MAUSA MALEPEAI, LIUA
TAIFANE, and MAFINI MAUGA MAUGALEO`O, for themselves and on behalf of the SAVE
FAMILY of Leone, Plaintiffs,
v.
LEONE CATHOLIC PARISH and
DOES 1 through 10, exclusively, Defendants.
______________________________
ERNEST G. REID for himself,
MAUDE REID, THERESA ROTTER, MARIE STILLWELL, JOSEPH REID, RICHARD REID, PAUL
REID, JAQUES REID, and HECTOR REID, Intervenors.
High Court of
Land and Titles Division
LT No. 21-99
January 20, 2000
[1] Under A.S.C.A. §
43.1301(j), a preliminary injunction must be grounded on findings that (a)
there is a substantial likelihood that the applicant will prevail at trial on
the merits and obtain a permanent injunction against the opposing party, and
that (b) the applicant will suffer great or irreparable harm before a full and
final trial can be held on whether a permanent injunction should issue.
[2] Under A.S.C.A.
§ 43.0210, due registration notices a land title to the world; absent
actionable fraud or other legal basis to vacate a registration, the registered
title is valid as against all persons subsequently dealing with the same land.
[3] Where a seawall benefits
all parties in a land dispute, and the presence of a trench and construction
materials and a planned monument and park do not create great or irreparable
harm, and where delay of a project will likely increase costs, a preliminary
injunction will not be issued.
[4] Under A.S.C.A. §
43.0304, the court is authorized to issue appropriate interim orders in land
actions, and where there are prospects of confrontational episodes between the
parties, they
may be mutually enjoined from harassing the other side during the pendency of
the action.
[5] Under A.S.C.A. § 43.0302
(a), mediation proceedings and the[4ASR3d266]
issuance of a certificate of
irreconcilable dispute are jurisdictional prerequisites to judicial
determination of controversies relating to communal land.
Before
Counsel: For Plaintiffs, Deanna
Sanitoa
For
Defendants, Marie Lafaele
ORDER CONCERNING EVIDENCE AT
TRIAL, DENYING PLAINTIFFS’ APPLICATION FOR PRELIMINARY INJUNCTION, ISSUING
INTERIM ORDERS, AND STAYING ACTION UNTIL FILING OF CERTIFICATE OF
IRRECONCILABLE DISPUTE
On January 6 and 12, 2000,
the Court heard the application of plaintiffs Mausa Malepeai, Liua Taifane, and
Mafini Mauga Maugaleo`o (collectively “the Save family”) for a preliminary
injunction preventing defendant Leone Catholic Parish (“the church”) and
unnamed defendants from trespassing and constructing improvements on the land
at issue. At the January 12 hearing, Ernest G. Reid, Maude Reid, Theresa
Rotter, Marie Stilwell, Joseph Reid, Richard Reid, Paul Reid, Jaques Reid, and
Hector Reid (collectively “the Reid family”) were permitted to intervene in
this action. We viewed the land on January 10.
A. Admission of Hearing Evidence at Trial
Based upon counsel’s opening
statements, we ascertained that the core issue is ownership of the land at
issue. Thus, pursuant to T.C.R.C.P.
65(b), we initially consolidated the preliminary injunction hearing with the
trial. However, in the absence of the jurisdictional certificate of
irreconcilable dispute, as discussed further below, we will modify that order. The hearing and trial proceedings will not be
consolidated. Nevertheless, in accordance with Rule 65, the evidence received
at the hearing that would be admissible at trial will become part of the trial
record and need not be repeated during the trial.
B. Preliminary Injunction
[1] Under A.S.C.A. §
43.1301(j), a preliminary injunction must be grounded on findings that (a)
there is a substantial likelihood that the applicant will prevail at trial on
the merits and obtain a permanent injunction against the opposing party, and
(b) the applicant will suffer great or irreparable harm before a full and final
trial can be held on whether a permanent injunction should issue.
Based on the evidence
presented, we will deny the plaintiffs’ request for [4ASR3d267] preliminary
injunction. The land at issue is seaside
property in Leone. On May 16, 1991, land, which included the land at issue, was
registered as the Save family’s communal land.
The validity of this registration is a legitimate question in view of
the apparent absence of the Save sa`o’s documented concurrence in
the registration.
More important for immediate
purposes, however, on October 26, 1896, title to approximately nine acres,
which included the land at issue, was vested in the French Roman Catholic
Mission as freehold land of record by Court Grant No. 389, issued by the
Supreme Court of Samoa. The title is
presently, by inference, in the Roman Catholic Diocese of Pago Pago.[1] The vast
majority of the nine acres lies across the road from the land at issue and
extends inland. The house of worship of the church in Leone is located across
the road directly from the land at issue.
[2] Due
registration notices a land title to the world; absent actionable fraud or
other legal basis to vacate a registration, the registered title is valid as
against all persons subsequently dealing with the same land.[2] See
A.S.C.A. § 43.0210; Ifopo v.
Siatu`u, 12 A.S.R.2d 24, 26 (App. Div 1989). Nothing presently in evidence provides any
legal basis to set aside the registration.
There is also other evidence that reinforces the
church’s title claim. For example, in 1924, the Save family leased land
immediately northwest of the land at issue.
This leased land is also part of the Save family’s 1991 title registration.
The survey of the leased land acknowledges the church’s ownership of the land
at issue. We also take judicial notice
of PR No. 9-66, probating the estate of Richard Frederick Reid. The estate included land immediately
southeast of the land at issue. In that
proceeding, the land at issue was again identified as the church’s land.
Thus, the Save family has not met their burden of
establishing by a [4ASR3d268] preponderance
of the evidence a likelihood that they will prevail at the trial on the merits.
