Leota; Sese v .

LOLANI SESE, MEAFOU SESE, SU'A SCHUSTER,
STARR SCHUSTER, and the ESTATE OF ALEKI NOA,
Plaintiffs

v.

MISIPELE LEOTA and TAGIILIMA LEOTA, Defendants

High Court of American Samoa
Land & Titles Division

LT No. 5-88

December 30, 1988

__________

Statutory requirement that parties submit a land dispute to the Office of Samoan Affairs before applying to the court for relief applies only to communal lands, and therefore did not deprive the court of jurisdiction over a dispute concerning individually owned lands. A.S.C.A. § 43.0302.

For purpose of finding an implied easement of necessity, contiguous parcels of land originally claimed by a single grantor qualify as having been under common ownership even though part of the land was surveyed and registered and part was not.

Title to individual land arises from initial occupation of virgin bush land and its continued use, and not from the registration of land; registration does not confer title, but does preclude further contest of the registrant's title provided he has complied with all statutory requirements.

Actual intent of parties to land conveyances did not conflict with their presumed intent not to render a parcel of land useless by denying any access to a road, where the evidence showed only that the original grantor had acted inconsistently by first showing the plaintiff a right of way over his reserved land and then selling that land to defendant with the representation that plaintiff would gain access elsewhere.

Court would burden defendant's land with an implied easement of necessity, rather than imposing the [9ASR2d137] easement on another party's adjacent land which was an apparent servient parcel as well, where defendant was the latest grantee of a common grantor; the grantor had earlier identified to the owner of the dominant parcel an accessway across what was now defendant's land; the implied easement was a logical extension of an established accessway; and defendant was aware that access to the dominant parcel might be affected by the conveyance of land to him.

Before KRUSE, Chief Justice.

Counsel: For Plaintiffs, Asaua Fuimaono
For Defendants, Togiola T.A. Tulafono

On Motion for New Trial:

Defendants move for a new trial on what we perceive to be the following grounds: 1) that there was no unity of title in the lands concerned and a severance thereof as would support the relationship of "dominant" and "servient" tenements; 2) that the presumed intention which is the basis of the implied easement of necessity found by the Court cannot be reconciled with the actual intentions of the parties to the conveyances; 3) that the Court was without jurisdiction because the Office of Samoan Affairs did not certify (presumably pursuant to A.S.C,A. section 43.0302) an irreconcilable dispute with regard to access.

Jurisdiction

We take up first the argument on jurisdiction. As a defense, this matter does not appear to have been raised on the pleadings nor at trial. In point of fact, plaintiffs did file with complaint, and attached as Exhibit "D", a letter from the Office of Samoan Affairs certifying an irreconcilable dispute among the parties. Irrespective, the defense is inapplicable as the pertinent enactment which defendants appear to be relying on (A.S.C.A. § 43,0302) and which requires certain administrative settlement. attempts before the Office of Samoan Affairs, applies only to disputes concerning "communal" lands. This whole matter arose on the basis that parties herein were either grantor or grantees to "individually" owned lands. We see no basis for relief on this ground. [9ASR2d138]

Unity of Title

We entirely agree with defendants that a "dominant tenement" and "servient tenement" relationship, as would sustain the possibility of an implied easement at law, requires that title to the lots in question have been at one time in a singular title holder who then severs title to a portion or portions thereof, If the separate conveyance of those portions should result in a landlocked parcel, a dominant/servient relationship arises. We meant no more than that in our reference to a "common grantor."

Somehow defendants feel that the so called nine acre tract and the lots sold to defendants may not qualify as having once been under the same title and then severed to permit an implied easement. Defendants appear to be overly preoccupied with the fact of survey and registration of nine acres of the land claimed by grantor. The survey and registration of one part of land does not in any way detract from the ability of a claimant to claim title to "contiguous" land (yet to be surveyed) by reason of his initial occupation and use. Indeed, it appears quite clear from the various deeds delivered by the grantor that as far as he was concerned he was selling off pieces of the same land claim. The deeds commonly refer to the transfer of a portion of land "known as Leuluasi."

In as much as we can gather on the cases dealing with individually owned lands, it is initial occupation of virgin bush land and continued and effective use thereof which gives rise to title as a matter of law, NOT registration. The registration enactments, A.S.C.A. §§ 37.0101 et seq., do not confer title, they merely estop the rest of the world from contesting a registrant's title claims, provided that the registrant has complied with the requirements of the enactments. Title is title irrespective of whether registration has been accomplished or not.

The fact remains that the parties hereto, who are grantees of the late Aleki Noa, claim their respective titles to their respective and contiguous parcels from the same title source. It so happens that one of them has become landlocked. At the same time there was no evidence that the [9ASR2d139] grantor's claims to title to the nine acre tract and to the parcels sold piecemeal to defendants, arose through any other person or persons but through his own original claims. While there was evidence suggesting the possibility of a competing claim by a Fao to the portions sold by Noa to the defendants, this is not to say that Noa's claims to title stemmed through Fao. This is where the defendants' theory suffered at trial.

Actual Intentions of Parties

Firstly, defendants' contentions in connection herewith essentially go to matters of fact. The evidence was conflicting with regard to the grantor's intentions which were not made very clear. In our view, all that is clear from the evidence was that the grantor acted inconsistently and then pathetically attempted to undo the results of his inconsistent actions. That is he points out to Schuster their right of way and then wittingly or unwittingly attempts to subsequently sell that right of way area to the defendants several years after. Certainly this was one of the reasons for the Court's plea to the Fono for regulating land sub divisions.

We disagree with defendants' view of the evidence.

Defendants' final entreaty with their motion is simply -- why us? Why not the other and apparent servient tenement (the Seses) as well?

We necessarily found on the evidence that the Schusters were shown a right of way outside the nine acre tract. As they did not frequent their land, the Schusters' right of way never became apparent through usage. Those that did frequent their lands, the defendants and the Seses, did ostensibly establish that right of way as being contained outside the nine acre tract. The logical extension towards the Schusters' of that right of way as developed through usage is approximately that area which the Court has declared to be the access to the Schuster land. Further, the purchase by the defendants of that area which included the access as shown to the Schusters by the grantor, was the latest conveyance. The defendants were in the best position to check the wrong, or even perhaps the fraud, committed by the grantor in his [9ASR2d140]selling the accessway to them. Defendant Misipele Leota's testimony was clear that he was aware of the possibility that the Schusters access may be affected. He raised this contingency with the grantor who Leota claims repeatedly pestered him for a sale. As it turned out, and it was apparent from his testimony, Leota was in effect talked into the sale by the grantor who told him that he would allow the Schusters an access traversing over land which turns out to be property already sold to the Seses. In these circumstances, the Leotas as the later purchaser must take their land subject to the encumbrance of an easement prior indicated to the Schusters.

The defendants also suggested that perhaps the Seses could have shared in the burden of the implied easement. Indeed, this was a possibility considered by the Court, however, the practicality of that possibility has been effectively rendered moot by the large rock wall erected by defendants on the boundary with the Seses. It was clear on the evidence that the defendants had expended much time and money on the wall. This was also taken into account by the Court. Accordingly in fashioning a remedy, the Court did not wish to entertain the removal of the whole wall but only so much of the inland portion thereof as would reasonably permit the Schusters to enter their land.

Motion for a new trial is denied. It is so Ordered.

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