5ASR3d259

Series: 5ASR3d | Year: () | 5ASR3d259
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GI MALALA and PULU TALALOTU

(for the Mauga family and Gi family), Plaintiffs,

 

v.

 

AMERICAN SAMOA GOVERNMENT, Defendant.

 

High

Court of American Samoa

Land

and Titles Division

 

LT

No. 10-01

 

November

29, 2001

 

 

[1] To refute a

claim of easement by prescription, a party must establish that they positively

gave permission for such use of the land.

 

[2] Altering a

prescriptive easement is not permitted where it increases the burden on the

servient estate.

 

[3] 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.

 

[4] 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.

 

[5] 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. 

 

[6] 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

Associate Judge.

 

Counsel: For Plaintiffs, Marshall Ashley and Jeffrey

Waller

 For Defendant, Fiti A. Sunia, Acting Attorney

General, and Tala Uiagalelei, Assistant Attorney General

 

ORDER

DENYING MOTION FOR

RECONSIDERATION

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.

 

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

easement.

 

[1] Concerning

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.

 

2. 

Plaintiffs have argued that we erred in finding the sidewalk was a

reasonable alteration of a previously established right of use.

 

[2-3] Altering

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.

 

[6] 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

situations.

 

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.

 

Order

 

Plaintiffs’ motion for reconsideration or new trial is

denied.

 

It is so ordered.