#### TE’O of Pago Pago and TUFONO of Fagatogo, Plaintiffs v. MAILO of Fagatogo, Defendant

Nos. 4 & 4A-1923

High Court of American Samoa Civil Jurisdiction, Trial Division [Land: “Utunonu” and “Milomilo” in Fagatogo]

Date unknown

SYDNEY D. HALL, *President of the High Court;*LEAANA, *Associate Judge;*and GAGAI, *Associate Judge*

JUDGMENT

It seems that during the year 1923, on the thirteenth day of June, Mailo appeared at the office of the Registrar of Titles and sought to register a certain piece of land situated in the village of Fagatogo as delineated and described in an accompanying map of survey and description. This land was designated as the land “Utunonu”. In accordance with custom and procedure, a notice was posted by the Registrar of Titles, and at the expiration of sixty days, if no objections were had, then said land would be registered in the name of Mailo.

Within the sixty day period the “matai” Tufono, supposedly representing the Tufono family, and the “matai” Te’o, representing the Te’o family, appeared at the office of the Registrar of Titles and objected to the *363registration of the so-called, land “Utunonu” by Mailo, at the same time depositing ten dollars objection fees, respectively.

At a time previous to the beginning of .these Court proceedings, the “matai” Tufono appeared at the office of the Registrar of Titles, stated that he desired to withdraw his objections to .the registration of the land by Mailo, and as a result his objections were withdrawn.

Time passed on and on the fourteenth day of July, in the year nineteen hundred and twenty-four, the High Court convened in an action of “Te’o versus Mailo” to try title to this land.

The trial had proceeded for a matter of one day, or perhaps two, when the family of Tufono appeared at the office of the Registrar of Titles and stated that they objected to the action taken by the “matai” Tufono in withdrawing his objections to the registration of .the land in dispute, stating at the time that the family had not been consulted by the “matai” as regards .the action that said “matai” had taken, and requesting protection of their rights and interests by the Court. And their claim as to the family not having been consulted is borne out by the testimony of the “matai” Tufono as given by the “matai” before this Court. And the testimony of various witnesses as given before the Court soon developed the fact that the Tufono family were interested parties in these proceedings. And, as a result, the Court directed that the objections of Tufono, representing the Tufono family, be revived and the Tufono family, as represented by Tufono, be made parties in action.

Testimony, survey, and exhibits indicate to the Court that there was a piece of land, known as “Utunonu”, lying west of the present Administration Building and extending in a westerly direction practically to the small stream just to the west of the American Judge’s house; and, according *364to the testimony of Mailo and some of his witnesses at least, extending in a southerly and northerly direction from the Main Road back to the boundary line of the Naval Station, which divides the Naval Station from Fagatogo; and, the land which is [in] dispute lies in a northerly direction and adjacent to the description as just mentioned; and, as already stated, this land in dispute was designated by Mailo as the land “Utunonu”.

Testimony as given soon developed the fact that the land in dispute and designated as “Utunonu” was known by other names by various witnesses, being designated in many instances as “Milomilo” and in one instance, as the Court recalls, as either “Milomilo” or “Falaga”. This discrepancy in names raised a question in the minds of the Court as to what is the true name of the land which is the subject of these Court proceedings, and testimony was had at great length, and recourse was had to the records in the office of the Registrar of Titles to throw light on this matter as to what was the true name of this land and perhaps to furnish any evidence as to who had authority over the land in dispute. Plans existing in the office .of the Registrar of Titles and transfers developed the fact that during the early period of the Government of American Samoa by the President of the United States, that transfers of land had occurred to the United States and that among the lands transferred were lands known as “Utunonu” and “Milomilo” and so forth, and surveys existed in the office of the Registrar of Titles covering these lands. And it further developed that the land “Utunonu”, as shown in these plans, had been transferred, or at least a part of it, by Mailo; that the land “Milomilo,” or at least a portion of it, had been transferred to Sarnia and by a person by the name of Krause.

