#### UTU and PAOLO, Plaintiffs v. FONOTI, Defendant

No. 35-1907

High Court of American Samoa Civil Jurisdiction, Trial Division [Land: “Oloie” and “Matatufu”, or “Muliuaua” and “Mulitufu” near Utumea]

January 7, 1910

B. R. PATRICK, Chaplain, U.S.N., *President of Court;*J. L. DWYER, *Associate Member;*and MAUGA, *Associate Member*

DECISION

This dispute has been a bone of contention between the people of Amouli and the people of Utumea for many years. A number of trials were held regarding the land in dispute, some under de facto governments and other trials before tribunals under this Government having no jurisdiction to decide the ownership.

The land involved consists of two parcels situated in an inlet close to the settlement of Utumea. The plaintiffs called these parcels Oloie and Matatufu, respectively and the defendant named them Muliuaua and Mulitufu.

According to an ancient document presented by plaintiffs and according to testimony corroborating its contents, a trial was held at Amouli on May 27, 1879, wherein the claims of Utu and Paolo as opposed to Fonoti were considered by a court composed of a large number of native chiefs of Tutuila and a clerk — one Ned Ripley (Neli). This document, though informal in a strictly legal sense, attested the fact that plaintiffs were awarded the land in dispute as well as other lands. This decision is denied by defendant, *209but not according to the law regarding the impeachment of documentary evidence.

It is unfortunate that this native court had no machinery for enforcing its decrees. As a result both plaintiffs and defendant continued to cultivate and reap the produce of the land. Since 1879 both parties have cut copra from the lands and have reaped the fruit of other cultivations. The dispute finally reached the High Court in the year 1907 when Utu and Paolo filed a complaint against Fonoti and, after amending the original complaint so as to exclude Utumea, the case came to this Court for trial and decision.

The testimony given by the witnesses on both sides was conflicting to the point of absurdity. Most of their respective claims were based upon tradition but this tradition centered in one common ancestor Sinanene who, it is admitted, lived on the land over seventy years ago. The descent of the title from Sinanene was the subject of dispute in 1879 and has again been brought up in this case.

This Court is constrained to hold that, inasmuch as the testimony as to ancestry and descent is vague and shadowy and too unsubstantial to base a decree upon at this time, the decision of the Court upon this point must follow that of the de facto Court held in 1879 as to the descent of Sinanene’s title to the present plaintiffs.

Had this de facto court of 1879 possessed and exercised the power of enforcing its decrees, the dispute would have passed out of the memory of all parties to the dispute and Utu and Paolo would have been in comfortable and undisturbed possession of the land at the time of the establishment of this Government and up to this time. However, as would appear from the testimony, Fonoti disregarded absolutely the decision of this court and continued to use the property and from a lapse of years has acquired certain undefined rights in this property which it is the difficult task of this Court to determine and it is to be regretted *210that, in order to settle this long drawn-out dispute, this determination must be in a measure somewhat arbitrary.

This Court has visited the land in dispute and has held a session of court upon the disputed premises; and, upon knowledge gained by a thorough inspection of the land and a comparison of the respective values of the two pieces of land, the Court has decided to divide the property in dispute, granting the smaller but proportionately more valuable portion to Fonoti and the larger piece to Utu and Paolo.

Let a decree therefore issue vesting the title of the westerly portion “Olioe” in the plaintiffs and vesting the title of the easterly portion “Mulitufu” in the defendant.

Costs are assessed at $100.00 — $50.00 to be paid by plaintiffs and $50.00 by defendant.