearing that Soonapu prevails over Salapu on the issue of the forcefulness, character, personality, and capacity for leadership, and we so find.
The value of the holder of a matai title to the Government depends primarily upon his ability to handle the affairs of his family well. This ability in turn depends for the most part upon his forcefulness, character, personality, and capacity for leadership. Since we find that Soonapu prevails over Salapu with respect to these matters as *336a whole, we believe that she prevails over Salapu on the issue of value of the holder of the title to the Government, and we so find. Also a Samoan woman who has the industry and ability to earn the money necessary to send three of her sons to Honolulu so that they can enlist in the Armed Forces of the United States and a fourth so that he can work as an electrician for the U.S. Government is very much worth while to her country. Salapu, a carpenter, is willing to live with his family in an unfinished house, a fact which does not speak very well for his industry.
In view of our findings Soonapu of Aua should be registered as the holder of the matai name Tuuu.
DECREE
Accordingly, it is ORDERED, ADJUDGED and DECREED that Soonapu shall be registered as the holder of the matai name Tuuu attached to the village of Aua.
Costs in the sum of $25.00 are hereby assessed against Salapu, the same to be paid within 80 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485228/ | OPINION OF THE COURT
MORROW, Chief Judge.
Aumavae acting in behalf of the Aumavae Family instituted an action to evict Tuitele from certain land in the village of Leone, claiming that such land was the communal land of the Aumavae Family, that he (Aumavae) gave permission to Tuitele to enter upon and use such land about 1940 or 1941, that Tuitele entered, put up houses and put in plantations on the land, that sometime in March 1958 he notified Tuitele to surrender possession of such land to him and that Tuitele has failed and refused to do so.
Tuitele claims that part of the land is known as Malaetele; that Malaetele is Tuitele communal property, having been occupied and used by the Tuitele people since a long time before the establishment of the Government in 1900; that the other part of the land is a part of the land Fagaalofa; that such part was Faiivae land and that it was given to Tuitele about 1941 or 1942 by Faiivae and Fao Vave.
It is undisputed that Tuitele built a large guest house on the land, the ownership of which is in dispute, about 1940 or 1941; that the guest house burned down in 1951 and that Tuitele has recently rebuilt most of it on the foundation of the house that was burned; that after the guest house was burned Tuitele built a sleeping house on another part of the land for himself and family and also a second sleeping house now occupied by Tapili, a member of the Tuitele Family. It is also undisputed that this second sleeping house has been rebuilt twice. It is also undisputed that Tuitele has had possession of and actually occupied all of the land in dispute for at least 16 years. He has planted *343coconuts on it and also some breadfruit, this without objection by the Aumavae people. The coconut trees are bearing and from their appearance must have been planted at least 12 to 15 years ago. It is also undisputed that Tuitele put up the original guest house (the one burned down) in 1941 or 1942 without objection by the Aumavae people. Aumavae claims that he did not object to the construction of the two sleeping houses because he was in the hospital and did not know about it. However, it is Samoan custom for family members to visit with their sick matai and we think he must have been fully informed by his family members. It is incredible to think he did not know about the two houses being built.
Aumavae testified that the Aumavae people had had plantations on the disputed tract since before the Government was established in 1900, that it was Aumavae land according to family tradition, and that he (Aumavae) gave Tuitele oral permission to occupy the land shortly before the guest house was built about 1941 or 1942; that such oral permission was given in the presence of witness Aitogi. Tuitele denied that any such permission was given. Aitogi testified that no such permission was given by Aumavae to Tuitele in her presence.
Aumavae also testified that the Aumavae title originated in Iliili. However, he did say that there had been “about 10 Aumavaes in Leone so far.” Aumavae is a member of the Faiivae Family. The fact is (and it is undisputed) that the father of the present Faiivae held the title Aumavae as did the father of Fao Vave.
As stated by Chief Justice Wyche in the case of Levale et al. v. Toaga, No. 26A-1945 (H.C. of Am. S.), “The question of title to real estate in American Samoa is always a difficult one to solve for the reason that in most cases there is no recorded title to, nor description of property. Title to real estate is generally proved by family tradition.” There *344is no recorded title nor description of the property in this case. Nevertheless, despite the difficulty, we must solve the problem using other evidence.
We have a case where the defendant has admittedly been in the undisturbed possession of land for at least 16 years. “Where title to land becomes material, the fact of present possession alone may serve to create a presumption of ownership; the emphasis being on the occupation, or appearance of ownership, and not on documentary sources of claim; . . .” IX Wigmore on Evidence (3rd Ed.) Sec. 2515. “It is an ancient principle that where a person is shown to be in the possession of property, such possession is presumed to be rightful. Potior est conditio possidentis (better is the condition of the possessor).” Jones on Evidence (4th Ed.), Sec. 74. “A presumption of ownership or title is derived from the possession of real property, the probative weight or force thereof being dependent upon the duration of the possessor’s tenure.” Id. Sec. 75. This presumption may be rebutted, however, except in cases where the possession has continued for at least 20 years under circumstances constituting adverse possession. In American Samoa the very fact that Aumavae did not object to the planting of the coconuts (and he testified that he did not) is circumstantial evidence that the part of the land in dispute on which they were planted was not Aumavae land. A Samoan almost invariably objects to another’s planting permanent crops on his land even though the other is occupying such land with the owner’s permission. The fact that there was no objection to the erection of the two sleeping houses is another piece of circumstantial evidence to the same effect.
There is considerable conflict in the evidence but it is our conclusion that the weight of the evidence is to the effect that the part of the’ disputed tract on which the guest house was built and Tuitele’s present sleeping house stands is a *345part of the land known as Malaetele and that it has been Tuitele family land since prior to the establishment of the Government in 1900 and we so find. The testimony of both Tuitele and Toomata, a former district governor, was that Malaetele had been used for plantation purposes by the Tuitele people since before the establishment of the Government.
We think that the evidence also preponderates in favor of the view that the remainder of the disputed tract, the part on which Tapili’s house stands, is a part of the land Fagaalofa which was given by Faiivae and Fao Vave to Tuitele some 16 or 17 years ago, and we so find. The Aumavae title originated in Iliili as Aumavae testified. Aumavae is a member of the Faiivae Family. As we have said it is undisputed that the father of the present Faiivae and also the father of Fao Vave held the Aumavae title. We believe also from the evidence that the Aumavae people did occupy the part of Fagaalofa given by Faiivae and Fao Vave to Tuitele when the gift was made. We believe from the evidence that Aumavae, a member of the Faiivae Family, consented ,to and approved the gift. Aumavae testified that both he and Faiivae are descendants of Matthew Hun-kin and that he (Aumavae) had his house on Matthew Hunkin land.
However, a matai in control of communal family land cannot give away or otherwise alienate such land without approval by the Governor. There was no approval by the Governor of the oral transfer of part of Fagaalofa to Tuitele. Such attempted gift did not, therefore, operate to transfer the ownership to Tuitele. Sec. 1282 of the A. S. Code. Nevertheless, the entry by Tuitele upon the part of Fagaalofa attempted to be given to him by Faiivae and Fao Vave was with the permission, approval, and consent of Aumavae whose family members occupied such land prior to the attempted gift. Under these circumstances, while there *346was no transfer of ownership or estate in the land to Tuitele, we think nevertheless that he did acquire a license to enter upon the land, occupy it, and put in plantations and build houses on it.
The question then arises whether such license, although not an estate in land, may, nevertheless, be revoked. “In many jurisdictions where a licensee has entered under a parol license and has expended money or its equivalent in labor, it becomes irrevocable, and the licensee acquires a right of entry on the lands of the licensor for the purpose of maintaining his structures, or, in general, his rights under his license, and the license will continue for so long a time as the nature of it calls for.” 33 Am.Jur. 408 citing Chesapeake & Ohio Canal Co. v. Ray, 101 U.S. 522, 25 L.ed. 792 and many other cases. On the other hand “The courts of many of the states uphold the general rule that a parol license to do an act on the land of the licensor, while it justifies anything done by the licensee before revocation, is nevertheless revocable at the option of the licensor, and this although the intention was to confer a continuing right, and money had been expended by the licensee on the faith of the license.” 33 Am.Jur. 410 citing Hicks Bros. v. Swift Creek Coal Co., 133 Alabama 411, 57 L.R.A. 720 and other cases. And “In some cases, the view is taken that under the rule that a license is revocable although expenditures on the faith of it have been made, the licensee is not entitled to compensation for the cost of such expenditures or improvements upon the land of the licensor (citing Foster v. Browning, 4 R.I. 47). A majority of cases, however, support the contrary view. According to these cases, if a license is revocable, .the licensee, as between the parties, upon the revocation by the licensor of a license for the use of the latter’s real property, is entitled to compensation or reimbursement for expenditures made by the former upon the property on the faith of the license (citing Wynn v. *347Garland, 19 Ark. 23 and many other cases).” 33 Am.Jur. 411.
The Courts of American Samoa have been faced with this same problem before. Where a man has entered upon land under a parol license and expended money or labor in reliance thereon, we have held in a number of cases that, even though the parol license is revoked, as we hold it may be, he may nevertheless retain possession of the property and make use of it in accordance with the terms of the license until such time as the value of the use of the property is equal to the value of the expenditures less the value (after they are torn down) of any building which he may have erected on the land and can remove from it when he leaves it. See Heirs of Lemeanai Family v. Iosia of Tafuna, No. 30-1953 (H.C. of Am. S.) and T. Magalei et al. v. R. S. Tago Sianava, No. 23-1955 (H.C. of Am. S.). We have permitted retention of the property for a limited time for the very practical reason that normally a money judgment for the expenditures less the deduction would, as a matter of fact, be of no substantial value.
In this case Tuitele had put up a house on the part of Fagaalofa attempted to be given to him. He has also put in some plantations on it. The house is occupied by Tapili, a Tuitele Family member. We think that Tuitele will be compensated for his labor and expense in erecting the house and putting in the plantations if he is permitted to occupy and use such part for 2½ years from the date of the order herein, i.e. until Nov. 30, 1960, having removed Tapili’s house on or before that date and leaving the plantations on such part in an unharmed condition.
ORDER
In accordance with the foregoing opinion it is ORDERED that the plaintiff’s petition be and it is hereby dismissed with respect to that part of the disputed tract which *348the Court has found to be Malaetele (on which part is the location of the guest house burned down in 1951 and partially rebuilt and also the present sleeping house of Tuitele); and it is further ORDERED that Tuitele shall have the right to continue to occupy, possess, and use for dwelling and plantation purposes that part of Fagaalofa on which Tapili’s house is (i.e. the part which the Court has found to have been the subject matter of the attempted gift by Faiivae and Fao Vave to Tuitele) until Nov. 30, 1960 at which time Tuitele shall have the right, if he has not done so before, to remove the house now occupied by Tapili from such part of Fagaalofa, leaving any plantations he may have .thereon at that time in an unharmed condition. And Tuitele is hereby ORDERED to vacate such part of Fagaalofa on or before Nov. 30,1960.
We think that under the circumstances of this case the costs should be divided equally between the parties. Accordingly costs in the sum of $12.50 are hereby assessed against Aumavae and a like sum against Tuitele. Costs are to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485230/ | OPINION AND DECREE
OPINION OF THE COURT
MORROW, Chief Judge.
Moega Nu’u and Iosefatu filed their application with the Registrar of Titles to have the land Tufu in Leusoalii, Fitiuta, Manu’a registered as “their individually owned land.” The Tauiliili Family of Fitiuta acting by Evile Tofili, a member of that family, filed an objection to the proposed registration, claiming that Tufu was “the communal land of the Tauiliili Family but not an individually owned land of Moega Nu’u and Iosefatu.”
When the case came on for trial Iosefatu moved the court to dismiss him as a party. He thereupon informed the court that he claimed no interest in the land and was dismissed as a party.
*357The survey accompanying the application to register included, according to the evidence, only a part of the land Tufu. It was estimated by one of the witnesses that Tufu comprises about 3 acres. The survey included only 0.276 of an acre, or approximately Vn part of the estimated 3 acres. Since the survey covered only a part of the land Tufu, the Court will consider the application as an application to register that part only.
The evidence given by the proponent Moega was conflicting. He testified at first that he was not a member of the Tauiliili Family. Later he testified that his blood father was Tauiliili Lei’a which showed that his first testimony as to non-membership in the Tauiliili Family was incorrect. His testimony was likewise contradictory as to some other matters. In view of such contradictory testimony by Moega, we think all of his testimony is entitled to very little weight. “Falsus in uno, falsus in omnibus” (false in one thing, false in all things) is a familiar precept in the law of evidence. “The import of this precept is that a witness who has been found to swear falsely as to one matter is not worthy of belief in other matters.” 3 Jones on Evidence (4th Ed.) 1694.
The evidence in this case clearly preponderates in favor of the view that the surveyed tract is communal land, that it has been occupied and used by Moega and a number of his ancestors before him for many years, that Moega is and such ancestors were members of the Tauiliili Family and that the occupation was in accordance with Samoan customs with respect to land. When Moega was asked how the land was changed from communal family land of his family to his individually-owned land he could give no satisfactory explanation. His explanation was that its occupation by him and his ancestors before him for a long period made it his land. Of course occupation of communal family land in accordance with Samoan customs by a fam*358ily member even for a long period does not operate to change it from communal land to the individually owned land of the occupant. Such occupancy does not constitute adverse possession as to the family of the occupant. For one thing, the occupancy is pursuant to the permission and direction of the matai of the family, and lacks the necessary element of hostility. Possession to be adverse must be characterized by hostility. 2 Corpus Juris 122.
While Moega denied it, the evidence as a whole is quite clear that there are 8 different Tauiliilis buried on Tufu. It is difficult to imagine a stronger single piece of circumstantial evidence than this to establish the ownership of Tufu by the Tauiliili Family as its communal land. The custom is for a family to bury a chief on communal land of the chief’s family.
The Court concludes from the evidence that the surveyed land (which is a part of Tufu) is the communal family land of the Tauiliili Family of Fitiuta, Manua. Our decree will not of itself affect the right of Moega to continue to occupy the surveyed tract in accordance with Samoan customs. Nor will the Court make any decree with respect to the removal of the house on the surveyed land occupied by the L.D.S. missionaries. They are not made parties to the case.
DECREE
Accordingly it is ORDERED, ADJUDGED and DECREED that that part of the land Tufu included in the survey accompanying the application of Moega Nu’u and Iosefatu to register the same as their individually owned land shall be registered as the communal family land of the Tauiliili Family of Fitiuta, Manu’a.
Costs in the sum of $25.00 are hereby assessed against Moega Nu’u, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485231/ | *360OPINION AND ORDER
MORROW, Chief Judge.
Plaintiff filed his petition on June 9,1958 praying for an order restraining the defendant from continuing the erection of his house on certain land in Utulei and also for an order evicting the defendant from said premises.
The premises are a small tract to the rear of the Samoan High School in Utulei. The land involved is the communal family land of the Afoa, Lutu, Tupua, and Taesali titles while its possession is vested in the Taesali title by an agreement made many years ago by the then Afoa, Lutu, Tupua, and Taesali representing their respective families. Such was the decision of this Court in the case of Taesalialii of Utulei v. Tuloto and Pauesi of Utulei, No. 8-1954 (H.C. of Am. S.).
The evidence in this case shows that the defendant Samuela is a member of the Taesali Family. His great-grandmother was Tualima. She was the blood daughter of Afoa and the blood sister of Taesali Taeletoto and Taesali Lo’i, the first two Taesalis. She was the mother of Taesali Fuavailili. Samuela rendered service in accordance with Samoan customs to Taesali Siaosi. Through the acceptance of such service as a family member, he was recognized as a member of the Taesali Family. Samuela’s father rendered service to the Taesali.
In 1954 Taesali Siaosi (he died in 1954), the then matai of the Taesali Family, authorized Samuela, as a member of the Taesali Family, to build a house on the land involved. In reliance upon this assignment of the possession of the land to him by the matai, in accordance with Samoan customs, Samuela entered upon it and put in footings for cement posts and later the posts upon which to erect the house which the plaintiff is now seeking to restrain the defendant from erecting. Prior to putting the footings Sa*361muela submitted an application together with plans for the house to the Governor for permission to erect the building. This was done pursuant to Sec. 1176 of the A. S. Code. His application was approved by Lutu, Afoa, and Tupua prior to its submission. The Governor granted the application. ■
Plaintiff, who is also a member of the Taesali Family, was registered as the Taesali on May 19, 1958. He, as the matai of the family, has ordered Samuela not to build the house. As matai, he does not of course own the land nor is he entitled to its exclusive possession. The land itself is the communal property of the Afoa, Lutu, Tupua, and Taesali families. The right of possession is vested in the Taesali Family. Plaintiff himself has no more property rights in this land than any other member of the Taesali Family. Its possession is the property right of the Taesali Family subject to assignment by the matai, in accordance with Samoan customs, to a specific member of the Family.
As before stated this assignment was made by Taesali Siaosi to Samuela, a Taesali Family member, in 1954. It is our opinion that the assignment having been made by the then matai in accordance with Samoan customs, cannot now, after it has been relied upon by family member Samuela (as it has been by putting in the footings and erecting the cement posts), be subsequently revoked by the new matai. We think, under the facts in this case, as disclosed in the evidence, that any such revocation would constitute a violation of Samoan customs. Ordinarily an assignment of land for a house and plantation purposes (in this case its possession) by the matai to a family member is for the latter’s lifetime, and it cannot be revoked and the family member deprived of its possession, except for good-cause and no such cause was shown in this case. Sec. 2 of *362the A. S. Code provides that “The customs of the Samoans not in conflict with the laws of American Samoa or the laws of the United States concerning American Samoa shall be preserved.” The customs of the Samoans with respect to the right of a family member to occupy family land has not been altered by any law of either American Samoa or of the United States concerning American Samoa.
ORDER
Accordingly, it is hereby ORDERED that the petition of the plaintiff be and the same is hereby dismissed.
Costs in the sum of $12.50 are hereby assessed against plaintiff Taesali, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485232/ | OPINION AND DECREE
*363OPINION OF THE COURT
MORROW, Chief Judge.
Kisi filed his application with the Registrar of Titles to be registered as the holder of the matai name Tufono of Fagatogo. Pito Tufono filed an objection to the proposed registration within the statutory period for filing objections and became a candidate for the title. Hence this litigation. See Sections 931 and 932 of the A. S. Code.
Section 926 of the Code as amended, prescribes the qualifications for holding a matai title. The evidence showed that each of the candidates possesses the required qualifications and is, therefore, eligible to be registered as the holder of a matai name or title.
Section 933 of the A. S. Code prescribes the law which the Court shall follow in making its determination as to which of opposing eligible candidates for a matai name shall be registered as its holder. It reads as follows:
“Consideration Given by Court: In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise the male descendant shall prevail;
(b) The wish of the majority or plurality of those members of the family related by blood to the title;
(c) The foreefulness, character, personality, and capacity for leadership of the candidate;
(d) The value of the holder of the matai name to the government of American Samoa.”
With respect to the issue of hereditary right, the uncontradicted testimony shows that Kisi is the grandson of Tufono Ma’iva’iva and that Pito is the son of Tufono Seilusi, the last holder of the title. Kisi has % Tufono blood in his veins while Pito has % Tufono blood in his veins. It follows that Pito Tufono prevails over Kisi on the issue of hereditary right, and we so find.
*364Each of the candidates filed a petition with the Court purporting to be signed by those blood-members of the Tufono Family favoring his candidacy. There were 91 signatures on Kisi’s petition and 49 on Pito’s. After the death of the former matai a family meeting was held for the purpose of selecting a new matai for the family. Kisi was the choice of the meeting. While there was some contradiction in the testimony as to who, among the signers, on the petitions were blood-members, we are satisfied that the evidence preponderates in favor of the view that a majority of the blood-members of the Family wish Kisi to be the matai. Accordingly, we find that Kisi prevails over Pito on the issue of the wish of the majority or plurality of the family.
Kisi is 58 years of age. He completed 5 grades in the old Poyer School. There were only 6 grades taught in the school at the time. He speaks English quite well. After leaving school, he worked for the U.S. Navy stacking supplies at G.S.K. for about a year and a half. He then became a carpenter’s apprentice and in due course a qualified carpenter. He worked as a carpenter for the Department of Public Works for many years. He is now a tracer at Aua, being manager of the G.H.C. Reid & Co.’s branch store at Aua. Kisi has plantations on which he works. He rendered service to the Tufono title for many years preceding the death of the last Tufono about 9 or 10 years ago. Since the death of that Tufono he has provided the monotaga for the Tufono Family, the title being vacant. Kisi earns $67 a month as a store manager. In addition, he receives financial aid from a number of his aiga.
