Right of Entry

[jonwheat]

I am looking for some input on the issue of the Surveyor's Right of Entry. Specifically as it relates (or doesn't, as the case may be) to topographic surveys. I have recently heard dissenting views on whether Civil Code 846.5 pertains solely to boundary surveys or can be applied to a broader range of tasks within the field of Land Surveying.

Thoughts, views, experiences, and opinions are appreciated...and hopefully unified!

[TTaylor]

"846.5. (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..."

I am of the opinion that the wording, "and to perform surveys", means any type of survey a Land Surveyor may perform under their license.

[rmaher]

In the OC Chapter's newsletter (May, Page 9) there was an article by an attorney on the subject: http://oc-surveyors.org/pdf/May-2014-Witness-Corner.pdf

James Anton (the attorney) also spoke at a chapter meeting and I'm sure he we be open to discussing it with you based on his invitation to be contacted.

I'm also aware of a report (white paper) that I came across while researching the topic, written by a surveyor part of a San Diego group: http://www.lsacts.com/documents/Right%2 ... 20V1.6.pdf

I remember this paper being very interesting because it went far outside of just "our" law and looked at right of entry across many areas of law.

On a personal level, I'm of the opposite opinion that Tom has ... based mostly on conjecture and how I read the law ... I think the intent of the law is to allow us to perform boundary surveys and not be hindered in performing a boundary survey due to lack of access to the evidence. I don't think the legislature intended to diminish the rights of ownership in property to allow us to do any type of surveying we choose. It would be nice if this is wrong, as a practicing surveyor (only) I would like it to be, making some of my projects easier.

Because the wording uses such a specific term in purpose (i.e. boundary evidence) it seems reaching to me that (perform surveys) then means for any other purpose as well. This is just how I read it and I would love to see precedence set one way of the other, just to know.

Whether it has been through photogrammetry, reflectorless methods, or negotiations I have been able to practice using the right of entry only in regards to the need to search for and measure monuments and evidence of occupation.

I shudder to think of working in states where surveyors don't have a right of entry ... making me thankful to whomever put this legislation in place.

This would be a great topic to seek legislative intent, precedence cases, or authority opinions on ... Board? Legislature? Attorney General?

[land butcher]

Carrying a Right of Entry card doesn't help. I and others have been told to leave by armed officers of the law. The one I showed the card to skimmed it and said "That's for the court's to decide".

Right of Entry SHOULD apply to all surveys. A proper topo survey needs grade and slope data from adjacent properties so that drainage is not affected.

[jonwheat]

Thanks Rich, Tom, and Land Butcher. Just the kind of feedback I am looking for.

Anyone else care to stick their neck out there any give an opinion? I don't think there is a definitive answer, so you can't be wrong (unless someone comes up with the definitive answer).

It has been my understanding that the law only pertained to the utilization of boundary evidence. In order to complete a topographic survey, the surveyor is required to get permission from the landowner or be at risk for being prosecuted for trespassing.

Holding the position that the right of entry applies to all aspects of surveying begs the question-Do post '82 CEs (the new guys) who's licenses allow them to perform topographic surveys for design purposes have these same rights when they perform a topographic survey on private property?

I challenge everyone reading this to weigh in! This post is getting far too little attention compared to the other non-survey related posts on this forum.

This is a great opportunity to use this forum for the benefit of the profession.

Thanks,
Jon Wheat

[land butcher]

Right now there are some time sensitive important issues to be hashed out re CLSA.

[LS 4722]

I have been challenged more times than I can remember. There was only one time that I actually left a site when an uniformed LAPD officer yelled out from his squad car that he would arrest me for trespassing if I stayed on site.

I left. He drove off. I went back and finished the job.

One time 4-5 Glendale PD showed up when I was in a rear yard hillside area. I stood my ground and handed the female sergeant a copy of the code, Civil and Penal quotes, she told me "Well, this is something new to me, I'll pass it along"

The codes say '....and to perform surveys ..' which removes the right of entry from being only for boundary surveys and associated acts.

Edit:

There was one time when I was doing an ALTA and needed some l/t ties that were just inside the freeway R/W. The 10 Fwy just before the PCH off ramp. I'm down there looking for these leads and this CHP motorcycle cop rolls up. He tells me he was going to write me up for being in the Fwy R/W. I told him that I have right of trespass and before he wrote anything he should make sure that he was in the right.

So he calls into the station and talks to someone, I am now frantically looking for these ties amongst the debris that always gathers along our freeways. I don't remember if I found the leads or not, but I do remember what the CHP officer told me (no one at his station could find the quote, at that time, it was only in the Civil Code, they (CHP) were looking in the Penal Code) "If I find out later that you were wrong I am going to come back and write you the biggest ticket you have ever seen".

He zoomed off and the last time I saw him was when he was headed east on the 10 Fwy. I just got the hell outta dodge!

