Right of Entry or Unreasonable Trespass

I just read a column, Editor’s Points: Rights of Access for Surveyors by Perry Trunick in Point of Beginning magazine, a magazine for surveyors. The column talks about how surveyors need to get access to people’s property so that the surveyor’s project can be completed in a thorough and accurate way. And that there are measures being discussed that would require people to stay out of the way of the surveyor while they are just collecting information. These are some of my thoughts and responses to the column and, generally, the idea of Right of Access for Surveyors.

“There are two sides to the issue. One is the actual concern over providing legal rights of access for land surveyors to allow them to complete their work efficiently. The other is the fact there is little if any continuity state to state on statutory rights of access for land surveyors.”

Are there really only 2 sides? Trivial though this may seem this is a starting point, and an indication of the direction of the discussion. There may be only 2 sides when considered from the point of view of the surveyor, but if you consider the land owner there are a myriad other sides to consider. The least discussed of which is who has the authority to say what may happen on their land.

Mr. Trunick explains how some states make it a crime to inhibit the work of a surveyor on their property,

“[F]easibly, if you are denied access to an adjoining property in order to complete a survey and that delays a project, which in turn leads to costs or penalties for you or your client, the person impeding your work can be held criminally or at least civilly liable.”

Because the rightful owner of the land has stopped unwarranted access to their property you think they have caused you harm? This puts the onus of harm on the wrong party. You signed a bad contract without sufficient protections against poor research and nonexistent permissions. The land owner is not out causing you harm, merely stopping an unwarranted search. If a project is that important then a government taking would be merited, but that is a lot of work and red tape you would have to navigate. It is much easier just to make a blanket law that prohibits interference, much like the oft reviled blanket easement among surveyors.

Mr. Trunick then gives us an example of proper authority not being addressed from an expansion of the above example,

“There’s an opportunity here. If MAPPS is promoting a policy position on government competition that would shift commercially available land surveying and geospatial work from the government to the private sector, let’s ensure the surveyors performing that work have the same rights of access the government surveyors would have.”

That is an unwarranted search and seizure (temporary as it may be) of the land owners property, and they have constitutional protections against it. Just because you are not an agent of law enforcement does not mean those protections do not exist against you. If government actors don’t have the authority to unwarranted trespass means they can’t assign that “power” to the private sector.

With the constitutional problems swept aside Mr. Trudick then proceeds to obvious problems that arise with the myriad administrative law problems that accompany individual state issuance of professional licenses, and how to circumvent that maze.

“It might be asking too much, but if private-sector surveyors were to begin to take on the functions previously performed by government offices, could that work stipulate a ‘licensed land surveyor’ and simply require that surveyors should perform their role in accordance with ‘applicable rules and practices?’ That would include meeting federal as well as state standards.”

I am not going to argue the merits of state professional licensing, but it does cause some problem like those noted by Mr. Trudick. The easiest way around those problems is as stated. Though the requirement of a licensed surveyor on large scale infrastructure projects is self serving, using the generic “applicable rules and practices” brushes past the minutiae of spelling out each states requirements. However meeting federal standards would only be necessary when working on federal projects. Otherwise just meeting the requirements for each state would suffice, even on interstate projects.

The question remains, though, would this be the wording in each individual contract, as an industry standard, or would it be a requirement mandated through legislation? If by legislation, whose? Is Mr. Tudick suggesting we need federal legislation that violates the right of unreasonable searches and seizures of one’s real property merely because it will be more convenient to the surveyor? Or is he suggesting that all the rest of the union individually pass legislation allowing surveyor trespasses. But if that’s the case then the “applicable rules and practices” are unnecessary; the state would, of course, refer to their own rules and practices as is already required of surveyors.

This issue of “Right of Access for Surveyors” may be a popular idea among surveyors, but it is ill thought out. It certainly is inconvenient, and sometimes dangerous, to be denied access to people’s property, but that doesn’t mean you should make it a crime for them to defend their own property.

Leave a Reply

Your email address will not be published.