LITIGATING THE ROAD CASE
INTRODUCTION: Historic road cases are not among the “Top Ten” list of most frequent cases filed with any court. Most often,, parti to a disputed highway - of whatever nature - are able to resolve their differences using surveyors, common sense and a willingness to compromise. By the time the case crosses the attorney’s desk there are collateral issues between the landowners and public agencies. These issues create more pressure on the case than would otherwise be placed. After filing the case, the attorneys sometimes find that the case is seriously undervalued by the trial court. Needing to quickly dispose of his docket, the judge - or more likely his law clerk - “pigeon holes” the case under some caption other than that which accurately describes the issues. The role of the historic road litigator thus becomes two-fold: educating the trial court followed by effective advocacy.
Historic road cases cannot be properly evaluated by sitting behind a lawyer’s desk. After all, the need, location and route of the road were set by topography and commerce of their day. The litigator can only recognize and collect data by being in the field. Judges, however, rarely are able to conduct site visits. In today’s milieu of heightened security for public officials and Covid 19 the logistics involved in a judge’s field visit are overwhelming and costly. Thus, the road litigator’s additional challenge is to “bring the field to the court”.
There is not, by any means, one template or format for how the litigator brings the “mountain to Mahomet”. The materials here share with you my experiences over 30+ years of road litigation. This was before, and after, the advent of personal laptop computers that have so revolutionized litigation and courtroom presentations. However you make your presentation there is one guiding rule borrowed from the military: K.I.S.S. Keep it simple and stupid! The more complex your presentation gets the less receptive a jury or judge will be.
HOW HISTORIC ROAD CASES ARISE: Based on experience, the following are some of the circumstances under which historic cases have been litigated. Your client need not be rural or urban. Each applies.
Road and Fuel Taxes: Motor carriers pay a sales tax when purchasing fuel at the pump. They also pay a road and fuel tax for burning the fuel to propel a commercial vehicle over a public highway. That the road is not a public highway is a major source of litigation. It is also a source of major savings in annual taxes.
Trespass Upon The Trophy Cabin: Wealthy Mr. A buys a mining patent in an isolate area near or accessible to ski resorts and builds an expensive trophy cabin. It is surrounded by public land (usually U.S. Forest Service administered). HIs title insurance company led him to believe the road accessing his new property is private. Yet, he observes numerous vehicles driving over his land on the nearby land route. Such invasions of privacy must be stopped!
Agency Denial of Access: Wealthy Mr. B has purchased a mining patent and intends to build his trophy cabin. The Forest Service or BLM, however, inform him that he does not have legal access to the mining patent. These agencies require him to apply for a road permit under the Federal Land Policy & Management Act (FLPMA). The local County building department will not issue him a building permit without verification of access.
Denial of Access: For many decades the public has used a road leading into BLM or U.S. Forest Service property to access thousands of acres of public land for hunting, hiking or simply “communing with nature” whether clothed or unclothed. No one ever objected or stopped them. The local County Commissioners believe the road is a county road. Wealthy investors have purchased old homesteads and ranches located on the road. Desiring to have their “private estate” these investors erect a gate across the road thus barring access to the public lands.
Lifetime Revocation of Hunting Licenses: Local Rancher owns two properties surrounded by federal lands. He is also an avid hunter holding a license he considers more valuable than his wife and family. There is a road between his two properties and he bulldozes the road to improve passage and enhance safety. One or more of the federal agencies claim he has trespassed and damaged the public land. The state wildlife department threaten Local Rancher with lifetime revocation of hunting privileges because of the trespass. Under interstate compacts this will also mean that Local Rancher cannot hunt in any other state.
PROCEDURES FOR RELIEF:
Rule 8, C.R.C.P. This is your conventional Complaint, Summons and Civil Cover Sheet filed with the District or County courts seeking money judgments and, importantly, such equitable relief as is authorized to the court. (County courts in Colorado do not have authority to quiet title to property)
Rule 105, C.R.C.P. / Quiet Title: This is a specific rule governing actions to quiet title to the ownership use or boundaries of real property. All persons or entities who have or claim an interest in the road must be joined as parties. A party not desiring to participate may opt out of the proceeding by delivering a Quit Claim Deed or other similar conveyance resolving the title dispute.
