Looking for some good references to order of evidence and rules of construction for a new office tech.
I have some material from a boundary law class I can send you. I'm out of the office right now but I will email it to you when I get back.
Ya got a copy of "Boundary Control and Legal Principles" hanging around the office? Chapter 5, Section 12 in my edition.
Just remember to tell them that:
1) the rules of construction are only relevant when there are intrinsic conflicts in the record descriptions,
2) the order of the rules of construction apply when all other things are being equal, for example, when 3 deed elements say the same thing in different ways but all are in harmony with one another, and a fourth element purports to say the same thing but in a different manner, but is at odds with the other 3 elements, it can be discarded,
and 3) the order can be overturned at any time by certain circumstances, one common example being when an acre cutout is called for, then area becomes controlling.
Stephen
> Looking for some good references to order of evidence and rules of construction for a new office tech.
I'd direct them to the primary source of the law, rather than a secondary source such as we find in the surveying textbooks. Being as you're from GA, I'd direct them to the court cases concerning monuments and the process for proving their use as evidence.
Try Dover v. Higgins, 652 S.E.2d 829, 287 Ga.App. 861 (Ga.App. 09/26/2007) as an example:
>Generally, where any evidence supports the finding of the trier of fact as to the location of markers in a boundary line dispute, the finding is not clearly erroneous and we will not disturb it on appeal. Youngblood v. Youngblood, 263 Ga. App. 820, 821 (1) (589 SE2d 602) (2003). "Traditional evidence as to ancient boundaries and landmarks shall be admissible in evidence, the weight to be determined by the jury according to the source from which it comes." OCGA § 24-3-13. A jury may rely on testimony concerning the existence and location of artificial monuments in determining the location of a boundary line, Sledge v. Peach County, 276 Ga. App. 780, 783 (a) (624 SE2d 288) (2005). and "[g]eneral reputation in the neighborhood shall be evidence of ancient landmarks of more than 30 years' standing." OCGA § 44-4-6. Other evidence properly considered by a jury includes: acreage; the lack of any markers or monuments indicating a different boundary line; and the existence of old plats, drawings, field notes, and surrounding deeds consistent with the boundary line. Id. at 784 (c), (d). Where there is conflicting evidence concerning the location of a monument upon which a boundary line is based, the jury is authorized to fix the boundary in accordance with a survey that presumes the location of the contested monument. Smith v. Willoughby, 207 Ga. 91, 96 (2) (60 SE2d 155) (1950). The record reveals sufficient evidence to support the jury's finding under the "any evidence" standard.
You want a good learning exercise for your employees, have each one of them get a copy of the cases and/or OCGA citations, and bring them to a weekly lunch meeting. You buy the lunch; each employee takes a turn making a presentation about the case they've been assigned, the evidence presented, the facts determined, the legal principles applied in the case, and the conclusions reached. You'll be amazed at the discussions that will be heard around the water cooler the next week.
JBS
Snoop, the landmark case in Texas, Stafford v. King, which is available in many surveying text books, is the quintessential case in Texas that sets up the dignity of calls, what types of monuments are what types of monuments, and the need to follow the footsteps. In my opinion, you can survey 90% of what you need to survey with that case alone. The other 10% are in many many other cases, but that ONE should be a helluva primer.
See here
I forgot to mention that this landmark case happened in my home county. 🙂
:good:
My greatest concern is the surveyor who has his "list" of order of evidence, and makes arbritary decisions based on his list without properly reviewing all of the evidence.
A number of books address this. There are two different "orders", that often get mixed up as well, I think. There are "order of seniority of calls", so that a call to a monument is higher than a call to a bearing and/or a distance, and there is a vaguer (in my opinion) an order of evidence. Many use this seniority of calls to say that a noncalled for found monument is in the same place as a called-for one. That might be something to consider when going to evidence outside the four-corners of the document, but that does not "place it" in the seniority of calls, if it is not a call. Don't think I am saying you ignore uncalled-for monuments, I am only point out that they are not called for.
(Gurdon) Wattles has something on "superiority of calls" (or rules of construction) in section 4.2
Skelton ahs a good chapter on 'Control of Intention'. starting @ §65 (page 68).
Clark on Surveying and Boundaries, 5th edition, convers in 14.21 Conflicting calls in descriptions, where he has a list of ranking of priorities of calls.
Something you might consider is trying to asign your crews to something like finding text out of books on the subject, and then, as a later exercise, finding case law addressing the issue like Mr. Stahl suggests.
thanks for all of the advice. i am trying to explain something that is so simple in my head but i am having trouble articulating it. i have 'evidence and procedures' by brown but did not have 'Boundary Control and Legal Principles'. i have ordered it now. i know this can not be taught in a couple of days. i told him a college level class is best but i am trying to show him job to job using real life examples and explaining there is no real rule to apply to every instance but you have to evaluate each puzzle piece.
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First things first!
Examine your reading comprehension and consider the fact the typical Judge has seven years of post-secondary education!
Forget the 'primary' sources until you can brief a case.
Instead, use carefully selected secondary sources.
Excellent secondary sources include 'national' encyclopedias. At least two exist (Corpus Juris and American Jurisprudence).
Some states have their own encyclopedias.
I wrote a paper (for the use of my students) on the subject years ago.
If anyone is interested, send me an email (david @ smultron com).
daw
NYPE
NYLS (by examination)
> First things first!
>
> Examine your reading comprehension and consider the fact the typical Judge has seven years of post-secondary education!
>
> Forget the 'primary' sources until you can brief a case.
>
> Instead, use carefully selected secondary sources.
>
> Excellent secondary sources include 'national' encyclopedias. At least two exist (Corpus Juris and American Jurisprudence).
>
> Some states have their own encyclopedias.
>
> I wrote a paper (for the use of my students) on the subject years ago.
>
> If anyone is interested, send me an email (david @ smultron com).
>
> daw
> NYPE
> NYLS (by examination)
:good:
Happy Birthday Dave!
Ralph
Many states have it codified, most likely in the Code of Civil Procedure (or your state's equivalent) since it is for the interpretation of a legal document and addressing conflicting terms within it.
If it is in the statutes, that is better than going to a secondary source like Brown because Brown and other texts provide the list as it generally exists in most jurisdictions. But many jurisdictions have slight variations (most common is whether angle comes before or after distance).
BUT as others have stated, and it cannot be stressed enough, the list is merely an order of presumptive hierarchy, not an absolute order of importance to be applied in all circumstances.
Although monuments are universally at or near the top of the list, if the physical and/or documentary evidence found in your survey points to a distance being a stronger or more reliable term, then the distance should control.
Where the list is most often employed is where you are deciding to hold a direction vs. holding a distance and you don't have good evidence showing one as being more reliable than the other. In that case, you fall back on the presumption of the codified hierarchy.
A presumption, codified or otherwise should never be held to when the contrary is more strongly supported by the evidence of the case at hand.
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