5ASR3d254

GI MALALA and PULU TALALOTU

(for the Mauga family and Gi family), Plaintiffs,

 

v.

 

AMERICAN SAMOA GOVERNMENT, Defendant,

 

High

Court of American Samoa

Land and

Titles Division

 

LT No. 10-01

 

October

17, 2001

 

 

[1] Filing a

Certificate of Irreconcilable Dispute upon the failure of dispute resolution

proceedings before the Secretary is a jurisdictional prerequisite to hearing a

controversy involving communal land.

 

[2] Where

action involves a dispute over communal land, but no Certificate of

Irreconcilable Dispute has been filed, the court may nonetheless issue

appropriate preliminary orders and stay proceedings, rather than dismissing the

action, until the certificate is filed. 

 

[3] The “Mauga”

title is a paramount matai title of

American Samoa and the highest-ranking title in Pago Pago.

 

[4] A.S.C.A. § 43.1309(b) allows an application for an injunction with regard to

actions on communal land to be brought by two blood male matai members of the family, instead of the sa`o, if the sa`o

title is vacant.

 

[5] Land

ownership and easement rights extend to those uses that are incidental or

necessary to the reasonable use of the land.

 

[6] Maintenance

of a thoroughfare is incidental or necessary to the reasonable use of such

land.

 

[7] New sidewalk which was installed outside of the area previously used

by government for old road was determined to be within area reasonably required

for lateral support of the old road and therefore installation of such new

sidewalk was proper. 

 

[8] A

preliminary injunction is appropriate only when there is (a) a substantial likelihood that at trial

on the merits the applicant will prevail and obtain a permanent injunction, and

(b) great or irreparable injury will result to the applicant before a full and

final trial can be fairly held on the propriety of a permanent injunction.

 

Before RICHMOND,

Associate Justice, and LOGOAI, Chief Associate Judge.

 

Counsel           For Plaintiffs,

Marshall Ashley and Jeffrey Waller

 For Defendant, Fiti A. Sunia, Acting Attorney

General, and Tala Uiagalelei, Assistant Attorney General

 

OPINION AND ORDER

 

Plaintiffs Gi Malala (“Gi”) and Pulu Talalotu (“Pulu”) seek injunctive

relief against defendant American Samoa Government (“ASG”).  The relief was initially aimed at preventing

construction of a sidewalk between the main public road and a rock wall in the

Village of Pago Pago.  The requested

relief was modified to removal of the sidewalk by the time of hearing on the

application of Gi and Pulu for a preliminary injunction.

 

Pursuant to T.C.R.C.P. 65(a)(2), the Court consolidated the hearing on

August 28 and September 4, 2001, on the application by Gi and Pulu for a

preliminary injunction with the trial on the merits.  Gi, Pulu, and counsel were present on both

dates.

 

 

Discussion

 

[1-2] This controversy involves communal

land of the Mauga and Gi families and has not yet been mediated by the

Secretary of Samoan Affairs.  Filing a

Certificate of Irreconcilable Dispute upon the failure of dispute resolution

proceedings before the Secretary is a jurisdictional prerequisite to proceeding

with this action.  See A.S.C.A. § 43.0302(a); Meredith v. Koko, 28 A.S.R.2d

149, 150 (Land & Titles Div. 1996). 

However, the Court can issue appropriate preliminary orders and stay

further proceedings, rather than dismiss the action, until the Certificate is

filed.  See A.S.C.A. § 43.0303; Moeigogi v. Faleafine, 5 A.S.R.2d

131, 133 (Land & Titles Div. 1987). 

Gi and Pulu requested, and the court issued, a temporary restraining

order to stop installation of the sidewalk temporarily.  The order was served too late to prevent the

work. However, ASG installed the sidewalk knowing the unresolved objections

that Gi and Pulu had to it.  This

circumstance provides sufficient cause to consider the substantive need for a

preliminary injunction.

 

The boundary of the land in question fronts approximately 300 feet along

the public road through Pago Pago.  The

side of the land towards the Village of Satala is the Mauga family’s communal

land, explicitly named “Gagamoe.”  The

side towards the head of Pago Pago Bay is the Gi family’s communal land,

explicitly named “Legati.”  However, the

name “Gagamoe” is a commonly used reference to both lands, and we will use the

name in this sense below.

 

[3-4] The “Mauga” title is currently

vacant.  It is a paramount matai title of American Samoa and the

highest-ranking title in Pago Pago.  The

“Gi” and “Pulu” titles are under the auspices of the “Mauga” title, and Gi and

Pulu are among the matai titleholders

who are responsible for the Mauga family’s affairs during the vacancy in the

title.  “Gagamoe” is sacred land of the

Mauga family.  An ancient rock wall is

situated inland from the rock wall next to the sidewalk.  The ancient rock wall appears to be

associated with the traditional site of the Mauga guesthouse.  Former holders of the Mauga title are buried

not far from the guesthouse site. According to the evidence, the Cession of

Tutuila and Aunu`u, formalizing the relationship of American Samoa with the

United States on April 17, 1900, was signed on “Gagamoe.”  Gi and Pulu considered the installation of

the sidewalk to be disrespectful of the dignity of the “Mauga” title and thus

decided to bring this action to correct ASG’s affront.  Given the vacant “Mauga” title, they have

standing to sue under A.S.C.A. § 43.1309(b).