[TTaylor]

Jon, I think you can argue either way. Rich makes compelling arguments to support his opinion (nice job!) which is different than mine.

In all of my years looking at laws or proposed revisions while at Caltrans and as the CLSA Leg Chair I have found that, guess what, many times they are poorly written.

In this instance if the intent was for just boundary purposes than the language may have better been written as "..to investigate and survey boundary evidence..." I.e. no separate phrase. Also if the intent was for any survey than the language could have been simply, "..to perform a survey..."
without the wording related to boundary. As always the fewer the words the better to minimize ambiguity.

BTW, if I were involved with writing clarification revisions for these sections of law I would start out by moving the subject to the beginning before the predicate not after. I can provide the suggested language if anyone is interested.

[steffan]

testimony:

"But your honor, I was investigating a boundary of said property. The surface boundary."

[PathFinder]

For the very reasons stated previously, didn't CLSA introduce legislation for Surveyors Right of Entry in the Penal Code as well as the Surveyors Act? I recall reading several years ago that this was done due to the fact that law enforcement have access to the Penal Code.

[pls7809]

For freeway rights of way, there is a tidbit about it here:

http://www.sccgov.org/sites/dso/County% ... ochure.pdf

PLS Act 8774(c) and Civil Code 846.5(c) say: When required for a property survey, monuments within a freeway right of way shall be referenced to usable points outside the access control line by the agency having jurisdiction over the freeway when requested in writing by the registered civil engineer or licensed land surveyor who is to perform the property survey. The work shall be done within a reasonable time period by the agency in direct cooperation with the engineer or surveyor and at no charge to him. (or her - added by me) (side note - I guess a female surveyor will be charged by Caltrans?)

[Jim Frame]

Regarding §8774(c), I've only needed to use it once. A few months ago I needed to establish the I-80 ROW line near Vacaville. Rob McMillan was very helpful -- he not only did some monument recon himself, he also arranged for a Caltrans crew to scare up monuments in the area. The ones I *really* wanted had been obliterated, but I got enough to support the location I had determined from adjacent surveys. The process works!

[7702]

Any person licensed pursuant to Chapter 15 (commencing with Section 8700) of Division 3 of the Business and Professions Code who, is engaged in the lawful practice surveying as authorized by Section 846.5 of the Civil Code.

This certainly helps, but land owners in general are becoming more legal savvy, and don't welcome us in just because we flash some code at them. Also, its arguably still a civil matter as far as law enforcement is concerned since the penal code provision refers back to the civil code for interpretation of what activities are "authorized".

This topic is discussed in depth it seems about once a year or so on this forum and there is a lot of valuable r-o-e info on those other threads.

I think new legislation clarifying our rights is much needed.

[jonwheat]

Just to focus the conversation, I am particularly interested in responses that pertain to topographic surveys on private property.
Jon

[Ric7308]

First of all I believe the most recent flyer that CLSA produced in 2009 is one of the most productive and well thought out publications on this matter. When BPELSG receives inquiries pertaining to ROE, we discuss the rights afforded the licensee and recommend reading / using / distributing the flyer. We've even provided it ourselves at times to the public. I don't have any stats to support this, but I'm pretty sure that the number of inquiries BPELSG has received, especially from licensees, relative to ROE has diminished coinciding with the introduction and use of this flyer. For those of you who do not use it consistently or are not fully aware of it, I highly suggest that you log into the members section of this site to download. Provide copies in every survey vehicle and on public counters.

General thoughts relative to ROE from BPELSG's point of view...

It is believed that the genesis of this right is directly related to the recognition that land surveyors are not advocating for any one land owner and that the land surveyor needs reasonable access to boundary evidence in order to appropriately establish or retrace the location of property boundaries. And in situations involving disputes a neighboring land owner is prevented from simply denying reasonable access for the purposes of gathering needed boundary evidence.

8774 (PLS Act) and 846.5 (CC) are generally consistent in language which provide for legal access for all "...persons legally authorized to practice land surveying." In our opinion, this includes civil engineers licensed prior to 1982 and subordinates working under the direct responsible charge of those aforementioned civil engineers and licensed land surveyors.

Other than for the purpose "...to investigate and to utilize boundary evidence...", the predominate thought that comes to my mind relative to "...and to perform surveys..." is when agencies require existing topographic information outside of the property boundaries of the subject parcel for the purposes of gathering adequate information to ensure that surrounding properties are not negatively affected by proposed improvements (i.e., grading, construction, etc.). We believe these requirements are intended to protect the rights of the surrounding property owners including the rights of the public when public right-of-ways are encountered. In that sense, and with the intentions to protect the public's interests, we believe that "...and to perform surveys..." as stated in 8774 and 846.5 includes the right to perform surveys other than for boundary purposes with the intent to protect the public.

