OPINION AND ORDER
OPINION OF THE COURT
MORROW, Chief Judge.
Plaintiff filed his petition on May 18, 1956 praying for an order requiring defendant Lua Mamoe to remove the Samoan-type fale Which he is erecting on certain land lying at the foot of Mount Olotele and on the righthand side of the road between New Mapusaga and New Aoloau. Lua Mamoe claimed his right to erect the fale through permission of Tuiaana, a chief of Faleniu. Plaintiff Galoia claimed that the land on which the fale is being erected is the communal family land of the Galoia title of Pavaiai and that the defendant has no right to erect his fale thereon.
The Court viewed the premises involved in the presence of the parties on the day preceding the hearing.
[246]*246The basic question in this case is whether the spot (place) on which the fale is being erected is the land of the Galoia title or the land of a chief or chiefs of the village of Faleniu.
It is clear from the evidence, in fact it is undisputed, that the defendant Lua Mamoe did receive permission from chief Tuiaana of Faleniu to put up his. fale. And it is also clear and undisputed that before giving the permission Tuiaana consulted with the other chiefs and the talking chiefs of Faleniu about whether he should give it and that the other chiefs and the talking chiefs authorized Tuiaana to give it. From the evidence we conclude that in legal effect the permission came not from Tuiaana alone, but from all the chiefs and talking chiefs of Faleniu including himself and that Tuiaana was acting in behalf of all the chiefs and talking chiefs when he gave the permission.
There was a conflict in the evidence as to who first cleared the very place where the fale is being built from the bush, i.e. who cut down the big trees on it.
Title to land in Samoa has been acquired through first occupation coupled with a claim of ownership. In the case of Soliai v. Lagafua, No. 5-1949 (H.C. of Am. Samoa) we said: “Occupation coupled with a claim of ownership will establish ownership to what was bush land before occupation. See 2 Blackstone 8.” And in the case of Lagafua Laisene for Sialega Title and Family et al. v. Mauga S. P., No. 17-1955 (H.C. of Am. Samoa) we further said: “The view that the occupant who first takes possession of land with the intention of having it as his own thereby becomes the owner of it is approved in Maine’s Ancient Law (3rd Am. Ed.) at p. 238. The doctrine of acquisition of original title by the first occupant with a claim of ownership has been approved by this court in the case of Faataliga v. Fano, No. 80-1948 (H.C. of Am. Samoa) and a number of other cases.” And in Leasiolagi v. Fao, No. 12-1949 (H.C. of [247]*247Am. Samoa), we said that “it was the custom for the matai and members of his family clearing bush land and occupying it to claim it as communal family land and not as the individually owned land of either the matai or the family members occupying it.”
When the Court viewed the fale and the land it occupies, Galoia told it that he did not see the big trees cut down on the land but was told about it. On the witness stand he was asked “Were you in Malua college when this was done, that is the trees cut?” and he replied “I was in Leulumoega.” Leulumoega is a school in Upolu. However, he later testified that the trees were cut during his vacation and that he saw it done and helped do it. His testimony was to the effect that the trees were cut by Pavaiai chiefs and their young men under the jurisdiction of the Galoia title; that it was done in Í938. Galoia testified that chief Vele was one of the chiefs who participated in the cutting and that Vele was under the jurisdiction of the Galoia. However, when Vele, who was a witness for Galoia, was asked “Is Vele a lesser chief in the Galoia Family?” he replied “No.” Vele testified also that the Vele was not under Galoia’s jurisdiction. However, Vele did testify that Aea, admittedly a chief subject to Galoia’s jurisdiction, did cut down the big trees. Galoia later called Aea as a witness. The record covering Aea as a witness is as follows:
“Q. Now, you’re Aea of Pavaiai ?
A. Yes.
Q. How old are you ?
A. I cannot remember how old I am but I guess 70 or 80.
Q. Now, is your mind pretty good or is it a little weak at times?
A. Sometimes it’s weak.
Q. How is it right now pretty weak or pretty strong?
A. Neutral, not very strong, not very weak.
Q. Now, you know where this house is being built which Lua is putting up, up there on the righthand side of the road?
A. Yes.
[248]*248Q. Well, you know who cut the big trees there years ago?
