Bow Tie Surveyor, post: 331186, member: 6939 wrote: Does anyone know of any surveyor in the conduct of his duties being successfully prosecuted for trespassing?
In conduct of his duties is arguable in this case. I could not blame the property owner.
http://savannahnow.com/news/2015-05-05/pipeline-surveyors-charged-trespass-screven
lmbrls, post: 331285, member: 6823 wrote:
That particular incident has to do with surveying in connection with eminent domain proceedings. If I were caught in such a situation, I would argue that my actions as surveyor in conduct of my duties was to facilitate the due process of law guaranteed by the 5th and 14th amendments of the constitution and therefor would not be considered an act of trespass. I would also implore the State society to back the case in hopes that they could get a right of entry by case law if they can't get one by statute.
Bow Tie Surveyor, post: 331329, member: 6939 wrote: That particular incident has to do with surveying in connection with eminent domain proceedings. If I were caught in such a situation, I would argue that my actions as surveyor in conduct of my duties was to facilitate the due process of law guaranteed by the 5th and 14th amendments of the constitution and therefor would not be considered an act of trespass. I would also implore the State society to back the case in hopes that they could get a right of entry by case law if they can't get one by statute.
I believe the court would remind you that there is a legal process to which you must adhere. The first action may be a condemnation proceeding to grant access. When the property owner's rights are being denied for the benefit of the public, it should be done with fear and trembling. This is not a case of a surveyor needing information near a boundary. This is a surveyor doing something for his convenience. Us surveyors in GA could definitely benefit from a clear definition of trespass and a expedient process to obtain access when necessary. However when a property owner denies access, it should be a matter for the court. Property rights should not be diluted for the convenience of a few.
JPH, post: 330842, member: 6636 wrote:
That said, when I draw my plat, IÛªm hesitant to show these shots, as it records my trespass. The state has no trespass law, and the adjoiner, I'm told, is against this project.
I can easily set other monuments, but doing so, in my opinion, will leave open the question of how I tied into the old ROW.
Maybe no one will question it or even care. Just wondering what others of you here think about this, and whether youÛªd have done the same in this situation.
Hmmmmm. Would you rather deal with the misdemeanor charge, or your board for violation of the MTS?
Answer that and you will know what to do.
lmbrls, post: 331360, member: 6823 wrote: I believe the court would remind you that there is a legal process to which you must adhere. The first action may be a condemnation proceeding to grant access.
Surveyors collect evidence to support (or not support) condemnation actions. I would argue that Surveyors in the conduct of their duties must have an implicit right of entry to collect this evidence (some of which may not be on the subject property of the condemnation) to guaranty due process of law and to insure the public welfare.
Bow Tie Surveyor, post: 331367, member: 6939 wrote: Surveyors collect evidence to support (or not support) condemnation actions. I would argue that Surveyors in the conduct of their duties must have an implicit right of entry to collect this evidence (some of which may not be on the subject property of the condemnation) to guaranty due process of law and to insure the public welfare.
You're in the process of finding out where the property limits are when you are conducting your survey. You don't know when and where you are "trespassing" until you finish your "investigation". The simple fact is you will trespass up until you have determined the line location. You're right, even if a party or agency (DOT) is to condemn for a property, they need to know where that property is prior to condemnation proceedings. (They have to condemn the correct property). I think there needs to be a law to aid the land surveyor to adequately do his job. Getting permission is the nicest thing, but it's when permission isn't granted when you need some kind of vehicle to complete your job.
In the state of Texas trespassing on someone elseÛªs property is against the law. A momentary lapse in judgment can incur criminal consequences that will haunt you for years to come.
Texas landowners take pride in their property. When people enter or remain on someone elseÛªs property or in their building, aircraft or vehicle without effective consent they can be charged with the crime of criminal trespass. Even if someoneÛªs intentions were innocent or if they had simply made a mistake, they could still be prosecuted and convicted of a criminal offense.
In order for someone to be convicted of criminal trespass, they must have either been given notice that entry was forbidden, or they must have been told to leave. Notice can be either given in the form of a written letter or it can be verbal. It is also supposed to be given either by the owner or by someone who has the apparent authority to act on behalf of the owner.
Other forms of notice can include fencing or some other kind of enclosure that is obviously in place to keep intruders out of the property. A posted sign warning others to stay off the property would also suffice as appropriate notice. ItÛªs important to note that such signs should be placed on the property or the entrance of a building in a place that is conspicuous and likely to catch the attention of intruders stating that entrance to the property is forbidden.
Criminal trespass can encompass all sorts of public and privately owned property intended for different types of use. People can be convicted of criminal trespass when they unlawfully cross residential property, commercial property, agricultural property, forest land, and even government property.
It is also unlawful to trespass in an area with an oil refinery, or a chemical manufacturing facility, as well as a water treatment plant or an electrical power generating facility. The above offenses are classified as misdemeanors in the state of Texas. A person can be charged with a Class A, B or C misdemeanor depending on the facts surrounding the case.