U.S. Quiet Title Act: This is a specific statute conferring authority to quiet title to easements, parcels and other interests involving federal lands: whether held by BLM, U.S. Forest Service or any other agency. It has its own procedures, requirements and statute of limitations. See: 28 U.S.C. 2409a
TRIAL PREPARATION AND DISCOVERY: Your focal concern here is not legal research. Instead, you are concerned with the discovery, acquisition, collection and assembly of materials necessary to present the history, topography and other factual bases of your claim(s). Certainly, anecdotal information from pioneers, “old-timers” and others is valuable - if these persons are still alive. But never underestimate the need and importance of public records. Often, the correct history is derived from the public records and not from the anecdotes or failing memories of old-timers.
GLO Surveys: As a matter of law virtually all surveys begin with the surveys commissioned by the U.S. Congress in the 1870’s and finally concluded in the 1930’s. The surveys were to include all federal lands and the surveyors were to additionally report on flora, fauna, topography, soils and other aspects that would be of interest to homesteaders and land speculators. The surveys were performed by private surveyors under contract to the General Land Office (GLO) and supervised by the U.S. Surveyor General. In the 1930’s the GLO was renamed the “Bureau of Land Management”, a division of the U.S. Department of Interior.
The GLO surveys set the monuments for the corner of Townships, Ranges and Sections. Detailed surveyor’s notes were recorded with the GLO and persons in Washington, D.C. then drew plats which were recorded with the GLO. The originals are on file with the National Archives and Records Administration (NARA), either in Lafayette, CO or Reston, VA. Copies of the GLO surveys can be easily downloaded by access “blm.gov”, clicking on “Services”, then clicking on “Public Land Records”, and entering the state, county, township, range and principal meridian of the property you are searching.
The GLO surveys were generally accurate and reliable. Nonetheless, I have encountered the “Much Maligned Mr. Murphy” who performed “Whiskey Surveys” in the back room of the local saloon. I have also encountered the “Phantom Surveys” (no saloon necessary, just draw lines and no one will know the difference). Not infrequently, the corner monuments for sections, townships and ranges were incorrectly set. Because settlers used these monuments to place their fences the courts developed the “Rule of Public Surveys”. The monument placed by the GLO surveyor is deemed the correct and controlling corner, regardless of error. Bishop v. Johnson 100 So.2d. 817, 820 (Fla. App. 1958)
In some instances, BLM and USFS have commissioned re-surveys: often to correct prior errors. Such re-surveys, however, do not establish boundaries or will they alter the boundaries set in the original survey. 43 U.S.C. 772; Everett v. Lantz 252 P.2d. 103, 107-108 (Colo. 1953); Beaver Creek Ranch, L.P. v. Goodman Leverich 226 P.3d. 1155, 1162 (Colo. App. 2009) A re-survey does not alter ownership or title to the land. (Id.)
Private Surveys: All private surveys begin at the section, township and range corners set by the GLO surveyors. Working from these corners the surveyor frequently runs along the boundaries of the aliquot sections in order to reach the Point of Beginning for the private survey. The Point of Beginning is often express in bearings from the nearest GLO monument. The private survey is then reduced to a plat which contains not only drawings of the parcel but also the legal description expressed in metes-and-bounds. The plats are then recorded within the applicable county.
The private survey of a subdivision is called an “original survey”. Each subsequent survey of that same subdivision is, by law, merely a re-survey of the original survey. Tyson v. Edwards 433 So.2d. 549, 552 (Fla. App. 5th Dist. 1983) If the monuments set in the original survey conflict with the legal description set out in the plat, then the monuments control over the plat even if set incorrectly. Morales v. CAMB 160 P.3d. 373, 376 (Colo. App. 2007)
Title Histories: Since colonial times, and particularly during the westward expansion, there emerged a professional known as the “abstractor”. Often these abstractors were attorneys but just as commonly they were not. Under license from the various Territories or States the abstractor compiled a list of all documents recorded pertaining to a particular parcel. Copies of these documents were then made (sometimes painstakingly in cursive writing) and assembled into a book called, unsurprising, an “Abstract”. The abstractor then interpreted the meaning of each document to achieve a “chain of title” starting the U.S. patent to the then-present date. Abstractors began dying out after World War II. The advent of tract homes and large subdivisions militated against the laborious time it took to create an abstract. Today, few states specifically license abstractor. Instead, there are three common title searchers:
Title Insurance Company: For a fee based upon the purchase price this company provides a “laundry list” of all recorded documents pertaining to a parcel of land. the list does not include copies of the documents, although modern title commitments often have an internet link to the the document. The title company’s liability is based upon whether the laundry list is accurate and complete.
