DECISION
At the close of the trial of this case, the court called the attorneys of both sides, together with a witness for each of the parties to the bench, and requested them to point out on the surveyed plan, filed for registration by Auau, the location of Patea’s house. Prior to this time Counsel for each side had stipulated upon the record that if it should be disclosed by an inspection of the property by the court, that the house of Patea was within the boundaries of the *381Kneubuhl survey, then the decision of the case would be for Patea, if outside, the decision should be for Auau.
The counsel and witness for Patea promptly located the site of Patea’s house within the boundaries of the survey but counsel for Auau and his witness Ufuti, were unable to mark the site of Patea’s house and upon consulting together decided to repudiate the stipulation which they had previously entered into. The court proposed this stipulation for the reason that in respect to the location of Patea’s house, as in every other material question in the case, the witnesses respectively for Patea and Auau had been diametrically opposed in their testimony.
If Patea’s house was proved to be within the boundaries of the survey then the evidence taken in the case would show that Patea and his predecessors Tuiaana, Iafeta and Taamuta and the present Patea himself, had lived upon the land in question continually for a period well over BO years, their possession being known to all, undisturbed and under a claim of right.
The name of the land surveyed is called by the surveyor for Auau “Fanua Tani Faasaviliga” and by Patea “Taanoa.” The evidence of Auau and his witnesses is that the land must be called “Fanua Tanu” because a pavement of stones or Fanua Tanu is located thereon. A Fanua Tanu, it is claimed, may be built only by a High Chief. It is admitted by Patea, that there is a Fanua Tanu on the surveyed property and he and his witnesses state that it was erected with the consent of Patea on the land Taanoa at the request of a High Chief Letuli, when his son married a girl of Pago Pago. Auau testified that the Fanua Tanu was erected by certain Tongan captives of an Auau taken in war many years ago.
Evidently the Fanua Tanu itself, has nothing to do with the name of the land surveyed. One of Auau’s witnesses testified that in speaking of a Fanua Tanu, a pavement of *382stones of itself and not any particular piece of land surrounding it would be understood.
The house of Auau which was blown down in the hurricane of 1926 was located on the surveyed land, but after its destruction, Auau was allotted a place to build a house by Patea outside of the surveyed plat. An inspection of the property made by the Court discloses without any doubt that Patea’s house is within the limits of the surveyed boundaries and that Auau is now living outside the surveyed boundaries.
The question of the ownership of this land arose for .the first time because Patea a short time ago proposed to build a new house on the Fanua Tanu and Auau objected to this location. When Patea persisted, Auau had the land surveyed and filed it for registration. Patea had not objected to Auau living upon the land but Auau had never attempted to build his house upon the Fanua Tanu and for the reason, as he says, that he was afraid of lizards that infested the place.
The only question provoking dissention between the parties during all the years that both of them have lived upon the land arose during the past year and that arose not as to the right of either of them to live upon the land itself, but only as to the right of Patea to build a house upon the pavement of stones, the Fanua Tanu.
Evidently the real question between the parties is as to which of them is the higher chief with the right to build on the Fanua Tanu and not the question as to the ownership of the land upon which both have lived without disturbance from the other and upon which Patea is now living and upon which his predecessors have lived continuously for more than 30 years.
Each party has introduced affirmative evidence showing:
*3831. The proper name of the land is Taanoa or Fanua Tanu.
2. That the Patea family permitted the building of the Fanua Tanu on their land, or the Fanua Tanu was built under the direction of Auau, by Tongan captives on Auau’s land.
3. That the Patea family has always had the authority over the land in question, or the Auau family has.
4. That the Patea family originally gave one of the Auau family permission to build on the land in question, or that Auau originally gave the Patea family this right.
On all these questions the evidence is equally convincing if standing alone but neither side has been successful in breaking down the testimony of the other side; in other words each party has attempted to prove his own case and has not attempted to break down the evidence of the other side except by asserting his own right.
As stated by the Court at the beginning of the case an uninterrupted user of land for a period of over 30 years, which user is known to all and under a claim of right, would establish at least a prima facie claim to title of the land. The evidence shows that the Patea family have used and occupied the land for a period of over 30 years, continuously, notoriously and under a claim of right, that a Patea still lives there and that Auau, although he did live there on and off, mostly off in Upolu, prior to January 1, 1926, does not now live there but on land admitted to be Pateas, and permitted by Patea. Under these circumstances and the facts that the survey was made by Auau, and that Patea has stated in Court that the survey is of his land Taanoa, it must be held that Patea has the authority over the land in question and may continue to live thereon as his predecessors have done.
Undoubtedly Patea will allow Auau, as a member of the Patea family, to rebuild his house on the old site which is *384within the boundaries of the surveyed property, if he should desire to do so, and in exchange for this courtesy, Auau must not object if Patea builds on this property when and where he may think proper.