A. I do.
Q. Who was it?
A. Myself, Vele, Leatumauga, Fuapapa, Poloai, Touao and Galoia.
Q. There wasn’t any Galoia at that time.
GALOIA: How about go slow because the old man’s mind is weak as I told you.
INTERPRETER: Galoia is telling the witness just make your statements in accordance with the place now in dispute, where the house is now being built.
Q. Now, did Galoia help cut the big trees there? Did this Galoia here when he was a boy help cut those big trees up there where this house is being put up ?
A. (no answer)
CJ: Let the record show that there is no answer.
GALOIA: As I have stated that this witness of mine is weak in mind so therefore I ask the Court to discharge him from the witness stand.
TAGO: I object, your Honor.
CJ: Well, I think we have to allow Tago to cross-examine him on the testimony that he’s given, that’s only fair.
CROSS EXAMINATION BY TAGO:
Q. You’re quite an old man and you have already taken an oath and it is for you to tell the truth. Did you see Galoia cut any big trees in that area?
A. Yes, I’ve seen him when he returned back from Malua.
Q. After the big trees were cut, is that correct ?
A. Yes.”
It is noted that Aea failed to answer the question “Now, did Galoia help cut the big trees there?” but he did testify that Galoia returned from Malua after the big trees were cut. If he returned after they were cut he did not see them cut which would be consistent with Galoia’s statement to the Court when it viewed the land that he did not see the trees cut but was told about it.
Talking chief Siufanua of Faleniu testified in respect to cutting the trees as follows:
[249]*249“Q. Now, you’re Siufaiiua of Faleniu?
A. Yes.
Q. You’re a chief or talking chief?
A.' Talking chief.
Q.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION AND ORDER
OPINION OF THE COURT
MORROW, Chief Judge.
Plaintiff filed his petition on May 18, 1956 praying for an order requiring defendant Lua Mamoe to remove the Samoan-type fale Which he is erecting on certain land lying at the foot of Mount Olotele and on the righthand side of the road between New Mapusaga and New Aoloau. Lua Mamoe claimed his right to erect the fale through permission of Tuiaana, a chief of Faleniu. Plaintiff Galoia claimed that the land on which the fale is being erected is the communal family land of the Galoia title of Pavaiai and that the defendant has no right to erect his fale thereon.
The Court viewed the premises involved in the presence of the parties on the day preceding the hearing.
[246]*246The basic question in this case is whether the spot (place) on which the fale is being erected is the land of the Galoia title or the land of a chief or chiefs of the village of Faleniu.
It is clear from the evidence, in fact it is undisputed, that the defendant Lua Mamoe did receive permission from chief Tuiaana of Faleniu to put up his. fale. And it is also clear and undisputed that before giving the permission Tuiaana consulted with the other chiefs and the talking chiefs of Faleniu about whether he should give it and that the other chiefs and the talking chiefs authorized Tuiaana to give it. From the evidence we conclude that in legal effect the permission came not from Tuiaana alone, but from all the chiefs and talking chiefs of Faleniu including himself and that Tuiaana was acting in behalf of all the chiefs and talking chiefs when he gave the permission.
There was a conflict in the evidence as to who first cleared the very place where the fale is being built from the bush, i.e. who cut down the big trees on it.
Title to land in Samoa has been acquired through first occupation coupled with a claim of ownership. In the case of Soliai v. Lagafua, No. 5-1949 (H.C. of Am. Samoa) we said: “Occupation coupled with a claim of ownership will establish ownership to what was bush land before occupation. See 2 Blackstone 8.” And in the case of Lagafua Laisene for Sialega Title and Family et al. v. Mauga S. P., No. 17-1955 (H.C. of Am. Samoa) we further said: “The view that the occupant who first takes possession of land with the intention of having it as his own thereby becomes the owner of it is approved in Maine’s Ancient Law (3rd Am. Ed.) at p. 238. The doctrine of acquisition of original title by the first occupant with a claim of ownership has been approved by this court in the case of Faataliga v. Fano, No. 80-1948 (H.C. of Am. Samoa) and a number of other cases.” And in Leasiolagi v. Fao, No. 12-1949 (H.C. of [247]*247Am. Samoa), we said that “it was the custom for the matai and members of his family clearing bush land and occupying it to claim it as communal family land and not as the individually owned land of either the matai or the family members occupying it.”