Attorney: An attorney licensed to practice law in the state where the parcel is located is fully empowered to perform the duties of abstracting.
Landman: This is a title researcher devoted exclusively to the research and documents relating to mineral interests: most commonly, oil and gas properties.
For purposes of court presentation, it is most often necessary for the attorney to review all documents beginning with the original U.S. Patent. These patents can be found on the BLM website (blm.gov). More official copies can be found at the County Recorder’s Office, for which you will need to review the Grantor-Grantee Books for the year you believe the patent was recorded. Pioneers often retained their U.S. Patents in their homes and did not record them until selling the land to a third party.
Aerial and Surface Photography: Aerial photography was not commonly employed until the 1930’s although I have encountered some which date from the 1920’s. The EROS Center in Sioux Falls, SD, is the repository for aerial photographs taken by the BLM and other federal agencies. You can access their data through the EROS website. The U.S. Department of Agriculture often has more current aerial photography since review of soils, crops and grazing practices are more frequent than BLM’s needs.
In some instances it is vital that you quantify the size of buildings, roads or other landmarks appearing in aerial photography. This is “photogrammetry” and there is a National Photogrammetrist Association whose membership can be accessed on the internet. Did you know, for example, that two-track trails through the sage brush are uniformly 7.2 ft. apart for pickups built in or after the 1960’s? If the two-track route you are studying is narrower than 7.2 ft. then you may be looking at a land route created before 1960 or by a war surplus jeep. Mud wagons and stage coaches were narrower yet.
There are other sources of photographs. In one case, the opposing attorney submitted affidavits from two witnesses attesting that a land route to a particular property never existed prior to two years before the litigation was filed. However, the client’s sister was married on that same property 20 years earlier. Video film from the wedding showed the two affiants driving across the land route to attend the wedding!
I have found Google Earth to be an invaluable beginning point for aerial photography of real estate. Google Earth’s website includes “aging” of historic photographs. That is, you can look at aerial photographs taken 5-20 years prior to the present date. Using Auto-Cad software employed by surveyors, Google Earth photos can be overlaid atop mining maps, USGS quad maps and railroad profiles (under the 1875 General Railroad Right-of-Way Act). Such overlays can also be programmed to be sequential allowing you to demonstrate the historical progression of a land route: often in relation to homesteads, ranches and mines along the route.
Your opponent may attempt to thwart the admission of your photos into evidence by asserting that admission must be based upon focal length, shutter speed and other technical aspects of the photo. Untrue and No So. the admission of a photograph into evidence is based solely on whether the photo fairly and accurately depicts the subject matter or parcel identified in the photo, together with whether the subject matter is relevant to the trial People v. Salcedo 985 P.2d. 7, 11-12 (Colo. App. 1998); State v. Dunn 705 N.W.2d. 246, 251 (Neb. App. 2005); Whitney v. State 99 P.3d. 4547, 482-83 (Wyo. 2004). This gives considerable latitude for what you wish to present.
Field Inspections: It is impossible to over-stress the need for such inspections. You, as the litigating counsel, must visit the site; photograph what you need; and, monitor the site during the course of your litigation to documents changes or alterations to the landmarks. Cell phone pictures are nice but are not a replacement for digital SLR photography. All photographs should be formatted in jpeg as jpeg allows the easiest transition to Power Point or other presentation software. Photo Shop software can be used to annotate your photographs.
In some instances, you may wish to create a video of your site inspections. GoPro cameras are excellent for such work so long as you can have continuous forward movement. Nothing is more boring than a video of a still life. When continuous forward movement is not possible then you can take SLR photos, say, every 50 ft. Then, a skilled arranger can zoom from one photo to another to create the illusion of movement.
Depositions: Whenever possible, conduct deposition of the main parties in the field. These parties are often most comfortable and personable in their own element. Video and sound should be taken together. The court reporter and videographers will need a power outlet. This can be done by renting a small, quiet portable generator (Honda makes a good one) connected to the videography unit by a 100 ft. extension cord. At 100 ft. the generator is far enough away to not “bleed” on to the audio portion of your deposition.
Modern court stenographers employ computer operated transcribing units. These units record the specific hours, minute and second of each statement by the deponent. Impeaching a witness through the traditional use of transcripts is cumbersome. All attorneys and the witness must have a copy of the transcript in hand. The witness must then page through the transcript to find the applicable testimony. The witness then reads the question and his testimony. To avoid this fumbling practice I have use specialized power point programmers who correlate video and audio at the same hours, minute and second of the transcript. I then ask the Power Point Technician to bring up “Check Point 12”, which is a specific moment in the witness’ deposition. The technician then plays the combined audio-video testimony. I simply ask the witness: “Is that you?” “Is that your voice?” “Did you make that statement?”
