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Lutu; Tiumalu v.

TIUMALU of Fagatogo, MAILO of Fagatogo, Petitioners

 

v.

 

LUTU SIMAILE of Fagatogo, Respondent

 

[Land: "Sigataupule" and " Asi" in Fagatogo]

 

High Court of American Samoa

Civil Jurisdiction, Trial Division

 

No. 30-1945

 

June 25, 1945

 

____________

 

            Action to determine ownership of the lands "Sigataupule" and "Asi" in Fagatogo. High Court, Chief Justice Wyche, presiding, held that defendant was entitled to ownership of the land "Sigataupule" as his individual property and that the land "Asi" was the communal land of the Tiumalu family.

              Judgment for defendant with reference to land "Sigataupule" and for plaintiff with reference to "Asi".

 

1. Real Property-Individually Owned Land-Evidence of Individual Ownership

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. [2ASR223]

2. Real Property-Individually Owned Land-Inheritance Rights; Inheritance -Intestate Succession-Individually Owned Real Property

Property that is individually owned descends to children of deceased owner.

__________

 

C. G. WYCHE, Chief Justice; LIUFAU, District Judge; and MALEPEAI, District Judge.

 

ORDER

 

            On 31 March 1945, Lutu Simaile of Fagatogo, Eastern District, filed an application to register titles to two tracts of land known as Sigataupule and Asi respectively. Notice of this application was duly posted on the bulletin board at the Administration Building on 2 April 1945 for a period of 60 days as required by law. In response to this notice, Tiumalu, as matai of the Tiumalu family, filed an objection to the registration of the titles by the name of Lutu Simaile and claimed that both tracts of land were communal lands and are owned by him as the matai of the Tiumalu family. On 28 May 1945, Mailo, as matai of the Mailo family, filed an objection to the registration of the land known as Sigataupule in the name of Lutu Simaile and at the same time claimed that this land was communal land and was owned by him as the matai of the Mailo family.

            The case came on for trial before the High Court of American Samoa on 25 June 1945 and the case was concluded on 29 June 1945. There are two separate tracts of land involved in this controversy and they must be dealt with separately.

            [1, 2] According to the testimony of Lutu Simaile and the witnesses on his side of the controversy, the land known as Sigataupule was given to his father in 1892 by Mailo and his family has been in possession of the land from that time down to the present. Mailo contends that this land still belongs to his family and denies that it was [2ASR224] ever given to anyone else. There is substantially no evidence to sustain the claim of Tiumalu to any part of this tract of land. It appears from the testimony that on 17 December 1915, one, Tuiasosopo Samia, leased to Joe O'Brien a plot of land 64' x 200' in the village of Fagatogo. The lease and the description are recorded in Volume One, Page 351, Register of Native Leases. The land was surveyed on 8 December 1915 by B. Kneubuhl, surveyor and mapper, and the lease was approved by J. M. Foyer, Governor of American Samoa. The recorded plat of the lot indicates that it is bounded on one side by lands owned by Afoa which is the same land now described on the plat known as Sigataupule. This record tends to sustain the claim of Lutu Simaile that his father, who was formerly known as Afoa, was the owner of this land. The testimony further shows that four years ago, Simaile, the son of the Lutu at that time, built his home on this tract of land and has been living there since that time and no one has objected to his possession and ownership up to the present. It therefore appears that the greater weight of the evidence in the case sustains the title of the land Sigataupule as having been in the father of Lutu Simaile. Lutu Simaile has requested that this land be registered in his name as the owner and not the matai name Lutu. There is no evidence in the case that this particular tract of land was communal land and it appears to have been owned personally by the father of Lutu Simaile. Under the law of American Samoa when a parent dies the real estate owned by him or her descends to the children of the deceased person. This land therefore must be registered in the name of all of the children of Lutu Afoa, deceased. The names of these children are as follows: Simaile, Leata, Sipusi, Faasuka, Sipili, Tafesilafai, Faletoa, Falefatu, Fouvale, Eseneiaso, Fanuaee. The testimony of the witnesses as to the facts relative to the land known as Asi is directly in conflict. The witnesses [2ASR225] on the side of Lutu Simaile testified that this land was given to their ancestors by one, Ifopo, and that his family has been in possession of the land for a long period of years. The testimony on that side is that Salesa and Viavia and Faamao have been permitted to reside on this land by Lutu Afoa who formerly held the Lutu title and that they had all rendered service to Lutu as the matai of the family. The testimony on the other side is to the effect that this land has been owned since the foundation of the Government by Tiumalu and is a part of the land known as Saumaleato and that Salesa, Viavia and Faamao have occupied the land by permission of Tiumalu. The witnesses further testified that these men have rendered service to the Tiumalu title and that Viavia and Faamao are brothers to the present holder of the Tiumalu title. The Court called the surveyor, A. Narruhn, as a witness in an effort to ascertain whether or not the land known as Asi is a part of the land called Saumaleato.

