FE'A of Iliili, Plaintiff
SISIPENI of Iliili, Defendant
[Land: "Lepipi" near Ili'ili]
High Court of American Samoa
Civil Jurisdiction, Trial Division
April 30, 1963
Application to register land located near Village of Ili'ili as communal family land. Objector claims land as donee of gift of individually owned land, Trial Division of the High Court, Chief Justice Morrow ordered land registered, holding that under Samoan custom, weight of evidence indicated land was communally owned and that gift of land would have been void under then existing naval regulation. However objector, as member of family, was entitled to same right ill land as other members.
Land registered communal.
1. Evidence-Hearsay-Excluded Testimony-Gift of Land to Relative
Testimony of defendant and her mother that land was given to her father is hearsay.
2. Evidence-Hearsay-Reason for Exclusion
Most hearsay evidence is excluded by courts because of unreliability and lack of opportunity to cross examine.
3. Real Property-Quieting Title-Hearsay Evidence in Support of Claim of Ownership
When both parties to supposed land transaction are dead, testimony by interested party who was not present is hearsay and should be excluded.
4. Real Property-Gifts-Prohibited by Regulation
Supposed gift of land within jurisdiction of United States Naval Station was void in 1902 after promulgation of regulation prohibiting alienation of native lands.
5. Real Property-Protection Against Alienation-Conveyances Prohibited by-Gift Void
Regulation prohibiting alienation of native land would make gift of land absolutely void.[4ASR321]
6. Real Property-Quieting Title-Original Claim of Ownership-Claim of Title and Occupancy
Samoans acquire title to land through first occupancy coupled with claim of ownership.
7. Real Property-Gifts-Ownership of Donor
Where there is no satisfactory proof man owned virgin bush, he cannot make gift of it.
8. Real Property-Communal Family Land-Evidence of Communal Ownership-Weight of Evidence
Court finds weight of evidence indicates that applicant to register and member of family cleared land, occupied it, put in plantations and claimed it as communal family land.
9. Real Property-Communal Family Land-Evidence of Communal Ownership-Fact Objector Took Coconuts from Land
Fact objector to registration of family land got coconuts from land is not inconsistent with communal ownership where objector is member of family.
ARTHUR A. MORROW, Chief Justice; MALEPEAI, Associate Judge; and TAUALA, Associate Judge.
OPINION AND DECREE
Heard at Fagatogo before Morrow, Chief Justice, and Malepeai and Tauala, Associate Judges, on April 30, 1963
Suapilimai, Counsel for Fe'a.
Lolo, Counsel for Sisipeni.
OPINION OF THE COURT
MORROW, Chief Justice.
Sisipeni made application to the Registrar of Titles to have certain land named Lepipi, which is located near the Village of Iliili, registered as her individually owned property. A survey of the land, 5.42 acres in size, accompanied the application. Fe'a of Iliili filed an objection to the proposed registration claiming that Lepipi was the communal family land of the Fe'a Family of Iliili. This litigation arises out of these conflicting claims. See Sec. [4ASR322] 10.0112 of the Code of American Samoa, 1961 Edition Prior to the hearing the Court viewed the land in the presence of the parties.
Sisipeni claims to have derived title to the land as follows About 1902 shortly after the establishment of the Government, her father Peniata, who held a pastorate in Tafuna went to Iliili to rest for about a year. While he was resting, the then High Chief Letuli, according to Sisipeni claim, gave him the land as his individually owned property. At the time of the alleged gift, the land had never been cleared and was virgin bush. Sisipeni claims that his father and mother then went to the land, cleared it, all put in plantations on it. Peniata died about 1930. Sisipeni was his only child. She claims to have inherited the land from her father. She makes her home in Malaeloa in his mother's family.
The Court saw some scattered long coconut trees growing on the land when it viewed it before the hearing. They are high and obviously quite old. If the land ever was cleared, it has for all practical purposes (with the exceptions of the few coconuts) reverted to the bush, as the Court could see.
Peniata was a member of the Fe'a Family and was lying in the Fe'a Family when Letuli made the alleged gift of the land to him. Peniata was also a member of the Letuli Family. The Fe'a title is a lesser matai title in the Letuli Family.
[1-3] Both Letuli and Peniata have been dead for many years. Neither could testify as to the supposed gift. All we have is hearsay testimony of Sisipeni and her mother. Sisipeni had not been born when the supposed gift was made. She was born in 1904. Faasapa, the wife of Peniata mother of Sisipeni, says that she was told of the supposed gift by Peniata. Most hearsay testimony is excluded by Courts, not only because of its unreliability, but also be[4ASR323]cause there is no opportunity to cross examine with respect to the matter related. Furthermore, anybody can testify in Court that a dead person told him so and so privately and there is no practical way to refute it, even though it is false. Here both parties to the supposed transaction, viz.: Peniata and Letuli, the only persons who had first-hand knowledge as to whether or not there was such a gift, have, as we have said, been dead for many years.