Written Discovery: For all practice purposes, this should be confined to: (a) Request for Admission relating to authenticity of documents found from title histories, aerial photography, surveys, etc.; and, (b) Requests for Production of Documents to determine what records your opponent may have.
EXPERTS Colorado, Wyoming and Nebraska have adopted the federal definition of an expert. It is a witness who, by “….knowledge, skill, experience, training or education….” has greater knowledge about a particular subject than that level of knowledge presumed to be held by a juror. C.R.E. 702; F.R.E. 702; W.R.E. 702; NRS 27-702 The admissibility of the expert’s testimony is based on whether the court believes the expert’s opinion will assist the jury (or the court!) in making factual conclusions. C.R.E. 702; W.R.E. 702 There are varying levels of experts on any subject. An auto mechanic is an expert in auto repair but his opinion has less weight when compared to an automotive engineer trained at M.I.T. with 20 years experience in analyzing, say, ignition defects.
The expert has certain limitations. While he can testify to his opinion on a particular issue, he cannot testify to the applicable law or legal standards controlling the case or issues at trial. Quintana v. City of Westminster 8 P.3d. 527, 530-531 (Colo. App. 2000) Moreover, a judge is deemed to be an expert in law. Therefore, few attorneys are allowed to testify as “experts”. Judges, however, confess that their expertise actually relates only to pre-trial and trial procedures in his or her own courtroom. Judges cannot possibly be experts on every element and aspect of all substantive law. In several instances, I have testified as an expert giving the court the “mile posts” or “road signs” of the analysis of an issue at trial.
The So-Called Title Expert: I do not recognize the “title expert”. Interpretation of documents is a task easily performed by the court. Such interpretation is an issue of law not committed to the province or powers of a jury. The court, itself, can readily determine which documents are in, or out, of the chain-of-title sequence. Spend your client’s money on obtaining copies of all documents in the chain-of-title. Avoid asking the title researcher to render an inadmissible opinion on the meaning of the document.
Surveyors: Without question, the Professional Land Surveyor (PLS) is fundamental to any road litigation. If your client prevails the court will require that a survey be made of the road. The court will review and approve the survey and you will eventually record the survey for future notice. If the breadth, width, course, route or arc location of the road are at issue then the surveyor provides the specific data and picture to the court. As mentioned in the section on photographs, surveyors use specialized software enabling them to accurately overlay various plats, photographs and maps to show the historic progression of road and land use. There are, however, special rules for using surveyors as experts.
First, do not call surveyors to testify to boundaries or elements of Boundary Law. The surveyor’s field of expertise involves arithmetic and geometric calculations of course, distance, arc, route and area. Surveyors are not trained in boundary law. They do not hold degrees in boundary law. They do not regularly render, in court, opinions on boundary law. As one seasoned and highly esteemed surveyor once put it: “I created lines. Courts created boundaries. My lines, however, are better than their lines”.
Second, require the surveyor to photo document his survey, or re-survey, of the subject property, boundaries, lines or landmarks. A picture is worth a thousand words and defeats impeachment more times than not.
Third, surveyors sometimes believe that surveying techniques take precedence over the actual rules of law. Beware the surveyor who forgets the fundamental rule of surveys. Monuments on the ground, even those incorrectly placed, control over drawings on paper.
TRIAL PRESENTATION THROUGH COMPUTER SOFTWARE
Demonstrative Evidence: Power Point productions are merely one form of demonstrative evidence. They are merely a visual digital display of other exhibits, including photos and plats, which are admissible under other governing Rules of Evidence. There are few limitations on the scope and style of materials used as demonstrative evidence. The basic rule is simple. The litigator ma use any means or methods of public demonstration to illustrate a fact, so long as the fact illustrated has relevance to the decision by the jury or judge AND the means of demonstration do not hold the opposing party to ridicule, gory details or otherwise shock the conscience of the court. People v. Richardson 58 P.3d. 1039, 1045-46 (Colo. App. 2002); State v. Callaway 267 P.2d. 970, 9872 (Wyo. 1954); State v. Gutierrez 726 N.W. 2d. 542, 564 (Neb. 2007).