            In the year 1901, there was a case tried in the High Court of American Samoa entitled Tiumalu, Plaintiff v. Fuimaono of Falealili, Upolu, and Fanene of Pago Pago Defendants. This case involved the question as to which one of the parties was entitled to all of theTiumalu lands and not as to any particular tract. The case did not involve the question of boundaries and the Court filed a decree on 28 May 1901 awarding all of the tracts of land to the holder of the Tiumalu title who was the plaintiff in that case and all of the lands referred to in the decree have since that time belonged to the Tiumalu family as communal land. To ascertain the exact boundaries of land in American Samoa is a very difficult thing to do. It appears from the testimony of the surveyor that the land described as Asi is not a part of the platted land recorded in the decision known as Saumaleato. It is the contention of Tiumalu that his family owns other lands than Saumaleato and Poata and [2ASR226] that the land known in his family by the title Saumaleato includes the tract now in contest known as Asi. The testimony of the witnesses are so much in conflict with each other that it is necessary for the Court to resort to certain facts which are substantially undisputed in order to arrive at a just and equitable decision. According to the testimony of Lutu Simaile and his witnesses, Salesa, Viavia and Faamao rendered service to the Lutu family up until five or six years ago, at which time there arose some family dispute. However, there is no evidence that the former Lutu sought to eject or to cause Salesa, Viavia and Faamao to vacate the land. They remained in possession of the land notwithstanding the fact that they ceased to render service to the head of the family. It further appears that Viavia and Faamao have built their homes on this land and resided on the property for 20 years or more. In addition to these facts, there is very little evidence to sustain the alleged gift from one, Ifopo, to the former Lutu. Under all the facts and circumstances surrounding the title of the land known as Asi, the greater weight of the testimony tends to sustain the claim of Tiumalu as the owner of this land as communal property belonging to the Tiumalu family. Now, therefore,

            IT IS ORDERED, ADJUDGED AND DECREED that the land described on the plat made by the surveyor, A. Narruhn, on 8 March 1945, known as Sigataupule, be registered in the names of Lutu Simaile, Leata, Sipusi, Faasuka, Sipili, Tafesilafai, Faletoa, Falefatu, Fouvale, Eseneiaso, Fanuaee. This land is described in metes and bounds as follows :

 

"Commencing. at an iron pin set in a ditch, run thence S. 14° 30' W., a distance of 49.20 feet to an iron pin; run thence S. 26° 1r W., a distance of 67.50 feet to an iron; run thence S. 20° 05' W., a distance of 50,10 feet to an iron pin; run thence S. 16° 23' W., a distance of 101.40 feet to an iron pin; run thence S. 66° 17' E., a distance of 62,50 feet to an iron pin; run thence N. 26° 10' E., a dis- [2ASR227]tance of 110.56 feet to an iron; run thence N. 18° 38' E., along boundary of land known as 'Asi' a distance of 133.61 feet to an iron set 2.00 feet more or less northerly of a rock wall; run thence N. 13° 50' E., a distance of 41.40 feet to an iron pin; run thence N. 80° 15' W., a distance of 71.60 feet to the iron pin at point of beginning.

The above described land contains 0.468 acres more or less. All bearings given above refer to the Magnetic [sic] North not to True North."

 

            IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the land described on the plat of the surveyor A. Narruhn, 8 March 1945, as "Asi" be registered in the name of Tiumalu as communal property to be held by him as the matai of the Tiumalu family. The land known as Asi is described as follows:

 

"For point of beginning, start at an iron pin set two feet more or less northerly of the end of a rock wall and on northeasterly boundary of land known as 'Sigataupule'. From point of beginning thus described run thence along said rock wall S. 67° 50' E., a distance 0££ 67.80 feet to a second iron pin; run thence S. 17° 45' E., a distance of 76.40 feet to a third iron pin; run thence S. 12° 03' E., a distance of 55.00 feet to a fourth iron pin; run thence S. 66° 58' W., a distance of 33.40 feet to a fifth iron pin; run thence N. 78° 23' W., a distance of 64.46 feet to a sixth iron pin; run thence N. 61° 03' W., a distance of 53.00 feet to a seventh iron pin; run thence N. 18° 38' E., along boundary of aforementioned Sigataupule a distance of 133.61 feet to the iron pin at point of beginning.

The above described land contains 0.343 acres more or less. All bearings given above refer to the Magnetic North."

 

            IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the cost in this case be fixed at eighty-five ($85.00) dollars, one third of which is to be paid by each of the parties to this suit. Ten ($10.00) dollars is to be paid to A. Narruhn, surveyor.

            IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a certified copy of this decree be delivered to the Attorney General of American Samoa.

 

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