Adequate Proof of the Thalweg
March 4, 2019 § 1 Comment
The Revettes filed suit to confirm title, and the Fergusons counterclaimed alleging ownership by adverse possession. After hearing the evidence, the chancellor ruled that the Fergusons did, indeed, have title by adverse possession. Before entering a final judgment, however, the chancellor ordered the Fergusons to obtain a survey of the disputed property. When they did so, producing a survey by Mr. Saul, the chancellor attached it as “Exhibit A” to the final judgment without further hearing. The Revettes appealed.
In Revette v. Ferguson, handed down December 11, 2018, the COA affirmed the chancellor’s decisions on the issues of adverse possession and damages, but reversed and remanded for further evidence on the survey. Judge Greenlee wrote the majority opinion:
¶29. The Revettes argue that the chancellor should not have considered the Saul survey, “Exhibit A,” in his final judgment because they did not have the opportunity to challenge that survey at a hearing or cross-examine the surveyor and it was not admitted as evidence. Although the Fergusons argue that the Revettes waived this issue, we find the Revettes preserved their objection by responding to the Saul survey and attaching their own competing survey, the Walker survey. We hold that it was error for the chancellor to consider a survey without proof being taken and upon the Revettes’ objection; therefore, we reverse and remand this issue to the chancery court. [Fn omitted]
¶30. In order to have a survey properly admitted into evidence, the surveyor needs to be called to explain and be subject to cross-examination. White v. Usry, 800 So. 2d 125, 131 (¶26) (Miss. Ct. App. 2001). In Abercrombie v. Carter, 73 So. 3d 561, 562-63 (¶¶8-11) (Miss. Ct. App. 2011), we held it was error for a chancellor to consider a survey that was properly excluded at a hearing as hearsay under Mississippi Rule of Evidence 802, noting that the parties were not allowed to challenge the survey at the hearing or cross-examine the surveyor. We find the chancellor committed error in this case for similar reasons. The Revettes did not have the opportunity to cross-examine the Fergusons’ surveyor, and the survey was not admitted into evidence for the chancellor’s consideration. Further, a comparison of “Exhibit A” with Exhibit 7, which the parties stipulated to, reveals inconsistencies. Notably, the thalweg of the Chickasawhay River and the approximate water line differ in both exhibits; as do the call lines of the land adversely possessed. We therefore reverse and remand this matter to the chancellor so that the Revettes may challenge the survey in “Exhibit A,” may cross-examine the surveyor, and may offer their Walker survey for use by the court.
For those of us who are ignorant of some nuances of property law, thalweg (pronounced “tal-veg,” from the German), according to a definition I found via Google, is “In geography and fluvial geomorphology … the line of lowest elevation within a valley or watercourse. Under international law, a thalweg is the middle of the primary navigable channel of a waterway that defines the boundary line between states.” Well, that’s a new one on me. In all my years at the bar, I have never stumbled upon that concept. But it should not surprise. It’s yet another instance of how the law can be so gnostic sometimes, especially in property law, where the Druids of Feoffments (practitioners of the alchemy of fee simple) zealously guard their esoteric spells and incantations from us generalists.
A similar case involving necessity of the sponsoring witness is the subject of a post at this link.
The Better Chancery Practice Blog 
Judge I actually had the problem come up between adjacent landowners whose property was divided by a branch. The definition of navigable waters came up and that is a different story. The thalweg is not necessarily the “middle” of the water but deals with the “main course” if I remember right. This means that one landowner may get a sandbar and lots more of the “creek bottom” and one gets only a small amount especially in a “turn hole”.