Pito is 50 years old. He completed 8 grades in school. He speaks English well. After leaving school, he worked as a laborer for the Public Works Department for two years. He later became a foreman in G.S.K. and held that position for about 7 years. Since 1946 he has worked from time to *365time as a stevedore. He spends part of his time making cement blocks for use in the construction of buildings. He has plantations and grows pigs and chickens, some of which he sells. In addition to his earnings as a stevedore and cement block maker, and receipts from the sale of an occasional pig and a few chickens, Pito receives money, as gifts, from numerous aiga. During the course of the hearing, the judges had an excellent opportunity to observe the personalities of Kisi and Pito Tufono. It is our conclusion from the evidence and our observation of the two men during the hearing that Kisi prevails over Pito Tufono on the issue of forcefulness, character, personality, and capacity for leadership, and we so find.
We shall next consider the 4th issue. The value of a matai to the Government, generally speaking, depends primarily upon his ability to handle the affairs of his family well. And this ability in turn depends basically upon his forcefulness, character, personality and capacity for leadership. We have said this many times before in deciding matai name cases. See Faamalolo et al. v. Liligo Letuli, No. 35-1956 (H.C. of Am. S.); I. Malaga et al. v. Mase Molioo, No. 4-1957 (H.C. of Am. S.); Soonapu v. Salapu, No. 3-1958 (H.C. of Am. S.). The very fact that Kisi has provided the monotaga for the Tufono Family for the last 9 or 10 years while the title has been vacant indicates to us that he is looked to by the Family as its leader. It also indicates a sense of responsibility for the Family on the part of Kisi. We do not overlook the fact that Pito has been living in his wife’s family in Fagaalu for the last 10 years — away from his own family in Fagatogo — and that he has not helped provide the monotaga for the Family. We have already found that Kisi outranks Pito with respect to the issue of forcefulness, character, personality and capacity for leadership. It is our conclusion from the evidence that Kisi prevails over Pito on the issue of value of the holder of the *366matai name to the Government of American Samoa, and we so find.
Since we have found that Kisi prevails over Pito on the 2nd, 3rd, and 4th issues, while Pito prevails over Kisi on the 1st issue only, it follows that Kisi should be registered as the holder of the matai name Tufono.
DECREE
Accordingly it is ORDERED, ADJUDGED and DECREED that Kisi shall be registered as the holder of the matai name Tufono attached to the village of Fagatogo.
Costs in the sum of $25.00 are hereby assessed against Pito Tufono, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485233/ | OPINION AND DECREE
*367OPINION OF THE COURT
MORROW, Chief Judge.
Luafuluvale [sic] filed his application to he registered as the holder of the matai name Vaovasa attached to the village of Onenoa. Faitau filed an objection to the proposed registration and became a candidate for the name. Hence this litigation. See Sec. 932 of the A. S. Code.
Section 926 of the A. S. Code as amended prescribes the qualifications for holding a matai title or name. The evidence showed that each of the candidates possesses the necessary qualifications and is, therefore, eligible to be registered as the holder of a matai title or name.
Section 933 of the A. S. Code as amended prescribes the law which the Court shall follow in determining which one of opposing candidates for a matai name shall be registered as its holder. It reads as follows:
“Consideration Given by Court: In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise the male descendant shall prevail;
(b) The wish of the majority or plurality of those members of the family related by blood to the title;
(c) The forcefulness, character, personality, and capacity for leadership of the candidate;
(d) The value of the holder of the matai name to the government of American Samoa.”
With respect to the issue of hereditary right, the evidence shows that candidate Luafuluvalu is the great-great-grandson of Vaovasa Falatu and has Vie Vaovasa blood in his veins. It shows that candidate Faitau is the grandson of Vaovasa Tuaila and has V4 Vaovasa blood in his veins. It follows, .therefore, that Faitau prevails over Luafuluvalu on the issue of hereditary right, and we so find.
*368Faitau and Luafuluvalu each filed with the Court a petition purporting to be signed by those blood-members of the Vaovasa Family, favoring his candidacy. There were 355 signatures on the petition for Faitau and 182 on the petition for Luafuluvalu. Each candidate testified that all of the signatures on his petition were those of blood-members of the Family. Faitau testified that only 8 of the signers on Luafuluvalu’s petition were blood-members while 8 others were members (persons married to the family or adopted into it) but not blood-members, and that all of the remaining 166 were non-members. Luafuluvalu testified that only 52 of the 355 on Faitau’s petition were blood-members. After weighing all of the evidence on the issue of the wish of the majority or plurality of the family, it is our conclusion that it preponderates in favor of the view that the majority of the Vaovasa Family wish Faitau to be the holder of the name Vaovasa. Consequently, we find that Faitau prevails over Luafuluvalu on the issue of the wish of the majority or plurality of the family.
Luafuluvalu is 35 years old. He graduated from Foyer School and also from the Samoan High School. He became a teacher in 1952 and is now principal of the grade school at Onenoa. He speaks English. Luafuluvalu served as a Samoan Marine during the war. He has plantations on which he does some work. He sells part of the produce from his plantations. During part of his spare time he engages in fishing and sells part of his catch. According to his own testimony he has never rendered any service to former holders of the name Vaovasa. He has been using the matai name Vaovasa ever since 1955 without being registered as such holder. This has been in direct violation of Sec. 935 of the A. S. Code which makes it a misdemeanor to use a matai name without prior registration, punishable by a fine or imprisonment, or both. According to his own admissions on the witness stand he used some school money in *369his custody which the Department of Education later recovered through deductions from his salary as a teacher. He appeared to have been in difficulty over some church money also.
Faitau is 38 years old. He completed the 7th grade in the Marist Brothers’ School and speaks English fairly well. After quitting school he worked on family plantations. Later he became a carpenter, working as such for the Department of Public Works. During the war he served as a Samoan Marine. After the war he became a police officer which he still is. Faitau rendered service to former holders of the Vaovasa title. He lived in the Vaovasa Family in Onenoa for 4 years, although he now lives in Amanave. Faitau has plantations from which he sells taro, bananas, breadfruit, and copra. He raises pigs and chickens, some of which he sells.
During the course of the hearing the judges had an excellent opportunity to observe the personality of each of the candidates. It is our conclusion from the evidence and our observation of them that they are on a parity with respect to the issue of forcefulness, character, personality, and capacity for leadership, and we so find.
In view of our prior findings, it is not necessary for us to make a finding as to the issue of value of the holder of the matai name to the Government of American Samoa. Nevertheless, it is our conclusion from the evidence and our observations of the respective candidates that Faitau prevails over Luafuluvalu on this issue, and we so find. There is a question mark in our minds as to the value to the Government of the holder -of a matai name who has used a matai name in violation of the law for 3 years and who also has gotten into difficulty with his employer through improper use of his employer’s money.
Since we have found that Faitau prevails over Luafuluvalu on the 1st, 2nd, and 4th issues and is on a parity with him as respect the 3rd issue, it follows that Faitau should *370be registered as the holder of the matai name Vaovasa of Onenoa.
DECREE
Accordingly, it is ORDERED, ADJUDGED and DECREED that Faitau shall be registered as the holder of the matai name Vaovasa attached to the village of Onenoa.
Costs in the sum of $25.00 are hereby assessed against Luafuluvalu, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485234/ | OPINION AND ORDER OF DISMISSAL
*371OPINION OF THE COURT
MORROW, Chief Judge.
Tago filed his petition seeking the eviction of Faleulu from a part of the land Vaipito in Pago Pago. In 1947 Vaipito was decreed by this Court, in the case of Tago Loe et al. v. Sami and Faafeu Mauga, No. 33-1947 (H.C. of Am. S.) to “be registered as the individual property of Sami Mauga and Faafeu Mauga, subject to the license of Tago Loe to continue to use and occupy that part of Vaipito which he is now using and occupying, during the remainder of his natural life unless such license be sooner terminated by agreement or otherwise according to law.” Vaipito was so registered. Prior to the hearing of this case the Court viewed the land involved in the presence of the parties.
It appeared in the 1947 case that Mauga Moimoi had owned Vaipito as his individual property and that he had given permission to Tago Loe to occupy and use a part of it in return for service in accordance with Samoan customs ; that Tago Loe had gone on the land and put in plantations and put up houses in reliance upon the permission; that later Mauga Moimoi gave Vaipito to Sami and Faafeu who were his daughters adopted in the Samoan way. He had no blood children of his own.
Faleulu is the blood son of Leatiota, the blood brother of plaintiff Tago who was the Tago Loe in the 1947 case. Tago is Faleulu’s matai.
In our opinion the weight of evidence proves that Faleulu’s blood father helped Tago put in the plantations on the land from which he seeks to evict Faleulu and that Faleulu himself began working on the plantations there when he was still a boy; that he worked with Tago and his blood father, Leatiota; that sometime before the war Tago, as Faleulu’s matai, authorized Faleulu to live on the land *372with his family and that they have lived on it ever since, a period of over 21 years; that Faleulu has put in taro and banana plantations on the land and helped keep up the other plantations on it; that in late 1957 Faleulu, contrary to the wishes of Tago who was in Manua at the time and without Tago’s knowledge, moved the house a few yards, rebuilt it, increasing its size from about 12 by 16 feet to about 20 by 40 feet; that the old house was in bad condition, infested by termites and mosquito-ridden, and an unhealthy place in which to live; that the house as rebuilt is a great improvement over the old house. It is much larger and better in every respect. And it is much better from the standpoint of health since it is screened, whereas the old house had only Samoan coconut blinds which did not keep out mosquitos and flies. To better protect the house Faleulu cut down a coconut tree two or three feet from it. This was also done without the knowledge and consent of Tago while Tago was in Manua. Tago objected to the removal of the old house because the new house, as he said, might be blown down by the wind. The Court saw the location of the new house and the location of the old house a few feet away. We think the danger from the wind is substantially the same in both locations. It seems also that over the years Tago and Faleulu have had a few differences (other than those arising from Faleulu’s moving and rebuilding the house and cutting down the coconut tree) which were amicably settled. Nevertheless, Tago is asking this Court to order the eviction of Faleulu from the premises primarily because, without Tago’s knowledge and consent, he. cut down one lone coconut tree and moved a little old house, which was in bad condition and rebuilt it— this even though the house as rebuilt is much larger, and a much better and healthier place in which to live.
We have already said that Tago is Faleulu’s matai. We believe from the evidence that when Faleulu moved with *373his family onto the premises more than 21 years ago, Tago was providing, as all matais do, a place in which his son (matai son) could live and bring up his family; that Tago, in accordance with Samoan customs, became entitled to receive service from his son Faleulu; that Faleulu has rendered much service to Tago as his matai. To mention a few items of service, Faleulu gave Tago a pig to help him do his part as a chief at Mauga’s jubilee celebration, bought and sent to him in Olosega (Tago’s title is attached to Olosega) a drum of kerosene worth $30, gave him over $75 worth of things in connection with Tago’s getting a title in Malaeloa, spent over $200 to get Tago a seat in the Pago Pago village council, sent him almost $300 worth of things for use in the dedication of his title, and furnished money for the use of the Tago Family in making a trip to Western Samoa to bring back Tago’s children.
We think the disagreement over the cutting of the lone coconut tree and moving the house, in view of Faleulu’s most generous service to Tago, is not a ground on which a matai has a right to evict his son from premises assigned by the matai to his son. If every matai in American Samoa could have his family members evicted from premises assigned to them because of little disagreements such as have appeared in this case, it would be a bad situation indeed and young men would have no place to live.
We are going to dismiss Tago’s petition in this case not only because Tago and Faleulu are father and son in Samoan customs but also because Faleulu has faithfully rendered service to his matai. However, Faleulu should understand that he should continue to render such service in accordance with Samoan customs; also it should be clearly understood that Tago has the right to procure food from the plantations on the premises involved. Under the decree in the above case of Tago Loe et al. v. Sami and Faafeu, No. 33-1947 (H.C. of Am. S.) the right of Tago to occupy *374and use such premises ends with Tago’s death. Also, since any right of Faleulu with respect to the premises is derived from and through Tago, it follows that any right of occupation by Faleulu will terminate upon Tago’s death.
ORDER
In accordance with the foregoing opinion it is ORDERED that the petition of Tago filed in this case be and the same is hereby dismissed.
Costs in the sum of $25.00 are hereby assessed against Tago, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485235/ | OPINION AND DECREE
OPINION OF THE COURT
MORROW, Chief Judge.
Taliutafa C. Young filed an application with the Regis*375trar of Titles to have the land on which the Tau Dispensary in Luma, Tau, Manua is located registered as the communal family land of his (the Taliutafa) family. The application was accompanied by a survey by T. 0. Matsuura dated 9-5-56 on which the land sought to be registered is designated as “Plot F”. On Plot “F” are the dispensary building and a hospital. Pomele and Faamau filed an objection to the proposed registration. Hence this litigation. Sec. 905 of the A. S. Code. Both Faamau and Pomele are blood-members of the Taliutafa family, being descendants of Faasua who was a married man to the Taliutafa family. The objectors claim the property to be Faasua communal family land.
The weight of evidence is clearly to the effect that the Taliutafa Family had actual possession of this land prior to the establishment of the Government in 1900; that sometime prior to 1920, the Taliutafa Family having continued in actual possession, Taliutafa gave permission to Mealefu (she was not a member of the Taliutafa Family) to occupy the land involved; that she erected a Samoan house on it at about the place where the hospital is now located, occupied the land and made use of the breadfruit growing on it; that To’aga, acting for the Taliutafa Family, in 1920, or thereabouts, gave permission to the Government to erect the dispensary on the land. Taliutafa was in Tutuila at the time. For that reason To’aga, who was his sister, acted for the Family. The weight of the evidence also establishes that the Government then built the dispensary; that about 10 years ago, Taliutafa, acting for his family, gave permission to the Government to erect the hospital on the land which it then did; that the Government has used both buildings for medical purposes ever since they were built. Mealefu left the land when Taliutafa authorized erection of the hospital.
*376Pomele and Faamau, the objectors, made no objection whatsoever to the erection of either building by the Government pursuant to the permissions from the Taliutafa Family. The very first objection by them, according to their own testimony, occurred when they filed the objection in this case in 1957. Pomele testified that the reason that they did not make any objection before was that they wanted to wait until the land should be offered for registration. It seems very strange indeed that any one would wait 37 years to make a bona fide objection to the taking of his land by someone else, particularly when he could not know whether or not it would ever be offered for registration.
The weight of the evidence is also to the effect that a number of former Taliutafas are buried on the land whose ownership is in dispute. One of them is Faasua, the grandfather of both objectors, who was married to a Taliutafa woman named Faailo who was their grandmother. While Pomele testified that he did not know whether his grandfather Faasua ever held the Taliutafa title, we are convinced from the evidence that Faasua did. That he held the Taliutafa title together with the undisputed fact that he was married to a Taliutafa woman explains his burial on the land. Despite the fact that objectors Pomele and Faamau claim the land as Faasua Family land because their grandfather Faasua is buried there, we believe nevertheless in view of all the evidence, .that the land is not Faasua land.
Furthermore, if the Faasua people ever did have any interest in the land (and we think according to the weight of the evidence that they did not) such interest has been divested long ago by adverse possession and vested in the Taliutafa Family, since the evidence shows quite clearly that the Taliutafa Family has had possession under circumstances making their possession adverse, for more than 20 years. The Taliutafa people, according to the evi*377dence, had actual possession prior to the establishment of the Government and such possession by them continued to be actual until shortly before 1920 when Taliutafa permitted Mealefu to unter [sic] upon and occupy and use the land. Mealefu’s possession followed by the actual possession by the Government was possession in behalf of the Taliutafa Family since Mealefu, and following her the Government, had actual possession through permission of the Taliutafa Family. “Personal occupation of land by a person claiming title thereto by adverse possession is not necessary; whatever he may do himself in taking and holding posssession, he may do by another; and possession by his agent, servant, licensee, permittee or trustee may inure to his benefit and be regarded as his possession.” 2 Corpus Juris Secundum 552. In this case Mealefu and following her the Government were permittees.
The period for acquisition of title to land by adverse possession in American Samoa is 20 years. Secs. 849(4) and 907(2) of the A. S. Code. Adverse possession for twenty years operates to divest the owner of his title. “While some statutes have been construed to confer merely a possessory right or defensive title, the rule which is of almost universal acceptation is that an adverse possession, accompanied by the essential prerequisites for the statutory period, not only bars an action for the recovery of the land but vests a full legal title in the possessor. Under that rule, the authorities hold that the title of the original owners is completely divested.” 2 Corpus Juris Secundum 803. In High Chief Fuimaono v. Moananu and Felila, No. 12-1955 (H.C. of Am. S.) we said that “Adverse possession for the statutory period — vests title in the adverse possessor” citing Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 607; Puailoa v. Leapaga, No. 64-1948 (H.C. of Am. S.); Pelenato Sa Manoa of Faleniu v. Maea et al., No. 11-1955 (H.C. of Am. S.).
*378As above stated we are convinced from the evidence that if the Faasua Family ever had any interest in the land involved (and we say that we believe in view of all the evidence that they did not) such interest has been divested and vested in the Taliutafa Family through adverse possession.
It should be stated at this point that by deed dated Nov. 26, 1956 Chris Young Taliutafa as the matai of the Taliutafa Family granted to the Government of American Samoa the “right to use .this land (i.e. the land involved in this case and described as Plot “F” on the aforementioned survey) for the benefit of itself and the people of Manu’a for as long a period as said land is necessary, but this grant shall not be assignable by the Government and if and in the event the land is no longer needed for governmental purposes, this grant shall cease and terminate and the right to the use of the above described communal land shall revert to the family of the grantors, and the grantors shall, by reason of such reversion become the owners of any and all permanent structures placed upon said lands by the Government.”
It is our conclusion that Plot “F” as shown on the aforementioned survey is the communal family land of the Taliutafa Family subject to the right of use in the Government conveyed by the aforementioned deed.
DECREE
According [sic] it is ORDERED, ADJUDGED and DECREED .that the following described land located in the village of Luma, Tau, Manua, to wit:
Beginning at an iron pin, 86°09'00" E a distance of 2.50 feet from the north-east comer (concrete monument) of Plot “A” Tau Dispensary. (Deed on file in the Clerk’s Office of the High Court, dated April 18, 1922, Folio No. 683); thence run S 80°26'07" E, a distance of 44.25 feet along the south west boundary line of Plot “G” Tau Dispensary to the northwest corner of the Tau Hospital Building, thence N 88°52'00" E, a distance of 42.45 *379feet along the southeast boundary line of Plot “G” and northern end of the hospital building to a second iron pin; thence S 0°13'00" E, a distance of 32.14 feet along the western boundary line of Plot “H” to a third iron pin; thence S 87°55'00" W, a distance of 55.54 feet to the south east comer (fourth iron pin) of Plot “E”; thence N 6°09' 00" W, a distance of 2.75 feet along the eastern boundary line of Plot “E” to the southeast corner of the Dispensary Building; thence N 62°31'34" W, a distance of 31.24 feet along the northern boundary line of/and to the northeast comer (fifth iron pin) of Plot “E”; thence, N 6°09'00" W, a distance of 21.80 feet along the eastern boundary line of Plot “A” to the Point of Beginning,...
shall be registered as the communal family land of the Taliutafa Family of the Island of Tau, Manua, subject to the right of use granted to the Government of American Samoa by deed dated Nov. 26, 1956, executed by Chris Young Taliutafa, and recorded in Vol. 3, Register of Land Transfers at pp. 72-73.
Magnetic bearing of N 14° 45' W of the eastern boundary line of Plot “A” as given in the deed April 18,1922 and the true bearing of N 6°09'00" W of the western boundary of Plot “F” above described are one and the same.
The above described land contains 0.0564 acres more or less. All bearings thereof refer to the true meridian, converted from the magnetic meridian by use of a 11°26" E declination, increasing 3 minutes annually. Such above-described land adjoins and lies to the east of the land conveyed by Faamau Sili and Lepolo to the Government of American Samoa (deed runs to Edwin T. Pollock, Governor of American Samoa) by deed dated April 18, 1922 and recorded in Yol. II, Register of Transfers, p. 127 to p. 129.
The above description of the land to be registered pursuant to this decree is taken from the survey by T. O. Matsuura, approved by Elmer A. Wilson, Director of Public Works, and dated 9/5/56, filed with the application to register, such survey being marked “Enel. (1)” and filed in the proceedings of this case. *380Costs in the sum of $35.00 are hereby assessed against Pomele and Faamau, each to pay $17.50. All costs are to be paid'within 45 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485236/ | OPINION OF THE COURT
MORROW, Chief Judge.
