Ask a Lawyer | Eminent Domain and the Right to Survey
From the Texas Agriculture Law Blog by Tiffany Dowell Lashmet at agrilife.org/texasaglaw
Tiffany Dowell Lashmet is an Assistant Professor and Extension Specialist in Agricultural Law with Texas A&M AgriLife Extension. She focuses her work on legal issues affecting Texas agricultural producers and landowners including agricultural leases, water law, oil and gas law, eminent domain, easements, and landowner liability. You can find the Texas Agriculture Law Blog, the “Ag Law in the Field” podcast, resources, and other information at agrilife.org/texasaglaw.
She was a featured speaker and panelist at the Cattle Raisers Convention in March, sharing her expertise on topics important to ranchers, including landowner liability, grazing leases and more!
If a company with eminent domain power has contacted you about obtaining an easement across your property and now wants access to survey, can you keep them off your land?
Tiffany Dowell Lashmet, assistant professor and extension specialist in agricultural law with Texas A&M AgriLife Extension, says no.
In Texas, courts have held that by granting condemning entities the right to condemn land, this includes the right to enter onto the property to conduct surveys to select lands to be acquired. Of course, this means that surveys may be conducted prior to the property actually being condemned. “Ancillary to the power of eminent domain is the authority to enter upon the land to make a preliminary survey.” I.P. Farms v. Exxon Pipeline Co., 646 S.W.2d 544 (Tex. Ct. App. – Houston (1st Dist.) 1982).
Courts have issued injunctions against landowners attempting to interfere with this right.
There is also a line of court cases that limit this right to visual inspections and lineal surveys only, refusing to allow more invasive procedures like core drilling or subsurface soil testing. See Coastal Marine Serv. v. City of Port Neches, 11 S.W.3d 509 (Tex. Ct. App. – Beaumont 2000).
Additionally, while the company does have the right to enter and survey, landowners may seek a “Right of Entry Permit,” which is essentially a contractual agreement with the company, limiting their rights and imposing other protections for the landowner while the company is on the property.
Common terms in a Right of Entry Permit include:
- Requiring a set amount of notice prior to entering the property pursuant to the Permit,
- Requiring access at a mutually agreeable time for company and landowner,
- Limiting the right of entry to only the property that is to be affected by the project,
- Limits the allowed entry to the purpose of conducting surveys,
- Prohibits cutting, removing, or relocating any fences,
- Requirement to restore land to original condition prior to survey,
- Requires all equipment and tools to be removed by a certain date,
- Require the company to promptly repair or remediate any damage caused while on the property,
- Provide an indemnification provision in favor of the landowner,
- Require the landowner be provided all non-privileged information gathered such as surveys, reports, maps, and photographs from the company at no charge, and
- Expiration date.
Dowell Lashmet always advises landowners facing potential condemnation to consult with an attorney to ensure that their rights are protected and to ensure they get the best possible deals on money and easement terms.
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