Afoa; Tuiasosopo v.

SIVA TUIASOSOPO, MAEVA MA'AE, LIUMANU SEUMAALA
for
MA'AE FAMILY, ASI KOKI, PUPI LAM YUEN for TULIFUA
FAMILY, MELEISEA SAMUELU for MELEISEA FAMILY,
SI'I NOAESE TEATAFA, Plaintiffs/Objectors

v.

AFOA SANERlVE A. for AFOA FAMILY, Defendant/Claimant

High Court of American Samoa
Land and Titles Division

LT No. 5-90

August 20, 1990

__________

The Court will make no finding as to the traditional name of a parcel of land; any party who is held to own part of the tract in dispute is free to call it whatever he likes.

A pattern of settlement provides evidence of land ownership. [16ASR2d91]

Before REES, Associate Justice, VAIVAO, Associate Judge, and TAIMANU, Acting Associate Judge.

Counsel: For Plaintiffs Ma'ae and Tulifua families and Si'i, Tau'ese P.f . Sunia F.

  For Plaintiff Meleisea family, Utu Sinagege R.M.

  For Plaintiff Asi, Togiola T.A. Tulafono

  For Defendant Afoa, Asaua fuimaono

Afoa submitted for registration a survey of 3.43 acres more or less, comprising land he calls Paepaetele in the village of Taputimu. Representatives of the Asi, Meleisea, Si'i, and Tulifua families objected on the ground that parts of this tract belong to their respective families.

Another objection appears to have been motivated entirely by the objector's dissatisfaction with the name given to the land. Although no evidence was given by this objector, several witnesses for the other objectors said that Afoa should not have called the land "Paepaetele" (this being the name of some other land belonging to another family) but should have called it "Pagota." Afoa acknowledges that he has land called Pagota but says this land is not part of it. We make no finding with respect to the traditional name of the land; any party who is held to own part of the tract in dispute is free to call it whatever he likes.

I. The Asi Objection

The most substantial objection in terms of acreage was that of Asi, who claimed about 1.572 of the 3.43 acres claimed by Afoa. Asi submitted a composite map (Exhibit 3) showing the overlap between his claim and that of Afoa. We have used this exhibit as a basis for our own . composite map, attached hereto as Appendix A, to illustrate the boundaries to which we refer in our written opinion. There are two principal areas of overlap between the Asi and Afoa claims.

The first area of overlap is a strip about 300 feet long and varying in width between 50 and 100 feet, on the south and west sides of the Taputimu Loop Road and just to the south of a house belonging to an Asi family member. Part of this strip appears to be a small back yard appurtenant to the Asi house; the rest consists of heavy growth not apparently used or cultivated by anyone. Resolving this dispute amounts to an exercise in boundary drawing between the area occupied by Asi to the north and that occupied by Afoa to the south. Asi has drawn the [16ASR2d92] boundary along a line of trees in the middle of the underbrush between the two occupied areas. Afoa, on the other hand, has drawn a line that encompasses the whole intervening bush and comes within a few feet of the Asi house. Neither side presented a particularly compelling case, but the preponderance with respect to this disputed strip favors Asi.

The other area in dispute between these two parties is on the opposite (north and east) side of the Taputimu Loop Road. It comprises about an acre and surrounds an abandoned chicken coop operated by Afoa some years ago. Asi's story is that he gave Afoa permission to build the chicken coop on his land; that Atoa originally wanted to build it on some other piece of Asi land; Asi denied permission to build it there, but instead gave Afoa permission to build it in the area now disputed.

Afoa's story is similar in some respects. He says he tried to build the chicken coop on another site, but Asi objected, saying the proposed site was on Asi land. Asi told Afoa to go build his chicken coop on his own land, and the two men agreed on an alternate location which Asi acknowledged to be on Afoa land. Afoa built the coop at the alternate location, which is the area now in dispute.

With respect to this portion of the disputed area, Afoa prevails. Although stranger things have happened, it does not impress us as very likely that Asi would have allowed another matai with plenty of his own land to build a chicken coop on Asi land, particularly since it is clear that Asi had already begun to regard Afoa as something of a troublemaker in land matters and had recently denied permission with respect to another site. The Afoa version of this story rings truer. Afoa also presented the testimony of a witness who testified credibly that he had a plantation in this area for some years, after the demise of the chicken coop and under the authority of Afoa, with no objection from Asi people.

II. The Meleisea Objection

The objection of Meleisea principally concerns a portion of the Afoa survey on the far side (west or Leone direction) of the Taputimu- Vailoa paved road. There is evidence of both recent and traditional Meleisea habitation and cultivation in this area, and Meleisea prevails with respect to it.

Meleisea also claims that Afoa's western boundary does not even extend as far as the paved road, but that the traditional boundary between [16ASR2d93] adjoining landowners in this area was an old road a few feet to the east of the present road. This claim is seconded by witnesses for Asi and Si'i, and is buttressed by a document showing that a right-of-way for the road was granted in 1973 by a number of chiefs including Asi and Si'i but not Afoa. (The Meleisea and Si'i families are closely connected, and the present Meleisea was then holding the Si'i title.)

Neither Meleisea nor Si'i has submitted a survey, however, from which we might determine exactly where they would draw the line between the Meleisea or Si'i land to the west and that of Afoa to the east. It also appears that Afoa has been occupying the land up to the edge of the road in the portion of his survey not disputed with Asi (i.e., the area in front of his present house and of a tulaga fale that was formerly the site of another Afoa house) and no evidence was presented of any conflicting occupation during the memory of man. Afoa therefore prevails with respect to this area, as far northwest as the southeastern edge of the government right-of-way and as far north as the southern boundary of the land held to belong to Asi. The land to the west and northwest of this area appears to belong to Meleisea and/or Si'i.

