TUSI PASI TIAPULA, SAVALIGA MASUNU, and KOLOPA P.and LEAPAGATELE FAMILIES, et al., Plaintiffs,v.ISUMU LEAPAGATELEÆS CHILDREN, et al

 

TUSI PASI TIAPULA, SAVALIGA MASUNU, and KOLOPA P.
TUIASOSOPO, for themselves and on behalf of the PAEPAEULI
and LEAPAGATELE FAMILIES, et al., Plaintiffs,
v.
ISUMU LEAPAGATELE’S CHILDREN, et al., Defendants.
High Court of American Samoa
Land and Titles Division
LT No. 10-91
LT No. 33-95
LT No. 35-95
May 17, 2002

 

[1] The doctrine of res judicata holds that a final judgment on the merits
in an action bars a later action involving the same parties, or their
privies, and the same issues.
[2] In American Samoa there is a presumption favoring communal
ownership of land.
[3] A family member usually cannot adversely possess an assigned
portion of his family’s communal land and acquire individual title to the
land; however, a family member can acquire title to his family’s
communal land by adversely possessing it for 30 years, pursuant to
A.S.C.A. § 37.0120.
[4] Possession is adverse if it is exclusive, continuous, open, notorious,
and hostile to another person’s ownership for the 30-year statutory
period.

[5] A family member cannot adversely possess his family’s communal
land unless he first gives actual notice to other family members that he
claims individual ownership of the land.
[6] Where family member made it clear to family sa`o that he claimed
the land as his individually owned property, such action constituted
actual notice to the family of his ownership claim.
[7] Where family member and his immediate family occupied and used
communal land without any contrary occupancy or other interference by
other members of the family and possessed land exclusively,
continuously, openly, notoriously, and hostilely to family’s claim of
ownership for a period of approximately 41 years, family member
acquired title to the land by adverse possession.
Before RICHMOND, Associate Justice, and LOGOAI, Chief Associate
Judge.
Counsel: For Plaintiffs, Gata E. Gurr
For Defendants Isumu Leapagatele’s Children, S. Salanoa
Aumoeualogo
For Defendants Vaiga Logo and Lagiula Kaleuati, Afoa L.
Su`esu`e Lutu
For Defendants Sesilla Vollrath, Seigfried Vollrath, Jr. and
Gisela Vollrath, Marie A. Lafaele
OPINION AND ORDER
(Trial Phase I)

Leapagatele Kesi (“Leapaga”), as the sa`o (head chief) of plaintiff
Leapagatele Family (“Leapaga family”), commenced this prolonged
litigation in 1991 when he filed LT No. 10-91. Leapaga later died and
was replaced by the three family members, the plaintiffs now named as
individuals in the case caption. Isumu Leapagatele (“Isumu”) and
defendant Isumu’s Children (“Isumu’s children”), along with several
other individuals, were the original defendants in LT No. 10-91. Isumu
also died, leaving his children as the defendants representing his and
their interests.
LT No. 33-95 and LT No. 35-95 were also filed, and the three actions
were consolidated. Thus, as the litigation progressed, numerous other
individuals and entities were added as defendants in LT No. 10-91 or as
parties to the other two actions.
Leapaga initiated LT No, 10-91 to set aside the registration by the

