TUIA, for himself and Members of the TUANA`ITAU FAMILY,
NU`U LEOMITI and Members of the
LEOMITI FAMILY, Defendants/Counterclaimants/
TOLUAO SEUTA`ATIA and Members of the TOLUAO
FILIPELE LEIU LEOMITI, for himself as
Senior Matai and on behalf of the LEOMITI FAMILY, Plaintiffs,
SEUTAATIA TOLUAO, Defendant.
MINA THOMPSON and MOANANU VA, for
and on behalf of the MOANANU FAMILY,
Court of American Samoa
 Where surveyor’s testimony depicted surveyed plots as different areas
of land, court nonetheless determined that the same land was at issue and did
so based upon the facts that boundary configurations were nearly identical,
that plots were of substantially the same acreage and, most importantly, the
underlying facts and issues determined in prior litigation showed them to be
Before RICHMOND, Associate Justice,
and ATIULAGI, Associate Judge.
Defendants/Counterclaimants/Cross-Claimants Nu`u Leomiti, and Leomiti Family,
and Plaintiffs Filipele Leiu Leomiti and Leomiti Family, Arthur Ripley, Jr.
Plaintiffs/Counterdefendants Tuana`itau Tuia and Tuana`itau Family, and
Cross-Defendant/Defendant Seutaatia Toluao and Cross-Defendants Toluao Family,
S. Salanoa Aumoeualogo
For Intervenors/Objectors Mina Thompson,
Moananu Va, and Moananu Family, Katopau T. Ainu`u
OPINION AND ORDER
In Toluao v. Haleck, LT No. 40-80, slip op. (Land & Titles
Div. Apr. 13, 1983) (“LT No. 40-80”), this Court divided a surveyed plot of
land into three separate parcels, each parcel owned by a distinct family as
communal land. Determination of the exact location of the
communal land awarded to the three families is at the essence of the present
On April 10, 1995, Plaintiffs Filipele Leiu Leomiti (“Filipele”) and
Leomiti Family (“Leomiti family”) filed LT No. 19-95 against Defendant
Seutaatia Toluao (“Toluao”) for declaration of the land determined to be the
Leomiti family’s communal land in LT No. 40-80.
On December 17, 1998, P1aintiffs Tuana`itau Tuia (“Tuana`itau”) and
Tuana`itau Family (“Tuana`itau family”) filed LT No. 19-98 against Defendants
Nu`u Leomiti (“Nu`u”) and Leomiti Family to enjoin them from trespassing on the
land determined to be the Tuana`itau family’s communal land in LT No.
40-80. On January 27, 1999, Nu`u and the
Leomiti family counterclaimed to enjoin Tuana`itau and the Tuana`itau family
from trespassing on the land determined to be the Leomiti family’s communal
land in LT No. 40-80. On February 26,
1999, the cross-claim of Nu`u and the Leomiti family was filed, joining Toluao and
the Toluao family as parties.
Additionally, on February 26, 1999, LT No. 19-95 and
LT No. 19-98 were consolidated. On June
11, 1999, the intervention of Intervenors Mina Thompson (“Thompson”), Moananu
Va (“Moananu”), and Moananu Family (“Moananu family”) was authorized.
Several pretrial orders were issued to maintain the
peace among the parties and to facilitate survey retracing of the land each
family claims to own as a result of the decision in LT No. 40-80.
After numerous continuances, trial took place during
portions of nine days, beginning on February 13, 2003 and concluding on March
1, 2003. Counsel and representatives of the Leomiti, Tuana`itau, Toluao, and
Monananu families were present throughout the trial proceedings.
Location of the Land at Issue
All parties to this action presently recognize
“Lemauga” as the name of the land at issue (“the land”) in LT No. 40-80. The land is located in the vicinity of a
mountain ridge, having an elevation of approximately 1,183 feet at its highest
point. The village center of Pava`ia`i
lies in the plain below the southeast side of the ridge. The village center of A`oloau lies atop the
higher mountain to the northwest of the ridge.
The exact location of the land was the subject of extended
technical and detailed testimony of Lawrence P. French (“French”), an expert
professional surveyor, taken during the Leomiti family’s case-in-chief and in
rebuttal. French opined that the survey
of approximately 13.5 acres of the land in evidence in the LT No. 40-80
decision actually contained approximately 13.62 acres (“Plot A”) and was
located mostly on the westerly slope of the ridge. French further opined that the subsequent
survey of approximately 1774 acres in evidence in the sequel decision to LT No.