Plaintiff Haleck filed his petition praying for specific performance of a covenant for renewal of a lease from Tiumalu Male to Ho Ching dated November 1, 1938, for a term of 20 years computed from the 3rd day of February, 1939, at a monthly rental of $30.00. It contained an option by the lessee for a renewal for another 20 years upon the same terms, except that the rental was to be $35.00 a month. The lessor was the matai of the Tiumalu Family. The leased land was that which was then and still is occupied by the plaintiff’s No. 1 store in Fagatogo. The store building itself was owned by Ho Ching separate and apart from the land and was not included in the property leased.
Defendant Tiumalu Taimane, the present matai of .the Tiumalu Family, filed a counterclaim praying for (a) an order declaring the lease void and rescinded or, in the alternative, (b) an order declaring the option for renewal contained in the lease void and rescinded or that it be “amended to make such provision as to the Court seems fair and just.”
Ho Ching died in July, 1953. Subsequent to his death his heirs-at-law assigned the lease and sold the store building *383to the plaintiff for $7,000. Tiumalu Male died in 1952. The Tiumalu title was vacant until 1956 when the defendant -Tiumalu Taimane became the Tiumalu.
In September, 1919, Tiumalu Lailai, the then matai of the Tiumalu Family, leased a portion of the land covered by the lease now in litigation to Ho Ching for 15 years at a yearly rental of $84.00. In September, 1925, the same parties entered into a new lease for 15 years from September 1, 1925, ata yearly rental of $240.00. Tiumalu Lailai died in 1937 and Tiumalu Male succeeded him as the matai of the Tiumalu Family.
We think, since the lease of November 1, 1938 executed by Tiumalu Male (the successor in title to Lailai) to Ho Ching included all the land leased in September, 1925 to Ho Ching, that the September, 1925 lease was surrendered by operation of law despite the fact that it had 22 months yet to run. We think, too, that the fact that some land was included in the second lease which was not included in the first lease is not material on the question of surrender. A new lease to the original tenant of the same premises operates as a surrender of the old lease by operation of law unless it is contrary to the intention of the parties. 51 C.J.S. 715. There was no evidence of a contrary intent in the instant case.
Defendant claims that the November 1, 1938 lease from Tiumalu Male to Ho Ching was void upon the alleged ground that Male had no authority to make the lease because of a contract entered into between Tiumalu Family members on July 30, 1926. It appears that at that time there were three outstanding leases on various parts of Tiumalu communal family land in Fagatogo; viz., one to Ho Ching on which there was a store then occupied by Alexander Forsythe (the land covered by that lease is covered by the November 1, 1938 lease from Tiumalu Male to Ho Ching); another of land on which B. F. Kneubuhl had a *384store; and another of land on which Frank Shimasaki had a store.
It is claimed by the defendant that this agreement operated to partition the ownership of a part of the communal family land of the Tiumalu so that the part leased to Ho Ching became the property of Tiumalu Lailai and his heirs, the part on which the Kneubuhl store was located became the property of Male and certain others in the Tiumalu Family while the part on which Frank Shimasaki’s store was located became the property of Taamu and certain others in the same family.
The parts of the document necessary to its proper interpretation read as follows:
“WHEREAS the Matai name Tiumalu is owner of certain lands in Fagatogo, bordering on the Naval Station, which lands are named ‘Poata/ and whereas the present descendants of Tiumalu are, in addition to the present holder of the name Tiumalu-Lailai, the persons whose names are mentioned in the preamble hereof, and
“WHEREAS certain parts or parcels of the said lands ‘Poata’ are now leased for the purposes of stores under written leases with Ho Ching and Frank Shimasaki, said leases being of the lands now occupied by the stores of Alexander Forsythe, B. F. Kneubuhl and Frank Shimasaki, and the parties to this agreement desire that the said lands be so partitioned among themselves and their heirs that the proceeds of said several leases in the way of rents and profits shall accrue to those members of said family to whom they are hereby partitioned, and who shall hereafter be regarded as the owners of said leases and entitled to the rents and profits received therefrom, but shall not have the power to dispose of said lands by sale so as to take them out of the ownership of the Matai of the family.
“NOW THEREFORE in consideration of the premises and of the sum of One ($1) Dollar to each of the parties by the others in hand paid, the receipt whereof is hereby acknowledged, it is mutually agreed as follows :
“1. Male, Faamao, Falo and Viavia and their heirs and Fuamaila, Talaifua and Tusi shall be the owners for the purpose of receiving the rents of the lease as hereinbefore stated of the property now occupied by B. F. Kneubuhl.
*385“2. Taamu and his heirs and Mariota, Toso and Faataape and Saufaiga and their heirs shall be the owners for the purpose of receiving the rents and profits of the lease to Frank Shimasaki.
“3. Tiumalu-Lailai and his heirs shall be the owners for the purpose of receiving the rents and profits from the lease of the property now in the possession of Alexander Forsythe.
“4. It is hereby covenanted and agreed by and between all the parties to this agreement that the. partition of the lands as made herein is only for the purpose of "receiving the rents, issues and profits of the lands and properties hereby partitioned and that the ownership of the lands remains in the Matai of the Tiumalu family.
“5. Male shall collect the rents of the property now occupied by B. F. Kneubuhl.
“Taamu shall collect the rents of the property now occupied by Frank Shimasaki.
“Tiumalu La’ila’i shall collect the rents of the property now occupied by Alexander Forsythe.
“In the event that the persons named as collectors of rents of these properties are by reason of illness or absence unable to collect the rents then they shall designate in writing the one to act as their substitute.”
We think that the contract properly construed means that the money from the three leases was to be divided but the ownership of the land was to remain in the matai. The recital contained in the second quoted paragraph is somewhat ambiguous. However, it is to be remembered that recital is not strictly a part of a contract, though it may be looked to for interpretation. If there is inconsistency between the recital and the operative parts, the operative parts control. “Recitals in a contract should be reconciled with the operative clauses and given effect, so far as possible; but where the recital is so inconsistent with the covenant or promise that they cannot be harmonized, the latter if unambiguous prevails. In other words, recitals, especially when ambiguous, cannot control the clearly expressed stipulations of the parties, and where the recitals are broader than the contract stipulations, the former will not extend the latter.” 17 C.J.S. 733. To the same *386effect is the opinion in Ex parte Dawes, 17 Q.B.D. 275, 286, quoted with approval in Williams v. Barkely, 165 N.Y. 48, 59, 58 N.E. 765, 767.
We think that .the operative parts of the contract contained in sub-paragraphs 1, 2, 3, 4 and 5 of the third quoted paragraph taken as a whole clearly mean that it was only the rent, not the ownership of the land, that was to be divided. As stated at the end of sub-paragraph 4, “The ownership of the lands remains in the Matai of the Tiumalu Family.” If there is any inconsistency between the recital and the operative parts in the contract, the operative parts must prevail because the operative parts are what the parties agreed to do while the recital is merely the inducement for making the contract. As we have said, recital is not strictly a part of a contract unless intended to be so. 17 C.J.S. 733. And there was no evidence of any such intention here.
Again paragraph 4 of the operative parts of the agreement provides that “It is hereby covenanted and agreed by and between all the parties to this agreement that the partition of the lands as made herein is only for the purpose of receiving the rents, issues and profits of the lands and properties hereby partitioned and that the ownership of the lands remains in the Matai of the Tiumalu Family.” Nowhere in either the recitals or in the operative clauses does the contract say that the partition is for the purpose of dividing ownership.
The English word partition is derived from the Latin word partitio which means a division. A division or partition of a piece of land may obviously be made for any one of many purposes. A farmer may partition or divide his farm into three fields by fences for the purpose of raising cattle in one field, sheep in another, and pigs in the third. No one would contend that such partition or division of *387the land operated to divide its ownership. He still owns the farm just as the matai continued £0 own the land after it was divided for the purpose of receiving rent money. The defendant is trying to read the words “partition of the lands” as if they read “partition or division of ownership of the lands.” The operative part of the agreement does not say “partition or division of ownership of lands” at all. It says, instead, “partition of the lands as made herein is only for the purpose of receiving the rents, issues and profits” and the “ownership of the lands remains in the matai.” Just as the farmer, as we have said, may partition (divide) his land for the purpose of growing cattle on one part, sheep on another part, and pigs on the third part, so the owner may partition (divide) his land for the purpose of allowing one son to get the rent from one part, another son from another part, and a third son from the third part. No one would suggest by such a division of rent that each son became the owner of the third part of the land from which he received the rent.
Furthermore, rent is an incident of the reversion in leased premises. 32 Am.Jur. 348. If there is a transfer of the ownership of the leased land, unaccrued rent passes to the grantee of the reversion. The rent belongs to the owner of the soil. Johnson v. Siedel, 178 Iowa 244, 159 N.W. 677, 678. If there had been an intention to divide the ownership of the land, it would have been sufficient in sub-paragraphs 1, 2 and 3 merely to have said that certain of the parties, naming them, “shall be the owners” of a certain part of the land and the conveyance of the reversion in that part to them would have brought the unaccrued rent to them as an incident of the reversion. There would have been no necessity whatever for adding after the word “owners” the words “for the purpose of receiving the rent, etc.” The very fact that such words were added is a clear indication, taken in connection with sub-paragraph 4, that it was the *388intention to divide the rent only and not the ownership of the land. That was to remain in the matai.
We .think, therefore, that Tiumalu Male, as the successor to Tiumalu Lailai, had the capacity to make a valid lease, particularly since the provision in the operative part of the contract clearly said, “The ownership of the lands remains in the Matai of the Tiumalu Family.” There is no mistaking what that language means. We cannot ignore it.
As heretofore stated, Tiumalu Male leased the land (not the store building on it) to Ho Ching on November 1, 1938, and the lease came to plaintiff Haleck through assignment for value from the Ho Ching heirs after their father’s death in 1953. The Tiumalu title was vacant from the time of Tiumalu Male’s death in 1952 until the defendant got the title in 1956.
It seemed to us during the trial that there was some suggestion by the defendant that Tiumalu Male may have committed some sort of a fraud (just what it was was not made clear to us) on the heirs of Lailai who were receiving the rent on .the September, 1925 lease when he executed the new lease to Ho Ching on November 1, 1938. It is difficult for the Court to believe there was any fraud when the evidence shows that the old lease made by Tiumalu Lailai for 15 years from September 1, 1925 provided for a rent of only $20.00 a month while the new lease by which the old lease was replaced provided for a rent of $30.00 a month, the Lailai heirs taking the increased rent without any objection on their part while Tiumalu Male and his heirs got none of it. That does not have the appearance of fraud.
It is further claimed that Tiumalu Male did not consult with the Lailai heirs before making the lease upping the rent 50% and that at least one of the Lailai male heirs cried about it. It was claimed also that there is a Samoan custom that .the matai shall consult with his family mem*389bers before making a lease, and the defendant introduced evidence to that effect. Every judge on this bench knows judicially that sometimes the matai consults the family and sometimes he does not and that the custom is not universal by any means. That is a matter of common knowledge. Furthermore, courts do not shut their eyes to matters of common knowledge. They take judicial notice of such matters. 31 C.J.S. 510,511.
But conceding that the custom did exist in 1938 and that Tiumalu Male did not consult with the family, the most that can be said is that since the Lailai heirs took the rent for twenty years with full knowledge of the facts (and family members would of necessity know it if they were not consulted), the lease cannot now be declared void by the Court. If the Lailai heirs did have an equity to a rescission of the lease, they slept on that right for 20 years. Twenty years of laches bars their remedy.
The defendant’s counterclaim is equitable in nature. “Equity aids one who has been vigilant and will refuse relief to one who has been dilatory or wanting in diligence in prosecuting his cause of action. It is said that no rule is better settled than that relief will be denied a complainant who has slept on his rights.” 19 Am. Jur. 333.
In this case the Lailai people have been asleep for 20 years with one eye with respect to any possible avoidance of the lease but during the same 20 years have been fully awake with the other eye with respect to taking the increased rental money from the tenant.
Conceding again that if the lease by Male to Ho Ching had a defect because of lack of consultation with the family before it was made, such defect was cured by ratification of the lease through acceptance of the rent pursuant to its terms for 20 years with full knowledge.
“A voidable lease may be affirmed or ratified by the party having the right to avoid it, and no particular act is *390a necessary element of affirmance or ratification.” 51 C.J.S. 839. And “Occupation of the premises by the lessee and payment of rent according .to the terms of the lease usually are held to constitute ratification by the lessee of a defective lease, or one voidable for fraud or duress. . . . Acquiescence in the occupancy of the premises by the lessee, and acceptance of rent from him will, as a rule, amount to a ratification of a voidable lease by the lessor, as where the lease is affected by fraud or mistake.” Id.
And again we think that the defendant Tiumalu Taimane, successor in title to Tiumalu Male, thb original lessor, has not only ratified the lease but is estopped from avoiding the lease including the renewal clause, and this because the full amount of the rental over the 20 years has been accepted by the Lailai heirs who were to receive it pursuant to the contract for division of rents among the Tiumalu Family. “A lessor who has received the full consideration for the lease, and those claiming under him, may not question the right of the lessee to hold the premises.” 51 C.J.S. 841.
The defendant Tiumalu Taimane testified that she did not repudiate the lease but took the rent out of respect for Male. She not only took rent directly from tenant Haleck but also prevailed upon him to liquidate two of her debts to the Bank of American Samoa by paying the rent to the bank, which he was certainly under no obligation to do. If the lease was defective as contended by her, such action on her part was certainly a ratification which cured any defect. And having with full knowledge accepted the benefits under the lease from its assignee in good faith for value, she cannot now repudiate the burdens. She cannot say that the lease was good as far as her taking the rent from Haleck directly or paying her debts with it to a third party was concerned and void so far as performance of her obli*391gations under it is concerned. She cannot have the benefits without the obligations; they go together.
Again if there was any defect in the lease on account of any alleged failure by Male to consult with the family before executing it on November 2, 1938, that defect was wiped out by the assignment of the lease to Haleck by the Ho Ching heirs for a valuable consideration, Haleck being an innocent purchaser without notice of any such defect. It is familiar law that where the equities are equal the legal title prevails. 19 Am.Jur. 337.
We believe the contention that the covenant of the lessor to renew the lease at the option of the lessee was without consideration is without merit. The covenants of the lessee including the covenant to pay the rent constituted the consideration for the covenants of the lessee, including the covenant to renew at the option of the lessee. Also “A covenant to renew a lease contained in the lease itself is based on a sufficient consideration and is valid, although unilateral in the sense that the lessee is under no obligation to renew, because such a covenant may well be considered as a material inducement to the execution of the lease.” 51 C.J.S. 599.
The plaintiff exercised his option for renewal by demanding that the defendant enter into and execute a new lease in accordance with the covenant for renewal but the defendant refused performance.
We reach the conclusion that plaintiff Haleck is entitled to have defendant Tiumalu Taimane specifically perform the covenant in the lease to renew it for another 20 years.
The renewal lease for 20 years from the expiration of the old lease on February 3, 1959, will be a new lease. After .the execution it may be presented to the Land Commission for its recommendation to the Governor, pursuant to the provisions of Section 1281 of the A. S. Code.
*392Section 1281 provides that “All instruments affecting the title to land which require the approval of the Governor before becoming effective shall be filed with the Secretary of the Land Commission for study and recommendations thereon by the Commission. The said Commission shall . . . make recommendations to the Governor respecting the approval or disapproval of instruments affecting the title, ownership or possession of land, so submitted for consideration and approval. It shall be the duty of the Commission to endeavor to prevent the monopolistic ownership of land and improvident alienations of communal lands (emphasis added) by those charged with the management and control thereof.”
Section 1280 of the Code provides that “As used in this Chapter ‘Alienation’ shall mean the sale, gift, exchange, or any other method of disposal.” A renewal lease of the land will dispose of an estate for 20 years in it. An estate for years is frequently treated as an interest in land. See Fidelity Trust Co. v. Wayne County, 244 Mich. 182, 59 ALR 698.
Section 1283 of the Code provides that “Native land may, with the approval of the Governor, be leased to any person for any term not exceeding thirty (30) years for any purpose, except for the working of minerals, and cutting of .timber.”
We think that Sections 1281 and 1283 constitute a proper exercise of the police power of the Government to protect the owners of communal lands from improvident dispositions of their property by lease or otherwise.
In the exercise of its police power, the Government may see to it that a lease provides for an adequate and reasonable rental under existing conditions or in effect prohibit the making of the lease through the intervention *393of the Land Commission and the Governor, unless it provides for a sufficient rental so as not to make the transaction improvident with respect to the owner of the Samoan communal land. The Samoan people need protection against improvident transactions such as disposing of .their property for less than it is worth.
The provision in Section 10 of Article 1 of the U.S. Constitution to the effect that “No State shall. . . pass . . . any law impairing the obligation of contracts” is a limitation upon the power of a State, not a U.S. possession as is American Samoa.
In Home Bldg. & Loan Assoc. v. Blaisdell (1933), 290 U.S. 398, 88 ALR 1481, a Minnesota statute extended the period for redemption from a mortgage foreclosure. This was during the time of great economic distress in the United States in the early 1930’s. The Supreme Court of the United States upheld the statute as a proper exercise of the police power of the State for the protection of the economic interests of the people despite the prohibition against the impairment of the obligation of contracts clause in Article 1, Section 10, and the due process and equal protection clauses in the 14th Amendment. Speaking with reference to the constitutional prohibition against the passage of laws by a state which impair the obligations of a contract, Mr. Justice Brewer in Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685, 692, said: “But into all contracts, whether made between States and individuals, or between individuals only, there enter conditions which arise not out of the literal terms of the contract itself; they are superinduced by the pre-existing and higher authority of the laws of nature, of nations or of the community to which the parties belong; they are always presumed, and must be presumed, to be known and recognized by all, are binding upon all, and need never, *394therefore, be carried into express stipulation, for this could add nothing to their force. Every contract is made in subordination to them, and must yield to their control, as conditions inherent and paramount, wherever the necessity for their execution shall occur.” An examination of the decisions of the U.S. Supreme Court interpreting the prohibition against the impairment of the obligation of contracts will reveal that it is not absolute.
Mr. Justice Reed in Veix v. Sixth Ward Building and Loan Association, 310 U.S. 32, 38, said: “In Home Building and Loan Association v. Blaisdell (290 U.S. 398, 434) this Court considered the authority retained by the State over contracts ‘to safeguard the vital interests of its people.’ The rule that all contracts are made subject to this paramount authority was there reiterated. Such authority is not limited to health, morals and safety. It extends to economic needs as well. Utility rate contracts give way to this power, as do contractual arrangements between landlords and tenants.”
Section 1281 respecting the creation and duties of the Land Commission was enacted into law on June 24, 1947 (It was enacted as Amendment No. 8-1947) which was after the November 1, 1938 lease was executed by Tiumalu Male and Ho Ching. But it was in effect when Haleck took the assignment of the lease from the Ho Ching heirs in 1954 and 1955.
DECREE
Accordingly, it is ORDERED, AJDUDGED and DECREED that the defendant Tiumalu Taimane in her capacity as the Matai of the Tiumalu Family shall within 10 days execute and deliver to the plaintiff Max Haleck, Sr., a new lease pursuant to the renewal clause in the lease of November 1, 1938, from Tiumalu Male to Ho Ching. How*395ever, the renewal lease shall not contain a provision for its renewal at the option of the lessee. *
Costs in the sum of $25.00 are hereby assessed against Tiumalu Taimane, the same to be paid within 30 days.
“A general covenant to renew or a covenant to renew with, like terms, conditions, and covenants ordinarily does not import a renewal covenant in the renewal lease, for the reason that, if a general covenant for renewal authorizes the insertion of a similar covenant in the lease giving a renewal, the effect would be to create a perpetuity.” 51 C.J.S. 606. There is nothing in the renewal clause in the lease to indicate an intention to create a perpetuity. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485237/ | OPINION OF THE COURT
MORROW, Chief Judge.
This is a petition for an order restraining the defendant from continuing the erection of a frame building in Pago Pago. The plaintiff Atufili Mageo alleges in his petition “That the Defendant is now erecting a frame building upon the communal family land of the Mageo Family without the knowledge and consent of the plaintiff and members of the plaintiff’s clan to the Mageo family title.”
At the hearing the plaintiff, although alleging in his sworn petition that the land on which the building was being erected was “the communal family land of the Mageo Family,” nevertheless on the witness stand and while under oath to tell the truth testified that the land was the *397communal property of the Veevalu title, and not the Mageo title. He also stated in his testimony that the Veevalu title was independent of the Mageo title.