A conviction of criminal trespass can lead to serious legal penalties including jail time, fines and a permanent criminal record. Even if the incident seemed minor, a criminal record will hinder your ability to gain employment, leases and financial aid for college. Pretty much anything that requires a background check will become a problem for you in the future. An experienced criminal defense attorney will give you the best opportunity to fight the charges against you. The sooner you contact a lawyer, the better your chances of getting the charges reduced or dropped!
Bow Tie Surveyor, post: 331367, member: 6939 wrote: Surveyors collect evidence to support (or not support) condemnation actions. I would argue that Surveyors in the conduct of their duties must have an implicit right of entry to collect this evidence (some of which may not be on the subject property of the condemnation) to guaranty due process of law and to insure the public welfare.
The point that I am trying to make is the court will grant access to the Surveyor as part of the condemnation proceeding. Prior to action by the court, the surveyor does not have the right to be on the property without the owner's permission. In the incident above, the surveyor was on the property without proper authority. There is a process where the surveyor in a condemnation can access the property. It is not inexpensive or expedient. Where a surveyor is simply performing a boundary survey and needs to collect information on a hostile adjoiner's property is where the surveyor's rights are not well defined. We simply are not the judge and jury on what is in the best interest of public welfare.
lmbrls, post: 331452, member: 6823 wrote: The point that I am trying to make is the court will grant access to the Surveyor as part of the condemnation proceeding. Prior to action by the court, the surveyor does not have the right to be on the property without the owner's permission. In the incident above, the surveyor was on the property without proper authority. There is a process where the surveyor in a condemnation can access the property. It is not inexpensive or expedient. Where a surveyor is simply performing a boundary survey and needs to collect information on a hostile adjoiner's property is where the surveyor's rights are not well defined. We simply are not the judge and jury on what is in the best interest of public welfare.
I just perused Georgia's Condemnation Statute and I don't see any provisions to grant anybody right-of-entry. It just assumes that the condemning entity has already identified the property that is to be condemned. I'm no lawyer, but it appears that if you don't have the parcel defined (i.e. surveyed), you cant provide notice of condemnation to start the condemnation proceedings. And you are correct that surveyors are not the judge and jury on these issues, we are charged to independently state the facts and evidence that we find (and sometimes that evidence may not be in favor of our clients). Now whether the surveyor on the property in question had the authority to be there is still in question to me. He may have not had permission, but he may have had an implicit right of entry due to the circumstances. Do you know if the surveyors were successfully prosecuted for trespass?
You need to get Nate to chime in here. I think he is very knowledgeable about the Arkansas Trespass laws.
Bow Tie Surveyor, post: 331511, member: 6939 wrote: I just perused Georgia's Condemnation Statute and I don't see any provisions to grant anybody right-of-entry. It just assumes that the condemning entity has already identified the property that is to be condemned. I'm no lawyer, but it appears that if you don't have the parcel defined (i.e. surveyed), you cant provide notice of condemnation to start the condemnation proceedings. And you are correct that surveyors are not the judge and jury on these issues, we are charged to independently state the facts and evidence that we find (and sometimes that evidence may not be in favor of our clients). Now whether the surveyor on the property in question had the authority to be there is still in question to me. He may have not had permission, but he may have had an implicit right of entry due to the circumstances. Do you know if the surveyors were successfully prosecuted for trespass?
Bow Tie. I have performed many surveys for condemnation. You are correct in that the actual condemnation has to be based on a specific parcel. In fact, the area can not be changed once the process begins. The court will provide access when necessary. I have heard it referenced as suing for access or condemning for access. But I can promise you that a surveyor does not have "an implicit right of entry due to the circumstances" in this State. Honestly, I am glad that a private pipeline has to respect the property owners rights. Think of the implication that anybody can decide to use your property for their benefit and can have a surveyor, appraiser, environment scientist, geotech, forester or anybody else of their choosing invade your property because they have an implicit right that trumps your property rights. Condemnations are sometimes necessary for the public welfare. To protect our rights they should be difficult.
I do not know how the prosecution went.
lmbrls, post: 331559, member: 6823 wrote: Bow Tie. I have performed many surveys for condemnation. You are correct in that the actual condemnation has to be based on a specific parcel. In fact, the area can not be changed once the process begins. The court will provide access when necessary. I have heard it referenced as suing for access or condemning for access. But I can promise you that a surveyor does not have "an implicit right of entry due to the circumstances" in this State. Honestly, I am glad that a private pipeline has to respect the property owners rights. Think of the implication that anybody can decide to use your property for their benefit and can have a surveyor, appraiser, environment scientist, geotech, forester or anybody else of their choosing invade your property because they have an implicit right that trumps your property rights. Condemnations are sometimes necessary for the public welfare. To protect our rights they should be difficult.
I do not know how the prosecution went.
