REAL PROPERTY

Government is entitled to injunction restraining defendants from erecting building on land between sea and Pago Pago highway since this is government land. Luce v. Pila, 3 A.S.R. 127.

Village malae is public land for use of entire village and cannot be claimed as individual or communal land. Lefao v. Malepeai, 4 A.S.R. 111.

Fact Governor advised alleged owner not to build fale on land is evidence of government’s claim of ownership. Lago v. Mageo, 4 A.S.R. 287.

Fales constructed illegally on government property may be property of person building them, and if they are destroyed by Marines, War Damage Claim Commission may recognize claims on destroyed fales without recognizing any claim to land. Lago v. Mageo, 4 A.S.R. 287.

Decision of trial court in awarding land to Government is not against interest of Samoan people since property held by Government is for use and benefit of all people of Samoa. Mageo v. Government, 4 A.S.R. 874.

Freehold land is all those lands included in court grants prior to 1900. A.S.C.A. § 37.0201(b). Vaivao v. Craddick, 14 A.S.R.2d 108.

Action to recover littoral rights taken by the government ninety years ago is barred by the doctrine of laches and by a statute which bars causes of action to recover real property if not brought within twenty years after they accrue. A.S.C.A. § 43.0120(6). Vaivao v. Craddick, 14 A.S.R.2d 108.

American Samoa's "coastal zone management area" is defined as including the entire island of Tutuila, along with all the other islands and all coastal waters and submerged lands for a distance of three nautical miles seaward. A.S.A.C. § 26.0207. Solomona v. Governor of American Samoa, 17 A.S.R.2d 186.

American Samoa's submerged and tidal lands, which are those permanently or periodically covered by tidal waters, belong to the territorial government. Solomona v. Governor of American Samoa, 17 A.S.R.2d 186.

A person cannot convert public land into his own private property by unilaterally and artificially changing its character, nor can he acquire title by offering for registration property legally incapable of private ownership. Solomona v. Governor of American Samoa, 17 A.S.R.2d 186.

A person who does not own the land for which a land-use permit was denied has no standing to raise the question as to whether special enabling legislation was necessary to allow the Governor to promulgate the coastal zone management regulations affecting the rights of private property owners. Solomona v. Governor of American Samoa, 17 A.S.R.2d 186.

The executive branch has the statutory authority to preserve and administer government lands. Solomona v. Governor of American Samoa, 17 A.S.R.2d 186.

§1(2) Cession

At time of cession of Samoa to United States, public property passed to United States Government and not Government of Samoa. Mulu v. Taliutafa, 3 A.S.R. 82.

When Kingdom of Tuimanua came to an end and sovereignty of King passed to United States, pursuant to principles of international law, property owned by King in his capacity as King became, as result of cession, property of United States Government. Mulu v. Taliutafa, 3 A.S.R. 82.

Court has held that land owned by king in capacity as king became property of United States when island was ceded to United States. Lago v. Mageo, 4 A.S.R. 287.

The court is bound by statute and treaty to recognize freehold grants made by the Land Commission of Samoa, which operated in Apia under the supervision of the then-Supreme Court of Samoa, prior to the United States-established government. Willis v. Fai`ivae, 17 A.S.R.2d 38.

§1(3) Eminent Domain

SEE CONSTITUTIONAL LAW § 7(4) – TAKINGS AND JUST COMPENSATION

Where Government condemned land to seaward side of highway, highway marks boundary of Government land. Teo v. Totoa, 2 A.S.R. 243.

Land taken for public highway and earth taken in repairing public highway are for public use and benefit, and taking of land in American Samoa for purpose of securing rock therefrom for use in highway construction and repair is taking for public purposes and when such taking is for just compensation, it does not violate due process of law. Government v. Soliai, 2 A.S.R. 600.

Where there is full hearing on question of value and qualified witnesses testify, court will uphold determination of Board of Arbitrators as to just compensation for condemnation of property. Government v. Soliai, 2 A.S.R. 600.

Government condemned and paid for use of land between highway and Pago Pago Bay by regulation in 1900, and such condemnation vested title in government. Luce v. Pila, 3 A.S.R. 127.

Due Process does not require actual notice to person actually present on condemned land, but only notice reasonably calculated, under all of the circumstances, to apprise interested parties of pendency of action and afford them opportunity to be heard. Government v. Isumu, 4 A.S.R. 141.

Generally, collateral attack on condemnation judgment is only allowed if judgment is alleged to be void and not merely technically defective. Government v. Isumu, 4 A.S.R. 141.

Abandonment of condemned land requires both intent to abandon and act effecting abandonment—mere non-use or misuse of properly condemned land does not create abandonment. Government v. Isumu, 4 A.S.R. 141.

While person can lawfully erect building on his own land, he cannot erect building on land of government without permission, and ordinance forbidding erection of structure on seaward side of public highway indicates land was taken by government at time public highway was condemned. Lago v. Mageo, 4 A.S.R. 287.

Navy commander condemned lands for public highway by issuance of an ordinance in 1900. Lago v. Mageo, 4 A.S.R. 287.

Finding by trial court that Government owned land condemned and appropriated for public use by ordinance was not erroneous. Mageo v. Government, 4 A.S.R. 874.

Where ordinance states land is condemned, land is condemned and appropriated as of date of publication of ordinance. Mageo v. Government, 4 A.S.R. 874.

Where a statute states that the government appropriated a uniform fifteen feet inland from shore for public uses, since such a taking is not overbroad because public uses include utility poles and seawalls as well as roads, the statute should not be narrowly construed to entitle government only to land underlying road since to do so would interfere with government's power of eminent domain as well as ignore the clear language of the statute. Vaivao v. Craddick, 14 A.S.R.2d 108.

Subject to several exceptions, filled-in and submerged coastal lands were transferred for the United States Government to ASG, to be administered in trust for the territory's people. 48 U.S.C. § 1705(a). Anderson v. Vaivao, 21 A.S.R.2d 95.

An action challenging ordinances condemning land for the coastal road was barred by laches when the plaintiff did not file suit until 90 years after the ordinances were enacted. A.S.C.A. § 37.2050. Anderson v. Vaivao, 21 A.S.R.2d 95.

A.S.C.A. § 37.2001(b) does not have retrospective effect. American Samoa Gov't v. Meredith, 28 A.S.R.2d 10.

The plain language of A.S.C.A. § 37.2001(b) restricts it from applying to a condemnation proceeding that occurred before its passage into law. American Samoa Gov't v. Meredith, 28 A.S.R.2d 92.

A.S.C.A. § 37.2001(b), which requires the government to return condemned land if not used for its stated purpose within five years after condemnation, does not have retrospective effect. American Samoa Gov't v. Estate of Fuimaono Tuinanau, 28 A.S.R.2d 187.

§1(4) Leases

Fact lease to Church of private land also included Government land does not deprive Government of its property. Teo v. Totoa, 2 A.S.R. 243.

Fact Government considered paying rents to private person for warehouse on government land does not transfer title to private person. Lago v. Mageo, 4 A.S.R. 287.

While Government can complain if house of pastor is not within dimension required by statute, private party cannot if house is built within land given for this purpose. C.A.S. 17.0106. Muasau v. Pita, 4 A.S.R. 337.

Territorial statute providing for a "legislative veto" of leases of government land did not violate American Samoa Constitution. A.S.C.A. § 37.2030; Rev. Const'n of Am. Samoa art. II §§ 9 & 10. Tuika Tuika v. Governor of American Samoa, 4 A.S.R.2d 85.

A lease between the American Samoa Government and a private party must be in accordance with certain statutory requirements. American Samoa Gov't v. South Pacific Island Airsystems, Inc., 28 A.S.R.2d 74.

Any renewal or extension of a lease for a term 10 years or more requires Fono approval. A.S.C.A. § 37.2030. American Samoa Gov't v. South Pacific Island Airsystems, Inc., 28 A.S.R.2d 74.

In light of its constitutional authority to "protect the lands," the Legislature has a legitimate interest in the oversight and regulation of any land development projects by non-Samoans. This interest is legitimately furthered by requiring that detailed plans be submitted and approved by the Governor before a lease arrangement can go forward. Craddick Dev. Inc. v. Craddick, 28 A.S.R.2d 117.

To become valid, a lease of native land must be approved by the Governor. A.S.C.A. § 37.0221(a). Before the Governor approves any document affecting title to land, it must be reviewed by the Land Commission for recommendations. A.S.C.A. § 37.0203(a). Moetoto v. Tauileva, 28 A.S.R.2d 144.

The Legislature of American Samoa must by statute be given the opportunity to disapprove any lease of the ASG's land for a period of 10 years or longer. A.S.C.A. § 37.2030. Congressional Church of Jesus in Samoa v. A.S.G., 31 A.S.R.2d 122.

The Legislature has 30 days after it receives a lease of ASG land for a period of 10 years or longer to adopt a disapproval resolution under § 37.2030. Any lease subject to legislative review becomes effective only after this 30-day period passes without negative action. Congressional Church of Jesus in Samoa v. A.S.G., 31 A.S.R.2d 122.

For the purposes of A.S.C.A. § 37.2030, the formal distinction between a lease “extension,” which continue an existing lease, and a lease “renewal,” which create an entirely new lease is irrelevant when a lessee has unilateral power to continue the leasehold. Unilateral options can give a lessee complete and exclusive control over the use of land, whether they are "extensions" or "renewals," for prolonged periods without legislative review, something that § 37.2030 is designed to prevent. Congressional Church of Jesus in Samoa v. A.S.G., 31 A.S.R.2d 122.

Where, in addition to entry into possession under an invalid lease, rent is paid and accepted under the lease, a periodic tenancy is created. By the payment and acceptance of such rent, the parties have given further indication of their intention to be bound by the invalid lease, and the periodic tenancy provides a measure of security of their expectations. A periodic tenancy was terminable at the will of either the lessor or the lessee with one month’s notice. Congressional Church of Jesus in Samoa v. A.S.G., 31 A.S.R.2d 122.

Even if lease options are not explicitly mentioned in A.S.C.A. § 37.2030, the legislature’s mandatory review of leases of government land which go beyond 10 years include leases established for nine years with successive unilateral options for additional nine year terms. Congressional Church of Jesus in Samoa v. A.S.G., 31 A.S.R.2d 183.

§ 2 Communal Lands

§2(1) Public Policy

Court favors distribution of land equally among matais rather than having large tracts of land owned by individual Samoans. Satele v. Afoa, 1 A.S.R. 467.

Court recognizes Samoan custom that lands occupied by matai are held for benefit of family and that war damage claim brought by matai on lands is for benefit of family. Leasiolagi v. Fao, 2 A.S.R. 451.

It has been uninterrupted policy of Untied States Government since beginning of administration to protect Samoan communal lands for benefit of Samoans. Haleck v. Lee, 4 A.S.R. 519.

Constitution of 1960 shall not be construed to limit power of Government to provide for general welfare of people, including power of Governor to approve leases regarding the alienation of lands. (Const., Art. V, Sec. 8) Haleck v. Lee, 4 A.S.R. 519.

Law dealing with alienation of communal or native lands in American Samoa is constitutional and law requiring approval of Governor on recommendation of Land Commission for alienation of leases of lands is constitutional and was in effect at time of execution of lease agreement in dispute. Haleck v. Lee, 4 A.S.R. 519.

Diminution of family land base by parceling out communal lands to individuals is not keeping with Samoan custom of retention of land in family for support and maintenance of family under control of family head. Aumoeualogo v. Mamoe, 4 A.S.R. 742.

There is a strong presumption that land in American Samoa is communal rather than individual property. Leota v. Faumuina, 4 A.S.R.2d 11.

Where a matai title has been registered as such for over eighty years, its holder is listed as a matai of the village in a forty-year-old document signed by various other matai of the village, and the leading matai of the village testifies that the holder of the title in question is regarded as a matai within the village and sits in the village council, court will conclude that the title is a matai title whose holder can own communal land. Avegalio v. Leatumauga, 9 A.S.R.2d 96.

The only ways communal land can become individual land are by adverse possession for thirty years or by compliance with the statutory procedures for alienation of communal land, including the approval of the Land Commission and the Governor. A.S.C.A. §§ 37.0120, 37.0201 et seq. Ava v. Logoai, 19 A.S.R.2d 75.

Although land use regulations impact activities on land and the manner in which an owner or possessor deals with land, they do not divest title interests within the meaning of Article I, § 3, the Bill of Rights of the American Samoa Revised Constitution of 1967, and therefore, are not subject to the double enactment requirement of Article I, § 3. Congressional Church of Jesus in Samoa v. A.S.G., 31 A.S.R.2d 122.

§2(2) Evidence of Communal Ownership

The best evidence of communal ownership of land is shown by family exercising acts of authority over the land such as clearing, planting, cultivating and building upon the land. Tiumalu v. Mailo, 1 A.S.R. 434.

Where two families have buried their members on same piece of land, court will award that land to them in common and each will have equal right to use land without interference from the other. Samia v. Tapuitea, 1 A.S.R. 552.

Fact persons from another family are buried on land may not be evidence of ownership since they may have married into family possessing land. Salavea L. v. Ilaoa, 2 A.S.R. 15.

Where communal land is offered for registration, registrant has burden of proving he has title to land. Liu v. Fao, 2 A.S.R. 41.

Evidence supports fact that disputed lands were jointly owned by two families at time of cession. Leapaga v. Taumua L., 2 A.S.R. 56.

Evidence sustains that clearing of land from bush and cultivation established ownership of land in family and not in individual, who occupied it with permission of matai. Fiailoa v. Meredith, 2 A.S.R. 129.

Evidence supports finding that disputed land is communal family land, that land as assigned to talking chief for use in accordance with Samoan custom and that objector was given possessory right in land. Faataliga v. Fano, 2 A.S.R. 376.

Evidence supports that land is communally owned by family who first occupied it and claimed ownership. Amituanai v. Sauitufuga, 2 A.S.R. 485

In absence of any satisfactory evidence as to whether person claimed land on behalf of himself or his family, court must be guided by presumption that she claimed it as family land on behalf of her clan. Toomata v. Vea, 2 A.S.R. 564.

Under Samoan custom, matai is buried on family lands, and burial of matai is evidence of ownership. Togia’i v. Aumua, 3 A.S.R. 3.

Deed to Government of portion of land in question, by grantors “for members of their families” is an admission by grantors that land is communal and not individually owned. Ene v. Moega, 3 A.S.R. 451.

Where matai filed war damage claim describing himself as owner in capacity as matai, evidence supports that land, regarding which claim was filed, is communally owned and not individually owned by matai. Muagututia v. Faimalo, 4 A.S.R. 237.

Court finds weight of evidence indicates that applicant as a family member cleared land, occupied it, put in plantations and claimed it as communal family land. Fe’a v. Sisipeni, 4 A.S.R. 320.

Fact objector to registration of family land got coconuts from land is not inconsistent with communal ownership where objector is member of family. Fe’a v Sisipeni, 4 A.S.R. 320.

Where only person from claimant family to live on land is one to whose presence possessors objected on several occasions, family has no evidence to substantiate claim of communal ownership. Soliai v. Apelu, 4 A.S.R. 349.

Greater weight of evidence indicates land was cleared and owned by family as communal land. Tuanaitua v. Paogofie, 4 A.S.R. 375.

Person claiming to have cleared and planted land may have done so as son of mother who is member of family which owns land, rather than as individual owner of land. Tuanaitau v. Paogofie, 4 A.S.R. 375.

Where notice is given to objectors at time of survey of land and they do not object, this is evidence of ownership in family obtaining survey. Mageo v. Fuga, 4 A.S.R. 426.

Where evidence substantiates that lands have been under use, control and cultivation of family for long time, court will order registration as communal land. Mageo v. Fuga, 4 A.S.R. 426.

Land registered as the property of an individual rather than of a communal family does not become communal property merely because relatives of the owner have occupied it in accordance with customs governing communal property. Roberts v. Sesepasara, 7 A.S.R.2d 139.

Defendant's motion for a new trial, made on the ground that the judgment awarding plaintiff communal land was inconsistent with plaintiff's original claim of individual land, was denied where plaintiff's complaint prayed for an adjudication of communal ownership, the evidence showed the land was communal, and defendants were not prejudiced by the court's conforming of its findings to the evidence. Ava v. Moe, 8 A.S.R.2d 95.

In deciding between competing claims to ownership of communal land the Court must look primarily to facts such as the record of occupation and cultivation, rather than to claims based upon family history. Afualo v. Fanene, Pualioa v. Afualo, 15 A.S.R.2d 48.

In determining whether land is communally or individually owned, the court will consider whether the land has been considered and used as communal or individual land over time. Schuster v. Lutu, 30 A.S.R.2d 51.

§2(3) Role of Matai

SEE SAMOAN CUSTOMS §8(3) – PULE OVER COMMUNAL LAND

§2(4) Rights of Family Members

Cultivation and continued use of lands vest right in family to continue to use lands subject to pule of matai. Levu v. Maluia, 1 A.S.R. 197.

Family who cultivates section of family lands has right to produce thereof so long as they retain possession, but upon abandonment of any section, disposition of that section is in discretion of matai. Levu v. Maluia, 1 A.S.R. 197.

Where two families have buried their members on same piece of land, court will award that land to them in common and each will have an equal right to use land without interference from the other. Samia v. Tapuitea, 1 A.S.R. 552.

Where matai succeeding to control of lands is from another family, this does not divest family which selects him as matai and of which he is member by marriage, of family land, since matai does not have own land but merely holds it for benefit of family. Salavea L. v. Ilaoa, 2 A.S.R. 15.

Rights of family members in land continue after death of matai. Satele v. Faga, 2 A.S.R. 26.

Under Samoan custom, family who used and occupied land had title thereto. Siva v. Asoaua, 2 A.S.R. 113.

Right to use and occupy family lands by family member is governed by codification of laws, which states that laws of United States concerning Samoa and common law of England, which are suitable to conditions of Samoa, shall be applied. Fiailoa v. Meredith, 2 A.S.R. 129.

Permission to use family lands given to family members by matai continues as long as family member lives on and uses land, subject to change by succeeding matai. Fiailoa v. Meredith, 2 A.S.R. 129.

Oral gift of interest in land by matai to family member which is relied upon by construction of fale and plantations on land cannot be terminated by mere whim of matai, but continues as long as donee abides by terms of gift and continues to live on and use land, or until death of present matai, who did not intend to bind successors, but in event of death of matai, occupant shall have reasonable time to remove fale and plantations from land. Fiailoa v. Meredith, 2 A.S.R. 129.

Family members have no right to register title to communal in their individual names. Tapuni v. Satele, 2 A.S.R. 210.

There is not legal obligation for Samoan brothers and sisters to permit their half-European half-sister to occupy lands, but there may be moral obligation. Willis v. Willis, 2 A.S.R. 276.

Member of Samoan clan has right to live on clan lands and cannot be deprived of right by other members of clan. Leasiolagi v. Fao, 2 A.S.R. 451.

Where family members render service to matai and land has been rightfully assigned to them, they have right to continue to use and occupy land in accordance with custom. Ifopo v. Vaiao, 2 A.S.R. 472.

Plantations on communal land and fruit therefrom are property of man who grows them, subject to duty of service to matai. American Samoa v. Iose, 2 A.S.R. 638.

Fact that husband lives on communal land of wife’s family, assigned by wife’s matai, does not make land communal land of husband’s family. Lualemana v. Tago, 3 A.S.R. 43.

Where person enters upon land with consent of matai and with knowledge of family, even though such consent is unlawful, and puts up houses on land, and plants land, ihe has right to retain possession of it for period of time in order to compensate him for improvements thereon. Mauga v. Soliai, 3 A.S.R. 108.

Rights of family member to land assigned to him by former matai are subject to senior right of family to use lands as family burial ground and may be taken for such purpose if family member has first been assigned other land. Tiumalu v. Lio, 3 A.S.R. 176.

Court will issue restraining order preventing family member from constructing house on land which family would rather use for burial ground until such time as new matai is chosen who may determine whether land shall be used for such purpose. Tiumalu v. Lio, 3 A.S.R. 176.

Under Samoan custom, at least majority of family must maintain petition for eviction of person from family lands, and where there is not majority, petition must be dismissed. Fanene Family v. Brown, 3 A.S.R. 260.

Nineteen members of family who petition for eviction of occupant from family lands represent themselves only and not family, where they are small minority of family, cannot show authorization of family to bring suit and there is evidence of opposition to suit by other family members. Fanene Family v. Brown, 3 A.S.R. 260.

Under Samoan custom, matai upon death of member of family, assigns communal land occupied by deceased to another member of family, and there is not inheritance right in family lands in heirs of deceased occupant, nor can other members of family maintain action as tenants in common, which they are not. Fanene Family v. Brown, 3 A.S.R. 260.

Persons who are not members of family have no right to use family lands without permission. Faamuli v. Leiato, 3 A.S.R. 308.

If matai neglects duties, and is not recognized by village or county as matai, branches of family may give valid consent to family member for use of communal land without matai’s approval. Siu v. Maisu, 3 A.S.R. 336.

Possession of communal lands is property right of family subject to assignment by matai, in accordance with Samoan custom, to specific member of family. Taesali v. Samuela, 3 A.S.R. 359.

Death of grantee of communal land does not end right of grantee’s surviving children and their immediate families to occupy land if they continue service to granting matai. Foster v. Fa’amuli, 4 A.S.R. 3.

Land owned communally by extended family may not be registered by single clan of family as clan’s communal land. Magalei v. Siufanua, 4 A.S.R. 101.

If two branches of family have each had houses on disputed communal land for some years, there must be express or implied agreement for division of disputed land as tenants in common. Liufau v. Unutoa, 4 A.S.R. 230.

If two branches of family own disputed communal land as tenants in common, one branch cannot prevent other from erecting guest house on communal land. Liufau v. Unutoa, 4 A.S.R. 230.

In accordance with Samoan custom, matai has pule or jurisdiction over family lands, and where there is no assignment of land to person, than matai is entitled to order restraining such person from constructing house on land and evicting him from land. Masalosalo v. Isumu, 4 A.S.R. 309.

Person married into family cannot complain of order of matai evicting him from land where he has been assigned other land. Masalosalo v. Isumu, 4 A.S.R. 309.

Under Samoan custom, communal family land is owned by Samoan family and each member has right to use portion. Tuanaitau v. Paogofie, 4 A.S.R. 375.

Under Samoan custom, members of family own land in way analogous to cotenants. Tuanaitau v. Paogofie, 4 A.S.R. 375.

Only matai has power to assign occupancy rights in communal land; thus only matai has power to terminate those rights. If matai title is vacant, other family members lack pule to evict family member. Malaga v. Alaga, 4 A.S.R. 735.

When senior matai of a family brought action to evict family members from communal land after they had insulted and threatened him, but family members had formerly rendered service to him for many years and had given their labor and money to build family guest house, court would not order eviction but would order them to show respect for matai and refrain from disrupting peace and harmony of the family and village. Tavai v. Pone, 3 A.S.R.2d 9.

Absent special circumstances, senior matai of a Samoan family must respect the right of family members who have long resided on family land to continue residing on family land. Talili v. Satele, 4 A.S.R.2d 23.

Right of Samoan family member to occupy a particular piece of land is not absolute; senior matai of family may reallocate land within family by providing displaced family members with equivalent land. Talili v. Satele, 4 A.S.R.2d 23.

Right of Samoan family member to use family land for economic purposes is subject to the right of family to contributions in proportion to the value of the fruits of occupancy. Talili v. Satele, 4 A.S.R.2d 23.

Senior matai of Samoan family should not take major steps with regard to family land without prior consultation of family, and particularly of family members directly affected. Talili v. Satele, 4 A.S.R.2d 23.

Judgment that disputed tract was "communal land" of a family that was not a traditional Samoan family with a matai left open the question how family was to exercise rights of ownership under land statutes presuming the existence of a senior matai, since family was prohibited by statute from creating a new matai title. A.S.C.A. §§ 1.0401, 37.1502-03. Willis v. Willis, 4 A.S.R.2d 144.

Claimant family judicially determined to be communal owners of disputed tract could not banish other claimant who had long been assigned use of it without the extensive consultation and just compensation which are an essential part of the relationship between sa'o and members of his family. Tuileata v. Amituana'i, 4 A.S.R.2d 168.

Preliminary injunction restraining defendants from further construction on specified lands until land use and building permit applications are approved by plaintiff was appropriate where (1) the plaintiff objected to the construction only because the defendants had undermined his authority as senior matai by holding themselves out on the permits as owners of the land; (2) plaintiff's claim was supported by the preponderance of the evidence at the preliminary hearing; and (3) the injunction would not prevent defendants from completing their construction, since plaintiff had given his word that he would approve the permits if they were submitted to him. Sotoa v. Togotogo, 7 A.S.R.2d 93.

A family member's right to use Samoan communal lands is conditional; the family member must render tautua to the matai in accordance with custom and must use and occupy the lands. Toleafoa v. Tiapula, 7 A.S.R.2d 117.

The concept of tautua (service) varies from family to family and is best defined by the family rather than the court. Toleafoa v. Tiapula, 7 A.S.R.2d 117.

Tautua is an enforceable obligation only against family members who occupy and use communal family lands. Toleafoa v. Tiapula, 7 A.S.R.2d 117.

Family member must plead and prove good faith effort was made to settle disagreements with senior matai and within the family as condition precedent to bringing suit against matai or other family members. Toleafoa v. Tiapula, 7 A.S.R.2d 117.

Family member's good faith efforts to settle land dispute within the family were questionable where prayer for relief seeks damages in amounts disproportionate to those suffered and where matai's offer to furnish family lands upon family member's return to the territory was refused. Toleafoa v. Tiapula, 7 A.S.R.2d 117.

Dower rights do not exist in Samoan communal lands. A.S.C.A. § 40.0106. Tufele v. Mose, 7 A.S.R.2d 157.

A person who has married into a Samoan family ordinarily has no say with regard to that family's communal property. Tufele v. Mose, 7 A.S.R.2d 157.

The rights of individual occupants of land held in trust for the people of Manu'a are no greater than those of others from Manu'a; occupants do not have right or power of appointment to pass their possessory rights to others. Tufele v. Mose, 7 A.S.R.2d 157.

When an occupant of land held in trust for the people of Manu'a voluntarily departs the land or abandons his possessory rights the land reverts to the trustee and the people of Manu'a. Tufele v. Mose, 7 A.S.R.2d 157.

Defendant's use of land held in trust for use and benefit of the people of Manu'a exceeded scope of trust where defendant held possessory interests in three buildings which were leased to commercial businesses, and the trustee had power to require defendant to surrender one of the business sites to establish an administrative office for the general use of the Manu'a District. Tufele v. Mose, 7 A.S.R.2d 157.

Under Samoan custom a widow who has had no children by her deceased husband has no right to remain on the communal land of husband's family unless the family invites her to remain. Tuiteleleapaga v. King, 8 A.S.R.2d 49.

Widow who was entitled to one-third of deceased husband's interest in individually owned property could not be evicted by husband's relatives from possession of a small part of such property. A.S.C.A. § 40.0103. Tuiteleleapaga v. King, 8 A.S.R.2d 49.

A widow without children has no right to remain on communal land of her husband's family after his death. Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54.

Under Samoan custom, communal family land is owned by the Samoan family as such and each member of the family has a right to use a portion of the communal land. Lutu v. Taesaliali`i, 11 A.S.R.2d 80.

The right of a family member to use communal land is a proprietary right within the due process clause of the territorial constitution. Rev'd Const. of Am. Samoa I § 2. Lutu v. Taesaliali`i, 11 A.S.R.2d 80.

Where land assigned to family member by previous matai had not been surrendered or abandoned, family member continued to serve the matai, and there was no showing of cause for revocation of the family member's assignment to land, matai could not revoke the assignment in order to allow use of the land by another person who was not a family member. Lutu v. Taesaliali`i, 11 A.S.R.2d 80.

Family member's continued right to use and occupy communal land is conditional upon his providing tautua to the matai. Lutu v. Semeatu, 13 A.S.R.2d 88.

In those rare cases when some important family purpose has been held to justify eviction of a family member who has done no wrong from family lands he has been occupying, it is essential that the family member be compensated by the assignment of equivalent lands. I`aulualo v. Siofaga (Mem.), 14 A.S.R.2d 26.

General assurance by matai that family member would be free to build another house on family land was insufficient compensation for proposed eviction of the family member from a finished Western‑style house in which he had long resided. I`aulualo v. Siofaga (Mem.), 14 A.S.R.2d 26.

A family member's continued right to use and occupy communal land is conditioned upon his providing service to the matai. Alaimalo v. Sivia, 17 A.S.R.2d 25.

Samoan communal land belongs to families rather than individuals, and a judgment against the family is binding on the family despite the succession of matai-title holders through time. Taulaga v. Patea, 17 A.S.R.2d 34.

During the vacancy of the family's matai title, no one family member or faction has the power to effect a radical transformation of the family's property without a clear consensus of the entire family. Fagasoaia v. Fanene, 17 A.S.R.2d 91.

The right of a family member to use land owned by a Samoan communal family is a property right protected by the territorial constitution's due process clause. Rev. Const. Am. Samoa Art. I, § 2. Seventh Day Adventist Church of American Samoa v. Maneafaiga, 23 A.S.R.2d 150.

The right of a family member to use land owned by a Samoan communal family is conditioned on reciprocal obligations towards the sa`o and family, including the obligation to perform tautua (traditional service); and failure to render tautua is grounds for eviction. Seventh Day Adventist Church of American Samoa v. Maneafaiga, 23 A.S.R.2d 150.

A family member may, in certain circumstances, seek judicial review of matai action, and the court will enjoin arbitrary, capricious, or illegal actions or those in which there has been an abuse of discretion on the part of the of the matai. Pen v. Lavata`i, 25 A.S.R.2d 146.

The unquestioned right of a family member to use communal land is a property right under the due process clause of either the U.S. or Samoan constitutions. A non‑family member, by definition, has no such right. Pen v. Lavata`i, 25 A.S.R.2d 164.

A family member is ordinarily entitled to possess land assigned to him for his lifetime. Pen v. Lavata`i, 25 A.S.R.2d 164.

Even family members cannot insist on using family property without the requisite tautua to the senior matai of the family. Afoa v. Taaifili, 26 A.S.R.2d 49.

Regardless of whether a matai is required to consult his family before he enters a lease, certain circumstances demand that he do so when revoking an assignment of communal land to a family member. Pen v. Lavata`i, 30 A.S.R.2d 10.

An assignment of communal land may only be revoked for an overriding family purpose if the family meets, the matai reasonably decides the revocation is for an overriding family purpose, and alternate land or another reasonable arrangement is made. Pen v. Lavata`i, 30 A.S.R.2d 10.

Family consultation is required when revoking a land assignment to a family member so that the land may be leased to non-family members. Pen v. Lavata`i, 30 A.S.R.2d 10.

A matai must arrive at consensus in the traditional Samoan way before revoking an assignment of communal land based on the family purpose doctrine. Pen v. Lavata`i, 30 A.S.R.2d 10.

