Rules of the Game: Rules of Evidence I: Judicial Notice
Professional Surveyor Magazine - March 2005
Donald A. Wilson, LLS, PLS, RPF, Land Boundary Consultant
Courts are bound to take judicial notice of matters of common knowledge.
Spoeneman v. Uhri, 332 Mo. 821 (1933)
When considering evidence, and the rules to be applied, two categories invariably arise. While there are several categories of evidence, primary, secondary, circumstantial—among them, there are two related categories that, under the proper circumstances, may substitute for evidence: Judicial Notice and Presumptions.
Judicial Notice is the act by which a court, in conducting a trial, or framing its decision, will, of its own motion, and without the production of evidence, recognize the existence and truth of certain facts, having a bearing on the controversy, which, from their nature, are not properly the subject of testimony, or which are universally regarded as established by common notoriety. (Black's Law Dictionary). Items falling into this category may include laws of the state, historical events, the course of nature, geographical features and other items of common knowledge. Some of these relate to surveying.
"Judicial notice" is that mode of ascertainment by judicial authority of matters of universal knowledge without having such matters established by evidence in individual case. Murray v. Donlan, 433 N.Y.S.2d 184 (1980). In a broad sense, the term "judicial notice" is used to denote both judicial knowledge (which courts possess) and common knowledge (which informed individuals, including jurors, possess); and matters of common knowledge may be declared applicable to case without proof. Bone v. General Motors Corp., 322 S.W.2d 916 (Mo., 1959).
Because some facts material to litigation are matters of common knowledge, they need not be proven by the presentation of evidence. Judicial notice is a manner of dispensing with formal proof because the fact is known to the trier of fact as being a matter of general knowledge. Its purpose is to place facts not capable of contradiction before the Court without the necessity of going through formal proof which would result in time-consuming inconvenience.
The doctrine of judicial notice is not a hard and fast one, but is modified by judicial discretion, the courts not being bound to take judicial notice of matters of fact; whether they do so or not being dependent on the nature of the subject, the issue involved, and the apparent justice of the case.
—City of St. Louis v. Niehaus, 236 Mo. 8 (1911)
The court's time is valuable, and important, and there is no need to "re-invent the wheel" as they say. This is the court system's way of staving off such redundancy.
Judicial notice takes the place of proof, and is of equal force, and as a means of establishing facts it is superior to evidence, as it stands for proof, and is of equal force, and as a means of establishing facts it is superior to evidence, as it stands for proof, and fulfills the object which evidence is designed to fulfill, and makes evidence unnecessary. Beardsley v. Irving, 81 Conn. 489 (1909). It is a judicial short cut, a doing away, in the case of evidence, with the formal necessity for evidence, because there is no real necessity for it. Varcoe v. Lee, 180 Cal. 338 (1919).
Courts are bound to take judicial notice of such matters of common knowledge and science as are or may be known to all men of ordinary understanding and intelligence. Eureka Vinegar Co. v. Gazette Printing Co., 35 F. 570 (1888); People v. Snyder 41 N.Y. 397 (1868); Walsh v. Oregon Ry. & Nav. Co., 10 Or. 250 (1882); Smith v. Townsend, Dall. Dig. 569 (Tex., 1844).
Courts have taken judicial notice of the following: matters of common knowledge, natural facts, scientific facts, historical facts, laws of nature, geographical facts, language, words, phrases and abbreviations. Courts will take judicial notice of the prominent geographical features of the country. Bittle v. Stuart, 34 Ark. 224 (1879); the navigability of streams. Neaderhouser v. State, 28 Ind. 257 (1867); and matters of public history Payne v. Treadwell, 16 Cal. 220 (1860).
Specific examples are such as the court judicially knowing that "10/9/20" is an abbreviation in common use, and indicates October 9, 1920, Cochran v. State, 206 Ala. 74 (1921), that it is common knowledge that few people remember dates with exactness. McLaughlin v. Rawn, 41 N.E.2d 869 (Ohio, 1942) and that town records are often lost. People ex rel. Minard v. Donovan, 240 N.Y.S. 766 (1930).