When the Court viewed the fale and the land it occupies, Galoia told it that he did not see the big trees cut down on the land but was told about it. On the witness stand he was asked “Were you in Malua college when this was done, that is the trees cut?” and he replied “I was in Leulumoega.” Leulumoega is a school in Upolu. However, he later testified that the trees were cut during his vacation and that he saw it done and helped do it. His testimony was to the effect that the trees were cut by Pavaiai chiefs and their young men under the jurisdiction of the Galoia title; that it was done in Í938. Galoia testified that chief Vele was one of the chiefs who participated in the cutting and that Vele was under the jurisdiction of the Galoia. However, when Vele, who was a witness for Galoia, was asked “Is Vele a lesser chief in the Galoia Family?” he replied “No.” Vele testified also that the Vele was not under Galoia’s jurisdiction. However, Vele did testify that Aea, admittedly a chief subject to Galoia’s jurisdiction, did cut down the big trees. Galoia later called Aea as a witness. The record covering Aea as a witness is as follows:
“Q. Now, you’re Aea of Pavaiai ?
A. Yes.
Q. How old are you ?
A. I cannot remember how old I am but I guess 70 or 80.
Q. Now, is your mind pretty good or is it a little weak at times?
A. Sometimes it’s weak.
Q. How is it right now pretty weak or pretty strong?
A. Neutral, not very strong, not very weak.
Q. Now, you know where this house is being built which Lua is putting up, up there on the righthand side of the road?
A. Yes.
[248]*248Q. Well, you know who cut the big trees there years ago?
A. I do.
Q. Who was it?
A. Myself, Vele, Leatumauga, Fuapapa, Poloai, Touao and Galoia.
Q. There wasn’t any Galoia at that time.
GALOIA: How about go slow because the old man’s mind is weak as I told you.
INTERPRETER: Galoia is telling the witness just make your statements in accordance with the place now in dispute, where the house is now being built.
Q. Now, did Galoia help cut the big trees there? Did this Galoia here when he was a boy help cut those big trees up there where this house is being put up ?
A. (no answer)
CJ: Let the record show that there is no answer.
GALOIA: As I have stated that this witness of mine is weak in mind so therefore I ask the Court to discharge him from the witness stand.
TAGO: I object, your Honor.
CJ: Well, I think we have to allow Tago to cross-examine him on the testimony that he’s given, that’s only fair.
CROSS EXAMINATION BY TAGO:
Q. You’re quite an old man and you have already taken an oath and it is for you to tell the truth. Did you see Galoia cut any big trees in that area?
A. Yes, I’ve seen him when he returned back from Malua.
Q. After the big trees were cut, is that correct ?
A. Yes.”
It is noted that Aea failed to answer the question “Now, did Galoia help cut the big trees there?” but he did testify that Galoia returned from Malua after the big trees were cut. If he returned after they were cut he did not see them cut which would be consistent with Galoia’s statement to the Court when it viewed the land that he did not see the trees cut but was told about it.
Talking chief Siufanua of Faleniu testified in respect to cutting the trees as follows:
[249]*249“Q. Now, you’re Siufaiiua of Faleniu?
A. Yes.
Q. You’re a chief or talking chief?
A.' Talking chief.
Q. How old are you?
A. Nearly 80.
Q. Now, are you familiar with all this land Tafeata out there around New Mapusaga leading up to New Aoloau?
A. Yes.
Q. Have you lived in Faleniu almost all of your almost 80 years?
A. Yes.
Q. Did you know who cut the big trees on the righthand side of the road leading from New Mapusaga up to New Aoloau ?
A. Faleniu.
Q. Faleniu chiefs?
A. Yes.
Q. Now, will you name them ?
A. Magalei Siasulu, Magalei Faapouli, Tuiaana Moi, Moeai Saitia, Maiava Uula, myself; all these people were matais. If the Court wants me to give the names of the young men but they are holding matai names now I will.