The church is presently implementing plans to erect a
monument on the land at issue to commemorate the church’s arrival in Leone
about 135 years ago and to develop the entire parcel into a small park
area. The monument will be located near
the cross that the church placed on the land many years ago. The cross memorializes a disease epidemic
occurring about 1912. So far, the church
has constructed a seawall to protect the eroding shoreline, dug a trench along
the westerly side, and placed various construction materials on the land. A drainage pipe will be placed in the trench
by the American Samoa Government’s Department of Public Works to correct a
water accumulation problem across the road adjacent to the land. The church expects to construct a wall above
the pipe, extend the wall at various heights along the roadside and bay side of
the land, and install seating areas for visitors. The remainder of the land will be a
maintained grass area.
[3] This
project completion is scheduled during the coming Easter season. Delay caused by this action, or presumably
other presently unforeseen events, will probably increase the project
costs. The more important consideration
in this case, however, is any serious harm to the Save family and the Reid
family resulting from the church’s project.
All parties will benefit rather than be injured by the seawall. The planned monument and park do not
constitute great or irreparable immediate harm.
The immediate presence of the trench and construction materials also
does not create great or irreparable harm.
Thus, the Save family has also not met their burden of
establishing by a preponderance of the evidence great or irreparable harm.
Accordingly, there being no legal basis to enjoin the
church and unnamed defendants from proceeding with the church’s ongoing project
on the land at issue, we will deny the preliminary injunction sought by the
Save family. The church should, of
course, understand the risk it takes if it chooses to continue with the project
during the pendency of this action.
Should the church ultimately lose all or some part of the land at issue
by this action to either the Save family or the Reid family, or both families,
the church may be required, at its expense, to remove the current improvements,
or the offending portion of those improvements, from the land at issue and
restore it to its state before the project began. Alternatively, title to the
improvements, or the offending portion of them, may become vested in the Save
family or the Reid family, or both families.[4ASR3d269]
C. Interim
Orders Under A.S.C.A. § 43.0304
[4] We are
authorized by A.S.C.A. § 43.0304 to issue appropriate interim orders in land
actions. We are concerned about the
prospects of confrontational episodes between the parties while this action is pending. Therefore, we
deem it appropriate to mutually enjoin each side from harassing the other sides
in any manner during the pendency of this action. We further deem it appropriate to enjoin the
Save family and the Reid family from interfering in any manner with the church
and the unnamed defendants in the construction of the church’s current project
on the land at issue. Finally, in
fairness, we will enjoin the church and the unnamed defendants from extending
any part of its current project onto, or from conducting any activities related
to the project on, the adjacent lands of the Save family or the Reid family
beyond the boundaries of the land claimed by the church.
D. Stay of
Further Proceedings
[5] Under
A.S.C.A. § 43.0302(a), mediation proceedings before the Secretary of Samoan Affairs
or his deputy and the issuance of a certificate of irreconcilable dispute by
one of those officials are prerequisites to judicial determination of
controversies relating to communal land.
This requirement is jurisdictional, except for purposes of issuing
pretrial orders under A.S.C.A. § 43.0302(b) or § 43.0304. See Moeisogi
v. Faleatine, 5 A.S.R.2d 131,
132-33 (Land & Titles Div. 1987).
Under appropriate circumstances, however, the action may be stayed,
rather than dismissed, pending compliance with this jurisdictional
mandate.
The Save family claims that the land at issue is the
Save family’s communal land, and it appears that the statutory mediation
proceedings have not yet taken place.
Since we deem that interim orders are appropriate, a stay of further
proceedings, except as to proceedings relating to interim orders, is proper in
this action, until and unless the mandated certificate of irreconcilable
dispute is filed.
Orders
1. In the event of trial to resolve this controversy,
all evidence received at the preliminary injunction hearing that would be
admissible at trial will be part of the trial record and need not be repeated
during the trial.
2. The Save family’s request for a preliminary
injunction is denied.
3. During the pendency of this action, the Save family
and the Reid family, and their officers, agents, servants, employees, and
attorneys, and those persons in active concert or participation with them are
enjoined [4ASR3d270] from directly
or indirectly harassing the church and the unnamed defendants in any manner,
and from interfering in any manner with the church and the unnamed defendants
in the construction of the church’s current project on the land at issue.
4. During the pendency of this action, the church and
the unnamed defendants, and their officers, agents, servants, employees, and
attorneys, and those persons in active concert or participation with them are
enjoined from directly or indirectly harassing the Save family or the Reid
family, and members of those families in any manner, and from extending any
part of the church’s current project on the land at issue onto, or from
conducting any activities related to the project on, the adjacent lands of the
Save family or the Reid family beyond the boundaries of the land claimed by the
church.
5. Except as to proceedings related to interim orders,
further proceedings in this action are stayed unless and until a certificate of
irreconcilable dispute is filed.
It is so ordered.
**********
[1] At some point during the course of this action, the church should ensure that the church as the defendant is named correctly and explain the process by which the Diocese formally succeeded to the title.
[2] The last evidence presented on January 12 were uncertified copies of Court Grant No. 430, issued by the Supreme Court of Samoa and dated November 26, 1896, vesting title to land in Leone named “Fagasaua’ in Paul H. Krause. Court Grant No. 430 confirms Edward Ripley’s conveyance of this land to Krause by deed dated October 9, 1896. The Save family calls the land at issue ‘Fagasaua.” Based on the descriptions in Court Grant No. 430 and Court Grant No. 389, we cannot tell without a professional surveyor’s opinion whether these two court grants relate in any way to the same land. Thus, the impact of this evidence, if any, remains to be seen. The evidence is not cause, however, to alter the decisions in this order.