7ASR3d250

Series: 7ASR3d | Year: () | 7ASR3d250
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SALAI VAOGA and

MUSI MOALELE, Plaintiffs,

 

v.

 

WILLIE

WONG, Defendant.

 

 

High

Court of American Samoa

Land

and Titles Division

 

LT

No. 18-02

 

June

9, 2003

 

 

[1] An oral

agreement of the sale and purchase of land is not valid under A.S.C.A. §

37.0211.

 

[2] An easement

of necessity over other tracts of land can be granted only if the facts reveal

that the subject of the grant is an inaccessible land-locked parcel of

land. 

 

[3] Easement of

necessity doctrine does not apply where the person seeking an easement has by

choice created the very obstructions on their own land that create the need for

an easement.

 

[4] Sometimes

referred to as the executed-parol-license doctrine, the creation of a servitude

by estoppel arises where an owner of land permits another to use the land under

circumstances in which it was reasonable to foresee that the user would

substantially change position believing that the permission would not be

revoked, and the user did substantially change position in reasonable reliance

on that belief.

 

[5] Under the

servitude by estoppel rule, a landowner may be estopped to deny the existence

of a servitude burdening the land only if the establishment of the servitude is

necessary to avoid an injustice.

 

[6] In applying

the servitude by estoppel rule, courts should be careful not to penalize

persons who engage in neighborly acts of courtesy and cooperation by permitting

others to use their land.

 

Before KRUSE,

Chief Justice, LOGOAI, Chief Associate Judge, and ATIULAGI, Associate Judge.

 

Counsel:          For Plaintiffs, S. Salanoa Aumoeualogo

For

Defendant, David P. Vargas

 

OPINION

AND ORDER

 

In June 1988,

the defendant Willie Wong and his late wife Mafa conveyed, by warranty deed, a

small portion of their land in Ottoville to the plaintiff Salai Vaoga and her

late husband Asuelu.  The conveyance

comprised 0.088 acres, more or less, and the deed is recorded with the

Territorial Registrar in Land Transfers, Volume 5, at pages 202-203.

           

In April 2002,

the defendant erected a rock wall west of the plaintiff’s boundary line with

the obvious purpose of preventing the latter’s encroachment.  Before the rock wall was built, plaintiff was

using an area of defendant’s adjacent land for a cook-house, to partially

locate the base for a set of concrete steps to her front door, and to

facilitate the parking of vehicles next to her home.  After the rock wall was built, plaintiff

instituted these proceedings.  She seeks

to have the rock wall removed and to require the defendant to convey her an additional

area of his adjacent land lying westward to her parcel.

 

Plaintiff’s

theories are threefold and framed in the alternative: the first is an oral

agreement between Mafa Wong and her late husband Asuelu for the sale and

purchase of additional land (now encumbered by the rock wall); the second is an

easement of necessity; and the third is the claim to an established irrevocable

license.

 

1. Oral

Agreement

 

[1]

Plaintiff in her written final argument appears to have abandoned her first

theory as it was not further addressed and argued.  In any event, an oral agreement of the sale

and purchase of land is “not valid.”  See

A.S.C.A. § 37.0211.[1]  The very obvious aim of this enactment is to

address the potential for mischief that can be wrought with fact scenarios such

as that before us–an oral contract for the sale and purchase of land, without

specific details, alleged to have been concluded between two dead parties.

 

2. Easement

of Necessity

 

[2]

As to plaintiff’s second theory, an easement of necessity is only viable if the

facts reveal that the subject of the grant is an inaccessible land-locked

parcel of land.  See Sese v. Leota,

9 A.S.R.2d 25, 30 (Land & Titles Div. 1998) (“Where a subdivided piece of

land is found to be without access to a road, an easement arises by implication

over the other part or parts of the land subdivided, if such easement is

strictly necessary for the beneficial use of the tract sold.”).  In addition to the evidence taken in-court,

the Judges had the benefit of a site visit as well. From the evidence and from

firsthand observation at the site, we find that the plaintiff’s parcel of land

is not land-locked.  There is unobstructed

access to plaintiff’s land.  Her problem

is that her small lot is substantially blanketed by her home, which has quite

obviously been extended over time.  There

is very little room left for anything else that might be done on her land, let

alone provide parking space.  Indeed, the

steps leading up to her home’s front entrance actually encroaches on

defendant’s land.  Moreover, the only

natural entry-point for ingress onto plaintiff’s parcel from the access road is

blocked by her late husband’s concrete tomb. 

Thus, what is really being sought here is not an easement of necessity,

but an easement of convenience.  In

short, plaintiff desires more land from the defendant so that she and her

invitees can park vehicles right next to her house, albeit outside her boundary

line.

 

[3]

But the dimensions of plaintiff’s house, and the location of her husband’s tomb

were not of the defendant’s doing.  We

fail to see how it is that plaintiff’s choices, as to what is done on her land,

may somehow then give rise to a dominant/servient tenement relationship between

her parcel and her grantor’s remaining land. 

The implied easement of necessity doctrine simply does not apply on the

facts before us.

 

3. Irrevocable

License

 

[4-6]

The theory here seems to be equity based, suggesting the creation of a servitude

by estoppel.  Sometimes referred to as

the executed-parol-license doctrine, the creation of a servitude by estoppel

arises where an:

 

owner

[of land] permit[s] another to use that land under circumstances in which it

was reasonable to foresee that the user would substantially change position

believing that the permission would not be revoked, and the user did

substantially change position in reasonable reliance on that belief.

 

Restatement (Third) of Property § 2.10(1)

(2000).  Under this rule, a landowner may

be estopped to deny the existence of a servitude burdening the land only if the

establishment of the servitude is necessary to avoid an injustice.  See id. at Comment e.  But at the same time, “courts should be

careful not to penalize persons who engage in neighborly acts of courtesy and

cooperation by permitting others to use their land.”  Id.

 

Plaintiff

contends that she acquired some sort of irrevocable license to use defendant’s

adjacent land, based on her past use of his land to locate an umukuka (cook-house),

plant a line of coconut trees and a breadfruit tree, as well as her belief that

the defendant would at some future time sell her more land.  Additionally, she argues that her family had

expended a great deal of money on improvements to the area, including leveling,

carting in loads of cinders, and laying down old purse-seiner fish netting to

check erosion.

 

We confirm from

our site visit that the leveling, cinder filling, and laying of fish netting as

claimed by plaintiff and her family were very evidently related to the actual

defined access way that traverses over defendant’s land from the public roadway

toward plaintiff’s parcel.  But

plaintiff’s use of this defined access way is not at issue nor contested by the

defendant.

 

Apparently,

what plaintiff appears to be canvassing is the novel idea that improvements to

the access way can somehow be extended as grounds to burden an adjacent area of

the grantor’s land beyond the access way, There is no basis in law or equity

for this remarkable contention. Alternatively, if plaintiff is arguing that her

setting up of the umukuka and her planting of a breadfruit as well as a

few coconut trees qualifies as a “substantial change in position” to invoke the

servitude by estoppel rule, she is sorely stretching the limits of credulity.

 

Judgment must

enter in favor of the defendant.

 

It is so

ordered.

 

**********



[1] The enactment reads in relevant part:

No agreement for

the sale of real property or of any interest therein is valid unless the same,

or some note or memorandum  thereof, be

in writing and subscribed by the party to be charged or his agent thereunto

authorized in writing . . . .