As shown by the record of a deed of trust recorded in Vol. 1, Miscellaneous, pp. 160-162, the land involved was conveyed on February 16, 1906 by the then Mageo to “George Armstrong in trust for his infant son, Edward Armstrong, under the provisions of Section 8 of Regulation No. 4, 1900, of the Laws of the United States Naval Station, Tutuila, to make some provision for the maintenance and support of the said Edward Armstrong.”
The undisputed evidence showed that the Mageo at the time of the execution of the deed of trust was Faataui.
Section 3, Regulation No. 4, 1900, provided that
“From and after the coming into force of this Regulation the alienation of native lands within the limits of the jurisdiction of the United States Naval Station, Tutuila, is prohibited.”
The Regulation contained an exemption in Section 8, reading as follows:
“EXEMPTION
“8. This Regulation shall not apply to any native proprietor of land who desires to make provision for his son or daughter in view of legal marriage with a non-native or for his son or daughter already legally married to a non-native or for any of the issue of any such marriage, by grant or transfer of the land by instrument inter vivos or by will or deed mortis causa in favor of any trustee to hold in trust for the use of such son or daughter or such issue.”
Mageo Faatuai had an adopted daughter Faanati who was also a blood member of the Mageo Family. She was married to George Armstrong and Edward was their infant son. The deed of trust recites that “One Edward Armstrong, an infant, is the son of Faanati (deceased) daughter of me the said Mageo and the wife of George Armstrong of Apia in Samoa.” George Armstrong was a full-blooded white man and, therefore, a non-native.
*398The granting clauses and the habendum in the deed read as follows:
“I, the said Mageo, as settler, have granted, conveyed, and transferred, and by these presents do grant, convey, and transfer unto the said George Armstrong (hereinafter called the trustee) all that piece or parcel of land situate in Pago Pago and called or known as part of Autapini (here follows a description of the land conveyed) To hold the same unto the said trustee in fee simple to the use of the said Edward Armstrong and his heirs.”
The Court takes judicial notice of the fact that the United States Naval Station by the order of President McKinley dated February 19, 1900, included the Island of Tutuila. Therefore, Regulation No. 4 was applicable to the land involved, it being native land, the communal land of the Mageo title in Pago Pago.
We think that in Section 8 above quoted “issue of any such marriage” means the children of the marriage; that “issue” as commonly used means children. “Issue, in common parlance, and as used generally by the community, signifies immediate descendants — children.” Moore v. Moore, 12 B.Mon. (Ky.) 651, 655 (quoting Newcomb v. Newcomb (Ky.), 248 S.W. 198, 200). True, “issue” has been construed in some cases to include all lineal descendants. 33 Corpus Juris 820. However, “In the ordinary parlance of laymen, ‘issue’ means children, and only children.” Id. But it is immaterial in this case whether we construe “issue” as limited to children or as limited to “lineal descendants” because Edward Armstrong died, having no lineal descendants.
In view of the prohibition against alienation of native lands contained in Section 3 of Regulation No. 4 above quoted and the exemption in Section 8, the greatest estate that Mageo could lawfully eonvey to George Armstrong for the use of his son Edward was an estate terminating upon the death of Edward. Support and maintenance can *399be provided only for a living person, not a dead person. And even if we should construe “issue of the marriage” in Section 8 to include lineal descendants, while the estate conveyed would then have been a determinable fee, it would make no difference in the decision of this case since Edward had no lineal descendants.
Although Mageo did by his deed of trust attempt to convey a use in fee simple (the habendum clause in the deed of trust reads “to the use of the said Edward Armstrong and his heirs”), we think In view of Sections 8 and 8 of the Regulation that he could not convey a fee simple but that the greatest estate he could convey was, as above stated, an estate terminable upon the death of Edward, thereby leaving a reversion in the grantor. A reversion Or estate in -reversion is “the residue of an estate left by operation of law in the grantor or his heirs, or in the heirs of a testator, commencing in possession on the determination of a particular estate -granted or devised.” Black’s Law Dictionary (4th Ed.) under “Reversion, or Estate in Reversion.'” As we construe the Regulation and the deed, the •land reverted to the Mageo title upon the death of Edward. Upon the death of Edward, therefore, the grantor Mageo or Ms successor as the matai had a fee simple estate in and the right of immediate possession to the land in question,
•Just when Edward died is not certain from the evidence, but that he was dead in 1925 is certain.
The Mageo who executed the deed of trust, as we have said, was Mageo Faataui. He resigned from the Mageo title in favor Of Kini who, as it appears from the matai name register, was registered as the Mageo on October -30, 1906. On the same day the holder of the Veevalu title was registered.
The evidence established that after Faataui resigned from the Mageo title he became the first Veevalu, although Faataui’s given name is not set out in the register. Faataui *400had some children and grandchildren who now call themselves the Veevalu Family, some of whom, including the plaintiff, claim that the land involved is Veevalu communal family land and not Mageo land.
Veevalu is a Tongan title. Faataui took that title upon his resignation from the Mageo title. The Veevalu title is recognized by the Village Council of Pago Pago as a lesser matai title in the Mageo Family. The Veevalu could not sit in the village council upon the strength of his Tongan title. It was necessary for him to come into the council under some Pago Pago title. We are convinced from the evidence that he did so come in and that it was done under the authority of the Mageo title and .that by so doing he became a lesser matai in the Mageo Family.
It was clear from the evidence that ever since 1925, and possibly for some time prior thereto, the land conveyed by Mageo Faataui to George Armstrong, in trust for the support of Edward, has been in the possession either of members of the Mageo Family or people who, if not actual members of the Mageo Family, occupied it by permission of Mageo Family members or of the matai himself. The lineal descendants of Mageo Faataui have occupied parts of it during part of the .time and all of it during the remainder of the time ever since 1925, and because Mageo Faataui, after resigning from the Mageo title, took the Tongan title Veevalu, they have called themselves the Veevalu Family. However, all of them are members of the Mageo Family since they have Mageo blood in their veins, being descendants of Mageo Faataui, the grantor in the trust deed. The Atufili title is a lesser title in the Mageo Family and that title was given by the present Mageo to the plaintiff, Atufili Mageo.
We think, in the light of the evidence, that the claim by the plaintiff that the Veevalu branch of the Mageo Family acquired title to the land involved through adverse pos*401session against the remainder of the Mageo Family, to whose matai the land reverted in fee simple upon the death of Edward Armstrong, is without foundation. We believe from the evidence that any occupancy of the land by members of the Veevalu branch was through their membership in the Mageo Family and that view of the. evidence is fully supported by plaintiff Atufili Mageo’s allegation under oath in his petition “That the defendant is now erecting a frame building upon the communal family land of the Ma~ geo Family (emphasis added) without the knowledge and consent of the plaintiff and members of the plaintiff’s clan to the Mageo Family title.”
The evidence established that Mageo Maaele, the present matai of the Mageo Family, assigned the land on which defendant Timoteo, who is a blood-member of the Mageo Family, is erecting his house to Timoteo for that purpose. Such house is the frame building referred to in the plaintiff’s petition.
In view of the fact that we find that the land involved is the communal family land of the Mageo title, it having reverted to the Mageo upon the death of Edward Armstrong, and that the matai of the Mageo Family has assigned such land in accordance with Samoan custom to defendant Timoteo, a blood-member of the Mageo Family, for the erection of his house thereon, it follows that the plaintiff’s petition should be dismissed.
ORDER OF DISMISSAL
Accordingly, it is ORDERED that the plaintiff’s petition be and the same is hereby dismissed.
Costs in the sum of $23.00 are hereby assessed against Atufili Mageo, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485238/ | OPINION AND ORDER
*403OPINION OF THE COURT
MORROW, Chief Judge,
On April 21, 1959 plaintiffs, who are husband and wife, filed their petition praying for an order requiring the defendant to vacate the Moonlight Bar located in Fagatogo. The building called the Moonlight Bar is a beer joint and dwelling house combined in which the defendant and his family reside and in which he operates a beer joint as a business enterprise. The building was erected as a dwelling house in 1936 by the plaintiffs for a home for themselves at a cost of about $1800. They made their home in it until December 17, 1947, three of their children being born there. Prior to the hearing, the Court viewed the premises in the presence of the parties and counsel for the defendant.
Viavia and his brother Faamao, who had been operating a beer joint together at another location, severed business relations in 1947 and Viavia was looking around for another location where he could operate a beer joint for himself. The plaintiffs were planning to leave their home for Honolulu at about that time. It was arranged between them that Viavia should have their house for his planned beer joint.
On December 17, 1947, plaintiff George Faiivae went to the Attorney General’s office and had a document drawn up designated a “Letter of Authorization” which when signed and witnessed read as follows:
“LETTER OF AUTHORIZATION”
“December 17,1947.
“I, GEORGE FAIIVAE of Fagatogo, Tutuila, American Samoa, do hereby authorize my cousin-in-law VIAVIA TIUMALU of Fagatogo, Tutuila, American Samoa, to occupy my dwelling located at the village of Fagatogo, Tutuila, American Samoa, and on the communal land of the matai TUPUOLA. The said Viavia Tiumalu is not *404to be interfered with in any way in his use and occupation of the aforesaid dwelling. He is to have complete charge and supervision of the said dwelling while I am away in Honolulu.
/s/ George Faiivae
George Faiivae
“WITNESSED:
“/s/ S. Fesagaiga
“/s/ Ernest Reid”
He gave a carbon copy of it, signed by himself and witnessed by the same witnesses as the original, to Viavia which Viavia thereupon accepted and kept. Viavia had the copy in his files at the trial and produced it at the instance of the Court. Both the original and the copy were introduced in evidence. However, about eight years ago, and after he had had the copy some three years, Viavia, according to his own admission on the witness stand, altered the copy by crossing out the word “TUPUOLA” in the fourth line and writing in above it “TIUMALU.” The circumstances indicate that this was an alteration not made for a good purpose, since it was done here in Samoa while the plaintiffs were in Honolulu and also because as altered it would appear that the building was on Tiumalu land and not Tupuola land as indicated in the Letter of Authorization. Viavia is a member of the Tiumalu Family while plaintiff Fa’anenefu is the blood daughter of Afoa Tupuola.
Any contention by Viavia that he was not bound by the Letter of Authorization because he did not sign it is without merit. “Parties may become bound by the terms of a contract even though they did not sign it, where their assent is otherwise indicated.” 12 Am.Jur. 551. In this case the fact that Viavia accepted the signed copy from plaintiff George Faiivae, put it away in his files, and kept it there *405for over 11 years together with the fact that he immediately took possession of the house and proceeded to put it in condition for use as a beer joint shows that he assented to its terms. Even the fact that he altered it some years later so as to make it appear that the house was on Tiumalu Family land instead of Tupuola land as stated in the document before alteration shows that he considered himself bound by its terms; otherwise there would have been no point in making the alteration.
We think that the Letter of Authorization created a relationship of licensor and licensee.
It developed at the trial that when the house was turned over to Viavia in December, 1947 by the Faiivaes, Viavia handed over to them $1,000, paid them $150 for some furniture that was in the house, and in addition made a gift to them of $40. Viavia and Fa’anenefu are brother and sister through adoption faa-Samoa by Motia and his wife Tafunsina. This no doubt accounted for the $40 gift.
The Faiivaes went to Honolulu in June, 1948 and returned to Tutuila from Honolulu in December, 1958. They asked Viavia in February of this year for the return of the house to them. He refused, claiming that the house was his own.
The Letter of Authorization, it will be observed, makes no mention of the $1,000 or the $150 paid for the furniture. At the hearing Viavia testified that the $1,000 was a loan to the Faiivaes which was to be repaid in installments and if it should not be repaid within ten years, which it was not, then the house was to be his. Fa’anenefu had two different versions of the transaction with respect to the $1,000. First, she testified that it was an out and out gift from Viavia to the Faiivaes,' made because of the relationship of Viavia and Fa’anenefu through the adoption of them faa-Samoa by Motia and his wife. Later she testified that the $1,000 was in return for the use of the house by *406Viavia as a beer joint while she and her husband should stay in Honolulu. It is a matter of some significance that Viavia never at any time asked the Faiivaes for a single one of the installments which he claimed were to be paid. The Letter of Authorization makes no mention of a sale of the house upon a condition; it limits the time that Viavia is to have charge and supervision of it to the period that George Faiivae is “away in Honolulu.”
We think in view of all the evidence that the clear weight of the evidence is to the effect that the $1,000 was paid for use of the house by Viavia as a beer joint during such time as George Faiivae should be in Honolulu and that it was to be returned to him.
After the house was turned over to Viavia in December, 1947 and prior to the departure of the plaintiffs for Honolulu in June, 1948, Viavia, with the knowledge of the plaintiffs and without objection by them, made some extensive alterations in the house and enlarged it by extending the porch so that it could be used as a beer joint. Later he added a room on the east side of the house. He also made a number of extensive repairs on the house in order to keep it in good condition, such as replacing the joists when they rotted due to termites and high humidity. He spent over $500 in repainting alone. Due to the addition of the room and extension of the porch, the house is more valuable than it would have been otherwise. Also the painting and extensive repairs, all at the expense of Viavia, have kept it in good condition. Without the paint and repairs, it would have deteriorated very seriously during the eleven years plaintiff George Faiivae was in Honolulu and been worth much less for use as a dwelling house than it is now.
We think also in view of the provision in the Letter of Authorization that Viavia was “to have complete charge and supervision of said dwelling” while plaintiff George Faiivae was “away in Honolulu” and the further *407fact that the, parties intended that the house should he used as a beer joint, that the. repairs, painting, additions» and alterations, were impliedly authorized by the. plaintiff George Faiivae; also that; since Via.via, in addition to paying the plaintiffs $.1,000» has kept the house in good condition and made it more valuable through additions and alterations. he is, entitled to have the equivalent in value, through the use of the property.
We could, of course, order the defendant to. vacate the Moonlight Bar at once. Under those circumstances we think that justice would require us at the same time to order the plaintiffs to pay the defendant an amount equal to the excess of what he has expended on the premises and the $1,000 over the value of his use of the premises. However, it is usually impracticable for a court to order a, Samoan to pay another Samoan any substantial amount of money because usually the Samoan is execution proof as to personal property and also for the reason that the real property of a Samoan cannot be .taken on execution.
Under circumstances in many ways similar to those in this case, where a licensee expended money in erecting a house on land of another with the permission of the other, the Court, in an action to evict the licensee from the land while holding that the license, despite the. expenditure of money in reliance thereon, was revocable, nevertheless held that the licensee could not be required to vacate the land until such time as the value of his, use of the land compensated him for his expenditures in reliance upon the license less the value of the materials in the house, when taken down. Lutu, Afoa, Tupua and Taesali Families v. Se’ese’ei Petele, No. 15-1956. (H.C. of Am. S.).
And in a number of cases where a Samoan has been permitted by a Samoan to put in his plantations on another Samoan’s land, and he has expended much time and labor in putting in the plantations, and the owner has sought an *408order from the Court requiring him ,to vacate the land used for the plantations, the Court has ruled that he may continue to occupy and use the land for plantation purposes until the value of its use will compensate him for his labor and expenditures in reliance on the license or permission, nevertheless leaving the plantation in an unharmed condition when the eviction order becomes effective. Vaimaona Family of Laulii v. Moafou et al., No. 8-1956 (H.C. of Am. S.); T. Magalei et al. v. R. S. Tago Sianava, No. 23-1955 (H.C. of Am. S.).
In view of the circumstances in this case, and applying the principle applied in the cases cited, we think that justice will be attained if, after setting off the value of the use of the premises by the defendant as against his expenditures for upkeep, repairs, painting, additions and improvements and the $1,000 paid to the plaintiffs prior to their departure for Honolulu, the defendant is permitted to continue to use the Moonlight Bar for dwelling purposes and as a beer joint until February 1, 1960, without damaging the building or removing any part of it.
ORDER
Accordingly, the defendant Viavia Tiumalu is hereby OKDEKED to vacate the Moonlight Bar by February 1, 1960, leaving it in an undamaged condition and without any part of the building as it now stands removed from it. If he should damage the building in any way or remove any part of it prior to vacating it, the plaintiff George Faiivae may take such legal action as the facts may warrant.
Costs in the sum of $8.33 are hereby assessed against Viavia Tiumalu and a like sum ($8.33) against George Faiivae. All costs are to be paid within 15 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485242/ | OPINION AND DECREE
OPINION OF THE COURT
MORROW, Chief Judge.
Three-hundred-twenty-one members of the Fanene Family of Nu’uuli filed their petition asking the Court to remove Fanene Penirosa as the matai of the Fanene Family. The matai filed an objection to the petition.
Pursuant to the provisions of Section 934 of the A. S. Code, the Court has authority to remove a matai. The matai claims that all of the 321 are not blood members of the family. However, Section 934 does not require that the petitioners be blood members. Persons married into the fam*426ily and persons adopted by the family are family members in accordance with Samoan customs, although they may not be blood members.
Fanene Penirosa became the matai of the Fanene Family in 1951. Although he has been the matai for nine years, he has not been able during all of that time to get the family to live together in peace and harmony. He has failed to call family meetings on important matters affecting the Fanene Family. Instead of calling family meetings to discuss family affairs, he frequently consulted only three or four or five favored members and then acted or failed to act with respect to the affair at hand.
Fanene Penirosa was ousted from the village council in 1955. This automatically brought about his ouster from the county and district councils. He is still out of the village council. It seems that he failed to perform his obligation to the village in accordance with Samoan customs and that he did not participate in village affairs as a Samoan matai should. This brought about his ouster from the village council. The ouster left no one to act as a mediator between the Fanene Family and the village. His ouster brought shame to the family because their matai was not in good standing as a member of the village council.
The fact that after nine years Fanene Penirosa has not been able to get his family to live together in peace and harmony is evidence that he is not a good leader. The evidence as a whole convinces us that he has been a failure as a matai and that he should be removed for the benefit of the family. The matai exists for the benefit of the family, not the family for the matai. The title belongs to the family.
DECREE
Accordingly, it is hereby ORDERED, ADJUDGED and DECREED that Fanene Penirosa shall be and he is hereby *427removed as the Matai of the Fanene Family of Nu’uuli. The Registrar of Titles will he advised of this decroe and will cancel, the registration of Fanene Peniroga as the Matai of the Fanene Family of Nu’uuli,
Costs in the sum of $25.00 are hereby assessed against Penirosa, the same to be paid within 30 days, | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485243/ | OPINION OF THE COURT
MORROW, Chief Judge.
Tuatagaloa E. Hunkin, hereinafter referred to as Tuatagaloa, filed his application to be. registered as the holder of the matai title Faiivae attached to the Village of Leone. Tago Leti and Siaosi Faiivae each filed an objection to the proposed registration* each of :them. becoming a candidate for the name. Hence this litigation. See Section 932 of the A. S. Code.
At the outset of the hearing, counsel for Siaosi asked the Court to dismiss Lauvao as counsel for Tuatagaloa, claiming that Lauvao had first agreed to act as counsel for Siaosi and later breached his agreement with Siaosi and became counsel for Tuatagaloa. After consideration of the evidence on this preliminary matter, the three judges concluded that while Siaosi had sought Lauvao as counsel and tried to force a retainer of $25.00 on him, nevertheless Lauvao had never accepted the retainer and had not agreed to serve as counsel for Siaosi. We believe from the evidence that Siaosi put $25.00 on Lauvao’s desk and asked him to become his counsel, that Lauvao refused and that Siaosi walked off and refused to take the $25.00 back, leaving it on Lauvao’s desk. Lauvao put it in an envelope, put the envelope away, and later returned the money to Siaosi. It takes two parties to make a contract; two willing *429parties to create the relationship of attorney and client. There was only one willing party here. That was Siaosi. The attorney must be willing, too. Lauvao, as we view the evidence, was not willing. As we see it, Lauvao never entered into an agreement to act as counsel for Siaosi. The Court refused to dismiss Lauvao as counsel for Tuatagaloa, and we think the ruling was right.
There is an. item of circumstantial evidence in this matter which also convinces us that Lauvao did not agree to become counsel for Siaosi. Lauvao is an aiga of Tuatagaloa’s wife. Because of the very strong family ties between aiga, Lauvao would not act as counsel in a case against his áiga’s husband. The two Samoan judges as well as the American judge on the Court (he has been in American Samoa many years and is thoroughly familiar with Samoan customs and the Samoan way of life) do not believe, in view of Samoan customs, that Lauvao would ever take a case against his aiga’s husband.