A matai may create an assignment without the prior consent of his family, but may not unilaterally act to revoke an assignment. An assignment of communal land may be revoked only with consensus support of the family. Fanene v. Malauulu, 30 A.S.R.2d 45.

Family members do not waive the right to claim land as individually owned land or as the family's communal land through adverse possession simply because the senior matai of the family refuses to take appropriate action to defend the family's claim to the land. However, family members do waive the right to claim an interest in land when they fail to take appropriate action to prosecute or defend the family's claim to the land according to land registration statutes. Savane v. Lafi, 31 A.S.R.2d 87.

§2(5) Separation-of-Structure Agreement

Person assigned portion of communally owned lands under Samoan custom may enter into separation-of-structure-from-communal-land agreement in order to procure loan for construction of house. Atualevao v. Masaniai, 4 A.S.R. 664.

Where matai enters into separation-of-structure-from-communal-land agreement with member of family, this is clear indication that family member was assigned communal land. Atualevao v. Masaniai, 4 A.S.R. 664.

Where a party to separation-of-structure agreement recorded pursuant to provision of code is one of number of owners and not sole owner, court will not enforce agreement. Meredith v. Aumavae, 4 A.S.R. 680.

Where separation-of-structure agreement recorded pursuant to provision of code contains statement that land is communal and court finds it individually owned, court will not order agreement executed. CAS 12.0204. Meredith v. Aumavae, 4 A.S.R. 680.

A document captioned “Lease” does not thereby become a lease; and can be construed as a separation-of-structure agreement coupled with a conditional chattel mortgage. Paopaoailua v. Betham, 4 A.S.R. 705.

Matai may sign, on behalf of family, separation-of-structure agreement without consulting other members of family first. Paopaoailua v. Betham, 4 A.S.R. 705.

Separation agreement, by which landowner agreed that another person could build a building on her land which would remain legally separate from the land, did not convey to the building owner and his heirs and assigns a perpetual and irrevocable right to build, occupy, and rent out further structures on the land. Roberts v. Sesepasara, 7 A.S.R.2d 139.

Separation agreement, by which landowner allowed another person to build a structure on her individually owned land, may be evidence of the conveyance of some right to remain on the land other than a license revocable at will by the landowner. Roberts v. Sesepasara, 7 A.S.R.2d 139.

Matai's signature is required on separation agreements by family members to build homes on communal land. A.S.C.A. § 37.1503(a). Utu v. Fuata, 17 A.S.R.2d 104.

Separation agreements by family members to build homes on certain land which were signed by claimant as matai corroborated his claim that he exercised authority (pule) over such land. Utu v. Fuata, 17 A.S.R.2d 104.

Claimant's assertion that lesser matai in his family habitually signed separation agreements by family members to build homes on communal land was rejected, since it did not explain why his family did not object to such recurring usurpations of his pule. Utu v. Fuata, 17 A.S.R.2d 104.

With respect to land, a separation agreement splits a particular structure from the land on which it is built or is to be built, so that the structure will be the property of the person building it rather than the landowner. A.S.C.A. § 37.1501 et seq. Fagasoaia v. Fanene, 18 A.S.R.2d 72.

A traditional assignment of land from the matai to a family member does not imply permission to build new structures or materially change the character of the property. Fagasoaia v. Fanene, 18 A.S.R.2d 72.

A material failure to accurately describe land or parties is sufficient to render a separation agreement invalid. Leomiti v. Pu'efa, 27 A.S.R.2d 150.

§2(6) Leases

In exercise of police power, Government may see that lease provides adequate and reasonable rental under existing conditions or prohibit the making of the lease unless it provides sufficient rental so as not to make transaction improvident with respect to owner. Haleck v. Tiumalu, 3 A.S.R. 380.

Law creating duties of Land Commission to recommend to Governor on leases was passed subsequent to time when lease in dispute was executed but prior to time it was assigned to plaintiff. Haleck v. Tiumalu, 3 A.S.R. 380.

Renewal lease may be executed and then presented to Land Commission for its recommendation to the Governor for approval pursuant to law. CAS 1281. Haleck v. Tiumalu, 3 A.S.R. 380.

Power of the Governor under law to consider terms and conditions of instruments seeking to alienate land including leases, and to invalidate such transactions until they receive his approval, cannot be questioned. Haleck v. Lee, 4 A.S.R. 519.

In absence of proof to contrary, court will assume that Governor is exercising his discretionary power in approving or disapproving leases within legal limits of his legislative prerogative. Haleck v. Lee, 4 A.S.R. 519.

Prior court enforced renewal clause of lease while holding that such renewal was subject to approval by Governor. Haleck v. Lee, 4 A.S.R. 519.

Exercise of Governor’s power to approve new lease pursuant to renewal clause is not retroactive law impairing obligation of contract. Const., Art. I, Sec. 13. Haleck v. Lee, 4 A.S.R. 519.

Fact former Governor approved lease with renewal clause does not mean that he approved lease through period of renewal. Haleck v. Lee, 4 A.S.R. 519.

Fact prior court enforced renewal clause in lease against lessor by specific performance does not deprive Governor of power to approve renegotiated new lease. Haleck v. Lee, 4 A.S.R. 519.

Lease approved by Governor in 1938 for 20-year period with 20-year option, can’t be negated by subsequent Governor without evidence of fraud or mistake. Haleck v. Governor, 4 A.S.R. 968.

Lease from 1910 through 1958, being renewed through valid extension clause, does not become, upon exercise of renewal option, new lease subject to Governor’s approval. Haleck v. Governor, 4 A.S.R. 968.

Leasehold interest in communal land did not "merge" into an assignment of communal land, whose terms would have been different and virtually antithetical to those clearly set forth in the lease agreement itself. Hunkin v. Grisard (Mem.), 13 A.S.R.2d 38.

A lease that was not recorded or registered pursuant to the statutory requirements is invalid and ineffectual. American Samoa Gov't v. South Pacific Island Airsystems, Inc., 28 A.S.R.2d 170.

The mere fact of the Governor's approving signature does not render a flawed lease impervious to legal challenge any more than it could transform a bill into law without constitutionally proper legislative approval. Pen v. Lavata`i, 30 A.S.R.2d 10.

The function of the Land Commission and the Governor in the approval of leases of communal land is to provide a check against improvident leases, which would be harmful to the Samoan land tenure system, not to sit in judgment on land title issues. Pen v. Lavata`i, 30 A.S.R.2d 10.

The statute requiring the Governor’s approval on certain land transfers, A.S.C.A. § 37.0221, does not devise a system where the Governor effectively has the right to reallocate property without regard to the preexisting rights of others in that property, and then to have those decisions immune from judicial review. The Governor's statutory authority to approve a lease between private parties presupposes that the lessee actually has the authority to enter into the lease in the first place. Pen v. Lavata`i, 30 A.S.R.2d 10.

An administrative decision does not concern a contested case under A.S.C.A § 4.1040 when a party was not represented at Land Commission hearings and could not contest the lease. Pen v. Lavata`i, 30 A.S.R.2d 10.

Separation of powers principles do not prevent the judicial branch from voiding a lease approved by the Governor in violation of due process rights. Pen v. Lavata`i, 30 A.S.R.2d 10.

Customary family consultation in regards to dealing with communal land can continue in a system where the approval of the governor is also required for the leasing of native land. Pen v. Lavata`i, 30 A.S.R.2d 10.

§2(7) Conveyance

In order to sell communal land, matai must have consent of the family and the sale must be approved by proper authorities within the Government. Satele v. Afoa, 1 A.S.R. 424.

Matai has no legal right to convey family lands without approval of Governor. Pulu v. Te’o, 2 A.S.R. 201.

Matai is not authorized under Samoan custom to give away family land to person not member of family, and such attempted gift is void. Atofau v. Tuufuli, 2 A.S.R. 414.

Widow of matai or family member cannot sell family lands, and attempt to do so is void. Atofau v. Tuufuli, 2 A.S.R. 414.

Where person pays widow of matai for purchase of land and money is used for benefit of family, such purchase is void since widow may not sell family lands, but clan must, as matter of equity, pay back purchase price. Atofau v. Tuufuli, 2 A.S.R. 414.

Matai is not authorized under Samoan custom to give away family land to person not member of family. Ifopo v. Vaiao, 2 A.S.R. 472.

Where sale of land is invalid, because vendor has no authority to sell family lands, equity demands that vendor return purchase price to vendee before title can be registered in family of vendor. Ifopo v. Vaiao, 2 A.S.R. 472.

Gift of communal land to individual, not approved by Governor, is void and does not pass title to land. Lualemana v. Tago, 3 A.S.R. 43.

Matai cannot convey family lands without consent of family, and therefore attempted conveyance is invalid. Sione v. Tiualii, 3 A.S.R. 66.

Matai does not have authority to give family lands to church without approval of majority of family members. Mulitauaopele v. Paleafei, 3 A.S.R. 93.

Matai cannot deed land to person outside of family without consent of family and approval of Governor. Mauga v. Soliai, 3 A.S.R. 108.

While matai has control over family lands and is trustee of lands for family, he cannot mortgage or deed away land without consent of family, and mere consent of lesser matais does not constitute consent of family. Mauga v. Soliai, 3 A.S.R. 108.

If family is divided into four clans and each clan is assigned portion of communal land, matai of each clan has pule only over his portion and cannot interfere with use of another clan’s portion of communal land. Taesalialii v. Tuloto, 3 A.S.R. 133.

Code prohibited matai from alienating family land without approval of Governor. CAS 1282. Tuileata v. Talivaa, 3 A.S.R. 201.

Matai in control of communal land cannot alienate land without approval of Governor, but can grant oral license to use land. Aumavae v. Tuitele, 3 A.S.R. 342.

Statutes relating to alienation of native lands are proper exercise of police power of Government to protect owners of communal lands from improvident dispositions of their property by lease or otherwise. Haleck v. Tiumalu, 3 A.S.R. 380.

Senior matai who lives outside American Samoa for substantial period, forfeits power over family land to next senior matai, until senior matai returns and resumes duties as high chief. Decisions made during absence are not subject to review by senior matai. Heirs of Sagiao v. Mamae, 4 A.S.R. 64.

Where member of family has been assigned land for bakery by matai, leader of clan of which assignee is member cannot bring action to prevent construction of bakery since sole authority for control over family land rests with matai. Tuimalu v. Scanlan, 4 A.S.R. 194.

Daughter of former title holder has not authority to transfer family land in fee simple to anyone, especially to one not family member, but may give license to live on land. Nua v. Leomiti, 4 A.S.R. 404.

Oral conveyance of land is void where it is not approved in writing by Governor. Fau v. Wilson, 4 A.S.R. 443.

In exercising its police power, the Government of American Samoa may protect Samoan people against improvident transactions such as dispensing of their property for less than it is worth. Haleck v. Lee, 4 A.S.R. 519.

Communal land given in atonement for an offense committed by a family member is presumed to become the communal property of the victim's family rather than the victim's individual property. Leota v. Faumuina, 4 A.S.R.2d 11.

Communal land may not become individual property except in accordance with statutory procedures for alienation of communal lands. A.S.C.A. §§ 37.0201 et seq. Faleafine v. Suapilimai, 7 A.S.R.2d 108.

Court should construe and enforce conveyance in accordance with the apparent intent of the conveyor despite technical flaws in the conveyancing documents. Roberts v. Sesepasara, 7 A.S.R.2d 139.

Common law rule against perpetuities is designed to protect the free alienability of land and therefore has no application to Samoan communal property, which are not freely alienable. A.S.C.A. § 37.0204. Tufele v. Mose, 7 A.S.R.2d 157.

Warranty deed creating trust in land conveyed in favor of the people of the islands of Manu'a, naming a matai of Manu'a and the successors to his matai title as trustees, does not violate the rule against perpetuities. Tufele v. Mose, 7 A.S.R.2d 157.

Title to communal lands may pass from one family to another by conveyance or adverse possession. Tufele v. Mose, 7 A.S.R.2d 157.

Estate transferred by one Samoan communal family to another vests immediately in the transferee. Tufele v. Mose, 7 A.S.R.2d 157.

Language in warranty deed conveying land to a matai of the islands of Manu'a and to "his successors or assigns" in trust for the people of Manu'a causes the trusteeship to devolve upon the successive holders of the matai title, not to the personal estate of the matai. Tufele v. Mose, 7 A.S.R.2d 157.

Communal land of Samoan family automatically passes from one generation to another without the necessity of probate. Tuiteleleapaga v. King, 8 A.S.R.2d 49.

In the context of Samoa in 1911, it would have been inconceivable that the term "and his successors or assignees" in a grant of land from one ranking chief to another was intended to give subject possessory rights to the control of an untitled heir of the grantee. Mose v. Tufele, 12 A.S.R.2d 31.

Party permitting one who renders him tautua to occupy certain land has no donative intent to grant title to such land to the permittee. Utu v. Fuata, 17 A.S.R.2d 104.

The Governor and the Land Commission must approve conveyances of communal land. A.S.C.A. §§ 37.0203-37.0204. Magalei v. Atualevao, 19 A.S.R.2d 86.

A registration of title to land as individually-owned land was invalid and so cancelled by the court when that land was assigned for use of defendant and her immediate family but remained communal land, and when such registration was not authorized by a matai having authority over the land. Ava v. Logoai, 22 A.S.R.2d 65.

The custom of "igagato," a special reward for extraordinary service performed for a Samoan family, may be given to a person who is not related by blood to the family; but a reward of a parcel of communal land for such service is proper only with the entire family's concurrence. Fanene v. Taaseu, 23 A.S.R.2d 1.

An interest in land is a license and not an "igagato" assignment when permission to use a parcel of land may be terminated by a permanent departure from American Samoa or at will by the sa'o. Fanene v. Taaseu, 23 A.S.R.2d 1.

Unlike its forerunner enacted in 1900, Regulation 5‑1913, when in force, prohibited transfers of Samoan owned land to non‑Samoans, but did not restrict transfers between Samoans. This is essentially the state of the law today, with the added requirement that the Governor must consent to conveyances of communal land. Lua v. Uti, 25 A.S.R.2d 71.

As a matter of due process of law, the Land Commission must hold public hearings on proposed transfers of land, and give reasonable notice to interested parties. Pen v. Lavata`i, 30 A.S.R.2d 10.

Samoan realities of the time are considered in determining whether a deed is an interfamily conveyance. Schuster v. Lutu, 30 A.S.R.2d 51.

Despite language in a deed that contains stock conveyancing language to an individual, the court will interpret the deed as conveying land to a family as communal land if that was the intention of the original parties. Schuster v. Lutu, 30 A.S.R.2d 51.

Although a matai has no inherent legal authority to convey another family’s communal land, the court will enforce a conveyance when ASG, under the former U.S. Navy administration, dealt with a leading matai of a village when acquiring land for public use. Peni v. Lutali, 30 A.S.R.2d 87.

The administrative procedures to validate transfers of title to communal land include: 1) the Land Commission must study the proposed transaction and make recommendations to the Governor about it, A.S.C.A. § 37.0203(a) - (c); 2) next, the Governor must approve the transaction, A.S.C.A. § 37.0204(a); 3) then, and only then, the Territorial Registrar registers the transfer instrument to effect passing of title. A.S.C.A. § 37.0210. Uiliata v. Puailoa, 31 A.S.R.2d 35.

§2(8) Relinquishment of Land

Relinquishment of possession of communal land by voluntary surrender or abandonment causes the land to revert to the matai and family. Toleafoa v. Tiapula, 7 A.S.R.2d 117.

Whether relinquishment of possession has occurred causing reversion of land to the matai and family is not determined solely by the intent of the relinquishing family member, but is a question of fact. Toleafoa v. Tiapula, 7 A.S.R.2d 117.

When family member relinquishes possession of communal land, it reverts to the matai and family. Tufele v. Mose, 7 A.S.R.2d 157.

While family member may not have intended to relinquish possession of communal lands, the question whether relinquishment has occurred is one of fact. Tufele v. Mose, 7 A.S.R.2d 157.

No relinquishment of possession occurred where defendant vacated building for two years while deciding what new business to establish there, later established a business in the building, and during the same two year period occupied another building located on the same land. Tufele v. Mose, 7 A.S.R.2d 157.

When a family member surrenders his entitlement to use of a particular portion of family land, that estate reverts to the matai for the benefit of the family and is therefore available for reassignment. Lutu v. Taesaliali`i, 11 A.S.R.2d 80.

Where trial court finding that appellant had relinquished possession of house by many years of absence was supported by testimony that appellant lived in another village and rarely visited the village in which the disputed house was located, the finding was not clearly erroneous and appellate court would not disturb it. A.S.C.A. § 43.0801(b). Toleafoa v. Tiapula, 12 A.S.R.2d 56.

Relinquishment of possession of Samoan communal land by a member of the communal family causes a reversion of the land back to the matai and family. Toleafoa v. Tiapula, 12 A.S.R.2d 56.

Relinquishment of possession of Samoan communal land by a member of the communal family may be either by voluntary surrender or by abandonment by the family member. Toleafoa v. Tiapula, 12 A.S.R.2d 56.

While a family member's intentions may not have been to abandon family land so as to cause a reversion to the matai and family, the issue of whether relinquishment has arisen is one of fact. Toleafoa v. Tiapula, 12 A.S.R.2d 56.

Family member may not avoid reversion of communal land to the matai and family by having a long-abandoned residence "looked after" by other family members who live elsewhere, or by executing sub-assignments to persons who are not family members. Toleafoa v. Tiapula, 12 A.S.R.2d 56.

Where house abandoned by appellant family member and later disassembled by order of the senior matai of the family was a fale constructed ten years earlier at a cost of $600, the land was unattended and overgrown, and one of appellant's own witnesses testified that the clearing of the "crops" on the land might have been done "as part of the ongoing beautification program," the trial court was justified in declining to award compensation to the appellant family member for the value of the house and crops. Toleafoa v. Tiapula, 12 A.S.R.2d 56.

§ 3 Individually Owned Land

SEE WILLS, TRUSTS & ESTATES § 8 – INDIVIDUALLY OWNED PROPERTY

Samoan Lands Commission provided redress to authority for land claimants prior to cession of Samoa to United States, so that claim by alleged owners that they had no remedy prior to United States administration is erroneous. Tufaga v. Mativa, 1 A.S.R. 184.

Where individual has occupied land without objection by others and there is no evidence that land is communally owned, court will find that land is individually, as opposed to communally, owned. Tiumalu v. Lutu, 2 A.S.R. 222.

Court takes judicial notice that some matais have, with consent of their family members, given communal land outright to certain family members. Gi v. Taetafea, 2 A.S.R. 401.

In denying application to register individual land, court may find communal ownership of particular family. Nua v. Leomiti, 4 A.S.R. 404.

Where court has determined that disputed land is individually owned and subsequent transfers of land are recorded in Registrer, court will find individually owned land even though land is referred to in separation-of-structure agreement as communal land. Meredith v. Aumavae, 4 A.S.R. 680.

Code requires grantee of individually owned land to be of at least one-half (1/2) Samoan blood. 27 A.S.C. § 204(b). Moon v. Falemalama, 4 A.S.R. 836.

Western Samoan has one-half Samoan blood for purposes of holding title to individually owned land. 27 A.S.C. § 201. Moon v. Falemalama, 4 A.S.R. 836.

Legislature clearly defined difference between “Samoan” and “American Samoan” for purposes of holding title to real property. 27 A.S.C. §§ 204(b), 401. Moon v. Falamalama, 4 A.S.R. 836.

Land registered by its owner as her individual property was subject to laws of inheritance and passed to the individual heirs of the owner. Tuiteleleapaga v. King, 8 A.S.R.2d 49.

If one co-owner of individually owned land were occupying an unduly large part of the property, court could issue a temporary order apportioning the use of the property pending an action for partition. Tuiteleleapaga v. King, 8 A.S.R.2d 49.

In order to establish a claim to individually owned land, a party must show that the land was (1) cleared in its entirety or substantially so from the virgin bush by an individual through his own initiative and not by, for, or under the direction of his aiga or its senior matai; (2) cultivated entirely or substantially so by him; and (3) occupied by him or his family or his agents continuously from the time of the clearing of the bush. Lealaimatafao v. Lautele, 9 A.S.R.2d 39.

Statutory requirement that parties submit a land dispute to the Office of Samoan Affairs before applying to the court for relief applies only to communal lands, and therefore did not deprive the court of jurisdiction over a dispute concerning individually owned lands. A.S.C.A. § 43.0302. Sese v. Leota, 9 A.S.R.2d 136.

Widow who signed document conveying house belonging to her late husband had no power to convey the interest of the surviving children of the deceased. Gi v. Temu, 11 A.S.R.2d 137.

Because statute permits freehold land to revert to communal status at the request of the owner, it follows a fortiori that the same process is available for individual land. A.S.C.A. § 37.0201(b). Fauolo v. Satele, 15 A.S.R.2d 141.

Entering land through permission of a family matai is hardly consistent with individual ownership. Talauega v. Mulipola, 22 A.S.R.2d 7.

While section 37.0205 allows trusts for individually owned land, a Samoan proprietor must create the trust for the benefit of a son or daughter married to a nonnative, or for grandchildren arising from the mixed-race marriage. Craddick Dev. Inc. v. Craddick, 28 A.S.R.2d 117.

A grantor cannot deed land he or she does not own, the deed for which is entirely outside the grantor’s individually owned land. Mailo v. Aumavae, 30 A.S.R.2d 175.

Generally speaking, at common law and in jurisdictions which still follow the common-law rule, a conveyance to husband and wife during coverture ordinarily creates an estate by the entireties and not a joint tenancy or tenancy in common. Development Bank of Am. Samoa v. Attorney General of Am. Samoa, 31 A.S.R.2d 103.

Although a grantor can expressly grant some other form of tenancy to a husband and wife, the intention on the part of the grantor to create a tenancy by the entireties is presumed in the absence of such express language to the contrary. Development Bank of Am. Samoa v. Attorney General of Am. Samoa, 31 A.S.R.2d 103.

§ 4 Evidence of Ownership

§4(1) General Provisions

Where land owner cultivates land but is not vocal about claims of ownership due to Samoan custom of being subject to will of others, such submission will not bar subsequent claims of ownership. Maloata v. Leoso, 1 A.S.R. 134.

Evidence of structures on land, plantations, burials, claim of ownership and continuous possession established title of disputed land in family, dating prior to cession of Samoa to United States, and said title was not affected by cession. Magalei v. Maea, 2 A.S.R. 35.

Fact that person failed to object to occupancy of other of land for nineteen years is evidence that such person does not own property. Siva v. Asoau, 2 A.S.R. 113.

In determination of lawful owner of tract of land, court will consider custom of American Samoa, claim of title, natural boundary lines, names given to certain tracts, and interrelationships between families. Fanene v. Mauga, 2 A.S.R. 144.

Where there is no objection for long period of time by family claiming lands which are cultivated and possessed by another family, court cannot find that first family is lawful owner. Fanene v. Mauga, 2 A.S.R. 144.

Where person requests permission to bury another on land, this request is implied recognition of ownership. Teo v. Totoa, 2 A.S.R. 243.

Fact man asks permission of another to take things from land is indication that man does not consider himself owner. Tago v. Sami, 2 A.S.R. 285.

Before government was established, there was no place in Tutuila where written transactions relating to land could be filed. Ofoia v. Pritchard, 4 A.S.R. 326.

Claimant proved ownership by cultivating land, granting permission to marines to use land, filing war damage claims on land, and granting authority for establishment of prison farms on land. Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383.

Where United States Marines were granted permission to use lands and objectors to registration had no say in granting permission, this evidence indicates objectors did not own land. Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383.

Where evidence demonstrates that man and family are given permission to live on land, court will not find land was transferred by gift or purchase. Nua v. Leomiti, 4 A.S.R. 404.

Where man is given permission to live on land after having given daughter of title holder gifts of pigs and mats, court will not find that land was either given outright or purchased by these gifts. Nua v. Leomiti, 4 A.S.R. 404.

Where objector to registration of land was present during survey which described land as belonging to applicant and he did not object to survey, his claim to land is weakened. Mageo v. Fuga, 4 A.S.R. 426.

Where matai offers no objection to member of family’s permitting strangers to live on land, there is strong indication that land is individually owned and not communal. Lolo v. Heirs of Sekio, 4 A.S.R. 477.

Land title action was barred by res judicata when ownership of same tract had been resolved between same families over same issues by earlier final judicial resolution. Taulaga M. v. Patea S., 4 A.S.R.2d 186.

A trial court decision that was not appealed and that adjudicated ownership of a tract of land acquired the effect of res judicata and bound the court in later dispute between the same parties over the same tract of land. Te'o v. Sotoa, 5 A.S.R.2d 90.

Party who unsuccessfully sought title to a tract of land in previous action and failed to appeal may not later resurrect same claim to same land. Sialega v. Taito, 5 A.S.R.2d 99.

When one party to a land dispute established historic possession of the land and adverse party, who could not establish superior right to possession, had built on the land over possessor's objections, adverse party was obliged to remove his building without compensation. Olo v. Tulisua, 6 A.S.R.2d 86.

Where (1) court had jurisdiction over judgment debtor and her property; (2) attorney who represented judgment debtor had successfully petitioned the court for appointment as "special guardian" of judgment debtor's minor children for the purpose of selling real estate conveyed by her to the children and retaining funds in his trust account pending court approval of their disposition; and (3) same attorney had been designated by judgment debtor's husband as "attorney in fact" to sell a house located on the land, court had jurisdiction to determine whether the proceeds from sale of the house were part of the proceeds from sale of the land and to enjoin removal of the proceeds from the territory pending such determination, even though husband was neither a named party to the action nor personally amenable to service of process in the territory. Te'o v. Continental Insurance Co., 6 A.S.R. 2d 135.

In American Samoa any Samoan can acquire land in any village, not just the village in which his family or matai title resides, by gift, purchase, or original cultivation. Seva`aetasi v. Fanene, 9 A.S.R.2d 118.

One who acquires land by gift or original cultivation may do so on his own individual account or on behalf of his family, so such land may become either individual or communal property. Seva`aetasi v. Fanene, 9 A.S.R.2d 118.

Judgment affirming a decision of land commission, in which one party had made a claim to ownership of land and another party had filed an objection, and in which the commission's decision purported only to reject the claim advanced by the original claimant, did not convey to the objector a title good against the world. Willis v. Fai`ivae, 10 A.S.R.2d 121.

Where plaintiff family asserted that members of defendant family had not been present on disputed land, but witnesses for the plaintiff family had been absent from the territory during most of the period in question, and plaintiff family failed to call as a witness the only family member who had lived in the vicinity, the evidence preponderated in favor of the defendant family members' testimony that they had been on the land. Leomiti v. Toluao, 11 A.S.R.2d 49.

Witness from one village, testifying on behalf of a land claimant from that same village, had no reason to lie when he said the land was in another village. Meafua v. Taliu (Mem.), 13 A.S.R.2d 74.

An individual who claims land as individual property of himself and his siblings, rather than as communal property of an extended family, must overcome the presumption that land in American Samoa is communally owned. Avegalio v. Leatumauga, 18 A.S.R.2d 9.

The Territorial Registrar's records on land and matai-title registrations are, without contrary evidence, presumed to be accurate. In re Matai Title Seva'aetasi, 19 A.S.R.2d 133.

A conveyancing instrument such as a deed does not certify ownership of land but merely publicly attests to the fact that one person's interest in land, whatever that may be, has been conveyed to another. Reid v. American Samoa Gov't, 28 A.S.R.2d 158.

The court may adjudicate conflicting claims to land in favor of both the applicant and objector. Objectors are not required to make separate surveys and file separate petitions for registration before the court may award them title. Malaepule v. Fa`agau, 29 A.S.R.2d 215.

§4(2) First Occupancy Claims

Claim to land without accompanied use or occupation is insufficient to acquire title thereof. Ilaoa v. Toilolo, 1 A.S.R. 602.

Samoans acquire title to bush land under custom by open occupation and use coupled with claim of ownership. Tago v. Sami, 2 A.S.R. 285.

Samoans acquired title to land through first occupancy and claim of ownership and cession of islands to United States did not affect these private land rights. Sei v. Aumavae, 2 A.S.R. 396.

Occupation coupled with claims of ownership will establish ownership to what was bush land before such occupation. Soliai v. Lagafua, 2 A.S.R. 436.

Mere claim of ownership of bush land will not establish original title to it. Soliai v. Lagafua, 2 A.S.R. 436.

Where land claimants did not clear land or occupy any part of it nor do any more than claim to own it, they have not established title to it. Soliai v. Lagafua, 2 A.S.R. 436.

Occupation plus claim of ownership was sufficient to establish title to bush land in Samoa. Soliai v. Levu, 2 A.S.R. 440.

Samoan custom that occupation and claim of ownership of land is on behalf of family establishes presumption to that effect in absence of contrary evidence. Soliai v. Levu, 2 A.S.R. 440.

Occupation coupled with claim of ownership will establish ownership to what was bush land before occupation, and under Samoan custom, occupation by matai was on behalf of communal family. Leasiolagi v. Fao, 2 A.S.R. 451.

Title to bush land is achieved by occupation thereof under claim of ownership. Toomata v. Vea, 2 A.S.R. 564.

When family clears land from bush and claims ownership, it acquires title through first occupancy and use, coupled with claim of title. Togia’i v. Aumua, 3 A.S.R. 3.

Title to bush land is acquired by occupation thereof under claim of ownership, and it was custom for matai and members of family clearing bush and occupying land to claim it as communal lands for family. Fesagaiga v. Alo-Pepe, 3 A.S.R. 118.

Before Government was established by Navy in 1900, Samoans acquired title to their lands through first occupancy coupled with claim of ownership. Tialavea v. Aga, 3 A.S.R. 272.

Samoans acquired title to land through first occupancy coupled with claim of ownership. Lualemana v. Filo, 3 A.S.R. 642.

Samoans acquired title to land through first occupancy coupled with claim of ownership. Lago v. Mageo, 4 A.S.R. 287.

Samoans acquire title to land through first occupancy coupled with claim of ownership. Fe’a v. Sisipeni, 4 A.S.R. 320.

Samoans acquire title to land through first occupancy coupled with claim of ownership. Tuanaitau v. Paogofie, 4 A.S.R. 375.

Samoans acquire title to land through first occupancy coupled with claim of ownership. Tuia v. Savea, 4 A.S.R. 483.

Although a family had been required by the military to leave the area during World War II, this did not constitute an abandonment of the sort that might entitle strangers to claim the rights of first occupancy; rather, the latter could have acquired the land only by conveyance from the original owner or by adverse possession. Magalei v. Atualevao, 19 A.S.R.2d 86.

§4(3) Clearing and Planting

Where family took all produce and profits from land for over 20 years, such actions are evidence of ownership of the land by that family. Satele v. Afoa, 1 A.S.R. 424.