Reference to these plans further disclosed the fact that the testimony of the Defendant to the fact that this land *365“Utunonu” sold to the Government extended from the roadway in the Naval Station to the boundary line between the Naval Station and the village of Fagatogo was not sold; that there was a narrow strip of land between “Utunonu” and the land in dispute; and that this narrow strip of land was designated in the records of the Registrar of Titles as “Milomilo”; so that the Court had presented to it this situation: to the seaward, the land known as “Utunonu” originally transferred to the Government, and in a northerly direction and adjacent to it, the narrow strip of land known as “Milomilo”, and according to the records in the office of the Registrar of Titles, transferred to the Government by Sarnia, and in a northerly direction and adjacent to this land, the land in dispute in these Court proceedings.

The Court will now leave this stated proposition for a minute as we have the locations definitely fixed in our minds and we will take up the claim of Te’o as ,to ownership and what the claim is based on. Te’o states in his testimony that the land “Utunonu” was obtained from Mailo-Matagi; that Mailo-Matagi had a sister by the name of Pafuti; and that she had a son who was Te’o; that this Mailo desired to erect a house for himself; and, as Te’o is stated to have been a carpenter, that Mailo requested his sister to request Te’o to construct this house, bearing this in mind all the time: that Te’o is related closely to Mailo and practically a member of the Mailo family. According to the testimony, the house was built by Te’o and he received in return for the construction of the house the piece of land designated as “Utunonu” by both Mailo and Te’o. This claim did not carry much weight with the Court. As already stated, Te’o was a member of the Mailo family and in accordance with Samoan Custom, it would have been very contrary to said custom for Te’o to have demanded payment for the construction of this house and *366it would hardly be conceived by the Court that Mailo gave this land to Te’o as that also would have been contrary to Samoan Custom as Te’o had a certain obligation to Mailo as did Mailo owe a certain protection to Te’o. Mention has been made in the testimony as to the planting of coconut trees on this land by various persons with the idea by said planting to establish ownership but the fact remains that no sufficient evidence has been given to prove that a sufficient planting occurred to indicate that a plantation was involved and, in one instance, as the Court recalls, it was testified that the Missionary Leve had planted some coconut trees on the land so that the claim based on the planting of coconut trees on the land does not carry much weight with the Court to the extent that it would indicate ownership. No evidence has been given at any time which indicates that Te’o lived on this land so the Court dismisses the objection of Te’o and that leaves remaining the objection of the family of Tufono by Tufono, the “matai”, to the registration of the land in dispute by Mailo.

Now, it is the unanimous opinion of the Court that the land “Utunonu” was controlled by Mailo and it is the unanimous opinion of the Court that the land “Milomilo,” and this is in accordance with the testimony, was controlled by Sarnia in the interests of the Tufono family, so the question before the Court is: is the land in dispute “Milomilo” or is the land in dispute “Utunonu” ? And these are facts that are borne out, not only by the testimony, but by the records in the office of the Registrar of Titles.

We will now recall that the land in dispute is not a physical continuation of the land “Utunonu” as sold to the Government by Mailo. There is a narrow strip of land known as “Milomilo” lying between the land “Utunonu” sold to the Government by Mailo'and the land in dispute. And this narrow strip of land was transferred to the Government by Sarnia as the records show. The defense, of *367course, could not help but recognize the condition as it existed in the records in the office of the Registrar of Titles so, on being questioned by the Court as to this narrow strip of land known as “Milomilo,” the testimony of the defense was that this narrow strip of land was given to Samia by Mailo but no sufficient reason has been given to the Court for the presentation of this narrow strip of land to Samia by Mailo.

Bear in mind that the land “Utunonu” is controlled by Mailo and the land “Milomilo” is controlled by Samia in the interests of the Tufono family and were the testimony true that the narrow strip of land to which the Court now refers, which the defense states was given to Samia, it is logical in the extreme to feel that the land is “Utunonu” and not “Milomilo” as it was transferred to the Government by Samia. What a strange gift to have made; a long strip of land lying right in the middle of the land designated as “Utunonu” by the defense.

