#### VIENA, Plaintiff v. FITIAUSI, Defendant

No. 4-1911

High Court of American Samoa Civil Jurisdiction, Trial Division [Land: “Muaava”, part of land “Toaga” on Ofu, Manua]

June 5, 1911

[Names of Judges unknown]

DECISION

Viena, the plaintiff in the case, is a resident of Olosega, and defendant, Fitiausi, resides in Ofu, Manua. The land in controversy, MUAAVA, is a portion of the land TOAGA on the southern side of the island of Ofu.

Both plaintiff and defendant trace their claims to the land to one Tipata, the paternal grandfather of defendant. Plaintiff introduced a tradition of his family to the effect that Viena Malemo and Aperamo — ancestors of the plaintiff had once spared the life of Tipata while Tipata was a prisoner-of-war after a conflict between Ofu and Olosega wherein the people of Olosega were victorious and that, either as a mark of gratitude, or as a ransom, Tipata had given the land to the family of plaintiff.

This tradition was stoutly denied by defendant, Fitiausi, who claims that Tipata passed the property down to his descendants. Defendant, however, does admit two breaks in the title; (1) When the band of chiefs known as the Faletolu from the counties of Tau and Faleasao had control of the land and Fitiausi introduced a tradition that showing that the Faletolu had authorized his ancestors to return to Ofu and again resume control of the land in dispute. The *247tradition showed that the ancestors of Fitiausi had fought in a war on the side of the Faletolu and as a reward, this privilege was given. (2) Shortly after the establishment of the present Government, the dispute regarding this land was placed before District Governor Tuimanua. At that time, Fitiausi transferred his claim to Tuimanua, who attempted to settle the matter. A letter from Tuimanua was attached to the complaint in this case and in referring to this land the letter states:—

> “The portion where the house stands — I have given over the house-site for you all (outou) with Fiti — bounding with Fava. I have talked with Fiti regarding everything. I told Fiti that he must not be angry at the decision I have made. I have told him about it. I said T do not think you will be able to get it.’ ”

The efforts of Tuimanua appear to have been fruitless and the parties continued to quarrel about the land until the present year when the plaintiff filed his complaint.

The state of the title to the land is as follows:—

Yiena claims the land as a descendant of Yiena Malemo, who it is alleged, received his title from Tipata, and also a part interest in it by the letter from Tuimanua.

Fitiausi claims as a descendant of Tipata, denying the transfer to Viena Malemo — from the traditional authorization of the Faletolu and likewise from the alleged return of the land by Tuimanua to Fitiausi about the year 1904. The defendant’s evidence as to the return in 1904 is not corroborated by any documentary evidence and cannot be accepted as a contradiction of the letter quoted above which was dated September 29,1902.

The parties fail to agree in any way as to the cultivations on the land — each party claiming all of the cultivations. The Court inquired of the parties as to the value of the property and their estimates varied from $600.00 to $800.00. The Court accepts the estimate of $600.00 as nearer to the true value of the land. After a consideration *248of the uncertain and contradictory evidence the Court is of the opinion that both parties have equal rights in the land, and that plaintiff and defendant have each an undivided one-half interest in the property in dispute.

If the parties in this case are unable to agree upon their respective rights, the Court decrees that either party may, by depositing with the Court the sum of $300.00, within two years from the date of this decision become possessed of the title to the entire land in dispute. The $300.00 so deposited will be paid over to the other party as a compensation for his interest in the land. If on the other hand, the parties desire to partition the property, the plaintiff Viena may take the Eastern half of the property, nearer to Olosega and the defendant Fitiausi may take the western half of the property, nearer to Ofu. In such case the starting point shall be on the sea-beach midway between the Eastern and Western extremities of the land.

Costs are assessed at $30.00, one half to be paid by plaintiff and one-half to be paid by defendant.