Evidence and Procedures Flashcards

What is the definition of evidence in boundary surveying?

Evidence is ANYTHING for which the effect, tendency, or design is to produce in the mind of a person a persuasion—either affirmative or negative—of the existence of some matter of fact.

What is the difference between evidence and proof?

Evidence is NOT proof. Evidence leads to proof. Conclusions drawn from evidence in accordance with the law may produce proof. Evidence is the starting point; proof is the persuasion that results.

What are the five kinds of evidence recognized by courts?

1) Written evidence (documents), 2) Real evidence (physical objects), 3) Oral evidence (testimony), 4) Judicial notice (accepted facts), 5) Circumstantial evidence (inferences)

What is Principle 2 regarding impartiality in evidence?

A surveyor should strive equally hard to prove not only the position being advocated but also the opposing view. The surveyor must remain impartial and consider all evidence, positive and negative.

Why should a surveyor never use the word 'all' when describing evidence?

Expert opinions are based on available evidence. There may be other evidence about which the surveyor was unaware. Using 'all' can be embarrassing when additional evidence is discovered.

What is Principle 5 about starting a survey?

Every survey of a conveyance must start from evidence that proves the position of at least two consecutive monuments somehow related to the written record.

What standard of proof applies in civil boundary cases?

Preponderance of the evidence ('more likely than not' or >50%). This is lower than 'beyond reasonable doubt' used in criminal cases.

What standard of proof applies to adverse possession claims?

Clear and convincing evidence - a higher standard than preponderance but lower than beyond reasonable doubt.

Who bears the burden of proof in a boundary dispute?

The affirmative party (plaintiff) has the duty of presenting sufficient evidence to convince the judge or jury. The defendant has no obligation to present evidence.

What is prima facie evidence?

Evidence that suffices for proof of a fact until rebutted by other evidence. For example, a recorded deed is prima facie evidence of the original's contents.

What is the difference between direct and circumstantial evidence?

Direct evidence proves a fact directly ('I saw the surveyor set the stake'). Circumstantial evidence depends on inferences ('I saw the surveyor set similar stakes at other corners').

What is the difference between primary and secondary evidence?

Primary evidence is the most certain (the original document). Secondary evidence is inferior (a copy) and is used when primary evidence is unavailable.

What is indispensable evidence?

Evidence that is necessary to prove a fact. For example, a written document is indispensable to prove a land conveyance under the Statute of Frauds.

When does a monument have controlling effect?

When it is: 1) called for in the conveyance, 2) identified at time of conveyance, 3) found to be the original monument, and 4) not shown to be disturbed or moved.

What is the relationship between monuments and measurements?

Monuments called for in the deed control over courses and distances. Measurements are 'finger pointers' showing where to look for monuments, not independent evidence of location.

What is the 'truth of a survey'?

The truth of a survey is the evidence left on the ground and then subsequently recovered. 'The marks on the ground constitute the survey; courses and distances are only evidence of the survey.'

Why are measurements considered the least reliable evidence?

Courts have ruled that measurements are least reliable because they contain error, while original corners by law are without error. Measurements should be used only as a last resort.

What is GPS in relation to boundary evidence?

GPS is a measurement tool subject to the same rules as all measurement tools. It cannot move original corners or override documentary evidence. Technology is a tool, not a substitute for evidence.

What is the parol evidence rule?

General rule that oral testimony cannot vary, contradict, or add to a written document. The written deed is considered the final expression of the parties' intent.

When is parol evidence admissible?

To: 1) explain latent ambiguity, 2) show fraud or mistake, 3) prove lack of consideration, 4) establish a condition precedent, 5) show the deed was not delivered.

What is a latent ambiguity?

An ambiguity not apparent on the face of the document but discovered when applying the description to the ground. Parol evidence may be used to explain it.

What are the elements of adverse possession?

Open and notorious, hostile (without permission), exclusive, continuous for statutory period, and under claim of right. In California: 5 years plus payment of taxes.

What is boundary by acquiescence?

When adjacent owners accept a line as the boundary over time, even if it differs from the deed, due to uncertainty about the true location. Requires good faith uncertainty and mutual recognition.

What is the difference between fact and expert witness testimony?

Fact witness testifies about facts observed (what was seen, done, found). Expert witness testifies about opinions based on specialized knowledge and may give professional conclusions.

What must expert testimony be based on under modern evidence rules?

1) Sufficient facts/data, 2) Product of reliable principles and methods, 3) Principles applied reliably to the facts of the case.

What is the proper order of boundary retracement?

1) Obtain assignment, 2) Title research, 3) Record research, 4) Analyze documents, 5) Field reconnaissance, 6) Search for monuments, 7) Evaluate evidence, 8) Additional research if needed, 9) Final measurements, 10) Conclusions, 11) Set monuments, 12) Prepare documents.

What should a surveyor document about possession?

Fence locations and condition, improvements observed, evidence of use and maintenance, encroachments, and discrepancies from deed lines - both deed lines AND possession lines.