
    TALANOA ESEKIA of Faleniu, Plaintiff v. SESERA BROWN of Malaeimi, Defendant
    No. 19-1957
    High Court of American Samoa Civil Jurisdiction, Trial Division
    December 27, 1957
    Heard at Fagatogo on December 10, 1957
    before MORROW, Chief Judge and APE and MALEPEAI, Associate Judges.
    
    Filoileolo, counsel for Talanoa Esekia.
    Aumoeualogo, counsel for Sesera Brown.
   OPINION AND ORDER DISMISSING PETITION

OPINION OF THE COURT

MORROW, Chief Judge.

Talanoa Esekia filed his petition praying for an injunction requiring Sesera Brown to remove Brown’s plantations from certain land in the Faleniu-Malaeimi area in Tualauta County. Prior to the hearing the Court viewed the land and plantations involved in the presence of the parties. Plaintiff Talanoa claims that he cleared the land on which the plantations are located from the bush in 1932 and that soon after such clearing he put in various kinds of plantations and that he continued to have plantations on the land until the latter part of August 1957 when the defendant entered upon it and (presumably after destroying plaintiff’s plantations) put in his own plantations. Defendant Brown claims that he and his workmen cleared the land involved from the original bush from April 1945 and that while the trees from the bush were still lying on the ground, he authorized Talagu, a Faleniu woman, to enter upon it and put in her plantations which she did; that Brown’s cows had damaged Talagu’s plantations in another area and to prevent her from suing him for the damage done by his cows, he agreed with her that she should enter the land and put in her plantations. Brown further claims that later Talagu permitted him to put in his plantations (the removal of which plaintiff seeks) on a part of the land in return for his cleaning the other plantations which she has on the land.

Plaintiff Talanoa is 44 years old. He testified that he cut the big trees on the land involved in 1932 and that he had plantations on it from 1932 to August 1957 when defendant entered upon the land and put in his plantations. In 1932 Talanoa was only 19 years old yet he testified that his wife and her brother cut the trees in 1932. Then he changed his testimony saying that his wife helped him cut the big trees after they were married in 1939. He also testified that he started planting coconuts on the land in 1934 and later he testified “I started planting coconuts in 1945.” None of the coconut trees which the Court saw when it viewed the area in dispute are bearing which fact shows that they were planted much later than the plaintiff says he planted them.

Filoileolo, a witness for plaintiff Talanoa, testified that Talanoa cut the big trees on the area in dispute in 1932 and put in plantations that year and that he had continued to have his plantations thereon up to 1957 when defendant Brown entered and put in his plantations. Witness Filoileolo and Talanoa are both married to Moeai women of Faleniu.

Sesela testified that he and his workmen cleared the land in which his plantations are from the original bush about April 1945 and that while the big trees were still on the ground he authorized Talagu to enter and put in plantations in another area by his cows; that after Talagu had put in her plantations she authorized him (Brown) to put in plantations on part of the area in return for his cleaning her other plantations; and that the plantations which she authorized him to put in in the disputed area are those which the plaintiff seeks to have removed. Brown testified that he first put in taro plantations on the area in 1949 and that he planted some coconuts in 1951 and some cocoa in 1953.

The coconut trees Which the Court saw in the area in dispute were obviously not planted when Talanoa says he planted them, but in view of their height and the fact that they are not bearing, it was apparent to the Court when it viewed the plantations that the coconuts must have been planted about the time Brown testified he planted them. The cocoa trees are of a size to indicate that they were planted about the time Brown testified he planted them. Talanoa testified he started planting cocoa as early as 1933. Obviously none of the cocoa trees the Court saw in the disputed area were planted 24 years ago.

Tuiaana, a Faleniu chief who has plantations near those which are the subject of this litigation and who has been familiar with the land on which they are located, testified that it was defendant Browñ who cut the big trees on the land. Tuiaana testified further that plaintiff Talanoa did have plantations in another area, but that Brown did not enter upon it: and that Talanoa has never had any plantations in the place in which Brown has his plantations which plaintiff Talanoa seeks to have removed.

Talagu, a witness called by the Court, testified that it was Brown who cut the big trees in the disputed area from which Talanoa seeks to have Brown’s plantations removed. She also .testified that after Brown cut the trees he authorized her to enter upon the land and put in plantations because his cows had damaged her plantations elsewhere. And that later she authorized him to put in the plantations on the part of the area from which Talanoa seeks to have them removed. Her testimony indicated that it was Brown who planted coconuts and cocoa trees in the area with her permission and that it was not Talanoa. Talagu is not an aiga of Brown.

The Court is of the opinion that the evidence preponderates in favor of defendant Brown. We base our opinion not only upon the testimony of the witnesses but also upon what we saw when we viewed plantations involved in the presence of the parties.

ORDER

In accordance with the foregoing opinion it is ORDERED that the plaintiff’s petition be and the same is hereby dismissed.

Costs in the sum of $12.50 are hereby assessed against plaintiff Talanoa Esekia, the same to be paid within 30 days.  