White v. Randall ( 2007 )

¶ 27 I concur with the result reached by the majority but write separately to note that my agreement is based solely on the parties' acquiescence to the use of the mapping software by the district court. It is a basic concept of our legal system that the trier of fact must base its findings on the record evidence. See Salt Lake City v. United Park City MinesCo., 28 Utah 2d 409, 503 P.2d 850, 852 (1972) ("[N]either a judge nor a jury is permitted to go outside the evidence to make a finding."). The district court, albeit with good intentions, violated that rule. In my view, the district court erred when it generated and considered evidence outside the record. Thus, even if I agreed with the distinctions noted by the majority between this case and the Utah Supreme Court's decision in UnitedPark City Mines Co., I do not believe they are relevant to our decision.¹ But for the parties' failure to object to, and their actual use of, the maps created by the trial court with the mapping software, the error here would, in my view, warrant reversal.

¹ Because the maps created by the district court were not made available before trial, neither party had an opportunity to assess the accuracy of the information depicted or the validity of the software that created them. Interestingly, the district court noted that the software contained warnings that it should not be used to settle legal disputes.