Territorial Registrar on January 11, 1972, of land named “Leatuvai,”
consisting of approximately 12.696 acres, in the Village of Nu`uuli,
American Samoa, as individually owned land of Isumu and Isumu’s
children, and to quiet title to the same land, surveyed as approximately
13.190 acres and registered on October 15, 1950, as the communal land
of the Paepaeuli family. The 1950 registration was ordered by this Court
in Maluia v. Isumu, 2 A.S.R. 557 (Trial Div. 1950). The title issue
framed in LT No. 10-91 is central to the full determination of these
actions. Isumu and Isumu’s children entered numerous transactions
involving the land with other persons, whose rights in the land are
dependent on the title held by Isumu or Isumu’ s children at the time of
their respective transactions.
The transactions by Isumu and Isumu’s children with third persons are
appropriately included in this litigation. However, they made
management of the trial complex and unwieldy. Therefore, we ordered a
separate trial on the underlying title issue. The parties and their counsel
identified in the counsel section at the head of this decision were the
active participants in the trial.
Facts
Isumu began to clear and cultivate this land in support of his immediate
family many years ago. In Maluia, Isumu maintained that he started to
work the land in 1929. He also admitted that he was on the land with his
father Leapaga Tapili’s permission. Leapaga Tapili was the Leapaga
family’s sa`o from 1906 until 1940. He claimed, in Maluia, that he
authorized Isumu to cultivate the land but not until 1947. However,
Leapaga Tapili was elderly and feeble at the time of Malula. He had
also resigned from the Leapaga title and been replaced by Leapaga
Masunu in 1940. Some evidence in Maluia also indicated that Isumu’s
grandfather Faitala, evidently an untitled member of the Leapaga family,
acquired the land and gave it to Leapaga Tapili at some earlier time.
This at least suggests that Leapaga Tapili had individual ownership of
the land to pass on to Isumu. In light of all these factors, however, we
are persuaded that Isumu first went on the land by permissive
occupancy, at some juncture during the portion of Leapaga Tapili’s
tenure as the Leapaga family’s sa`o from 1929 until 1940.
In 1949, Isumu had the land surveyed and offered to register it as his
individually owned land. Six objectors came forth. The matter was
adjudicated in Maluia. Isumu emphatically testified during the trial in
Maluia that he individually owned the land. The Court found, however,
that the land was communal land, and that Isumu was on the land under
the authority of his father Leapaga Tapili as the sa`o of the Leapaga

family. The Court also found the existence of the Paepaeuli family of
Nu`uuli, comprised of six matai (chiefs) who participated in the action
and were identified as the Lavata`i, Maluia, Leapaga, Fagaima, Taumua,
and Tonu titles. On this basis, the Maluia Court held that the land was
communal land of the Paepaeuli family. On October 15, 1950, the land
was registered as the Paepaeuli family’s communal land by court order.
Clearly, however, based on the evidence in the present case, there is no
Paepaeuli family of Nu`uuli. The Lavata`i, Maluia, and Leapaga are
matai titles from Nu`uuli. The Fagaima title is from the Village of
Tafuna. Taumua and Tonu are not known matai titles, and apparently the
persons so named in Maluia were actually untitled members of presently
unknown families. “Paepaeuli” is the name associated with the site of the
Leapaga guest house.
We also note that in Maluia, the holder of the Puailoa title of Nu`uuli
claimed the land through cultivation by his family’s members. The
Court found, however, that the Puailoa cultivation was outside the land,
but noted that the Puailoa family probably had communally owned land
nearby. This fact, along with evidence in this case, is indicative of
communal land surrounding the land. On the other hand, there is also
other adjacent individually owned land.
Because of Leapaga Tapili’s assignment to Isumu, the Court in Maluia
also permitted Isumu to maintain his plantations on the land. Isumu
continued to occupy and use the land without objection or interference
by the sa`o or members of the Leapaga or any other family for the next
20 years. While the evidence in Maluia showed that the persons held to
be the matai of the fictitious Paepaeuli family cultivated portions of the
land along with Isumu prior to 1950, no one else from the families in the
Paepaeuli group, or any other family, used the land between 1950 and
1970. It appears that Isumu and his family exclusively used the land
during this period.
In 1971, Isumu again had the land surveyed and, this time, offered it for
registration as the individually owned land of himself and his children.
The offer underwent the statutory registration process, no one objected,
and the land was registered on January 11, 1972, as the individually
owned land of Isumu and Isumu’s children.
The parties contested whether Isumu had identical lands surveyed in
1950 and 1971. They presented considerable evidence on this issue. We
are persuaded that both surveys are of the same land and will not dwell
on this evidence in great detail. The total areas of each survey are
certainly not quite the same, approximately 13.190 acres in 1950 and

