“Survey Rights and Condemnation in Texas” by Mary Colchin Johndroe

 By: Mary Colchin Johndroe*

      Often the first contact made by a condemning entity with a landowner is a request to come onto property to survey in advance of condemnation proceedings. Landowners and condemnors alike should know their rights in this situation.

      To illustrate, let’s reference the ongoing Dallas to Houston High-Speed Rail project.  Texas Central Railroad & Infrastructure, Inc. (“TCRI”) has been requesting written, signed permission from landowners to enter upon, survey, and conduct various activities on their properties. These parcels may later be acquired by eminent domain, or condemnation, for the Dallas to Houston High-Speed Rail project. As currently envisioned, the project spans across 10 counties between and including Dallas and Harris.

       Does the Condemnor Currently Possess the Power of Eminent Domain?

      Landowners are not required to provide a signed right of entry. However, an entity with the power of eminent domain has grounds to seek an injunction in court to prevent a  landowner’s interference. Texas courts typically hold that a condemnor with the power of  eminent domain has the legal right to access and survey properties as required to complete its  planned project.¹

      But, any legal right to access and survey is necessarily dependent upon a condemnor actually possessing the power of eminent domain.² And, importantly, Texas courts have made preliminary findings as to the power of eminent domain, denying access to survey or otherwise possess a landowner’s property when the power is found lacking.³  In fact, one court found that a preliminary finding as to power of eminent domain was required prior to taking possession, despite prior deposit of a commissioners’ award.4

      What Rights to Survey Are Provided by Statute or Are a Necessary Incident to
Power of Eminent Domain?

      Assuming a condemnor actually does have the right of eminent domain, its right to  survey prior to condemnation is typically expressly described by statute. It may also have  implied rights.

      If TCRI could establish that it’s a railroad company with the power of eminent domain, it would be entitled to make a preliminary examination and survey as necessary to select the most advantageous route for any proposed railway.5

      However, this right would be statutorily limited to the performance of a lineal survey prior to condemnation proceedings.6  Further, the company would be liable for any damages arising from the survey.7

      Conversely, if TCRI could establish that it’s an interurban electric railway company with the power of eminent domain, its right to examine and survey might not have the same statutory limitations.8

      Texas courts have often found certain implied statutory rights beyond just those rights expressly stated in statutes.9  “It has been stated broadly that the right of entry on property, in good faith, for the purpose of making a preliminary survey and investigation with the view of condemnation is a necessary incident of the right to condemn . . .”10  Accordingly, for example, the Puryear Court held the statutes granting water control districts the specific authority to go upon land for the purpose of making surveys included the right to conduct core drilling operations.11  The Court reasoned that allowing a survey without core drilling to determine the feasibility of locating a dam could not be the legislature’s intent because construction of dams was essential to carrying out the authority’s basic functions.12

      Lessons Learned.

      Both landowners and condemnors should know if there is a right to access and survey property prior to condemnation and the extent of any such right.  landowners should consider requesting preliminary findings defining any such rights. A qualified condemnation attorney can help guide you through this process.

*Mary Colchin Johndroe is a Partner at Cantey Hanger LLP in Fort Worth, Texas. Her principal practice areas include Eminent Domain/Property Rights, Construction, and Litigation.  She may be contacted at mjohndroe@staging.poised-team.flywheelsites.com / 817-877-2810. Her bio may be found at https://canteyhanger.com/attorneys/mary-colchin-johndroe/.

1 Coastal Marine Service of Texas, Inc. v. City of Port Neches, 11 S.W.3d 509, 512 (Tex. App.—Beaumont 2000, no  pet.); Puryear v. Red River Auth. of Tex., 383 S.W.2d 818, 820-21 (Tex. Civ. App.—Amarillo 1964, writ ref’d n.r.e.); Lewis v. Texas Power & Light Co., 276 S.W.2d 950, 954 (Tex. Civ. App.—Dallas 1955, writ ref’d n.r.e.)

2 Crosstex NGL Pipeline, L.P. v. Reins Road Farms-1, Ltd., 404 S.W.3d 754, 756 (Tex. App.—Beaumont 2013, no pet.)

3 Reins Road, 404 S.W.3d at 756; In re Crosstex NGL Pipeline, L.P., No. 09-13-00168-CV, 2013 WL 2444192 (Tex. App.—Beaumont May 30, 2013, orig. proceeding); In re Texas Rice Land Partners, Ltd., 402 S.W.3d 334, 340 (Tex. App.—Beaumont 2013, mandamus denied); Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, 363 S.W.3d 192 (Tex. 2012); Seals v. Upper Trinity Regional Water Dist., 145 S.W.3d 291 (Tex. App.—Fort Worth 2004, pet. dismissed).

4 In re Texas Rice, 402 S.W.3d at 340.

5 TEX. TRANSP. CODE § 112.051(a)

6 TEX. TRANSP. CODE § 112.051(c)

7 TEX. TRANSP. CODE § 112.051(b)

8 TEX. TRANSP. CODE § 131.013(b)

9Coastal Marine, 11 S.W.3d at 513.

10 Lewis, 276 S.W.2d at 954 (quoting 29 C.J.S., Eminent Domain, § 226a).

11 Puryear, 383 S.W.2d at 820-21

12 Id.