40-80 placed the 17.74 acres mostly on the easterly slope of the ridge. See generally Leomiti v. Toluao, 11
A.S.R.2d 49 (Land & Titles Div. 1989) (“LT No. 35-82/LT No. 10-83”). Discussed in detail below, as a result of the
decision in LT No. 35-82/LT No. 10-83, the 17.74 acre parcel became
approximately 13.66 acres, adjusted to approximately 13.574 acres (“Plot B”).
French pointed out numerous significant errors and, in his opinion,
unprofessional work in the preparation of the surveys used in LT No. 40-80 and
LT No. 35-82/LT No. 10-83. He also depicted his retrace of both surveys
in several single exhibits. Two of them,
Exhibits No. 7 and No. 8, showed the relative locations of Plot A and Plot B
(together “the plots”), based on French’s survey work before trial. Exhibit No. 7 shows the plots without land
elevation contour lines. Exhibit No. 8
shows the plots with contour lines. The
third one, Exhibit No. 40, shows refined locations of the contoured plots,
based on additional information acquired by French during the trial.
 French has produced the most accurate depictions of
the surveyed locations of Plot A and Plot B.
However, for the reasons discussed below, we find that the plots are the
same area of land. Being within the
correctly located survey presented in LT No. 35-82/LT No. 10-83, Plot B is in
reality the land divided by the Court in LT No. 40-80.
First, significant physical characteristics support this finding. The
boundary configurations of Plot A and Plot B are substantially identical. The
two plots also contain approximately the same acreage. Plot A contains approximately 13.62
acres. Plot B contains approximately
13.574 acres. Next, and most important,
the underlying facts and the issues determined in the prior related litigation
fully support this finding. These facts include, but are not limited to: the
relative location of the land to a construction cinder site, the gross location
of the 1995 Leomiti survey land registration, and the adjudicated land
ownership of the westerly slope of the ridge.
In the following discussion, Plot B refers to the land.
B. LT No. 40-80
The Court decided LT No. 40-80 on April 13, 1983. In LT No. 40-80, Sasagi Toluao Vaofusi
commenced the action to permanently enjoin Otto V. Haleck (“Haleck”) from
trespassing on her family’s communal land.
By counterclaim, intervention, and other pretrial proceedings, the
Leomiti, Tuana`itau, and Toluao families, all of Pava`ia`i, properly became
represented parties. The Court held that
the entire parcel was communal land of the three families. Based on the Haleck survey offered for
registration and then in evidence, the Court divided the approximately 13.5
acres into three parts—about two acres at the southwesterly end to the Toluao
family, five and one-half acres at the northeasterly end to the Leomiti family,
and six acres in between to the Tuana`itau family.
The real underlying issue at stake was control of the construction cinder
sites on the easterly or Pava`ia`i side of the ridgeline. Cinders for construction projects have been
extensively excavated and sold for construction projects on the easterly slope
of the ridge immediately below the ridgeline before and since LT No. 40-80 was
commenced and decided.
C. LT No. 35-82/LT
The Court decided LT No. 35-82/LT No. 10-83 on May 22, 1989. Both actions were land registration cases
that dealt with overlapping proposals.
LT No. 35-82 concerned the offer on the behalf of the Leomiti family to
register as the family’s communal land its survey of the approximately 17.74
acre parcel. The case also involved
objections on behalf of the Tuana`itau and Toluao families, among others. The parties’ settlement of the issues in LT
No. 35-82 before the trial of LT No. 10-83 was incorporated in the Court’s
decision dealing with both cases. In
essence, the Court authorized registration of the two acres by the Toluao
family and of the six acres by the Tuana`itau family as the Court awarded in LT
No. 40-80. The Leomiti family was
allowed to register the remaining land, estimated by the Court to be between 11
and 12 acres, less approximately 4.08 acres adjudicated as the Lefotu family’s
communal land in LT No. 10-83 and an overlapping area of slightly less than two
acres at the southwest corner of the Leomiti survey stipulated by the Leomiti
family to be the Tuana`itau family’s land.
The Court specifically found that the Leomiti survey at issue in LT No.
35-82 “included a large part of the Haleck survey” at issue in LT No. 40-80 and
illustrated the three-way division on its own drawing. See Leomiti, 11 A.S.R.2d at 50,
n.1. This drawing showed most of the
surveyed land on the westerly slope of the ridge. Id. (Ex. 1 in the case file). However, it is abundantly clear that the land
divided into three portions by the Court in LT No. 40-80 was for the most part
actually located on the easterly slope of the ridge where the cinder excavation
was taking place.