Imbrls, thanks for the info. I have worked on condemnation projects here in Florida as well, but this really isn't an issue because the surveyors (and engineers) have statutory right of entry. However, if I were in those guys shoes I would be arguing for the implicit right of entry to ensure due process of law. Do you know if SAMSOG has weighed in on this case? Seems that they would want to make sure there wasnt a bad legal precedent of surveyors being prosecuted for trespass in the conduct of their duties.
When the land owner has taken the proper steps and made notice for everyone to keep off of their property the surveyor must go thru the proper process to gain access to some location inside the posted land to do their job.
In Texas it is possible to talk with a judge and present surveyor's case and reason for the need of being on posted lands and if the judge agrees will issue or grant entry for that and only that purpose.
I don't know how much that costs, just that it is not free.
B-)
Bow Tie Surveyor, post: 331570, member: 6939 wrote: Imbrls, thanks for the info. I have worked on condemnation projects here in Florida as well, but this really isn't an issue because the surveyors (and engineers) have statutory right of entry. However, if I were in those guys shoes I would be arguing for the implicit right of entry to ensure due process of law. Do you know if SAMSOG has weighed in on this case? Seems that they would want to make sure there wasnt a bad legal precedent of surveyors being prosecuted for trespass in the conduct of their duties.
I have not heard any position from SAMSOG on this particular case. Several years ago we had a bill that was shot down in the legislature. Based on the opponent's argument at the time in my opinion, this would not be the right case to support because:
1. The project is a pipeline through the owner's property. Is this a municipality acting in the public interest or a corporation seeking the highest rate of return on their investment? There is nothing inherently wrong with the corporation seeking to go through this property; however, they need to go through the proper process.
2. The property owner denied them access. Access could have been granted through the court. Obviously, this was not expedient for the survey or pipeline company.
I believe a situation like in the original post would be a much better case for surveyors to unite and defend.
Here is a another situation. A Surveyor is performing picture control on a transportation project. To gain access to a particular point, he cuts the lock on a gate and drives down a woods road to the point. After making the observation, he returns to the gate and puts his lock on the chain. In other words, the question is about privacy and not damages. Does he have the "implicit right" to do this? To be clear, there is a law that covers surveyors right to access when working for government agencies in Georgia. However, I have always been told by whichever agency that we were working with at the time not to enter any property where the property owner has denied access. What if the picture control is for a private entity?
Personally regardless of what I am entitled to do, I will not do to a property owner what I would not want someone to do to me. IMHO we should be citizens first and surveyors second.
Here's a good one. But it doesn't deal with private pipelines. BEARDEN et al. 586 SE 2d 10 - Ga: Court of Appeals 2003 . I wish we had right of entry in Georgia.
makerofmaps, post: 331705, member: 9079 wrote: Here's a good one. But it doesn't deal with private pipelines. BEARDEN et al. 586 SE 2d 10 - Ga: Court of Appeals 2003 . I wish we had right of entry in Georgia.
It looks like the Georgia Supreme Court case Oglethorpe Power Corp. v. Goss may affirm that surveyors have right of entry as long as they are under the authority of a condemning body. And in this particular case it is being exercised by Georgia Power, a private corporation. Hopefully those guys lawyers are aware of the case.
imaudigger, post: 330876, member: 7286 wrote: Are you familiar with the trespass laws in your state?
In California, simply being on another's land without permission does not constitute trespass (even if it's fenced).
There must be some form of advance notice (signs or written/verbal methods).I would show the evidence and if it actually did come up, you probably located it using reflectorless technology.
Anyway - I would not really worry about it, you have already provided plenty of evidence.
Our "Right of Entry" code #8774 is backed up from Civil and Penal codes.
To Wit (portion #8774):
" (a) The right of entry upon or to real property to investigate and utilize boundary evidence, and to perform surveys, is a right of persons legally authorized to practice land surveying, and it is the responsibility of the owner or tenant who owns or controls property to provide reasonable access without undue delay. The right of entry is not contingent upon the provision of prior notice to the owner or tenant. However, the owner or tenant shall be notified of the proposed time of entry where practicable."
Too many of us getting shot o.O
To MAPMAN - Yup, a surveyor is supposed to notify the land owner if practicable.
However, the average citizen can walk around on private property all day long without making a single effort to contact the landowner --->assuming the land owner has not specifically prohibited them from entering their property, the property is not posted, and they do no damage. They do have to immediately leave if asked to do so.
It is common practice, here in California (at least up north), to hike on private property without giving notice.
You can also hunt on private property without giving advance notice, as long as the property is not fenced, posted, or cultivated.
This is also very common.
To top it off, anything less that a 4 strand barb wire fence is considered a drift fence and does not serve as constructive notice.
In my county, you can even graze cattle on other people's land without giving them notice.
It is their responsibility to fence their property to keep cattle out.
These are laws that have been on the books since the creation of the state.
