Saturday, January 19, 2008
In 1997, a landowner began to dredge a section of the Utah Lake, sparking action by state officials and leading to a legal battle which is finally coming to a head. This battle, however, involves not only private landowners and the state; environmental groups subsequently joined the fray and contended that the Utah Lake's shore's wetlands are host to wildlife, including more than 40,000 migratory birds. All of this has led to a case being heard in the United States District Court for the District of Utah, where Judge Dale Kimball will establish the property boundaries along the shores of the lake. Judge Kimball has assigned a special master, BYU Law Professor Michael Goldsmith, who will hold a series of hearings and submit a report of proposed boundaries, which the judge is expected to adopt.
As part of their case, families who have farmed the land for generations submitted affidavits recalling uncontested use of the land from personal observation and knowledge from their ancestors. The state has objected to these "anecdotal stories" of ancestors as hearsay and inadmissible in court. Goldsmith seemed preliminarily to agree with the state, noting that any evidence of land use must be documented or come from personal knowledge. Goldsmith noted that "[f]amily lore is not going to cut it as admissible evidence."
Professor Goldsmith may very well be right, but the first thing that jumped to my mind upon hearing about this case was Rule 803(20). Utah Rule of Evidence 803(20), like its federal counterpart, indicates in relevant part that "[r]eputation in a community arising before the controversy, as to boundaries of or customs affecting lands in the community" is admissible as an exception to the rule against hearsay. Now, what exactly does this rule mean? I must admit that I do not know as it is one of the more obscure hearsay exceptions on the books. A quick Westlaw search reveals that the federal version has only been cited 12 times, and a quick glance at those cases reveals that in many of those cases it was simply cited in passing. See, e.g., Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 568 (D. Md. 2007). Meanwhile, courts have cited state counterparts of this rule in only 34 cases.
A look at how some courts have applied their versions of Rule 803(20) reveals that there may be some merit to the argument that the family members' affidavits should be admissible. For instance, in Wells v. Sanor, 151 S.W.3d 819 (Ky.App. 2004), Nevard Wells claimed that he had the right to exclusive use of a bridge, and the Sanor family, which had purchased property from the heirs of George Delong, claimed that they had an easement over the bridge. The court found that testimony from George Delong's sons about his statements concerning the creation of the bridge were admissible pursuant to Kentucky Rule of Evidence 803(20). See id. at 824 n.3.
Conversely, in Roberts v. Allison, 836 S.W.2d 185 (Tex.App.-Tyler 1992), the court refused to allow a party to testify concerning an alleged oral agreement between his grandfather and the appellee's predecessor in title, which allegedly gave the former an easement. The court found that this testimony was inadmissible under Texas Rule of Evidence 803(20) because the "proposed testimony pertain[ed] to an individual family's assertion of an easement; there [wa]s no contention of the community's interest in or the community's knowledge of the Roberts family's claim to access Appellee's property." Id. at 191.
I only found one case where Utah has applied its version of Rule 803(20) -- Clair W. and Gladys Judd Family Ltd. Partnership v. Hutchings, 797 P.2d 1088 (Utah 1990). In Hutchings, a plaintiff/property owner brought an action, inter alia, to relocate a fence line, giving him more property and reducing the property of his neighbor, the defendant. See id. The trial court refused to allow the plaintiff to introduce into evidence statements allegedly made by a former owner of the defendant's property that he did not think that the fence line was on the true boundary between the two parties. Id. at 1090. The Supreme Court of Utah affirmed this ruling, finding that the statements were not admissible under Rule 803(20) because the "plaintiff's proffered testimony did not consist of reputation in the community as to a boundary. The statements were simply the subjective opinion of a former owner." Id. at 1091.
The ruling in Hutchings thus seems more in line with the ruling in Allison than the ruling in Sanor, making it possible that the affidavits in the Utah Lake case should be considered inadmissible hearsay. That said, the proferred testimony in Hutchings and Allison was solely the testimony of one prior landowner. While it is difficult to say exactly what was in the affidavits without seeing them, it appears to me that they consist of several people discussing alleged historical, uncontested land use across generations. This seems more like testimony that should be admissible under Rule 803(20), but it is difficult to draw any conclusions without seeing the affidavits and more research into Rule 803(20).