Where there is conflicting and contradictory evidence concerning ownership of land before cession to United States, court will look to corroborating evidence; and evidence of clearing land from bush, planting it, and then holding possession corroborates claim of ownership under tradition. Tuafili v. Taape, 2 A.S.R. 155.

Evidence supports claim that matai planted, used and claimed land as individual land and not as communal land of family. Tago v. Sami, 2 A.S.R. 285.

Before government was established, in accordance with Samoan customs, family clearing from land from bush and planting it becomes owners. Faataliga v. Fano, 2 A.S.R. 376.

If virgin, unclaimed land is cleared and occupied for individual benefit, court will find this sufficient to support claim of ownership. Muli v. Ofoia, 2 A.S.R. 408.

Presumption is that when matai cleared family lands from bush, he did so for family and that lands are communal family lands. Letele Family v. Lafoga, 2 A.S.R. 466.

Court takes judicial notice of fact that when members of Samoan family took possession of bush land it was on behalf of matai as owner of communal family property. Soliai v. Levu, 2 A.S.R. 440.

When members of family cleared land from bush and claimed ownership, it was on behalf of matai as owner of communal family land. Letele Family v. Lafoga, 2 A.S.R. 466.

Even if portion of surveyed land remains virgin, plantations and pig walls are sufficient to establish claim to land. Maluia v. Isumu, 2 A.S.R. 557.

Taking of trees occasionally for construction of house does not constitute possession of general area from which trees are taken, nor does it meet requirement of first occupancy coupled with claim of ownership which is basis of land ownership under Samoan custom. Lualemana v. Brown, 3 A.S.R. 348.

Fact person gets coconuts from land may not be evidence of ownership but merely of generosity of rightful owner. Ofoia v. Pritchard, 4 A.S.R. 326.

Under Samoan custom, it would be unusual for 15-year-old boy to hire six laborers to clear virgin bush in order to claim land as boy’s individually owned property. Tuanaitau v. Paogofie, 4 A.S.R. 375.

Under Samoan custom title belongs to one who clears land from virgin bush and plants it. Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383.

Fact that claimant cleared lands from virgin bush and continuously planted lands for extended period is evidence of ownership. Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383.

Where applicant to register claimed members of family cleared virgin bush, court may ascertain that they did so for another family to whom they were related by marriage. Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383.

Where evidence showed that land had been cleared from virgin bush by one who shortly thereafter registered part of the land in his own name without any objection from senior matai of the communal family of which he was a member, and later surveyed the entire land and conveyed it by warranty deed to his daughter, evidence was sufficient to overcome the presumption that land in American Samoa is communally owned. Satele v. Fai`ai, 9 A.S.R.2d 20.

Title to individual land arises from initial occupation of virgin bush land and its continued use, and not from the registration of land; registration does not confer title, but does preclude further contest of the registrant's title provided he has complied with all statutory requirements. Sese v. Leota, 9 A.S.R.2d 136.

Claim to individual ownership of land in American Samoa requires proof of initial clearing of bush land and sustained use and occupation of the land thereafter. Sivia v. Alaimalo, 13 A.S.R.2d 95.

Claimant to an individual title to virgin bush must show he initially cleared and settled such land for himself. Fania v. Sipili, 14 A.S.R.2d 70.

If there has been no occupancy or possession but only an occasional visit to the bush, such use was insufficient to defeat the land claim of people who came later to clear the area, make plantations, and occupy it continuously. Lualemana v. Atualevao, 16 A.S.R.2d 34.

§4(4) Possession and Use

Cultivation and permanent improvements to land evidence ownership by those making the cultivation and improvements. Maloata v. Leoso, 1 A.S.R. 134.

Where it has not been customary to record title in books and where lands have been transferred without written deeds, long occupancy and tradition go a long way in establishing title. Talala v. Logo, 1 A.S.R. 166.

Cultivation and possession of land for period of time in excess of any statutory period of limitation is strong evidence of ownership. Fuimaono v. Leasiolagi, 1 A.S.R. 189.

Where no written record exists revealing ownership of land, the best evidence of such ownership is that which shows who has been using land for past 20 years under claim of right and without objection by other parties. Satele v. Afoa, 1 A.S.R. 467.

Family that has uninterrupted and adverse use of land for 40 years under claim of right has superior claim to land over family who has not used or cultivated the land for 20 years. Sekio v. Suafoa, 1 A.S.R. 475.

Where family acquired ownership of land by taking possession and making use thereof together with a claim of ownership prior to American occupation of Samoa, then family still has ownership unless lost through voluntary surrender, adverse possession or condemnation proceedings. Ilaoa v. Toilolo, 1 A.S.R. 602.

Possession of land creates presumption of ownership in possessor. Talo v. Tavi, 2 A.S.R. 63.

Where owner permits other to use land without intending to part with ownership, title remains in owner. Siva v. Asoau, 2 A.S.R. 113.

Possession is species of title which is good against all who cannot show better title. Willis v. Willis, 2 A.S.R. 276.

As against all persons who cannot show greater title, court finds possessors who are Samoan to be co-owners of land in dispute. Willis v. Willis, 2 A.S.R. 276.

Wrongful eviction by party with no greater right to land does not deprive possessor of what right he may have had to possession. Willis v. Willis, 2 A.S.R. 276.

Present possession of land creates presumption of ownership. Aumavae v. Tuitele, 3 A.S.R. 342.

Where person living on family land claims land as individually owned, court will questions why he waited 37 years to offer it for registration. Tuanaitau v. Paogofie, 4 A.S.R. 375.

Fact government established prison farm on land with permission of claimant is evidence of ownership. Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383.

Fact applicants for registration of land have possession creates presumption of ownership. Lolo v. Heirs of Sekio, 4 A.S.R. 477.

Probative force of possession of real estate as presumption of ownership increases with duration of possessor’s tenure. Lolo v. Heirs of Sekio, 4 A.S.R. 477.

Presumption of ownership is derived from possession of real property, the probative weight being dependant upon duration of possessor’s tenure. Laeli v. Moetoto, 4 A.S.R. 494.

Possession of real property creates presumption of ownership. Puluti v. Muliufi, 4 A.S.R. 672

Person in possession of land is owner as against anybody but legal owner. Mageo v. Government, 4 A.S.R. 874.

That no member of a family occupying a tract of land has ever rendered service to senior matai of another family is evidence tending to show that the family occupying the land was not occupying it as tenants or permittees of the other family. Sialega v. Taito (Mem.), 3 A.S.R.2d 40.

A tract of land located on the outskirts of a village, which has come to be regarded as part of that village, may still be the communal land of a family from a neighboring village that has long occupied the land. Sialega v. Taito, 3 A.S.R.2d 78.

Long occupancy of land by one family is not necessarily inconsistent with ownership by another family. Leota v. Faumuina, 4 A.S.R.2d 11.

Where defendants' contention that plaintiffs were permitted the use of a disputed tract only on condition of continuing service to senior matai of defendants' family was unsupported by credible evidence, and plaintiffs had long occupied the land without rendering such service and had publicly asserted outright ownership in numerous ways over a number of years, plaintiffs were entitled to register the tract in their name. Seumalo v. Satele, 6 A.S.R.2d 103.

Possessor of land who obtained possession by recent ouster of long-time possessor did not thereby acquire the benefit of a presumption of ownership, but can be evicted by the prior possessor even though prior possessor cannot prove a title good against the world. Tulisua v. Olo, 8 A.S.R.2d 169.

Possessor of land who obtained possession by recent ouster of long-time possessor had the status of a mere trespasser or intruder, and such status was not affected by long residence on neighboring land called by same name as land presently in dispute. Tulisua v. Olo, 8 A.S.R.2d 169.

Defendants' permissive occupation of plaintiff's property did not amount to a legal interest in the land whereby the defendants could maintain the claim that the land was theirs to live on forever. Isumu v. Palaia, 12 A.S.R.2d 98.

Actual occupation with a claim of ownership---not the exercise of power over the actual occupants at some time in the distant past, nor even present political authority over a village, county, or district---is the best evidence of land ownership in American Samoa. Lualemana v. Atualevao, 16 A.S.R.2d 34.

A pattern of settlement provides evidence of land ownership. Tuiasosopo v. Afoa, 16 A.S.R.2d 90.

When ownership of land is in dispute and there is no written record or document showing positive title, the best evidence of ownership is found in the person who has been using the land under a claim of right and without objection from other parties. Uiagalelei v. Ulufale, 17 A.S.R.2d 158.

Continuous use and possession of real property is better evidence of title than family history and tradition, since the person in possession of land is considered the true owner as against anyone but the legal owner. Uiagalelei v. Ulufale, 17 A.S.R.2d 158.

In a dispute regarding ownership of a parcel of land where an active church stood, the appellate court accepted the trial court reasoning that since it was unlikely that someone would lease land containing an active church, appellants' claim that the disputed area was the same area referred to in an old lease agreement of their land was not tenable. Tuato`o v. Taua`a, 17 A.S.R.2d 163.

Possession of real property carries with it a presumption of ownership. Tuato`o v. Taua`a, 17 A.S.R.2d 163.

Where ownership of land is at issue, the best evidence of such ownership is found in the person who has been using the land under a claim of right without objection from other parties. Tuato`o v. Taua`a, 17 A.S.R.2d 163.

Trial court did not place undue emphasis on the testimony of one witness where it decided ownership of disputed land based not only on that witness' testimony, but on the description of land in two leases and the fact that the prevailing party had possessed and controlled the disputed land for years. Tuato`o v. Taua`a, 17 A.S.R.2d 163.

In land disputes, possession of real property is the best evidence of ownership and carries with it the presumption of ownership. Conversely, a mere claim to land without accompanied use or occupation is insufficient to acquire title thereof. Malaepule v. Fa`agau, 29 A.S.R.2d 215.

Continuous use and possession of the land generally indicates ownership in Samoan tradition, and gives rise to a legal presumption of ownership. See Tupuola v. Tu`ufuli, 1 A.S.R.2d 80 (App. Div. 1983); Talo v. Tavai, 2 A.S.R. 63, 68-70 (Trial Div. 1939). Malaepule v. Fa`agau, 29 A.S.R.2d 215.

§4(5) Family Tradition and Reputation

In resolving dispute over ownership of land, court will consider evidence of who was using land in absence of written record of title. Satele v. Afoa, 1 A.S.R. 424.

Conflicting claims of ownership founded solely on tradition without foundation in fact cannot be accepted by court. Tufaga v. Mativa, 1 A.S.R. 184.

Reputation and family tradition may be admitted into evidence to prove title to land where there is no record title. Amituanai v. Sauitufuga, 2 A.S.R. 485.

It is practice of this court to permit use of family tradition and reputation for purpose of establishing title to land. Fesagaiga v. Seigafo, 3 A.S.R. 26.

In determining ownership of land, court has access to family traditions and history. Mulu v. Taliutafa, 3 A.S.R. 82.

In American Samoa, courts will use tradition even though it is hearsay, in determining title to land since in most cases there is no recorded title. Tialavea v. Aga, 3 A.S.R. 272.

Court must sort our fact from fiction or legend to determine rightful claimant among four contenders to register land. Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383.

Where member of family fails to corroborate or substantiate family’s claim to land, court finds claim of family weakened. Mageo v. Fuga, 4 A.S.R. 426.

Where matai seeking to register land as communal property of his family relied on family history that conflicted with equally credible family history of objector to registration, and where preponderance of the evidence showed the land to be occupied by objector and those rendering service to him, registration would be denied. Mataituli v. Utuutuvanu, 7 A.S.R.2d 134.

Where land claimant, an untitled man, contended that the opposing party, a ranking matai of the village, had come to him looking for a place to plant crops and that he had given the matai permission to plant in a "taloloa" area under his control, this contention was inconsistent with cultural norms; the evidence therefore preponderated in favor of opposing party's contention that he had cleared and cultivated the land in order to acquire additional lands for his family. Lealaimatafao v. Lautele, 9 A.S.R.2d 39.

Where almost all residents of disputed land were members of two related families, court deciding which of these two families owned the land would consider reputation in the community, the opinions of the residents themselves, and past assertions of ownership and failures to assert ownership by heads of the respective families. Seva`aetasi v. Fanene, 9 A.S.R.2d 118.

Since the history of how a tract of land was first named and occupied, told and retold over centuries, tends to vary from family to family, one family's history will not ordinarily be dispositive of judicial proceedings regarding land ownership. Seva`aetasi v. Fanene, 10 A.S.R.2d 144.

Rather than base its decision on ownership of land on which party had the most comprehensive theory about the history of the land, court based its decision primarily on the best evidence of occupation during the last hundred years. Seva`aetasi v. Fanene, 10 A.S.R.2d 144.

Where matai who claimed land belonged to her family was also a member of another family that claimed the same land, and prior to obtaining her matai title had urged the matai of the other family to register part of the land, her earlier action would not absolutely preclude her later claim but was evidence supporting the court's conclusion that the land had traditionally been regarded as belonging to the other family. Seva`aetasi v. Fanene, 10 A.S.R.2d 144.

For a chief of one Samoan family to be buried on land of another family, while not unheard of, is hardly in the main stream of tradition; rather, the general and long standing custom is to place family graves on family land, to tend them carefully, and to rely on them as evidence of land ownership. Uiagalelei v. Fuimaono, 14 A.S.R.2d 49.

Evidence of a family tradition to the effect that the present possessors of land are beneficiaries of an ancient but revocable license from the family to whom the tradition belongs is insufficient, at least when the tradition is vigorously disputed and thinly corroborated, to overcome the presumption of ownership that comes with many years of possession. Uiagalelei v. Fuimaono, 14 A.S.R.2d 49.

Appellate court affirmed as not clearly erroneous the trial court finding that the grave site of appellee's parents was located on land belonging to appellee rather than appellant, based on facts that it was unlikely that appellee's family would bury a chief on land of another family when they had land undisputedly theirs a few feet away, that the grave was the only existing monument on the disputed land, and that appellee's family continually used and possessed the disputed site for almost sixty years. Uiagalelei v. Ulufale, 17 A.S.R.2d 158.

The tradition that certain lands are reserved for the use of certain family members is at its strongest when the family is a large and prestigious one containing clearly identifiable sub-groups. Talili v. Williams, 18 A.S.R.2d 23.

A parcel of land was determined to belong to a family when a cemetery in which family members were buried, and a guesthouse, were located on the land and when a second family's presence on the land was of recent origin. Utu v. Paolo, 23 A.S.R.2d 22.

Although largely hearsay, oral family history and tradition of occupancy and cultivation is necessary in a communal land-tenure system commonly lacking title documentation and so is admissible in evidence for establishing title to a parcel of land. Toilolo v. Poti, 23 A.S.R.2d 130.

While hearsay evidence of family histories and traditions is admissible in communal land disputes, such evidence must always be viewed with caution. Afemata v. Pasa, 25 A.S.R.2d 132.

§4(6) Records and Documents

Where land owner makes claim to War Damages Commission but fails to indicate ownership of specific land presently in dispute, this is evidence that he did not consider himself owners of such land. Sei v. Aumavae, 2 A.S.R. 396.

Execution of instrument by family member acknowledging ownership of land by matai, for purpose of avoiding adverse possession claim by family member, and reciting fmaly member’s life tenancy does not, as a matter of law, create life tenancy. CAS 907(2). Foster v. Fa’amuli, 4 A.S.R. 3.

Court determines who has title to land on basis of Samoan land records and inheritance law designating heir upon death of record title holder. Ofoia v. Pritchard, 4 A.S.R. 326.

Court grant and administrator of estate’s deed established good record title to land therein described. Ofoia v. Pritchard, 4 A.S.R. 326.

Freehold land was taxable until time income tax law become effective, and payment of taxes is evidence of ownership. Ofoia v. Pritchard, 4 A.S.R. 326.

Court finds ownership of disputed land in claimant where it is registered in name of predecessors and where title grew out of promise by matais to convey family owned land to individual and her child in return for furnishing certain necessities for funeral. Soliai v. Apelu, 4 A.S.R. 349.

Proper filing of separation-of-structure agreement is strong indication that person filing owns house which is subject of agreement. Siania v. Solaita, 4 A.S.R. 362.

Fact claimant filed for and was paid war damages on land is evidence of ownership. Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383.

Facts objectors to registration of land never filed nor were paid for war claim on land is evidence of fact that they were not owners. Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383.

Court finds applicant to register land did not file war claim on land since none appears on file available to court. Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383.

Where two plats are presented as evidence of ownership of land but do not mention name of land and do not show certification by surveyor, court will deny admission as evidence. Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383.

Agreements separating dwelling houses from land, duly filed, are evidence of ownership. Mageo v. Fuga, 4 A.S.R. 426.

Where objector to application to register land claims portion of disputed land adjacent ot land which was surveyed and registered in his family, it is probable that if claims portion where his, he would have surveyed and registered it at time he registered adjacent land. Mageo v. Fuga, 4 A.S.R. 426.

Evidence of chain of title indicates ownership of land is in government subject to condition contained in deed. Mana v. Talo, 4 A.S.R. 668.

Where land is surveyed and leased to third party, assumption is that leased land includes entire plot and that 20 feet of adjoining land not so leased nor used for other purposes is not property of lessor. Fuga v. Mageo, 4 A.S.R. 899.

That matai of family occupying a tract of land asserted ownership in legal documents required by law to be conspicuously posted and publicly recorded, and that no one objected to such assertions, is evidence tending to show that the family was occupying the land in its own right but is not dispositive of title. Sialega v. Taito (Mem.), 3 A.S.R.2d 40.

Courts can and do disregard land registrations that are clearly proved to have been procured by fraud, or in which the failure to afford required notice affirmatively appears in the record of the registration. A.S.C.A. §§ 37.0101 et seq. Ifopo v. Siatu`u, 12 A.S.R.2d 24.

Territorial registrar is charged with registering title to land only when all statutory registration procedures have been met, and court should not assume that he did not comply with this obligation. A.S.C.A. §§ 37.0101 et seq. Ifopo v. Siatu`u, 12 A.S.R.2d 24.

Trial court denial of appellant's land claim was supported by substantial evidence where his underlying contentions were inconsistent with documentary records and with the result of a previously litigated case. Moea`i v. Alai`a, 12 A.S.R.2d 91.

A land registration, effected in accordance with all statutory procedures, establishes good title against the world, and a later registration of the same land is of no legal effect. A.S.C.A. § 37.0101 et seq. Fa`aaua`a v. Tauiliili, 15 A.S.R.2d 71.

The Court will make no finding as to the traditional name of a parcel of land; any party who is held to own part of the tract in dispute is free to call it whatever he likes. Tuiasosopo v. Afoa, 16 A.S.R.2d 90.

A certificate of registration issued after compliance with the registration statutes is evidence of a title good against the world and therefore can only be issued after strict compliance with the statutory procedures. Magalei v. Atualevao, 19 A.S.R.2d 86.

Absent compelling proof to the contrary, the court will assume that the Territorial Registrar recorded a land title only after complying with his legal obligations, including notice requirements. A.S.C.A. § 37.0103. Asifoa v. Faoa, 21 A.S.R.2d 91.

Recordation of a genuine copy of a deed is permitted under certain circumstances, as being similar to the evidentiary admission of a copy of an instrument as an exception to the best evidence rule. R.O.E. 1002, 1003, 1004(1). Vaimaona v. Tuitasi, 22 A.S.R.2d 1.

Serious irregularities in land registration documents may overcome a title registration's evidentiary presumption of land ownership. Ava v. Logoai, 22 A.S.R.2d 65.

§4(7) Hearsay

SEE EVIDENCE § 8 – HEARSAY

Proof of gift of land before 1900 in accordance with Samoan custom requires evidence other than hearsay. Faaafe v. Sioeli, 2 A.S.R. 21.

When both parties to supposed land transaction are dead, testimony by interested party who was not present is hearsay and should be excluded. Fe’a v. Sisipeni, 4 A.S.R. 320.

Visit by one member of court to land that was the subject of litigation, and subsequent report of that judge to other judges, did not constitute impermissible "testimony" by the judge when both counsel had been present at the viewing of the land and no objection had been made. Vaimaona v. Paleafei, 3 A.S.R.2d 92.

Testimony by those seeking to invalidate a land registration, to the effect that they never saw the required notices posted, was insufficient to meet the heavy burden of proving that the territorial registrar ignored his sworn duty by recording title to the land without posting the required notices. Vaimaona v. Tuitasi, 12 A.S.R.2d 68.

While hearsay evidence of family histories and traditions is admissible in communal land disputes, such evidence must always be viewed with caution. Afemata v. Pasa, 25 A.S.R.2d 132.

Although it is generally accepted that title to land cannot be evidenced by hearsay, Talo v. Tavai, 2 A.S.R. 63, 68 (Trial Div. 1939), an exception to the hearsay rule exists for the "communal land-tenure system", permitting the admission of oral family histories in the absence of "title documentation." Toilolo v. Poti, 23 A.S.R.2d 130, 132 (Land & Titles Div. 1993); see Tupuola v. Tu`ufuli, 1 A.S.R.2d 80, 81 (App. Div. 1983). Malaepule v. Fa`agau, 29 A.S.R.2d 215.

§ 5 Adverse Possession

§5(1) General Provisions

Permitting “matai” to obtain title to land from members of family by adverse possession would result in injury and injustice because in Samoa members of family are subject to power of “matai”. Vili v. Faiivae, 1 A.S.R. 138.

Court finds that statute on adverse possession is applicable to Samoa since it was part of English common law at time of revolution. Talo v. Poi, 2 A.S.R. 9.

Statute of limitations and law of adverse possession do not run against Government of American Samoa. Teo v. Totoa, 2 A.S.R. 243.

Court finds it improbable that fifteen-year-old boy would enter upon land adversely, claiming it as his own. Sauafea v. Vaaitautia, 2 A.S.R. 310.

Unless it is expressly provided otherwise by law, statutes of limitation do not operate to bar suits involving public or governmental rights which are brought by, or on behalf of, state or government. Lago v. Mageo, 4 A.S.R. 287.

Neither laches nor statute of limitations run against Government of American Samoa. Mageo v. Government, 4 A.S.R. 874.

Finding that adverse possession was effected for benefit of entire family and not solely for one member was not erroneous. Ross v. Scanlan, 4 A.S.R. 913.

Adverse possession is a mixed question of law and fact; whether facts exist which constitute adverse possession is for the trier of fact, but whether facts as delineated are sufficient to constitute adverse possession is question of law. Ross v. Scanlan, 4 A.S.R. 913.

Limitation of actions and adverse possession, while facts giving rise to them are usually intertwined, are separate laws and may sometimes depend on different facts. A.S.C.A. §§ 37.0120, 43.0120(6). Roberts v. Sesepasara, 8 A.S.R.2d 43.

Because land can be owned communally in American Samoa, a communal family may obtain title to land through adverse possession. A.S.C.A. § 37.0120. Anderson v. Vaivao, 21 A.S.R.2d 95.

Land owned by ASG is not subject to acquisition by adverse possession, because the statute of limitations for adverse possession does not run against the government. A.S.C.A. § 37.0120. Anderson v. Vaivao, 21 A.S.R.2d 95.

Title to public premises cannot be acquired by adverse possession. American Samoa Gov't v. Estate of Fuimaono Tuinanau, 28 A.S.R.2d 187.

To succeed on a claim of adverse possession one must show that the possession was continuous, open, notorious, and hostile to any claim of ownership, for a period in excess of time required by the adverse possession statute then in force. Fa`atoafe v. Tuia`ana, 30 A.S.R.2d 163.

A family's adverse possession claims, which a family failed to assert at the time of an initial dispute over title registration allegedly due to lack of actual notice, cannot disturb the initial adjudication. Savane v. Lafi, 31 A.S.R.2d 31.

§5(2) Elements – Generally

Adverse possession of land must be open, notorious, hostile, continuous and visible. Salavea L. v. Ilaoa, 2 A.S.R. 15.

Evidence shows that family was in actual, open, notorious, visible, continuous, exclusive and hostile possession of land for more than twenty years, thus acquiring title by adverse possession, and unaffected by loose claims of ownership by another family. Magalei v. Maea, 2 A.S.R. 35.

Color of title is not necessary element to adverse possession in American Samoa. Talo v. Tavi, 2 A.S.R. 63.

Where possession of land by claimant has been open, notorious, actual, visible, continuous, hostile and under claim of title for more than twenty years, title vests in possessor. Tuiolosega, v. Voa, 2 A.S.R. 138.

Possession of land which has been actual, open, exclusive, continuous and under claim of title for more than twenty years vests title in adverse possessor. Sei v. Aumavae, 2 A.S.R. 396.

Evidence shows that applicant planted and occupied land, accompanied by possession which was actual, open, notorious, exclusive and under claim of title, thus barring any other private claim to ownership, through operation of statute of limitations. Soliai v. Lagafua, 2 A.S.R. 436.

Actual, open, notorious, continuous, exclusive possession under claim of right from prior to World War I to 1940 is sufficient to establish title by adverse possession. Soliai v. Levu, 2 A.S.R. 440.

Where person has been in actual, open, notorious, peaceable, exclusive, continuous, hostile and adverse possession of land for more than twenty years, he acquires title by adverse possession. Sione v. Tiualii, 3 A.S.R. 66.

Open, notorious, hostile, exclusive and continuous possession of land for more than 20 years vests ownership in possessor. Ofoia v. Pritchard, 4 A.S.R. 326.

Actual, open, notorious, hostile, exclusive and continuous occupancy of portion of land for more than 20 years confers title by adverse possession. Fau v. Wilson, 4 A.S.R. 443.

Statute provides that actual, open, notorious, hostile, exclusive and continuous occupancy of land for 20 years will bar action for recovery of real property and confer title by adverse possession sufficient against all. Lolo v. Heirs of Sekio, 4 A.S.R. 477.

Evidence establishes that possession of applicant for registration has been actual, open, exclusive, notorious and continuous. Lolo v. Heirs of Sekio, 4 A.S.R. 477.

Where parties engage in illegal land transaction, where violation constitutes a crime, deed representing conveyance is absolutely void and cannot be used as color of title in conjunction with claim of land as adverse possessor. Ross v. Scanlan, 4 A.S.R. 913.

Even if plaintiff family once had plantations on disputed land, defendant family would have become owner by virtue of open, notorious, exclusive, continuous, and hostile occupation of the land for twenty years under the adverse possession statute then in effect. A.S.C.A. § 37.0120 (prior to 1982 amendment). Leomiti v. Toluao, 11 A.S.R.2d 49.

Actual, open, notorious, hostile, exclusive and continuous occupancy of real estate for 30 years confers a title thereto by adverse possession which is sufficient against all. A.S.C.A. § 37.0120(a). Vaivao v. Craddick, 14 A.S.R.2d 108.

Acquiring land under an adverse possession statute requires open, notorious, continuous, and exclusive possession. Lualemana v. Atualevao, 16 A.S.R.2d 34.

Acquiring land through adverse possession requires actual, open, notorious, hostile, exclusive, and continuous occupancy for the statutory period. Willis v. Fai`ivae, 17 A.S.R.2d 38.

Acquiring land by adverse possession requires possession which is exclusive, continuous, open, notorious, and hostile to anyone else's claim of ownership for the statutory period. A.S.C.A. § 37.0120. Magalei v. Atualevao, 19 A.S.R.2d 86.

§5(3) Elements – Actual Possession

Where lessee occupies property through written and recorded lease, such occupation shall constitute actual, visible, exclusive and hostile possession by lessor against other claimants to property. Lutu v. Faga, 1 A.S.R. 480.

Claims of title without actual possession are never grounds for adverse possession. Salavea L. v. Ilaoa, 2 A.S.R. 15.

Family may possess land without living on it by making plantations, gathering fruits, and using land for burial ground. Salavea L. v. Ilaoa, 2 A.S.R. 15.

Possession of real property during prolonged period created presumption that possessor held under grant, the probative weight of force being dependent upon duration of possessor’s tenure, and possession in excess of twenty years creates title in possessor by statute of limitations. Togia’I v. Aumua, 3 A.S.R. 3.

It is not necessary that person claiming title under adverse possession should have been in personal possession of land, but he may claim it through agent or tenant. Fesagaiga v. Segafo, 3 A.S.R. 26.

Weight of evidence supports conclusion that parts of land used by objector to application for registration are his land through adverse possession. Fau v. Wilson, 4 A.S.R. 443.

Occupancy is necessary to establish adverse possession, but occupancy does not require living on land but includes planting, cultivating and harvesting crops or pasturing livestock. Fau v. Wilson, 4 A.S.R. 443.

§5(4) Elements – Open and Notorious Possession

In order to assert claim as adverse possessor, it must be shown that true owner had knowledge of adverse holding or that it was so open and notorious as to raise presumption of notice to true owner. Sapela v. Veevalu, 1 A.S.R. 124.

Under matai system, family which is co-tenant of land but which is not in possession does not have constructive notice of intention of possessing co-tenant to claim land as his own by fact that possessing co-tenant had exclusive possession and appropriate fruits of land for his own use for statutory period, and consequently possessing tenant does not acquire entire title by adverse possession. Leapaga v. Taumua L., 2 A.S.R. 56.

With respect to co-tenants, fact that one is in possession and other is not does not constitute ouster for purpose of adverse possession, but refusal to let co-tenant into possession and denial of co-tenant’s claim of title for whole property where excluded co-tenant has actual or constructive knowledge of facts constituting ouster, constitutes ouster which will make possessing co-tenant owner upon expiration of statute of limitations. Leapaga v. Taumua L., 2 A.S.R. 56.

True owner of land must have opportunity to learn of adverse claim and to protect rights in land, and where matai gives no indication to family that he is claiming lands individually, such occupancy is not adverse. Letele Family v. Lafoga, 2 A.S.R. 466.

§5(5) Elements – Exclusive Possession

Under Samoan custom, whenever land is unoccupied or real owner is unable to use it because of absence, relative would be entitled to occupy property and by so doing, there would be no inference that he is occupying adversely. Sapela v. Veevalu, 1 A.S.R. 124.

Under Samoan custom, members of family are in privity and cannot exercise adverse possession in relation to “matai” of family. Sapela v. Veevalu, 1 A.S.R. 124.

Tenant in common may acquire title to entire property by adverse possession by ouster of co-tenants and assertion of title to entire property in himself. Leapaga v. Taumua L., 2 A.S.R. 56.

Adverse possession cannot be predicated on possession of parent as against child, and matai stands as father in relation to family. Letele Family v. Lagoa, 2 A.S.R. 466.

Adverse possession does not begin to run in favor of claimant until he disavows idea of holding for, or in subservience to, another, and actually sets up exclusive right in himself by some clear, positive, and unequivocal act. Letele Family v. Lafoga, 2 A.S.R. 466.

To assert ownership of land by adverse possession, it is not enough to show continued occupancy, but claimant must also show that he claimed it as his own for all that time and not that he was merely living on land as matai of family. Letele Family v. Lafoga, 2 A.S.R. 466.

Exclusiveness of possession is a necessary element of title by adverse possession; if claimant shared possession with other families in communal land necessary element of adverse possession is lacking. Aigamaua Family v. Poloa, 2 A.S.R. 515.