Therefore, it is the unanimous opinion of the Court that this narrow strip of land as registered in the office of the Registrar of Titles was the land “Milomilo” and was controlled by Samia in the interests of the Tufono family and now, this brings us to the land adjacent to and in a northerly direction from this narrow strip of land which is the land in dispute. Where did this narrow strip of land come from? Why the narrow strip of land came from the land which is the subject of this Court action. And from Whom did the Government purchase the narrow strip of land? Why the Government purchased it from Samia. Keep in mind who controlled the land “Milomilo”: Samia. Were there any objections to the narrow strip of land by Mailo? Evidently none, at least none that received serious consideration as the land was transferred to the Government. The weight of evidence as given to the Court indicates the name of the land in dispute to be “Milomilo” and that the *368little strip of land sold to the Government by Samia was a part of this land.

The testimony developed the fact that when .the house of Leve, the previous Missionary to the present Missionary, Afele was to be constructed that the Chiefs of the village requested permission of Samia that the house might be constructed on the land which is the subject of these Court proceedings. According to testimony, objections were raised on the part of Mailo to the construction of the present home of the Missionary Afele but an objection does not mean ownership, an objection does not even entitle one to consideration unless such objection is so conclusively confirmed by testimony and fact that there can be no controversion. No substantial evidence has been given that the land in dispute is a continuation of the land “Utunonu” or that it bears the name “Utunonu.”

It is the unanimous judgment of this Court that the land in dispute is a part of the land “Milomilo” and the property of the Tufono family of the village of Fagatogo and it will be so registered in the office of the Registrar of Titles at the expense of said family. Court costs in this action are $150.00 which will be divided equally between Mailo and Te’o and these Court costs are to be paid within sixty days.

OPINION OF NATIVE ASSOCIATE JUDGES

*By Judge Gagai:*In the beginning of the case and in listening to the testimony given by different witnesses and questions asked by the parties and also the Court and after personal consideration I think myself in .the beginning in the case between Mailo and Te’o that Mailo had the authority to the land until the Court later found this strip of land which lies between the land “Utunonu” and the land in dispute. There I changed my previous opinion which I have already stated, in favor of Mailo, and this *369small strip of land shows in the Government records sold by Sarnia to the Government without any objection by Mailo. The Court has failed to find anything to prove that that small strip of land was a piece of land given to Sarnia by Mailo, as Mailo stated on the witness stand, as the records of the Government show that it was sold to the Government by Sarnia and we all know that there is no such small land existed in American Samoa. No man would like to have a piece of land like that because it would be of no use and therefore, in consideration of this small strip of land which lies between “Utunonu” and the land in dispute, it is very plain there that it must be a piece of a big piece of land because of this Court procedure. Furthermore, it has been stated by witnesses called by Mailo himself that the name of the land in question is “Milomilo” although there are other witnesses who had different name but it proves to me from the testimony of the witnesses whom Mailo himself insisted in calling and also the fact that this small strip of land lies between “Utunonu” and the land in dispute, and therefore, it is my belief that Tufono is the owner of this land. Furthermore, it is true that Tufono withdrew his objection but the duty of the Court is to do justice, to seek justice, and to deal it without consulting the members of his family because these lands are family lands and the family is as much interested in the lands as is the head of the family. The Court is right in reviving the right of the Tufono family in this case.

*By Judge Leanaa:*In order to shorten up the discussion of the Judges about the decision of the case, I would say that I concur, absolutely, with all that Judge Gagai has said; however, there are a few things I would like to add on which I also base my opinion, including things Judge Gagai has said and in which I concur. Lutu is considered ,to be one of the oldest Chiefs in the village of Fagatogo and he testified on the witness stand that he knows that the *370name of the land in dispute is “Milomilo” and that the strip of land lying between “Utunonu” and the land in dispute which was sold to the Government by Sarnia was a piece of “Milomilo.” Taamu is one of the “matais” of the Mailo family or division and he was called to the witness stand and he testified that in the construction of the house of Leve permission had been asked of Samia-Tuiasosopo and the name of the land in dispute is “Milomilo”. The present Mailo was not born in Fagatogo and therefore he doesn’t know much about lands in Fagatogo. The ex-Mailo, who is now Tinae, is a man whose veracity has been questioned.