Eminent Domain and the Right to Survey

Tiffany Dowell, author of the Texas Agriculture Law Blog at Texas A&M, gave me permission to re-publish her excellent article on what landowners should consider when a pipeline company asks permission to survey. Here is her article. The only thing I would add is that the landowner should find out the tentative proposed route, and if it is not acceptable, try to negotiate an alternate route before the surveyors begin their work.

Thanks to Tiffany. You might want to subscribe to her blog.

Question:  If a company with eminent domain power has contacted me about obtaining an easement across my property and now wants access to survey, can I keep them off of my land?

Answer:  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 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.

I always advise landowners facing potential condemnation to consult with an attorney to ensure that their rights are protected and to ensure they get the best deal–both money and easement terms–possible.