In order to hold a matai title, a candidate must meet certain requirements prescribed by the Code. Section 926 of the A. S. Code as amended reads as follows:
' “Section 926. ELIGIBILITY REQUIREMENTS FOR MATAI TITLE: No person not having all the following qualifications shall be eligible to succeed to any matai title:
(a) Must be at least one-half Samoan blood;
(b) Must have resided continuously within the limits of American Samoa for five years, either immediately preceding the vacancy in the title, or before he becomes eligible for the title, provided that if the candidate has actually lived 18 years within the limits of American Samoa, absence during such five year period, or a part or parts thereof, from American Samoa for the purpose of (1) service in the Coast Guard or the Armed Forces of the United States (2) securing additional education or learning a profession or trade (3) medical treatment, or (4) for any other cause for a period or periods not exceeding a total of one year, shall not render the candidate ineligible, and provided further that if the candidate be outside American Samoa when he files his application to be registered as the *430holder of a matai title, or files his objection to such an application, he must return to American Samoa within six months -after such filing if absent for any of the reasons set out -in (1), (2), or (3) above, otherwise within three months, or -his application, or objection, as the case may be, shall be disregarded';
(c) Must live with Samoans as a Samoan;
<d) Must be a descendant Of a Samoan family and chosen by his family for the title;
(e) Must have either
(1) been born on American soil, provided that a person born of parents Who were inhabitants Of American Samoa but 'temporarily residing outside of American Samoa Or engaged in foreign'travel at the date of birth of such child, may, for the purpose of this -subsection, ’be considered as having been born on American soil if, while actually residing in American -Samoa -he, at any time within one year after he attains 'the age of eighteen years., files with the Registrar of Titles a renunciation under oath of allegiance to the country of his bi'rth, or
(2) have been born Oh foreign soil and have resided in American Samoa for a continuous period of -not less 'than 10 y-ears prior to the time of filing his application to be .registered as the holder of a matai title, or filing his objection to such an application, as the case may be.”
Siaosi went to Honolulu in .1948 ¡and looked for a job which he did not find. He also had some medical treatment on his leg there. He then returned to American .Samoa for 15 days, returning to Honolulu in January 1949. He again looked for a job and succeeded in getting Oine as a rigger in February 1949. He worked as a rigger in Honolulu from February 1949 until November 1957. He returned to American Samoa from Honolulu in December 1957 and has resided here continuously ever since.
'Section 926(b) as amended (above quoted) provides that, Subject to ‘certain exceptions, the candidate to be eligible to hold a matai title “must -have resided continuously within the limits of American Samoa for five years, either immediately preceding (emphasis added) the vacancy in the title, Or before he becomes eligible for the title. *431. . .” The vacancy in the Faiivae title occurred in either November or December 1958 when Faiivae Vili died.
The five-year period immediately preceding the date of the hearing (which was on July 11, 1960) started on July 11, 1955. The five-year period immediately preceding the vacancy in the title started in either November or December 1953.
As we have stated, Siaosi worked as a rigger in Honolulu from February 1949 to November 1957 and did not return to American Samoa until December 1957. Working as a rigger was not (1) “service in the Coast Guard or the Armed Forces of the United States,” nor was it (2) “securing additional education or learning a profession or trade,” nor was it (3) “medical treatment.” However, under the statute, absence (4) “for any other cause for a period or periods not exceeding a total of one year” does not render the candidate ineligible.
Having returned to American Samoa in December 1957, Siaosi at the time of the hearing on July 11, 1960 had resided continuously in American Samoa, at the most, only 19 months and 10 days. Adding to this the permitted absence for one year for any cause during the five-year period, we have 31 months and 10 days.
Thirty-one months and 10 days do not constitute five years, or 60 months. Siaosi at the time of the hearing was obviously not eligible to hold a matai title, since he did not meet the eligibility requirements prescribed by Section 926 (b) of the Code as amended. Accordingly, the Court dismissed him as a party in the case. The ruling was obviously correct.
Candidate Tago Leti during the course of the hearing withdrew as a candidate and ceased to be a party.
The withdrawal of Tago Leti left Tuatagaloa as the only candidate. Tuatagaloa was chosen by the Faiivae Family to be its matai shortly after Faiivae Vili died and prior to *432the time he filed his application with the Registrar of Titles to be registered as the holder of the Faiivae title.
The undisputed evidence showed that Tuatagaloa meets all of the eligibility requirements to hold a matai title as prescribed by the above Section 926 of the A. S. Code as amended. However, before he can be registered as the holder of the Faiivae title, it will be necessary for him to resign from the matai title Tuatagaloa. A person may not hold two matai titles at the same time.
DECREE
Accordingly, it is ORDERED, ADJUDGED and DECREED that Tuatagaloa E. Hunkin shall be registered as the holder of the matai title Faiivae, attached to the Village of Leone, subject to the condition that he file with the Registrar of Titles within two weeks from the date of this decree his resignation from the matai title Tuatagaloa, attached to the Village of Vailoatai. The Registrar of Titles will be advised of this decree.
The costs would ordinarily be assessed to Siaosi and Tago. However, Tuatagaloa expressed a willingness in open court to pay the same. Accordingly, costs in the sum of $25.00 are hereby assessed against Tuatagaloa, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485245/ | OPINION AND DETERMINATION OF OWNERSHIP OF PLOTS W, X, Y, AND Z.
Punefu Siania represented the Fagaima Family under a power of attorney. Punefu is a married man to the Fagaima Family.
Puailoa represented the Puailoa Family.
Pu’u represented the Pu’u Family.
Siaitolo Soaia and Puailoa, members of the Fanasoaia Family, represented it, the last Fanasoaia being deceased.
Savusa represented the Savusa Family.
Meavali Maae and Mataafa represented the Maae Family. Its last matai is deceased.
Muagututia Aano represented the Muagututia Family.
Vaefaga (who together with Faletutulu filed a claim for the Pu’u Family) assisted Pu’u as a representative of the Pu’u Family. Vaefaga and Faletutulu are members of the Pu’u Family.
OPINION OF THE COURT
MORROW, Chief Judge.
The Government of American Samoa instituted proceedings to condemn certain lands in the Tafuna area, viz., the Dairy Farm, the Hansen’s Disease Sanitarium area, and the access roadway thereto. Notice of Condemnation was given. Conflicting claims of ownership of the land and parts thereof were filed with the Registrar of Titles who, pursuant to Section 993(h) of the Code, certified to this Court that there was a dispute among the claimants regarding the ownership of the property and requested the Court to determine its ownership.
At the hearing the Court called various witnesses who gave testimony bearing upon the ownership of the various parts of the land involved.
*441With respect to Plot W as described in the Notice of Condemnation dated November 13, 1959, the uncontradicted testimony was to the effect that this land had been in possession of the Fagaima Family at least from 1932 to 1941, when the Tafuna people were moved out of the area because of the war, and that after the war it was rented by the Fagaima people to the Government which paid rent to the Fagaima people up to about a year ago. The Fagaima people had houses on it between 1932 and 1941. The Fagaima people have had plantations on this land. All of the other claimants admitted to the Court that Plot W was Fagaima land and made no claim to it. The Court is satisfied from the evidence that Plot W is the communal land of the Fagaima Family, and it so finds. It contains 55.75 ± acres.
With respect to Plot X as described in the Notice of Condemnation, the uncontradicted testimony was to the effect that this land had been in the possession of the Maae Family ever since witness Meavali Maae, aged 48 years, was old enough to know things and that Maae Family members had had plantations on it during this time. We are satisfied from the evidence that Plot X is the communal land of the Maae Family, and we so find. All the other claimants admitted to the Court that Plot X was the property of the Maae Family and made no claim to it. Plot X contains 5.32 ± acres.
With respect to Plot Y as described in the Notice of Condemnation, the uncontradicted testimony was to the effect that this plot had been in the possession of the Puailoa Family since prior to the establishment of the Government in 1900; also that the Puailoa Family members had plantations on it for many years and had houses on it also. We are convinced from the evidence that Plot Y at the time of the hearing during the forenoon of January 12, 1961 was the communal land of the Puailoa Family, and we so find. *442All the other claimants admitted to the Court at the hearing that Plot Y was Puailoa land and made no claim to it. Plot Y contains 5.94 ± acres.
It should be noted that the finding of ownership of Plot Y is made as of the time of the hearing, which was during the forenoon of January 12, 1961, and not as of the time of the filing of this Opinion and Determination of Ownership on January 27, 1961. On January 13,1961 the Government of American Samoa filed with the Court a document entitled “Release” signed by T. M. Puailoa (the holder of the matai title Puailoa of Nu’uuli) by the terms of which and for a consideration of $2940.52 (which was $450.00 per acre for 6.107 acres plus interest at 6% per annum from November 13, 1959, the date of Notice of Condemnation, to the date of the release) paid by the Government of American Samoa to T. M. Puailoa, he, “acting by and on behalf of himself and all the members of the Puailoa Family of Nu’uuli,” accepted said $2940.52 “in full compensation and settlement” for 6.107 acres of land “designated as Plots ‘Y’ and (Z(e)’ ” in the area being taken by the Government in these condemnation proceedings. The effect of this document was to convey Plots Y and Z(e) to the Government of American Samoa.
Plots W, X, Y and Z were included in a survey of the Tafuna Airfield admitted in evidence as Claimants’ Exhibit A. However, Plot Z was resurveyed and the resurvey was admitted in evidence as Claimants’ Exhibit B. Plot Z is now a roadway leading to the Dairy Farm, the Hansen’s Disease Sanitarium area and also to the Tafuna Airport. Plot Z as shown on the resurvey is divided into Plots Z(a), Z(b), Z(c), Z(d), and Z(e).
Uncontradicted testimony was introduced showing that for many years prior to the time Plots Z(a), Z(b), Z(c), Z(d) and Z(e), as shown in the resurvey, were taken for a highway the Fanasoaia Family had been in possession of *443and had plantations on Plot Z(a); that likewise for many years prior to the time said land was taken for a highway the Savusa Family had been in possession of and had plantations on Plot Z(b); that likewise for many years prior to the time said land was taken for a highway the Muagututia Family had been in possession of and had plantations on Plot Z(c); that likewise for many years prior to the time said land was taken for a highway the Pu’u Family had been in possession of and had plantations on Plot Z(d); and likewise that for many years prior to the time said land was taken for a highway the Puailoa Family had been in possession of and had plantations on Plot Z(e).
The Court concludes from the evidence and it finds that Plot Z(a) is the communal land of the Fanasoaia Family; that Plot Z(b) is the communal land of the Savusa Family; that Plot Z(c) is the communal land of the Muagututia Family; that Plot Z(d) is the communal land of the Pu’u Family; and that at the same time of the hearing Plot Z(e) was the communal land of the Puailoa Family. Plot Z(a) contains 0.079± acres; Plot Z(b) 0.773± acres; Plot Z(c) 0.100± acres; Plot Z(d) 0.382± acres; and Plot Z(e) 0.167± acres. The admissions to the Court by each and every claimant during the hearing were in accordance with these findings.
DETERMINATION OF OWNERSHIP
Accordingly the Court determines that Plot W containing 55.75 acres more or less and described as follows:
“Beginning at a concrete monument, coordinates Y-32,934.84, X-188,235.24; thence run N 36°14'40" W a distance of 2209.00 feet; thence run N 65°49'30" E a distance of 1125.82 feet to the high water mark of the Tafuna Lagoon; thence run along the shoreline following the high water mark a distance of 3000 feet more or less; thence run S 88°45'20" W a distance of 1097.16 feet to the point of beginning.”
is the communal land of the Fagaima Family.
*444And the Court further determines that Plot X containing 5.32 acres more or less and described as follows:
“Beginning at a concrete monument, coordinates Y-34,090.45 X-186,787.31; thence run N 53°45'20" E a distance of 725.00 feet; thence run S 36°14'40" E a distance of 396.75 feet; thence run S 65°49'30" W a distance of 741.18 feet; thence run N 36°14'40" W a distance of 240.00 feet to the point of beginning.”
is the communal land of .the Maae Family.
And the Court further determines that Plot Y containing 5.94 acres more or less and described as follows:
“Beginning at a concrete monument, coordinates Y-35,740.73, X-187,921.25; thence run S 23°20'40" E a distance of 325.48 feet to a concrete monument; thence continue S 23°20'40" E a distance of 50 feet more or less to the high water mark of the Tafuna lagoon; thence run along the shoreline, following the high water mark a distance of 300 feet more or less; thence run S 65°49'30" E a distance of 384.64 feet; thence run N 36°14'40" W a distance of 396.75 feet; thence run N 53°45'20" E a distance of 681.00 feet to the point of beginning.”
was at the time of the hearing during the forenoon of January 12, 1961 the communal land of the Puailoa Family.
And the Court further determines that 0.079 ± acres in Plot Z, which plot is described in the Notice of Condemnation as follows: *445is the communal land of the Fanasoaia Family; that 0.773 ± acres in said plot is the communal land of the Savusa Family; that 0.100± acres in said plot is the communal land of the Muagututia Family; that 0.382 ± acres in said plot is the communal land of the Pu’u Family; and that 0.167± acres in said plot was at the time of the hearing the communal land of the Puailoa Family. (The above 0.079 ± acres determined to be the communal land of the Fanasoaia Family comprises Plot Z(a) as shown in the aforementioned resurvey. The above 0.773 ± acres determined to be the communal land of the Savusa Family comprises Plot Z(b) as shown in said resurvey. The above 0.100 ± acres determined to be the communal land of the Muagututia Family comprises Plot Z(c) as shown in the said resurvey. The above 0.382 ± acres determined to be the communal land of the Pu’u Family is Plot Z(d) as shown in the said resurvey. And the above 0.167 ± acres determined to be the communal land of the Puailoa Family at the time of the hearing is Plot Z(e) as shown in said resurvey.
*444“Beginning point on the ground, coordinates Y-35,480.59, X-187, 566.39; thence run N 32°34,10" W a distance of 604.59 feet; thence run N 25°00'40" W a distance of 121.50 feet; thence run N 09°08' 20" W a distance of 381.42 feet; thence run N 59°53/10" W a distance of 65.10 feet; thence run N 50°45'35" E a distance of 375.78 feet; thence run S 40°15'20" W a distance of 142.36 feet; thence run S 31°41'35" W a distance of 158.31 feet; thence run S 04°25/25" E a distance of 196.00 feet; thence run S 08°38'55" E a distance of 194.50 feet; thence run S 22°18'40" E a distance of 112.58 feet; thence run S 32°34'40" E a distance of 600.32 feet; thence run S 53°45'20" W a distance of 40.00 feet to the point of beginning.”
*445Costs in the sum of $5.50 are hereby assessed against the claimants in this case. Since the Government instituted these condemnation proceedings, without which such costs would not have been incurred, the Director of Budget and Finance, pursuant to the directive of the Governor of American Samoa (reference GAS/1A over Serial 755) dated December 17,1957, will pay said costs. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485246/ | OPINION AND DECREE
OPINION OF THE COURT
MORROW, Chief Judge.
Ierome Pulu filed his application with the Registrar of Titles to be registered as the holder of the matai name Lavea attached to the village of Aoa. Pati Lavea, Timo Faatoafe, and Pulou Afusia each filed an objection to the proposed registration, thereby becoming candidates for the name. Hence this litigation. See Sec. 932 of the A. S. Code.
Timo Faatoafe, although notified as to the time and place of the hearing, failed to appear in person, by counsel, or by a representative. The Court adjudged him to be in default and that he ceased to be a candidate.
*447Sec. 926 of the A. S. Code as amended prescribes the qualifications for holder of a matai name or title. The evidence showed that each of the three remaining candidates possesses the necessary qualifications and is, therefore, eligible to be registered as the holder of a matai name or title.
Sec. 933 of the A. S. Code as amended prescribes the law which the Court shall follow in determining which one of opposing candidates for a matai name shall be registered as its holder. It reads as follows:
“Consideration Given by Court: In the trial of matai name cases, the High Court shall be guided by the following in the priority listed:
(a) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise the male descendant shall prevail;
(b) The wish of the majority or plurality of those members of the family related by blood to the title;
(c) The value of the holder of the matai name to the government of American Samoa.”
With respect to the issue of hereditary right, the undisputed evidence is to the effect that Pati is the blood son of the last Lavea, whose given name was Pati, and that Pulou is the grandson of Lavea Tafuna. Pati, therefore, has 1h Lavea blood in his veins while Pulou has 1k Lavea blood in his veins. Ierome testified that he was the great grandson of Lavea Tauilo. However, the testimony of Pulou and Pati, both of whom are unquestionably members of the Lavea Family, indicated that there never had been a Lavea Tauilo. If their testimony be true, it follows that Ierome has no Lavea blood and is not a member of the Lavea Family and Pati so testified. However, Ierome only claims to have Lavea blood. If his claim be true he, nevertheless, ranks below both Pati and Pulou on the issue of hereditary right; and if he has no Lavea blood at all, he also ranks below them. We find that Pati with lh Lavea blood ranks first on the issue of hereditary right; that Pulou *448with x/4 Lavea blood ranks second; and that Ierome, regardless of whether he has Lavea blood or none at all, ranks third.
Each of the candidates Pati, Pulou and Ierome filed a petition with the Court purporting to be signed by those blood members of the Lavea Family favoring his candidacy. There were 103 signers on the petition for Pati, 55 on the petition for Pulou, and 139 on the petition for Ierome.
Ierome admitted that 100 of the 103 signers on the petition for Pati were blood members of the Family. Pulou admitted that 96 of the signers for Pati were blood members. Pati himself testified that all 103 were blood members. Ierome admitted that 53 of the 55 signers on the petition for Pulou were blood members while Pati admitted that all 55 were blood members. Pulou testified that all 55 on his petition were blood members. Ierome testified that 136 of the 139 signers on his petition were blood members of the Lavea Family. Pati testified that 134 of the 139 on Ierome’s petition were not blood members. Pati and Pulou claim that the people on Ierome’s petition whom they rejected descended from people who never were Laveas; that the Laveas from whom Ierome claims they descend never existed. Pati testified that neither Ierome nor his father ever attended any Lavea Family affairs. Pati also testified that Ierome never rendered any service to the Lavea title. Pulou testified that Pati was selected by the Lavea Family to hold the title at a meeting of the Family held after the death of the last Lavea. It is our conclusion from the evidence that Pati ranks first on the issue of the wish of the majority or plurality of the blood members of the family and that Pulou ranks second and Ierome third. We believe that the weight of the evidence is to this effect and we so find.
Pati and Ierome are each 31 years of age while Pulou is *44926. All three speak English. After his graduation from Poyer School, Ierome attended Léala school for one year. He also attended the Suva Medical school for a year but did not go on to graduate. He passed a general educational development test and received a diploma indicating that he had an education equivalent to that required for the graduation from a high school. Ierome has been a school teacher for 11 years. He also worked as a timekeeper for Van Camp Tuna Company for a year. Ierome has a weakness for beer and gets drunk rather frequently. Pati graduated from the Marist Brothers School. After graduation he got a job as a truck driver. This was during the war. After the war he was a taxi driver. He then worked for the Van Camp Tuna Company for a year; then for the Island Government Department of Agriculture for two years; then for the Van Camp Tuna Company again for about a year after which he became a policeman. He has been on the police force since 1958. Pati like Ierome has a weakness for drink and gets drunk occasionally according to the evidence. Pulou graduated from Fagalele School and then attended the Samoan High School for one year after which he went to work for WVUV as a mimeograph operator and later as a typist. He has been employed by WVUV for the past five years. He does not drink. The judges had an excellent opportunity to observe the personalities of the three candidates during the hearing. It is our conclusion from the evidence and our observation of the candidates that Pulou ranks first on the issue of forcefulness, character, personality, and capacity for leadership; Pati second, and Ierome .third, and we so find. Frequent drunkenness is not a good recommendation for a school teacher nor is occasional drunkenness a good recomendation [sic] for a policeman.
With respect to the issue of the value of the holder of the matai name to the Government of American Samoa, it is *450our conclusion from the evidence that Pulou ranks first and that Ierome and Pati rank second and equally, and we so find. The evidence upon which we base our conclusion on this issue has already been delineated and it would serve no useful purpose to repeat it.
Since Sec. 933 of the Code quoted supra provides that “In the trial of matai name cases, the High Court shall be guided” in respect to the matters involved in the four issues “in the priority listed,” it follows that we must give (1) the most weight to the “best hereditary right,” (2) less weight to the “wish of the majority or plurality” of the blood members of the family than to the “best hereditary right” (3) less weight to “forcefulness, character, personality and capacity for leadership” than to the “wish of the majority or plurality of the family” and (4) the least weight of all to the matter of the “value of the holder of the matai name to the Government of American Samoa.” Since we have found that Pati ranks first on the first two issues, that Pulou ranks first on the third and fourth issues, and that Ierome does not rank first on any of the issues, it follows from the statute that the Court must award the Lavea title to Pati.
