Land Surveyor Forum

Replies

• Land Surveyor

  J. Anthony Cavell April 13, 2017 at 11:46pm

  Isn't affirmative defence when one removes a fence?

  ;-)

  JAC
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  David Eisenbeisz April 13, 2017 at 3:41pm

  I agree with Mr. Everett in that the assertion of an affirmative defense does nothing to change the location of a property corner or any other land boundary.  That said, the location of a boundary could give a defendant an affirmative defense, depending upon the defendant and the claims brought against them.  

  It would seem that, in the case of a property boundary, an affirmative defense might be that a defendant did not own, control, or have any interest in the land upon which an accident occurred. I don't know if this IS an affirmative defense, but it seems like something that, if true, could be proven by a boundary survey and subsequently adjudicated by law without regard for the actual cause of action.  Unless, of course, there is some reason for controversy over the location of said boundary, which might make it a question to be decided by finders of fact and not merely an application of the law.  Usually, affirmative defenses require that the defense is allowed by the person asserting it, and that there are no questions about the facts that support the defense.  I am not a lawyer, but we have worked on many civil cases involving affirmative defenses.
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  Benjamin J Everett April 13, 2017 at 2:48pm

  Effect the boudary? "Affirmative defense" alone can't change a property boundary. A proven conveyance can, adverse possession can, even aquiescence. But all fall under the preponderance of evidence. "Affirmative defense" is the posture taken of any defendant.
• Land Surveyor

  Judson Cato April 13, 2017 at 2:29pm

  defense? or da fence? or defence? 

  I'm thinking that you meant the first one. But absolutely, they are the focus of the defendant's case.