Faoa; Misa v .

MISA TAUSULU of Ofu ViIlage, County of Ofu, Plaintiff

 

v.

 

VAO FAOA, APEAPE, and LOISULU, all of Ofu,

County of Ofu, Defendants

 

[Land: "Auma" in Ofu]

[See No.7 A-l959, Appellate Division]

 

High Court of American Samoa

Civil Jurisdiction, Trial Division

 

No. 13-1957

 

October 11, 1957

 

___________

 

Heard at Fagatogo on Sept. 19, 1957 before MORROW, Chief Judge, and MALEPEAI and LETULIGASENOA, Associate Judges.

 

Lag'afua and Tali, counsel for Misa Tausulu.

Nikolao, counsel for Vao Faoa, Apeape, and Loisulu.

 

OPINION OF THE COURT

 

MORROW, Chief Judge.

 

            Plaintiff Misa Tausulu filed his petition for an order requiring the defendants to vacate certain land (described in the petition as Togalei) and the guest house thereon, in the village of Ofu. Plaintiff is the matai of the Misa Family in Ofu. He claims that the land involved is the communal family land of the Misa title; that the house on such land is the [3ASR287] guest house of the Misa title; and that the land and guest house are wrongfully occupied by the defendants, thereby depriving him in his capacity as the matai of Misa Family of their possession.

            Defendants claim that the land in dispute belongs to their branch of the Misa Family and that it is not communal family land of the Misa title. They claim it was given by one Leui before the establishment of the Government in 1900 to Misa Elia the grandfather of defendant Vao as his individual property and that it came to the defendants' branch of the family through Elia's prior ownership as an individual. Misa Vaeva, the next Misa after Elia, was the blood son of Elia and the father of defendant Vao. Elia and Vaeva are both dead.

            The plaintiff was the principal witness in his own behalf. He testified in effect that the land on which the guest house is located is known as Togalei; that the tradition in the Misa Family was to the effect that such land was the communal family land of the Misa Family and the traditional site for the guest house of the Misa title and that the house was the guest house of the Misa title; that the land had been occupied by Misa Alefua (the first Misa) and then in succession by Misa Tuimalie, Misa Vaepala, Misa Lagono, Misa Puni and Misa Poto, from all of whom including Misa Alefua the plaintiff claims descent.

            He did not claim descent from Misa Palaika or Misa Iosefa. Utu, a member of the Misa Palaika branch of the Family, testified that all the Misas (Tausulu excepted) had lived on the disputed land, and specifically that the Palaika did. Utu is a member of the Misa Family.

            Lauoo, an old man in the Leui Family, testified that he had never heard that a Leui had given the land dispute to Misa Elia.

            To support defendants' claim that the land in dispute is the property of their branch of the Misa Family (and by [3ASR288] branch the defendants testified that the land was at one time-a time before the Government was established in 1900–the communal property of the Leui Family); the Misa Elia was married to Sina, a daugther of the Leui; that Elia wanted some land for a guest house and that because of the blood relationship of Sina to him, he gave the land to her husband Elia as an individual. Her testimony on this latter point reads:

 

“Q Well, now, to what title does this land Togalei belong, the Leui title or the Misa title?
A Title Leui.
Q Then it isn’t Misa land at all?
A No.
Q Than Misa Vaeva your father had his guest house on another matai’s land for over 50 years, is that right?
A Because of the intermarriage of one Misa, Foialilia, daughter of Leui, had a girl name of Sina then this Elia married Sina then the offspring was Vaeva my father.
Q Now, Misa Elia your grandfather had the Misa guest house on another matai’s land for more than 50 years?
A Yes.
Q Well, do you render service to, you and Loisulu and Apeape?
A Matau.
Q Now, you’re living on Leui land and rendering service to a different matai?
A We are living on a piece of land which was given from Leui and rendering service to Matau who is now living in Lagi.
Q Well, now, to whom was it given?
A To Misa Elia.
Q Why are you rendering service to this Matau?
A That’s my brother. [3ASR289]
Q How old a man is he?
A He’s here.
CJ Where is he?
SPECTATOR STANDS UP
CJ: How old are you Matau?
MATAU: 44.
Q Then you don’t render service to the Misa at all?
A Not every day but sometimes, I furnish Misa with some.
Q Now, are you rendering service to the Matau, how come you are rendering service to the Misa, you are living on Leui Land? How’s come you are rendering service to the Misa?
A Because those are the titles of the family.
Q But you don’t render service to the Leui?
A No.
Q Although you are living on Leui land?
A Yes.
Q Well, isn’t that a strange thing under Samoan customs you are living on Leui land and not rendering service to Leui?
A Even though that Leui is the original owner of this place it was given outright to my clan.
Q Well, to the Misa clan? What is your clan?
A Misa Elia to Misa Vaeva.
Q Well, then, it’s Misa land, isn’t it, instead of Leui land?
A Since this land was given outright by Leui to Misa Vaeva to my father, people knew it very well that it belongs to only those two and their clans.
Q Yes, but why do you render service to Matau when it was given to Misa and became Misa land?
A It was not given to the title Misa, it was given to Elia by blood, through his blood.
Q The Elia became the owner of it as an individual, is that it?
A Yes, because it was Elia who asked this Leui and asked that he wants a piece of land for a guest house, because Lagi is filled with people not enough space for him to build his house. That’s why Leui gave this piece of land to Elia.
Q Did he give it to him as an individual or as a holder of the Misa title?
A That is true, it was given to him as his individual.”