Branch of family cannot claim title to land through adverse possession if there is evidence that they occupied land because of membership in family. Atufili v. Timoteo, 3 A.S.R. 395.

One member of family cannot acquire title to communal family land adversely to other members of family even though he has actual, open, notorious, exclusive, and continuous possession for 20 years unless he gives actual notice to other members of family of his claim of individual ownership. Tuanaitau v. Paogofie, 4 A.S.R. 375.

Alleged adverse possessor does not have exclusive possession of communal family land where members of family take fruits from land. Tuanaitau v. Paogofie, 4 A.S.R 375.

Claim of portion of communal land within plot of applicant for registration was distinguished by adverse possessor. Lolo v. Heirs of Sekio, 4 A.S.R. 477.

Party claiming ownership of disputed tract could not establish acquisition of title through adverse possession with evidence that he alone received economic proceeds of tract, since close relatives of previous owner still inhabited tract and claimant occasionally acquiesced to references to tract as possession of previous owner. Tuileata v. Amituana'i, 4 A.S.R.2d 168.

§5(6) Elements – Hostile Possession

Where claimant as adverse possessor is related to landowner and where he permits others in family to reside on land, he is neither hostile nor exclusive in his possession. Sapela v. Veevalu, 1 A.S.R. 124.

Where one enters land by agreement of owner he must quit land and give notice to owner that future possession will be adverse if title by adverse possession is to be granted. Tuitele v. Sopoaga, 1 A.S.R. 161.

Where evidence shows one person is on land by virtue of agreement of another then subsequent possession by virtue of such agreement cannot be adverse regardless of length of time of possession. Tuitele v. Sopoaga, 1 A.S.R. 161.

Fact possession of land was taken by force before cession of Samoa to United States does not prevent claim based on adverse possession. Talala v. Logo, 1 A.S.R. 166.

Statutes of limitations on recovery of land are vital to welfare of society, and even though original entry of possessor is unlawful, he is entitled to ownership when period has run if his possession meets all requirements of adverse possession. Tufaga v. Mativa, 1 A.S.R. 184.

In order to acquire title to lands by adverse possession, possession must be hostile with intent to dispossess owner, and possession under license or permission of owner is never hostile. Fanene Family v. Brown, 3 A.S.R. 260.

Where alleged adverse possessor lives on land at sufferance of member of family holding title, his possession is not actual, open, notorious, hostile, exclusive or continuous. Nua v. Leomiti, 4 A.S.R. 404.

Possession of communal family land with consent of matai cannot be adverse to family of matai. 4 A.S.R. 735.

Since many Samoan families allow other families to live on their land, "hostile" possession within the meaning of territorial statute allowing acquisition of land by adverse possession must be proved by evidence of acts unequivocally inconsistent with the ownership of the land by another family. A.S.C.A. 37.0120. Sialega v. Taito (Mem.), 3 A.S.R.2d 40.

Possession of land was not adverse but permissive where, although defendant held possession for over 30 years on land held in trust for people of the islands of Manu'a, her land use permits were signed by third parties and she sought trustee's permission to repair buildings. Tufele v. Mose, 7 A.S.R.2d 157.

If claimant of land was unaware of the identity of occupants of the land at the time suit was filed, naming the occupants as "Doe defendants" was sufficient to toll the statute of limitations. A.S.C.A. § 43.0120(6). Roberts v. Sesepasara, 8 A.S.R.2d 43.

Although a document filed in an attempt to arrest adverse possession, stating that certain persons were occupying property by permission of the signatory, was inconsistent with a prior sale of the same land to one of the named occupants by the signatory or by his predecessor in title, the document was not conclusive since the signatory and/or his predecessor might have acted inconsistently by selling the land and later filing the document. Ifopo v. Siatu`u, 10 A.S.R.2d 66.

Widow who was neither a blood member of her late husband's family nor analogous in any way to a member of the family, and whose possession of land was open, notorious, and clearly hostile to the competing claim of the husband's family, could acquire the land by adverse possession. A.S.C.A. § 37.0120. Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54.

In land title cases, permission given by an ancestor of one claimant to an ancestor of another to occupy the site in dispute may be relevant and material where one party has traditionally been subservient to and habitually rendered traditional service (tautua) to the other, since under the common law permission defeats a permittee's claim of adverse possession and grants him only a personal license which the grantor may revoke at will. Utu v. Fuata, 17 A.S.R.2d 104.

§5(7) Elements – Duration Requirement

Samoa Land Commission and High Court have held that ten years undisputed possession of land is sufficient to pass title to possessor. Talala v. Logo, 1 A.S.R. 166.

At time of decision, ten years is limitation placed on possession of land which grants title in possessor. Tufaga v. Mativa, 1 A.S.R. 184.

Where one family has pule over large tract of land for over 100 years, another family using part of the land is not entitled to ownership thereof without open and notorious possession for a period of 20 years or more and without objection of the family in which pule resides. Satele v. Afoa, 1 A.S.R. 467.

Family that has uninterrupted and adverse use of land for 40 years under claim of right has superior claim to land over family who has not used or cultivated the land for 20 years. 1 A.S.R. 475.

Family who lived on land for seventy years needed only twenty years of open, notorious and undisputed possession under claim of right to obtain title to land together with its pule. Maluia v. Tafetee, 1 A.S.R. 537.

Courts of American Samoa adopt English law of adverse possession, divesting true owner of title and vesting it in adverse possessor after twenty years of continuous possession. Talo v. Tavi, 2 A.S.R. 63.

Courts of American Samoa have adopted twenty-year state of limitations from English law on recovery of real property. Tago v. Sami, 2 A.S.R. 285.

Where party has continuous possession of land for more than 20 years and such possession is adverse, title vests in adverse possessor. Magalei v. Tago, 3 A.S.R. 185.

Possession and use of land for over twenty years vests title in possessor in accordance with doctrine of adverse possession. Tialavea v. Aga, 3 A.S.R. 272.

Actions for recovery of real property in Samoa must be brought within 20 years after cause of action accrues. Lualemana v. Filo, 3 A.S.R. 642.

Adverse possession for period of twenty years operates to divest true owner of his title and vest it in adverse possessor. Ifopo v. Lutu, 4 A.S.R. 211.

Statutory period governing acquisition of title by adverse possession is 20 years and effect of running of period is to vest title in adverse possessor. Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383.

Actions for recovery of real property must be brought within 20 years after cause of action accrues. Fau v. Wilson, 4 A.S.R. 443.

Actions for recovery of real property must be brought within 20 years after cause of action accrues. (CAS 3.1101) Fau v. Wilson, 4 A.S.R. 443.

Adverse possession for 20 years confers title “which is sufficient against all.” Laeli v. Moetoto, 4 A.S.R. 494.

Where party has possessed lands for 35 years, and other enters land claiming it from many years ago, possessing party has established title through adverse possession. Laeli v. Moetoto, 4 A.S.R. 494.

A family which has occupied a tract of land for at least thirty years, and which has on many occasions acted as the owner of the land in ways that were utterly inconsistent with the claim of another family, has acquired the land by adverse possession even if it had not done so by original occupancy. A.S.C.A. § 37.0120. Sialega v. Taito, 3 A.S.R.2d 78.

Purchaser's possession of land as lessee prior to her purchase might count toward thirty year period for adverse possession, but did not prevent the purchase from giving rise to a new cause of action for the purpose of twenty year statute of limitations. A.S.C.A. §§ 37.0120, 43.0120(6). Roberts v. Sesepasara, 8 A.S.R.2d 43.

Because the adverse possession statute was amended in 1962 to change the prescriptive period from twenty years to thirty years, occupancy beginning later than the effective date of the 1962 amendment, which has been interrupted, or which has not been exclusive at any time since 1962 must meet the thirty-year requirement in order to acquire title by adverse possession. A.S.C.A. § 37.0120. Willis v. Fai`ivae, 17 A.S.R.2d 38.

§5(8) Elements – Continuous and Uninterrupted Possession

Interruption of continuity necessary to acquire title by adverse possession occurs when adverse claimant recognized title of owner, and upon such recognition, adverse possession ceases to exist, and will not begin to run again until claimant repudiates title in owner. Sapela v. Veevalu, 1 A.S.R. 124.

To acquire title by adverse possession, possession must have been continuous and uninterrupted for statutory period. Talo v. Poi, 2 A.S.R. 9.

While actual commencement of suit will stop running of statute of limitations, where suit is voluntarily abandoned, discontinued or dismissed or is not proceeded with for considerable period of time, operation of statute will not be suspended. Tuiolosega v. Voa, 2 A.S.R. 138.

Commencement of suit prior to expiration of applicable limitation period interrupts running of statute of limitations as to all parties to action and their privies, and application to register land or objection thereto stops running of statute for benefit of adverse possessor. Sauafea v. Vaaitautia, 2 A.S.R. 310.

Mere denial by owner of right of adverse occupant or claims of title short of disturbance of rights of adverse claimant in legal sense, will not interrupt running of statute or prevent its becoming a bar. Fesagaiga v. Seigafo, 3 A.S.R. 26.

Continuity of possession is essential element of adverse possession, and when possession is not continuous for full statutory period, it ceases to be effective as soon and as often as break occurs, for law restores constructive possession of owner. Fesagaiga v. Alo-Pep, 3 A.S.R. 118.

Where family fears occupant may claim lands through adverse possession, matai may file family’s claim to land, thus arresting running of statute. Fanene Family v. Brown, 3 A.S.R. 260.

Even where alleged adverse possessor can prove elements of adverse possession, claim of adverse possession would fail where title holder files instrument arresting statutory period in accordance with provision of code. (CAS 907) Nua v. Leomiti, 4 A.S.R. 404.

Where counsel attempts to introduce into evidence instrument arresting statute of limitations in connection with acquiring title to land by adverse possession, court will ascertain whether instrument was filed with Clerk of Court and if it was, will admit it into evidence. Nua v. Leomiti, 4 A.S.R. 404.

None of the claimants of a disputed tract acquired title through adverse possession when no one of them ever occupied any portion of it continuously and openly for thirty years in a manner hostile to the rights of the original owners. Satele v. Uiagalelei, 6 A.S.R.2d 143.

§5(9) Tacking

Claimants to land who have been in actual, open, notorious, continuous, visible, exclusive and hostile possession of land for over twenty years acquire title by means of adverse possession, and possession of ancestor may be tacked on to possession of heirs to determine period of possession. Faaafe v. Sioeli, 2 A.S.R. 21.

Possession of predecessor in interest may be tacked on to present adverse possessor for purpose of computing period of adverse possession. Talo v. Tavi, 2 A.S.R. 63.

Adverse possession will apply where possession of successive occupants are in privity, and where those holding actual possession are holding in subordination and with permission of trustee. Fruean v. Mageo, 2 A.S.R. 591.

Relationship of donor of land to donee will supply necessary privity to permit tacking of adverse possession of former onto latter. Fesagaiga v. Seigafo, 3 A.S.R. 26.

When the Marines took possession of land during the war, it was always with permission of Samoans, and period during which Marines were in possession of land may be tacked on to period in which persons from whom they got permission to use land were in possession for purpose of determining ownership by adverse possession. Lualemana v. Filo, 3 A.S.R. 642.

Court may tack period of time lands were used by United States Marines with permission of land possessors in order to determine period of possession. Lualemana v. Chiefs of Aitlagi, 4 A.S.R. 383.

Period of possession of predecessor in title may be tacked onto possession of heirs in determining period of adverse possession. Lolo v. Heirs of Sekio, 4 A.S.R. 477.

Evidence established fact that applicant’s predecessor or person occupying under applicant’s predecessor’s authority possessed land from 1920 until 1945, and that applicants or person occupying under applicant’s authority possessed land from 1945 to present time. Lolo v. Heirs of Sekio, 4 A.S.R. 477.

§ 6 Quieting Title

§6(1) Generally

Where evidence sustains ownership of land in family at time of cession of Samoa to United States, ownership is still in family in absence of voluntary conveyance, condemnation or adverse possession in another. Talo v. Poi, 2 A.S.R. 9.

Where evidence establishes that family owned land before cession of lands to United States, family continues to own land unless it lost title through adverse possession, conveyance or condemnation since then, because cession did not change private rights in land and control passed to each succeeding matai of family. Salavea L. v. Ilaoa, 2 A.S.R. 15.

Cession of Samoa to United States did not affect private land ownership which was determined in accordance with Samoan custom, but since cession, these customs are subject to written law and so much of common law of England as is applicable to conditions of Samoa. Talo v. Tavi, 2 A.S.R. 63.

Defects in property titles in American Samoa may be cured by operation of statute of limitations. Siva v. Asoau, 2 A.S.R. 113.

Cession of Manua Islands to United States did not affect private land titles. Siva v. Asoau, 2 A.S.R. 113.

Family who used and occupied land at time of cession to United States was entitled to land at that time. Siva v. Asoau, 2 A.S.R. 113.

Cession of Samoa to United States did not affect private rights in property. Fiailoa v. Meredith, 2 A.S.R. 129.

Cession of islands of Samoa to United States Government did not affect private land titles, and ownership preceding that time continued after cession. Fesagaiga v. Alo-Pepe, 3 A.S.R. 118.

Holder of inferior estate may surrender his interest in land by reversion, remainder, mutual agreement or failure to maintain physical possession of land. Talagu v. Te’o, 4 A.S.R. 121.

Since land owned by Samoans before cession to United States was retained by them after cession, it could be obtained by government only by negotiation or condemnation. Lago v. Mageo, 4 A.S.R. 287.

Supreme Court of Samoa had jurisdiction to grant title to land before United States Administration. Ofoia v. Pritchard, 4 A.S.R. 326.

Court finds proper name for land. Nua v. Leomiti, 4 A.S.R. 404.

Decree of High Court provides link in chain of title. Fau v. Wilson, 4 A.S.R. 443.

Proper procedure to determine claims of various grantees of single grantor is quiet title action, not declaratory judgment. Moon v. Falemalama, 4 A.S.R. 836

To recover land, legal owner must exercise right against wrongful possessor. Mageo v. Government, 4 A.S.R. 874.

Damages should not be awarded for mental anguish, ridicule, and embarrassment caused by one family having claimed to own land that was actually owned by another. Sialega v. Taito, 3 A.S.R.2d 78.

Action by landowner, whose title to the land has recently been affirmed by trial and appellate courts, to evict persons who were not parties to the case should have been brought as a separate action rather than as a post-judgment motion in the case that adjudicated title to the land. Fonoti v. Fagaima, 5 A.S.R.2d 158.

Defendant who built on land long occupied by plaintiffs with full knowledge of plaintiffs' possession and over their objections was a bad faith possessor who would be obliged to remove his building without compensation. Olo v. Tulisua, 6 A.S.R.2d 129.

Where it did not appear from the evidence that a common grantor had sold two parties the same land, but on the contrary the two deeds clearly described two different adjoining parcels, a defect in the title conveyed to the first purchaser would not give him a right to the land the common grantor had conveyed to the second purchaser. Lutu v. Semeatu, 13 A.S.R.2d 88.

Persons continuing to occupy and cultivate land adjudicated as belonging to another family are subject to sanctions for contempt. Lualemaga v. Asifoa, 23 A.S.R.2d 17.

In the absence of statutory authorization for privity exceptions in probate proceedings, any claims with respect to the land, lease, and improvements must be determined in an independent action. Estate of Jennings, 24 A.S.R.2d 3.

The holder of legal title to property is the presumed owner of full beneficial title, rebuttable only by clear and convincing evidence of inequity warranting a trust remedy. Stephens v. Stephens, 30 A.S.R.2d 55.

§6(2) Burden of Proof

Burden of proof rests on party asserting claim to property as against possessor thereof, and unless sufficient evidence of claim presented, claimant will not obtain judgment. Sapela v. Mageo, 1 A.S.R. 143.

If person wishes to lay claim to land cultivated and possessed by others on grounds that such cultivation and possession is by license of claimant, then burden of proff as to existence of license is on such claimant. Fuimaono v. Leasiolagi, 1 A.S.R. 189.

Civil cases are decided upon weight on evidence and while evidence on neither side may be strong, the side with the strongest evidence wins. Asuega v. Lauti, 1 A.S.R. 549.

Burden rests on those who assert rights in land against possessor. Fanene v. Mauga, 2 A.S.R. 144.

Court finds weight of evidence shows defendant to be possessor of land since 1942, having authorized others to look after land and gather fruits from it. Ofoia v. Pritchard, 4 A.S.R. 326.

Weight of evidence established that pastor’s new house is on land given for pastor’s residence even though house is larger than house it replaces. Muasau v. Pita, 4 A.S.R. 337.

Applicant to register land has failed to prove ownership by preponderance of evidence. Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383.

Applicant to register land does not demonstrate ownership by preponderance of evidence where he fails to show his family cleared land or even lived for extended period of time. Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383.

Where evidence of objector to application to register land is not persuasive or substantiated, objector fails to prove claim to portion of surveyed land. Mageo v. Fuga, 4 A.S.R. 426.

Where plaintiff fails to prove right to land by preponderance of evidence, court will dismiss his petition even though defendant has also failed to prove his right of ownership. Paleafei v. Leatisua, 4 A.S.R. 496.

Common law principle that "plaintiff must recover on the strength of his own title, not on the weakness of the defendant's" did not prevent court from finding that plaintiff was entitled to possession of land although neither party had proven ownership, when plaintiff had been in possession for many years and had recently been dispossessed by defendant. Olo v. Tulisua, 6 A.S.R.2d 129.

Evidence of very recent assertions of ownership to disputed land, after the occurrence of events which had enhanced the value of the land and given rise to the action being tried, was of little use to court attempting to determine true owner of the land. Moea`i v. Te`o, 8 A.S.R.2d 85.

Court's appraisal of the value of real estate is not a conclusion of law requiring support from findings of fact, but is itself a finding of fact. Roberts v. Sesepasara, 8 A.S.R.2d 124.

Plaintiff's suit to evict defendant from land on which he recently built a home was denied where neither party showed a better title to land or a superior right to possess it, since the senior matai of neither family testified, the evidence given was contradictory, and neither party showed an earlier attempt to register title or convincing evidence of prior use and occupation. Hunkin v. Paaka, 14 A.S.R.2d 23.

Plaintiff's claim to disputed land was superior to that of defendant, who attempted to locate the boundaries noted in the original land grant based on scarce data and various assumptions which were plausibly rebutted by plaintiffs. Vaivao v. Craddick, 14 A.S.R.2d 108.

Plaintiffs' claim to disputed land was superior to that of defendant, where evidence indicated land was exclusively used and occupied by plaintiff families within living memory and family through whom defendant claimed ownership had never exercised proprietary rights or interfered with plaintiffs' possession or exercise of such rights. Vaivao v. Craddick, 14 A.S.R.2d 108.

Claim for unspecified damages to land was denied absent proof of damages. Vaivao v. Craddick, 14 A.S.R.2d 108.

Petition for quiet title was denied absent a survey and proof of compliance with the title registration statute. A.S.C.A. § 37.0101 et seq. Vaivao v. Craddick, 14 A.S.R.2d 108.

Plaintiff failed to carry burden of proving land ownership when his evidence largely consisted of his memories, especially when defendants' evidence as to leases and actual control clearly predominates and is more plausible. Tuato`o v. Congregational Christian Church, 15 A.S.R.2d 10.

Once the registered owner of land has shown that the area in controversy is the same land previously registered, the burden then shifts to the challenger, who can only prevail by showing that his family subsequently acquired the land by deed from record owners or by adverse possession. A.S.C.A. § 37.0120. Avegalio v. Leatumauga, 18 A.S.R.2d 9.

§ 7 Alienation of Land

§7(1) Protective Policy

Regulations prohibit sale of native lands to foreigners, but also provide for establishment of trust in favor of children or marriage between Samoan and non-native. Sapela v. Veevalua, 1 A.S.R. 124.

Governor’s power to approve alienation of lands includes sale, gift, exchange, inheritance or devisement. Willis v. Willis, 2 A.S.R. 276.

Person half-European cannot acquire interest in land except freehold, since alienation of lands is prohibited to anyone who is not three-fourths Samoan blood. CAS 1216. Willis v. Willis, 2 A.S.R. 276.

Naval Regulation prohibited alienation of native lands but excepted son or daughter legally married to non-native or their issue, but permitting grant of trust. Atufili v. Timoteo, 3 A.S.R. 395.

Court takes judicial notice that most valuable tangible thing that Samoans possess is land and that average Samoan needs statutory protection regarding alienation of land. Haleck v. Lee, 4 A.S.R. 519.

Governor is charged with protecting Samoan people with regard to alienation of their lands and to take care that laws are faithfully executed. Const. Art II, Sec 9, Art. IV. Haleck v. Lee, 4 A.S.R. 519.

The Code of American Samoa lacks Statute of Frauds but full performance and detrimental reliance in agreement to convey real property ar exception to Statute in any event. Lavata’I v. Fuimaono, 4 A.S.R. 824.

Territorial statute dealing with "alienation of land" provides substantive restrictions on alienation and also sets forth procedures for the lawful alienation of land, which are designed to ensure that land will not be alienated lightly even in the absence of a specific substantive restriction. A.S.C.A. §§ 37.0201 et seq. Vaimaona v. Tuitasi (Mem.), 13 A.S.R.2d 76.

Final step in the statutory procedure for alienation of communal land is recordation of the transaction with the territorial registrar; when a buyer and seller comply with all the statutory provisions for alienation of land, including this recordation provision, the buyer becomes the owner of whatever interest the seller had in the land. A.S.C.A. § 37.0210. Vaimaona v. Tuitasi (Mem.), 13 A.S.R.2d 76.

Distinction between separate statutory procedures for registration "of the land" and "of the deed" is best characterized as a distinction between substance and procedure: compliance with the land registration statute protects the landowner by precluding rival claimants from attacking the record owner's title, whereas the statute on land alienation leaves rival claimants procedurally free to object to the record owner's title but provides that anyone who complies with its provisions becomes the lawful owner of the land. A.S.C.A. §§ 37.0101 et seq., 37.0201 et seq. Vaimaona v. Tuitasi (Mem.), 13 A.S.R.2d 76.

It would be to the advantage of a party who purchases land that has never been previously registered to apply for registration in accordance with both the "titles" chapter and the "alienation" chapter. A.S.C.A. §§ 37.0101 et seq., 37.0201 et seq. Vaimaona v. Tuitasi (Mem.), 13 A.S.R.2d 76.

Territorial statute on alienation of land does not prohibit the alienation of communal lands, but does prohibit such alienation without the written approval of the Governor or to any person who has less than one-half native blood. Vaimaona v. Tuitasi (Mem.), 13 A.S.R.2d 76.

A land owner with title good against the world can alienate his land in a number of ways, including a stipulated judgment. Fauolo v. Satele, 15 A.S.R.2d 141.

The Land Commission carried out its duty to prevent "improvident alienation" of land by asking the sa`o if he had consulted with his family before conveying communal land, but the Commission is under no obligation to absolutely prevent such a conveyance. A.S.C.A. § 37.0203(c). Vaimaona v. Tuitasi, 18 A.S.R.2d 88.

When the issue of the alienation of a parcel of communal land was improperly referred to the Secretary of Samoan Affairs instead of being the subject of a Land Commission hearing, the action was dismissed as being prematurely before the court. Tuioti v. Fonoti, 24 A.S.R.2d 100.

The Revised Constitution of American Samoa envisions vigorous constitutional and statutory protection for Samoan ownership of land. Craddick Dev. Inc. v. Craddick, 28 A.S.R.2d 117.

The alienation restriction of A.S.C.A. § 37.0204(b) applies to individually owned land by its language encompassing "any lands except freehold lands." Craddick Dev. Inc. v. Craddick, 28 A.S.R.2d 117.

Alienation, as defined by A.S.C.A. § 37.0201(a), includes conveyance of a beneficial interest in trust or the conveyance of other partial interests in land. Craddick Dev. Inc. v. Craddick, 28 A.S.R.2d 117.

While A.S.C.A. § 37.0205 allows trusts for individually owned land, a Samoan proprietor must create the trust for the benefit of a son or daughter married to a nonnative, or for grandchildren arising from the mixed-race marriage. Craddick Dev. Inc. v. Craddick, 28 A.S.R.2d 117.

The land alienation laws were not written for the benefit of the individual Samoan proprietor of land, and therefore do not depend on his/her good faith for reversion to occur. A.S.C.A. § 37.0204(a) exists for the preservation of the land and culture of Samoa for the Samoan people collectively. Craddick Dev. Inc. v. Craddick, 28 A.S.R.2d 117.

§7(2) Relation to Mortgages & Creditors

SEE SECURED TRANSACTIONS § 11 – MORTGAGES

Territorial statute providing that court should set payments on a judgment in accordance with debtor's ability to pay did not defeat creditor's right to foreclose a chattel mortgage. A.S.C.A. §§ 37.1002, 37.1103, 43.1501. R.S.T.T.A.N. Hisatake, Inc., v. Dullabhbhai K. Patel & Co., Ltd., 3 A.S.R.2d 99.

Party who took possession of property, took over payments on debt owed by property owner and secured by a mortgage on the property, and executed a new document purporting to be a mortgage on the property, did not thereby acquire ownership of property. Filioali'i v. Adams, 3 A.S.R.2d 105.

Territorial statute prohibiting sale of real property of a Samoan to satisfy a judgment does not prohibit judgment creditor from recovering the cash proceeds resulting from a voluntary sale of property by the judgment debtor. A.S.C.A. § 43.1528(a). Te'o v. Continental Insurance Co., 6 A.S.R.2d 135.

Policy underlying statutory prohibition on sale of Samoan real property to satisfy judgment, unlike policy underlying statutory homestead exemptions in the United States, is to discourage alienation of land; a Samoan who has voluntarily alienated his land and converted it into cash has placed himself not only outside the language of the statutory protection but also beyond its rationale. A.S.C.A. § 43.1528(a). Te'o v. Continental Insurance Co., 6 A.S.R.2d 135.

Although real property of a Samoan may not be sold under a writ of court to satisfy a judgment, the proceeds from a voluntary sale of such property are not exempt from execution to satisfy a judgment. A.S.C.A. § 43.1528(a). Tedrow v. Manuma, 12 A.S.R.2d 51.

Purpose of territorial statute providing that real property of a Samoan may not be sold under a writ of court to satisfy a judgment is to protect land held by Samoans from being involuntarily alienated, and is not served by exempting from judgment the proceeds of voluntary sales. A.S.C.A. § 43.1528(a). Tedrow v. Manuma, 12 A.S.R.2d 51.

Analogy between territorial statute prohibiting forced sale of real property owned by a Samoan to satisfy a judgment and statutes in other jurisdictions exempting the proceeds of a homestead sale from execution of judgment is not entirely helpful; the purpose of the homestead exemption is to protect a rather small investment as a minimum means of survival for the debtor, whereas the Samoan land exemption applies to all land owned by a Samoan no matter how extensive the holdings, and once the land is voluntarily sold the policy against alienation is no longer served by protecting the proceeds. A.S.C.A. § 43.1528(a). Tedrow v. Manuma, 12 A.S.R.2d 51.

Non-Samoan who had intentionally permitted his Samoan spouse to be named as the purchaser of property because as a Samoan she was legally eligible to purchase it, could not escape the consequences of her being named as sole purchaser and had no protected legal interest in the property although he had paid the purchase price and built a house on the property. Tedrow v. Manuma, 12 A.S.R.2d 51.

§7(3) Oral Conveyances

If purchaser of land is in possession under parol contract of sale and holds adversely to seller from moment of payment or performance of conditions of contract, although deed is not executed, and if possession continues through period of statute of limitations, purchaser acquires title. Sione v. Tiualii, 3 A.S.R. 66.

Court finds it improbable that Samoan could write contract to sell land at time when few Samoans could write, before government was established in 1900. Ofoia v. Pritchard, 4 A.S.R. 326.

Oral agreement to convey land must be clear and definite to be enforceable. Lavata’i v. Fuimaono, 4 A.S.R. 824.

Forbearance of civil claim is sufficient consideration to support oral conveyance of land. Lavata’i v. Fuimaono, 4 A.S.R. 824.

Court will enforce oral agreement conveying land, if promisee detrimentally relies on same and foregoes objecting to promisor’s registration of land. Lavata’i v. Fuimaono, 4 A.S.R. 824.

A verbal promise to convey any interest in land is not legally binding. American Samoa Gov't v. Meredith, 28 A.S.R.2d 10.

§7(4) Void Conveyances

Man cannot pass title to property that he cannot own because law prohibit his owning it, by making deed to it, nor does recording of such deed pass title to property, and attempt to evade law by conveying title to full-blooded Samoan is void because grantor, under law, has not title to convey. Willis v. Willis, 2 A.S.R. 276.

Deed conveyed by one whose power to convey is withheld by statute does not create color of title in transferee. Ross v. Scanlan, 4 A.S.R. 913.

Instrument to pass title to land is ineffectual under Regulation when it is not duly registered, and where there is no registration, conveyance is void. Fiu v. Sopoaga, 1 A.S.R. 210.

A proffered "settlement" of an already litigated claim, purporting to "adjust" boundaries established by the court, has no effect when it (1) was never judicially approved; (2) resulted from negotiations between a licensed legal practitioner and an adverse party represented by counsel in the absence of the latter party's counsel; (3) clearly results in disadvantage to the latter party; (4) was renounced by the latter party soon thereafter; and (5) bears a close resemblance to an earlier "settlement" asserted in court by the legal practitioner, the existence of which the adverse party denied immediately after having consulted his attorney. Te'o v. Sotoa, 5 A.S.R.2d 90.

Court may set aside a transfer of property if it is determined to be a fraudulent conveyance designed to defeat rights of the transferor's creditors. Te'o v. Continental Insurance Co., 6 A.S.R.2d 135.

Judicial scrutiny of alleged fraudulent conveyance should include consideration of whether the transaction was attended by "badges of fraud" including indebtedness of the transferor, lack of consideration for the transfer, a close family relationship between the parties to the transfer, pendency or threat of litigation against the transferor, reduction or depletion of the transferor's estate, and retention of physical possession of the property by its former possessors after the transfer has taken place. Te'o v. Continental Insurance Co., 6 A.S.R.2d 135.

Where equitable owner of land, soon after the issuance of a large judgment against her, caused title to be vested in her children with no return consideration and no change in possession of the land, the conveyance was fraudulent and should be set aside at the request of judgment creditor. Te'o v. Continental Insurance Co., 6 A.S.R.2d 135.

Where land of which judgment debtor was the equitable owner had been fraudulently conveyed to judgment debtor's minor children, then caused by debtor and her husband to be sold by the children to a third party, proceeds from sale to third party were subject to seizure by judgment creditor. Te'o v. Continental Insurance Co., 6 A.S.R.2d 135.

Where the registered owners of land acquired it from plaintiff by fraud, a constructive trust in favor of plaintiff was properly imposed against both the land and proceeds from its sale. Fania v. Sipili, 14 A.S.R.2d 70.

