
    MAGEO FELISE of Pago Pago, Applicant v. FUGA SELEGA of Pago Pago and POGAI and FAAFIA of Pago Pago, Objectors
    No. 76-1963
    High Court of American Samoa Civil Jurisdiction, Trial Division [Land: “Vaitafe” in Pago Pago]
    November 19, 1963
    
      Y. G. ROEL, Associate Justice; TAUALA, Associate Judge; and LETULIGASENOA, Associate Judge.
    
    Mageo, pro se.
    
    Leota, Counsel for Fuga Selega.
    Tuaolo, Counsel for Pogai and Faafia.
   OPINION OF THE COURT

ROEL, Associate Justice.

Came on to be heard the above entitled and numbered cause wherein Applicant, Mageo Felise, filed an application with the Office of the Registrar of Titles of American Samoa to register a certain surveyed parcel of land called “Vaitafe,” containing 1.01 acres, more or less, as the communal land of the Mageo Family. Upon notice of the proposed registration of the land, objections were filed by Fuga Selega on behalf of the Fuga Family and by Pogai and Faafia, on behalf of the Taito Family.

Applicant Mageo sought to register the land in question as the communal land of the Mageo Family. Fuga objected to the registration of the land as surveyed on the ground that the land in question was the communal land of the Fuga Family. At the trial, Fuga and his counsel, Leota, stated Fuga was claiming only a part of the land within the survey, about 1k of the land involved. Pogai and Faafia objected to the registration of the land on the grounds that a portion of the land Vaitafe included in the survey was the communal family land of the Taito Family. At the trial and at the time the Court visited the site of the land involved, Pagai and Faafia, together with their counsel, Tuaolo, claimed only about 450 square feet of the land within the survey, or 1/9s or just over 1 % of the total land in question, which consists of 1.01 acres.

Previous to the time of the trial, all three judges viewed the land in question in the presence of all the parties involved, their counsel, and other witnesses.

The original survey of the land was made in February, 1962, and it was agreed that all the parties hereto were present at the time of the survey. The application to register the land was filed June 6,1963.

Mageo, the applicant, sought to prove his case by the testimony of Liufau Moelata and Mageo himself. The testimony of Liufau was so confused, unsubstantiated and irrelevant that, for all practical purposes, we are discounting his whole testimony in arriving at the decision in this case.

Mageo himself testified that his claim to the land in question as the communal land of the Mageo Family was based on the fact that Mageo people had occupied, cleared and used the land from time immemorial to the present. He testified that he was personally familiar with the land for a long time since he had been born there in 1910. Mageo testified Fuga’s claim to a portion of the land within the survey had no merit whatsoever. He also testified that the claim asserted by Pogai and Faafia on behalf of the Taito Family was unfounded and incorrect. Mageo testified that the Mageo Family claimed from the sea to the summit when they came to live in Pago Pago. He further testified that around the year 1820 or 1830 Mageo gave a parcel of land to Taito and that said land is adjacent to the southeast of the land in question, between the second and the third points of the plat of the survey, but that no Taito land was included within the survey.

Mageo further testified that Mageo had given a portion of land to Mauga for the use of Fuga around 1850 to the northeast of the second point in the survey, the same being the land where the church house is presently situated. Mageo testified that the Mageo Family first occupied the land in question before 1700 and cleared all the land included within the survey, including the portions claimed by Fuga and Taito, between 1800 and 1900.

Mageo introduced, and the Court received without objection, three instruments into evidence. Exhibit No. 1 related to an agreement separating a dwelling house from land between Mageo M. and Sifoa Loa. The agreement was dated July 31, 1959 and recorded in Register of Mise., Yol. 4, p. 122 on August 21, 1959. It confirmed that the Mageo Family was the owner of the land “Vaitulu” where Sifoa Loa was to erect a building. Mageo testified the building referred to is the same where Spencer’s store is located, within the surveyed parcel of land. Applicant’s Exhibit No. 2 consisted of the plat of the survey as filed with the application in the Court. Said plat was marked with pencil marks during the trial by Fuga and Pogai, respectively, to indicate the amount of land they were each claiming. Exhibit No. 3 was a property separation agreement between Maamoto and Mageo Felise, dated August 1, 1961. It recited that the Mageo Family was the owner of the land “Vaitafe” where Maamoto was to erect a building. The Maamoto store building is situated within the survey filed by Mageo.