The Leomiti family eventually acted on the Court’s authorization in LT
No. 40-80 and specifically in LT No. 35-82/LT No. 10-83. Upon Leomiti family’s application, the
Territorial Registrar issued the certificate of registration for the Leomiti
family’s portion on July 14, 1995. The
registration was predicated on the Court’s decision in LT No, 40-80. However, it was generally consistent with the
Leomiti family’s survey in evidence in LT No. 35-82/LT No. 10-83. The application contained another survey,
done in 1994, showing the Leomiti family’s portion to be approximately 5.218
acres substantially located on the easterly slope of the ridge. The Tuana`itau family acted somewhat more
prudently by proposing registration of its portion in 1985, using a survey done
that year, showing the area of the Tuana`itau family’s portion to be
approximately 6.14 acres. The Tuana`itau
family’s application was met with numerous objections by the Leomiti, Toluao,
and Lefotu families, among others, and to this day has remained dormant and
progressed no further. To our knowledge,
the Toluao family has never attempted to register its portion despite the
LT No. 10-83 concerned the offer by Lefotu Tuilesu (“Lefotu”), on behalf
of the Lefotu family of A`oloau, to register as the family’s communal land
approximately 4.08 acres adjacent to public road from Pava`ia`i to A`oloau, on
the easterly slope of the ridge, called “Tafaga” by the Lefotu family, over
objections on behalf of the Leomiti, Tuana`itau, and Toluao families, among
others. Lefotu proposed registration of land located within the approximately
17.74 acres proposed for registration by the Leomiti family.
By the decision of May 22, 1989, in LT No. 35-82/LT No. 10-83, the Court
awarded the 4.08 acres claimed for the Lefotu family as communal land. On June 8, 1989, the Territorial Registrar issued
the certificate of registration of the 4.08 acres as the Lefotu family’s
communal land. This mathematically left,
at face value, approximately 5.66 acres to the Leomiti family as its communal
land (17.74 acres less the Lefotu family’s 4.08 acres, the Tuana`itau family’s
six acres, and the Toluao family’s two acres).
However, according to French’s determination, the actual area awarded to
the Lefotu family in LT No. 35-82/LT No. 10-83 was approximately 4.166 acres,
which we accept as the most accurate surveyed area. Moreover, on December 4, 1985, without
objection, Lefotu previously had registered as his individually owned land
approximately 0.66 of an acre (0.657 of an acre by French’s calculation)
immediately adjacent to the west side of the 4.166 acre parcel, which he also
called “Tafaga.” Thus, the Leomiti’s
portion of the land, Plot B as reduced, is approximately 4.917 acres (17.74
acres less the Lefotu family’s 4.166 acres and Lefotu’s 0.657 of an acre, the
Tuana`itau family’s six acres, and the Toluao family’s two acres)
D. LT No. 29-86/LT
No. 41-86/LT No. 12-87
Lualemana v. Atualevao, 16 A.S.R.2d 34 (Land & Titles Div. 1990) and 17
A.S.R.2d 151 (Land & Titles Div. 1990) (“LT No. 29-86/LT No. 41-86/LT No. 12-87”)
was decided on August 6, 1990. Certain
aspects and other matters in these consolidated cases are significant for
purposes of our decision in the present cases, because of their relation to a
portion of the land at issue.
The three actions began with Lualemana E. Faoa (“Lualemana”), the
principal matai of the Village of A`asu, seeking to prevent Atualevao Sosene
Asifoa (“Asifoa”) and Lefotu, the same matai involved LT No. 35-82/LT No.
10-83, from occupying Lualemana’s lands in A`asu. Other neighbors got involved because the
village centers of A`asu and A`oloau are adjacent to each other atop the
mountain northwesterly of the ridge involved in the present actions. A.U. Fuimaono (“Fuimaono”), the principal
matai of A`oloau, and the A`oloau Village Council asserted that the land at
issue was actually in A`oloau.
Fuimaono and the Council also offered for registration as the A`oloau
Village’s communal land some 420 acres of land.
Lualemana, for his family and A`asu, and Tuitele K.A. Le`oso for the
Village of Leone filed administrative objections pertaining to portions of the
A`oloau survey. In due course, the
controversy was referred to the Court for judicial resolution. The eastern boundary of the 420-acre A`oloau
survey ran along, and at some points on the easterly side, of the ridge. Toluao, Tuana`itau and other matais, for
themselves and Pava`ia`i, were allowed to intervene, even though they had
failed to make a timely administrative objection to the A`oloau registration
offer. They asserted that the westerly
side of the ridge was land belonging to Pava`ia`i families. In response, Fuimaono alleged that Toluao had
only recently occupied and destroyed crops on land owned by various A`oloau
families within the A`oloau survey area.