DECREE
Accordingly it is ORDERED, ADJUDGED and DECREED that Pati shall be registered as the holder of the matai name Lavea attached to the village of Aoa, and the Registrar of Titles will be so advised.
Costs in the sum of $36.00 are hereby assessed against Pulou and Ierome, each to pay $18.00 within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485247/ | OPINION AND DECREE
OPINION OF THE COURT
MORROW, Chief Judge.
Moega Nu’u and Malia filed their application with the Registrar of Titles to have a part of the land Tuaolo in the village of Fitiuta registered as their individually owned property. The area of such part is 0.1651 ac. ±. Ene Tofili filed an objection to the proposed registration claiming that the land was the “communal family land of the Fetui Family in Fitiuta, Manua.” At the hearing it appeared *452that Fetui is a lesser matai in the Moa Family of Fitiuta, that the Moa has been in Honolulu for a number of years, and that Fetui has been looking after the affairs of the Moa Family during Moa’s absence; also that the Ene’s claim really was that the land Tuaolo was communal land of the Moa Family and not that of the Fetui Family as stated in the objection.
The applicants filed a survey of the land together with their application to register it as their individually owned property.
At the outset it should be stated that all of the parties in this case are members of the Moa Family of Fitiuta. There is a senior matai in the Moa Family and 4 lesser matais of whom applicant Moega Nu’u is one. He holds the Moega title. There have been a number of prior Moegas. Applicant Malia is a blood sister of Moega.
The objector claims that the land was originally Laapui’s. Laapui, so goes the objector’s story, had an adopted son Paulo who crept to Tauiliili’s wife at night and got her pregnant. The Village Council investigated and decided she was pregnant by Paulo instead of her husband Tauiliili. The Village Council then punished Paulo by compelling his adoptive father Laapui to give this land Tuaolo to the village which in turn transferred it to the Moa Family for some pigs. If this actually occurred it must have occurred a long time before the stablishment [sic] of the Government in 1900. Ene testified to this story. He is 47 years old and the events having happened, possibly 60 or 75 years before he was born, it follows that the story was pure hearsay as far as the witness was concerned and he had no personal knowledge as to its truth. It was tradition in his family handed down by word of mounth [sic] since long before the Government was established. Malia is 58 years old. She is the daughter of Leia who was the son of Paulo.
*453Moega and Malia have a different story as to the derivation of the ownership of the land Tuaolo.
Malia’s story was to the effect that Laapui gave this land to Paulo, that Paulo had a son who became the Leia; that the Leia got it from his father Paulo; and that Malia and Moega, her brother, got it from their fatlher Leia. The explanation of the alleged gift by Laapui to Paulo was that Paulo’s father was Selemaea who was the son of Faamalele who was the daughter of a Laapui.
This story like the story given to the Court by Ene was pure hearsay as far as Malia, the witness, was concerned. She had no personal knowledge of the truth of the facts she purported to relate.
Both these stories have their beginning many, many years before the establishment of the Government. If one story is true the other is not. It is a fact that most stories handed from generation to generation by word of mouth (as both of these stories were) are notoriously inaccurate. If A tells B a story by word of mouth and B tells it to C 20 years later and C to D after another 20 years and D to E after another 20 years, and E should tell it to F after another 20 years, what F would hear in most cases would bear very little resemblance to what A told B 80 years before. Many stories handed down by word of mouth are just myths and have very little resemblance to the truth.
It is undisputed that Malia and Moega are members of the Moa Family and that Moega is a lesser matai title in the Moa Family. It is undisputed also that Moega and Malia have had plantations on the land Tuaolo for many years, certainly more than 20 years; that Malia had a house on the land for many years before it was blown down in the March 1959 hurricase [sic] in Manua. Paulo, the grandfather of Moega and Malia, is buried on this land as is Teleaai the grandfather of the objector Ene Tofili who is not a member of the Moega branch of the Moa Fam*454ily. Malia’s mother is also buried on this land as is Selemaea, Malia and Moega’s great grandfather. Moega and Malia’s parents lived on Tuaolo and Malia was born on it.
A part, a piece 27 feet by 30 feet, of the land Tuaolo was recently conveyed by deed to the Government of American Samoa. The Government procured it for a site for a dispensary. The grantors in the deed were applicant Moega Nu’u and losefatu who is the son of applicant Malia. The granting clause in the deed reads: “Moega Nu’u and Iosefatu, individually and for the members of their families, grantors, of the Island of Tau, Manua, American Samoa, for and in consideration of one dollar and other good and valuable considerations, grant, convey, and warrant to the Government of American Samoa, grantee, etc.” This dispensary site, which adjoins'and lies northeast of the part of Tuaolo sought to be registered by Moega and Malia, was registered by the Government of American Samoa after notice of the proposed registration was posted for 60 days without any objection being filed by anyone including the Moa Family of Fitiuta.
The wording of the deed and the fact that the Moa Family did not make any claim to the part of Tuaolo deeded by Moega Nu’u and losefatu are two very convincing pieces of circumstantial evidence that Tuaolo is the communal land of the Moega title, which is, as we have already indicated, a lesser matai title in the Moa Family. Furthermore the title to this land originated many years before the Government was established in 1900, whether we believe the story told by Ene or the story told by Malia. We know judicially (it is a matter of common knowledge) that practically all of the land in Samoa is communal, and that is particularly true in Manua. Individual ownership of land is very rare.
The deed to the Government recites on the back that it was fully explained in the Samoan language to the grant*455ors Moega Nu’u and Iosefatu. Since the deed states that they were conveying “for the members of their families” it follows that they were conveying the property as the communal land of their families. Otherwise “for the members of their families” would not have been in the granting clause in the deed. That was an admission by the grantors, Moega Nu’u and Iosefatu, that it was communal family land. Now the fact that the Moa Family did not object to the registration of this dispensary site by the Government, it being deeded by the Moega people to the Government, is a strong indication that the part conveyed to the Government by the Moega people was not Moa Family land, the notice of the proposed registration having been posted for 60 days in two public places in the village of Fitiuta.
It is our conclusion, after considering all the evidence, that the weight of the evidence (particularly in view of the wording of the deed to the Government conveying the dispensary site as communal family land and the failure of the Moa Family to object to its registration by the Government) is to the effect that the land offered for registration by Moega and Malia as their individually owned property is not their individually owned property but the communal family land of the Moega title, a lesser title in the Moa Family in Fitiuta. We know that many lesser matais in Samoa have land. There was evidence that the Moega title has other communal family land.
DECREE
Accordingly it is ORDERED, ADJUDGED, and DECREED that the following described property shall be registered as the communal Family land of the Moega title in Fitiuta:
All that piece or parcel of land containing an area of 0.1651 Acre, more or less, known as part of “Tuaolo,” situated in the village of Leusoalii, Fitiuta, in the Island of Tau, Manua Group, American Samoa.
*456Beginning at a concrete monument being the NW corner of Fitiuta Dispensary site, entered in Vol. II pages 66 & 67 of the Register of Native Titles, going N 57°38'40" W a distance of 90.49 feet to an iron pin one foot south of Fitiuta concrete Walk, thence run S 29°48'40" W a distance of 83.66 feet to an iron pin, thence run S 57°15' E a distance of 79.63 feet to an iron pin, thence run N 37°11' E a distance of 57.515 feet to an old iron pin, thence still running N 37° 11' E at a distance of 27.0 feet to point of starting.
Origin of bearings refers to the True Meridian determined by Fitiuta Dispensary site survey.
Costs in the sum of $20.00 are hereby assessed against Ene Tofili and Moega Nu’u and Malia, Ene to pay $10.00 and Moega Nu’u and Malia $10.00, all costs to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485248/ | OPINION OF THE COURT
MORROW, Chief Judge.
On January 31, 1961 the plaintiffs filed their petition seeking recovery of $11,000 from the defendants for rental of the M. V. SAMOA, or, alternatively, $11,000 for the use and occupation of the same ship. Bernard K. Trask asked leave to intervene as a party defendant upon the ground, among others, that “The judgment of the Court may bind petitioner as a contributor.” It appearing to the *459Court that Mr. Trask was a partner together with the named defendants in the transactions giving rise to the claim alleged by the plaintiffs, the Court granted him leave to intervene as a party defendant.
Plaintiffs are the owners of the M. V. SAMOA. Their claim is based upon a lease of the ship to the defendants entered into in September 1959 by the terms of which the lessees upon the “signing of this agreement by the lessors Joseph and William Steffany” were to take immediate possession of the M. V. SAMOA and commence refitting it for fishing purposes. The lessees were to pay as rent for the vessel $1,000 a month “for a period of 12 months commencing the first day upon which the M. V. SAMOA shall be put in actual service as a fishing vessel.”
Pursuant to the terms of the lease, the plaintiffs delivered the ship to the defendants following its signing. The defendants proceeded to refit it for fishing. It was stipulated during the hearing that the ship was put into actual service as a fishing vessel on March 13, 1961. At the end of the 12-month period the defendants returned the ship to the plaintiffs. No rent has been paid.
The vessel was rented in the name of Herbert J. Scanlan, one of the partners, the lease being signed by him for the partners who were doing business under the name of the “Samoan Fisheries.” The lease was also signed by William Steffany and Joseph Steffany. It was not signed by Alo Pepe Steffany. Alo Pepe Steffany is an elderly Samoan woman and the mother of William and Joseph. She is a co-owner of the ship with William and Joseph.
The defendants resist payment of the rent on a number of grounds. It is claimed by Counsel Trask (also a partner and the intervener-defendant) for the defendants that the lease of the ship was void under the statute of frauds, not being signed by Alo Pepe Steffany, who was one of the co-owners. This contention overlooks the fact *460that there is no statute of frauds in the American Samoan Code. “The English Statute of Frauds, 29 Car. II, is usually not considered as extending to this country, and is of force here only by virtue of its adoption by the legislatures of the several states, directly or indirectly.” 49 Am.Jur. 364. As in the states, the English statute of frauds was, not brought to American Samoa as a part of the common law. It would follow, therefore, that the lease could have been oral and signed by no one. “The fact that one of the parties has signed the contract does not necessarily require that the other party should do likewise. A written contract, not required to be in writing, is valid if one of the parties signs it and the other acquiesces therein. Acceptance of a contract by assenting to its terms, holding it, and acting upon it may be the equivalent to a formal execution by one who did not sign it.” 12 Am.Jur. 552. There was acquiescence here without Alo Pepe’s signature when the plaintiffs delivered the ship to the defendants and the defendants began to refit it. Herbert J. Scanlan signed for the defendants.
Defendants Herbert J. Scanlan, Langkilde and Trask met with Joseph Steffany at the home of Herbert J. Scanlan one evening in September 1959 for the purpose of signing the lease. Trask had carried on the negotiations with the Steffanys for the making of the lease and he had prepared it for signature. William and Joseph had always handled all matters in connection with the M. V. SAMOA, their elderly mother having left everything in connection with the ship to them. The lessees knew this, having been so informed by William.
At the meeting at Scanlan’s home to execute the lease Mr. Trask, who was acting as counsel for himself and his partners in the leasing of the vessel, told the assembled group that it was not necessary for Alo Pepe to sign; that William and Joseph’s signatures were enough. The 11th *461paragraph in the lease provided “That upon the signing of this agreement by the Lessors Joseph and William Steffany, the Lessee shall take immediate possession of .the M. V. SAMOA and shall commence refitting of said vessel for fishing purposes.” The reason that the 11th paragraph in the lease was drawn by Mr. Trask so as not to require the signature of Alo Pepe before the partners should take possession of the ship and begin refitting it was because, according to the evidence, Mr. Trask told the parties that her signature was unnecessary in view of the fact that she had always left everything in connection with the handling of the ship to her mariner sons, Joseph and William, who were to sign. It was intended by the parties that she should not sign. Since the lease itself provided that upon the signing by Joseph and William only, the lessees were to take immediate possession of the ship and begin refitting it, it is obvious that it was not intended by the parties that Alo Pepe’s signature was to be a condition precedent to the existence of a valid lease.
Mr. Trask had four or five copies of the lease on hand at Scanlan’s home to be signed. Partner Herbert J. Scanlan testified that he signed for the defendants. Joseph Steffany signed. It was then nearly 10:00 o’clock in the evening. Mr. Trask took the copies already signed by Herbert and Joseph to William to get William’s signature. William was on the ISABEL ROSE about ready to sail for Apia. At first he refused to sign, partly because he was “kind of afraid” to sign, as he testified, and partly because he had not read the document. He couldn’t read it without glasses, which he did not have. According to his testimony Mr. Trask told him to sign, which he did after being informed that Joseph had signed. The lease was not read to William before he signed. William testified that he did not trust Mr. Trask. After he signed he told Mr. Trask in substance that the lease was “no good” without Alo Pepe’s and Herbert *462Scanlan’s signatures. We believe that William was in error in implying that Herbert had not signed because Herbert himself testified that he signed at his home with Mr. Trask and Joseph present. William signed four or five copies on the ISABEL ROSE. According to his testimony, Mr. Trask tried to get all of them away from him so that he would not have a copy. But William did get one copy back from Trask which he gave to his son to give to his wife who, at William’s direction, was to take it to Wayne Storer, the Manager of the Bank of American Samoa, or to the Attorney General. It was taken to Mr. Storer the next morning. He sent it to the Attorney General. It was either lost or misplaced for William never saw it again.
It is claimed by counsel for the defendants since William said when signing that the lease was “no good” without Alo Pepe’s and Herbert’s signatures that the lease was void and did not create an obligation to pay any rent. We think that William was merely expressing a sailor’s legal opinion when he said the lease was “no good” and that he changed his mind about its legality by the time the lessors delivered possession of the ship to the lessees the next day. The lessors recognized the lease as valid by delivering the ship to the lessee pursuant to Paragraph 11 of the lease which, as we have already indicated, reads: “That upon the signing of this agreement by the lessors Joseph and William Steffany, the lessee shall take immediate possession of the M. V. SAMOA and shall commence refitting of said vessel for fishing purposes.” In other words, the lessors recognized the lease as valid by delivering the vessel pursuant to Paragraph 11, and the defendants recognized it as valid by accepting possession of the vessel and commencing to refit it for fishing purposes. If William did intend that Alo Pepe’s and Herbert’s signatures should be a condition precedent to the existence of a valid lease, he *463waived that condition when the ship was delivered to the lessees.
The editors of Corpus Juris Secundum have this to say about the practical construction of a contract by the parties:
“Where the parties to a contract have given it a practical construction by their conduct, as by acts in partial performance, such construction may be considered by the court in construing the contract, determining its meaning, and ascertaining the mutual intention of the parties at the time of contracting; it is entitled to great, if not controlling, weight in determining the proper interpretation of the contract; and it will generally be adopted by the court.” 17 C.J.S. 755.
William and Joseph recognized and construed the lease as a valid and existing agreement by delivering the vessel the next day and the defendants did likewise by accepting delivery and commencing to refit it for fishing. The conduct of both the plaintiffs and the defendants is explainable only upon the basis that the document previously signed was a valid and subsisting lease.
We now repeat a part of our prior quotation from American Jurisprudence:
“A written contract, not required to be in writing, is valid if one of the parties signs it and the other party acquiesces therein.” 12 Am.Jur. 552.
Herbert J. Scanlan signed the lease for the defendants and the plaintiffs acquiesced in it without Alo Pepe’s signature by delivering the ship to them. The delivery and acceptance of the ship was clearly pursuant to Clause 11 in the lease. Since there is no statute of frauds in American Samoa, no writing was necessary in the first place.
Furthermore, while it may not be necessary to a decision, we remark that since Attorney Trask, while acting as counsel for and agent of the defendants, stated to *464the parties before anyone signed that Alo Pepe’s signature was not necessary and since the lessors delivered the ship to the lessees without her signature, it follows that the defendants may well be estopped from denying the validity of the lease because of the lack of Alo Pepe’s signature. Upon the evidence, there was certainly an estoppel at least in favor of lessor Joseph Steffany. See 19 Am.Jur., Tit. Estoppel, Sec. 34, P. 634.
Counsel for the defendants claims that William’s remark to him when signing that the lease was “no good” without Alo Pepe’s and Herbert’s signatures shows that he intended their signatures to be a condition precedent to the existence of a lease, as far as he was concerned. However, as we have already said and basing our conclusion upon Herbert’s testimony, we believe that Herbert’s signature was on the lease before William signed. After a consideration of the evidence, we do not believe that it was his intention to make Alo Pepe’s and Herbert’s signing such a condition but that he was, as we have said, merely expressing a sailor’s legal opinion. But conceding that he did at that time intend their signatures to be a condition precedent to his liability on the lease, the fact is that he and Joseph delivered the ship to the defendants pursuant to Clause 11 in the lease, and the . delivery was accepted. If there was a defect in the lease because of the lack of Alo Pepe’s signature, the defect was cured by the delivery of the ship, such delivery constituting a ratification of the lease by the lessors. In connection with ratification of a defective or void contract, the editors of Corpus Juris Secundum have this to say:
“A defect in the method of executing a written instrument evidencing a contract, or even want of execution, may, in general, be cured by ratification which may be express or implied. A party who accepts benefits accruing under a contract may be bound, notwithstanding defects in, or want of, execution.” 17 C. J.S. 419.
*465It is our conclusion that the defendants became bound by the lease without Alo Pepe’s signature certainly no later than the time they accepted the benefits under it by taking possession of the M. V. SAMOA from the lessors. Even a forged instrument may be ratified. Di Lorenzo v. Atlantic National Bank of Boston, 278 Mass. 321, 180 N.E. 148. It has been held by a number of courts that entry and occupation under a defective or invalid lease may create the relationship of landlord and tenant.
“A void lease under which occupation has been entered into may, according to the weight of authority, be admissible for the purpose of showing the character and terms of the defendant’s occupation.” 35 Corpus Juris 960, citing Crawford v. Jones, 54 Ala. 459; Nash v. Berhmeir, 83 Ind. 536; Goshorn v. Steward, 15 W.Va. 657, as well as cases from other states and England and Canada.
We think that under the circumstances of this case Attorney Trask, acting for himself and the other defendants, was entirely correct when he advised the parties about to execute the lease that Alo Pepe’s signature was not needed on it.
There are two notations on the first page of the lease initialed by Herbert J. Scanlan, who signed it for the defendants. Both notations were obviously made to correct mere clerical errors in typing the lease. The evidence was that Attorney Trask, who drew the lease, made the notations. The notations, as shown by the evidence, made the lease read in accordance with the intention of .the parties. As stated by the editors of Corpus Juris Secundum:
“The contract must be read according to the intent of the parties in spite of clerical errors and omissions which if followed would change that intention.” 17 C.J.S. 734 .
As originally typed the lease read “That for and in consideration of the sum of One Thousand Dollars ($1,000.00) payable on the 30th day following the date on which the motor vessel, the M. V. SAMOA, shall be used by *466the Lessee as a fishing vessel, and on every subsequent 30th day thereafter, the Lessors, by these presents and upon the conditions hereinafter enumerated, lease the motor vessel called the M. V. SAMOA ... to the lessee ... for a period of 12 months commencing the first day upon which the M. V. SAMOA shall be put into actual service as a fishing vessel.”
The first notation consisted of inserting the words “a like sum” in pencil so that the first part of the quoted clause then read “That for and in consideration of the sum of One Thousand Dollars ($1,000.00) payable on the 30th day following the date on which the motor vessel, the M. V. SAMOA, shall be used by the Lessee as a fishing vessel, and a like sum (emphasis added) on every subsequent 30th day thereafter . . .” etc. The second notation, also initialed by Herbert J. Scanlan, merely makes a subsequent clause on Page 1 accord with the first notation.
These notations did not constitute modifications in the lease. They merely made it read as the parties had actually intended that it should read in the first place. The evidence showed that clearly. We think that Mr. Trask was perfectly honest in his drafting of the lease and that the omission of the words “a like sum” was a mere clerical error which could have happened in the case of any lawyer, and the fact that he later, according to the evidence, corrected the error absolves him of any dishonesty in the drafting of the document, despite his distrust by William.
The 9th clause in the lease, as it was when originally executed, provided that “The lessee shall, if possible in American Samoa (emphasis added), insure said vessel for a reasonable amount made payable to the lessors.” It developed that it was not possible to secure insurance on the M. V. SAMOA in American Samoa.
After the refitting of the ship had proceeded for some months and no insurance had been procured, William be*467gan to fear that the ship, after being refitted, might be taken out to sea by the defendants and lost and that the Steffanys would not be compensated for the loss. And this could well have happened if the ship had been lost or damaged by an Act of God since Clause 8 in the lease provided that “in no case shall the Lessee be answerable to the Lessors for damages sustained by an Act of God, or capture by pirates or enemy aliens in time of hostilities.” Because of these fears, William complained to the Attorney General and others about there being no insurance. Finally the defendants agreed to a change on the third page of the lease so that it would read that “The Lessee shall insure said vessel for a reasonable amount made payable to the Lessors.”
