California Surveyors Forums

CA Evidence Code Section 1322 states: "Evidence of reputation in a community is not made inadmissible by the hearsay rule if the reputation concerns boundaries of, or customs affecting, land in the community and the reputation arose before controversy."

Hearsay evidence may be admissible given satisfaction of the above.

This topic concerns parol evidence statements on maps in light of the above.

Example, the old lady (husband was subdivider) says the boundary line is here, which agrees with long held occupation and even an un-called-for monument at one corner. But the deed says the line is over there, say 10 feet away. I suspect when we ask the old lady for a statement, the heirs will intervene and refuse her to talk with us and the controversy will arise. I cannot discuss with the heirs without creating a controversy that does not presently exist. My hearsay evidence from the old lady corroborates my boundary retracement resolution, but I cannot get a statement from the old lady on my map.

Do I include my hearsay statement on my map, or do I just leave it in the job folder?

Clark-

You might want to consider another angle to view this from rather than focusing on a “hearsay” aspect of evidence. You’re really talking about testimony here, or like you stated, parol evidence. Is the testimony credible? That seems to be the most important consideration. For credibility, the witness must be impartial (neither emotional nor stands to gain), she must have some compelling reason or basis for her memory of the boundary location, and other competent surveyors would agree with your use of this testimony.

If you’re confident in your position and the testimony meets the credibility test, get a statement on the map per PLS Act 8760, or at minimum, an affidavit that’s kept in your file. I’m not following exactly why you wouldn’t be able to do this, but if not, mentioning it on the map without the follow up documentation may dilute its effectiveness. I once filed a survey with a blank oath after the landowner’s attorney advised him not to sign at the last minute. In retrospect, it looks bad in the record.

I’d leave the hearsay issue off the table. It seems to be a slightly esoteric legal issue that might be sidetracking you from the more critical issues.

Dave Ryan,
Arcata, Ca.

I think I know where you're coming from. On one survey I did, the seller, granddaughter of the original patentee (in her mid-90s when I did the survey) had told my client (buyer) that an old fence was the line between the patent her grandpa originally bought and the one he bought from a neighboring patentee a couple years later. Prior to buying the second parcel, he and neighbor put in a fence between them - or where they thought the boundary was. I located old post holes & wire, dated the wire to about the time of the patents, and generally just needed to get the statement firsthand from the old gal. She lived a couple towns away and has (had) family in the area. Well, the kids & grandkids must have heard that a surveyor wanted to speak with her because although her address & phone were easy to find, she was never around to speak to and letters went unanswered.

In that case, since I had not received the statement firsthand, I told my client that I couldn't find quite enough evidence without the statement to accept the fence. They accused me of being in cahoots with the neighbor to steal land from them, so we fired each other.

On another survey, I did get hold of the neighboring landowner and had a long & informative chat with him. What he told me made several pieces of info fall into place. But, he was only one of several owners. He was the majority owner and the one who had done most of the care and maintenance on the land, but it seems that the other owners convinced him that he needed to develop a quick case of dementia starting the day before he spoke with me. He called me back and explained that he had been very confused, through in some facts contrary to what he had originally told me, and I was back to a very ambiguous situation.

On yet another one, I was surveying 1 lot of a 3-lot PM. All of the exteriors but one that I found fit very well. The PM backed up to an older tract map. After locating several points along the tract line and comparing to record maps, it appeared that the anomalous mon had been moved. On the interior, there was 1 rebar that was supposed to be at the center of a cul de sac, being the NW of my client's lot, the NE of the other developed lot, and a POL on the S line of the undeveloped lot. What I found was that the cul de sac had been built rather haphazardly, drifting out of the RW so that the N'ly edge of the physical road bulb was almost at the center of the RW bulb. There was also a sizable pile of dirt there. A couple whigs of the yellow stick and a couple scoops of the shovel and there was a 5/8" rebar & plastic cap, as called on the PM. But it was nearly 2' from the record position. This was troubling because the other 5/8 bars set by that surveyor were all within about 0.05' of record by my measure. But the wand hadn't given me a nice clean sound. I had been surprised that the bar had only been a couple scoops down. Another wave of the wand and still getting that fuzzy sound when it should have been a nice clean zing. With a little honing in on a 2nd reading and a few more scoops, I find an identical 5/8" rebar & plastic cap. WWWhhhhaaaaatttt????

My client must have been watching and sensed my confusion, so he comes sauntering out to see how things are going. I told him what I was finding and he proceeds to tell me about the builder, who had been out a few weeks before moving dirt around. Seems that he knocked out a couple of points and reset them by measuring swing ties from other corners. 150' this way, 230' that way, slam it in where the arcs cross. Good Enough!
Hoo Buoy!

So I ask my client "Why are there two here?" "He must have forgot that he had reset the one, or he couldn't find it when he came back."

Well, that explained why one of the exteriors was missing. But what about the point on the S line of the PM that seemed to be out of whack? My client didn't see him hit or reset that one, but the neighbor did. The builder measured along the back line of one of the lots for one swing and from the center of cul de sac as he had reset it (not sure which reset, they were about 3 1/2 feet apart), and took the distance on the map from center of cul de sac to back corner as being the distance from the RW to the back corner, so added the radius of the cul de sac to the distance.

It all made sense with the info from the lot owners. But when I asked them if they would be willing to sign an account of that story written into my field book, both declined. They didn't want to make trouble for the builder.

In that case, I did receive the statements firsthand, and they provided explanation as to why 3 mons were out of place and why I rejected them. I included the story as told to me (although more brief than told here) in my narrative, noting that my client declined to sign the statement. I figured that since it was far more plausible than previous surveyors having missed the fact that the exterior mon was nearly 50' out of place and that the surveyor of the PM measured very well around the edges to set his rebar but completely screwed up by missing the one point with two rebar, that I was good to go.

In your case, if the statements given directly to you by the old gal corroborates the evidence you've found and tends to make it all fall together, assuming that you won't be able to get a written and signed version, I would include the version as told to you in a narrative together with a notation that she later refused to, or was unavailable to sign the statement.

Note that although we are authorized by statute to take such oaths, the hearsay exception statement does not mention that you need a signed statement for it to be admissible. It certainly helps, but I don't think that it's absolutely necessary. The credibility of the statement can be shown by its agreement with other facts.

Interesting input Mr. Ryan and Mr. Page. Real world stuff.

Knowledge of boundary line locations has been passed down through word of mouth for thousands of years.

The old lady said the fence was the on line, all relevant evidence supports that, except the deed distance call. My calc bearing lines fit the old lady's fence lines within a board width or two.

Corroborative evidence leads to the preponderance of evidence.

It seems that peppering a map from time to time with reliable word of mouth memorializing hearsay statements might just be better than math closures and might add to the reliability of future evidence. For lack of anything other than math.

Keep your ears on out there.