#### TIUMALU, Plaintiff v. FUIMAONO of Falealii in Upolu and FANENE of Pago Pago, Defendants

No. 1-1900

High Court of American Samoa Jurisdiction of Land Titles, Trial Division [Land: Lotomua, Poata, Saumaleato, Malaloa, Aga and Filoa, and Fualalo in Pago Pago]

May 27, 1901

Before COM: B. F. TILLEY, U.S.N. Commandant, U.S.N. Station Tutuila, *President of the High Court;*EDWIN W. GURR, *District Judge of Tutuila*

JUDGMENT

This is a dispute concerning land situate in Fagatogo in Pago Pago and is within the jurisdiction of the High Court of Tutuila.

The plaintiff Tiumalu claims that he is the owner of certain lands within the limits of Pago Pago known as Lotomua and Poata. The defendants are members of the Tiumalu family and they claim that they control Tiumalu *18and have full right to dispose of the lands claimed by him in such manner as they think fit.

The defendants Fuimaono, under the name of Lilo, and Fanene had in the month of October 1899, by deed conveyed the land Lotomua to the United States Government, and subsequently the defendant Fanene had leased the land Poata to one E. L. Mars, who received notice of these proceedings. These acts were a direct challenge to the rights of the plaintiff; hence the action. The case is a test one as to who owns the Tiumalu lands and by consent of parties all lands hereinafter mentioned are to be included in the decree of the Court when rendered.

The plaintiff by his pleading does not seek to interfere with the possession of the Government of the land Lotomua but prays that the defendants be ordered to pay to the plaintiff the proceeds of the sale of Lotomua. And later in his evidence he distinctly confirms his plea.

The plaintiff further prays that after due hearing, by Decree of the Court, he be declared the owner of the land Poata and entitled to the possession of the same.

The trial commenced on June 25th, 1900 and was continued with regular adjournments until August 18th. Both sides were represented in person at all the sessions of the Court. Voluminous evidence was taken on behalf of both plaintiff and defendants, and on August 18th the President of the Court announced that sufficient evidence had been adduced to enable the Court to form a judgment and all further testimony, being merely corroborative, there was no desire of the Court to hear it.

The defendants admitted that the land in dispute was “Tiumalu land” and that it had been in the possession of the present Tiumalu and his predecessors for many years. There was no dispute to the right of the present Tiumalu to the name or title, but the defendants claimed that they *19could by their own volition, depose the present Tiumalu from his position as head of the family and deprive him entirely of any rights to the lands.

The contention is based on the ancient idea that “might was right”: when the holder of the family name may have caused a section of his family to be disaffected towards him, or a capricious member of the family would claim the name, then that section or member would gather together all the force possible and forcibly take away the title and if the deposed chief or head of family did not submit he was by force driven out of the settlement, and the stronger section would appoint another of the family to take the control of the family and lands in his stead and the name of the chief would be bestowed by the stronger members of the family upon the successor.

The day of that arbitrary rule is passed. The head of the family, who by right of inheritance or proper appointment succeeds to that position will be supported in his title and tenure. The members of his family who may have cause for dissatisfaction, if they cannot adjust their differences in an amicable way, can apply to the Courts for redress, but any acts on their part to arbitrarily deprive a person of his title and vested rights appertaining thereto will subject the aggressors to punishment.

It was further shown that the present Tiumalu had appeared before the Samoan Land Commission established by the Governments of Germany, Great Britain, and the United States to protect his title in the year 1894 against the claim of Hunkin, which claim was settled before the Commission, the claim of Hunkin being rejected upon the showing of Tiumalu.

The transition from the arbitrary way of settling differences to the more peaceful way of the present way as yet seems scarcely to be realized by many of the Samoans. *20It appeared so with Tiumalu at the time of the sale to the Government of Lotomua. Fuimaono is a high ehief of Upolu and is entitled to respect and consideration from all members of his family. His High Chieftainship is not derived from his connection with the Tiumalu family. He derives that status from another source. Holding this superior position he would pay periodical visits to the Tiumalu family from whom he would receive all the hospitality and respect they could show him. This was done by way of courtesy alone, and would not entitle him to arbitrarily deprive Tiumalu of his inheritance and means of subsistence should he wish to. Fuimaono came over to Pago Pago, incited a section of Tiumalu’s family against him and sold family land. When Tiumalu protested he threatened to disinherit him and his family.

It is absolutely necessary for the Courts to protect the people who have for many generations lived on the family lands and cultivated them from chiefs such as Fuimaono. As members of the Tiumalu family the defendants will be entitled to such benefits from the lands as Samoan custom permits them, but such benefits must be obtained with the consent and full knowledge of the person holding the family title.

The Court considers that Fuimaono called Lilo and Fanene did wrong in disposing of the land Lotomua to the Government in the manner they did. Tiumalu, however, has stated to the Court that he chiefly desired a ruling as to his right and that he did not desire that the consideration received by Fuimaono and Fanene from the Government should be actually paid to him, but that he as head of the family will allow Fanene and Fuimaono to retain that money as their share of the family interests of the lands. So that it is unnecessary for the Court to make any order in respect of that prayer.