Finally, others completed the roster of participants for the trial. The Utu family of A`oloau intervened to
protect its land claim within the area claimed by Toluao. Several matai calling themselves the “Aiga
Atiulagi” of the Village of Malaeloa also contested a portion of the A`oloau
The A`oloau and Pava`ia`i parties to the three consolidated cases and to
the present actions appear to agree that “Lago” is the general name of a large
area on the westerly side of the ridge.
In dealing with the issues pertaining to this portion of the land within
the A`oloau survey, the Court recognized that one powerful chief after another
apparently dominated this part of the island of Tutuila during ancient times,
and that current generations in both A`oloau and Pava`ia`i relish memories of
more extended boundaries of their village confines. Lualemana, 16 A.S.R.2d at 38
(citing Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383 (Trial Div.
1963)). The Court found, however, that
the A`oloau people began to continuously occupy and cultivate “Lago” at some
time after 1946, without displacing people from Pava`ia`i or elsewhere. Any traditional Pava`ia`i use of the area
during an earlier era was probably occasional and was, in any event, insufficient
to defeat the later claim of the A`oloau people. Id. at 38-39 (citing Lualemana v.
Brown, 3 A.S.R. 348, 352-53 (Trial Div. 1958)). The Court therefore held that land with
“Lago” on the westerly side of the ridge was owned by A`oloau people and
presumptively by A`oloau families in accordance with Samoan customary land
ownership. Lualemana, 16 A.S.R.2d
The Court in LT No. 29-86/LT No. 4l-86/LT No. 12-87 also specifically
observed, and pointedly for present purposes, that the small area within the
A`oloau survey on the easterly side of the ridge was just above the cinder pit
areas held to be the Tuana`itau family’s and Toluao family’s communal lands,
and above the adjacent and nearby lands held to be the Leomiti family’s and
Lefotu family’s communal lands in LT No. 35-82/LT No. 10-83. Id. The
Court also noted that it had insufficient evidence before it to determine any
overlaps between the A`oloau survey and the adjudicated communal lands of these
four families. Id.
In LT No. 29-86/LT No. 41-86/LT No. 12-87, the Utu family of A`oloau
claimed as its communal land approximately 2.076 acres (as retraced by French),
designated as “Logo.” The 2.076 acres
were located on the westerly slope of the ridge within the larger area
generally known as “Lago” and within both the A`oloau and Pava`ia`i surveys
then at issue. The Utu family intervened because the Toluao family was
cultivating this area. Lefotu claimed
that the Utu survey encroached upon other land he had registered, and by
stipulation, the Court did not adjudicate the Utu-Lefotu issue. However, having determined that “Lago” on the
westerly side of the ridge was property of A`oloau families, the Court did
enjoin Toluao from further occupancy and cultivation of “Lago” on the westerly side, including the
Utu family’s claimed land. Therefore,
the Utu family’s claim pertains to an area outside of Plot B, the correct
location of the land actually adjudicated in LT No. 40-80 and confirmed in LT
No. 35-82/LT No. 10-83. The Utu family’s
claimed land is largely within Plot A, determined by French in the present
actions to be the location of the Haleck survey used in LT No. 40-80.
Two other parcels within “Lago” on the westerly slope of the ridge are
involved in the present actions. Moananu
had one parcel, named “Saiaulama” and containing approximately 1.5 acres,
surveyed as the communal land of the Moananu family of A`oloau. This parcel is again largely within Plot A of
French’s retrace. While we lack any
evidence of its registration as yet, we note that “Saiaulama” is located
entirely outside of Plot B, the true location of the land, as adjudicated in LT
No. 40-80 and confirmed in LT No. 35-82/LT No. 10-83.
Moananu and Thompson had the second of these two other parcels within
“Lago” on the westerly slope of the ridge surveyed as their individually owned
land. Moananu is the sa`o (head chief)
of the Moananu family. Thompson is
Moananu’s sister and lives on this parcel. This parcel, named “Saiaulama-Fita”
and containing approximately 2.803 acres, was registered on May 18, 1992,
without objection. Their action was
consistent with the Court’s August 6, 1990 decision in LT No. 29-86/LT No.
41-86/LT No. 12-87. “Saiaulama-Fita” is
largely located outside of Plot E, the true location of the land, as
adjudicated in LT No. 40-80 and confirmed in LT No. 35-82/LT No. 10-83. This brings us to several outstanding survey
issues that are apparently still loose ends to full closure of the
controversies at issue.
Refined surveys of the three parcels within Plot B need to be prepared in
accordance with the division from the decision in LT No. 40-80. The two internal boundaries between the three
parcels must be determined. The end result must give: (1) the Toluao family
approximately two acres at the southwesterly end of Plot B; (2) the Tuana`itau
family approximately six acres immediately adjacent to the Toluao parcel; and
(3) the balance of the acreage at the northeasterly end to the Leomiti family.