Mechanics of Assembly and Use: All photos, plats, maps and other documents used in your Power Point should be formatted in jpeg. They can then be easily modified in size to fit the Power Point cell frame. Experience teaches the PC’s are far better than Mac’s for Power Point. PC’s more accurately portray the clarity, color and texture of photographs. Backgrounds should be light blues, mauves or tans. Avoid stark white (too glaring), red (disturbs focus) or heavy, dark colors (produces a dim and somber mood).
Whenever possible, employ a separate technician to run the Power Point during presentation. If the equipment fails (e.g., a projector light burns out unexpectedly) the technician can make the repairs while you continue your presentation. You thereby avoid a lapse in concentration by the jury, judge or other trier of fact. Use selected primary slides for each different expert witness. This promotes organization of your material as well as makes the Power Point appear smaller in volume than it actually may be. Hyperlink photos to the primary slide for each witness. As the expert begins his testimony he may request the technician to switch to the hyper-linked photos to illustrate his testimony.
Power Point - and other newer software - is surprising versatile. In addition to hyper-linking photos my litigation technician has been successful in embedding videos, animations and field depositions into the main Power Point. Recently, I encountered Trial Manager, another helpful software by which exhibits can be presented individually. The witness can draw or write on the exhibit with the drawings being preserve for court usage.
Equipment: Bring your own, whether rented or owned. Do not always rely upon the court’s projectors or equipment. This includes the screen upon which the Power Point is displayed. In one trial, I found the screen mounted behind the witness stand. This required the witness to step out of the witness box, illustrate his materials and then step back in. I rented our own large screen and set it up across from the jury box. The judge, jury, witness and all counsel could readily observe the screen without leaving their seats.
Correlation to Official Exhibit Book: Rules 26 and 16, C.R.C.P., are often use to require the parties to assemble a “Master Exhibit Book”, or “Official Exhibit Book” that contains undisputed exhibits from all parties. Traditional trial practice requires you to present a paper exhibit to the witness. The witness then identifies it by subject and number. The judge or jury (as well as all counsel) then fumble and thumb through pages to find the specific exhibits. Then everyone must concur that they each have the same exhibit in front of them. Then, and only then, do you continue with your examination. Concentration by the trier of fact has been lost.
You can avoid all this through Power Point (or Trial Manager). Bring up the primary slide for the witness. In the lower right hand corner you have inserted “OEB #12(2)”, for example. This refers to “Exhibit 12, Page 2, Official Exhibit Book”. No need for anyone to fumble through books turning pages. Everyone is looking at the same document. Opposing counsel, in cross-examination, can ask the Power Point Technician to return to that particular slide, and then asked questions in cross-examination.
Power Point As Admissible Evidence: Historically, it was not uncommon for the court to admit a chart, graph or other piece of demonstrative evidence as an exhibit in the trial. It was then given to the jury for their review in deliberations, along with all other admitted exhibits. There is no reason a Power Point presentation cannot be treated in the same manner. Understand, however, that someone will need to be knowledgable in the operation of the Power Point hardware. This is an additional reason for employing a separate Power Point Technician to handle the courtroom presentation. The technician is available to run the Power Point if requested by the jury and approved by the court. Certainly, the attorneys would never be so approved.
TRIAL VS. SUMMARY JUDGMENT
Summary Judgment: Summary judgment is the preferred vehicle for the court’s interpretation of deeds, chain-of-title documents and other issues of law. Whenever possible, reduce the factual dispute to the absolute minimum through Requests for Admission or the submission of unimpeachable documents: e.g., certified copies of documents from the County Recorder. Great care must be taken, however, in assembling the Motion for Summary Judgment. Road cases involve great volumes of material. A judge simply does not have the time (or the interest) in reading 500 page motions from each side. As one judge put it: “I deny the motion because I do not have to read it. It’s too lengthy and conducting a trial will take less time”.
Trial Trial is left for those disputed factual issues requiring anecdotal testimony from live witnesses or comparisons between disputed documents. Such disputed facts may include, inter alia, the width of a land route. Here agina, the Power Point assembly can be used to organize witness testimony as well as to impeach the opponent’s witness by visual and auditory recordings of the witness.
