GI MALALA and PULU TALALOTU
(for the Mauga family and Gi family), Plaintiffs,
AMERICAN SAMOA GOVERNMENT, Defendant.
Court of American Samoa
and Titles Division
 To refute a
claim of easement by prescription, a party must establish that they positively
gave permission for such use of the land.
 Altering a
prescriptive easement is not permitted where it increases the burden on the
 With regard
to prescriptive easements, an increase in the amount of traffic on a roadway
(or people on a sidewalk) is not considered an increased burden.
 A right of
way by prescription is bounded by reasonable enjoyment, but it carries with it
such incidents as are necessary for that reasonable enjoyment.
 A sidewalk
adjacent to a roadway is an incident necessary to the reasonable enjoyment of
the roadway easement in that it provides a safe walkway for pedestrians using
that right of way.
 Although normal procedure was to stay proceedings
pending administrative decision, where plaintiff modified request for
injunctive relief, seeking instead the removal of a constructed sidewalk, such
modification required full consideration of the property rights of the parties
for both preliminary and permanent injunction purposes and rendered the case
ripe for trial. Court properly
considered case at that point, and would have done the parties a disservice had
it delayed further.
Before RICHMOND, Associate Justice, and LOGOAI, Chief
Counsel: For Plaintiffs, Marshall Ashley and Jeffrey
For Defendant, Fiti A. Sunia, Acting Attorney
General, and Tala Uiagalelei, Assistant Attorney General
DENYING MOTION FOR
OR NEW TRIAL
Plaintiffs have moved for reconsideration or a new
trial with respect to the Court’s Opinion and Order rendered on October 17,
2001. Plaintiffs submitted a memorandum
of points and authorities; defendant did not. The Court heard oral arguments on
November 16, 2001. The motion will be
denied, based on the following discussion.
1. Apparently, plaintiffs and defendant are confused
over the significance of the level of permission, or acquiescence, plaintiffs
granted for use of the land in question. Plaintiffs have made much ado about
the lack of permission, or mere acquiescence, granted, while defendant has
argued that permission was actively given or clearly implied. Neither party clearly recognized that a lack
of permission would strengthen defendant’s position—and our holding—that use of
the roadbed beyond the original condemnation has resulted in a prescriptive
plaintiffs’ first point of argument, we did not hold that the owners of Gagamoe
dedicated their lands. We held that the
roadbed was originally taken by condemnation.
To the extent this use has been altered or broadened, the land has been
taken by prescription. We cited Swift
v. Kniffen, 706 P.2d 296, 301 (Alaska 1985), for the proposition that
plaintiffs cannot refute this taking by showing acquiescence—plaintiffs must
establish they positively gave permission to refute prescription. Counsel has missed the point by reversing our
use of Swift.
Plaintiffs have argued that we erred in finding the sidewalk was a
reasonable alteration of a previously established right of use.
a prescriptive easement is not permitted where it increases the burden on the
servient estate. However, an increase in
the amount of traffic on a roadway (or people on a sidewalk) is not an
increased burden. See 25 Am. Jur. 2d Easements and
Licenses § 931 cases at n.39 (1996). An alteration which affects a
change not in the kind of use, but merely in the degree of use, is not an
increased burden. Id. at § 96.
[4-5] The sides of the roadway in this
case have been used as a walking thoroughfare long enough to establish a
prescriptive right of use. Whether use of the exact location of all parts of
these walkways was acquired as part of the original condemnation, by
prescription, or by other means, the use of the sides of the road as a walkway
has been established. A right of way by
prescription is bounded by reasonable enjoyment, but it carries with it such
incidents as are necessary for that reasonable enjoyment. Id. at § 93. Surely, a sidewalk that provides safety for
the people using this walkway is an incident necessary to reasonable
enjoyment. Lack of safety where safety
can be provided is unreasonable.
 3. Plaintiffs have raised procedural challenges
to our decision. Plaintiffs argue that
the proper immediate remedy for the lack of a Certificate of Irreconcilable
Dispute from the Secretary of Samoan Affairs would be a stay of proceedings
until completion of the dispute resolution process before the Secretary. This step is ordinarily utilized in such
However, plaintiffs’ original request
for injunctive relief preventing construction of the sidewalk was followed, at
the time of the hearing on the application for a preliminary injunction, by
their request for removal of the sidewalk.
This modification required full consideration of the property rights
involved for both preliminary and permanent injunction purposes. The issue was ripe for trial. Appropriately, we consolidated the
preliminary injunction hearing with the trial, and received evidence that fully
developed the property rights issue.
Based on the evidence presented, we determined the
property rights issue in defendant’s favor.
As a result, plaintiffs failed to establish entitlement to the relief
they sought for purposes of both a preliminary injunction and ultimate
disposition. The posture of the case
called for a final decision by dismissal on the substantive ground of
defendant’s property interests. See, e.g., Sialega Family v. Tui, LT No. 19-87, slip op. (Land & Titles Div. Aug. 4,
1987). Waiting, at this point, for an
administrative certificate would have been a disservice to all parties involved
as an unnecessary delay.
Plaintiffs’ motion for reconsideration or new trial is
It is so ordered.