Chapter 10 - Condemnation

Chapter 10 - Condemnation

43.1001 Filing of complaint and declaration.


When the government desires to acquire any land, easement, right-of-way, or other property interest, it may file a complaint in the Trial Division of the High Court of American Samoa, and, at any time before judgment, it may file a declaration of taking signed by the Attorney General, declaring that the lands or other property rights described in the complaint are thereby taken for the use of the government. The declaration of taking shall contain, or have annexed thereto:

(1) a statement of the public use for which the lands or other property rights are taken;

(2) a description of the property taken sufficient for identification;

(3) a statement of the estate or interest or property right taken for public use;

(4) a plan showing lands taken;

(5) a statement of the sum of money estimated by the government to be just compensation for the land to be taken.

43.1002 Possession immediately after service of notice.


When the government desires to enter into the possession of the property immediately after the service of the notice provided for in 43.1026, the Territorial Registrar shall so state in the notice and any damage sustained by the occupant, lessee, lessor or owner of such property by reason of the immediate occupancy by the government shall be included in the compensation to the aggrieved parties. When the required notice has not been given and the government desires to enter into the possession of the property at any time during the proceedings and before the rights of the parties and the amount of compensation are determined, the Territorial Registrar shall give the required notice, which shall also specify the date upon which the government may enter into the possession of the property.

43.1003 Compensation.


Along with the declaration of taking, the government shall deposit in the court, to the use of persons entitled thereto, the amount of the estimated compensation stated in the declaration.

43.1004 Payment of compensation awarded.


Upon the application of the parties in interest, the court may order that the money deposited in the court, or any part thereof, be paid forthwith or on account of the just compensation to be awarded in the proceeding. If the compensation finally awarded for the lands, or any parcel thereof, exceeds the amount of the money so received by any person entitled, the court shall enter judgment against the government for the amount of the deficiency. If the compensation finally awarded to any defendant is less than the amount which has been paid to him, the court shall enter judgment against him and in favor of the government for the overpayment.

43.1005 Vesting of title, and of right to compensate.


Upon the filing of the declaration of taking and the deposit, title to the lands in fee simple absolute, or such less estate or interest therein as is specified in the declaration, shall vest in the government, and the lands shall be deemed to be condemned and taken for the use of the government, and the right to just compensation for the lands shall vest in the persons entitled thereto.

43.1006 Determination and award of compensation.


Just compensation shall be ascertained and awarded in the court proceeding and established by the judgment of the court. The judgment shall include, as part of the just compensation awarded, interest at the rate of 6 percent per year on the amount finally awarded as the value of the property as of the date of taking, from the date to the date of payment; but interest shall not be allowed on so much thereof as shall have been paid into the court. No sum so paid into court shall be charged with commissions or poundage.

43.1007 Failure of interested parties to appear.


When all of the parties interested in the property involved in condemnation proceedings fail to appear within the time set by this chapter, the court may proceed to fix the amount of compensation by arbitration, as provided for in this chapter, and also determine the ownership of the property. Such award and determination shall be as effective as though the parties had appeared and answered. Any sums ordered to be paid by the government shall be held by the government for 7 years, to be paid to the proper claimant on demand. Such sums shall bear no interest.

43.1008 Cost of litigation.


Costs of litigation shall not be assessed against any party.

43.1009 Title disputes-Determination.


(a) When a dispute as to the ownership of the property prevents the amicable settlement of and payment for the property, the Territorial Registrar shall so certify to the Trial Division of the High Court, requesting that the court determine the ownership of the property in question, except that all disputes as to the ownership of communal land shall be referred to the Land and Titles Division of the High Court, solely for the purpose of determination of ownership.

(b) When a dispute is so certified by the registrar, the court shall hear the same as a civil matter, and shall, after proper hearing, enter its order and judgment determining the ownership of the property, which shall be good against all persons.

43.1010 Arbitration of compensation disputes.


(a) When the government does not agree to pay the sum demanded or the parties or any of them do not accept the deposit made by the government, either before or after the settlement of the question of title, the sum to be paid by the government shall be determined by arbitration.

(b) One arbitrator shall be appointed by the Governor on behalf of the government, one shall be appointed by the person or persons claiming compensation, and one, who shall be the chairman, shall be appointed by the other 2 arbitrators.

(c) In the event the person or persons claiming compensation do not agree upon an arbitrator or the 2 arbitrators who are to choose the third arbitrator fail to agree upon a third arbitrator by a day to be fixed by the court, an arbitrator shall be named and appointed for them by the court.