III. The Si'i Objection

Si'i objects to the western boundary claimed by Afoa, and also to the western part of the southern boundary. He has presented no survey, but makes three principal arguments: (1) any land possessed by Afoa in this area is because of a connection to Si'i and Meleisea and by permission of these families; (2) the boundaries drawn by Afoa encompass a communal graveyard of the three families (Si'i, Meleisea, and Afoa) which includes the grave of the deceased mother of Si'i, who was also the mother of Meleisea; (3) the southern boundary drawn by Afoa comes quite close to a Si'i residence, and actually includes part of the paepae, a small area of gravel immediately surrounding the house.

The evidence does not support either of the first two contentions. Whatever relationship the Afoa title (a very high one) has to Meleisea and Si'i, it is not one of vassalage. After trial the Court viewed the land, principally in order to examine the claim of Si'i that his mother's grave is within the Afoa survey. It is not. The grave of the mother of Si'i and Meleisea (pointed out by them and also by Afoa) is in a small graveyard separate and distinct from the one inside the Afoa survey, and not even adjoining it. The only specific evidence we have concerning the older graveyard within the Afoa survey is that the last three Afoas are buried there. [16ASR2d94]

We also attempted to determine whether the southern boundary drawn by Afoa crosses the paepae of the Si'i house. Although we cannot be certain, it does appear to encompass a small corner of the Si'i paepae. This does not, of course, conclusively establish that this small area is not Afoa land; but the best evidence we have of ownership in this area is the pattern of settlement, and the evidence is to the effect that this Si'i house was built some years ago without objection from Afoa.

The southern Atoa boundary, although quite close to the Si'i house, is also quite close to the present and former Afoa houses. The Si'i objection is therefore unpersuasive except insofar as the Afoa boundary may include part of the paepae of the Si'i house or otherwise come so close as to encroach on what the parties must have reasonably regarded over the years as the curtilage of this house. As it will be necessary for Afoa to revise his survey in several respects before registering it, we direct that he include a further revision, if necessary, so that his southern boundary will not come any closer than fifteen feet to the Si'i house. (This revision, to the extent it may be necessary, is illustrated by the dotted line in Appendix A. Neither this dotted line nor the other boundaries drawn by the Court in Appendix A is intended to be precisely to scale.)

IV. The Tulifua Objection

Pupi Lam Yuen testified that the southern boundary drawn by Afoa encompasses a few feet of an area traditionally regarded by the Tulifua family as part of their land. This witness, although evidently honest and sincere, testified from family history recounted to him by others and from a vague memory of a Samoan house that once belonged to an uncle of his. The boundary, according to what this witness said he was told by older members of his family, should be along a line of kapok trees. He testified that there had once been several such trees but that now only one is left standing, the second-to-last haying fallen during the recent hurricane. A line drawn between these two trees, however, would put part of Afoa's house on Tulifua land. This house has been there for some time, without any evident objection from the Tulifua family. The witness admitted, moreover, that there have been no Tulifua houses or cultivations within this tiny disputed area for some time. Afoa prevails with respect to this objection. [16ASR2d95]

V. Conclusion and Order

Accordingly, we hold that Afoa may register a tract described by the following boundaries, and illustrated in Exhibit A: (1) beginning at the southwestern comer of the Afoa survey (Drawing # 53-15-89), northward along the western boundary of this survey to the southern boundary of the government right-of-way for the paved Taputimu-Vailoa road (i.e., to a point 15 feet south/southeast of the center line of this road); (2) thence northeastward along a line 15 feet from the center line of the paved road (i.e., the southeastern boundary of the government right-of-way) to the intersection of the Taputimu Loop Road; (3) thence northeastward along the southern edge of the Taputimu Loop Road to a point due west of the westernmost point of the Asi claim as depicted in Exhihit 3; (4) thence due east to the westernmost point of the Asi claim as depicted in Exhibit 3; (5) thence south/southeast along the various courses comprising the southwestern and southern boundaries of the Asi claim as depicted in Exhibit 3, to the intersection with the Taputimu Loop Road; (6) thence northwest along the center line of the Taputimu Loop Road to the intersection with the northern boundary of the Asi claim as depicted in Exhibit 3; (7) thence east, southeast, and west along the exterior (northern, eastern, and southern) boundaries of the Asi claim as depicted in Exhibit 3, to another intersection with the Taputimu Loop Road, which is also an intersection with the undisputed portion of the Afoa survey; (8) thence west and northwest along the southern and southwestern boundaries of the Afoa survey, to the aforementioned southwestern comer, with such adjustments as may be necessary to come no closer than fifteen feet to the existing Si'i house.

Asi may register the portion of his claim, as depicted in Exhibit 3, that is to the west of the Taputimu Loop Road. This area is also illustrated in Appendix A.

Although Meleisea and/or Si'i prevailed with respect to part of the land descrihed in their objections, they did not submit surveys. We are also unsure whether the area in the vicinity of the Taputimu-Vailoa road, other than that held to belong to Afoa, belongs to Meleisea or Si'i. Meleisea brought the objection in this area, but it was the Si'i family, in the person of its then senior matai who is the present Meleisea, that authorized the government right-of-way. If either of these families wishes to register its land, therefore, a survey and offer of registration in accordance with A.S.C.A. § 37.0101 will be necessary.

It is so Ordered.

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