In response to a question from Leota on cross-examination, Mageo testified that in 1946 Fuga Gafoa surveyed and registered the land where the church is presently situated and only that part. Mageo further answered that Fuga’s guest house was on the land where the church building now stands. Mageo testified that not a single Fuga had lived within the surveyed land. He further testified that Taito houses situated east of the survey are in Taito Family land, originally given to Taito by Mageo Veevalu. Mageo testified that all the land bordering outside of the survey from the third point of the survey to the creek was Taito Family land. In answer to a question by Tuaolo, Mageo testified that Fuga and Taito were related.

Counsel for Fuga, Leota, based his case on the testimony of Fuga Selega, 63 years old, and Lago, 76 years old. Fuga claimed that the portion of the land within the survey as marked by a pencil line was the communal land of the Fuga Family. Fuga testified that the whole area claimed was the residential place of the Fugas, even though he stated that he himself lived further down on Fagasa road. Fuga testified that the name of the land in question was Fusi instead of Vaitafe. Fuga further testified that the land where the church is situated was registered by Fuga in 1955, together with the pastor of the church. It later developed that Fuga was referring to a lease in 1955 and not the registration of the land. Fuga testified that there had been 10 Fugas and that they had all lived on the land in question.

On cross-examination by Tuaolo, Fuga testified that Ioane, Akenese, Tamato, Lia, and Manu had at different times lived on the land within the survey and that all of these persons belonged to the Mageo Family. Later Fuga testified that these people lived within the survey, but not in the portion which he was claiming within the survey. Fuga testified that Fuga Gafoa had registered the land on which the church stands and not the portion within the survey he claims because of Gafoa’s great intelligence — that he wanted to leave the unsurveyed land for the family. Fuga testified that the Fuga and Taito families were one family from the beginning and that there had never been any difficulty between the Taito and Fuga chiefs. He further testified that one of the oblong houses of a previous Fuga was near to where Sifoa’s building is presently located, and that Fuga Gafoa and his wife had lived on the land within the survey. Fuga testified that Fuga people cleaned the portion of the land within the survey which Fuga is claiming and that Fuga had had possession of the portion claimed for 63 years.

Lago, witness for Fuga, testified that the portion of the land within the survey claimed by Fuga, from the church to Meamoto’s and Sifoa’s house, was occupied by Fuga people. Lago said that the whole land within the survey was Mageo land except that part claimed by Fuga. Lago claimed that he was related to both Fuga and Mageo.

Tuaolo, Counsel for Pogai and Faafia, attempted to build his case upon the testimony of Pogai, 57 years old. Pogai testified that a very small portion of the land within the survey was the communal land of the Taito Family; a small triangle formed by drawing a line from the third point in the survey, 15 feet to the northwest and from there a straight line back north to the second point of the survey, the whole portion claimed by Pogai amounting to about 457 square feet.

Pogai testified that the basis for claiming this small portion out of the survey was possession and occupation by former Taitos. She testified that her present residence adjoined the surveyed land, that Taito had cleared the land from the virgin bush around 1800. Pogai testified that the land where the church house is situated was given to Fuga for his guest house, and that her father, Taito, had agreed that the lease for the church house (outside the survey) be made in the name of Fuga; that Fuga was living in Taito land because Fuga had no land of his own in the area because Fuga was from Upolu, and that the only land given to Fuga was the small piece occupied by the church. Pogai testified that Fuga and Taito people were no.t related and neither did they do things together, Pogai testified that Taito and not Mageo had given the land where the church is to Fuga. She further testified that the land where the church stands was surveyed by Fuga before it was leased, and that Fuga and Taito property were adjacent. Pogai testified that, except for the small portion within the survey claimed by Taito, all the land within the survey, including that claimed by Fuga, belonged to the Mageo Family. She further testified that the portion claimed by Fuga was cultivated by Mageo people. Pogai testified that there have been only four Fugas and not 10 as claimed by Fuga.