(d) The award shall be determined by a majority of the arbitrators after viewing the property involved and considering such evidence concerning the value of the property as may be submitted by interested parties.

(e) The award shall be made within one month after the arbitrators have entered upon their duties, or have been called on to act by a notice in writing from any party unless the court sets a different time. The chairman of the arbitrators shall, within the time limit for the award, file the determination of the amount of the award with the court, enclosed in a sealed cover endorsed with the names of the parties to the arbitration. The court shall open the award and forward a copy of the same to the parties.

(f) The decision of the arbitrators shall be final if notice of appeal is not served within the time limited by law.

43.1011 Appeal.


(a) The decision of the arbitrators may be appealed to the Appellate Division of the High Court by any person or by the government.

(b) The adverse party or parties shall be served written notice of the intention to appeal within 10 days after the appealing party receives notice of the award from the Trial Division of the High Court. The notice of appeal, together with proof of service, shall be filed with the clerk of the High Court within 2 days after service is completed.

(c) On appeal, the appellate Division may hear such evidence, including the testimony of the arbitrators, as is material, may approve, modify, revise, or reject the award of the arbitrators, and may either make a new and different award or resubmit the matter to the same or different arbitrators to be appointed in the same manner as the original arbitrators.

(d) Following its decision, the court shall enter an order that upon the payment of the required sum the government shall be the lawful owner of the property. The order shall bind all persons.

43.1012 Payment of arbitrators.


Payment to arbitrators shall be made by the government for the time they are actually engaged in hearing the case, and for their traveling expenses to and from the place of hearing. The amount of the payment shall be fixed by the court, but the payment to each arbitrator shall not exceed $20 per day, plus transportation.

43.1013 Incapacity of claimants.


When a question arises as to the legal capacity of any claimant for compensation to

execute a discharge or release upon payment of the sum agreed to be paid, rendered, or awarded, the court shall appoint a guardian or take such other action as may be required by law.

43.1020 Applicability of United States Federal Rules of Civil Procedure.


The Rules of Civil Procedure for the District Courts of the United States of America shall govern the procedure for the condemnation of real and personal property under the power of eminent domain, except as otherwise provided in 43.1021 et seq.

43.1021 Complaint-Caption and contents-Names of defendants.


(a) The complaint shall contain a caption setting forth the name of the court, the title of the action, the file number and the designation “Complaint”.

(b) The government shall name as defendants the property, designated generally by kind, quantity and location, and at least one of the owners of some part or interest in the property.

(c) The complaint shall contain a short and plain statement of the authority for the taking, the use for which the property is to be taken, a description of the property sufficient for its identification, the interests to be acquired, and, as to each separate piece of property, a designation of the defendants who have been joined as owners thereof or of some interest therein.

(d) Upon commencement of the action, the government need join as defendants only those persons having or claiming an interest in the property whose names are then known, but prior to any hearing involving the compensation to be paid for a piece of property the government shall add as defendants all persons having or claiming to have an interest in that property whose names can be ascertained by a reasonable diligent search of the records, considering the character and value of the property involved and the interests to be acquired, and also those whose names have otherwise been learned. All others may be made defendants under the designation “unknown owners”.

43.1022 Filing complaint.


In addition to filing the complaint with the court, the government shall furnish to the court at least one copy thereof for the use of the defendants and additional copies at the request of the clerk of the court or a defendant.

43.1023 Joinder of properties to be taken.


The government may join in the same action one or more separate pieces of property, whether in the same or different ownership, and whether or not sought for the same use.

43.1024 Order for distribution of deposit.


Following the filing of the complaint, the court may order such distribution of any deposit of the estimated compensation for the property taken as the facts warrant.

43.1025 Notices-Delivery-Form.


(a) Upon the filing of the complaint, the government shall forthwith deliver to the clerk of the court joint or several notices directed to the defendants named or designated in the complaint. Additional notices directed to defendants subsequently added shall also be so delivered.

(b) The delivery of the notice and its service have the same effect as the delivery and service of a summons under Rule 4 of the Federal Rules of Civil Procedure of the United States of America.

(c) Each notice shall state the court, the title of the action, the name of the defendant to whom it is directed, that the action is to condemn property sufficient for its identification, the interest to be taken, the authority for the taking, the uses for which the property is to be taken, that the defendant may serve upon the Attorney General an answer within 20 days after service of the notice, and that the failure to so serve an answer constitutes a consent to the taking and to the authority of the court to hear the action and to fix the compensation. The notice shall conclude with the address of the Attorney General where he may be served. The notice need contain a description of no other property than that to be taken from the defendants to whom it is directed.