EVIDENTIARY RULES
Public Records; Self-Authenticating:
C.R.E. 902: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims….(7) Public records or reports: Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement or data compilation, in any form, is from the public office where items of this nature are kept; (8) Ancient documents or data compilation: Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.” W.R.E. 902(4); N.R.S. 27-902(4)
C.R.E. 1005: “Public Records: The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if other admissible, may be proved by copy, certified as correct in accordance with Rule 9802 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given. W.R.E. 1005; N.R.S. 27-1005
Originals vs. Duplicates of Documents
C.R.E. 102: “To prove the content of a writing, recording or photograph, the original writing, recording or photograph is required except as otherwise provided in these rules or by statute of the State of Colorado or of the United States.” W.R.E. 1002; N.R.S. 27-1002
C.R.E. 103: “A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances if would be unfair to admit the duplicate in lieu of the original.” W.R.E. 1003; N.R.S. 27-1003
Admissibility of Contents (Lost Documents)
C.R.E. 1004: “The original is not required, and other evidence of the contents of a writing, recording or photograph is admissible if: (1) Originals lost or destroyed: All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or (2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or (3) Original in possession of opponent: At a time when an original was under the control of the party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at hearing, and he does not produce the original at the hearing; or (4) Collateral matters: The writing, recording or photographs is not closely related to a controlling issue.” W.R.E. 1004; N.R.S. 27-1004
Lost Documents Statute: In some cases a public record is indexed but cannot be found. C.R.S. Sec. 13-25-113 is quite clear and unambiguous:
“When, in the progress of any suit in any court in this state either party thereto relies for its maintenance or defense in whole or in part, on any deed, bond, note, draft, bill of exchange, letter or any other writing alleged to have been executed, signed or written by the adverse party, and to have been lost or destroyed, the party so relying on the same as evidence in his behalf in the trial of the cause shall not be permitted to give evidence of the contents thereof by a competent witness until said party of his agent or attorney first makes an other to the loss or destruction thereof, and to the substance of the same.”
The affidavit must be made upon personal knowledge of the affiant that the document is lost or destroyed as well as its contents. People v. Heckers 543 P2d. 1311, 1313 (Colo. App. 1975) I have not fond a counterpart in Wyoming or Nebraska statutes.
Voluminous Documents or Photographs / Summaries
C.R.E. 1006: “The contents of voluminous writings, recordings or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary or calculation. The original or duplicates shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.” W.R.E. 1006; N.R.S. 27-1006
Hearsay and Exceptions to Hearsay
C.R.E. 803(8): “The following are not excluded by the hearsay rule, even though the declarant is available as a witness: …. (8) Public records and reports. Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding (criminal cases)….”. W.R.E.803(8); N.R.S. 27-803(7)
C.R.E. 803(10) “The following are not excluded by the hearsay rule, even though the declarant is available as a witness: … (10) Absence of public record or entry. To prove the absence of a record, report, statement or data compilation, in any form, or the non-occurrence or non-existence of a matter of which a record, report, statement or data compilation in any form was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony that a diligent search failed to disclose the record, report, statement or data compilation or entry.” W.R.E. 803(10); N.R.S. 27-803(9)
C.R.E. 803(14): “The following are not excluded by the hearsay rule, even though the declarant is available as a witness …. (14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded or filed document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.” W.R.E. 803(14); N.R.S. 27-803(13)
C.R.E. 803(15): “The following are not excluded by the hearsay rule, even though the declarant is available as a witness… (15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealing with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.” W.R.E. 803(15); N.R.S. 27-803(14)
C.R.E. 803(16): “The following are not excluded by the hearsay rule, even though the declarant is available as a witness: … (16) Statements in ancient documents. Statement is a document in existence twenty years or more the authenticity of which is established.” W.R.E. 803(16); N.R.S. 27-803(15)
C.R.E. 803(20): “The following are not excluded by the hearsay rule, even though the declarant is available as a witness …. (20) Reputation concerning boundaries or general history. Reputation in a community arising before the controversy as to boundaries or or customs affecting land in the community; and reputation as to events of general history important to the community or state or nation in which located.” W.R.E. 803(20); N.R.S. 27-803(19)
C.R.E. 803(23): “The following are not excluded by the hearsay rule, even though the declarant is available as a witness… (23) Judgment as to personal, family, or general history or boundaries: Judgment as proof of matters of personal, family, or general history, or boundaries essential to the judgment, if the same would be provable by evidence of reputation.” W.R.E. 803(23); N.R.S. 27-803(22)
SUMMARY
The foregoing citations may help you in organizing your initial research and trial strategies. Keep your presentation simple and direct.
James A. Beckwith
Copyright 2014, 2022