OPINION AND ORDER OF AFFIRMANCE

Appellee Taesalialii, hereinafter called Taesali, filed his petition in the Trial Division of the High Court asking for an order restraining Tuloto and Pauesi, appellants, from continuing the erection of a house on certain land in the village of Utulei. An injunction was issued. Tuloto and Pauesi have appealed.

*494At the hearing below it appeared that four matais namely, Lutu, Taesali, Afoa and Tupua are jointly the head of the Lutu, Taesali, Afoa and Tupua clan; and that such clan is a larger clan made up of the membership of four smaller clans one of which Lutu is the matai, another of which Taesali is the matai, another of which Afoa is the matai and the other of which Tupua is the matai. It was clear from the evidence, and it is not disputed, that the larger clan composed of the members of the four smaller clans is the owner of certain lands in Utulei and Fagatogo. There has never been a division of the ownership of the property among the four smaller clans. However, the Lutu clan has had possession and occupied a part of the property in Fagatogo owned by the larger clan for many years. Likewise the Taesali clan has had possession of and occupied a part of the land in Utulei owned by the larger clan for many years. And likewise the Afoa clan has had possession of and occupied a part of the land of the larger clan in Utulei for many years. The Tupua clan has had possession of and occupied the remaining part of the land owned by the larger clan for many years which land is located above what was formerly the Fita Fita barracks of Fagatogo.

It has been the custom when anything of importance affecting the family was to be decided for the four matais to consult amongst themselves regarding it. It appeared that occasionally a member of one of the smaller clans went to live in the family of one of the other smaller clans and was assigned a piece of the land belonging to the larger clan which had been occupied and possessed by such other smaller clan.

The appellants are husband and wife. The wife is a blood member of the Afoa clan and thereby a member of the larger clan. She and her husband live in the Afoa family and occupy (possibly with some near relatives) a piece of *495land of the larger clan of which the Afoa clan had had possession for a long period of time. Recently, appellants Tuloto and Pauesi desired to have assigned to them for their occupation and use a small piece of land which has been in the possession of the Taesali branch of the larger clan for many years, probably, according to the evidence, since before the Government was established in 1900. Taesali and the members of his clan objected to the assignment of this small tract to Pauesi and Tuloto. Afoa, as did Lutu, approved the assignment together with the building of a house on such land by Pauesi and Tuloto. Tupua consented on the condition that Taesali consent, but Taesali refused to give his consent. This particular piece of land has taro growing upon it planted by the Taesali members. The erection of the house will destroy the taro patch and deprive the Taesali clan of the possession of the land.

That the Taesali and the members of the Taesali clan have had possession of, occupied and upkept (as we say in Samoa) the premises for more than 50 years was clearly established by the evidence. The question before the Court is whether that piece of land can for all practical purposes be taken away from the Taesali clan against their wish and without the consent of Tupua and assigned to Tuloto and Pauesi with the. appro val only of the Afoa and the Lutu. If Lutu and Afoa can hand over a piece of the land which has been occupied, used and upkept by the Taesali clan for more than 50 years, over the objections of the Taesali and the Tupua, we see no reason why the Tupua and the Taesali might not order Lutu to get out of his house in Pagatogo which is built on land of the larger clan and assign the land on which it is built to a member of the Taesali clan. That that could not be done we think is clear. We do not believe that a member of one of the smaller clans, who already has a place to live on the land of the *496larger clan, can come in and destroy the plantation of a member of one of the other smaller clans against the wish of the matai of that other smaller clan, build a house where the plantation stood, and deprive the such other smaller clan of the land of the larger clan which such smaller clan has possessed, occupied and upkept for more than 50 years.

It is our conclusion that the decision of the Trial Division was correct and that the order made by it should be affirmed.

ORDER OF AFFIRMANCE

Accordingly, it is ordered that the decree of the High Court in the case of Taesalialii of Utulei v. Tuloto and Pauesi of Utulei, No. 6-1954, be and the same is hereby affirmed.

Costs on appeal in the sum of $30.00 are hereby assessed against Tuloto and Pauesi, the same to be paid within 60 days.