Jeff Lucas discusses this topic in the December, 2011 issue of POB magazine particularly in regards to PLSS corners.
http://www.pobonline.com/Articles/Colum ... 0001133212
In a nutshell Lucas says BLM Cadastral Surveyors use the Substantial Evidence standard while private surveyors use the Preponderance of Evidence standard when evaluating corner evidence. The question raised in my mind is what does this mean to me? I am dealing with this very issue right now. I am going to resist the temptation to propose a fact scenario because no two are the same.
Does the preponderance standard call for more than 50% of the evidence required to prove a corner whether the evidence still exists or not or does it call for a sort of vote of the evidence that actually exists? In other words, 60% of the evidence points to location A and 40% points to location B therefore A wins.
Substantial Evidence vs Preponderance
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Dave Karoly, PLS
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Substantial Evidence vs Preponderance
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Propst
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The last paragraph of Lucas’ article bears repeating:
The BLM’s manual is an interesting book, and every surveyor who practices in a PLSS state should own a copy, but that’s about it. It’s not the gospel on private-practice surveying. It’s not even good instruction on retracement. It’s a book about original surveys of the public domain. How many private-practice surveyors are doing that kind of work?
I personally think it does give some good retracement techniques, but it certainly isn’t the controlling legal authority on PRIVATE boundary retracements some might think.
In response to your request, here’s an overview on the Preponderance Standard.
"Introduction to Civil Litigation" third edition, Mark Weinstein, The Philadelphia Institute, West Publishing, 1993 (while nearly 20 years old, this is still a current text)
Chapter 10, section G, page 286:
Begin quote:
G. Burden of proof
The burden of proof is the standard that the factfinder is to apply to a set of facts in determining how to reach a verdict. Burden of proof is really a composite of two burdens: the burden of producing evidence and the burden of persuasion. For purposes of this chapter burden of proof means burden of persuasion.
In a civil case, in order for the plaintiff to prevail, "a preponderance of the evidence" must be shown, making it more likely that a plaintiff's version of the facts is correct then is the defendant's version of the facts. The applicable burden of proof is always covered by the trial judge in the charge to the jury. In a civil case the jurors will often be asked to imagine a set of scales with the defendant's evidence piled on one side and the plaintiff's evidence on the other. If the scale is in perfect equilibrium or if the defendant scale tips lower than the plaintiffs, plaintiff may not recover since the burden of proof has not been satisfied. If plaintiff's tray of evidence is heavier than defendants so that it tips lower, no matter how slightly, plaintiff is entitled to recover.
In practice, the test is far more complex. For example, the fact that plaintiff produced more witnesses than defendant does not satisfy the burden of proof. The credibility of each witness must be assessed, including the witness’s opportunity to observe what happened, the interest or bias in testifying, reliability of recollection, the consistency shown on cross examination, explanations on redirect, and the witness’s general appearance and demeanor.
There is another burden of proof standard that is applied to a civil case. Although the traditional measure is a preponderance of the evidence, and fraud cases, for example, it is common to see the standard frame in terms of clear and convincing evidence. This is a harder standard to meet than a preponderance of evidence standard as the factfinder must be more than just convinced of the truth of the evidence presented.
End Quote.
Lucas covered that pretty well in his article.
From http://appeals.uslegal.com/standards-of ... -standard/ we get this discussion of the substantial evidence standard:
Substantial evidence refers to evidence that a reasonable mind could accept as adequate to support a conclusion. In Mareno v. Apfel, 1999 U.S. Dist. LEXIS 8575 (S.D. Ala. Apr. 8, 1999), substantial evidence is defined as “more than a scintilla but less than preponderance,†and consists of “such relevant evidence as a reasonable person would accept as adequate to support a conclusion.â€
The "substantial evidence" standard, does not appear in the previous manual, but it is sprinkled throughout the new 2009 version (e.g. see sec 6-11 and 7-2). BLM went from “beyond a reasonable doubt†to “Substantial evidenceâ€, maybe the next version will get to the “Preponderance of evidence†standard we all know and love.
The BLM’s manual is an interesting book, and every surveyor who practices in a PLSS state should own a copy, but that’s about it. It’s not the gospel on private-practice surveying. It’s not even good instruction on retracement. It’s a book about original surveys of the public domain. How many private-practice surveyors are doing that kind of work?
I personally think it does give some good retracement techniques, but it certainly isn’t the controlling legal authority on PRIVATE boundary retracements some might think.
In response to your request, here’s an overview on the Preponderance Standard.
"Introduction to Civil Litigation" third edition, Mark Weinstein, The Philadelphia Institute, West Publishing, 1993 (while nearly 20 years old, this is still a current text)
Chapter 10, section G, page 286:
Begin quote:
G. Burden of proof
The burden of proof is the standard that the factfinder is to apply to a set of facts in determining how to reach a verdict. Burden of proof is really a composite of two burdens: the burden of producing evidence and the burden of persuasion. For purposes of this chapter burden of proof means burden of persuasion.
In a civil case, in order for the plaintiff to prevail, "a preponderance of the evidence" must be shown, making it more likely that a plaintiff's version of the facts is correct then is the defendant's version of the facts. The applicable burden of proof is always covered by the trial judge in the charge to the jury. In a civil case the jurors will often be asked to imagine a set of scales with the defendant's evidence piled on one side and the plaintiff's evidence on the other. If the scale is in perfect equilibrium or if the defendant scale tips lower than the plaintiffs, plaintiff may not recover since the burden of proof has not been satisfied. If plaintiff's tray of evidence is heavier than defendants so that it tips lower, no matter how slightly, plaintiff is entitled to recover.
In practice, the test is far more complex. For example, the fact that plaintiff produced more witnesses than defendant does not satisfy the burden of proof. The credibility of each witness must be assessed, including the witness’s opportunity to observe what happened, the interest or bias in testifying, reliability of recollection, the consistency shown on cross examination, explanations on redirect, and the witness’s general appearance and demeanor.
There is another burden of proof standard that is applied to a civil case. Although the traditional measure is a preponderance of the evidence, and fraud cases, for example, it is common to see the standard frame in terms of clear and convincing evidence. This is a harder standard to meet than a preponderance of evidence standard as the factfinder must be more than just convinced of the truth of the evidence presented.
End Quote.
Lucas covered that pretty well in his article.
From http://appeals.uslegal.com/standards-of ... -standard/ we get this discussion of the substantial evidence standard:
Substantial evidence refers to evidence that a reasonable mind could accept as adequate to support a conclusion. In Mareno v. Apfel, 1999 U.S. Dist. LEXIS 8575 (S.D. Ala. Apr. 8, 1999), substantial evidence is defined as “more than a scintilla but less than preponderance,†and consists of “such relevant evidence as a reasonable person would accept as adequate to support a conclusion.â€
The "substantial evidence" standard, does not appear in the previous manual, but it is sprinkled throughout the new 2009 version (e.g. see sec 6-11 and 7-2). BLM went from “beyond a reasonable doubt†to “Substantial evidenceâ€, maybe the next version will get to the “Preponderance of evidence†standard we all know and love.