This change enlarged the obligation of the defendants with respect to insurance. It cast upon them a duty to procure insurance in any event whereas the lease as originally drawn required them to procure insurance only “if possible in American Samoa,” which it was not. The change, therefore, was a modification of the lease and not a mere correction of a clerical error to make the lease read as it was originally intended by all parties to read, as was the case with the two notations initialed by Herbert J. Scanlan on Page 1 of the lease. This modification made on the third page was initialed by William and by Mr. Trask for the defendants. It was not initialed by Joseph. In our opinion, there was no consideration furnished by the lessors for the modification and it was ineffective. William tried to get Joseph’s consent to the modification but Joseph would not consent to it without first seeing his lawyer. Apparently he did not see his lawyer, for he did not agree to the modification. However, Mr. Trask assured William when the attempted modification was made that he could “fix it,” i.e. get the insurance. It appears that he failed to do so after learning from O. F. Nelson & Co., Ltd. in Apia *468that insurance could not be procured from the Liverpool & London & Globe Insurance Co., Ltd., Sydney, nor from its head office in Liverpool. However, the fact that insurance could not be procured from this one company does not prove at all that it could not have been procured from some other company engaged in marine insurance. There are many companies engaged in the marine insurance business. “Judicial notice will be taken of matters of common knowledge.” 31 C.J.S. 510. Nevertheless, since there was no consideration furnished by the lessors for the modification and since Joseph did not assent to it, it follows that the failure of the defendants to procure insurance on the ship did not constitute a breach of contract, though no doubt William, under the circumstances, honestly believed that it did, particularly since Mr. Trask had assured him, when the legally ineffective modification was made, that insurance could be procured.
On February 16,1961, after the ship had been refitted or almost completely refitted and was about ready to or already had made a trial run, William wrote a letter (actually drafted and typed by one Marcel but which William signed) to Herbert Scanlan in which he said “As per our agreement of past, there remains two important steps to be taken before I the owner of the ‘M. V. SAMOA’ will allow you to take my boat out for fishing. These two steps are: 1. Our contract must be finalized by having you and my mother sign it. 2. The boat must be insured by you for a value of $25,000.” William sent copies of the letter to the Attorney General, the Director of Port Administration and the Manager of the Bank of American Samoa.
As a matter of fact, Herbert Scanlan, according to his own testimony, had signed the agreement. Even though William, as he testified, did not trust Mr. Trask, we do not believe from the evidence that Mr. Trask permitted the lessees to take possession of the ship without Herbert’s *469first having signed the lease, thereby obligating the lessees in writing for the rent.
On February 21, 1960 William, acting for himself, his mother and his brother Joseph, filed a petition in this Court praying (1) for “a preliminary injunction and restraining order prohibiting further use of the M. V. SAMOA by Samoan Fisheries pending hearing and adjudication of this petition by the Court” and (2) “To grant an indefinite injunction and restraining order prohibiting the further use of the M. V. SAMOA by Samoan Fisheries until such time as the agreement for the use of the vessel is settled by the parties.” The petitioner also asked the Court to grant “possession of the said vessel to William Steffany until such time as the tentative agreement between the parties is finalized.” The defendants were doing business under the name of the “Samoan Fisheries.”
The Court did not issue a preliminary injunction or restraining order. When the petition came on for hearing, the defendants resisted it claiming that they had a valid lease agreement (the lease agreement of September 1959) although Alo Pepe had not signed and that they were entitled to possession of the vessel despite the fact that no insurance had been procured.
We think that the defendants, as they claimed when they resisted the petition, did have a valid lease agreement which was executed in September 1959, and that they were entitled to the possession of the vessel as they claimed, even though they had not procured the insurance and Alo Pepe had not signed. We have already set forth the reasons for this conclusion.
At the. conclusion of the hearing on the petition and before the Court was ready to rule on whether or not an injunction should be granted, the petitioner withdrew his application for an injunction. In consideration of the withdrawal and of the petitioner’s permitting the ship to go to *470sea the defendants undertook “that if the said M. V. SAMOA should be damaged or lost through the negligence of the lessees or their servants or from any other cause, except for damage sustained by Act of God or capture by pirates or alien enemies in time of hostilities” to indemnify the petitioner “to the extent of $10,000.00.” The undertaking was limited to a period of 31 days from the date of the agreement which was March 4,1960.
The defendants now claim that the letter of February 16, 1960 prepared by Marcel together with the petition for an injunction constitute a repudiation of the lease of September 1959 and put an end to it and that the indemnification agreement was the only existing agreement between the parties after the petition for the injunction was withdrawn on March 4,1960.
[IF] It is fundamental that a renunciation or repudiation in order to put an end to a contract by breach must be unequivocal and absolute.
“In order to justify the adverse party in treating the renunciation as a total breach, the refusal to perform must be of the whole contract or of a covenant going to the whole consideration, and it must be distinct, unequivocal, and absolute.” 12 Am.Jur. 972.
This same doctrine was approved by the Supreme Court of the United States in the case of Dingley v. Oler, 117 U.S. 490, 29 L.Ed. 984, 6 Sup.Ct. 850, 854, in which the Court said:
“The most recent English case on this subject is that of Johnstone v. Milling, in the court of appeal, 16 Q.B. Div. 460, decided in January of the present year, which holds that the words or conduct relied on as a breach of contract by anticipation must amount to a total refusal to perform it, and that that does not, by itself, amount to a breach of the contract unless so acted upon and adopted by the other party.”
We do not believe that the letter of February 16,1960 or the petition for an injunction, either separately or taken *471together, constituted an absolute and unequivocal renunciation of the September 1959 lease agreement. Taken together or taken separately they do not evince an intention that the defendants shall not have the ship but merely that they shall not go to sea with it until after Pepe and Herbert should sign and insurance on the ship be procured. In other words, William was asking delay in taking the ship to sea. His repudiation was at the most only partial, not unequivocal and absolute.
Assuming for the benefit of the defendants, but without agreeing, that there was such a repudiation as would have justified the defendants in treating the lease agreement as ended, the fact is that the defendants did not accept the repudiation. They resisted it when they resisted the petition on the hearing for an injunction. They claimed that the lease was valid and that they were entitled to possession of the vessel with the right to take it to sea; and we think that the defendants were correct in these claims. They rejected the so-called renunciation or repudiation.
The editors of Corpus Juris Secundum say this:
“The renunciation of a contract by the promisor before the time stipulated for performance is not effective unless such repudiation is unequivocally accepted by the promisee. If the promisee declines to accept the renunciation and continues to insist on the performance of the promise, as he may do, the contract remains in existence for the benefit and at the risk of both the parties, and, if anything occurs to discharge it from other causes, the promisor may take advantage of such discharge.” 17 C.J.S. 978.
In this case the defendants did not elect to accept the so-called repudiation. They rejected it by resisting the petition for an injunction and keeping possession of the ship. By their rejection they kept the lease agreement of September 1959 alive not only for their own benefit but also for the benefit of the plaintiffs as well.
*472When William withdrew, the petition for an injunction he withdrew the so-called repudiation. Then it became the duty of the defendants to go ahead and perform their agreement.
“A withdrawal of a repudiation obligates the other party to perform.” 12 Am.Jur. 976.
“In case the renunciation of the contract is not accepted by the adverse party, the renunciation may be withdrawn and the party renouncing after performance on his part may hold the adverse party to performance.” 17 C.J.S. 979.
As far as the indemnification agreement of March 4, 1961 is concerned, we are convinced from the evidence 'that it was intended by the'parties only as a supplementary stop-gap agreement to give the defendants 31 days within which to get insurance which Mr. Trask had assured William, sometime before the injunction suit was instituted, could be procured. The indemnification agreement was obviously not a lease for 31 days. It included no provision for the payment of rent. It contained the provision with respect to what the ship was to be used for. It did not even provide that the defendants should have possession of the ship. True, it described the Samoan Fisheries as lessees but it contained no provision making the Samoan Fisheries (the defendants) the lessees of the ship. Looking only within the four corners of the indemnification agreement (as it was described by counsel for the defendants during the hearing and we think correctly so), the plaintiffs could have performed by permitting a third party to take the ship to sea on a pleasure cruise and if the ship had been lost within the 31 days due to a collision with a ship operated by á fourth party, the defendants would have been liable for not to exceed $10,000. Now, of course, no such ridiculous situation was ever intended by the parties. The indemnification agreement made sense only when read in connection with the September 1959 lease as a still continuing *473agreement, and we are satisfied from the evidence that that is exactly what both the plaintiffs and the defendants intended when they entered into the indemnification agreement. Why were the defendants referred to in the indemnification agreement as “lessees” unless the parties considered that there was a pre-existing lease in effect? The indemnification agreement itself did not purport to be a lease.
And the circumstance that the lessees (the defendants), as will hereafter appear, asked William to take the ship back shortly after April 1,1960 and again Joseph in August 1960, in order to get out of the payment of rent for the ship according to the lease, shows that the defendants themselves considered that the September 1959 lease was still in force after March 4, 1960 when the indemnification agreement was entered into. And Joseph and William likewise considered that it was still in force when they refused to accept surrender of the lease by taking the ship back. That was the practical construction put upon the lease agreement by both the lessors and the lessees in April and August 1960. Both parties regarded it as still binding. See 17 C.J.S. 755 quoted supra.
When partners Trask, Herbert, and Joe Langkilde went to Lotopa in Western Samoa in August 1960 and tried to surrender the M.V. SAMOA to Joseph their conduct could have had no relation to any other contract than the lease agreement of September 1959. The indemnification agreement by its own terms had come to an end 31 days after its execution on March 4,1960.
The defendants took the ship to sea on four or five trial runs before March 13, 1960 at which time it was stipulated by the parties, as we have said, that the M. V. SAMOA was put into actual service as a fishing vessel. Sometime between March 13, 1960 and April 1, 1960, when Herbert Scanlan returned to American Samoa from New Zealand, *474they took the ship to sea again for three days and caught some fish. However, they never caught enough fish on any of the runs to make a profit.
Shortly after Herbert came back from New Zealand, he and Joe Langkilde went across Pago Pago Bay to the Marine Railway to see William. They told William that they had no further use for the ship and that they couldn’t run it. They wanted William to take the ship back but he told them that he’d have to see his lawyer and Joseph about it and that he wouldn’t take the ship back. About August 1960 Trask, Joe Langkilde, and Herbert went to Lotopa in Western Samoa to see Joseph about taking the ship back, but when they proposed to him that the ship be taken back, he said that he would have to see his lawyer and that he would leave it up to his lawyer.
Apparently Joseph saw his lawyer because Attorney Metcalfe on August 11, 1960 wrote from Apia to William in Pago Pago as follows:
“Joe has informed me that two men, evidently Joe Langkilde and Herbert Scanlan, asked you to take back M. V. SAMOA and you advised them that you must consult your lawyer.
“I am glad you told them that because under the agreement which they signed the term of the lease is 12 months and there is no right to cancel it.
“They cannot compel you to take the ship back until the 12 months have expired unless it suits you to do so.
“I expect to be in Pago Pago on Monday the 15th and I shall try to telephone you or see you about what I think is the best thing to do.”
Counsel for the defendants claims, if the Court should find that the lease agreement of September 1959 was still in force, that the plaintiffs were obligated to minimize the damages by taking the ship back when Herbert and Joe Langkilde asked William to take it back at the Marine Railway shortly after April 1, 1960. This overlooks the fact that this lease agreement was not an ordinary contract but was a lease. There was no duty on the *475part of the lessors to take the ship back. The editors of Corpus Juris Secundum say this:
“In order that the attempted surrender shall release the tenant from further payment of rent, it must be accepted by the landlord, unless it was made in compliance with a demand by the landlord.” 52 C.J.S. 270. To the same effect, see 32 Am.Jur. 763.
When William told Herbert and Joe Langkilde that he would have to see his lawyer and Joseph and that he would not take the ship back, that was a rejection of the offer to surrender, not an acceptance. And when Joseph told Trask, Herbert and Joe Langkilde in Lotopa about August 1960 when asked by them to take the ship back that he, too, would have to see his lawyer, that was likewise a rejection of the offer to surrender.
The defendants retained possession of the ship for 12 months after March 13, 1960 when, as was stipulated, it was put into service as a fishing vessel. At the expiration of the 12 months the lessors resumed possession. About the time of the conversation at the Marine Railway, the defendants tied the ship up to a buoy in Pago Pago Bay where it still is. While it was tied up and still in their possession, the defendants had it inspected two or three times a week to see that it remained in good condition. The lease required the defendants to “always maintain the M. V. SAMOA in a seaworthy condition” and upon its termination to return it “to the lessors in a seaworthy condition together with all permanent improvements made thereon.”
Our conclusion is that the defendants are liable in this action for 10 installments of rent which began to accrue on March 13, 1960 when the M. V. SAMOA was put into service as a fishing vessel. The petition in this case was filed on January 31, 1961. The plaintiffs were entitled to recover rent as it fell due. See 32 Am.Jur. 433. But they are not entitled in this action to recover more rent than was due at the time the petition was filed. The plaintiffs have *476sued for 11 months’ rent but rent for only 10 months was due on January 31, 1961 when the action was instituted. The plaintiffs are entitled to recover rent for 10 months.
JUDGMENT
Accordingly, it is ORDERED and ADJUDGED that the defendants Herbert J. Scanlan, Joe Langkilde and intervener-defendant Bernard K. Trask shall pay to the plaintiffs, William Steffany, Joe Steffany, and Alo Pepe Steffany, the sum of $10,000.
It is FURTHER ADJUDGED by the Court that the above-named defendants and the intervener-defendant were partners with respect to the transactions resulting in this judgment for $10,000.00 to be paid by them to the plaintiffs.
And it is FURTHER ORDERED and ADJUDGED that the defendants Herbert J. Scanlan, Joe Langkilde, and intervener-defendant Bernard K. Trask shall pay as costs to the Clerk of the High Court the sum of $58.33. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485249/ | *480OPINION OF THE COURT
MORROW, Chief Justice
Si’u was convicted in District Court No. 3 for failure to search for the coconut beetle as required by Section 1003 of the A. S. Code. He was sentenced to pay a fine of $7.00 within two weeks with an alternative jail sentence of 10 days if the fine should not be paid. Si’u appealed upon the ground that although Matauaina and Pe’a, who were tried on the same day for similar, offenses, pleaded guilty, their cases were not reported by the Clerk of District Court No. 3 to the Chief Justice for review with the result that despite their pleas of guilty they were not sentenced.
Suffice it to say that it is no defense for an accused that another person guilty of the same crime is not punished. Since the appellant Si’u pleaded guilty and there is no error in the record of his case the judgment pronounced against him must be affirmed.
However, it should be stated that since Si’u’s appeal was heard the Clerk of District Court No. 3 has sent a report of the cases of Matauaina and Pe’a to the Chief Justice who has reviewed them with the result .that they have now been sentenced.
It appears that the failure of the Clerk to report the cases of Matauaina and Pe’a for review arose out of the fact that the pulenu’u preferred charges against them through mistake, he having intended not to prefer charges in their cases because he had excused them beforehand from searching for the beetle.
Of course he could not excuse them. The law does not permit him to do so. Sec. 1003 prescribes who shall search for the beetle. Sec. 1006 lists certain persons who are exempt from searching. The exempt list does not include those excused by the pulenu’u. The pulenu’u *481informed the District Judge that he had excused Matauaina and Pe’a and that later he had preferred charges against them by mistake. The Clerk, acting in good faith, believed that the cases against them were the result of a mistake on the pulenu’u’s part and that they should not be reported to the Chief Justice. This mistake the Clerk has now corrected.
Doubtless Matauaina and Pe’a thought that the pulenu’u, a chief, could lawfully excuse them from their duty imposed by Sec. 1003 to search for the beetle. Ignorance or mistake of law is no excuse for its violation. Clerk and Marshall on Crimes (4th ed.) Sec. 61. “A man who has knowledge of the facts of a situation who acts in a manner prohibited by law has the criminal intent, irrespective of his knowledge of the existence or content of the applicable rule of law. Nor is it a defense that one received erroneous legal advice from counsel or public officials. . ..” Id.
However, the Court in sentencing Matauaina and Pe’a took into consideration the fact that the pulenu’u had excused them despite the fact that under the law he could not do so. It was a mitigating circumstance.
ORDER
In accordance with the foregoing opinion, it is ORDERED that the judgment of District Court No. 3 in the case of the Government of American Samoa v. Si’u be and it is hereby affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485250/ | OPINION AND ORDER OF AFFIRMANCE
MORROW, Chief Justice
The appellee, Heirs of the Lemeanai Family, filed a petition in the Trial Division of the High Court praying for the removal of Iosia from the land Foganono which is near Tafuna. Iosia denied the right of the Heirs to have him removed. Hearing was had by the Trial Division which *483decreed “that Iosia shall have the right to possess, occupy, and use for plantation purposes that part of the land Foganono on which he now has plantations until January 1, 1956 and shall also have the right to continue to use and occupy his houses thereon until January 1, 1956 at which time he shall vacate the land Foganono taking his houses with him if he so desires. He shall leave such of his plantations as may be on Foganono on January 1, 1956 in an unharmed condition.” Iosia appealed from this decree.
The land Foganono is registered as the communal land of the Lemeanai title. Iosia has been living on a part of Foganono for a number of years and has a palagi house and some Samoan houses on the part occupied by him. Also he has some plantations which he has put in Foganono. The Heirs of the Lemeanai Family gave him notice to vacate the property which he refused to do.
He claims to have a right to occupy and use the premises through consent given him by Atualevao, now deceased, who was a matai in the Lemeanai Family. Iosia also claims to be a member of the Lemeanai Family. The Heirs claim that Iosia’s occupancy grew out of permission given to him by Saiselu, the head of the Lemeanai Family, to put up a small Samoan house on Foganono for his use in connection with fishing. There was a sharp conflict in the testimony with respect to these matters.
The Trial Court found that Iosia was not a member of the Lemeanai Family. It also found that Atualevao did give Iosia permission to put in plantations on Foganono and live there. The Trial Court further said that Saiselu, the head of the (Lemeanai) Family, may also have given him permission to put up a small Samoan house on Foganono for use in connection with his fishing. “However,” says the Trial Court in its opinion, “we believe from the evidence that permission given Iosia to enter upon *484Foganono was not given to him (Iosia) as a member of the Lemeanai Family. In other words, it was not a case of the matai assigning a piece of family land to a young man in the family for his use.”
The applicable statute provides that “The findings of fact of the Trial and Probate Divisions of the High Court in cases tried by them shall not be set aside by the Appellate Division of that court unless clearly erroneous . . .” Amendments, Nos. 11-59, 1952, par. 10, E, Sec. 213.
With respect to Iosia’s membership in the Lemeanai Family, the testimony of the witnesses was in direct conflict. We cannot say, in the light of the evidence at the trial, that the trial court’s finding of fact that Iosia was not a member of the Lemeanai Family was clearly erroneous. The Trial Court found that he was a member of the Taufi Family in Aunuu where he was bom. Of course, this Court knows judicially that a Samoan may be a member of more than one family, that he belongs to the Lemeanai Family. You cannot correctly say “X belongs to more than one Samoan family. Therefore, he is a member of the Lemeanai Family.” Such a statement is simply not true. Assuming, as Iosia claims and the Trial Court found, that Atualevao (he was not the head of the Lemeanai Family) did give permission to Iosia to enter upon and use a part of Foganono, it would not follow, the Trial Court having found from substantial evidence that Iosia was not a member of the Lemeanai Family, that he (Iosia) has the right to occupy that part of Foganono indefinitely as he claims. Iosia claims the right to live upon Foganono on the theory that he is a member of the Lemeanai Family. But the difficulty with his claim is that the Trial Court found, with an abundance of evidence to support its finding, that he is not such a member. We think he has .the right since he entered with permission of Atualevao and put in plantations, thereby improving the property, to continue to occupy *485it for awhile to compensate him for the improvement, and the Trial Court so ordered in its decree.
Iosia claims that the Trial Court was in error in concluding that Saiselu was the head of the Lemeanai Family. There was substantial evidence to support the Trial Court’s finding and we cannot set aside the decree and order á new trial upon a matter of fact unless the finding was clearly erroneous which it was not. We think that the weight of the evidence was to the effect that Saiselu was the head of the Family and that Atualevao was a lesser matai in the Family.
