PEMERIKA L. TAUILIILI, Plaintiff,
v.
PAU FALEATUA, MUA FALEATUA, PATRICIA FALEATUA aka
PATRICIA SALAS, and DOES 1-20, Defendants.
High Court of
Land and Titles Division
LT No. 02-99
September 12, 2000
[1] When a common boundary dispute arises, the deed
controls if it is clear and unambiguous.
[2] If a deed is ambiguous, the intent of the parties
at the time of the original grant controls.
[3] When a deed contains ambiguities regarding the
location of boundary lines, the court should attempt to harmonize all words and
descriptions used in the grant and consider the surrounding circumstances.
[4] In determining the boundary line when the calls
are inconsistent, priority is to be given to calls in the following order:
natural objects or landmarks first, then artificial monuments, then adjacent
boundaries, and then courses and distances.
[5] A physical object is only a monument to be
considered in determining boundaries when it is described in the deed
description.
[6] Quantity of land is considered a relatively
unreliable indicator, and should be resorted to only after courses and
distances.
[7] Where parties submitted alternate surveys
generated by different surveyors, Court determined survey which referenced
monuments on the common boundary in the grants to be superior to survey that
utilized monuments located outside said boundary.
[8] A party may definitively establish a boundary line
by acquiescence if the acquiescence continues for long enough.
[9] Where plaintiff had maintained hedge on property
boundary for over 25 years, defendants acquiescence to the shrubbery during
such time sufficiently evidenced the parties’ intention as to the true common [4ASR3d316] boundary.
[10] Where party’s interpretation of order regarding
time in which to remove home from land was reasonable and landowner’s actions
were consistent with such interpretation, party would not be held in contempt
despite the fact that Court intended a significantly shorter time period.
[11] A party harmed as a result of a trespass is
generally entitled to damages for: (1) diminution in value; (2) loss of use of
the land; and (3) discomfort and annoyance to the occupant of the land.
Before
Counsel:
For Plaintiff, Gwen F. Tauiliili-Langkilde
For Defendants,
Asaua Fuimaono
Opinion and Order
This action arises out of a boundary dispute between
plaintiff Pemerika L. Tauiliili (“Tauiliili”) and defendants Pau Faleatua (“
Tauiliili seeks injunctive relief requiring the
Faleatuas to remove their fence and other property and preventing their further
trespass on his land, and payment of compensatory and punitive damages. The Faleatuas counterclaim for injunctive
relief preventing Tauiliili from further trespass on their land, for payment of
compensatory and punitive damages, and to hold Tauiliili in contempt for
violating this Court’s order in Faleatua
v. Tauiliili, 19 A.S.R.2d 122 (Land & Titles Div. 1991).
On March 4, 1999, upon the parties’ stipulation, the
Court issued a preliminary injunction that essentially maintained the status
quo pending final judicial disposition.
Trial was held on September 13, 16, and 17, and October 14, 15, and 19,
1999. Final written arguments were
scheduled. Tauiliili’s argument was
submitted on November 30, 1999, and the Faleatuas’ argument was submitted on
December 28, 1999.
Discussion
A. Lands
Involved
The lands at issue are subdivided portions of a larger
land area, [4ASR3d317] approximately
11.789 acres, known as “Leavapui Lua” in the
To facilitate the discussion, Appendix A has been
prepared as a not-to-scale diagram of the lands at issue and other relevant
subdivided portions. We will identify
the subdivided portions by the lot letters assigned in the surveys in
evidence. In the order they were
chronologically created, the subdivided portions are as follows:
1. In November
1972, Lutali conveyed 0.5 acre, Lot E, to Pastor Suaesi Tagaloa. The warranty deed was recorded with the
Territorial Registrar on December 20, 1972.
2. On May 15,
1973, Lutali conveyed 0.5 acre, Lot J, to Patricia. The warranty deed was recorded with the
Territorial Registrar on or shortly after May 15, 1973.
3. Also on May
15, 1973, Lutali conveyed 1.0 acre,
4. Again on May 15, 1973, Lutali conveyed 0.5 acre,
Lot V, to Sydney and Anne Glenister (together “the Glenisters”). The warranty deed was recorded with the
Territorial Registrar on July 17, 1979.
5. On October
30, 1973, Lutali conveyed 0.5 acre, Lot S, to Saunoa Pene Choi and her two children. The warranty deed was recorded with the
Territorial Registrar on or about April 14, 1974.
6. On June 22,
1987, Lutali conveyed 0.649 acre (“Lot B”) to
7. On May 29,
1998, Susana L. Lutali, Lutali’s wife, leased 0.312 acre (“Lot X”) to John E.
Suisala and Josie G. Lutali. The lease
was recorded with the Territorial Registrar on June 3, 1998.