Where plaintiff withdrew his objection to registering title to land in his brother's name believing that the disputed land was being split three ways, the misrepresentations of his brother and his nephew upon which plaintiff relied constituted fraud. Fania v. Sipili, 14 A.S.R.2d 70.

Defendants misrepresented to plaintiff that disputed land would be split three ways and fraudulently induced him to withdraw his objection to their registration of it by assuring him that the split was in process, allowing him continued unrestricted access to the land, and signing the building permit that allowed him to build a home on the land. Fania v. Sipili, 14 A.S.R.2d 70.

Where the registered title to land was procured by fraud, the records of the Territorial Registrar may be amended to show the correct owners even though such registration proceedings usually have in rem effect and certificates of title obtained thereby are ordinarily conclusive. A.S.C.A. § 37.0101. Fania v. Sipili, 14 A.S.R.2d 70.

According to the Restatement of Restitution § 167, "[w]here the owner of property transfers it to another, being induced by fraud, duress or undue influence of a third person, the transferee holds the property upon a constructive trust for the transferor, unless before notice of the fraud, duress or undue influence the transferee has given or promised to give value." Sipili v. Fania, 17 A.S.R.2d 96.

When real property was obtained by constructive fraud or undue influence, violating a fiduciary relationship, a constructive trust provides the remedy to transfer the property to the person entitled to it. Jennings v. Jennings, 21 A.S.R.2d 40.

§7(5) Dedication of Land

No writing or formal ceremony is necessary for dedication of land; all that is necessary to validity of dedication is assent and intent of owner to appropriate it to public use and acceptance of dedication, which may be demonstrated by improvements on land and continued possession. Leiato v. Satele, 2 A.S.R. 34.

Where land has been dedicated for missionary purposes, missionaries may continue to occupy land for so long as it is used for purpose for which dedicated. Leiato v. Satele, 2 A.S.R. 341.

Legal effect of dedication of land for church purposes is not to deprive owner of title, church or public acquiring only easement in land. Leiato v. Satele, 2 A.S.R. 341.

Where missionaries have occupied land for at least thirty-six years for church purposes, and evidence supports that they were given use of land by matai after consultation with family, court will find common law dedication of land for use of missionary. Leiato v. Satele, 2 A.S.R. 341.

Land claimants’ failure to object for 13 years to use of “their” land as church, supports conclusion that they dedicated portion of “their” land for church purposes. Gi v. Taetafea, 2 A.S.R. 401.

Land may be dedicated by owner for church purposes, and gifts for pious and chartiable uses will be upheld by court so long as land is used for these purposes. Togia’i v. Aumua, 3 A.S.R. 3.

Dedication of land for church purposes conveys only easement in land and not fee simple; fee remains in donor with easement held by church or public in trust. Togia’i v. Aumua, 3 A.S.R. 3.

Use of land dedicated for church purposes as homes for church personnel is consistent with dedication. Moea’i v. Corp. of Presiding Bishop, 4 A.S.R. 36.

Use of land dedicated for church purposes as home for missionaries is consistent with dedication. Moea’I v. Corp. of Presiding Bishop, 4 A.S.R. 36.

Use of land dedicated for church purposes as church cemetery is consistent with dedication. Moea’i v. Corp. of Presiding Bishop. 4 A.S.R. 36.

Use of land dedicated for school purposes as athletic field for students is consistent with dedication. Moea’i v. Corp. of Presiding Bishop, 4 A.S.R. 36.

Grant of determinable fee is where if land ceases to be used for purposes for which given, it reverts to donors or heirs of donors. Muasau v. Pita, 4 A.S.R. 337.

Court finds land was given to church, before government was established for residence of pastor, with reversionary right in donor or heirs should it cease to be used as pastor’s residence. Muasau v. Pita, 4 A.S.R. 337.

Fact name of church which is donee of land has been changed is immaterial in determining church’s right to use the land. Muasau v. Pita, 4 A.S.R. 337.

§7(6) Gifts

Parol gift of land, accompanied by possession by donee, will be enforced in equity when donee has been induced by promise of gift to make valuable improvements to land of permanent nature to such extent as to render revocation of gift unjust, inequitable and fraud upon donee. Fiailoa v. Meredith, 2 A.S.R. 129.

Parol gift of land accompanied by possession by donee will be enforced in equity, when donee has been induced by promise of gift to make valuable improvements in land of permanent nature. Fanene v. Mauga, 2 A.S.R. 144.

Uncorroborated contention by matai that use of lands were given to donees for services rendered and titles does not have decisive bearing on court’s determination that donees became outright owners through long term use and possession. Fanene v. Mauaga, 2 A.S.R. 144.

Where matai allegedly conveyed conditional gifts of land to numerous persons for use only, but donees considered lands to be outright gifts, and held possession as such for many years, investing much in development of lands, court finds it inequitable to dispossess donees of lands. Fanene v. Mauga, 2 A.S.R. 144.

Where pastor has built house on land allegedly given to him 37 yers ago, court will assume that gift was for purpose of pastorate in accordance with Samaon customs. Aulava v. Sunia, 2 A.S.R. 543.

Supposed gift of land within jurisdiction of United States Naval Station was void in 1902 after promulgation of regulation prohibiting alienation of native lands. Fe’a v. Sisipeni, 4 A.S.R. 320.

Regulation prohibiting alienation of native land would make gift of land absolutely void. Fe’a v. Sisipeni, 4 A.S.R. 320.

Where there is no satisfactory proof man owned virgin bush, he cannot make gift of it. Fe’a v. Sisipeni, 4 A.S.R. 320.

Donor of land cannot reclaim land because he does not approve donee’s giving of deed to government. Mana v. Talo, 4 A.S.R. 668.

§ 8 Registration of Land

§8(1) General Provisions

Proceedings for registration of land titles are valid and not in violation of Constitution of United States, which protects fundamental rights of Samoan people. Molitui v. Pisa, 2 A.S.R. 268.

A land title registration, completed according to proper statutory procedures, establishes good title against the world. Absent evidence of fraud or non-compliance with statutory procedures, registration of title cannot later be questioned. Tulafono v. Semeatu, 29 A.S.R.2d 193.

A landowner cannot register title to land which has been previously registered. A.S.C.A. § 37.0101(a). Uiliata v. Puailoa, 31 A.S.R.2d 35.

Once title to land is registered, the prohibition against further registrations is an overriding policy favoring finality in title registrations that have been properly completed. Uiliata v. Puailoa, 31 A.S.R.2d 35.

A family’s objection that remains on file with the Territorial Registrar’s Office, precludes another family from receiving a certificate of title registration to land. See A.S.C.A. 37.0101(b). Tuputala v. Sagapolutele, 31 A.S.R.2d 48.

An offer of registration of communal land must be made by the sa`o, which requirement may not be delegated. A.S.C.A. § 37.0102(d). The offer to register must also be accompanied by a survey requested by the sa`o, a mandatory requirement. Id. Tinitali v. Maisa, 31 A.S.R.2d 114.

§8(2) Land & Titles Division

SEE EVIDENCE § 3(2) – LAND & TITLES DIVISION

Territorial statute giving court power to suspend procedural rules that would lead to inequitable result does not give court power to suspend rules of substantive law. A.S.C.A. § 3.0242. Ape v. Puagele, 3 A.S.R.2d 109.

Court had no power to create a new kind of land tenure inconsistent with Samoan customary law. Ape v. Puagele, 3 A.S.R.2d 109.

Pursuant to power to make "such order as to him may seem just" in any land case, Chief Justice or Associate Justice of High Court need not stop at denying plaintiff's meritless claim for relief, but may issue preliminary injunction restraining plaintiff from interference with rights of defendant as delineated in earlier judgment. A.S.C.A. § 43.0304. Sialega v. Taito, 5 A.S.R.2d 99.

Statutory standard of "natural justice and convenience" requires that in land mattersa party eventually be accorded his day in court and therefore, although the court prefers that all parties be present at a hearing, it will proceed without the defendants where they have continually postponed the trial date and failed to appear after proper notice of the trial date. A.S.C.A. § 3.0242. Ava v. Moe, 8 A.S.R.2d 95.

Proposed settlement of previously litigated land claim which purports to adjust the boundaries set by the court's judgment should ordinarily be submitted to court for its approval. Estate of Sotoa v. Te`o, 8 A.S.R.2d 165.

Appellate division of territorial court reviews findings of fact by land and titles division for clear error. A.S.C.A. § 43.0801(b). Tuileata v. Amituana`i, 8 A.S.R.2d 173.

Where each party has presented evidence to the trial court which supports its own claim to land ownership, the trial court's findings will not be disturbed on appeal unless clearly erroneous. A.S.C.A. § 43.0801(b). Suapilimai v. Faleafine, 9 A.S.R.2d 16.

When the High Court dismisses cases for want of diligent prosecution, civil actions will be dismissed with prejudice if good cause is not shown to the contrary, but land-and-titles actions will be dismissed without prejudice. Jennings v. Jennings, 19 A.S.R.2d 34.

Controversies relating to land are under the exclusive jurisdiction of the Land and Titles Division. A.S.C.A. § 3.03089(b). Meredith v. Koko, 28 A.S.R.2d 149.

Upon an involuntary dismissal of a land dispute, the court’s failure to direct the Registrar to register title to the land with one of the parties indicated that the involuntary dismissal would be "without prejudice." Tuputala v. Sagapolutele, 31 A.S.R.2d 48.

The court recognizes finality in Land and Titles decisions as an especially significant public policy interest, and even under its equitable powers, will refuse to entertain the merits of a claim raised thirty years after the court has issued a final order. Maresala v. Patea S. of Vatia, 31 A.S.R.2d 52.

The court does not rely exclusively on lease descriptions to determine the physical areas involved in a land dispute. Judges personally conduct site visits to ascertain the area of land in dispute. Alaimalo v. Etimani, 31 A.S.R.2d 67.

§8(3) Statutory Requirements - Announcements and Notice

Failure to announce and post notice of proposed registration of land in same village violates statute and voids registration of land. Muagututi’a v. Vaovasa, 4 A.S.R. 105.

Statute requires survey to be accompanied by valid certificate of surveyor to effect that applicant gave notice in village at meeting of chiefs of time and place of survey. CAS 10.0112. Tuia v. Savea, 4 A.S.R. 483.

Certificate of notice to public which refers to survey conducted 17 years earlier does not comply with statute. Tuia v. Savea, 4 A.S.R. 483.

When neither party to a land dispute established his ownership of the disputed tract, and action was not attended by registration procedures that would provide notice of the dispute to all possible claimants, court would make no finding of ownership. Olo v. Tulisua, 6 A.S.R.2d 86.

Registration of land not performed in accordance with statutory procedure is void. A.S.C.A. §§ 37.0102, 37.0201 et seq. Faleafine v. Suapilimai, 7 A.S.R.2d 108.

Land registration performed in accordance with statutory procedures will be given full effect even though party who might have objected did not discover the proposed registration in time to object. A.S.C.A. §§ 37.0101 et seq. Faleafine v. Suapilimai, 7 A.S.R.2d 108.

Statutory standard of "natural justice and convenience" requires that in land matters a party eventually be accorded his day in court and therefore, although the court prefers that all parties be present at a hearing, it will proceed without the defendants where they have continually postponed the trial date and failed to appear after proper notice of the trial date. A.S.C.A. § 3.0242. Ava v. Moe, 8 A.S.R.2d 95.

Where statutory scheme including land registration procedure and restrictions on alienation of communal land effected its own reconciliation of competing policies, there was no need for a court to fashion a new and different one by refusing to enforce land registration statute. A.S.C.A. §§ 37.0101 et seq., § 37.0204. Ifopo v. Siatu`u, 12 A.S.R.2d 24.

Court could not conclude that notice required by statute was not given simply because the registrar's file contained no document attesting such notice, or because a number of witnesses testified that they never saw any notices. A.S.C.A. §§ 37.0101 et seq. Ifopo v. Siatu`u, 12 A.S.R.2d 24.

Land registration statute cannot have the intended effect of affording finality to disputes and security to titles if court is prepared to conduct its own de novo review of whether there was compliance with the statute in every case where non-compliance is alleged; rather, court must assume --- and absent compelling evidence to the contrary must conclude --- that territorial registrar recorded a title only after complying with his obligations under the law. A.S.C.A. §§ 37.0101 et seq. Ifopo v. Siatu`u, 12 A.S.R.2d 24.

Statute providing that "no affidavit affecting the chain of title to real estate may be filed for record" without first being posted for sixty days does not apply to registrar's certificate that notice of offer of land registration has been posted for sixty days, since (1) land registration statute does not require an affidavit or even an unsworn certificate of posting, but only that posting in fact be done; and (2) requiring that an affidavit of posting itself be posted would create an infinite regress under which no document could ever be filed and no land ever registered. A.S.C.A. §§ 37.0103, 37.0112. Meafua v. Taliu, 13 A.S.R.2d 13.

Testimony of matai that he always attended village council meetings and always looked at the post on which notices were posted, but had not heard the opposing party's survey announced and had not seen notice of her registration posted, was insufficient to rebut the presumption of validity of certificates by officials charged with announcing the survey and posting the notice, especially where matai admitted that he frequently travels abroad and may have done so during the time in question. A.S.C.A. § 37.0101 et seq. Meafua v. Taliu, 13 A.S.R.2d 13.

Court must assume, and absent compelling proof to the contrary must conclude, that territorial registrar recorded a title only after complying with his obligations under the law. A.S.C.A. § 37.0101 et seq. Meafua v. Taliu, 13 A.S.R.2d 13.

That territorial registrar's office had abandoned its former practice of using unsworn certificates rather than notarized affidavits as evidence of posting, and that the new practice was more desirable, did not render the former practice illegal. Meafua v. Taliu (Mem.), 13 A.S.R.2d 74.

Land registration statute does not require that posting of notices be evidenced by an affidavit or by any other particular form of notice. A.S.C.A. §§ 37.0101 et seq. Vaimaona v. Tuitasi (Mem.), 13 A.S.R.2d 76.

Territorial statute providing for the registration of instruments, as opposed to the registration of title itself, does not specify posting or any other particular form of notice prior to registration. A.S.C.A. § 37.0210. Vaimaona v. Tuitasi (Mem.), 13 A.S.R.2d 76.

Where certificate of required posting of notice said that notice was posted at "the Administration Building" rather than at "the Court House" as required by statute, the court would take judicial notice that the certificate tracked the language of a former statute and that the registrar had for some years posted notice not at the Administration Building but at the Court House, which was itself the former Administration Building. A.S.C.A. § 37.0103. Vaimaona v. Tuitasi (Mem.), 13 A.S.R.2d 76.

Court may disregard land registrations if the failure to give statutory notice appears in the registration record itself. A.S.C.A. § 37.0101 et seq. Afualo v. Fanene, Pualioa v. Afualo, 15 A.S.R.2d 48.

Courts may disregard land registrations if the failure to give notice, as required by statute, appears in the registration record itself. A.S.C.A. § 37.0101 et seq. Fa`aaua`a v. Tauiliili, 15 A.S.R.2d 71.

Land can only be registered by its owner and not a village, because the concept of village ownership of land is ordinarily contrary to Samoan custom and tradition. A.S.C.A. §§ 37.0101 et seq. Lualemana v. Atualevao, 16 A.S.R.2d 34.

A valid registration effected in accordance with statutory procedures establishes a title good against the world. A.S.C.A. §§ 37.0101 et seq. Lualemana v. Atualevao, 16 A.S.R.2d 34.

A registration which appears on the face of its own record not to have been conducted in accordance with the statutory procedures, such as the failure to post notices and announce the survey in the village where the land is actually located, conveys no title. Lualemana v. Atualevao, 16 A.S.R.2d 34.

An affidavit of a posting of notice may be inadequate where: 1) it alleges that notice was posted for thirty-three days, as opposed to the requisite sixty days; 2) it was subscribed before the posting took place and thus was prepared without personal knowledge as to whether the posting actually took place; 3) it does not show the signature of the person qualified to take oaths and so may not have been made under oath; and 4) it states that notice was posted in a village different from that where the deed indicated the land is located. A.S.C.A. § 37.0103(a). Vaimaona v. Tuitasi, 18 A.S.R.2d 88.

Inadequacies of affidavit of posting may be supplemented on remand by testimony showing actual compliance with statutory guidelines. A.S.C.A. § 37.0103(a). Vaimaona v. Tuitasi, 18 A.S.R.2d 88.

Though registration of an instrument of conveyance is a necessary condition of the effectiveness of that instrument to pass title, it may not in all cases be sufficient; registration of the instrument gives notice to people dealing with the land "thereafter" but does not necessarily affect the interests of persons who dealt with the land before. A.S.C.A. § 37.0210. Vaimaona v. Tuitasi, 18 A.S.R.2d 88.

Where the record is unclear as to whether a deed has been duly registered, the appellate court will remand the issue to the trial court for further evidentiary findings. A.S.C.A. § 37.0210(a). Vaimaona v. Tuitasi, 18 A.S.R.2d 88.

A party's contention that a piece of land is communal brings into play the requirements of A.S.C.A. § 43.0302. Ava v. Logoa'i, 20 A.S.R.2d 51.

Courts may disregard land-title registrations when the failure to give the required notice affirmatively appears in the registration itself. Asifoa v. Faoa, 21 A.S.R.2d 91.

The land-registration statutes do not require a certification or an affidavit by the Territorial Registrar or the High Court that notice was given for the required period. A.S.C.A. §§ 37.0103(c), 37.0104(b). Asifoa v. Faoa, 21 A.S.R.2d 91.

A land-title registration was void when the required newspaper publication of a proposed registration and the certification of this notice was lacking. A.S.C.A. § 37.0103(a), (c). Timu v. McMoore, 24 A.S.R.2d 84.

An affidavit executed on the day notice was posted in a proposed land title registration is proof only that it was posted on that day, not that it remained posted for 60 days. An affidavit executed at the end of the 60 day period is evidence that the notice remained posted for the requisite time. Tuitasi v. Lauofo, 25 A.S.R.2d 57.

While title registration is not a prerequisite to the validity of a document alienating an interest in land, it is a logical first step. Tuitasi v. Lauofo, 25 A.S.R.2d 57.

Title registration must be noticed for 60 days by posting at the courthouse and at two public places in the village in which (or nearest to which) the land is located, and by publication of the notice in a local newspaper at least once every 30 days during the 60 day period, pursuant to A.S.C.A. § 37.0103(a). The applicant must provide the Territorial Registrar with affidavits by the Clerk of Courts , the village Mayor or Pulenu`u, and from the newspaper, each stating that the required notice was given within his/her sphere. A.S.C.A. § 37.0103(c). Tuitasi v. Lauofo, 25 A.S.R.2d 57.

Substantial compliance with the notice requirements of the land title registration statutes\ may be sufficient when non‑material errors occur, such as failure to publish notice in the newspaper a second time during the notice period, particularly if the principal objector knew of the proposed registration and made a timely adverse claim. Tuitasi v. Lauofo, 25 A.S.R.2d 57.

The fact that this court has held, on one occasion, that substantial compliance with statutory requirements was sufficient, should not yield an expectation that public officials will ordinarily receive judicial recognition of their faulty acts. Tuitasi v. Lauofo, 25 A.S.R.2d 57.

In the public interest, the Territorial Registrar should establish procedures that will ensure that the Clerk of Courts, the village Pulenu`u, and newspaper actually post or publish the requisite notices of proposed land registration, and provide the required affidavits. In the absence of more explicit statutory direction than currently exists, the affidavit of the newspaper should be signed by the owner, publisher, editor, or some other employee or agent stating his/her authority. Tuitasi v. Lauofo, 25 A.S.R.2d 57.

Land title registration and document registration laws are materially different. No statute requires either posting or publication of any notice when a document alienating an interest in communal land is proposed for registration under A.S.C.A. § 37.0210. The land Commission could adopt rules requiring notice for document registration under the Administrative procedures Act, A.S.C.A. § 4.1001 et seq., pursuant to its rule‑making authority enumerated in A.S.C.A. § 37.0203(d). Without a statute or formal rule requiring notice of document registration, the lack of notice is meaningless as a bar to proposed document registration. Tuitasi v. Lauofo, 25 A.S.R.2d 57.

A defendant's claim of communal land, even though in defense, invokes the prerequisite filing of a certificate of irreconcilable dispute issued by the Secretary of Samoan Affairs or his deputy. Meredith v. Koko, 28 A.S.R.2d 149.

A deed of conveyance may be registered without meeting the notice requirements of A.S.C.A. § 37.0101. Reid v. American Samoa Gov't, 28 A.S.R.2d 158.

A certificate of irreconcilable dispute from the Secretary of Samoan affairs is plainly a jurisdictional requirement in the sense that the court cannot determine a controversy over communal land unless a certificate is filed. A.S.C.A. 43.0302(a); Moeisogi v. Falefine, 5 A.S.R. 2d 131, 132-33 (Land & Titles Div. 1987). The only specific exception to this requirement is that a certificate "may not be required prior to the issuance of a temporary restraining order . . . to prevent the occurring of irreparable harm." A.S.C.A. § 43.0302(b); Moeisogi, 5 A.S.R.2d at 133. However, the court may also make other interlocutory orders as the court thinks appropriate, A.S.C.A. § 43.0304, particularly when "strict compliance with any rule of practice or procedure may be inequitable or inconvenient." A.S.C.A. § 3.0242(b); Moeisogi, 5 A.S.R.2d at 133. Alai`asa v. Faumuina, 29 A.S.R.2d 138.

Where the requirement of a certificate of irreconcilable dispute has not been satisfied, it is not necessary to dismiss the case. Alai`asa v. Faumuina, 29 A.S.R.2d 138.

Land acquisition for public purposes was expressly covered in detail under Regulation No. 2-1901. 1937 Code § 72. When transfer agreements were entered into with land owners, the land was deeded to the governor as the governmental representative, without any separate notice requirement. 1937 Code § 72.2. If no agreement was reached, a condemnation-type procedure, including notice requirements, was spelled out for land acquisitions. 1937 Code §§ 72.3-72.17. When an agreement was reached, no special notice requirements applied. Peni v. Lutali, 30 A.S.R.2d 68.

§8(4) Burden of Proof

Where communal land is offered for registration, registrant has burden of proving he has title to land. Liu v. Fao, 2 A.S.R. 41.

To register communal land, applicant must show by preponderance of credible evidence use of all portions of land offered. Magalei v. Siufanua, 4 A.S.R. 101.

Where weight of evidence demonstrates portion of land shown in survey is not property of applicant for registration of title, application must be denied. Fau v. Wilson, 4 A.S.R. 443.

Where weight of evidence clearly shows land on survey belongs to applicant to register by virtue of undisturbed possession, plantings, and testimony of reliable witness, court will order registration. Tauese v. Maui, 4 A.S.R. 605.

In contested registration of land trial, applicant has burden of proof, irrespective of objector’s failure to disprove applicant’s title. Likewise, objector must prove title by preponderance of evidence in order to have land registered in his name. Toilolo v. Galoia, 4 A.S.R. 719.

If neither applicant nor objector can prove ownership of disputed land, court will deny application for registration. Toilolo v. Galoia, 4 A.S.R. 719.

In an action for the registration of land in American Samoa, in which the party who has attempted to register the land is labeled the "plaintiff" and parties who object are "defendants," defendants do not acquire the right to register the land in their own names simply because the plaintiff has failed to prove his case. Tuia Suasuai v. Salave'a (Mem.), 3 A.S.R.2d 1.

In an action for the registration of land in American Samoa in which no party has proved either title or possession, the action should be dismissed without prejudice to the rights of either party. Tuia Suasuai v. Salave'a (Mem.), 3 A.S.R.2d 1.

Registration of land is not essential to ownership, and a party's withdrawal of an offer to register after a final judgment awarding him the land does not divest him of his title. Te'o v. Sotoa, 5 A.S.R.2d 90.

When no adverse claim was filed with respect to part of a survey offered for registration, and where the evidence reflected that this land had in fact been settled and occupied by the applicant for registration, the uncontested portion could be registered as the property of the applicant. A.S.C.A. §§ 37.0101 et seq. Maea v. Manuu, 11 A.S.R.2d 93.

Where the evidence showed that disputed land was originally cleared and cultivated by the village in a collective effort, and tracts surveyed by various families within the village overlapped one another and extended beyond any evidence of recent cultivation, no party had proven entitlement to the land by the preponderance of the evidence and all offers of registration should be denied. A.S.C.A. §§ 37.0101 et seq. Maea v. Manuu, 11 A.S.R.2d 93.

Denial by trial court of appellant's offer to register land, based on court's findings that (1) all or almost all members of the appellee's family were connected to the appellant's family and vice versa; (2) the matai title held by appellee was recognized in the village as a title in its own right; and (3) that the land offered for registration was in fact occupied by the appellee and by family members who rendered service to him rather than to appellant, did not implicitly suggest that appellant's matai title was a lesser matai title of appellee's family, but concluded only that appellant had not established his claim to the land. Utuutuvanu v. Mataituli, 12 A.S.R.2d 88.

Argument that trial court had incorrectly referred to disputed land by appellee's name for it, rather than by the different name used by appellant, would not advance the merits of appellant's case where appellee prevailed on the basis of competent evidence quite unrelated to the name of the land. Utuutuvanu v. Mataituli, 12 A.S.R.2d 88.

Registrar's certificate of title is presumed to be valid and a party asserting its procedural irregularity has the burden of presenting compelling proof. A.S.C.A. §§ 37.0101 et seq. Vaimaona v. Tuitasi (Mem.), 13 A.S.R.2d 76.

Objection to court's finding that the signature on a deed was not a forgery, where the objecting party had judicially admitted that he signed the deed, had had every opportunity to examine the document before trial, and had even appended it to his complaint as Exhibit A, but had testified for the first time at trial that he had not signed the document after all, was without merit. Vaimaona v. Tuitasi (Mem.), 13 A.S.R.2d 76.

Offer to register certain land either as individual or communal property of claimants would be denied where: a prior suit held that land was owned communally by objectors to the registration; claimants cited two different theories of ownership in their offer of registration and at trial; and claimants' theories were inconsistent with both law and custom. Lutu v. Semeatu, 13 A.S.R.2d 88.

Where objectors to registration of land cited a prior case holding that the land belonged to them, but offered no surveys delineating the extent of their respective claims within the disputed area, the court would deny the offer of registration but would express no opinion with regard to the claims of the objectors beyond the holding in the prior case. Lutu v. Semeatu, 13 A.S.R.2d 88.

Individual title to land is registered in claimant's name if the claim is publicly posted for sixty days, no adverse claim is lodged within that period, and all other statutory requirements are met. A.S.C.A. § 37.0103. Fania v. Sipili, 14 A.S.R.2d 70.

Registration of disputed land was denied to both claimant and counter-claimant where neither proved his family was entitled to all the land claimed. Utu v. Fuata, 17 A.S.R.2d 104.

Although an offer of registration to which no one objects is automatically registered as the property of the claimant, when objections are made and give rise to a lawsuit, the court hears the evidence from all parties and then renders its judgment. Willis v. Fai`ivae, 17 A.S.R.2d 179.

If no party meets the minimal burden to present some credible evidence, the action should be dismissed without prejudice to the rights of either party. Willis v. Fai`ivae, 17 A.S.R.2d 179.

Compliance with the land-registration statute creates a strong presumption that the land belongs to the person or persons named in the certificate of registration; this presumption is conclusive unless rebutted by either (a) compelling proof that the certificate of registration was obtained by fraud or (b) fatal irregularities affirmatively appearing on the face of the registration documents. A.S.C.A. § 37.0101 et seq. Ava v. Logoai, 19 A.S.R.2d 75.

Though evidentiary rather than constitutive, the presumption resulting from a land registration is almost always conclusive; as such, it cannot be rebutted merely by evidence that the land has traditionally been reputed to belong to someone other than the registrant or even by the testimony of one or several witnesses who say they never saw the required posting. Ava v. Logoai, 19 A.S.R.2d 75.

The mere filing of a document with the Registrar, without compliance with either the procedures for the registration of land or those for the conveyance of communal land, conveys no title. A.S.C.A. §§ 37.0101 et seq., §§ 37.0201 et seq. Magalei v. Atualevao, 19 A.S.R.2d 86.

In reviewing a decision of the Land and Titles Division or the Trial Division, the Appellate Division utilizes a "clear error" standard. This standard of review applies to the lower court's evaluation of witnesses' credibility. Paolo v. Utu, 26 A.S.R.2d 18.

The presumption that land has been validly registered arising from the Territorial Registrar’s issuance of a certificate of registration is not conclusive, and can be overcome by a presentation of compelling evidence. Pita v. Garrett, 29 A.S.R.2d 141.

§8(5) Survey and Description Requirements

Court will not order land registered until proper survey has been conducted in accordance with provisions of code. CAS 74. Satale v. Faga, 2 A.S.R. 26

By virtue of Sec. 74(3) of the Codification, Court may not register land where boundaries cannot be clearly ascertained. Liu v. Fao, 2 A.S.R. 41.

Where it is impossible to get survey for registration of title, tract can be established by Samoan name and tradition and registered accordingly. Taliutafa v. Toaga, 2 A.S.R. 218.

Code requires that when land is offered for registration, it must be properly surveyed, and where survey requirements is not complied with, land cannot be registered. CAS 905. Soliai v. Lagafua, 2 A.S.R. 436.

Code requires that point of departure of survey be from certain type of fixed monument. Soliai v. Levu, 2 A.S.R. 440.

Land offered for registration cannot be registered upon order of court until provisions of Code requiring proper survey have been complied with. CAS 905. Ifopo v. Vaiao, 2 A.S.R. 472.

Court will not order registration of land until there is proper survey in accordance with provisions of Code. CAS 905. Amituanai v. Sauitufuga, 2 A.S.R. 485.

Court will not order registration of land where there has not been proper survey. Toomata v. Vea, 2 A.S.R. 564.

Court cannot order registration of land unless description clearly identified boundaries. Mulu v. Talitutafa, 3 A.S.R. 82.

Code requires that all boundaries of land be identified by metes and bounds before it may be registered. CAS 10.0112. Lago v. Mageo, 4 A.S.R. 287.

Court in denying application to register land, and finding ownership in another, may require other parties to survey individual parts of land they claim in accordance with decision. Nua v. Leomiti, 4 A.S.R. 404.

Code provides that no title to land shall be registered unless description identifies boundaries of land. Fau v. Wilson, 4 A.S.R. 443.

Title to land cannot be registered unless registrar is satisfied that there are not conflicting claims and unless description clearly identifies boundaries of land. CAS 10.0112. Tuia v. Savea, 4 A.S.R. 483.

Party to case involving dispute over ownership of land must allow opposing party to survey the full extent of the land he claims, even though this encroaches on land claimed and occupied by first party. Satele v. Uiagalelei, 6 A.S.R.2d 109.

Court will issue preliminary injunction against any party who refuses to allow surveys by opposing parties on land claimed and occupied by him. Satele v. Uiagalelei, 6 A.S.R.2d 109.