It was claimed in argument that the Trial Court found that Iosia entered Foganono pursuant to authority given by Saiselu. Such is not the fact. The opinion of the Trial Court shows that it found that permission to enter was given by Atualevao and that Saiselu may also have given permission to Iosia to put up a small Samoan house for his use in fishing. The Trial Court in its opinion said “We believe from the evidence that Atualevao, a matai in the Lemeanai Family, did give him (Iosia) permission to put in plantations on Foganono and live there and we think that Saiselu, the head of the Family, may also have given him permission to put up a small Samoan house on Foganono for use in connection with this fishing. However, we believe from the evidence that permission given Iosia to enter upon Foganono was not given to him as a member of the Lemeanai Family. In other words, it was not a case of the matai assigning a piece of family land to a young man in the family for his use.” Since the Trial Court found upon substantial evidence that Iosia was not a member of the Lemeanai Family, it makes no difference as far as this case is concerned, whether he was given permission by Atualevao or Saiselu or by both of them.
Iosia claims on appeal that Noa should not have sat as an associate judge in the Trial Division when the case *486was heard. If Iosia had any objection to Judge Noa’s sitting in the case, he should' have voiced it when the case came on for hearing, and not waited until after the case was decided. Iii other words, he should not have gambled on winning his case and then, after learning that the decree went against him, complain that the associate judge was ineligible to sit. We dare say that if he had won the case he would not be claiming that Judge Noa was ineligible to sit.
However, Judge Noa was eligible to sit. The statute governing disqualification of judges provides that “No judge shall sit in any case in which he or a family of which he is a member has a substantial interest, or in which he has been counsel, is or has been a material witness, or is a member of the same family with any party to the case.” Amendments, Nos. 11-59,1952, par. 10, B, Sec. 172. Iosia’s counsel argued that the associate judge had an “interest in this case” because, as counsel said, “High Chief Letuli in his letter (which was admitted in evidence without objection) stated that Judge Noa can be a witness.” The statute disqualifies a judge if he “is or has been a material witness” and not if he can be. Judge Noa was not nor had he been a material witness in this case. A witness in a case is a person who gives testimony. Judge Noa did not take the stand. We do not know whether Judge Noa could have been a witness or not. We do know, however, that he was not.
Iosia also claims that Judge Noa was disqualified because “our (Iosia’s) counsel Aifili did not know that Noa’s son is married to a daughter of Malama, the sister of Aumavae Toloumu, but he just found that out later when the decision was delivered.” Conceding for the sake of argument that Judge Noa’s son is married to a daughter of Malama, the sister of Aumavae Toloumu, Judge Noa would not be disqualified under the applicable statute to sit in the case. *487Furthermore, Iosia undoubtedly knew of this marriage when the hearing began and, if he had any objection to Judge Noa’s sitting in the case, he should have raised it then. He should not have kept quiet and gambled on winning his case and when he lost raise the objection for the first time on appeal. A litigant should not play fast and loose with the Court. But as we have said Judge Noa was not disqualified under the statute, even if the claim of Iosia concerning the marriage of Noa’s son to the daughter of Malama, the sister of Aumavae Toloumu, be true.
We have considered all the grounds for reversal urged by Iosia’s counsel in his argument. Some additional grounds are set out in the statement of grounds for appeal. Upon consideration of them, we find them without merit.
It is our opinion on this record that the decision of the Trial Division should be affirmed.
ORDER OF AFFIRMANCE
Accordingly, it is ORDERED that the decree entered by the Trial Division be and it is hereby affirmed.
Costs in the sum of $5.00 are hereby assessed against Iosia, the same to be paid within two weeks. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485252/ | OPINION AND ORDER OF AFFIRMANCE
MORROW, Chief Justice
Appellee Taesalialii, hereinafter called Taesali, filed his petition in the Trial Division of the High Court asking for an order restraining Tuloto and Pauesi, appellants, from continuing the erection of a house on certain land in the village of Utulei. An injunction was issued. Tuloto and Pauesi have appealed.
*494At the hearing below it appeared that four matais namely, Lutu, Taesali, Afoa and Tupua are jointly the head of the Lutu, Taesali, Afoa and Tupua clan; and that such clan is a larger clan made up of the membership of four smaller clans one of which Lutu is the matai, another of which Taesali is the matai, another of which Afoa is the matai and the other of which Tupua is the matai. It was clear from the evidence, and it is not disputed, that the larger clan composed of the members of the four smaller clans is the owner of certain lands in Utulei and Fagatogo. There has never been a division of the ownership of the property among the four smaller clans. However, the Lutu clan has had possession and occupied a part of the property in Fagatogo owned by the larger clan for many years. Likewise the Taesali clan has had possession of and occupied a part of the land in Utulei owned by the larger clan for many years. And likewise the Afoa clan has had possession of and occupied a part of the land of the larger clan in Utulei for many years. The Tupua clan has had possession of and occupied the remaining part of the land owned by the larger clan for many years which land is located above what was formerly the Fita Fita barracks of Fagatogo.
It has been the custom when anything of importance affecting the family was to be decided for the four matais to consult amongst themselves regarding it. It appeared that occasionally a member of one of the smaller clans went to live in the family of one of the other smaller clans and was assigned a piece of the land belonging to the larger clan which had been occupied and possessed by such other smaller clan.
The appellants are husband and wife. The wife is a blood member of the Afoa clan and thereby a member of the larger clan. She and her husband live in the Afoa family and occupy (possibly with some near relatives) a piece of *495land of the larger clan of which the Afoa clan had had possession for a long period of time. Recently, appellants Tuloto and Pauesi desired to have assigned to them for their occupation and use a small piece of land which has been in the possession of the Taesali branch of the larger clan for many years, probably, according to the evidence, since before the Government was established in 1900. Taesali and the members of his clan objected to the assignment of this small tract to Pauesi and Tuloto. Afoa, as did Lutu, approved the assignment together with the building of a house on such land by Pauesi and Tuloto. Tupua consented on the condition that Taesali consent, but Taesali refused to give his consent. This particular piece of land has taro growing upon it planted by the Taesali members. The erection of the house will destroy the taro patch and deprive the Taesali clan of the possession of the land.
That the Taesali and the members of the Taesali clan have had possession of, occupied and upkept (as we say in Samoa) the premises for more than 50 years was clearly established by the evidence. The question before the Court is whether that piece of land can for all practical purposes be taken away from the Taesali clan against their wish and without the consent of Tupua and assigned to Tuloto and Pauesi with the. appro val only of the Afoa and the Lutu. If Lutu and Afoa can hand over a piece of the land which has been occupied, used and upkept by the Taesali clan for more than 50 years, over the objections of the Taesali and the Tupua, we see no reason why the Tupua and the Taesali might not order Lutu to get out of his house in Pagatogo which is built on land of the larger clan and assign the land on which it is built to a member of the Taesali clan. That that could not be done we think is clear. We do not believe that a member of one of the smaller clans, who already has a place to live on the land of the *496larger clan, can come in and destroy the plantation of a member of one of the other smaller clans against the wish of the matai of that other smaller clan, build a house where the plantation stood, and deprive the such other smaller clan of the land of the larger clan which such smaller clan has possessed, occupied and upkept for more than 50 years.
It is our conclusion that the decision of the Trial Division was correct and that the order made by it should be affirmed.
ORDER OF AFFIRMANCE
Accordingly, it is ordered that the decree of the High Court in the case of Taesalialii of Utulei v. Tuloto and Pauesi of Utulei, No. 6-1954, be and the same is hereby affirmed.
Costs on appeal in the sum of $30.00 are hereby assessed against Tuloto and Pauesi, the same to be paid within 60 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485253/ | OPINION, SETTING ASIDE JUDGMENT, AND REDUCTION OF SENTENCE
MORROW, Chief Justice
Fe’a of Iliili was convicted in the District Court for the Third District on February 3, 1955 on one count for failure to search for the coconut beetle as required by Sec. 1003 of the A. S. Code and on another count for failure to abide by a village regulation of Iliili requiring him to assist in building a village pig wall. He was sentenced by the District Court to pay a fine of $2.00 within two weeks or go to jail for four days. His appeal from the judgment is based upon the alleged ground that his eyesight is so defective that it was physically impossible for him to have searched for the coconut beetle or ¡to have assisted in building the village pig wall.
The applicable part of the statute governing the powers of the Appellate Division on appeal is as follows:
*498“. . . in the case of appeals from the district courts the Appellate Division of the High Court may review the facts as well as the law. In a criminal case the Appellate Division of the High Court may set aside the judgment of conviction and, if the defendant has appealed or requested a new trial, order a new trial, or may commute, reduce (but not increase) or suspend the execution of the sentence.” Amendments, Nos. 11-59, 1952, § 10, Part E, Sec. 218.
Of course the law does not, under the circumstances of this case, require the doing of acts by the appellant which it is humanly impossible for him to perform, under pain of punishment if he does not perform them.
We are convinced upon our review of the facts that the appellant’s eyesight was so defective that it was impossible for him to have searched for the coconut beetle. Searching for the beetle requires eyesight capable of discerning the kind of a place in the soil where the grub should be found. The appellant is completely blind in his right eye and the eyesight in the other is impaired. The evidence clearly indicates, however, that even with his defective eyesight, the appellant can and does go about the village of Iliili unaided, go to his plantations and do the necessary work therein for raising taro and bananas, climb coconut trees on his plantations, pull down coconuts, cut them in two, and take out the coconut meat with a knife for the production of copra. We think that a man able to do these things unaided is able to see well enough to assist in building a village pig wall.
We think the conviction for failure to assist in building the village pig wall was right and that the conviction for failure to search for the coconut beetle was an error.
We set aside the judgment of conviction for failure to search for the coconut beetle. We affirm the judgment of conviction for failure to assist in building the village pig wall.
*499We reduce the sentence of Fe’a in the District Court for the Third District from a fine of $2.00 payable within two weeks or four days in jail to a fine of $1.00 payable within two weeks from March 17, 1955 or two days in the Island Government prison. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485254/ | OPINION AND ORDER
MORROW, Chief Justice
On August 1, 1955 appellant Motu, hereinafter called the plaintiff, filed his petition in District Court No. 2 against appellee Faaletino, hereinafter called the defendant, alleging that the defendant had destroyed with a bushknife 10 cocoa plants, 40 pandanus plants, 14 banana trees, and 5 coconut trees, all the property of the plaintiff. The plaintiff sought judgment for $345.00. At the trial before Associate Judge Letuligasenoa at Fagaitua on Sept. 22, 1955, the District Court rendered a judgment in favor of the plaintiff for $3.00 plus $2.00 costs. The plaintiff appealed claiming that the judgment was inadequate.
The Court heard the case de novo on appeal. We also have the entire record in the District Court before us. The testimony of the defendant before the District Court varies somewhat from his testimony before us in that he admitted before us that in addition to destroying 4 banana trees belonging to the plaintiff he cut down two coconut trees which we find to be on the boundary line between the land on which the plaintiff had his plantations and the land on which the defendant’s family, the Tautolo, had their plantations.
In response to the query “You don’t know whether he (Faaletino) cut down your cocoa plants or not, do you?” Motu on the witness stand answered “No.” Faaletino denied cutting down the cocoa plants. In view of all the evidence we cannot find that Faaletino cut down the cocoa plants.
With reference to the 40 pandanus plants claimed by Motu .to have been destroyed by Faaletino, Motu testified that he (Motu) “asked Faaletino about the pandanus and he (Faaletino) told me that it was he (Faaletino) that destroyed (them) and that’s the same answer he (Faale*501tino) gave in District Court No. 2.” Motu did not see Faaletino cutting the pandanus.
The record of the testimony in the District Court shows that Faaletino was asked by his counsel Gaosa “How many banana trees of Motu did you destroy, Faaletino?” to which he (Faaletino) answered “Only four banana trees of Motu.” Counsel Gaosa then asked Faaletino “How many pandanus plants?” to which he replied “No pandanus plants of himself (meaning Motu’s) only those of Talaimatai.” We think that this answer of Faaletino clearly admits by implication that he cut the pandanus plants, but that he claims they belonged to Talaimatai and not to Motu. We think the evidence as a whole shows that while they were planted 19 years ago by Motu’s now father-in-law, nevertheless the right to the produce from the plants had been given by the father-in-law, a member of the Talaimatai Family, to Motu and that this right was Motu’s property at the time of their destruction. The pandanus plants will come up again, their roots not being destroyed.
Faaletino admitted on the appeal that he cut down two long coconut trees. He claimed that they were on Faumuina land in the care of Tautolo (Tautolo is Faaletino’s matai) but we believe that the weight of the evidence is to the effect that they were on the boundary between such Faumuina land and Talaimatai land. Talaimatai is the matai of Motu’s wife. He is living with his wife in the Talaimatai Family. We believe from the evidence that Motu had the right to the fruits of these two .trees as far as Talaimatai could assign it to him and that he was, therefore, damaged by their destruction. Being on the boundary line the trees would be “the common property of both, whether marked as a boundary or not...” 1 Corpus Juris 1233. We believe from the evidence that these trees were marked with “X” ’s as is the Samoan custom, to indicate that they were boundary-line trees.
*502We find from the weight of the evidence that defendant Faaletino destroyed 4 banana plants belonging to Motu; also 40 pandanus plants from which Motu had the right to the produce, and 2 boundary-line coconut trees from which Motu had the right to take one half the fruits.
It is our conclusion from the evidence that the damage suffered by Motu as a result of the wrongful acts of Faaletino amounted to $18.00.
ORDER
It is ORDERED that the judgment entered in District Court No. 2 be modified so as to provide that Faaletino shall pay to Motu $18.00 plus $2.00 costs, to be paid as follows: $5.00 on Jan. 1, 1956; $5.00 on Feb. 1, 1956; $5.00 on Mar. 1,1956 and $5.00 on Apr. 1,1956.
Costs in the High Court in the sum of $6.00 are hereby assessed aganst Faaletino, the same to be paid within 45 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485255/ | OPINION AND ORDER OF AFFIRMANCE
MORROW, Chief Justice
This is an appeal from a decree of the Trial Division of the High Court awarding the matai title Tiumalu of Fagatogo to appellee Taimane.
The ground of appeal set out is that the trial court erred in its finding that Taimane prevailed over Faamao on the issue of the “value of the holder of the matai name to the Government of American Samoa” with the result that the title was awarded to the appellee instead of to the appellant. The finding that Taimane would be of greater value to the Government as the holder of the name than would Faamao was a finding of fact.
The statute governing the powers of the Appellate Division on appeal- in civil cases reads'as follows: “The Appellate Division of the High Court on appeal . . . shall have power to affirm, modify, set aside, or reverse the judgment or order appealed from or reviewed and to remand the case with such directions for a new trial or for the entry of judgment as may be just. The findings of fact of the Trial and Probate Divisions of the High Court in cases tried by them shall not be set aside by the Appellate Division of that court unless clearly erroneous, but in the case of appeals from the district courts the Appellate Division of the High Court may review the facts as well as the law. . . .” Section 213 of par. 10 of Amendments, Nos. 11-59,1952 to the A. S. Code. Under the statute the decree (a decree is a judgment) appealed from must be affirmed unless the Appellate Division finds that the finding of fact by the Trial Division was “clearly erroneous.”
It was argued before us that age brings respect and that, therefore, Faamao, being 62 years of age, would be more valuable to the Government as the matai than would Taimane who is 49. There are many matais in American Samoa much younger than 49; and they are the matais of Samoan families who could easily have selected old men *505from their membership, but did not because they believed that the younger men would make the better matais. Age and ability do not necessarily go together; neither do youth and inability. There are governors of states in the United States under 50. Theodore Roosevelt became the President of the United States when he was 43. True, age may bring respect in Samoa as it does elsewhere but many people, including many matais, under 49 are high respected. The very distinguished counsel who made the argument for appellant Faamao is only 50 (one year older than Taimane) at the present time, yet he has been a distinguished and respected matai for many years. He was Speaker of the House of Representatives and later President of the Senate before he was 49. He was selected by Samoans for those positions, and he would not have been selected unless he had commanded their respect; their highest respect in fact. All of which proves that a person under 50 may be respected in Samoa as well as a person over 50.
True the lower court found that Faamao prevailed over Taimane on the issue of forcefulness, personality and capacity for leadership and it is apparent that usually the candidate who prevails on this issue will make the better matai and be of the most value to the Government. But this is not always the case. The court found that Faamao prevailed over Taimane on this issue by a narrow margin only. It also found that it had been the custom in the Tiumalu Family for many years to alternate the mataiship between Taimane’s branch and Faamao’s branch and that Faamao’s branch had had the last holder of the title (Tiumalu Male, who was Faamao’s brother) and that the attempt by Faamao ,to get the title for himself in violation of the practice had caused much bitterness toward him on the part of the people in Taimane’s branch. The Court stated that it believed from the evidence that even though *506Faamao, if awarded the title, might be able to unify the family on the surface “yet the underlying discord because of the feeling that it is Taimane’s branch’s turn to have the title” would “not disappear.” The lower court also believed from the evidence that Taimane was “a kind woman” and could easily “win the good will of all the Family, even the good will of Faamao himself.” Then the Court said that, “We .think that she (Taimane) can unify the Family more readily than can Faamao because of the circumstances of this case.” And it further said, “We think from the evidence that Taimane, who is much nearer the prime of life than is Faamao, will in the long run be of greater value to the Government as .the holder of the Tiumalu title than would Faamao. We hold that Taimane prevails over Faamao on the fourth issue.”
It is obviously better for the Government for a Samoan family to have a matai who can serve for many years than to have a matai who can serve for only a few years. A vacancy in the title frequently causes trouble in a Samoan family just as it has this time in the Tiumalu Family. However, this is the first time in the history of the Tiumalu Family that the Court has had to determine who shall be the matai.
We cannot say in the light of the evidence that the finding of fact by the Trial Division that Taimane would be of more value to the Government as the holder of the Tiumalu title than would Faamao was “deary erroneous.” It is our opinion that upon the evidence such finding was not “clearly erroneous” and we so hold.
While it was not set out as a ground for appeal, reference was made by appellant’s counsel in his argument to the statement of the Trial Division in its opinion that, “It has been the practice for many years in the Tiumalu Family to alternate the matais between Taimane’s branch and Faamao’s branch.”
*507Counsel argued that this statement would prevent future Tiumalus from being selected from other branches of the Family than these two, and that in view of this a rehearing of the case would “give this family (we presume counsel meant the other branches of the family) an opportunity to be protected from being cut off absolutely forever.” He intimated that members of the other branches feared that they would be cut off.
We think fear by a part (the branches other than Taimane’s and Faamao’s) of the Family of being “cut off absolutely forever” is groundless. The title belongs to all branches of the Tiumalu Family, not just to Taimane’s branch and Faamao’s branch. Regardless of what the practice has been in the past with respect to alternating the mataiship between those two branches, the Family can change the practice at any time it sees fit to do so. By filing an objection to Taimane’s being registered as the holder of the title, Faamao tried to change the practice. If he regards the practice as binding, why then did he try to change it? Of course when the Court awards a matai title under Sec. 933 of the Code it is not bound by any prior practice of the family, but only the statute. A practice is not a contract. There was no intimation in the Trial Division’s opinion that there was a binding contract within the Tiumalu Family to give the title to a member of Taimane’s branch and then to Faamao’s, and so on alternating. Furthermore any such contract, even if it existed, could not possibly be binding upon future members of the Family. The members of this generation could not make a contract binding on unborn members of future generations. The title belongs to the whole of the Tiumalu Family, .to all the branches, not just to Taimane’s branch and Faamao’s branch. The next time there is a vacancy in the title, the Family can bestow it on any eligible member regardless of what branch he belongs to, whether to Faamao’s, Taimane’s or one of the other *508branches. It is only when there are rival claimants for the title and the mataiship must be decided by the court that the family itself is unable to bestow the title. In such case the court must make the decision in accordance with the provisions of Sec. 933 of the A. S. Code, as amended.
It should not be forgotten that a matai title belongs to all the family, not to any particular branch or branches. Neither does it belong to the matai himself. He is merely the holder of it for the time being, and when a vacancy occurs the family can, as above stated, bestow the title upon any eligible person they wish to regardless of any prior practice.
Normally, we would not have noticed the statement of counsel to the effect that members of the Tiumalu Family belonging to branches other than Taimane’s and Faamao’s feared that the decision of the Trial Division might cut them off from the mataiship in the future, this matter not being set out as a ground of appeal. However, under the circumstances we thought that they should be assured that the decision would have no such effect.
ORDER
It is ORDERED that the decree of the Trial Division awarding the title Tiumalu of Fagatogo to Taimane be and the same is hereby affirmed.
Costs in the sum of $12.50 are hereby assessed against Faamao, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
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