Affidavit

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Strictly Surveying

Last Post by dave-karoly 13 years ago

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dmgonsal

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I would like to get an affidavit from a client of mine that a corner of their property they discovered was not disturbed or moved by them upon or after its discovery. Has anyone ever done something like this? I have no reason to believe my client did anything wrong, but the circumstances regarding the dispute between my client and his neighbor are such that I would really like to have a sworn statement from my client.

The particulars are that an old corner was found after my client was removing concrete from a lined concrete ditch. Presto, the old corner appears out of nowhere under the concrete. The discovery of this fresh piece of evidence is VERY beneficial to my client. By the way, its not a goat stake, it still has the tag and license number of the fellow who set it in 1968. Unfortunately the 1968 surveyor's field crew did such poor work that all the pieces of evidence of this survey do not corroborate with each other very well. So if this pipe was moved a couple feet either way....no one would ever know...

Posted : April 26, 2013 10:49 am

Tom Adams

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> ..... The discovery of this fresh piece of evidence is VERY beneficial to my client.

Get it if you can. Any kind of testimony is helpful in making your determinations. But keep in mind that it is to the client's benefit to say/testify that it was always there and was never moved. Although that may be true, a court or anyone else will view that kind of testimony as biased, I would think.

I doubt many property owners would swear to a property line position that was not to his/her benefit.

Posted : April 26, 2013 11:04 am

Dallas

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If you have an attorney you work with have him interview the client and get the affidavit. This may be a situation that ends up in court and any affidavit can be challenged. One prepared by a competent attorney is more likely to stand up to a challenge. However, this statement is only one item of the evidence and as a surveyor you need to base your decision on all available evidence.

Posted : April 26, 2013 11:28 am

jud

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What is the history of that ditch, is there a described ROW? Was the ditch constructed before or after the 68 survey? Sounds like you have little confidence in the 68 survey with evidence to support that opinion. Where is the mutual occupation divided and how long and why? Ditch dug or lined after the survey? Might provide evidence supporting the view that the found monument was occupying it original undisturbed position, or it provide evidence to doubt that. What does the neighbor think about all of this or have you asked them for input? Don't believe from your post that research has reached the point to do anything but speculate. Is an affidavit with no other supporting evidence enough to convince a court that the monument now in place was original and had not moved. These questions may have been answered in your research, if not, take all them into consideration. In the North end of this county there were many concrete lined ditches constructed, when they were centered on the property line, there usually was a row of trees planted along each side and only one fence along one tree line for livestock management, so occupation limits may never been intended to represent boundary's. Good luck and try to preserve any harmony that now exists.
jud

Posted : April 26, 2013 11:57 am