The physical locations of the subdivided portions
relative to each other are as follows:
1. Lot X, Lot
S, Lot V, Lot A, and Lot B are located in a row from
2. Lot J is
bounded by
3. Lot E lies
on the other side of an access road directly westward of
4. The
boundaries on the northern side of Faleatuas’ Lot B and Lot J also run along a
straight line from the eastern side of Lot B to the western side of Lot J and
coincide with the boundary on the southern side of Tauiliili’s Lot A (“the
common boundary”).
The correct location of the common boundary is the
parties’ essential dispute.
B. Early
Corrective Action
After Tauiliili acquired Lot A and before the
Glenisters acquired Lot V, Tauiliili learned that the boundary on the eastern
side of
C. The First
Judicial Controversy
Despite Lutali’s continuing ownership of Lot B, both
In 1990,
Tauiliili claims that
In any event, the parties did not genuinely negotiate
a sale of the FEMA house until 1996 when Patricia was visiting. However, they did not reach an agreement, and
Tauiliili continued to use the FEMA house and his other improvements on Lot
B. The Faleatuas did nothing substantial
to prevent this use, until the present controversy fully erupted in 1999.
D. The
Present Judicial Controversy
Unintentional preludes to the present controversy
include:
(a) the survey of Lot J in December 1972 (the
“original Lot J survey”) by Mulivanu P.A. Tuaolo for the purchase of that lot
by
(b) Aiumu’s survey of
(c) Aiumu’s survey of Lot B in April 1987 (“the
original Lot [4ASR3d320] B survey”)
for the purchase of that lot by
(d) the resurvey of Lot B in March 1991 (“the first
Lot B resurvey”) by Semiti Tauai (“Tauai”) prepared for the 1990 litigation
between the parties (Exhibits le and 4); and
(e) the resurvey of Lot A and a survey of a 0.125 acre
portion of Lot B around the FEMA house, designated Lot lA, in December 1996
(“the first Lot A resurvey”) by L.P. French (“French”) for Tauiliili’s possible
purchase of Lot 1A from the Pau and Mua (Exhibit 2).
In 1997, Mua was convicted of embezzlement and ordered
to make restitution of $52,000. See
Am. Samoa Gov’t v. Faleatua, CR No. 29-97, slip op. (Trial Div. Oct. 20,
1997). The Faleatuas contemplated sale
or lease of Lot B, or portions of it, to help Mua comply with the order. They considered a sale of the land around the
permanent house to Tauiliili as one option, or his removal from Lot B to pursue
other options. The parties, however,
were unable to reach agreement on the size of the area to be sold and the
purchase price.
In February 1999, the Faleatuas began to install a
fence along the common boundary between Tauiliili’s
Two additional resurveys to ascertain the common boundary
between the Faleatuas’ property and Tauiliili’s property were made in
preparation of the trial of this action:
(a) Aiumu’s resurvey of Lot J and Lot B in August or
September 1999 for the Faleatuas (“the Faleatuas common boundary resurvey”)
(Exhibit 7); and
(b) French’s resurvey of
1. The Boundary
Issue[4ASR3d321]
Again, to simplify the discussion, we will identify
relevant corners of the lots surveyed by the corner numbers and letters
assigned in the surveys in evidence.
Corners with numbers are as shown on the first
The original lot surveys. The original
Lot J survey, the original Lot A survey, the original Lot B survey, and the
deeds each survey supports describe the boundary between Tauiliili’s Lot A and
the Faleatuas’ Lot J and Lot B in the same manner (“the common boundary”). The common boundary is a straight line with
corner 1 or 1A at the west end (shared by Lot A and Lot J), corner 4 or 4A at
the east end (shared by Lot A and Lot B), and corner 5 or 5A at a midpoint
(which is also the northeast corner of Lot J and the northwest corner of Lot
B).
The parties agree that when the original Lot J survey
and the original
The first
The first Lot A resurvey. When French conducted the first
find monuments at corner 1, where the southwest corner
of Lot A coincides with the northwest corner of Lot J, or at corner 2, the
northwest corner of
The boundary along the eastern sides of
French also testified, and his notes on the first
Monuments at two corners of Lot E are also significant
to this discussion. Lot E lies west of
In this manner, French reconstructed the boundaries of
Lot A for the first
The Faleatuas’ common boundary resurvey. In August or
September 1999, Aiumu prepared the Faleatuas’ common boundary resurvey (Exhibit
7) for trial of this action. Aiumu
identified on the Faleatuas’ common boundary resurvey four monuments that he
found in the field. Using the first Lot A resurvey designations, these
monuments were shown on the Faleatuas’ common boundary resurvey and located at:
corner 8, called the “
Aiunu reconstructed the common boundary by connecting
a straight line from corner 10 to the point intersecting the straight-line
boundary between corner 3 and corner 8 at a right angle. He then placed a new monument at the right
angle junction to identify the northeast corner of Lot B and the southeast
corner of
Aiumu also stated in the Faleatuas common boundary
resurvey that the distance of the eastern boundary of Lot B shared with the
airport measured 251.85 feet and was recorded at 255.49 feet in the original
Lot B survey, later in the first Lot B resurvey done by Tauai in 1991. However,
Aiumu did not actually measure this distance when he conducted the Faleatuas
Lot B resurvey in August or September 1999. Rather, he took this measurement from
the first
The Tauiliili common boundary resurvey. In September
1999, after Aiumu did his resurvey work, French prepared the Tauiliili common
boundary resurvey (Exhibit 3) for the trial.