On cross-examination by Leota, Pogai testified that Fuga’s children’s house was next to Pogai’s house (outside of the survey) and that Taito and Fuga took care of the land together, but Pogai insisted that Taito and Fuga were not one family. When asked if Taito was related to Mageo, Pogai answered “yes,” that they were related by blood. When asked who cleaned the area claimed by Fuga, Pogai answered that Mageo children did, and continued to say that Mageo and Fuga people lived about the same distance from the area.

Pogai testified that the name of the land in question was Vaitafe, meaning “close to the stream,” and that the general name of the whole area was Fusi. Pogai testified that Taito permitted Fuga to put up a house on Taito land; that previous Fugas resided on the land where the church is; that Taito allowed Fuga people to build on Taito land because Fuga had no land in Pago Pago; that when Fuga Gafoa died, Taito gave permission to have Fuga’s body in Taito’s house because Fuga did not have a guest house any longer.

In his closing argument, Mageo insisted that all the land within the survey offered for registration was the communal land of the Mageo Family, and that his application to register the land should be granted. Mageo argued that Fuga’s claim to part of the land within the survey had no merit, and that all of Fuga’s testimony was based on lies. Mageo argued .that Mageo people cultivated that part of the land claimed by Fuga since before 1900. Mageo argued that Fuga’s claim to part of the land within the survey had no merit, and that all of Fuga’s testimony was based on lies. Mageo argued that Mageo people cultivated that part of the land claimed by Fuga since before 1900. Mageo argued that Fuga had no land in Pago Pago, except that given him by Mageo, which was limited to the land where the church stands. Mageo argued that in 1946 Fuga Gafoa surveyed and registered the land where the church stands; that Fuga Gafoa did not include any of the land now in question in his survey in 1946 because he knew .that the land now in question was Mageo land and not Fuga land; that Fuga Gafoa was a very just and truthful man and that is why he only surveyed the land he owned.

Mageo argued that the claim of Pogai and Faafia to the very small portion of land within the survey was unfounded and was a mistake on their part, perhaps because Taito never pointed out the boundary between Mageo and Taito land to his children. Mageo argued that at the time of the survey of the land in question, in February, 1962, there was no objection to the survey, even though all .the parties involved herein were present. Mageo made reference to the documentary evidence introduced in his behalf in the form of Exhibits 1,2 and 3.

Leota, counsel for Fuga, argued that the portion of land claimed by Fuga was indeed Fuga land; that Fuga people had cleared the land from the virgin bush and had occupied it and cared for it without objection. Leota argued that Mageo’s testimony was all hearsay and that Mageo did not know what he was talking about. Leota argued that Meamoto’s house was entirely in Mageo land, and that Sifoa’s building was also entirely in Mageo land except for a very small part that extended into the part of the land claimed by Fuga. Leota argued that Mageo Meaele and Mageo Felise contradicted each other in Exhibits 1 and 3 as to the name of the land in question, one calling it “Vaitulu” and the other one calling it “Vaitafe.”

Leota argued that Fuga had testified that in the past there was an oblong house and a cooking house belonging to Fuga in the portion now claimed by Fuga, and that Fuga was entitled to the portion claimed because Fuga had used it for 100 years. Leota further argued that Fuga and Taito were one and the same family. Leota stated that it was general knowledge that Mageo owned the land in question, except for the portion claimed by Fuga.

Tuaolo, counsel for Pogai and Faafia, argued that a very small portion of Taito land is included within the survey; that perhaps because of the change in the land and his absence from Pago Pago, Mageo may have forgotten the boundaries between Taito and Mageo land. Tuaolo argued that Fuga people had not occupied the land Fuga claimed, contrary to Fuga’s testimony; that Fuga was allowed on Taito land by permission of Taito. Tuaolo argued that the first Fuga, Va’amua, abandoned the land given to him where the church presently stands, and that Taito sent to Western Samoa for Fuga Gafoa to come and hold the Fuga title.

