Tupuola v. Tu'ufuli,

TALAMOA TUPUOLA, Appellant,

v.

High Chief MOALI'ITELE TU'UFULI, Appellee.

High Court of American Samoa
Appellate Division

AP No. 06-82

March 29, 1983

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Continuous use and possession is better evidence of title than history and tradition.

Matter will be decided against party to an appellate proceeding who without good cause fails to file a brief within the time prescribed by rule. family.

Before GARDNER, Chief Justice, presiding, KING, Acting Associate Justice, WILKINS,Acting Associate Justice, FAOA, Associate Judge, and TAIMANU, Associate Judge. [1ASR2d81]

PER CURIAM.

Talamoa Tupuola appeals from a judgment permanently enjoining him from entering onto land claimed by plaintiff/appellee Moali'itele Tu'ufuli but cleared and used by defendant/appellant.

Appellee, without good cause, failed to file his brief within the prescribed time of 30 days (the brief was four months late). The court has ruled that his brief not be filed. Under these conditions we approach this matter as a default. Thus, we are under no duty to look up the law for appellee nor make any search of the evidence in an effort to uphold the judgment.

We therefore accept as true the statement of facts in appellant's opening brief and assume that the points made by appellant are meritorious (Roth v. Keene 64 Cal. Re. 399; Mann v. Andrus 169 C(2) 455, 337 P(2) 673, 97 C(2) 493, 217 P(2) 10l9).

Actually, had the matter been heard on the merits the result would have been the same. Appellant presented direct. evidence of original clearing and cultivation of the land from World War II to the present. Appellee offered only family history and tradition that his family had always owned the land. While family history and tradition is admissible to prove title it hardly, without more, affords substantial evidence in the face of direct evidence to the contrary. on retrial, appellee must offer something more substantial than history and tradition.

Judgment reversed.

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*Honorable Samuel P. King, United States District Court Judge, District of Hawaii, sitting by designation of the Secretary of the Department of the Interior.

**Honorable Phillip C. Wilkins, United States District Court Judge, Northern District of California, sitting by designation of the Secretary of the Department of the Interior.