 

Both the new paved public sidewalks and public road are integral parts of

the road project through Pago Pago that was recently undertaken and is

essentially completed.  Along “Gagamoe,”

the new road lies in large part over the bed of the old road that was in

existence well in excess of 30 years. 

The new road is wider than the old road, but most of the expansion is

seaward, on the side opposite “Gagamoe.” 

Pedestrians could previously walk along unpaved areas immediately

adjacent to both sides of the old road. Now paved sidewalks exist on both sides

of the new road and extend in both directions well beyond “Gagamoe.”  Thus, the safety of the road system in Pago

Pago has been enhanced for both vehicles and pedestrians.

 

At the Gi family’s end, the sidewalk straddles the bed of the old road

and is approximately four feet from the rock wall.  The sidewalk gradually strays further from

the old roadbed.  It is almost, if not

entirely, off the roadbed at the Mauga family’s end, but there it is

approximately 10 feet from the rock wall.  The best estimate is that approximately 300

square feet of the sidewalk is off the old roadbed and on previously unpaved

land.

 

The precise means of ASG’s acquisition of the bed of the old road is not

entirely clear from the evidence.  To the

extent that the old road, followed the same path taken by the public road that

was in place in 1900, ASG acquired title to the land by condemnation.  See

A.S.C.A. § 37.2050.  Over time, the old

road that was in place when the present renovation was initiated may have moved

away from the 1900 road in some areas throughout Pago Pago.  However, even if this is true, the witnesses

testifying at the hearing in this action gave us the impression that the owners

of the land affected by any changes in the roadway throughout the years

dedicated their land to this purpose.  In

any event, given the length of time the public has used the old road as it

existed when the present road project began, at the very least ASG acquired an

easement in the roadbed.  See Warnack

v. Coneen Family Trust, 879 P.2d 715, 723 (Mont. 1994); Sese v.

Leota, 9 A.S.R.2d 25, 33 (Land & Titles Div. 1988); 25 Am. Jur. 2d Easements and Licenses § 56 (1995); see also

Swift v. Kniffen, 706 P.2d 296, 302 (Alaska 1985) (affirmative permission,

not mere acquiescence, required to refute prescriptive easement).  Based on the evidence at hand, it is

uncontroverted that the old road in existence immediately before the present

road rehabilitation project was and remains part of the public domain by title

or easement. We therefore find that ASG rightfully installed the portion of the

sidewalk over the old roadbed adjacent to “Gagamoe.”

 

[5-7] Public roads are not, however,

totally defined by the traveled portion the road.  Virtually all paved roads have an engineering

requirement of lateral support to maintain the paved portion of the road.  Land ownership and easement rights extend to

those uses that are incidental or necessary to the reasonable use of the

land—this includes maintenance of thoroughfares.  See

Le`i v. Olo, 25 A.S.R.2d

33, 36-37 (App. Div. 1993); Pasadena v. California-Michigan Land & Water

Co., 110 P.2d 983, 986 (Cal. 1941);

25 Am. Jur. 2d Easements

and Licenses § 83 (1995).  We

find no basis to except the road at issue. 

The evidence does not establish the exact extent of adjacent land that

was needed for lateral support of the old road. 

However, the area of the sidewalk outside of the old roadbed is well

within the area reasonably required for this purpose. We therefore also find

that ASG rightfully installed the portion the sidewalk outside of the old

roadbed adjacent to “Gagamoe.”

 

[8] A preliminary injunction is

appropriate only when there is (a) a substantial

likelihood that at trial on the merits the applicant will prevail and obtain a

permanent injunction, and (b) great or irreparable injury will result to the

applicant before a full and final trial can be fairly held on the propriety of

a permanent injunction.  A.S.C.A. §

43.1301(j).  Gi and Pulu have established

neither of these criteria and, therefore, are not entitled to a preliminary

injunction.  We further conclude that ASG

is entitled to dismissal of this action on both the jurisdictional/procedural

ground of the lack of a Certificate of Irreconcilable Dispute issued by the

Secretary of Samoan Affairs and the substantive ground of ASG’s property

interests in the land upon which the new sidewalk is situated.

 

Although we will dismiss this action, we will add that we do not condone

the way ASG has handled this dispute.  Gi

and Pulu acted in this matter on the basis of their obligations to protect the

interests of the Mauga family while the “Mauga” title is vacant and on their

good-faith belief that ASG was wrongfully taking the Mauga family’s communal

land.  While ASG met with Pago Pago

chiefs on several occasions to discuss the new road project and made some

efforts to meet concerns about the project, it is evident that the prevailing

attitude of ASG’s representatives was to go forward with the project, using

whatever land was necessary for the roadway and sidewalks, and resolve the

authority issue later.  This approach is

impermissible.  See Am. Samoa Const. art. I, § 2; A.S.C.A. §§ 37.2001, 37.2010; Am. Samoa

Gov’t v. Isumu, 4 A.S.R. 141, 143 (Land & Titles Div. 1974); see also U.S. Const. amend. V & amend. XIV, §

1.  It is also disrespectful and is all

too prevalent in ASG’s land dealings with the owners of land standing in the

way of a project.  Gi and Pulu would likely

have been satisfied if ASG’s representatives had shown more sensitive insight,

concern, and respect for the customs and traditions of the Mauga family.

 

Order

 

In any event,

ASG is still entitled to dismissal of this and accordingly, it is dismissed.

 

It is so

ordered.