 Howeveer, this supposed gift of the land by Letuli to Peniata was void, even if it did in fact occur. The Native Lands Regulation of 1900 enacted on April 30, 1900 by Commander B. F. Tilley, U.S.N., Commandant, provided that "From and after the coming into force of this Regulation the alienation of native lands within the jurisdiction of the United States Naval Station, Tutuila, is Prohibited." The whole of Tutuila was included in the Naval Station. This regulation was enacted by the Commandant just 13 days after the U.S. Flag was raised at Fagatogoo. It was in force in 1902 when Sisipeni claimed Letuli made the gift to Peniata.
 "Alienate" means to transfer title or to convey. Black's Law Dictionary, 4th Ed., defines "Alienate" as "To convey; to transfer the title to property." Since the April 30, 1900 regulation prohibited the alienation of native land, it follows that the gift of Lepipi by Letuli to Peniata, assuming it was made, was absolutely void. The regulation was entitled a "Regulation, to prohibit the alienation of native land in Tutuila and Manua." A gift involves the transfer of title from one person to another.
[6,7] This Court has held many times that Samoans acquired title to their lands through first occupancy coupled with a claim of ownership. Soliai v. Lagafua, No. 5-1949 (H.C. of Am. S.) ; Faataliga v. Fano, No. 80-1948 (H.C. of Am. S.); Gi v. Te'o, No. 35-1961 (H.C. of Am. S.). This [4ASR324] doctrine of the acquisition of title through first occupancy coupled with a claim of ownership is approved in Maine's Ancient Law (3rd Am. Ed.) 238. See also 2 Blackstone
8. There was no satisfactory proof that Letuli owned the virgin bush so that he could make a gift of it. A man cannot give away what he does not own.
Fe'a claims that members of the Fe'a Family together with Peniata, who was unquestionably a member of the Fe'a Family, occupied the land, cleared it from the virgin bush and put in plantations on it, claiming it as the communal land of the Fe'a Family, and that the Fe'a Family thereby became its owner. The testimony for Sisipeni was to the effect that Peniata and Faasapa, her father and mother, alone cleared the land from the virgin bush, occupied it, and put in plantations on it, claiming it as Peniata individually owned land. The testimony for Fe'a was to the effect that Fe'a Family members, including Peniata, a Fe'a Family member who was living in the Fe'a Family at the time, cleared the land from the virgin bush, occupied it and put in the plantations, and claimed it as communal family land of the Fe'a Family.
 It is our conclusion that the weight of the evidence, both direct and circumstantial, indicates that the Fe'a Family members, including family member Peniata, cleared the land from the virgin bush, occupied it, put in plantations, and claimed it as the communal family land of the Fe'a Family. The claimed gift of the land by Letuli to Peniata meant nothing, since if there was any such gift was void because of the above April 30, 1900 regulation prohibiting alienation of native land; not only that, but was void also if Letuli did not own the property, and there was no satisfactory proof that he did.
 The Fe'a Family have been getting the copra from the coconut trees planted on the land for many years, although it is true that Peniata did get coconuts from the [4ASR325] land occasionally after he left Iliili in 1908 and that Sisipeni has gotten coconuts at various times from the land. However, this is quite consistent with its being Fe'a Family land since Peniata was a Fe'a man and Sisipeni is a Fe'a woman. Fe'a filed a war damage claim on the land. Sisipeni did not. Query: If Sisipeni claimed to own the land, why didn't she file a claim as other landowners did? The surveyed land comprises 5.42 acres. That a pastor and his little wife (Faasapa is a small woman) cleared 5.42 acres of virgin bush with big trees on it back in 1902 and shortly thereafter, while he was the village pastor, without other Fe'a Family members participating in the clearing, seems highly improbable since there were a lot of big trees and a lot more smaller trees on the 5.42 acres, an area of considerable size. The custom (and the court knows the custom) was for members of a Samoan Family to clear land together and then claim it as the communal family land of the family. That is why almost all of the cleared land (except government owned land) in Samoa is communal. Individually owned land is a rarity. The way of life of the Samoans is communal.
Despite the conflicting testimony, it is our conclusion that the weight of evidence is to the effect that the land involved is the communal family land of the Fe'a Family. Leituala and Suapilimai are matais in the Fe'a Family, and, as we have said, the Fe'a title is a lesser matai title in the Letuli Family.
However, we wish to point out that Sisipeni being a member of the Fe'a Family has the same rights with respect to the land that other members of the Fe'a Family have. Fe'a assured the Court that she had the right to live on the land and use it.
Accordingly, it is ORDERED, ADJUDGED AND DECREED that the land Lepipi, as shown on the survey ac[4ASR326]companying the application to register the land, shall be registered as the family owned communal land of the Fe'a Family of the Village of Iliili.
Costs in the sum of $18.75 are hereby assessed against Fe'a, the same to be paid within 30 days.
Sisipeni paid for the survey. The benefits of the money she paid for it are accruing to the Fe'a Family since the land is being registered in its name. It is considered just, therefore, that Fe'a should pay the costs.