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Michigan Lawyer on Surveyor??s right of entry??
Posted by dave-karoly on January 1, 2022 at 4:30 pmduane-frymire replied 2 years, 7 months ago 11 Members · 17 Replies -
17 Replies
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Having been confronted on several occasions by armed irate adjoiners, I can say that they are not interested in your little ID card.
Also, NC has no right of trespass, which puts us surveyors at a distinct disadvantage.
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I am hard-pressed to think of any job that did not involve trespassing on other lands, technically. That is, for example, digging for a section corner monument clear out in the center of a county road intersection. That monument is, in the normal case, partially on four different properties. Finding a monument at the center of a section has the same problem, in the normal case. Working in city blocks nearly always involves finding monuments on other properties. The shovel, spade, garden trowel, spoon, etc. will cross the line during exposure of the monument. Blocks with no central alley necessitate accessing monuments across the land of other parties. It is generally impossible to determine the center line or thalweg of a river without trespassing in some fashion. Using a low-flying drone, technically, involves trespass.
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“If you don’t like the risks associated with being a surveyor, don’t be a surveyor!”
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Trespass to land is a common law tort or crime that is committed when an individual or the object of an individual intentionally (or, in Australia, negligently) enters the land of another without a lawful excuse. Trespass to land is actionable per se. Thus, the party whose land is entered upon may sue even if no actual harm is done.[citation needed] In some jurisdictions, this rule may also apply to entry upon public land having restricted access. A court may order payment of damages or an injunction to remedy the tort.
By law, trespass for mesne profits is a suit against someone who has been ejected from property that did not belong to them. The suit is for recovery of damages the trespasser caused to the property and for any profits he or she may have made while in possession of that property.
For a trespass to be actionable, the tortfeasor must voluntarily go to a specific location, but need not be aware that he entered the property of a particular person. If A forces B unwillingly onto C’s land, C will not have action in trespass against B, because B’s actions were involuntary. C may instead claim against A. Furthermore, if B is deceived by A as to the ownership or boundaries of C’s land, A may be jointly liable with B for B’s trespass.
In most jurisdictions, if a person were to accidentally enter onto private property, there would be no trespass, because the person did not intend any violation. However, in Australia, negligence may substitute the requirement for intent.[citation needed]
If a trespass is actionable and no action is taken within reasonable or prescribed time limits, the land owner may forever lose the right to seek a remedy, and may even forfeit certain property rights. See Adverse possession and Easement by prescription.
Trespass may also arise upon the easement of one person upon the land of another. For example, if A grants B a right to pass freely across A’s land, then A would trespass upon B’s easement by erecting a locked gate or otherwise blocking B’s rightful access.
In some jurisdictions trespass while in possession of a firearm, which may include a low-power air weapon without ammunition, constitutes a more grave crime of armed trespass.[1]
The maxim “cuius est solum, eius est usque ad coelum et ad infernos” (whoever owns the land owns it all the way to heaven and to hell) is said to apply, however that has been limited by practical considerations. For example, aerial trespass is limited to airspace which might be used (therefore aeroplanes cannot be sued). Landowners may not put up structures to prevent this.[2] The courts have been more lenient with putting up structures to prevent underground trespass. The Kentucky Court of Appeal in Edwards v Sims (1929) 24 SW 2d 619 seems to affirm the maxim without qualification, whereas the New South Wales Supreme Court in Australia seemed more reluctant to do so in Di Napoli v New Beach Apartments (2004) Aust Torts Reports 81-728. There is therefore an asymmetry between aerial and underground trespass, which may be resolved by the fact the ground is almost always used (to support buildings and other structures) whereas airspace loses its practical use above the height of skyscrapers.
There may be regulations that hold a trespasser to a higher duty of care, such as strict liability for timber trespass (removing trees beyond a permitted boundary), which is a type of trespass to chattels as a result of a trespass to land.
Some cases also provide remedies for trespass not amounting to personal presence, as where an object is intentionally deposited, or farm animals are permitted to wander upon the land of another. Furthermore, if a new use of nearby land interferes with a land owner’s quiet enjoyment of his rights, there may be an action for nuisance, as where a disagreeable aroma or noise from A drifts across the land of B.
Trespass ab initio is when a person is granted access to land but then abuses that access. The entry to the land is considered to have been a trespass from the beginning. This only applies to access given by law, not to access given by a person (as established by the Six Carpenters’ Case).
I hope everyone has a great day; I know I will! -
It is a right of entry not a right to trespass. If the boundaries were known then there would be no reason for a surveyor to be there. Similarly the surveyor will not know where the boundary is until the survey is completed. However, this is academic.
In reality we are living in an age of “Karen”. People often fly into a fit of rage and will not shut up. There is no explanation that will cause a “Karen” to stop frustrating our attempts to complete the survey. It is the law whether they know it or not, so I just call the police.
Historic Boundaries and Conservation Efforts -
We completed an in-town survey four months ago. I just got off the phone with the client—again. She needs a lot of handholding due to the lady next door being a daily pest. She had a fence builder construct a new privacy fence one-inch to her side of the boundary we staked. The code says no higher than six feet is to be allowed, with exceptions. The City gladly gave her an exception to permit an eight-foot fence. The poor city cops have been out there more than once per week for about eight months, now. They were called out again on the 30th by the lady next door insisting they should arrest my former client. They keep telling her this is a civil matter, so they can’t simply arrest the former client for the accusations being made. The neighbor then told them she had filed a civil suit against my former client, but, if she really did that, it has not resulted in the client being served yet.
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I have had the police called on me, with no prior challenge by the adjoiner. It was not pleasant as they (the police, or at least the younger officer)) seemed to want to find fault with our endeavor (indeed they found that my vehicle was past inspection, my bad)
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I just do what I need to do with as little impact to the adjoining land owners as possible. If I need to get through a gate to access a corner or drive on the adjoining owner??s property, I ask for permission. If the owner is not home I leave my card and just do what I need to do. I have never had any trouble and in fact have picked up a few jobs from adjoiners.
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Posted by: @not-my-real-name
It is a right of entry not a right to trespass. If the boundaries were known then there would be no reason for a surveyor to be there. Similarly the surveyor will not know where the boundary is until the survey is completed. However, this is academic.
In reality we are living in an age of “Karen”. People often fly into a fit of rage and will not shut up. There is no explanation that will cause a “Karen” to stop frustrating our attempts to complete the survey. It is the law whether they know it or not, so I just call the police.
In Mass. we have to give “reasonable notice” before entering the non-client property. Usually the field crew talking with the neighbors is sufficient. If I anticipate a potential problem (or they tell the field crew “no”), I’ll send a letter giving notice with approximate times the field crew will be on-site (with reference to the surveyor’s entry statute), and my contact information if they want to arrange for more specific timing notification. I also CC the local police department. The police very much appreciate receiving advance notice of potential problems.
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Yeah, I do that. So what? Nothing stops a Karen.
Historic Boundaries and Conservation Efforts -
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My daughter’s name is Karen and I consider every reference to the pejorative use of her name as a personal insult.
Please don’t use her name that way.
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You’ve got to be kidding me.
How do you manage in the world on a daily basis with such fragile feelings?
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@gordon-svedberg Not really, as he mentioned it is a common law right. In fact the court decisions have instructed surveyors to enter (follow the footsteps, etc.) so they are there by court order. Some states have codified it in order to balance interests (put restrictions on surveyors and mollify potential Karens). Sorry Dave. It seems many of these statutes came about around the time of early GPS usage wherein surveyors started showing up in the night (scaring people) because of mission planning.
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