Q. Well, were those Faleniu chiefs or Pavaiai chiefs that you named?
A. Chiefs and talking chiefs of Faleniu village.
Q. Are you familiar with the location where Lua is building his new fale up there at the foot of the mountain on the righthand side of the road?
A. Yes.
Q. Did you see the big trees cut there ?
A. Yes.
Q. Do you know when they were cut, can you remember that far back?
A. The whole area was cut in 1922.
Q. Who cut the big trees where this fale is being put up, that’s Lua’s ?
A. Tuiaana Moi.
Q. Did Galoia people have anything to do with it?
A. No.
[250]*250Q. Did they cut any big trees on the lefthand side of the road, that’s the Galoia people?
A. I didn’t see.
Q. Well, did they cut any on the righthand side of the road? A. No.
Q. Did you see Galoia Upuese cut a single tree in this area? A. No.
Q. Did you see any members of Galoia Family cut any big trees in this particular area and work?”
A. No.
Later in answer to questions by Judge Malepeai regarding war damage claims Siufanua testified:
“Q. Siufanua, who filed claims, war damage claims on the plantations that were destroyed on this land?
A. Faleniu.
Q. You mean in the place where Lua’s house is now located?
A. Yes.
Q. Did the Faleniu people get the compensation out of this land?
A. Yes.”
Talking chief Moeai of Faleniu testified:
“Q. Now, you’re Moeai of Faleniu ?
A. Yes.
Q. How old are you ?
A. 76.
Q. You talking chief?
A. Yes.
Q. Are you familiar with this land Tafeata out there above New Mapusaga toward New Aoloau?
A. Yes.
Q. Do you remember when the big trees were cut on that land ?
A. The year that’s already mentioned.
Q. What year was that?
A. The year Siufanua mentioned.
Q. 1922?
A. Yes.
Q. You were living in Faleniu then ?
A. Yes.
Q. Did you help cut the -big trees ?
A. Yes.
[251]*251Q. Do you know where Lua’s house is where Galoia is trying to get the Court to order it removed?
A. I do.
Q. You know who cut the big trees, that is where the house is?
A. Faleniu.
Q. You know what chief of Faleniu or chiefs?
A. All the answers that was mentioned first.
Q. Well, you might tell us, too, we’d like to know what you’d know about it?
A. Magalei Siasulu, Magalei Faapouli, Tuiaana Moi, Siufanua, Savea, Maiava Taisi, Moeai Saitia, those are matais.
Q. What village does Savea belong to?
A. Faleniu.
Q. You know who put in plantations where the house is after the war was ended?
A. Children of Tuiaana Moi.
Q. And Galoia people come over there and put in plantations?
A. No.
Q. Did the Galoia people from Pavaiai ever cut down any big trees on the righthand side of the road if you know?
A No.
Q. Did they cut down any on the lefthand side if you know?
A. I do not know.
CJ: Any additional questions, Tago?
DIRECT EXAMINATION BY TAGO:
Q. This particular spot where Lua Mamoe is now building his house, do you believe and know for sure it was Tuiaana and his children cut the big trees on that, first cut the big trees on that particular spot?
A. Yes.
Q. And for that reason Tuiaana could grant permission for Lua to build his house on that very spot?
A. Yes.
Q. And the chiefs of the village of Faleniu agreed to it because the whole village involved, is that correct?
A. Yes.”
After observing the witnesses on the stand and weighing the testimony, we are of the opinion that the evidence preponderates in favor of the view that the big trees on the [252]*252land occupied by the fale of the defendant were cut by the Faleniu people in 1922 and not by the Galoia people in 1928. It follows that we must find, in view of the weight of the evidence as to occupation and claim of ownership of the land, that it is the property of the Faleniu chiefs and talking chiefs of Faleniu, speaking through the Tuiaana of Faleniu, gave permission to the defendant to build his fale where it is being built, it follows that he has the right to build it there. Since we find that the land on which it is being built is not property of the Galoia title, it follows that the plaintiff’s petition should be dismissed.
ORDER
Accordingly it is ORDERED that the plaintiff’s petition be and it is hereby dismissed.
Costs in the sum of $20.00 are hereby assessed against Galoia, the same to be paid within 30 days.