*21The Court is satisfied after consideration of the premises that Tiumalu is the owner of the land Poata, Saumaleato, Fualalo, Aga, Malaloa and Filoa and is entitled to possession of said lands as prayed for and which lands were mutually agreed by the parties to be included in the Decree of the Court. Judgment is entered up for Tiumalu in terms of the foregoing.

DECREE

This case having been regularly called and tried by the Court, and regularly adjourned from time to time, and the findings of fact and conclusion of law, and the decision thereon in writing having been duly rendered by the Court, which are now on file in this cause, wherein judgment was awarded in favor of Tiumalu, the plaintiff, against all of the defendants, on motion of Tiumalu, the plaintiff:—

It is now, therefore, hereby ordered, adjudged and decreed that the plaintiff have judgment as prayed for in his complaint herein, and in the submission of the parties as to other lands, against the defendants, and each and all of them; that all adverse claims of the defendants, and each of them, and all persons claiming or to claim all those portions of land situate in the county of Mauputasi, in the district of Falelima, East, and known as Poata, Saumaleato, Fualalo, Aga, Malaloa and Filoa, or any part thereof, through or under said defendants, or either of them, are hereby adjudged and decreed to be invalid and groundless; and that the plaintiff be and he is hereby declared and adjudged to be the true and lawful owner of the said lands and in schedule hereto described, and every part and parcel thereof, and that his title thereto is adjudged to be quieted against all claims, demands or pretensions of the defendants or either of them who are hereby perpetually estopped from setting up any claims thereto, or any part thereof.

And it is hereby further ordered, adjudged and declared that the plaintiff pay costs taxed at $53.00.

> *22SCHEDULE HEREINBEFORE REFERRED TO:

> (1) LAND “POATA”

> All that piece or parcel of land situated in Fagatogo inland of the boundary of the land in Fagatogo ceded to the U.S. Government, starting at a point bear[ing] 5 degrees 48 minutes, distance 140 feet distant from the S.E. corner of the old Fagatogo church; thence bearing 356 degrees, distance 224 feet; thence bearing 281 degrees, distance 144 feet; thence bearing 186 degrees, distance 236 feet along the land of Tamu and Mailo; thence bearing 276 degrees 06 minutes, distance 140 feet, to the point of starting. Said land contains an area, by admeasurement, of .082 of an acre, be the same more or less.

> (2) LAND “SAUMALEATO”

> All that piece or parcel of land situated in Fagatogo and called or known as “SAUMALEATO”, containing, by admeasurement, an area of 1.55 acres; starting at a point bearing 16 degrees, distance 118 feet, distant from the S.W. corner of the land “POATA”; thence bearing 185 degrees, distance 145 feet; thence bearing 204 degrees, distance 134 feet; thence bearing 268 feet, distance 94 feet, to a stream; thence following the said stream, bearing 338 degrees, distance 100 feet, 318 degrees, distance 90 feet, 325 degrees, distance 32 feet, 23 degrees, distance 100 feet; thence leaving said stream, bearing 59 degrees, distance 43 feet; thence bearing 108 degrees, distance 239 feet, to the point of starting.

> (3) LAND “MALALOA”

> All that piece or parcel of land situated in Pago Pago, in the United States Naval Station, Tutuila, and being called or known as part of “MALALOA”, bounded towards the north by the sea, towards the west by the *23land of Alafaio, towards the east by the land of Lutu, and towards the south by the land of Lutu, and the land claimed by Mrs. Pike, in trust for her grandchildren, starting at a point, being the southeast corner of the land contained in Court Grant # 869, of Samoan Supreme Court Records, and registered in Volume I, Folios 152 to 154, inclusive, of the Register of Court Grants for the United States Naval Station, Tutuila, bearing 9 degrees 20 minutes, distance 70 feet; thence bearing 355 degrees 5 minutes, distance 125 feet; thence bearing 285 degrees, distance 450 feet; thence bearing 280 degrees 30 minutes, distance 215 feet, to high-water mark in a westerly direction to the point of starting. Said land contains, by ad-measurement, an area of 2.7 acres, be the same more or less.

> (4) LAND “AGA” and “FIALOA”

> All those pieces or parcels of land called or known as “Aga” and “Fialoa”, forming one section of land lying inland of the town of Fagatogo, and being bounded towards the north by the land of Afoa, towards the east by the land of Tamu, towards the west by the land of Sarnia, and towards the south or inland side by the land of Tuasivi.

> (5) LAND “FUALALO”

> All that section of land called or known as Fualalo, lying to the east side of and adjoining the land of Saumaleatu, hereinbefore described, and bounded towards the north by the land of Sarnia, towards the east by the land of Mailo, towards the southeast and south by lands of Tamu and Afoa, and towards the west by the land called Saumaleatu.