 

            She also testified that the land in dispute was named Auma and not Togalei; that Togalei was the name of the [3ASR290]guest house put up on the land by Misa Elia, her grandfather, and that Togalei continued to be the guest house of her blood father Misa Vaeva who succeeded Elia. It was undisputed that Vaeva who succeeded Elia.

            It was undisputed that Vaeva became the Misa before the establishment of the Government in 1900 and that he continued to bethe Misa until his death. According to the death records he died on Nov. 25, 1948. Vao together with others of the Elia-Vaeva branch have continued to occupy the guest house and the land in dispute since Vaeva’s death and have refused to surrender possession to plaintiff Misa Tausulu. The witness Vao further testified that the original guest house was built by Elia-Vaeva branch. Defendant Loisulu is her husband.

            The present Leui, a witness for the defendants, testified that the land that Vaeva had his guest house on was, according to the tradition in the Leui Family, given by a former Leui to Misa Elia, defendant Vao’s grandfather, and that the name of the land is Auma.

            Tiavao, another witness for the defendants, testified that he was a member of the Misa Palaita branch of the Family and that “In accordance with the tradition of my clan, Misa Palaita was living at Vaiula where the Muasau is.” On cross examination he re-affirmed his statement.

            The determination of the ownership of land in American Samoa is normally a very difficult one because there is usually no title of record to assist the Court. This land in dispute has never been surveyed and registered. To determine the title the Court must rely upon tradition, i.e. hearsay handed down by word of mouth from generation to generation. And tradition in one branch of a family may be and frequently is different from the tradition in another branch of the same family respecting the same matter.

            All of the witnesses in this case based their testimony as [3ASR291] to the ownership and name of the tract in dispute upon tradition only. Witness Tausulu is 44 years old. All of his testimony relative to the ownership, occupation, and name of the disputed tract was based upon events that transpired before the Government was established in 1900. He had no personal knowledge of the truth or untruth of the parts of his testimony bearing upon these matters. His testimony was based on what he had heard relative to events that transpired years before he was born. For instance he testified that Misa Alefua, the first Misa, occupied the disputed tract and had his guest house on it. Misa Alefua had no doubt been dead more than a hundred years before Tausulu was born. Likewise Vao’s testimony as to the ownership of the land and the guest house was based upon events which transpired many years before she was born (she is 37 years old) and about which she had no personal knowledge. She was testifying as to what the tradition was in her branch of the Family as to matters (those respecting the ownership of the land and its name) about which she had no personal knowledge.

            The Court heard the witnesses and saw them. It must weigh the evidence. Our conclusion is that the evidence preponderates in favor of the defendants and is to the effect that (1) the land in dispute is named Auma, not Togalei; (2) the name of the guest house is Togalei; (3) the land Auma was given to Elia by the Leui as his individually owned property. We think substantial weight must be given to the testimony of the present Leui to the effect that the land was given by a former Leui to Misa Elia as an invidual. Elia was married to Sina, the daughter of the Leui, and this could well have been the motive for the gift. It this land had been Misa communal family land the traditional site for the guest house of the Misa, as Tausulu testified, Misa Palaita would have occupied it. Witness Tivao, a member of the Palaita branch, testified that Palaita [3ASR292] occupied Vaiulu. This was of course before the Government was established. Also it is a significant fact that there are no Misa blood members buried on this land. And no person is buried on it except the wife of Vaeva who was an Upolu woman and not a blood member of the Misa Family. There is no dispute whatever about the land having been in the possession of Elia’s son Vaeva from the time he got the title Misa before the Government was established in 1900 until his death on Nov. 25, 1948, and that during that time he used the guest house on it.

            We think the fact that both Misa Elia and Misa Vaeva used the guest house on the land in disputed for what must have been approximately sixty years has led Misa Tausulu, the plaintiff, and his branch of the family to assume erroneously that it was communal land of the Misa title.

            We find that the land in dispute is the property of the descendants of Misa Elia. It follows, therefore, that the petition of the plaintiff should be dismissed.

 

ORDER

 

            Accordingly, the petition of the plaintiff is hereby dismissed.

            Costs in the sum of $12.00 are hereby assessed against the plaintiff Misa Tausulu, the same to be paid within 30 days.

 

**********