Regarding the public land survey system (PLSS), the court has taken judicial notice of the location of lands described by township and ranges. Laclede Land & Improvement Co. v. Schneider, 177 SW 388 (1915), as well as the government surveys and the legal subdivisions of the public lands. Bittle v. Stuart, 34 Ark. 224 (1879). Additionally, the Illinois court found that it is common knowledge that many sections are not perfectly square, that many quarter-quarter sections, or "forties", do not contain exactly 40 acres, McLeod v. Lambdin, 274 N.E.2d 869 and that "eighty rods" is 440 yards, or a quarter of a mile. Sing v. St. Louis-San Francisco Ry. Co., 30 S.W.2d 37 (1930).
Regarding land ownership, it is common knowledge that there are in existence few titles to property wherein some flaw may not be suggested. Cutter v. Greene, 185 Wis. 163(1924). Concerning mineral rights, it is common knowledge that rights acquired under mineral servitudes are property rights. Ford v. Williams, 189 La. 229 (1938), and that the title to oil properties will be contested by someone connected with the title, if there is a remote chance of success. Mosley v. Magnolia Petroleum Co., 45 N.M. 230 (1941).
Regarding surveying, and surveying procedure, it is common knowledge that a solar compass is more accurate than the magnetic compass in determining courses and distances. Cody v. Black, 97 Or. 343 (1920). A court, in adjudicating upon surveys, is bound to notice judicially the magnetic variation from the true meridian. Bryan v. Beckley, 16 Ky. 91 (1809) and noted a constant change in variation between magnetic North and true North. Parker v. T.O. Sutton & Sons, 384 S.W.2d 433 (1964).
Also, that surveyors must have chainmen and rodmen with them, and that carrying chain or holding rod is not "surveying." Severance v. Ball, 93 Cal.App. 56 (1928). To resolve discrepancies, it is common knowledge that surveyors reverse courses and readings to locate disputed lines. Richmond Cedar Works v. West, 152 Va. 533 (1929). This is a rule that will be discussed in a future article.
And in discussing evidence, it is a matter of common knowledge that an iron pipe buried in the ground for a long period of years will rust and corrode. Maton Bros. V. Central Illinois Public Service Co., 269 Ill.App. 99 (1933). Regarding fences, the Wisconsin court took judicial notice of the fact that the first patents on barbed wire fencing had not been taken out until 1874. Barrows v. Kenosha County, 8 Wis.2d 58 (1959).
It is also common knowledge that distances are frequently measured by pacing or stepping and assuming a pace or step to be three feet, Transcontinental Ins. Co. v. Stanton, 74 F.2d 935 (1935) and that a surveyor must rely upon help given by local inhabitants for information such as the designation of a starting points, monuments, etc. Vanhoose v. Williams, 396 S.W.2d 784 (Ky, 1965).
And finally, the Connecticut Supreme Court of Errors took judicial notice of the fact that the law of real property constitutes one of the largest and most important subjects in the whole realm of law. Grievance Committee of Bar of New Haven County v. Payne, 128 Conn. 325 (1941). Surveyors have believed that for a long time. Courts agree.
And so we don't get the impression that courts are all business, and lose sight of the fact that most judges enjoy and appreciate times of recreation and relaxation, I found that the Missouri court once stated that it would take judicial notice of the fact that a certain river had long been known as a popular fishing stream. Elder v. Delcour, 269 S.W.2d 17. And to be certain that the record is clear, the Texas court of Civil Appeals stated in 1953 that it is common knowledge that fishing is one of the most popular and innocent pastimes of our people. Maples v. Henderson County, 259 S.W.2d 264. Being a fisherman, that works for me.
About the Author
Donald A. Wilson, LLS, PLS, RPF, Land Boundary ConsultantDon Wilson is president of Land & Boundary Consultants, Inc.; and part owner of and the lead instructor in Surveyors Educational Seminars, a member of the Professional Surveyor/RedVector Dream Team providing online courses for continuing education; and a regular instructor in the University of New Hampshire Continuing Education System for 25 years. He is also co-author of several well known texts.
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