Offer of registration for communal land must be accompanied by survey requested by senior matai of the family; a family with a vacant senior matai title must select a senior matai before it can offer land for registration. A.S.C.A. § 37.0102. Faleafine v. Suapilimai, 7 A.S.R.2d 108.

Whether a lapse of time between the making of a land survey, with the attendant notice required by statute, and offer of survey for registration was so great as to prevent rival claimants from receiving fair notice is a question of fact to be resolved on a case-by-case basis. A.S.C.A. § 37.0102(c). Lualemaga v. Sosene, 9 A.S.R.2d 85.

Where landmarks and registered survey maps showed that the land in dispute had been registered as property of plaintiff's family for forty years, and the principal evidence for defendants was the recollection of their counsel that as a boy he had used to purchase pancakes from a woman who lived on the land but who was not related to the plaintiff, the defendants would be enjoined from going on the land. Avegalio v. Leatumauga, 9 A.S.R.2d 96.

As a matter of law, an earlier survey registered in accordance with law prevails over a later one. Willis v. Fai`ivae, 17 A.S.R.2d 38.

The court is bound to recognize a land survey which has been registered according to law. A.S.C.A. § 37.0101 et seq. Willis v. Fai`ivae, 17 A.S.R.2d 38.

A land survey may not be registered until the owner has complied with the statutory requirements. A.S.C.A. § 37.0101 et seq. Willis v. Fai`ivae, 17 A.S.R.2d 179.

A survey which has never been posted in accordance with statutory requirements cannot be registered. A.S.C.A. §§ 37.0101 et seq. Magalei v. Atualevao, 19 A.S.R.2d 86.

Even if procedural defects prevent a family from registering its land survey, a court may nonetheless adjudicate the rights of parties who have received notice of the family's claim, filed their competing claims, and fully litigated their claims. Magalei v. Atualevao, 19 A.S.R.2d 86.

§8(6) Objection to Registration

Where objectors’ unsurveryed lands are included within survey of land offered for registration, Court will deny registration. Liu v. Fao, 2 A.S.R. 41.

All persons who do not object to registration of title in accordance with proceedings established by law are barred from making claim to disputed land thereafter. Leapaga v. Taumua L., 2 A.S.R. 56.

Land cannot be registered where there are conflicting claims to parts of it or where land contained within survey is partially owned by another. CAS 905. Muagututia v. Faimalo, 4 A.S.R. 237.

Court finds part of land included in application to register belongs to another family. Nua v. Leomiti, 4 A.S.R. 404.

Court finds that claim of objector to small portion within land sought to be registered is unsubstantiated. Mageo v. Fuga. 4 A.S.R. 426.

Court will deny application to register communal land where objector shows ownership of land withing surveyed tract which is not identified. Tuia v. Savea, 4 A.S.R. 483.

Where court denies application to register land, it is not necessary for it to determine rights of objector in land. Tuia v. Savea, 4 A.S.R. 483.

Objection to application to register land must be filed within 60 days after application was filed, and objection not filed in time cannot be considered. CASA 10.0112. Puluti v. Muliufi, 4 A.S.R. 672.

Statute prohibiting anyone but senior matai of Samoan family from bringing action to enjoin activities on communal land did not prohibit another member of family from objecting to registration of land by another family. A.S.C.A. §§ 37.0103, 43.1309. Sagatu v. Vaioli, 3 A.S.R.2d 97.

Legal practitioner who has served as arbitrator in a land dispute in his capacity as an employee of the Office of Samoan Affairs may not serve as counsel to one of the parties in a case resulting from the same dispute. Fanene v. Seva'aetasi (Mem.), 3 A.S.R.2d 108.

When petitioner in land dispute has failed to seek relief from the Department of Samoan Affairs as required by statute prior to seeking judicial remedy, but respondent has answered and appeared before High Court, court would observe considerations of equity and convenience by staying the action pending compliance with the administrative relief requirements rather than dismissing the action altogether. A.S.C.A. §§ 3.0242, 43.0302(a). Moeisogi v. Faleafine, 5 A.S.R.2d 131.

Complaint asserting ownership of land did not fail to state a claim because of plaintiff's failure to comply with statutory requirement of timely objection to defendant's prior registration of land, where pleadings did not establish that defendant had complied with statutory notice requirements for registration of land. T.C.R.C.P. Rule 12(b)(6); A.S.C.A. §§ 37.0102, 37.0103. Moeisogi v. Faleafine, 5 A.S.R.2d 131.

Court may not consider a claim to ownership of land by one who has not timely objected to registration of the land by another. A.S.C.A. § 37.0103. Falefia v. Sipili, 7 A.S.R.2d 1.

Where objector to proposed registration proved his family's claim to the land by preponderance of the evidence at trial, but objector had not served other objectors with notice of trial date, court should not order registration of the land as the property of the prevailing objector but should allow objector to file a proposed registration in accordance with statutory procedures. Mataituli v. Utuutuvanu, 7 A.S.R.2d 134.

Court acted properly in granting motion to dismiss at conclusion of plaintiffs' case, at least in light of territorial statute allowing land court to proceed in such manner as it considers to be most consistent with natural justice and convenience, where plaintiffs objected that evidence they had been saving for rebuttal could have established a prima facie case but court concluded that defendants would prevail even if plaintiffs succeeded in proving every fact they offered to prove on rebuttal. A.S.C.A. § 3.0242. Willis v. Fai`ivae, 10 A.S.R.2d 121.

Jurisdictional requirement that plaintiff must "file with his complaint a certificate" from office of territorial official, certifying that the parties have met twice and that the meetings did not result in a resolution of the dispute, was met where such a certificate was filed, notwithstanding evidence that an earlier letter by the same official tended to negative the existence of an irreconcilable dispute. A.S.C.A. § 43.0302. Leota v. Sese, 12 A.S.R.2d 18.

Letter from territorial official charged with mediating land disputes, stating the outline of a proposal by one of the parties but not even hinting that the other parties had ever agreed to the proposal, did not negate the existence of an irreconcilable dispute among the parties. A.S.C.A. § 43.0302. Leota v. Sese, 12 A.S.R.2d 18.

Statute requiring mediation of disputes over communal land did not apply to dispute over land which trial court concluded, consistently with the record before it, to be individually owned. A.S.C.A. § 43.0802. Leota v. Sese, 12 A.S.R.2d 18.

Land registration statute, under which any objection to proposed registration must be filed within sixty days or land is registered in the name of the claimant and all other claims of ownership are forever precluded, does not amount to a judicial transfer of land from the "true" owner to the registered owner; rather, the statute gives anyone who believes himself the owner of land a fair opportunity to present his claim to the court, and then conclusively presumes that anyone who did not avail himself of this opportunity was not the true owner of the land. A.S.C.A. §§ 37.0101 et seq. Ifopo v. Siatu`u, 12 A.S.R.2d 24.

Land registration statute gave competing claimants sixty days in which to urge any objection to the proposed registration, including objection that the land was communal and that no sale was approved by the Land Commission or by the Governor. A.S.C.A. §§ 37.0101 et seq., 37.0204. Ifopo v. Siatu`u, 12 A.S.R.2d 24.

Where objections to land registration based on statutory procedures for alienation of communal land were not raised within sixty days of proposed registration, the law conclusively presumes either that the procedures for alienation of communal land were met or that the land was not communal. A.S.C.A. §§ 37.0101 et seq., 37.0204. Ifopo v. Siatu`u, 12 A.S.R.2d 24.

Purpose of requirement that objection to proposed registration of land be made within sixty days was to relieve the registrant of the burden of affirmatively proving every fact necessary to establish title after the passage of many years, during which witnesses would tend to die and documents to be lost or destroyed. A.S.C.A. §§ 37.0101 et seq. Ifopo v. Siatu`u, 12 A.S.R.2d 24.

Statute providing that land should not be registered when a competing application for registration is pending neither renders void a final judgment entered in violation of its terms, nor otherwise permits a collateral attack on that judgment. A.S.C.A. § 37.0101. Tela v. Aoelua, 12 A.S.R.2d 40.

Purpose of statute providing that land should not be registered when a competing application for registration is pending is to preclude registration until competing claimants have opportunity to be heard; party who was an objector to a proposed registration and whose competing claim was fully heard and decided was therefore not prejudiced by the court's failure to determine his competing application for registration at the same time. A.S.C.A. § 37.0101. Tela v. Aoelua, 12 A.S.R.2d 40.

Territorial land registration statute gives anyone who believes himself the owner of land a fair opportunity to present his claim to the court, and then conclusively presumes that anyone who did not avail himself of this opportunity was not the true owner of the land. A.S.C.A. § 37.0101 et seq. Meafua v. Taliu, 13 A.S.R.2d 13.

Temporary absence from the vicinity during the time when land was surveyed and offer of registration posted did not excuse failure to object to the registration during statutory 60-day period. A.S.C.A. § 37.0101 et seq. Meafua v. Taliu, 13 A.S.R.2d 13.

Parties who did not object to offer for registration of land in accordance with statutory procedure were bound by the result in the ensuing registration proceedings, although they were not parties to the proceeding, because registration proceedings have in rem effect. A.S.C.A. §§ 37.0101 et seq. Tufono v. Vaeao, 13 A.S.R.2d 47.

Under territorial statute dealing with "titles to land," a procedurally valid registration precludes subsequent judicial inquiry into the validity of the record owner's title; anyone who wishes to object on any ground whatever to the registrant's claim of ownership has sixty days within which to do so, and in the absence of such objection the land is registered in the name of the claimant and all other claims of ownership are forever precluded. A.S.C.A. §§ 37.0101 et seq. Vaimaona v. Tuitasi (Mem.), 13 A.S.R.2d 76.

Where a claim to register individual title to land is disputed, the successful claimant must prove to the Land and Titles Division that he originally cleared and maintained the area for personal use. Fania v. Sipili, 14 A.S.R.2d 70.

Where plaintiff offered land for registration which was not finally registered until a dispute with an objector was settled seven years later, defendant's intervening registration of land which partly overlapped the land claimed in plaintiff's pending registration was void to the extent of the overlap, since defendant had not timely objected to plaintiff's initial offer of registration of the land. A.S.C.A. § 37.0103. Lealaimatafao v. Misiaita, 17 A.S.R.2d 110.

Party who does not timely object to another's offer to register land cannot later claim such land by filing a notice of adverse claim or by offering to and registering title to such land. A.S.C.A. §§ 37.0103, 37.0101(b). Lealaimatafao v. Misiaita, 17 A.S.R.2d 110.

Since land may not be registered where there are unlitigated or unresolved competing claims (including pending lawsuits regarding registration of the same property), the Territorial Registrar must deny such registration. A.S.C.A. § 37.0101(b). Lealaimatafao v. Misiaita, 17 A.S.R.2d 110.

Any registration of land regarding which there are unlitigated or unresolved competing claims (including pending lawsuits regarding registration of the same property) is void and may be ordered cancelled. Lealaimatafao v. Misiaita, 17 A.S.R.2d 110.

Because failure to meet statutory notice requirements can deprive family members of an adequate opportunity to object to the registration of title, compliance with the statutory notice requirements for registrations of title is an essential feature of the registration process. A.S.C.A. §§ 37.0101 et seq. Vaimaona v. Tuitasi, 22 A.S.R.2d 1.

Regarding proposed land transfers, for which the Land Commission must provide the government with recommendations, the Land Commission should hold public hearings and must give reasonable notice of its deliberations to interested persons, regardless of the forum selected to "study" proposed transactions. Vaimaona v. Tuitasi, 22 A.S.R.2d 1.

Since no statute or administrative rule compels the referral of objections to document registration to the Secretary of Samoan Affairs, the Territorial Registrar should not automatically make such referrals when such objections arise. Such cases are properly forwarded to the Secretary only if referrals are required by statute, by administrative rule, by orders of the Land Commission on a case‑by‑case basis, or pursuant to specific authority delegated to the Registrar by the Land Commission. The land Commission should establish policies and criteria for making such referrals. Tuitasi v. Lauofo, 25 A.S.R.2d 57.

The process of referring disputes of land lease document registration to the Secretary of Samoan Affairs must not frustrate the aims of A.S.C.A. §§ 37.0203, 37.0204, 37.0221, and 37.0222, which require the land Commission to formulate recommendations for the Governor, and for the Governor to make the final decision regarding approval or disapproval of the proposed lease. Tuitasi v. Lauofo, 25 A.S.R.2d 57.

§8(7) Finality of Judgments

Where land is registered after proceedings in accordance with statute and where due notice has been posted and there is no evidence of fraud, title to that land cannot thereafter be questioned with respect to rights preceding date of determination. Molitui v. Pisa, 2 A.S.R. 268.

Rights in land, the ownership of which was determined by judical decree, must be determined in accordance with survey at time of decree and not subsequent survey which is at variance. Fau v. Wilson, 4 A.S.R. 443.

When individually owned property is registered by grantee’s recording deed, grantor’s interest terminates and subsequent “grantees” are constructively presumed to have notice of prior recorded deed. 27 A.S.C. § 601(a) and (b). Moon v. Falemalama, 4 A.S.R. 836.

That land registered in the name of one party can later be proved to have been property of person other than registrant will not void a registration otherwise performed in accordance with statute if the true owner did not object within the period prescribed by statute. A.S.C.A. §§ 37.0101 et seq. Faleafine v. Suapilimai, 7 A.S.R.2d 108.

Trial court decision adjudicating land ownership that was not appealed became res judicata and bound the court in a later dispute between the same parties over the same tract of land. Estate of Sotoa v. Te`o, 8 A.S.R.2d 165.

Final judgment awarding land to a party vests title in that party and his subsequent withdrawal of an offer to register the same land does not divest him of that title. Estate of Sotoa v. Te`o, 8 A.S.R.2d 165.

There is no clear error requiring appellate division to reverse a decision denying registration of land where (1) prior cases relied on by the appellant to show his presence in the area concerned another tract of land and (2) witnesses testified that appellant neither had houses or plantations in the area nor, owing to his long absence from the territory, had knowledge of the true extent of his family lands. A.S.C.A. § 43.0801(b). Tuileata v. Amituana`i, 8 A.S.R.2d 173.

Party in land case who claimed to be the owner of all nine tracts identified in an early lease as belonging to the chiefs of the village, and who at trial had clearly attempted to mislead the court on a number of matters, was not entitled to a new trial on the ground that no other party had presented a history of the land that accounted for all nine tracts, since under the circumstances his credibility was weakened rather than strengthened by his attempt to claim all nine tracts as his own. Moea`i v. Te`o, 9 A.S.R.2d 107.

Attorney in land case has a duty to know exactly what land is being claimed by each party and to explain this to his client well before trial; court would therefore deny motion for new trial by a party who did not claim certain land during the trial because neither he nor his attorney knew that it was part of the land being claimed by another party. Moea`i v. Te`o, 9 A.S.R.2d 107.

Party who wishes to seek relief from judgment in land case on the ground that his attorney did not explain to him before trial what land was involved in the case should consult another attorney, since pursuit of such relief will give rise to a conflict between the party and his present attorney. Moea`i v. Te`o, 9 A.S.R.2d 107.

Judgment in prior case, between same parties and involving same land as the present case, was res judicata and therefore bound the parties and the court notwithstanding losing party's contention that the judgment did not accord with Samoan custom. Aoelua v. Tela, 10 A.S.R.2d 20.

Where judgment in prior case, between same parties but involving different land, had rejected one party's contention that he was the owner according to Samoan custom of all lands occupied by the other party, court deciding subsequent case must reject this contention notwithstanding the party's contention that the prior judgment did not accord with Samoan custom. Aoelua v. Tela, 10 A.S.R.2d 20.

Absent any evidence of fraud, registration of title to land pursuant to legislative procedures (which require, inter alia, public posting of an offer of registration for sixty days during which any objections must be filed) cannot be questioned. A.S.C.A. §§ 37.0101 et seq. Ifopo v. Siatu`u, 10 A.S.R.2d 66.

Statutory proceedings for registration of land have in rem effect. A.S.C.A. §§ 37.0101 et seq. Ifopo v. Siatu`u, 10 A.S.R.2d 66.

Land registration statutes were intended by the legislature to secure finality of the registration process, and review of the process forty years later would be in derogation of that objective by causing public confidence in the recordation process to disappear and the security of registered land titles to be seriously weakened. Ifopo v. Siatu`u, 10 A.S.R.2d 66.

Court would not look behind a land title recorded forty years earlier and accompanied by territorial registrar's recital indicating that the notice required by statute had been given, where plaintiff's testimony that neither she nor any family member had been made aware of the registration was not based on personal knowledge as she had resided elsewhere at all relevant times. Ifopo v. Siatu`u, 10 A.S.R.2d 66.

Court would not invalidate a land title registered forty years earlier on the ground that the territorial registrar's file did not contain a certificate that the required notice of a survey had been given, since the certificate might have been misplaced during the intervening years and since the court could assume that the Registrar would comply with the statute prohibiting acceptance of the registration without the required certificate. A.S.C.A. § 37.0103. Ifopo v. Siatu`u, 10 A.S.R.2d 66.

In an action attacking the validity of a concluded land registration proceeding to which a presumption of conclusiveness had attached, the court would not surmise from a variance in dates between the survey and the offer of registration that the required notice of the survey had not been given, since the original commissioning of a survey in 1933 did not preclude the possibility of a physical retrace in 1945 when the registration process was undertaken. A.S.C.A. § 37.0102. Ifopo v. Siatu`u, 10 A.S.R.2d 66.

Court could not conclude that lands registered forty years earlier by one party as individual land had in fact been the communal land of another party, and that the registration was therefore in violation of the statute governing alienation of communal land, where (1) plaintiff's evidence of title was at best circumstantial whereas defendant's claim was supported by the records of the territorial registrar to which the legislature intended to have a final and in rem effect; (2) plaintiff's family had failed to timely object to the registration and had thus waived their rights; and (3) the registration was in apparent compliance with law and without evidence of fraud. Ifopo v. Siatu`u, 10 A.S.R.2d 66.

Judicial decision stating that a certain tract (1) was "the property of" a named party, (2) that she should have the rents during her lifetime, and (3) that she should make a will saying who she wanted to receive the rentals after her death, adjudicated the question of title to the property as between the parties to the case and their successors in interest. Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54.

Although court may have in personam jurisdiction to order a party to convey to another party a deed to property in another state, it cannot directly affect or determine title to that real property. Godinet v. Godinet (Mem.), 11 A.S.R.2d 156.

Since Oregon court had no jurisdiction to transfer title to land in American Samoa, judgment attempting to do so was entitled to full faith and credit only if the question of jurisdiction had been fully and fairly litigated in the court which rendered the original judgment. Godinet v. Godinet (Mem.), 11 A.S.R.2d 156.

Where judgment adjudicating title to land had been final for twenty-three years, discretion would be exercised in favor of finality and an end to the needless protraction of litigation; after twenty-three years of settled expectations the equities were against the reopening of judgment. T.C.R.C.P. Rule 60(b). Taulaga v. Patea, 12 A.S.R.2d 64.

Assuming that deputy territorial registrar had the power to cancel the prior recordation of a lease had there been something genuinely wrong with it, an aggrieved party would have the right at any time to apply to the court for direction or redress, and the aggrieved party could exercise such right by alleging and proving in an action for eviction that the substantive bases for the cancellation were without merit. A.S.C.A. § 4.1106. American Samoa Government v. Samoa Aviation, Inc. (Mem), 13 A.S.R.2d 65.

Barring land claims by res judicata or collateral estoppel is improper if the parties or their predecessors-in-title were not parties in the previous case. Afualo v. Fanene, Pualioa v. Afualo, 15 A.S.R.2d 48.

A land registration in conflict with a Court order in a prior adjudication of land claims is void--or at least voidable in the absence of reliance by innocent third parties--for the same reasons that a registration would be without legal effect if it conflicted with an earlier valid registration. Fa`aaua`a v. Tauiliili, 15 A.S.R.2d 71.

Even if it would not exceed the Court's power, declaring a prior judicial decision null and void, when witnesses have died and memories have faded in the intervening thirty years, would be imprudent and unjust because the Court at that time was in a much better position to determine the issues material as to whether land should be registered. Lualemana v. Atualevao, 16 A.S.R.2d 34.

The court's decision regarding ownership of a parcel of land is binding on all parties to that consolidated case; as such, they are estopped from objecting to an offer of registration by the party held to be its owner. Willis v. Fai`ivae, 17 A.S.R.2d 179.

The statutes of limitations for filing suit are two years for actions on personal injury, three years for actions on unwritten contracts, ten years for actions on written contracts, and twenty years for actions to recover real property. A.S.C.A. § 43.0120. Jennings v. Jennings, 19 A.S.R.2d 34.

A person who takes an interest in real property from one who litigated the property's title is in privity with him and so is bound by res judicata. Puailoa v. Estate of Lagafuaina, 19 A.S.R.2d 40.

Even if erroneous, a court's decision as to whether a parcel of land is a person's individual land or a family's communal land is binding on later courts. Puailoa v. Estate of Lagafuaina, 19 A.S.R.2d 40.

Summary judgment is appropriate when the only issue raised by an objector to a land/building separation agreement is identical to the issue she and her predecessor raised in a previous case and that issue was litigated and decided between the parties. T.C.R.C.P. 56. Fanene v. Fanene, 19 A.S.R.2d 69.

If issued by a court having jurisdiction over the parties and the subject matter, an order requiring the Registrar to issue a land-registration certificate is binding on the parties and their successors in interest and can be vacated only in the most extraordinary and compelling of circumstances. T.C.R.C.P. 60(b). Ava v. Logoai, 19 A.S.R.2d 75.

A court order requiring the Registrar to issue a land-registration certificate did not bar a plaintiff from litigating the issue of whether a registration of somebody else's property, affirmatively identified as such by the applicant in his registration documents, is nevertheless a valid registration, when neither this issue nor the plaintiff was previously before the court. Ava v. Logoai, 19 A.S.R.2d 75.

Once a grantee has received and registered a deed to land, a subsequent deed has no effect, and so an injunction properly enjoined a later purchaser from interfering with the prior grantee's use and enjoyment of the land. Sa v. Vollrath, 21 A.S.R.2d 37.

Dismissal of a lawsuit for lack of diligent prosecution is with prejudice in a civil action but without prejudice in a land and titles action. Jennings v. Jennings, 21 A.S.R.2d 40.

A collateral attack of an in rem judgment is permissible if notice in the first case was defective. Asifoa v. Faoa, 21 A.S.R.2d 91.

The interest in the finality of judgments is especially strong in regards to land titles. Fed. R. Civ. P. 60(b); T.C.R.C.P. Rule 60(b). Reid v. Puailoa, 23 A.S.R.2d 101.

The interest in the finality of judgments is especially strong in regards to land titles. Fed. R. Civ. P. 60(b); T.C.R.C.P. Rule 60(b). Reid v. Puailoa, 23 A.S.R.2d 144.

A judgment concerning the ownership of a tract of land as between the same families is res judicata and binding on all members of the families, because Samoan communal land belongs to families rather than individuals. Savane v. Lafi, 31 A.S.R.2d 31.

§ 9 License to Use Land

§9(1) Generally

If person wishes to lay claim to land cultivated and possessed by others on grounds that such cultivation and possession is by license of claimant, then burden of proof as to existence of license is on such claimant. Fuimaono v. Leasiolagi, 1 A.S.R. 189.

License is permission to use land and may be gratned to flood land, erect buildings, to cut timber and a variety of other uses. Lutu v. Ponali, 2 A.S.R. 508.

License is authority to do lawful act which, without it, would be unlawful, and can be created orally and without consideration. Tago v. Leota, 4 A.S.R. 341.

Defendant was not entitled to a new trial on the ground that plaintiff had abandoned its rights to land under a license, since the alleged license was not a basis of the court's determination that plaintiff was entitled to possess the land. Olo v. Tulisua, 6 A.S.R.2d 129.

A court may compel specific performance of a partially performed, unwritten agreement; the court's power to compel specific performance is expressly recognized in the statute of frauds relating to land transactions. A.S.C.A. § 37.0211. Manoa v. Jennings, 21 A.S.R.2d 23.

After-the-fact compensation for a land's use is not an adequate substitute for obtaining permission or following applicable statutory procedures in order to use the land in the first place. Mamea v. American Samoa Power Authority, 26 A.S.R.2d 47.

§9(2) Creation of License

Evidence supports creation of license in possessor to use land. Talo v. Tavai, 2 A.S.R. 63.

Under custom, in consideration for service, matai may give license to another to use his own land. Tago v. Sami, 2 A.S.R. 285.

Where court finds that land owners had no intention to convey interest in estate to party, but gave him permission to live there and use land, court will find that land owners granted parol license. Magalei v. Tago, 3 A.S.R. 185.

Where matai grants permission to person to plant and use family lands in consideration for service offered him by person, he is granting license but not ownership, such license being the authority to do an act or acts upon land of another without possessing any right or interest therin. Tuileata v. Talivaa, 3 A.S.R. 201.

Where person, not blood member of family, is permitted to occupy communal family land, there being no lease or conveyance, that occupant has license only without possessing any estate or interest in land. Lutu Family v. Petelo, 3 A.S.R. 252.

Where no complaint has been filed against defendants for use of family lands in planting non-permanent crops, it may be inferred that such permission was granted since ti is common to permit other to plant non-permanent crops under Samoan Customm. Faamuli v. Leiato, 3 A.S.R. 308.

License to plant non-permanent crops on land may be implied from circumstances, and cannot be pre-emptorily revoked so as to require immediate remove with destruction of growing crops since this would destroy necessary food sources; however court will permit planters nine months to remove crops from land. Faamuli v. Leiato, 3 A.S.R. 308.

Fact Samoan did not object to another’s occupying land and planting permanent crops thereon is evidence that possessor is occupying with permission of owner. Aumavae v. Tuitele, 3 A.S.R. 342

Letter of authorization permitting person to use bulding for “beer joint” created license. Faiivae v. Tiumalu, 3 A.S.R. 402.

License may arise by implication and may result from circumstances or ratification of preivous acts. Tago v. Leota, 4 A.S.R. 341.

Court orders that license cannot extend into licensor’s land beyond point where it presently occupies land pursuant to implied license. Tago v. Leota, 4 A.S.R. 341.

Where plaintiff brought former action in court to remove part of defedant’s house, but plaintiff permitted defendant to continue to occupy that portion pursuant to agreement with defendant, then defendant occupies land as licensee. Tago v. Leota, 4 A.S.R. 341.

A person who has been shown not to be the landowner may not register the land but, under the common law, may remain in possession until ousted by someone who can prove he is the true owner. Opapo v. Puailoa, 16 A.S.R.2d 11.

When a party in a title dispute has given a person permission to occupy the land, that person may remain on the land as a licensee until ousted by a person with better title than the licensor. Opapo v. Puailoa, 16 A.S.R.2d 11.

A jilted licensee cannot ordinarily attack his licensor's title because legal title is none of the licensee's concern; however, if a tract's ownership is truly a concern of the licensee, a party in a title dispute cannot disturb the peaceable possession of the other or of persons occupying by permission of the other until one side proves a better title than the other. Opapo v. Puailoa, 16 A.S.R.2d 11.

§9(3) Rights Created by License

Where oral license is revoked, licensee should be granted reasonable time to remove personal property such as structures and plantations from land. Talo v. Tavai, 2 A.S.R. 63.

Licensee has right to continue to live in house for which he was granted license but he has no right to reconstruct it so that it violate conditions of license, and court will issue mandatory injunction requiring licensee to reconstruct house so that it conforms with conditions of license. Lutu v. Ponali, 2 A.S.R. 503.

Where licensor revokes parol license to use real property, licensee may retain possession of property and make use of it in accordance with terms of license until such time as value of use of property is equal to value of his expenditures less value (after they are torn down) of any buildings which he has erected on land which are removable. Magalei v. Tago, 3 A.S.R. 185.

Licensee may retain possession of land and make use of it in accordance with terms of license until such time as value of use of property is equal to value of her expenditures less value (after they are torn down) of building she has erected on land which may be removed from land. Tuileata v. Talivaa, 3 A.S.R. 201.

Licensee may retain possession after revocation of license until such time as value of property is equal to value of expenditures of licensee less value (after they are torn down) of buildings which he has erected on land and can remove when he leaves. Lute Family v. Petelo, 3 A.S.R. 252.

Where licensee, in reliance upon license, has expended money and labor on land, and license is revoked, he may retain possession until value of use of land is equal to value of his expenditures thereon less value of buildings (after they are torn down) which he may remove from land. Aumavae v. Tuitele, 3 A.S.R. 342.

Where licensee has been authorized to have full control over use of building, has made substantial improvements to building, and has paid consideration for license, he is entitled to equivalent in value of his expenditures through use of building. Faiivae v. Tiumalu, 3 A.S.R. 402.

Where licensee relied upon previous license from licensor for 11 years and expended money in tearing down old house and in constructing new one as a result of such reliance, court will allow licensee to exercise license and live in house for reasonable period of time. Tago v. Leota, 4 A.S.R. 341.

Licensee who torn down old house which was partially built on licensor’s land and laid foundation for new house, relied on license received for old house, which, not having been revoked, was still effective. Tago v. Leota, 4 A.S.R. 341.

Occupant of land whose occupancy was by virtue of a license from the landowner, but who subsequently asserted ownership of the land, engaged in transactions purporting to sell parts of the land, and forced landowner to bring successive lawsuits to establish his ownership of land to which the landowner's title had been previously adjudicated, was a bad faith possessor who had the right upon eviction to harvest seasonal crops and to remove fixtures erected by him but was entitled to no other compensation. Fonoti v. Fagaima, 5 A.S.R.2d 158.

Religious organization that had been permitted by landowner to build a permanent structure on the land under circumstances suggesting indefinite occupancy by the church, and which had not been shown to have acted inconsistently with any express or implied condition of its license, was a good faith possessor and would ordinarily be entitled on eviction to choose between removing the structure or leaving it upon the land and receiving compensation from the landowner. Fonoti v. Fagaima, 5 A.S.R.2d 158.

Where family removed dwelling house from disputed lands after boundary was marked but continued to use umu on same lands without objection by neighboring occupants, court may conclude that use of the umu was grounded in a historic license. Faleafine v. Suapilimai, 7 A.S.R.2d 108.

Failure of family members to demand immediate payment of rent when lessee fell behind did not constitute a waiver of the family's entitlement to eventual payment, especially in light of the vacancy in the family matai title, but did justify the lessee in treating time of payment as not of the essence. Hunkin v. Grisard (Mem.), 13 A.S.R.2d 38.

Activities on land pursuant to a license, no matter how extensive and no matter what the original state of the land, cannot give rise to a claim of ownership. 15 A.S.R.2d Afualo v. Fanene, Pualioa v. Afualo, 15 A.S.R.2d 48.

Creditor who already obtained a judgment and a writ of execution and levied upon the property of judgment creditor prior to the notice of ASG's tax lien, prevails against the ASG as a judgment lien creditor with respect to such property. 26 U.S.C. § 6323(a); A.S.C.A. § 11.0401 et seq. Shantilal Brothers, Ltd. v. KMST Wholesale, 15 A.S.R.2d 115.