approximately 12.696 acres in 1971, a difference of about 0.494 of an
acre. However, each survey was done by a different surveyor who may
have used slightly different techniques. Moreover, Magnetic North was
used in surveys prior to 1962, when the present Datum system and True
North were introduced in the territory. These factors can readily result in
somewhat different surveys of the same land. In addition, the land in
each survey has substantially the same boundary configuration and is in
the same location in the field. The only significant difference is the jog
appearing along the portion of the southerly boundary near the
southwesterly corner in the 1950 survey, as distinguished by a generally
straight southerly boundary in the 1971 survey. Finally, the only
professional surveyor who testified opined that the land was essentially
the same in each survey, and we find that he used sound methods and
analysis in reaching this opinion.
Clearly, following the registration in the name of Isumu and Isumu’s
children as individually owned land in 1972, Isumu and his family
continued to occupy and use the land consistently with the authority
purportedly established by the registration. He sold subdivided portions
of the land to third parties, who or whose successors are parties to this
litigation. He actually began this activity as early as 1950 and continued
to enter these transactions up to 1999. One of his daughters entered
additional transactions even after LT No. 10-99 was filed. The specific
circumstances of these transactions are not relevant, however, to
determination of the immediate title issue and, therefore, are not yet in
evidence. Those findings will wait until trial of the separated issues
becomes necessary.
Isumu also permitted other persons in his family to live on the land. In
1973, he allowed his then wife’s relatives to live there, and in 1977, he
signed a separation agreement for their residence. However, after his
wife died and he remarried, his new wife and former wife’s relatives
could not get along harmoniously, and eventually Isumu successfully
evicted the relatives on the ground that they were on the land under a
terminable license. See generally Isumu v. Palaia, 12 A.S.R.2d 98 (Land
& Titles Div. 1989). The evidence even indicates that Leapaga himself
sought Isumu’s permission on occasion to harvest produce from the land.
Again, following Isumu’s registration in early 1972, no other Leapaga
family member, or anyone else without Isumu’s permission, ever
occupied and used the land. Also, no one carried out any objection to
the recorded title and presence of Isumu and Isumu’s children, or to
others’ occupancy and use of the land by Isumu’s subdivision sales or
authorizations until LT No. 10-91 was filed in 1991, approximately 20
years later. Only one aborted effort was made when, in 1978, Leapaga

and another family member made but then abandoned an objection to a
separation agreement signed by Isumu. See generally Isumu v. Leapaga,
LT No. 40-78, slip op. (Land & Titles Div. 1978).
Finally, we point out that Isumu did not provide much, if any, tautua
(traditional service) to the Leapaga title for many years. Based on the
evidence in Maluia, he ceased to render tautua in 1948 or 1949. It also
appears that after 1938 or 1939, Isumu no longer extensively participated
in the Leapaga family’s affairs, and may not even have served his father
Leapaga Tapili, or Leapaga Masunu, who ascended to the title in 1940,
according to Samoan traditions. Isumu certainly did not serve his
brother Leapaga, who took over the title in 1958. Leapaga and Isumu
had a particularly confrontational personal relationship. See generally
Randall v. Leapaga, 25 A.S.R.2d 90 (Land & Titles Div. 1993).
Discussion
Based on the foregoing findings of fact and the discussion on the
following legal issues genuinely raised by these proceedings, we
conclude that the Isumu and Isumu’s children originally, and now
Isumu’s children, own the land as individually owned land.
A. Maluia is not Res Judicata
[1] The doctrine of res judicata is a primary issue in this case. Res
judicata holds that a final judgment on the merits in an action bars a later
action involving the same parties, or their privies, and the same issues.
See Taulago v. Patea, 4 A.S.R.2d 186-87 (Land & Titles Div. 1987);
Te`o v. Estate of Sotoa, 5 A.S.R.2d 80, 97 (Land & Titles Div. 1987),
aff’d Estate of Sotoa v. Te`o, 8 A.S.R.2d 165, 169 (App. Div. 1988). The
policy is aimed at curtailing multiple, vexatious and expensive litigation
and wasted judicial resources. 46 AM. JUR. 2D Judgments § 515 (2000).
The judgment in Maluia held that the land then at issue was the
communal land of the Paepaeuli family of Nu`uuli and directed that the
title be so registered. The parties in this action strenuously put at issue
whether ownership of the land adjudicated in Maluia was the same land
at issue in this action. The land as litigated in 1950 in Maluia and then
registered was not exactly the same size as the land litigated in this
action. The land in the survey presented in Maluia and registered in
1950 was approximately 0.494 of an acre greater in area than the land
registered by Isumu without objection in 1972 and now litigated for
ownership in this action. However, the configuration of the land, except
partially along one boundary, was virtually the same in both lawsuits. A
professional surveyor studied available surveys and related information