He found the monuments that, in 1996, he: placed at corner 2A; found at
corner 3A, corner 8A, corner 10, and corner 11; found and replaced at corner
5A; and found at the POL. He also found
the monument that Aiumu, when conducting the Faleatuas common boundary resurvey
in 1999, placed to mark the coinciding southeast corner of Lot A and northeast
corner of Lot B near French’s corner 4A.
The monuments that French placed at corner 1A and corner 4A in 1996 were
missing. Only some remnants of the
corner 4A monument were visible.
E. Analysis
1. The Boundary Dispute
[1-3] When a
common boundary dispute arises, the deed controls if it is clear and
unambiguous. Koennicke v. Maiorano,
682 A.2d 1046, 1053 (
French and Aiumu utilized different monuments in their
resurveys to determine the location of the common boundary, leading to
differing conclusions as to its proper location. French used two monuments, one at corner 5
and one at the POL near corner 4, to determine the common boundary. The POL monument was likely the monument
demarcating corner 4 after the correction in 1973 for the encroachment of the eastern
boundary of
Both French’s and Aiumu’s resurveys match some
descriptions in the grants but do not match others. French’s first
[4-6] In
determining the boundary line when the calls are inconsistent, priority is to
be given to calls in the following order: natural objects or landmarks first,
then artificial monuments, then adjacent boundaries, and then courses and
distances. 0.08246 Acres of Land,
888 F. Supp. at 705-06 (general rule of construction used to create boundaries
consistent with intention of parties); Bollinger v. Hollingsworth, 739
P.2d 962, 964 (
[7] While
the first Lot A resurvey and the Tauiliili common boundary resurvey done by
French and the Faleatuas common boundary resurvey done by Aiumu utilize
monuments in the field, French’s resurveys are superior because they reference
monuments on the common boundary in the grants, rather than any monument
located outside the boundary. Aiumu’s resurvey uses corner 10, a corner not
indicated in the grants of any of the lots at issue. French’s resurvey utilizes the corners
indicated in the grants: corner 5 and the POL monument are described in the grant
[4ASR3d326] of Lot B; corner 5 is
described in the grant of Lot J; and while the POL monument 4 was not utilized
in the grant of
[8-10] The
parties’ long acquiescence to the common boundary along the line made by corner
5 and the POL provides additional support to the finding that this is the
correct boundary. Tauiliili placed
croton along the part of this line abutting Lot J soon after he acquired Lot A
in 1973, and had shrubbery along the boundary until the present dispute arose
in 1999. Patricia has owned Lot J since
1973, but has never objected to this shrubbery until 1999. A clear line of plantings along a boundary
line is strong circumstantial evidence of the boundary. See Faleafine
v. Suapilimai, 7 A.S.R.2d 108, 112 (Land & Titles Div. 1988)
(discussing line of tall coconut trees in itself as well as the parties’
recognition of the line as the boundary). A party may definitively establish a
boundary line by acquiescence if the acquiescence continues for long
enough. Some courts require a set amount
of time, and others simply require a long enough time so that the policy behind
acquiescence is served. See 12 Am.Jur.2d Boundaries § 84
(1985). We do not need to determine
precisely when acquiescence establishes a boundary; it is enough for the
present purposes to state that the Faleatuas’ acquiescence to Tauiliili’s hedge
for over 25 years evidences the parties’ intention as to the true common
boundary.
It appears that the POL monument was inadvertently
placed slightly west of the intended eastern boundary of Lot A and Lot B,
because it does not lie on the straight line between corner 3 of
Locating the corner at corner 4 rather than at the POL
makes the eastern boundary of
In sum, the common boundary, between Lot A on one side
and Lot B and Lot J on the other, properly runs in a straight line, west to
east, from the monument at corner 1 as set by French in 1996, through corner 5
and the POL monument, to corner 4 at the intersection of this line with the
eastern boundary of Lot A and Lot B.
Mutual permanent injunctions preventing further trespasses are
appropriate.
2. Contempt and Damages
In their counterclaim, the Faleatuas assert that
Tauiliili trespassed on their land for approximately eight years by failing to
remove the FEMA house from their land despite an order from the Court in a
previous dispute between the parties. In
that dispute, the Court found that the land on which Tauiliili had the FEMA
house belonged to the Faleatuas.