A personal license conditioned on performing traditional service (tautua) becomes revocable when that service ceases. Scratch v. Sua, 22 A.S.R.2d 53.

A valid lease agreement duly executed by the matai, assented to by the Governor, and recorded with the Territorial Register will be enforced even when the family that owns the communal land no longer wants the lessee to remain on the land. Lolagi v. Maluia, 30 A.S.R.2d 159.

A party with a valid lease is entitled to a permanent injunction securing his or her right to quiet enjoyment. Lolagi v. Maluia, 30 A.S.R.2d 159.

§9(4) Mortgages

SEE SECURED TRANSACTIONS § 11 – MORTGAGES

Where owner of mortgaged property retained the right to use and possession of the property until default, and where there was no evidence of default on the debt secured by the mortgage, garnishment by unsecured judgment creditor of rents derived from the property did not interfere with the rights of the mortgagee. A.S.C.A. § 37.1005. Landrigan v. Opelle, 5 A.S.R.2d 155.

Statute which states that no instrument shall be effective to create a security interest unless it contains a description of items to be mortgaged prevents the creation of a "general mortgage" and reinforces the statutory prohibition against mortgages on after-acquired real property and fixtures, as well as security interests in personal property. A.S.C.A. §§ 27.1510(c), 37.1003. Shantilal Brothers, Ltd. v. KMST Wholesale, 15 A.S.R.2d 115.

American Samoa's chattel mortgage statute requires not just that the mortgage contain some language sufficient to put third parties on inquiry, but that it contain a "description" of the "specific" article or articles mortgaged. A.S.C.A. § 27.1510. Shantilal Brothers, Ltd. v. KMST Wholesale, Inc., 16 A.S.R.2d 103.

The general rule appears to be that notice of an unrecorded mortgage, given to a creditor who has already "fastened his lien upon the property by judgment," comes too late regardless of whether a writ of execution has issued. Shantilal Brothers, Ltd. v. KMST Wholesale, Inc., 16 A.S.R.2d 103.

The general rule against mortgages of after-acquired real property contains an important exception for cases in which the property to be acquired is described in the mortgage document. A.S.C.A. § 37.1003. Shantilal Brothers, Ltd. v. KMST Wholesale, Inc., 16 A.S.R.2d 103.

§9(5) Termination

License to use land is revocable even tough licensee has made improvements on land and put in plantations, since intention of parties was not convert license into interest in land. Talo v. Tavai, 2 A.S.R. 63.

Fales and cook houses can be taken down and removed elsewhere, and pineapple, taro, and yam plantations can be removed from land so that such improvements on land pursuant to oral license to use land do not make license irrevocable, and do not create irrevocable license by prescription. Talo v. Tavai, 2 A.S.R. 63

License given by landowner was continued by heirs of landowner by acquiescence and implication, and became irrevocable after licensee put in coconut and breadfruit plantations and built European house on land, and license will continue until death of licensee or licensor, unless continued by heirs of licensor. Tago v. Sami, 2 A.S.R. 285.

After parol licensee has entered and made expenditures in money and labor in reliance upon license, such license becomes irrevocable. Lutu v. Ponali, 2 A.S.R. 503.

Building of house and putting in plantations with permission of owner creates parol license in possessor, and where much work has gone into land on reliance upon license, it is irrevocable during lifetime of licensee. Aulava v. Sunia, 2 A.S.R. 543.

License in land, being personal, ordinarily is terminated by death of either licensor or licensee, unless, in case of death of licensor, his heirs elect to continue it in force. Aulava v. Sunia, 2 A.S.R. 543.

Whre license is granted to family of pastor, it will terminate upon death of longest-lived of children. Aulava v. Sunai, 2 A.S.R. 543.

Where person has been granted right to use path or road to boat house across land of another this grant constitutes license, and where licensee has expended money in reliance thereon, license is irrevocable. Foster v. Olotoa, 3 A.S.R. 76.

Parol license is revocable by land owners, but licensee is entitled to compensation for expenditures made in reliance on license. Magaeli v. Tago, 3 A.S.R. 185.

Where value of land will never equal value of expenditure of licensee, then license cannot be revoked. Tuileata v. Talivaa, 3 A.S.R. 201.

Since parol license is not interest or estate in land, it cannot be subject matter of inheritance and it will come to end at death of license unless people elect to continue it, but license does not terminate upon death of matai who grants it since family continues to be licensor. Tuileata v. Talivaa, 3 A.S.R. 201.

Licensee’s refusal to render service to matai licensor is reasonable ground for revocation of license. Lutu Family v. Petelo, 3 A.S.R. 252.

Daughter of deceased licensor has right to withdraw license granted by her mother allowing persons to live on individually owned family estate. Foster v. Tali, 4 A.S.R. 59.

Depending on circumstances, a parol license without consideration may be revocable at will, irrevocable until licensee recoups his expenditures made in pursuance of the license, or irrevocable for the intended duration of the license. Isumu v. Palaia, 12 A.S.R.2d 98.

A license is personal and non-assignable, and therefore will ordinarily expire at the death of the licensor or the licensee, unless in the case of the licensor's death, the license is extended by the licensor's heirs. Isumu v. Palaia, 12 A.S.R.2d 98.

Parol license allowing licensees to build and occupy a home on licensor's land was irrevocable, until the death of either the licensor or the licensee and so long as the licensees should comply exactly with its terms, where licensees had not been troublesome, had rendered tautua effectively, and had made substantial and costly improvements on the land, and neither party had envisioned an earlier termination when the license was granted. Isumu v. Palaia, 12 A.S.R.2d 98.

§ 10 Easements

Court decrees easement and right of ingress and egress to permit plaintiff to cross defendant’s land to get to public highway. Tago v. Leota, 4 A.S.R. 341.

Permissive or prescriptive easement will not be decreed when pre-existing use of way is sporadic and not essential to access. Moananu v. Tauvale, 4 A.S.R. 698.

Where a tract of land, which was once part of a larger tract whose owner subdivided and sold parts of it, is found to be without access to a road, an easement arises by implication over the other part or parts of the land subdivided, if such easement is strictly necessary for the beneficial use of the tract sold. Sese v. Leota, 9 A.S.R.2d 25.

An implied easement of necessity in favor of a parcel subdivided and sold from larger tract, in order to provide access to a road, will exist (1) only against adjoining lands retained or subsequently sold by the grantor, (2) only where the easement is strictly necessary for the beneficial use of the tract sold, and (3) only for so long as the necessity continues; mere inconvenience will not give rise to an implied easement of necessity. Sese v. Leota, 9 A.S.R.2d 25.

Implied easement of necessity is based upon a public policy that favors full utilization of land, so that the grantor is presumed to convey whatever is necessary for the beneficial use of the land; the easement will therefore be implied regardless of the actual intentions of the parties. Sese v. Leota, 9 A.S.R.2d 25.

In action for an implied easement of necessity, that the grantor had registered the proposed dominant parcel, but had never registered the proposed servient parcel or the larger tract from which both had been subdivided, did not preclude finding that a single grantor once held unity of title over those parcels, since ownership of individual land does not arise from registration, but from initial use and occupancy. Sese v. Leota, 9 A.S.R.2d 25.

In action for an implied easement of necessity, the court would neither examine whether defendant's servient parcel was subject to a title dispute with a third party nor determine the merits of that dispute prior to granting relief against defendant, where (1) the alleged third party claim had not been zealously made; (2) defendant had bulldozed, improved, and used the alleged area of dispute since its conveyance to him; and (3) evidence of the claim amounted to no more than an allegation made as a defense to plaintiff's action. Sese v. Leota, 9 A.S.R.2d 25.

Implied easement of necessity will arise over defendant's land despite his grantor's representation that plaintiff's would gain access elsewhere, where the grantor once held unity of title over both defendant's and plaintiff's land, plaintiff's parcel has been deprived of access to a road by defendant's erection of a wall over what the grantor originally pointed out as their accessway; and the easement is strictly necessary for the use of plaintiff's land. Sese v. Leota, 9 A.S.R.2d 25.

For purpose of finding an implied easement of necessity, contiguous parcels of land originally claimed by a single grantor qualify as having been under common ownership even though part of the land was surveyed and registered and part was not. Sese v. Leota, 9 A.S.R.2d 136.

Actual intent of parties to land conveyances did not conflict with their presumed intent not to render a parcel of land useless by denying any access to a road, where the evidence showed only that the original grantor had acted inconsistently by first showing the plaintiff a right of way over his reserved land and then selling that land to defendant with the representation that plaintiff would gain access elsewhere. Sese v. Leota, 9 A.S.R.2d 136.

Court would burden defendant's land with an implied easement of necessity, rather than imposing the easement on another party's adjacent land which was an apparent servient parcel as well, where defendant was the latest grantee of a common grantor; the grantor had earlier identified to the owner of the dominant parcel an accessway across what was now defendant's land; the implied easement was a logical extension of an established accessway; and defendant was aware that access to the dominant parcel might be affected by the conveyance of land to him. Sese v. Leota, 9 A.S.R.2d 136.

Recorded deed of sale made purchasers at least the equitable owners of the property, so that seller no longer had any right to encumber the property by establishing an easement over it in favor of purchasers of another tract. Leota v. Sese, 12 A.S.R.2d 18.

Contention by litigants that the land they purchased had belonged not to the seller but to his communal family, advanced for the purpose of defeating an easement of necessity in favor of an adjoining tract on the ground that there was no unity of title between the true tracts, would instead have the effect of divesting the litigants of any property rights at all in the disputed tract. Leota v. Sese, 12 A.S.R.2d 18.

That one of two tracts sold by grantor was registered in his name, whereas other tract was not so registered, did not mean that grantor had no title in the unregistered tract, and did not preclude easement of necessity over one tract in favor of the other. Leota v. Sese, 12 A.S.R.2d 18.

The idea that the owner of a valley has a right to the adjoining mountainsides as a sort of curtilage or natural frontier, while having some support in Western political theory and Samoan tradition, is not a principle of universal application. Afualo v. Fanene, Pualioa v. Afualo, 15 A.S.R.2d 48.

When an owner of two adjacent parcels of land conveys one of them, or when the owner of a parcel of land conveys a part of it, the grantee takes the land with all benefits that appear to belong to the land at the time of the transfer. Letuli v. Le'i, 22 A.S.R.2d 77.

The purpose of recognizing implied easements is to carry out the intent of the parties in light of all the circumstances, which include the visibility and permanency of the easement on the servient estate, reasonable necessity of the easement, actual use of the easement at the time of the transfer, and reasonably foreseeable uses of the easement. Letuli v. Le'i, 22 A.S.R.2d 77.

An implied easement by necessity is inappropriate as long as some means of access exists. Fuimaono v. Fuia, 23 A.S.R.2d 121.

The extent of an implied easement must be inferred from all circumstances of the case, including those uses that can reasonably be expected, or as might reasonably be required in the normal development of land. This includes not only the right of ingress and egress, but also the right to make use of the easement for installation of utilities. Le`i v. Olo, 25 A.S.R.2d 33.

The rule that the grantee of an easement by implication may not materially increase the burden on the servient estate must balance against the principle that the extent of an implied easement includes those uses which are reasonably expected or required for normal land development. Le`i v. Olo, 25 A.S.R.2d 33.

In modern times, the installation of utility lines is a practical necessity incident to the residential use of property. Le`i v. Olo, 25 A.S.R.2d 33.

An easement by implied grant arises when the owner conveys one of two adjacent parcels of land or subdivides a single parcel, with the parties' silent intent that the grantee takes the land with all benefits that appear at the time of the transfer to belong to the land with respect to the land the grantor retains. Hanipale v. Iuta, 31 A.S.R.2d 92.

The parties to an implied easement must manifest their intent to create an implied easement through an existing use of the retained land that is apparent, permanent, and reasonably necessary to the beneficial enjoyment of the transferred land. The implied grant will extend to reasonably foreseeable changes in the present use. Hanipale v. Iuta, 31 A.S.R.2d 92.

To sustain an easement by implied grant, a party need only show reasonable necessity. Hanipale v. Iuta, 31 A.S.R.2d 92

§ 11 Covenants

Creative interpretations of specific restrictions on the use of real property will be accorded little weight. Lindgren v. Betham, 20 A.S.R.2d 98.

§ 12 Encroachments

Fact village council approves construction of pastor’s residence and village furnishes money and labor for construction is immaterial to issue as to whether residence is located on right land. Muasau v. Pita, 4 A.S.R. 337.

After studying 1929 survey, court finds that house of defendant encroaches on land of plaintiff. Tago v. Leota, 4 A.S.R. 341.

Since house of defendant is located on land decreed to belong to plaintiff, court orders eviction of defendant. Soliai v. Apelu, 4 A.S.R. 349.

Where great weight of evidence is that partially constructed fale is on defendant’s family land, court will dismiss petition to remove it. Sa v. Fia, 4 A.S.R. 437

Where witness has not seen partially built fale and does not know what land it is on, testimony concerning right to build it is entitled to little weight. Sa v. Fia, 4 A.S.R. 437.

Where fence is located within rightful boundaries as determined by court, counterclaim to have it removed must be dismissed. Lutu v. Fuimaono, 4 A.S.R. 450.

Summary judgment would be awarded plaintiff on issue of land ownership previously established in a proceeding having in rem effect, but would be denied with respect to injunction against interference or encroachment on land where the pleadings and papers did not clearly show such interference or encroachment and where survey of disputed land in prior proceeding showed existing structures that might raise equitable issues. Tufono v. Vaeao, 13 A.S.R.2d 47.

Where a common grantor had sold two different adjoining parcels to two purchasers, and it appeared that strangers to these transactions had encroached on the land sold to the first purchaser, the first purchaser's remedy was against the people who were encroaching on his land and not against the second purchaser. Lutu v. Semeatu, 13 A.S.R.2d 88.

§ 13 Boundaries

§13(1) Monuments and Markers

Actual monuments with reference to which conveyance is made will control description of boundaries, and where there is inconsistency between description by courses and distances and by monuments, monuments will control. Fruen v. Mageo, 2 A.S.R. 591.

Rule of law to effect that ownership follows change in course of stream or location of water does not apply to sudden and perceptible changes, and in event of such changes boundary line remains same even through stream has changed. Fruen v. Mageo, 2 A.S.R. 591.

Under Samoan custom, boundary trees are marked with “X” and trees on boundary line are common property of adjoining owners. Motu v. Faaletino, 3 A.S.R. 499.

Straight line of tall coconut trees between two tracts of land is strong circumstantial evidence of the historic boundary between the tracts. Faleafine v. Suapilimai, 7 A.S.R.2d 108.

Evidence that chief of neighboring family had pointed out a boundary line between two tracts of land, and evidence that party withdrew from disputed lands after such identification, is strong circumstantial evidence that occupants of disputed land once recognized the line as their boundary. Faleafine v. Suapilimai, 7 A.S.R.2d 108.

§13(2) Boundary Disputes

Where there is not express agreement as to location of boundaries, adjoining proprietors cannot question line which they have, for considerable number of years, recognized as correct line between their properties. Fruean v. Mageo, 2 A.S.R. 591.

Unascertained or disputed boundary line dividing lands of adjoining owners may be permanently and irrevocably established by parol agreement of adjoining landowners. Ifopo v. Lutu, 4 A.S.R. 211.

Where both parties petition court for orders necessitating determination of boundary line, court will consider defendant’s petition as counterclaim. Lutu v. Fuimaono, 4 A.S.R. 450.

Boundary disputes where evidence of actual division is not available can best be settled by agreement, survey, and registration. Paleafei v. Leatisua, 4 A.S.R. 496.

In boundary dispute between two parties, where there is evidence suggesting that a neighboring landowner who is not a party to the case may be the true owner of some or all of the disputed land, the court will not quiet title to the land or otherwise adjudicate the rights of the nonparty landowner, but will decide which of the two parties has proved a better right to occupy the disputed land. Faleafine v. Suapilimai, 7 A.S.R.2d 108.

§13(3) Evidence

Court will place greater weight on testimony of matai as to correct boundaries than on testimony of women or children since it is his business to know these things. Toomata v. Vea, 2 A.S.R. 564.

Court will rely upon testimony of matai, 86 years old, as to boundaries of communal land of his family. Lutu v. Fuimaono, 4 A.S.R. 450.

Right of Use document, indicating size of land, is evidence of location of boundaries. Lutu v. Fuimaono, 4 A.S.R. 450.

Testimony of litigant that at seventeen years of age he had personally entered into a boundary agreement with neighboring landowner, although at the time in question his father had been living and working on the land in question, was not credible. Falefia v. Sipili, 7 A.S.R.2d 1.

In ascertaining the boundaries of communal land, the court looks at a number of factors, including the reasonableness of location, whether they are logical extensions of existing, determined boundaries, the existence of natural and man-made landmarks, and the resulting configuration of the land. Toeaina v. Konelio, 22 A.S.R.2d 25.

In determining the correct boundaries of a parcel of land, the court may compare and overlay different surveys of the land, as well as consider physical landmarks, in order to identify boundaries on which agreement exists and then proceed to resolve boundary discrepancies among the surveys. Huff v. Brown, 23 A.S.R.2d 115.

§ 14 Property Torts

SEE TORTS § 2(3) – TRESPASS

An owner or possessor of land has a duty to cause no unreasonable risk of harm to others in the vicinity and so is liable for creating or maintaining dangerous artificial conditions. Crispin v. American Samoa Gov't, 21 A.S.R.2d 60.

Negligence of a landowner or land occupier is not a substantial factor proximately causing harm if the harm would have occurred despite the negligence of the landowner or land occupier. Crispin v. American Samoa Gov't, 21 A.S.R.2d 60.

The tort of trespass to land, unlawful interference with its possession, may occur by causing the entry of some other person or thing and may be committed as the result of an intentional, reckless, or negligent act, or as the result of an ultrahazardous activity. Letuli v. Le'i, 22 A.S.R.2d 77.

To commit the tort of trespass to land, the only intent required is the intent to enter another's land, regardless of the actor's motivation. Letuli v. Le'i, 22 A.S.R.2d 77.

The usual remedy for harm to land resulting from a past trespass and not amounting to total destruction of the value of the land is compensation (1) measured by the difference between the market value of the land before and after the harm or, where appropriate, the cost of restoration that has been or may be reasonably incurred, (2) for loss of use of the land, and (3) for discomfort and annoyance to the occupant of the land. Letuli v. Le'i, 22 A.S.R.2d 77.

If a trespass involves a continuing invasion on the land, damages may be recovered for both the past invasions and either the decrease in the value of the land caused by the prospect of the continuing invasions or the owner's cost of avoiding future invasions. Letuli v. Le'i, 22 A.S.R.2d 77.

In the absence of proof of pecuniary loss, compensatory damages for harm to land is limited to nominal damages, though punitive or exemplary damages may be awarded. Letuli v. Le'i, 22 A.S.R.2d 77.

Intended to punish a wrongdoer and deter him and others from similar, future misconduct, punitive or exemplary damages may be awarded for outrageous conduct shown by acts done with evil motive or reckless indifference to others' rights; among the circumstances to consider are the character of a defendant's act and the nature and extent of a plaintiff's harm which the defendant caused or intended to cause. Letuli v. Le'i, 22 A.S.R.2d 77.

Though an injunction is usually inappropriate for past acts of trespass because the remedy at law is adequate, both injunctive relief and compensatory damages may be granted for a continuing trespass. Letuli v. Le'i, 22 A.S.R.2d 77.

The employer of an independent contractor is generally not liable for physical harm done by the contractor or the contractor's employees; however, an employer is liable when he knows or has reason to know that, in the ordinary course of doing the work in a usual or prescribed manner, the work is likely to result in trespass. Letuli v. Le'i, 22 A.S.R.2d 77.

In the absence of proof of pecuniary loss, compensatory damages for harm to land is limited to nominal damages, though punitive or exemplary damages may be awarded. Letuli v. Le'i, 22 A.S.R.2d 77.

The constant and unremitting scrutiny of students on school premises in order to prevent injury is not expected of school officials and teachers. Motu v. American Samoa Gov't, 28 A.S.R.2d 3.

An architect is liable for a failure to exercise the reasonable care and diligence exercised by one in the profession. G.M. Meredith and Assoc. v. Blue Pacific Management Corp., 28 A.S.R.2d 60.

A prevailing plaintiff in an action for trespass to real property is always entitled at least to nominal damages, even in the absence of harm or plaintiff's failure to prove compensatory damages. American Samoa Gov't v. Estate of Fuimaono Tuinanau, 28 A.S.R.2d 187.

§ 15 Equitable Claims

§15(1) Equitable Title

In accordance with provision of Treaty of Berlin, adhered to by Samoan Lands Commission and High Court, persons who acquire land through good faith and improve it, afterwards finding that their title is defective, may receive good title by payment of equitable and just sum of money to true owner; such sum may be determined by court. Sapela v. Veevalu, 1 A.S.R. 124.

Possessor of land in bona fide belief of ownership is entitled to reimbursement for value he added to land when he is evicted by action of true owner. Sapeal v. Veevalu, 1 A.S.R. 124.

It would be inequitable for court to permit claimant to regain possession of land after many years when value of real estate has increased substantially. Tufaga v. Mativa, 1 A.S.R. 184.

Where claimant enters upon land of another and makes plantations thereon, he does not divest owner of title to land, and fact owner’s action for trespass against claimant was dismissed has no bearing on title. Feso v. Vae, 1 A.S.R. 254.

Person living on land with invalid deed, nevertheless, had color of title, and was entitled to compensation for War Damages Claims. Willis v. Willis, 2 A.S.R. 276.

Substantial investment in rebuilding house supports claim of equitable title to house. Siania v. Solaita, 4 A.S.R. 362.

Person entitled to receive title to land upon completion of payments under a land sale contract is the equitable owner of the land. Te'o v. Continental Insurance Co., 6 A.S.R.2d 135.

Court would exercise its equitable discretion to allow husband of judgment debtor, who had made payments on land contract and paid for a house on the land, to retain in preference to the judgment creditor half of the proceeds from sale of land which had been held in the name of the judgment debtor. Te'o v. Continental Insurance Co., 6 A.S.R.2d 135.

Where land claimant waited fifty-two years, before attempting to evict those upon the land, and innocent third parties bought land, built homes, and raised families on the land, the doctrine of laches would apply to limit any recovery, and good faith improvers would have a right to compensation upon eviction. Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54.

Trial court correctly imposed a trust in favor of appellant's children, pending the outcome of the appeal, over land sale proceeds the trial court had awarded to appellant where the issue on appeal was whether appellant's spouse had successfully transferred the land to the children before the sale or whether it remained her property in which appellant had an equitable interest. Tedrow v. Manuma, 12 A.S.R.2d 51.

§15(2) Injunctions

SEE CIVIL PROCEDURE § 8 – INJUNCTIONS

Where there is not evidence that defendant is threatening to interfere with possession of premises occupied by plaintiff, court will not issue injunction to restrain such interference. Yuhashi v. Lopeti, 3 A.S.R. 322.

Injunction will not lie to restrain one from doing what he is not attempting to do and does not intend to do, and will not issue in absence of actual or presently threatened interference. Lualemana v. Brown, 3 A.S.R. 348.

Where court finds that land is communal family land and that person constructing house thereon is member of family and has been assigned land by matai, court will dismiss petition for injunction to prevent construction of house on land. Atufili v. Timoteo, 3 A.S.R. 395.

A party should not be allowed to avoid an injunction that would otherwise issue against him simply by doing all the irreparable harm he plans to do with no advance warning to those who will be injured. Talili v. Satele (Mem.), 3 A.S.R.2d 36.

Where evidence indicated that extraordinary generation of fumes resulted from scheduled annual fuel tank cleaning process, process had been completed and fume level had subsided, and process would not be repeated for about a year, neighboring residents had an adequate remedy at law and were not entitled to a preliminary injunction against fuel storage at facility in question. Tavai v. American Samoa Government, 6 A.S.R.2d 97.

In apparent recognition of the unusual nature of interests often being asserted in Samoan land disputes, the territorial legislature has provided that in such disputes a justice may make such preliminary orders as to him seem just to restrain any Samoan from exercising any right or doing any act, matter, or thing affecting or concerning any Samoan land pending the outcome of the litigation, without requiring that any specific irreparable harm be shown. A.S.C.A. § 43.0303. Leaana v. Laban (Mem.), 12 A.S.R.2d 93.

Preliminary injunction against defendant's unauthorized construction on family communal land would be denied, as injunction would serve no purpose but punishment for past deeds, where: defendant had been assigned the building site by the late senior matai; defendant was rebuilding a home destroyed by fire; plaintiff matai did not object to defendant's having a home on communal land, but only to her doing so without his signature on the building permit; defendant would owe her contractor liquidated damages for any delay; and the normal requirement of security or bond requirement was not applicable. A.S.C.A. § 41.1309(b). Leaana v. Laban (Mem.), 12 A.S.R.2d 93.

Preliminary injunction would be granted enjoining defendant from misrepresenting on the public record that family land was owned by non-matai family member who had signed her building permit application; the defendant would have ten days to rectify her building permit to reflect family ownership and family approval given under the signature of the matai with the appropriate family authority. Leaana v. Laban (Mem.), 12 A.S.R.2d 93.

Preliminary injunction against construction on certain land was denied where petitioner's case consisted of a claim to the land based on an uncertain family history, while respondent claimed ownership based upon a differing family history plus a showing of established use and settled occupation; and where petitioner did not show that the construction would irreparably alter the land or cause any other great or irreparable injury. Gaoa v. Tulifua, 13 A.S.R.2d 30.

Indignity and sense of hurt felt by petitioners with respect to respondents' construction on disputed land was not "irreparable injury" within meaning of the preliminary injunction statute. A.S.C.A. § 43.1301(j). Gaoa v. Tulifua, 13 A.S.R.2d 30.

Injunctive relief was denied absent surveys delineating the exact interests of plaintiffs which required such relief. Vaivao v. Craddick, 14 A.S.R.2d 108.

Plaintiff established sufficient grounds and was granted a preliminary injunction enjoining defendant from interfering with attempts to repair damage to plaintiff's home, where plaintiff's claim to reside on family lands was based on the fact that the matai and family had permitted her to use and occupy the homesite for ten years, while defendant's claim was based on the more tenuous ground that her immediate family exclusively owned the communal land in issue. A.S.C.A. §§ 43.1301(g),(j). Uli v. Talaeai, 16 A.S.R.2d 14.

Plaintiff failed to establish sufficient grounds for a preliminary injunction enjoining defendant/matai from building on a portion of family communal land, where the court had previously found that the matai's sleeping quarters were traditionally located at that site, the matai was building the home as sa`o for the benefit of the extended family rather than for herself or her immediate family, and the plaintiffs failed to show they would suffer great or irreparable harm if an injunction did not issue. Mauga v. Asuega, 17 A.S.R.2d 4.

Issuance of a preliminary injunction requires a plaintiff's written undertaking to pay defendant's damages and costs, up to a specified amount and with sufficient sureties as the court may determine, which may result from the injunction if a permanent injunction is not granted and defendant is awarded damages and costs. A.S.C.A. § 43.1309(a). Gurr v. Scratch, 22 A.S.R.2d 103.

For purposes of a preliminary injunction, a request for surety is inappropriate when the subject matter of the request relates to communal property issues. A.S.C.A. § 41.1309(b). Mamea v. American Samoa Power Authority, 26 A.S.R.2d 47.

§15(3) Good Faith Possessor

Where intruder on land of another in bona fide belief of title to land makes plantations, intruder and owner should attempt to agree on compensation to be made intruder fro improvements to land, and failing to agree, should resort to arbitrator. Feso v. Vae, 1 A.S.R. 254.

Even though legal title to land is in another, there may be equitable claim for improvements made on property by intruder who honestly believe he was owner of land. Feso v. Vae, 1 A.S.R. 254.

Occupant of land who, believing that conveyance to her by prior occupant was valid, borrowed money and used it to build improvements on the land, was entitled to compensation upon eviction by true landowner. Puailoa v. Estate of Lagafuaina, 8 A.S.R.2d 36.

Where true landowner and good-faith improver were each in possession of the land and the improvements for several years with knowledge of competing claim; value of the improvements was about equal to value of the land itself; and each party collected rents for several years while doing nothing to resolve the dispute, neither party was entitled to compensation from the other for rents collected during this period. Puailoa v. Estate of Lagafuaina, 8 A.S.R.2d 36.

Where rule by which good faith possessor of land is entitled upon eviction to compensation for the full amount by which his improvements enhanced the value of the land, and alternate rule by which possessor is entitled to no more than the actual cost of his improvements, would dictate the same result in the case at hand, court deciding case of first impression need not choose between the two rules. Roberts v. Sesepasara, 8 A.S.R.2d 124.

Justification for using the cost of improvements made by good faith possessor of land as a ceiling on the amount of compensation to which possessor is entitled upon eviction is that, once the possessor has been made whole, he can no longer complain that any enrichment of the true landowner is unjust. Roberts v. Sesepasara, 8 A.S.R.2d 124.

Rule by which evicted good faith possessor can recover no more than the actual cost of his improvements must be applied so as to prevent unjust enrichment by making possessor whole; actual cost must therefore be calculated according to the present value of money spent on improvements years ago. Roberts v. Sesepasara, 8 A.S.R.2d 124.

Where good faith possessor of land had paid for improvements made by previous occupant who was not a good faith possessor, and had spent additional funds on further improvements, and where true owner of land had neither built nor paid for any of the improvements, possessor was entitled to compensation both for the improvements she had purchased and for those she had made herself. Roberts v. Sesepasara, 8 A.S.R.2d 124.

Good faith possessor of land, who had rented the land with its improvements to a third party, is entitled upon eviction to retain any rents she received, less the rental value of the land without any improvements. Roberts v. Sesepasara, 8 A.S.R.2d 124.

Where landowner, in action for eviction of good faith possessor and accounting for rents received by the possessor, presented no evidence of what the fair rental value of the land would have been without any improvements, court in its discretion could deny landowner any credit for such rental value. Roberts v. Sesepasara, 8 A.S.R.2d 124.

Where (1) possessor of property had continued to receive rental payments for property after notice of claim by true landowner; (2) during this time possessor had taken care of the property, made repairs and improvements, and paid for insurance; (3) true landowner during a comparable period of possession had collected rents without insuring, improving, or caring for the property; and (4) some undetermined part of the rental value of the property was due to improvements made by the possessor prior to notice of the claim by the true landowner, it was within court's equitable discretion to treat possessor as a good faith possessor throughout the period in question and to allocate half of the net rents (receipts minus expenditures) to each party. Roberts v. Sesepasara, 8 A.S.R.2d 124.

Knowledge of an adverse claim ordinarily prevents a possessor from being in good faith for the purpose of receiving compensation for improvements upon eviction. Tulisua v. Olo, 8 A.S.R.2d 169.

