GILMAN PAPER COMPANY, APPELLANT,
v.
DOLPHUS B. NEWMAN, ET UX., AND BENNETT F. JACKSON, JR., ET UX., APPELLEES
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Gilman Paper Company appeals a declaratory judgment determining property boundaries, challenging the trial court's reliance on a Department of Transportation right-of-way map to locate a disputed corner monument. The Florida District Court of Appeal affirmed the judgment regarding road right-of-way determinations but reversed and remanded the boundary determination, holding that the DOT map was inadmissible as competent evidence of the corner location because it lacked supporting testimony establishing its reliability.
The court held that although the trial court did not err in admitting the DOT map (due to the parties' stipulation), the map was not competent evidence of the corner location because there was no testimony establishing its reliability or connection to the original government survey field notes. The judgment determining boundaries was reversed and remanded for a new trial, while the judgment regarding road right-of-way determinations was affirmed.
[1] A stipulation to admit a document into evidence cures any issues of hearsay or authenticity but does not affect the document's relevance or probative value.
[2] The location of a disputed boundary corner must be fixed as closely as possible to that established in the original government survey.
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Join FLexlaw to unlock all legal intelligence“In attempting to locate an unknown corner, whether it is existent, obliterated, or lost, it is necessary to fix its location as closely as possible to that established in the original government survey.”
Establishes the fundamental legal standard for corner location in boundary disputes
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Join FLexlaw to unlock all legal intelligenceGilman filed suit for declaratory judgment alleging that appellees' property encroached onto its land. The central dispute involved locating the commo…
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PER CURIAM.
Gilman Paper Company (Gilman) appeals, urging that the trial court erred in admitting into evidence the Department of Transportation’s (DOT) right-of-way map and in relying on this map as competent evidence of the location of a disputed corner monument. Although we find no error in the trial court’s admission of the map, we must conclude that it was not competent evidence of the location of the corner. Gilman filed suit for declaratory judgment against appellees alleging their property was encroaching onto its land and requesting the court to determine the correct boundary between the lands of each party. The issue turned on the location of the common corner of Sections 11, 12, 13, 14, T4S, R23E, Clay County, Florida.
At the beginning of the trial, the parties stipulated that various surveys and maps would be admitted into evidence, including the DOT map. Since appellant stipulated to the admission of this document, any problems regarding hearsay and authenticity were cured. However, this stipulation did not affect the relevance of the map or its probative value.
In attempting to locate an unknown corner, whether it is existent 1, obliterated2, or lost3, it is necessary to fix its location as closely as possible to that established in the original government survey. See Akin v. Godwin, 49 So. 2d 604 (Fla.1950). Parish v. Spence, 149 So. 2d 58 (Fla. 1st DCA 1963), Barba Inv. Co. v. Walker, 350 So. 2d 509 (Fla. 1st DCA 1977) and Lawson v. Murray, 365 So. 2d 744 (Fla. 1st DCA 1978).
From the record, we cannot determine as a matter of law whether the corner was existent, obliterated or lost. However, that fact is not essential to our determination for, in any event, the corner must be located with reference to the original government survey of 1830. While the DOT map may be the best evidence of this corner and may be the closest to the original government survey, as found by the trial court, there is absolutely nothing in the record supporting this conclusion. The map was introduced by appellees and no testimony was offered indicating the purpose for which the map was prepared, whether it followed the original field notes or if it even purports to fix the location of the disputed corner. As in Barba, there is no competent evidence that appellees made any attempt to locate the corner by reliance on the original government field notes. A resurvey not based upon the original survey is inconclusive in determining boundaries and should yield to a resurvey based upon known monuments and boundaries of the original survey. 12 Am.Jur.2d, Boundaries, Section 62.
The declaratory judgment, in addition to determining the boundaries, also made a determination in respect to the right-of-way of certain platted roads in Clay County. No error is assigned to this part of the judgment and it being severable, that portion is affirmed. In all other respects, the judgment is reversed. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED for a new trial on the determination of boundaries.
MILLS, C. J., WENTWORTH, J., and OWEN, WILLIAM C., Jr., (Retired), Associate Judge, concur. . “An existent corner is one whose position can be identified by verifying the evidence of the monument or its accessories, by reference to the description in the field notes, or located by an acceptable supplemental survey record, some physical evidence, or testimony.” United States Dept, of Interior, Bureau of Land Management, Manual of Instructions for the Survey of Public Lands of the United States (1973). ¶ 5-5, p. 130.
. “An obliterated corner is one at whose point there are no remaining traces of the monument or its accessories, but whose location has been perpetuated, or the point for which may be recovered beyond reasonable doubt by the acts and testimony of the interested land owners, competent surveyors, other qualified local authorities, or witnesses, or by some acceptable record evidence.” Id. ¶ 5-9, p. 130.
.“A lost corner is a point of a survey whose position cannot be determined, beyond reasonable doubt, either from traces of the original marks or from acceptable evidence or testimony that bears upon the original position, and whose location can be restored only by reference to one or more interdependent comers.” Id. ¶ 5-20, p.133.
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Bank OF Am., N.A. v. Kipps Colony II Condo. Ass'n, Inc., 201 So. 3d 670 (Fla. 2d DCA 2016)…ere is some argument regarding whether it is only paragraph 5 that is void; however, because paragraph S cannot be severed from the judgment such that the judgment is effectual, it is the entire judgment that is void. Cf. Gilman Paper Co. v. Newman, 398 So. 2d 887, 888 (Fla. 1st DCA 1981) (“No error is assigned to this part of the judgment and it being severable, that portion is affirmed,”); State Rd. Dep't v. Hartsfield, 216 So. 2d 61, 65 (Fla. 1st DCA 1968) ("The law is equally well settled that where a jud…
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Summers v. McOWEN, 478 So. 2d 397 (Fla. 1st DCA 1985)…of material error, and therefore we REVERSE and REMAND with instructions to enter judgment for the defendant. ERVIN and JOANOS, JJ., concur. . The definitions of existent, obliterated, and lost corners are set forth in Gilman Paper Co. v. Newman, 398 So. 2d 887, 888 nn. 1-3 (Fla. 1st DCA 1981). . Plaintiff’s objection to introduction of the McGriff survey was sustained. . Chance’s recollection that the concrete monument is 87 feet east of the proportional center was apparently incorrect. Other evidence i…
Authorities Cited
- Akin v. Godwin, 49 So. 2d 604 (Fla. 1950)
- P. M. Parish v. Walter Spence and wife, 149 So. 2d 58 (Fla. 1st DCA 1963)
- Barba Inv. Co. v. Walker, 350 So. 2d 509 (Fla. 1st DCA 1977)
- James Eugene Lawson et ux. v. Cleo Murray et ux., 365 So. 2d 744 (Fla. 1st DCA 1978)