Faleatua, 19 A.S.R.2d at 126.
In order to prevent the substantial waste that would occur if Tauiliili
removed the FEMA house from the land, the Court ordered the following:
[T]he court strongly urges the parties to seriously
attempt to negotiate a sale agreement of the said house. If such an agreement cannot be achieved, then
Tauiliili shall remove the house and any other property of his on the land
within 60 days or suffer the property to become a part of the realty.
The Faleatuas interpret this order to mean that the
60-day period began to run when the Court’s order was issued on May 30,
1991. If this interpretation is correct,
Tauiliili’s failure to remove the house in this period means that the FEMA
house belonged to the Faleatuas and that Tauiliili wrongfully remained on the
land. Tauiliili, in contrast, argues
that the Court’s order means that the 60-day period for him to remove the FEMA
house did not begin until the parties failed to reach an agreement on the sale
of the house. Under this interpretation,
Tauiliili did not need to remove the house until the parties finally failed to
reach an agreement.
The Court probably intended for the 60-day period to
begin to run immediately rather than to allow the dispute to continue
indefinitely. However, we cannot say that Tauiliili’s interpretation of the
order is [4ASR3d328] unreasonable.
Moreover, the parties negotiated for the sale of the property in 1996 when
Patricia visited
F. Remedies
1. Tauiliili’s Hedge
The Faleatuas destroyed a hedge of croton and other
vegetation on Tauiliili’s land, and Tauiliili is entitled to reimbursement for
this loss. Tauiliili claims losses in the following amounts:
Hedge
of croton $500.00
Citrus
trees 50.00
Breadfruit
trees 50.00
Taamu
plants 20.00
Red
tea leaves 20.00
Top
soil 120.00
Total $760.00
Testimony on this loss was credible, and we find the
total amount to be reasonable. We
therefore set Tauiliili’s compensatory damages against the Faleatuas at
$760.00.
2. Trespass on the Faleatuas’ Land
[11] A party
harmed as a result of a trespass is generally entitled to damages for: (1)
diminution in value; (2) loss of use of the land; and (3) discomfort and
annoyance to the occupant of the land. Letuli,
22 A.S.R.2d at 85 (citing Restatment
(Second) of Torts, § 929(1)). Tauiliili trespassed on the Faleatuas’
land for nine years, but the Faleatuas acquiesced to this trespass. This fact indicates that the Faleatuas did
not sustain much loss of use during this time and did not suffer great
irritation. Furthermore, there is no
evidence of diminution of [4ASR3d329] value. Under the circumstances of this case, an
amount that offsets Tauiliili’s damages for loss of the hedge is the reasonable
measure of the Faleatuas’ compensatory damages against Tauiliili for the
trespass.
3. Punitive Damages
The parties have acted in a downright unneighborly
fashion towards each other. However,
neither side has been guilty of such reprehensible and outrageous conduct that
would establish a basis for punitive damages.
4. The Faleatuas’ Fence
Tauiliili is entitled to have all parts of the fence
installed by the Faleatuas removed from his land.
Order
1. The common
boundary between Tauiliili’s Lot A and the Faleatuas’ Lots B and J runs, from
west to east, from corner 1, through corner 5 and the POL, to corner 4.
2. Tauiliili,
his officers, agents, servants, employees, and attorneys, and those persons in
active concert or participation with them are permanently enjoined from
trespassing on the Faleatuas’ Lot B and Lot J. The Faleatuas, their officers,
agents, servants, employees, and attorneys, and those persons in active concert
or participation with them are permanently enjoined from trespassing on Tauiliili’s
3. Tauiliili
and the Faleatuas are each entitled to damages in the amount of $760.00. However, in view of the offsetting amounts,
neither Tauiliili nor the Faleatuas are required to pay the assessed damages.
4. The
Faleatuas shall, within 60 days after this order issues, remove all parts of
the fence that they erected just prior to this lawsuit that encroach on
Tauiliili’s land as stated in this order.
If the Faleatuas fail to remove the fence, Tauiliili is entitled to
remove it if he chooses to do so and to salvage the materials as compensation
for his cost of removal.
It is so ordered.
[1] While magnetic north was historically used to reference bearings, more modern surveying techniques use celestial north [the North Pole]. Curtis M. Brown et al, Boundary Control and Legal Principles, 46-47 (4th ed. 1995). The modern method was put in place here by the grid system known as the American Samoa Datum of 1962. Some of the inconsistencies in the grants may have occurred as a result of reliance on the pre-1962 surveys of the airport and the differences in the two methods of surveying.
[2] The Faleatuas common
boundary resurvey by Aiumu has this discrepancy as well. However, in preparing this survey, Aiumu
apparently copied this length from French’s first