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Leatumauga; Avegalio v.

FAILAUTUSI AVEGALIO on behalf of himself and 
his brothers and sisters, Plaintiff

v.

LEATUMAUGA and members of the LEATUMAUGA 
FAMILY, Defendants

High Court of American Samoa 
Land & Titles Division

LT No. 28-87

December 12, 1988

__________

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.

Before REES, Associate Justice and AFUOLA, Associate Judge.

Counsel: For Plaintiff, Charles Ala'ilima 
For Defendants, Tuanatitau Tuia

We find the facts to be as follows:

(1) In 1946 the children of Sekio Avegalio (Rita, Fa'asau, Failautusi, Fuapopo, Su'e, Fiapito, and Veta) registered land called Vaosa near the village of Pava'iati.

(2) The land had been purchased from a person named Pouli sometime after 1930. A survey and a map had been prepared in 1930 by B.F. Kneubuhl. The description of the land defines its point of beginning as a point on the boundary of land belonging to Uo. This Uo land is depicted on the southern boundary of Vaosa. The accompanying map identifies other boundaries as a stone wall to the [9ASR2d97] southwest, property of Tua to the north, and property of Leatumauga to the southeast.

(3) Members of the Avegalio family nowoccupy a piece of land which they call Vaosa, and which they claim to be the same land they registered in 1946.

(4) For at least thirteen years Leatumauga and members of his family have also been using part of the tract which the Avegalios call Vaosa. They claim this is part of their land called Talifia'ai.

(5) In 1975 Leatumauga attempted to register a survey of Talifia'ai. Failautusi Avegalio objected on the ground that the survey encroached on Vaosa. The Court initially ruled for Leatumauga on the ground that a resurvey of Vaosa commissioned by Avegalio had failed to close and therefore could not be considered as evidence.

(6) On rehearing, however, the Court reversed itself, stating that "[a]rguments at the hearing indicate that: (1) if the plaintiff is allowed to register land 'Talifia'ai,' then 'Talifia'ai' will encroach upon the adjacent registered land known as 'Vaosa'; (2) the old survey of 'Vaosa' does close. .Further, it appears that matters involving retracing and closing of survey are readily explainable by competent evidence Leatumauga v. Avealio, LT No.1514-75, Decision on Motion for New Trial at 2. The Court appears to have been referring to counsel's argument in his motion for reconsideration that a sight was missing in the 1930 map and that the 1975 surveyor had merely added this sight so that the map would close. The 1930 map does appear to be missing a sight that is contained in the 1930 description of the land.

(7) The 1975 case was set for retrial but was dismissed without prejudice when Leatumauga and his counsel failed to appear for the scheduled trial.

(8) A subsequent resurvey commissioned by Avegalio in 1978 does close and does conform to the written description of the registered land, with adjustments from magnetic to true north. The 1978 map shows an overlap between the land Vaosa registered by Failautusi Avegalio and his brothers and sisters, and the land called Talifia'ai which Leatumauga had attempted to register in 1975. [9ASR2d98]

(9) Failautusi Avegalio then brought an action to quiet title against Leatumauga. That case, LT No.35-78, was dismissed after plaintiffs and their counsel failed to appear at a scheduled hearing on a motion to set a trial date.

(10) Both the 1930 map and the 1978 map show a 203 foot course along a stone wall on the southwest boundary of Vaosa.

(11) The 1978 map also shows a stone wall on the northwest boundary at a right angle to the other stone wall. This stone wall is depicted as the boundary between Vaosa and land occupied by Tuanatitau, who is sometimes called Tua. This land corresponds to the area designated "Tua" on the 1930 map.

(12) The tract presently occupied by the Avegalios which they call Vaosa is bounded on the southwest and the northwest by stone walls at right angles to each other. The land on the other side of the northwest stone wall is occupied by Tuanatitau.

(13) The 1978 survey also shows land designated "Pele" slightly to the northeast of Vaosa. There is a small tract occupied by a Mr. and Mrs. Pele, relatives of Avegalio, slightly to the northeast of the tract now occupied by the Avegalios as Vaosa.

(14) To the south and southwest of the tract claimed by the Avegalios as Vaosa is land also occupied by the Avegalios which they call Ulutolu. Much of the land in the neighborhood is known as Ulutolu. The land called Ulutolu and occupied by Failautusi Avegalio was once claimed by Uo. Kuki v. Heirs of Avealio, LT No.190-1963. This land is in roughly the same place relative to the tract claimed by the Avegalios to be Vaosa as the land designated "Uo" is relative to Vaosa on the 1930 map.

(15) There also appears to be a house within the tract claimed by Avegalio which is occupied by a man named Nelesoni.

The only issue in the case is whether the land now claimed by Avegalio is the same land he and his brothers and sisters registered in 1946. [9ASR2d99] Defendants admit that Avegalio and his brothers and sisters did register some land called Vaosa in the vicinity, but say it must be elsewhere, probably further back from the road.

Aside from the testimony of Mrs. Leatumauga that her husband's family has long occupied this land, the only evidence adduced by defendants is the testimony of Tuana'itau (who was both counsel and a witness for Leatumauga) that as a young man he used to buy pancakes from a Mrs. Ava who lived in a house on this land. Tuana'itau testified that Mrs. Ava was not related to Avegalio but was related to Nelesoni. He argues that the Avegalio tract must therefore be further back from the road than the Nelesoni house, which would also put it further back than the Leatumauga claim.

If the Court were to hold, however, that Vaosa must be further back from the road than Avegalio says it is, it would be necessary to find some place further back from the road bounded by (1) land once owned or claimed by Uo on the south; (2) a stone wall on the southwest; (3) another stone wall, at a right angle to the first, on the northwest, with land occupied by Tuanatitau on the other side; (4) land occupied by Pele slightly to the east; and (5) land occupied by Leatumauga on the southeast. It seems highly unlikely that there could be two such places; Tuanatitau, who is quite familiar with the neighborhood, was unable to suggest any.

We must conclude either that Tuanatitau was mistaken about the exact location of the house from which he once bought pancakes, or that there is some explanation for these purchases other than this not being the same land registered by the Avegalios in 1946.

Accordingly, Leatumauga and members of his family are enjoined from going on any part of the land called Vaosa as depicted in the 1978 survey commissioned by Avegalio (Drawing No.6-040, act. 6, 1978) and from disturbing the peaceful possession thereof by Rita, Fatasau, Failautusi, Fuapopo, Sute, Fiapito, and Veta Avegalio, their heirs, successors, and assigns.

It is so ordered.

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