The Leomiti family’s parcel appears to need further survey refinement at the
north end. The Leomiti family’s survey
of approximately 5.218 acres registered on July 14, 1995, attempts, it seems,
to coincide with the boundaries between the Leomiti family’s parcel and the
small, peculiar portion of the Moananu/Thompson parcel jutting out of the main
area to the southeast. However, we
cannot reach any certain conclusion on this surmise based on the surveys
presently in evidence. It also appears
that both the Leomiti family 5.218 acre survey and the Moananu/Thompson 2.803
acre survey registered on May 18, 1992, may not take into account, at least
correctly, the Lefotu 0.657 of an acre survey registered earlier on December 4,
Entitlement to Relief
The Leomiti and Tuana`itau families, and incidentally,
the Toluao family are entitled to determinations of their respective communal
land parcels within Plot B. The Leomiti
family with respect to its communal land within Plot B, Moananu and Thompson
with respect to their individually owned land, and incidentally, Lefotu with
respect to his individually owned land, are entitled to determination of the
boundaries between these three parcels of land.
The determinations shall be consistent with the findings of fact
Until completion of the necessary survey work defining
the boundaries, the Court can neither adjudicate final determinations nor
authorize the accompanying registrations.
The Court will also rule on the prayers for permanent injunctions and
trespass damages in the final order.
1. Plot B is the land actually
adjudicated and divided into three parcels in LT No. 40-80: approximately two
acres owned by the Toluao family as communal land; approximately six acres
owned by the Tuana`itau family as communal land; and the remaining area,
approximately five and one-half acres, owned by the Leomiti family as communal
land, subject to refinement of the boundaries of this parcel, after the
surveyor’s further consideration, with the individually owned lands belonging
to Moananu and Thompson and to Lefotu.
2. The parties shall have 30 days from the entry of
this order to agree on a surveyor, the division of costs, and other necessary
conditions for the additional survey of the parcels at issue within and
adjoining Plot B, and to advise the Court of their agreement on these
matters. Should the parties fail to
reach an agreement, the Court will hold a hearing to appoint a surveyor and
3. The existing preliminary injunctions shall remain
in full force and effect until further order of the Court.
It is so ordered.
 The trial decision was appealed, Haleck v. Toluao,
AP No. 10-83, but upon the stipulation of the parties to the appeal, the appeal
was dismissed in due course.
 The responsible
surveyors acknowledged the mistakes made in the preparation of the surveys used
in LT No. 40-80 and LT No. 35-82/LT No. 10-83 and appeared to accept French’s
retraces as providing essentially accurate locations in the field of both
 Two other actions preceded these actions. In LT No. 63-81, Lefotu Tuilesu (“Lefotu”)
sought to prevent Leomiti family members from trespassing on the Lefotu
family’s communal land located adjacent to the public road up to the mountain
from Pava`ia`i to A`oloau on the easterly side of the ridgeline. A short time later, in LT No. 67-81, the
Leomiti family sought to enjoin Lefotu from trespassing on its land in the same
area. Ultimately, all four actions were
consolidated, but in 1985 LT No. 63-81 and LT No. 67-81 were dismissed without
prejudice, leaving the land ownership dispute between Lefotu and the Leomiti
family for decision in LT No. 35-82/LT No. 10-83.
 We will comment further on this survey during the
discussion below in connection with Lualemana v. Asifoa, Lualemana v. A`oloau Village Council,
Fuimaono v. Toluao, 16 A.S.R.2d 34 (Land & Titles Div. 1990) and Fuimaono
v. Toluao, 17 A.S.R.2d 151 (Land & Titles Div. 1990) (“LT No. 29-86/LT
No. 4l-86/LT No. 12-87”).
 The Court declined to determine any precise boundary between
A`oluao and Pava`ia`i, based on the law that only that the owner, almost always
a family, of land in American Samoa can register ownership. Lualemana,
16 A.S.R.2d at 39. The concept of
village ownership of land contravenes Samoan custom, except in limited
circumstances not applicable in Lualemana situation. Id.; see also Olo v. Fuimaono,
AP No. 27-81, slip op. (App. Div. Apr. 18, 1981).
 The Court in LT No. 29-86/LT No. 41-86/LT No. 12-87
assumed that the lands judicially determined to be the communal lands of
Toluao, Tuana`itau, Leomiti, and Lefotu families were registered. Lualemana, 16 A.S.R.2d at 39. In fact, only the Lefotu family’s communal
land was registered when the decision in the three actions was issued on August