and is certain that both registrations are of essentially identical land
areas. The physical differences are, therefore, immaterial for purposes of
applying the res judicata doctrine. We conclude that issue preclusion is
present.
The common identity of the parties or their privies, however, is another
matter. Isumu was a party in both Maluia and the present action. His
children, parties in this action, are his privies for res judicata purposes.
The opposing parties in both cases are, however, a different matter.
The Court in Maluia adjudicated title to the land as the communal land
of the Paepaeuli family of Nu`uuli, comprised of six matai who had
cultivated portions of the land. The Court appeared to hold that the six
identified members of this family owned undivided shares in the land in
the nature of tenancy-in-common interests. Three of the named matai
were sa`o of distinct families in Nu`uuli. One was the sa`o of a family
from Tafuna. The remaining two persons were not titleholders. The
Paepaeuli family does not exist in fact. In essence, the Court created a
fictitious family that was inconsistent with usual Samoan customs
pertaining to families and villages. While it is true that the holder of the
Leapaga title was one of the six members, the court did not recognize his
claim over the land, except in common with the other five members.
The interests of the six members in common in Maluia were distinct
from the interests of the Leapaga family in this case. We therefore
conclude that the judgment in Maluia does not provide party preclusion
for purposes of the issue of ownership of the land in the present
litigation.
B. Isumu Adversely Possessed the Land
[2] The Leapaga family, represented by the three named plaintiffs who
are family members replacing the deceased Leapaga, claims that the land
is the Leapaga family’s communal land. Their claim is entitled to a
presumption favoring communal ownership of land in American Samoa.
Leota v. Faurnuina, 4 A.S.R.2d 11, 13 (App. Div. 1987).
The presence of surrounding communal land is sometimes mentioned in
support of the presumption. Avegalio v. Leatuinauga, 18 A.S.R.2d 9, 11
(Land & Titles Div. 1991). In this case, however, both communal land
and individually owned land are adjacent to the land.
Beyond the presumption, the named plaintiffs’ claim is based in part on
Maluia, even though the judgment in that case held that the fictitious
Paepaeuli family, not the Leapaga family, owned the land as communal
land. The resulting title registration is still in the name of the Paepaeuli