43.1026 Service of notice.


Personal service of the notice, without copies of the complaint, shall be made by any policeman of American Samoa or any person duly appointed by the court, in the manner described in Rule 4(d) of the Federal Rules of Civil Procedure. If personal service cannot be made upon any defendant, the service may be accomplished by mailing a copy of a notice by registered mail to the defendant at his last known post office address; the notice shall also be posted on the property to be acquired and at the court house in Fagatogo, and if a newspaper is published in American Samoa, a copy of the notice shall be published therein on each week for 3 successive weeks. Notice shall be in both the English and Samoan languages.

43.1027 Proof of service.


Proof of service of the notice shall be made in the manner provided for the return amendment of a summons under Rule 4(g) of the Federal Rules of Civil Procedure.

43.1028 Amendment of notice or proof of service.


Amendment of the notice or of proof of service shall be allowed in the manner provided in Rule 4(h) of the Federal Rules of Civil Procedure.

43.1029 Notice of appearance-Waiver of defenses.


(a) If a defendant has no objection or defense to the taking of his property, he may serve a notice of appearance designating the property in which he claims to be interested. Thereafter he shall receive notice of all proceedings affecting it.

(b) If a defendant has any objection or defense to the taking of his property, he shall serve his answer within 20 days after the service of notice upon him. The answer shall identify the property in which he claims to have an interest, state the nature and extent of the interest claimed, and state all his objections and defenses to the taking of his property. A defendant waives all defenses and objections not so presented, but at the trial of the issue of just compensation, whether or not he has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award. No other pleading or motion asserting any additional defense or objection may be allowed.

43.1030 Amendment of pleading.


(a) Without leave of court, the government may amend the complaint at any time before the trial of the issue of compensation and as many times as desired, but no amendment shall be made which will result in a dismissal forbidden by 43.1035.

(b) The government need not serve a copy of an amendment, but shall serve notice of the filing, as provided in Rule 5(b) of the Federal Rules of Civil Procedure, upon any party affected thereby who has appeared and, in the manner provided in 43.1026, upon any party affected thereby who has not appeared.

(c) The government shall furnish to the clerk of the court for the use of the defendants at least one copy of each amendment, and he shall furnish additional copies on the request of the clerk or of a defendant.

(d) Within the time allowed by 43.1029, a defendant may serve his answer to the amended pleading, in the form and manner and with the same effect as therein provided.

43.1031 Substitution of parties.


(a) If a defendant dies, becomes incompetent or transfers his interest after his joinder in the action, the court may order substitution of the proper party upon motion and notice of hearing.

(b) If the motion and notice of hearing are to be served upon a person not already a party, service shall be made as provided in 43.1026.

43.1032 Dismissal of action.


If no hearing to determine the compensation to be paid for a piece of property has begun and the government has not acquired the title or a lesser interest or taken possession, the government may dismiss the action as to that property, without an order of the court, by filing a notice of dismissal setting forth a brief description of the property as to which the action is dismissed.

43.1033 Stipulated dismissal.


Before the entry of any judgment vesting the government with title of a lesser interest in or possession of property, the action may be dismissed in whole or in part, without an order of the court, as to any property by filing a stipulation of dismissal by the plaintiff and the defendant affected thereby; and if the parties so stipulate, the court may vacate any judgment that has been entered.

43.1034 Dismissal by court.


At any time before compensation for a piece of property has been determined and paid and after motion and hearing, the court may dismiss the action as to that property, except that it shall not dismiss the action as to any part of the property of which the plaintiff has taken possession or in which the plaintiff has taken title or a lesser interest, but shall award just compensation for the possession, title or lesser interest so taken. The court at any time may sever a defendant unnecessarily or improperly joined.

43.1035 Effect of dismissal.


Except as otherwise provided in the notice, or stipulation of dismissal, or order of the court, any dismissal is without prejudice.

43.1036 Deposit of money-Distribution.


(a) The government shall deposit with the court the money required by 43.1001.

(b) The court and attorneys shall expedite the proceedings for the distribution of the money so deposited and for the ascertainment and payment of just compensation.

(c) If the compensation finally awarded to any defendant exceeds the amount which has been paid to him on distribution of the deposit, the court shall enter judgment against the plaintiff and in favor of that defendant for the deficiency. If the compensation finally awarded to any defendant is less than the amount which has been paid to him, the court shall enter judgment against him and in favor of the government for the overpayment.