Possessor of land may sometimes be considered a good faith possessor even though he has knowledge of an adverse claim, when the true owner has "slept on his rights" or otherwise contributed to a situation in which it would be inequitable to deny compensation for value of improvements. Tulisua v. Olo, 8 A.S.R.2d 169.

Possessor of land who built house after notice of claim by party later held to be true landowner, over repeated objections by landowner, after suit had been filed and only a few months before trial, and who built house quickly in apparent attempt to affect the outcome of the pending litigation, acted at his own risk, and trial court was within its discretion in denying him compensation for the value of the house. Tulisua v. Olo, 8 A.S.R.2d 169.

One who begins construction on disputed land after notice of the opposing party's claim, and especially during the pendency of litigation to determine title the land, does so at his own risk and is not entitled upon eviction to compensation for the value of his improvements, at least where the opposing party has pursued its claim with diligence. Uo v. Fai`ivae, 10 A.S.R.2d 150.

Plaintiff's earlier notice to defendants that they might be occupying part of plaintiff's land did not prevent them from being good-faith improvers with respect to a particular house, when that notice concerned another building and plaintiff did not then know that the house was on her land. Lutu v. Semeatu, 17 A.S.R.2d 18.

Good-faith improvers are entitled to reimbursement for their actual expenses in improving the property or for the amount by which the improvements enhanced the value of the property whichever is less. Lutu v. Semeatu, 17 A.S.R.2d 18.

If evicted by the true owner, a person who made improvements on the land in the good-faith belief that he was the owner or that the owner had authorized him to build the improvements is entitled to compensation for their value. Leapagatele v. Nyel, 17 A.S.R.2d 201.

The measure of compensation to a good-faith improver is the lesser of the actual cost of the improvements or the amount by which they have enhanced the value of the property. Leapagatele v. Nyel, 17 A.S.R.2d 201.

A person is not entitled to compensation for improvements when he could not have believed in good faith that he had the permission of the landowner. Leapagatele v. Nyel, 17 A.S.R.2d 201.

As to the cost of the improvements and the amount by which they enhanced the property's value, if one party submits evidence which is clearly unreasonable, the court may accept the other party's evidence as conclusive. Leapagatele v. Nyel, 17 A.S.R.2d 201.

Good-faith improvers may be entitled to equitable relief for the value of improvements made to the land, but those occupying communal lands in direct opposition to the matai's wishes and in violation of a stipulated preliminary injunction are not entitled to such relief. Leapagatele v. Malauulu, 19 A.S.R.2d 109.

Equitable relief of compensation for the value of improvements made to the land is only available to an occupant who has made improvements in "good faith" and whose possession was under some color or claim of title. Faleatua v. Tauiliili, 19 A.S.R.2d 122.

Ordinarily, an improver's knowledge of an adverse land claim vitiates a claim to "good faith" for the purposes of receiving compensation. Faleatua v. Tauiliili, 19 A.S.R.2d 122.

An improver of land may be charged with actual notice when he receives notice of some fact or circumstance that would put a man of ordinary prudence to an inquiry which would, if honestly followed, lead to the knowledge of the adverse title. Faleatua v. Tauiliili, 19 A.S.R.2d 122.

A good-faith improver, whose possession of land was under a claim or color of title, is entitled to equitable relief to compensate for improvements; the measure of compensation is the lesser of (1) the actual cost of the improvements or (2) the amount by which the improvements enhanced the value of the property. Fofoagaitotoa v. Faleafine, 21 A.S.R.2d 110.

Although having built on property without the landowner's permission and so not a good-faith improver, defendant was still entitled to compensation when the plaintiff permitted construction to continue and so contributed to a situation in which denying compensation would be inequitable. Scratch v. Sua, 22 A.S.R.2d 53.

When the court ruled that land was not a lessor's individually-owned land and so cancelled a lease, the lessee was entitled to reimbursement for unjust enrichment for improvements made to the land from the matai having authority over the land and from his communal family. Ava v. Logoai, 22 A.S.R.2d 65.

A "good-faith" possessor is one who makes improvements on land in the honest belief that he is the owner; thus, a person knew of an adverse claim to land but nonetheless carried on with construction is not entitled to equitable relief for the value of improvements. Pili v. Tuia'ana, 22 A.S.R.2d 100.

A good-faith improver of land is entitled to compensation for the lesser amount of either the present value of the actual construction cost of the improvements or the present, enhanced value of the property resulting from the improvements. Fanene v. Taaseu, 23 A.S.R.2d 1.

"Good faith" improvers of land are entitled to equitable relief, against unjust enrichment, in the way of compensation for improvements upon eviction. Estate of Malae v. Sega, 26 A.S.R.2d 136.

A good faith possessor is one who makes improvements on land in the honest belief that he is the owner, whereas knowledge of an adverse claim usually prevents someone from being a good faith possessor. American Samoa Gov't v. Estate of Fuimaono Tuinanau, 28 A.S.R.2d 187.

After eviction, former possessors of land are entitled to remove fixtures and possessions, but they are not entitled to gain compensation for the value of their improvements unless they are good faith possessors. American Samoa Gov't v. Estate of Fuimaono Tuinanau, 28 A.S.R.2d 187.

A good faith possessor must have a reasonable belief that he holds valid title to the property, and when he learns that he has no title or that the title is defective, he is no longer acting in good faith. American Samoa Gov’t v. Estate of Fuimaono Tuinanau, 29 A.S.R.2d 114.

§ 16 Rights of Co-Owners

§16(1) Possession and Use of Common Estate

Under common law as adapted to conditions of Samoa, co-owners of land, excluding deceased owner, are tenants in common, and search subject to right of lessee. Willis v. Willis, 2 A.S.R. 276.

Where one of two or more co-tenants, without consent, erects building on common property which excluded co-tenant, said excluded co-tenant may remove building without becoming liable for trespass and may enjoin construction of building, unless property has been legally divided. Luce v. Pila, 3 A.S.R. 127.

Co-owner of real property has right to enter upon common estate and take possession of while thereof, subject only to equal right of his companions in interest. Tolivale v. Ufanua, 3 A.S.R. 196.

Tenant in common is equally entitled to use and possession of common property, and has right to occupy whole of property and every part thereof, and cannot be ejected for occupying more than his share of premises would be in case of partition. Yuhashi v. Lopeti, 3 A.S.R. 322.

A tenant in common is entitled to possession of common property as against all others save his co-tenants. Willis v. Laugutu, 4 A.S.R. 216.

Co-tenant may use and enjoy common estate in same manner as though he was sole proprietor, and subject to rights of co-tenants, he may occupy and utilize every portion of property at all times but may not exclude co-owners. Ofoia v. Pritchard, 4 A.S.R. 326.

Land held to belong to family members as tenants in common is "communal" insofar as each member held an undivided interest in the land by virtue of joint occupation and cultivation, but was not Samoan communal property for purpose of statutes requiring action to be taken by a matai. A.S.C.A. § 37.1502-03. Willis v. Willis, 4 A.S.R.2d 144.

Judgment declaring land belonging to a family that was not a traditional Samoan family with a matai to be "communal land" would be construed as having recognized family members as tenants in common of the land, thus enabling them to own and develop land "communally" notwithstanding the nonexistence of a matai. Willis v. Willis, 4 A.S.R.2d 188.

§16(2) Partition

Where decree of joint ownership would be inequitable, court will divide land among joint owners. Leapaga v. Taumua L., 2 A.S.R. 56.

Upon partition of tenants in common, court will divide property equitably and justly. Emmelina v. Aneki, 2 A.S.R. 444.

Where court partitions lands and names two of landowners as owners of partitioned part, they hold as tenants in common and not as joint tenants since common law which would have made them joint tenants is not suitable to conditions in American Samoa, and right of survivorship would be unfair to heirs. Emmelina v. Aneki, 2 A.S.R. 4444.

Tenancy in common differs from traditional Samoan land tenure in that any co-owner is entitled to a partition of the property. Willis v. Willis, 4 A.S.R.2d 144.

§ 17 Landlord-Tenant

§17(1) Generally

New lease to original tenant of same premises operates as surrender of old lease by operation of law unless contrary to intention of parties. Haleck v. Tiumalu, 3 A.S.R. 380.

Trial court did not err in holding party personally liable for rental payments when that party had personally engaged in negotiations for the rental and had not formed a corporation until about the time he took possession of the property, and where all transactions were so informal that it was not clear property owner intended to deal with a corporation rather than an individual. Filioali'i v. Adams, 3 A.S.R.2d 105.

Where plaintiffs had waited three years to file suit after territorial Attorney General had announced that a territorial statute was unconstitutional, and government had granted a number of leases during the intervening years that did not conform to requirements of the statute, action for declaratory judgment that the statute was unconstitutional would be entertained but demand for the invalidation of leases signed prior to the date suit was filed was barred by laches. Tuika Tuika v. Governor of American Samoa, 4 A.S.R.2d 85.

When lessors, by not paying their lawful debt to the bank that held the mortgage on the leased premises, caused a writ of execution to be issued against the premises, they breached the covenant of quiet enjoyment which is an essential element of every leasehold agreement. Development Bank v. Sam Scanlan, Inc. (Mem.), 12 A.S.R.2d 74.

Unrecorded lease of building, which did not include the land on which the building was located, gave rise only to contractual rights, not to a real interest in the property. Development Bank v. Sam Scanlan, Inc. (Mem.), 12 A.S.R.2d 74.

If there is no breach of a lease agreement, there can be no claim for which damages may be granted for lost profits and lost value of leasehold interest. Sala v. Tuika, 18 A.S.R.2d 29.

§17(2) Terms and Conditions of Lease

There is no statute of frauds in American Samoa, and lease is not required to be in writing. Bank of American Samoa v. Brown, 2 A.S.R. 365.

Covenant requiring lessee to pay for fire insurance coverage does not require him to procure additional insurance as value of building increases. Bank of American Samoa v. Brown, 2 A.S.R. 365.

Covenant to renew contained in lease is valid and for consideration even though lease has no obligation to renew since it may be inducement for his acceptance of lease and payment of consideration. Haleck v. Tiumalu, 3 A.S.R. 380.

Where lessor refuses to enter into a new lease in accordance with renewal clause of old lease, lessee is entitled to specific performance requiring lessor to so enter into new lease. Haleck v. Tiumalu, 3 A.S.R. 380.

Covenant for renewal of lease is existing and valid contract but where renewal is to be new lease, it must be presented to Land Commission for recommendation to Governor pursuant to statute, and obligation between parties to lease will not deprive Governor of his power to approve or not to approve lease under authority given him by law. CAS 1281, 1283. Haleck v. Lee, 4 A.S.R. 519.

Words “upon the expiration of this lease, parties will enter into and execute a new lease” indicate that such renewal is in fact new lease and not merely extension of old lease. Haleck v. Lee, 4 A.S.R. 519.

Prior court ruling established that “renewal clause” in lease provided for creation of new lease and not extension of old lease. Haleck v. Lee, 4 A.S.R. 519.

Evidence does not substantiate that substitute lease drawn and recommended by land commission as renewal lease contained unconscionably harsh and oppressive terms. Haleck v. Lee, 4 A.S.R. 519.

Court cannot accept statement by matai that he did not realize effect of signing lease agreement with bank where he had time to study lease. Atualevao v. Masaniai, 4 A.S.R. 664.

Where lessor wrongfully repossessed leased equipment shortly before the expiration of the term of the lease, but lessees did not prove any damages on account of the premature repossession, lessees would be required to pay rent for the period prior to repossession as well as incidental expenses allocated to the lessees by the lease agreement. Anderson v. Sinagege R.M. Utu Enterprises, 8 A.S.R. 2d 139.

Where lessees were not in default when lessor repossessed the leased equipment, lessor could not recover its expenses incident to the repossession. Anderson v. Sinagege R.M. Utu Enterprises, 8 A.S.R. 2d 139.

Where lease provided that tenant would have a right to renew at the expiration of the term of the lease, letter from landlord saying that no leases would be renewed since landlord was trying to sell the building was a breach of the lease. Development Bank of American Samoa v. Ron Pritchard Ground Services, Inc., 8 A.S.R.2d 190.

Where lease provided that tenant would have a right to renew at the expiration of the original five-year term, and where, after expiration and after various breaches of lease by both landlord and tenant, the parties negotiated for subdivision of the leased premises and landlord sent letter stating that tenant would retain a stated square footage as its leasehold interest, with a designated space at the bottom of the letter for acceptance by the tenant, such acceptance would give rise to a new five-year lease on the modified terms. Development Bank of American Samoa v. Ron Pritchard Ground Services, Inc., 8 A.S.R.2d 190.

Lessors of nightclub who continued to regard themselves as its proprietors, demanded drinks on credit, threatened to fire employees of their lessee who attempted to deny such credit, and ordered the lessee to remove a rock he had placed on top of a loose piece of roof but refused to fix the roof themselves, justified the lessee in regarding the lease as at an end. Development Bank v. Sam Scanlan, Inc. (Mem.), 12 A.S.R.2d 74.

Where lease provided that lessee would be entitled, upon termination of the lease by fault of the lessor, to return of furniture and other improvements he installed, "less depreciated value," and where the depreciated value of all such furniture and improvements was less than the amount spent by the lessee on improvements that could not easily be removed from the building, the lessee would be entitled to the return of all furniture and improvements not affixed to the building. Development Bank v. Sam Scanlan, Inc. (Mem.), 12 A.S.R.2d 74.

Lease drafted by lessees' attorney, and agreed to by lessor who was unrepresented by counsel, which failed to specify most terms generally included in a contract of lease and which allowed the lessee to deduct credits from the rent in an amount which was neither agreed upon nor determinable by reference to the agreement, may have been too indefinite to constitute a legally binding contract. Fealofa`i v. Reid, 14 A.S.R.2d 57.

If purported lease did not amount to a binding agreement, each party would nevertheless be entitled to quantum meruit recovery for any benefits conferred upon the other party; the lessor would be entitled to possession of the house and to its fair rental value for the time during which it had been occupied by the lessees, but only after compensating the lessees for any improvements they made which would be of benefit to the lessor. Fealofa`i v. Reid, 14 A.S.R.2d 57.

By claiming many more thousands of dollars' worth of expenses as credits against rental payments than they were even arguably entitled to under a lease drafted by their attorney, and by refusing to pay rent until such time as these expenses should all have been exhausted, lessees put themselves in breach of the lease. Fealofa`i v. Reid, 14 A.S.R.2d 57.

At common law, the landlord-tenant relationship did not give rise to a lien against the tenant's property; while such liens have been created by statute in other jurisdictions, no such statute has been enacted in American Samoa. Shantilal Brothers, Ltd. v. KMST Wholesale, 15 A.S.R.2d 115.

A lease which contains an ambiguous renewal option will be interpreted to give lessee the option to renew, rather than lessor, where renewal term and rent were fixed at the outset. Sala v. Tuika, 18 A.S.R.2d 29.

Damages for breach of a lease or a covenant in a lease, if any, must be proved according to general principles which determine the measure of damages on claims arising from breaches of other kinds of contracts. Lindgren v. Betham, 20 A.S.R.2d 98.

In the absence of some proof of damages the court is not free to estimate what might be fair based upon the its own knowledge of the rental market. Lindgren v. Betham, 20 A.S.R.2d 98.

Courts are obligated to enforce a restrictive covenant in a lease, unless enforcement would be inequitable or contrary to pubic policy. Lindgren v. Betham, 20 A.S.R.2d 98.

An untimely attempt to exercise an option to renew or extend a lease is ineffective. Reine v. Fiame, 23 A.S.R.2d 25.

As a tenancy for a fixed term expires without any notice or other act at the end of the term, when a lessor clearly showed its intent to terminate a lease, a lessee does not hold over as a consensual tenant at sufferance, tenant at will, or periodic tenant. Reine v. Fiame, 23 A.S.R.2d 25.

Except by statute or agreement, a commercial lessor is not obligated to repair or renovate leased premises. Reine v. Fiame, 23 A.S.R.2d 25.

While a contemporaneous oral agreement may establish a lessor's duty to repair, a subsequent oral undertaking cannot vary a written lease complete in itself. Reine v. Fiame, 23 A.S.R.2d 25.

At common law, an oral lease is valid. Blue Pacific Management Corp. v. Paisano's Corp., 23 A.S.R.2d 58.

Where an original ground lease did not contain a clause allowing for a second option or a right to extend the lease, a letter extending the lease does not constitute a new lease. Development Bank of American Samoa v. Scanlan, Inc., 28 A.S.R.2d 57.

The term "renewal" in a lease means that the original lease expires at its term and that upon agreement of the parties, it may be renewed through the execution of a new lease. American Samoa Gov't v. South Pacific Island Airsystems, Inc., 28 A.S.R.2d 74.

§17(3) Modificiation of Lease

Parol evidence rule will not exclude oral change in terms of lease which is subsequent to written instrument and which is distinct and clear. Bank of American Samoa v. Brown, 2 A.S.R. 365.

Where the Government had drafted a lease document inadvertently omitting a provision required by statute for periodic adjustment of the rent, and the lessee had no objection to such a provision, the lease would be reformed or construed to include the required provision rather than declared invalid. A.S.C.A. § 37.2020. American Samoa Gov't v. Samoa Aviation, Inc., 11 A.S.R.2d 144.

Lease agreement omitting inflation adjustment clause required by statute would be enforced, after modification to include such a clause, where: (1) the statute did not provide that contracts omitting the required term should be absolutely void; (2) the contract complied with all applicable laws and regulations but one; (3) the only "misconduct" in which the lessee might be said to have engaged was to sign an apparently lawful agreement drafted by the lessor; (4) there was no evidence that the required clause was omitted by any reason but inadvertence; (5) the lessee had signed a covenant to obey all laws pertaining to the premises; (6) soon after being notified of the absence of the inflation adjustment clause, the lessee expressed its belief that it was in fact bound to pay the required adjustments; (7) the statute did not appear designed to punish conduct regarded as malum in se by effecting a forfeiture; (8) the statutory purpose of protecting the lessor could be accomplished by imposing on the lessee the obligation to pay the required adjustments; and (9) the record rather clearly showed that the absence of an inflation adjustment clause was not a genuine point of controversy between the lessor and lessee, but was one of a series of technical grounds on which the lessor sought to evict the lessee in order to accommodate another prospective tenant. A.S.C.A. § 37.2020. American Samoa Government v. Samoa Aviation, Inc. (Mem), 13 A.S.R.2d 65.

Territorial government has the statutory right to enforce against its lessee a provision satisfactory to it whereby rentals are adjusted at intervals for inflation, although such a clause was inadvertently omitted from the lease, but has no right to evict the lessee on account of such omission. American Samoa Government v. Samoa Aviation, Inc. (Mem), 13 A.S.R.2d 65.

§17(4) Assignment of Lease

Prior lease of basement of building by lessor which is recognized by lessee of building does not constitute subletting in violation of covenant not to sublet. Bank of American Samoa v. Brown, 2 A.S.R. 365.

Assignment of lease in violation of covenant not to assign is not grounds for forfeiture unless there is specific provision to that effect. Bank of American Samoa v. Brown, 2 A.S.R. 365.

Any defect in lease is removed when lease is assigned to third party innocent purchaser who is unaware of defect. Haleck v. Tiumalu, 3 A.S.R. 380.

Where lease provided that landlord could not arbitrarily and unreasonably deny tenants the right to sublease, prohibition by landlord of all subleasing on the ground that landlord rather than tenants should have the advantage of the higher rents available from sublessees was a breach of the lease. Development Bank of American Samoa v. Ron Pritchard Ground Services, Inc., 8 A.S.R.2d 190.

A lessor waives its right to object to an assignment of a lease when it accepts the assignee’s performance under the lease terms, even if the lessee acted without the lessor’s affirmative consent to the assignment. Congressional Church of Jesus in Samoa v. A.S.G., 31 A.S.R.2d 122.

§17(5) Responsibilities of Landlord

RESERVED

§17(6) Responsibilities of Tenant

Absent agreement or statute, the unyielding rule at common law is that the lessor is under no obligation to rebuild or restore premises destroyed without his fault. Sala v. Tuika, 18 A.S.R.2d 29.

§17(7) Rescission or Cancellation

Where there is no stipulation in lease that breach of covenants will result in forfeiture of lease, lessor cannot cancel lease for such breach but must seek remedy by way of damages. Bank of American Samoa v. Brown, 2 A.S.R. 365.

Where lease contains no forfeiture clause, it cannot be cancelled for non-payment of rent, nor for payment by monthly rather than yearly installments. Bank of American Samoa v. Brown, 2 A.S.R. 365.

In absence of provision for forfeiture, lease cannot be cancelled because leased land is used as lodging house without permit and therefore in violation of covenant not to use land illegally. Bank of American Samoa v. Brown, 2 A.S.R. 365.

Where there is no stipulation in lease, failure of lessee to pay taxes on property in accordance with covenant, is not ground for forfeiture of term. Bank of American Samoa v. Brown, 2 A.S.R. 365.

Where leased premises were substantially damaged by a hurricane and neither lessee nor lessor were obligated under the lease to repair, and did not in fact make such repairs, mutual cancellation or recision of the lease under the circumstances will be inferred. Sala v. Tuika, 18 A.S.R.2d 29.

The determination of whether a lease is properly terminated is based on the terms of the lease. American Samoa Gov’t v. Anoa`i, 30 A.S.R.2d 180.

§17(8) Eviction

New default by tenant after agreement for renewal of lease gave landlord the right, after warning and continued default, to evict tenant. Development Bank of American Samoa v. Ron Pritchard Ground Services, Inc., 8 A.S.R.2d 190.

Under territorial statutes providing that the registrar should not record any instrument appearing to be illegal, but that any person aggrieved by any official action of the register could apply to the court "at any time" for direction or redress, a lessor would not prevail in an action for eviction based on non-recordation of a lease where (1) the lease was initially recorded by the registrar's office; (2) an acting registrar later attempted retroactively to reject the lease, citing certain alleged illegalities; (3) upon trial of the eviction action, defendant invoked its right to judicial review of the registrar's action and the court found that the lease was not illegal and was therefore properly accepted for recordation. A.S.C.A. §§ 4.1104, 4.1106. American Samoa Gov't v. Samoa Aviation, Inc., 11 A.S.R.2d 144.

Where lessor's mortgagee had secured a writ of execution against the leased premises, and unrecorded lease gave lessee no real interest in the property, lessee could have been lawfully evicted by mortgagee with no recourse but to try to collect his damages from the lessor. Development Bank v. Sam Scanlan, Inc. (Mem.), 12 A.S.R.2d 74.

When lessor's mortgagee secured a writ of execution against leased premises, giving mortgagee the legal right to evict lessee at any time, the lessee was constructively evicted from the premises by the fault of the lessor. Development Bank v. Sam Scanlan, Inc. (Mem.), 12 A.S.R.2d 74.

That lessor's mortgagee, after securing a writ of execution against leased premises, initially chose not to evict the lessee but instead allowed lessee to remain as a tenant at will, was irrelevant to analysis of the legal relationship between lessor and lessee. Development Bank v. Sam Scanlan, Inc. (Mem.), 12 A.S.R.2d 74.

Evidence did not support lessee's claim of retaliatory eviction where the only thing lessor appeared to be retaliating for was lessee's failure to pay rent. American Samoa Government v. Manu`a Air Transport, 12 A.S.R.2d 78.

Where lessees' refusal to pay rent for several years was not based on a reasonable interpretation of the lease agreement, lessor was entitled to eviction. Fealofa`i v. Reid, 14 A.S.R.2d 57.

The rules pertaining to a demand letter for possession or payment of rent, like those dealing with service of process or the exhaustion of some types of administrative remedies, seem designed not to allocate decision-making power among tribunals or to ensure the existence of a case or controversy, but to protect a particular party; presumably, these rules may be waived by that party. A.S.C.A. § 43.1406. Diocese of Samoa Pago Pago v. KMST, Inc., 15 A.S.R.2d 20.

Enactment of summary eviction statute did not deprive the Court of its pre-existing general jurisdiction to issue injunctions and declaratory judgments and to award damages. A.S.C.A. § 43.1401 et seq. Diocese of Samoa Pago Pago v. KMST, Inc., 15 A.S.R.2d 20.

The only important difference between a "summary" and a "non-summary" proceeding for eviction is that plaintiffs who qualify for the former proceeding are ordinarily entitled to have trial within ten days, but this does not necessarily prohibit equally speedy trials in other cases. A.S.C.A. § 43.1410(b). Diocese of Samoa Pago Pago v. KMST, Inc., 15 A.S.R.2d 20.

Even if the summary eviction statute was jurisdictional and the demand letter for possession or payment did not comply with the statute, the court properly exercised its general jurisdiction in the absence of prejudice. A.S.C.A. § 43.1401 et seq. Diocese of Samoa Pago Pago v. KMST, Inc., 15 A.S.R.2d 20.

After eviction, former possessors of land are entitled to remove fixtures and possessions, even where they exercise their licenses in bad faith. When possessors of land are evicted, having exercised their licenses in good faith, they are entitled to the choice of either removal of improvements or compensation for expenses incurred in reliance on the license. Leomiti v. Pu'efa, 27 A.S.R.2d 150.

In the case of a bad faith possessor's eviction, if fixtures and possessions are not removed within the time set by the court, they become the property of the legal possessor of the land. Leomiti v. Pu'efa, 27 A.S.R.2d 150.

A party that has properly terminated a lease agreement may be entitled to immediate possession of its premises. A.S.C.A. § 43.1405(2)(A). American Samoa Gov’t v. Anoa`i, 30 A.S.R.2d 180.

Eviction of a family from family land is a matter properly within the senior matai's competence; it is the matai who has primary jurisdiction over intra-family disputes involving use of family land. Pene v. Salualo, 31 A.S.R.2d 58.

A successful litigant in summary eviction cases may be awarded costs of suit, but not attorney's fees in absence of specific statutory authority or the parties' agreement. A.S.C.A. § 43.1412. Cox v. Williams, 31 A.S.R.2d 110.

§17(9) Authority to Lease

Where lessor does not have authorization to lease land by co-owners and executes lease, but co-owners later convey deeds of their interest to lessor, such deeds constitute estoppel by deed and vest leasehold interest in their undivided shares in lessee. Bank of American Samoa v. Brown, 2 A.S.R. 365

Where on tenant in common executes lease without authorization of others, lessee becomes tenant in common along with co-owners with respect to undivided interest which he has leased. Bank of American Samoa v. Brown, 2 A.S.R. 365.

Co-tenants who have not signed lease of another co-tenant have no right to have lease cancelled with respect to jointly owned property. Bank of American Samoa v. Brown, 2 A.S.R. 365.

Where lands are partitioned only for purposes of receiving rents but ownership of whole remains in matai, he may contract or enter into lease on land. Haleck v. Tiumalu, 3 A.S.R. 380.

If lease has defect because lessor matai failed to consult with members of family, defect may be cured by family’s acceptance of rent. Haleck v. Tiumalu, 3 A.S.R. 380.

Counterclaim by members of matai family seeking to have lease declared void cannot be granted where members are dilatory in bringing action for many years, for equity aids only those who have been vigilant. Haleck v. Tiumalu, 3 A.S.R. 380.

Contract may provide for ownership of land to remain in matai but rent profits from leases to be divided among members of family in accordance with lands divided among them for leasing. Haleck v. Tiumalu, 3 A.S.R. 380.

Lease of land which acknowledges lessor’s ownership of land and which party claiming land has signed is strong evidence of ownership of lessor. Aumoeualogo v. Mamoe, 4 A.S.R. 742.

Lessee of land cannot be heard to dispute his lessor’s title. Aumoeualogo v. Mamoe, 4 A.S.R. 742.

No lease existed when the people who signed documents purporting to create various contract and/or property rights in some buildings had no authority to do so. Fagasoaia v. Fanene, 17 A.S.R.2d 91.

§17(10) Tenants at Will

Permissible occupation of realty without provision for rent of term creates tenancy at will. Wightman v. Vala, 2 A.S.R. 136.

Tenant at will is entitled to reasonable notice to quit. Wightman v. Vala, 2 A.S.R. 136.

Where tenant at will continues to occupy realty after elapse of reasonable time from notice to quit, tenant is liable to pay rent for such period. Wightman v. Vala, 2 A.S.R. 136.

One may become a tenant at will or a periodic tenant under an invalid lease, or without a lease at all, by occupancy with consent. American Samoa Gov't v. South Pacific Island Airsystems, Inc., 28 A.S.R.2d 74.

A tenancy at will relationship is subject to termination at will by either party to the agreement. American Samoa Gov't v. South Pacific Island Airsystems, Inc., 28 A.S.R.2d 74.

One’s interest in securing a future leasehold interest is not a constitutionally protected “liberty” or “property” interest. It stretches the concept of “liberty” and “property” too far to suggest that a person is deprived of liberty or property because an at-will periodic tenancy is not affirmatively prolonged. Congressional Church of Jesus in Samoa v. A.S.G., 31 A.S.R.2d 122.

§ 18 Zoning

§18(1) Zoning Variance

A stay of zoning variance entered by stipulation will be lifted where a third‑party intervenes, in order to return the parties to the status quo. Any party remains free to seek a new stay of variance. Ala`ilima v. Zoning Board, 25 A.S.R.2d 146.

§18(2) Zoning Board

A.S.C.A. § 26.0320(h) requires that "[w]ithin 10 days after receipt of the decision the applicant or any other interested party may file a written motion for reconsideration." McGuire v. Zoning Board, 26 A.S.R.2d 59.

Appeals to the High Court from the Zoning Board "may be taken in like manner to appeals under the Administrative Procedure Act. McGuire v. Zoning Board, 26 A.S.R.2d 59.

Appeals of Zoning Board decisions proceed in like manner to appeals under the Administrative Procedures Act, in that the administrative record must be submitted within 30 days and the court is confined to that record, though it may receive evidence to supplement the record. Ala`ilima v. Zoning Board, 25 A.S.R.2d 146.

§ 19 Riparian Rights

Where no law of United States is applicable, and no law of Samoa is inconsistent, common law of England is applicable in courts of Samoa, and common law which vests title of lands below high-water mark in sovereign is law of Samoa. Foster v. Olotoa, 3 A.S.R. 76.

Land formed by accretion belongs to riparian owner on or against whose bank or shore alluvial matter is deposited. Te’o v. Gi, 4 A.S.R. 185.

Accretions to property on seaward side of road caused by stream that flowed across it accrue to owner of property, which is government. Lago v. Mageo, 4 A.S.R. 287.

Government, as owner of riparian land, is entitled to additional thereto by accretion as if lands were owned by individual. Lago v. Mageo, 4 A.S.R. 287.

Filled-in land is not property of private claimants since whoever owned land at time of cession of Tutuila and Aunu’u to Untied States owned only to high-water mark. Lago v. Mageo, 4 A.S.R. 287.

Title to filled-in land below high-water mark is in United States and not Government of American Samoa since title to land under navigable water within boundaries of Territory of United States is held by United States in trust for whole people, and future state that may be established out of territory. Lago v. Mageo, 4 A.S.R. 287.

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