family. Nonetheless, the court in Maluia found that Isumu occupied and
cultivated the land under Leapaga Tapili’s authority, indicative of the
Leapaga family’s communal ownership. Moreover, though Isumu
claimed in Maluia that he cleared the land from virgin bush, he also
admitted that he occupied the land by his sa`o’s designation.
Additionally, the present holder of the Maluia title testified that the land
is the Leapaga family’s communal land.
[3] It appears that the Leapaga family has a legitimate claim to
communal ownership of the land. We acknowledge that a family
member usually cannot adversely possess an assigned portion of his
family’s communal land and acquire individual title to the land in this
manner. See Reid v. Puailoa, 1 A.S.R.2d 85, 88 (Land & Titles Div.
1983) (stating that a family member cannot adversely possess communal
land). The Reid pronouncement, however, was dictum. This Court has
recognized that a family member can acquire title to his family’s
communal land by adverse possession for 30 years, as provided by
A.S.C.A. § 37.0120. Ava v. Logoai, 19 A.S.R.2d 75, 77 (Land & Titles
Div. 1991); Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54, 74 (Land
& Titles Div. 1989).
[4-5] Possession is adverse if it is exclusive, continuous, open, notorious,
and hostile to another person’s ownership for the 30-year statutory
period. Magalei v. Atualevao, 19 A.S.R.2d 86, 92, 94-95 (Land & Titles
Div. 1991). However, a family member cannot adversely possess his
family’s communal land unless he first gives actual notice to other
family members that he claims individual ownership of the land.
Tuanaitau v. Paogofie, 4 A.S.R. 875, 881 (Trial Div. 1963).
[6-7] During the trial in Maluia, if not before, Isumu through his
testimony made it abundantly clear to his father Leapaga Tapili and
Leapaga Masunu, then the family sa`o, that he claimed the land as his
individually owned land. He thus gave actual notice to the Leapaga
family of his ownership claim. Both before the trial, and certainly from
that time forward, Isumu and his immediate family occupied and used
the land without any contrary occupancy or other interference by other
members of the Leapaga family. He and his family possessed the land
exclusively, continuously, openly, notoriously, and hostilely to the
Leapaga family’s claim of ownership. Isumu adversely possessed the
land far in excess of the required 30-year period—approximately 41
years from 1950 until LT No. 10-99 was filed in 1991. This is a classic
case of adverse possession of the land by Isumu and his family as
individually owned land against the Leapaga family’s claim to the land
as communal land. We conclude that as opposed to the Leapaga family,
Isumu acquired title to the land by adverse possession, and Isumu’s

children as his successors retain that title.
C. Separate Issue: The Surveyor’s Compensation
Lawrence P. French (“French”), a professional surveyor, was retained by
the plaintiffs presently named in LT No. 10-99 to perform necessary
professional survey services in the preparation for the trial of this action.
On the day trial began, French requested postponement until the unpaid
balance of his professional fees were paid. We denied the request but
indicated we would order the named plaintiffs to pay the outstanding
amount.
French charged $2,840.00 for his services. His work was substantial and
well done, and his fee is reasonable. As of the time of the trial, the
named plaintiffs had paid him $1,805.00, leaving an unpaid balance of
$1,035.00. Mr. French is entitled to payment of the unpaid balance.
Order
1. Isumu Leapagatele and his children own the land named “Leatuvai,”
consisting of approximately 12.696 acres, in the Village of Nu`uuli, as
their individually owned land.
2. The registration of the land in the name of “ISUMU LEAPAGA &
CHILDREN (AS THEIR INDIVIDUALLY-OWNED LAND)” on
January 7, 1972, in the Territorial Registrar’ Office, is validated and
remains in full force and effect.
3. The registration of the land named “Leatuvai” and consisting of
approximately 13.190 acres in the Village of Nu`uuli in the name of the
“Paepaeuli Family”, as that fictitious family’s communal land, on
October 15, 1950; in the Territorial Registrar’s Office, is voided.
4. The named plaintiffs, Tusipasi Tiapula, Savaliga Masunu, and Kolopa
P. Tuiasosopo shall pay $1,035.00, the unpaid fees for professional
surveyor services, to L.P. French Professional Services, Inc. Payment
shall be made immediately, unless there is agreement on an alternative
payment plan. Payment of the surveyor’s fee is in addition to payment of
usual costs of suit.
It is so ordered.