Duane Frymire, post: 419845, member: 110 wrote: If you want to own land in the U.S. there is an implied consent to allow carrying out our system of cadastre (flawed though it may be).
I really like this line of reasoning.
aliquot, post: 419802, member: 2486 wrote: But a non voluntary taking requires a court order, so a judge should have to order access if your state only allows entry for boundary surveying.
A pipeline is not a public use unless the government is building it.
uhhhh, well, I don't think that is correct, private companies claim eminent domain also.
Duane Frymire, post: 419845, member: 110 wrote: If you want to own land in the U.S. there is an implied consent to allow carrying out our system of cadastre (flawed though it may be).
I think the problem lies in the fact that most of our country does not have a publicly managed cadastral system. Once land passes from public ownership, it just becomes contractual transfers of ownership between private individuals. I suppose a surveyor could claim that all of the land owners have an implicit blanket access easement to all of the evidence referenced in their deeds.
In area where the Torrens system is in place, you could say that you are working under police power to manage the cadastral system.
Pipeline, topo, boundary,...don't matter..CT statute covers it all.
Sec. 52-557o. Liability of land surveyors. No action for trespass shall lie against any surveyor licensed under chapter 391 or person acting at the direction of any such licensed surveyor who enters upon land other than the land being surveyed without causing any damage to such other land in order to perform a survey, provided no such surveyor or person acting at the direction of such surveyor shall enter upon any land owned by a railroad company, as defined in section 16-1, which is within fifty feet of a railroad track without first obtaining written permission from the railroad company, which written permission shall not be unreasonably withheld. Nothing herein shall relieve such licensed surveyor or person from liability for actual damages caused by such entry upon such other property.
There is no right of entry for surveyors in NH. When my guys go out and the land is posted I contact the landowner by mail prior to any work being done. In a recent case it has resulted in 2 or 3 potential other jobs for the abutters. It pays to be friendly and understanding with the initial reluctance or suspicion that is usually exhibited.
In Illinois we have right of entry. I don't normally contact land owners unless I see them or know for sure they are home. I used to play that game of letting the owners know I would be on their land but after a couple of times driving around looking for owners, the guy that farms it, the guy that used to farm it, the owner that lives 40 miles away, I just go about my work and rarely get confronted in an angry manner.
In Illinos, utilities have right of condemnation also. If they didn't know one would have phones, power, gas etc.
I talked to one of our surveyors about this. When a route is being designed, the first thing that happens is the land man goes out and tries to get landowner permission. In a lot of instances this isn't the landowner's first rodeo and he knows how to negotiate but that's another story. If a land owner flat out refuses permission we'll generally just do a reroute and go around him. Eminent Domain is typically only exercised if a line is a common carrier - in other words, services more than one company. And it needs to go to court. However, a savvy landowner knows that if the pipeliner is willing to take it to court, they're also willing to pay a lot more than what the court will mandate so it behooves him to settle. Either way, the landowner gets paid.
We perform boundary work under the control of a licensed surveyor when we locate corners to determine what property the pipeline is crossing, and we prepare stamped and sealed plats. We do not set foot on any property that the land man has not secured survey permission for.
As far as right of entry, I'm told that in LA if an adjoiner tells you to stay off his land you must comply. If you absolutely have to tie in his corners to fit a boundary, you need a court order and should be accompanied by a sheriff when you go.
Bow Tie Surveyor, post: 419859, member: 6939 wrote: I think the problem lies in the fact that most of our country does not have a publicly managed cadastral system. Once land passes from public ownership, it just becomes contractual transfers of ownership between private individuals. I suppose a surveyor could claim that all of the land owners have an implicit blanket access easement to all of the evidence referenced in their deeds.
In area where the Torrens system is in place, you could say that you are working under police power to manage the cadastral system.
I liken it to driving a car. There is no right to drive a car and there is no right to own real property. If you do either, there are certain rules that must apply in order to have a properly functioning system that protects all. Due process and some privacy still exists in either case, it's just not absolute. I know my argument seems novel.
Dave Karoly, post: 419851, member: 94 wrote: I really like this line of reasoning.
Yeah, if you look at the statutes, surveyors are granted more leeway than law enforcement. Police officers can't enter the house or "curtilage" without a warrant, reasonable suspicion, or permission. Some of the statutory language being posted can easily be read to say a landowner can't stop a surveyor from entering their curtilage. Why is that? Our land system is very ingrained in our law/society since a time before we even immigrated to this continent.
So statutes of right of entry are really limiting surveyor access or acknowledging court ordered access. We work under a court order that is either reasonably limited by professional judgement alone or by statute.
Bow Tie Surveyor, post: 419838, member: 6939 wrote: The surveyor is not doing the taking, but is doing work to support a potential eminent domain proceeding. The information the surveyor collects is required for the constitutional requirement of due process. Getting a court to declare a right of access is nice to keep civil order, but in reality, I believe the court is just declaring a right that the surveyor already has and states that codify this in their statutes make it much safer for the surveyor to do his job. As far as I know, I am not aware of any surveyors being successfully convicted of trespass for entering lands that are connected with an eminent domain process.
People don't like to hear it, but the rights of fee simple land ownership in the United States are not absolute (being subject to eminent domain, police powers, taxation and escheat).
The surveyor is not an independent agent, he is the agent of the entity requesting the emmenent domain action. I for one, would never enter private land without permission to survey a boundary that does not yet exist. I think all the normal rights of a land owner facing a trespasser would be avavilible to the agreved land owner. A two second goggle search found examples of eminent domain surveyors in legal trouble.
Here is one result from this forum: https://surveyorconnect.com/community/threads/surveyors-charged-with-tresspassing-in-georgia.320910/
MightyMoe, post: 419854, member: 700 wrote: uhhhh, well, I don't think that is correct, private companies claim eminent domain also.
This of course depends on what state you are in. It is also likely to be revisited by the Supreme Court sooner rather than later.
aliquot, post: 419925, member: 2486 wrote: A two second goggle search found examples of eminent domain surveyors in legal trouble.
Here is one result from this forum: https://surveyorconnect.com/community/threads/surveyors-charged-with-tresspassing-in-georgia.320910/
I remember that story. Does anyone know how that all shook out? I remember at the time wondering if the Georgia surveying society was providing legal council. Were the surveyors successfully prosecuted?
Bow Tie Surveyor, post: 419943, member: 6939 wrote: I remember that story. Does anyone know how that all shook out? I remember at the time wondering if the Georgia surveying society was providing legal council. Were the surveyors successfully prosecuted?
I did a quick search and couldn't find any more information. Any Georgia surveyors know the outcome?
The property owner has complete control to restrict who can and can not enter their property.
Surveyors have mostly had the right to work along and either side of the boundary they are measuring or marking and can go inside the neighboring property looking for evidence.
They do not necessarily have the right to enter another property from the roadway and cross their land to get to the boundary you are surveying or to locate anything or be on your land without proper notice, especially if your boundaries are clearly posted.
There is a process in place to legally obtain permission or be there by court order and thru a fee paid by the client wanting you to be there.
"Can't ride the bus for free" clause and "pay the governing agency" clause do apply.
aliquot, post: 419946, member: 2486 wrote: I did a quick search and couldn't find any more information. Any Georgia surveyors know the outcome?
Just out of curiosity, I called the county clerks office to find out what happened. They paid $500 in court costs and the case was "dead docketed" (whatever that means) for 6 months and were ultimately not prosecuted for trespass. I imagine the county prosecutor had bigger (and easier) fish to fry and didn't want to bother with it.