#### TIUMALU of Fagatogo, Plaintiff v. MAILO of Fagatogo, Defendant and TUFONO and MARIOTA of Fagatogo, Plaintiff v. MAILO of Fagatogo, Defendant

No. 11-1924

No. 12-1924

High Court of American Samoa Civil Jurisdiction, Trial Division

October 16, 1931

DECISION

At a term of the High Court of American Samoa held in the Administration Building, Naval Station, Tutuila, American Samoa on the 12th and 16th of October 1931.

Present: *Chief Justice*HARRY P. WOOD

*Associate Judge*PULETU

*Associate Judge*PELE

*435The proponent of the land for registration, Mailo, was present and was represented by Kolose as Attorney.

The objectors to the registration of the land, Tufono and Mariota and Tiumalu were present and conducted their own cases.

The land in dispute called by Mailo SIGATAUPULE and by the objectors FILOA is located in the Village of Fagatogo and extends in a general northerly and southerly direction from about the middle of the Village up the side of the hills on the south.

There are no houses of any of the parties now on the land except a part of Mariotas house, but under a lease made to one Otineru of a small part of the land, there is a house and Mailo is receiving the rend [sic] due under this lease.

The objectors Tufono and Mariota whose interests are identical claim that their land called Filoa has been included by Mailo in the survey made by the former holder of that name and Tiumalu claims that a part of his land also called Filoa has been likewise included in this survey.

Tufono, Mariota and Tiumalu claim that no part of the land surveyed by Mailo belongs to the Mailo family. At the request of the Court, Tiumalu, Tufono and Mariota have designated upon the survey plan as filed, those parts of the land surveyed which are claimed by them to belong to each of them respectively and this designation shows that Tufono and Mariota claim about two-thirds of the surveyed land lying toward the west and Tiumalu claims about one-third of the surveyed land lying toward the east.

There are plantations of coconuts, bananas, taro, etc. on this land. Mailo said at one time during the trial that it was cleared of bush by all of the people of Fagatogo who were told by his father that they might do so and then plant their plantations in the cleared space.

*436At another time in his testimony he said that it was cleared by himself, Mariotas father and four young men of the Mailo family. Mailo also testified that the plantations on the land were planted by the people of Fagatogo as they had but little land of their own and that he was willing that they should do so. Neither he nor his family gathered the fruits of the plantations nor does he or the members of his family work the plantations by cultivation or otherwise.

Mariota for the Tufono family and Tiumalu for himself testified that the plantations on the parts of the surveyed land claimed by them respectively were planted by them and their families, that they are and have been cultivated by them from ancient times to the present and that they are and have been for many years enjoying the fruits of these plantations under a claim of right without objection from Mailo or anyone else. They claim that they have never seen Mailo or his family on the land in question.

As to the land leased to Otineru which is a part of the surveyed land, it appears that this part of the land was at one time leased by Tuiasosopo the father of Mariota to one Joe O’Brien. It is in evidence that the father of Mariota surveyed this land and then made the lease ,to O’Brien, later Tuiasosopo died and Mele, the mother of Mariota received the money from this lease. At this time or a little later when the lease was transferred from O’Brien to a Filipino, Mailo objected to the lease and began an action in the High Court claiming the leased land as his own and that it was a part of the land called by him Sigataupule, which land belonged, as he said, to the name Mailo.

Tufono Selusi, a “Matai” of the family of that name, objected to the claim of this land by Mailo and the case came before the High Court for trial. Before any evidence was taken in the trial of this case Tufono Selusi, the objector, stated that he did not desire to have the .trial go *437on. He admitted in open court that the land belonged to Mailo and stated that he was willing and satisfied to turn the land over to Mailo in order to preserve the friendly relations.

A decree was entered accordingly by which this court must be bound and this decree held that the title to the land leased in succession to Joe O’Brien, the Filipino and now to Otineru is in Mailo as the “Matai” of that family.

Mariota objects to the decision of the High Court in that case and states that the act of the Matai Tufono in conceding that the leased land was the property of Mailo was unauthorized by the Tufono family of which he is a member and done without the family’s consent. However that may be, that High Court case was held in the year 1924 and since that time the Tufono family have slept upon their right in the premises and it is .too late even for a Court of Equity to set that decision aside, as equity aids only the vigilant.

In reviewing all of the testimony in the present case there does not seem to be any evidence that the present or any other Mailo ever has or is now exercising any right of authority over the land called by him Sigataupule.

It was cleared by the people of Fagatogo and if Mailo helped clear it, Mariotas father, a Tufono, also helped. Mailo has no plantations on the land claimed by him at the present .time by his own admission but Tiumalu and the Tiumalu family have as has also the Tufono and the Tufono family upon those parts of the land respectively claimed by them. It would seem that with the scarcity of agricultural land in Fagatogo if Mailo owned this land he and his family would be planting plantations on it and cultivating them at the present time as the Tiumalu and Tufono families are doing.

*438Mailos only act indicating a claim of ownership in this land is the filing for registration of the small part of it leased to Otineru and the surveying of all the land now in question. He was successful in the claim of the land leased to Otineru and it will be upheld by this court but its force as evidence of the ownership of all the land now surveyed by him is seriously damaged by the testimony of Mariota who said that Tufono conceded the right to this land to Mailo against the wish and without the knowledge of the Tufono family.

The best evidence of ownership of land is the exercising by one claiming ownership of acts of authority over it. In careful review of the testimony in the case it appears that the objectors have for many years exercised acts of authority over the parts of the land respectively claimed by them. They have had in the past and are now planting and cultivating the land. A part of Mariotas house is upon it. The houses of two members of the Tufono family were formerly on it and the house of the people of Aunuu was built upon it with the consent of the Tufono family and at the time of .the making of the survey of this land by Mailo Siaki, Tiumalu was present and protested against the survey of that land which he now claims.

Mailo on the other hand appears to be in doubt as to whether he and Mariotas father and some other men cleared the land in question or whether the people of Fagatogo did, and in either event he claims that neither he nor his family work the land at the present time although he does claim that he planted coconut trees.

Under all the evidence it seems clear .that Tufono and Mariota and Tiumalu have shown acts of authority over this land sufficient to warrant the court in holding that the respective parts of the land surveyed claimed by them are in fact the lands of their respective families and not the lands of Mailo and this is the decision of the court.

*439JUDGMENT

1. That the Mailo family is the absolute owner of that part of the land surveyed which is now leased to Otineru.

2. The Tufono family is the owner of that part of the land surveyed lying westerly from the line drawn from the southernmost point of the survey and extending in a general northerly direction to the old stone wall at a point formed by the convergence of the survey lines north 15° east and north 51° west.

3. The Tiumalu family is entitled .to the ownership and is declared to be the owner of all the rest of the land surveyed by Mailo Siaki which is now in question i.e. that part of the land lying to the west of the said line referred to in Paragraph “2” above.

The court costs amounting to $50.00 will be paid as follows:—

> Mailo ................................................................ $25.00

> Tiumalu ............................................................ 12.50

> Tufono and Mariota .................................... 12.50