After considering the testimony and the evidence, including exhibits, and the arguments of counsel, the Court is of the unanimous opinion that objector Fuga failed to prove his right to that portion of the land within the survey, and outlined in pencil, claimed as the communal land of the Fuga Family. Fuga’s testimony and evidence as to his claim was not at all persuasive or substantiated. Both Mageo and Pogai testified that the only Fuga land in the area of Pago Pago was where the church house was presently situated and as surveyed and registered by Fuga Gafoa in 1946. It appears to the Court that if Fuga in fact had more land adjacent to that where the church is, said land would have been surveyed and registered at the same time Fuga Gafoa made the survey in 1946, alleged in the testimony. If Fuga and Taito are one family as argued by counsel for Fuga, it would appear to the Court that Pogai would have substantiated or corroborated Fuga’s claim. However, Pogai testified that all the land within the survey, including the portion claimed by Fuga, was Mageo land, with the exception of the very small portion claimed to be Taito land. Pogai also testified that Mageo people had cultivated the portion claimed by Fuga, and Pogai lives immediately adjacent to the land.in question. There was no evidence on the part of Fuga that there was any objection to the survey of the land in question when it was made in February, 1962 although Fuga people were present at the time of the survey. We are of the opinion that Fuga has no rightful claim and that the portion of the land he claims as Fuga land within the survey is in fact Mageo land.

The Court is also of the unanimous opinion that the claim of Pogai and Faafia to the small portion of the land within the survey should be denied. They are claiming as Taito Family land about 450 square feet out of the whole survey consisting of 1.01 acres. 1.01 acres is the equivalent of 43,995 square feet, so that Pogai and Faafia are claiming about 1b8 of the land within the survey, or slightly more than 1%, or a plot of land approximately 21 feet square in the shape of a long, narrow triangle. There was no concrete evidence that this small portion was part of a larger tract continuously occupied or originally cleared from .the virgin bush. Neither was there any evidence that there was any objection by any of the Taito people at the time the land was surveyed by Mageo in February, 1962, even though Taito people were present. If by any stretch of the evidence or imagination the Court were to allow the claim by Taito, the only way the land in the survey could be registered would be for Mageo and Taito to file separate surveys. In that case, Taito would have to submit a survey of the 450 square feet triangle of land. However, the Court is satisfied from the evidence that Pogai and Faafia have no rightful claim to the very small portion within the survey which they claim, and that said small portion as well as the rest of the land within the survey is Mageo land.

The Court is of the unanimous opinion that the application filed by Mageo Felise .to register the land within the survey as the communal land of the Mageo Family should be granted, and that said registration should be ordered. We are satisfied from the evidence of Mageo and even Pogai that the whole area within the survey has been under the use, control and cultivation of the Mageo Family for a long time. There was no question by either of the two objectors as to the ownership of the greatest portion of the land by the Mageo Family. Due notice was given to the parties affected at the time of the original survey in February, 1962, and no objection to the inclusion of any part of the land was made. Exhibits 1 and 3 left no doubt but that the greatest part of the land is Mageo land. Even Pogai, one of the objectors, testified that all .the land within the survey was Mageo land, except for the 450 square feet she claimed for Taito. The great majority of people mentioned by name as having occupied the portions involved were Mageo people according to all the parties. We are of the opinion that all the land within the survey is Mageo Family land.

In conclusion, it is the unanimous decision of this Court, and it is hereby ORDERED, ADJUDGED AND DECREED by the Court as follows:

1. That the application filed by Mageo Felise to register the land Vaitafe within the survey, consisting of 1.01 acres, more or less, as the communal land of the Mageo Family be and the same is hereby granted, and that the said land be registered in the Office of the Registrar of Titles as the communal land of the Mageo Family.

2. That the claim filed by the objector, Fuga, be and the same is hereby disallowed and denied.

3. That the claim filed by the objectors, Pogai and Faafia, on behalf of Taito, be and the same is hereby disallowed and denied.

4. Court costs in the amount of $37.50 to be paid within 30 days as follows: $18.75 by objector Fuga and $18.75 by objectors Pogai and Faafia.  