With this immediately preceding thought in mind, it could be considered reasonable for a civil engineer (licensed after 1981) to be allowed into neighboring properties for the purposes of extending a topographic survey, as allowed by PE Act 6731.1, to protect the same rights of the public. It could also be argued that this authority does not extend to those licensees simply because it is not addressed in the PE Act. This is a little more complex of an answer that would require more than just simply responding to this thread.

Penal Code 602.8 is another story and while it may had been intended to coincide with the thinking of the 8774 and 846.5, it is believed that 1) it may have missed the mark due to the narrow language and 2) the emphasis is more about criminal behavior and trespassing rather than the reverse emphasis afforded by the other two statutes.

602.8 ONLY allows for an exception for those "...licensed under Chapter 15 of Division 3 of the Business and Professions Code..." It could be argued that 602.8 does NOT allow civil engineers licensed prior to 1982 or subordinates to those engineers and land surveyors because they are not licensed by the PLS Act and are only exempted under specific conditions. Again, this illustrates the primary differences between 602.8 and the other two statutes.

Personally, I don't agree that revisions are necessary and attempts should be avoided unless there exists a real need to do so. Consider this point of view...all three statutes referenced in this topic are primarily for the purposes of codifying responsibilities of the general public in allowing certain authorized individuals to perform their services for the reasonable benefit of the entire public. These three statutes are NOT provided for the benefit of the land surveyor. It helps sometimes to look at these issues from viewpoints other than how a land surveyor would perceive them. Once these laws were to be opened up for revision, these would be open for anyone to make changes and the legislators would most likely lean towards the rights of the public over the rights of the land surveyor. Any controversy related to these statutes could easily result in an elimination of these rights (or an elimination of this exemption under the Penal Code)

[bryanmundia]

I can see the point Rich makes in that it pertains solely to boundary surveying and the evidence associated with performing said boundary survey. The rest of 8774 continues to mention monuments in a number of sentences but says nothing about topographic surveying or as defined by the law as "Determines the configuration or contour of the earth’s surface, or the position of fixed objects above, on, or below the surface of the earth by applying the principles of mathematics or photogrammetry."

I tend to lean towards that if they meant the law to encompass all types of surveys there would be mention of lack of access to freeway right of ways not just for monumentation but also the other necessary functions of performing other types of surveys and would not be so specific to only monumentation.

I think the argument that could be made is that investigation and utilization of boundary evidence could be the action of physically searching for said items and then to perform surveys means to actually break out the legs and instrument and collect angles and distances between them.

[TTaylor]

Well put, Ric.

I agree that revisions are a very last resort. If some/many encounter problems with ROE that ends up harming anyone then maybe consideration should be thought of to revise all pertinent laws related to the subject.

if it every becomes necessary to consider revision language I recommend that the language be in active voice and not passive voice. It's easier to understand. For example, "The Licensed Land Surveyor has the Right to enter on real property to ......" as opposed to the existing language.

[PathFinder]

Can the Board of Registration introduce language to clarify our right of entry law?

[E_Page]

We put two of these together. One to educate surveyors, and another specifically for use with homeowners and law enforcement. I've attached both (available for download in members section as well). The ROE exists in statutes within the PLSA (Business & Professions Code), the Civil Code, and the Penal Code.

I've only had to invoke the ROE a couple times in my career. The last time, a deputy had come out for some other disturbance between the problem adjoiner and some other neighbor. I knew I was going to have to tie a couple mons on the problem guys side of the fence, so I took the time to speak with the deputy after he had conducted his other business. I told him what I needed to do and why, and began to mention the ROE statutes but he was already familiar with them (welcome surprise). He went back and had a another short conversation with the neighbor. All went pretty smooth after although the problem neighbor hovered over me the whole time I was on his property or even close to the line.

Time before that, I was paying a courtesy call to the landowner before traversing across a portion of the land (an environmental group of some kind that also operates an outdoor adventure concern along the American River). At first they were hesitant, but I explained exactly what I would be doing while working the ROE into the conversation. Between understanding that ultimately I could gain access anyway, and also accepting my description of the work to be done with a promise to leave no trace of our having been there, they let me in.

The only time I had an issue prior to that, I was an I-man on a crew for a utility company in MI. We needed to flag a proposed gas line route across several properties, including a private hunting preserve that was a section or two in size. The chief called the landowner, who after receiving an explanation of what we needed to do, told us that it would be OK as long as we called just prior to entering his land. This was a few years before cell phones, and location of site was about 30 to 40 minute drive to nearest pay phone.

Chief said that we would be working our way across several properties and expected to get to his late that day or sometime in the morning of the next and asked if it would work if we just drove up to the ranch house to speak to him just prior to commencing work. Owner said that he had no particular objection except that his groundskeeper/security patrol man prowls the property and since he hadn't seen him that day and wasn't likely too, that we'd get shot long before we got anywhere near the house.

Chief said "not a problem, we'll call ahead of time." Moral of that story: You may have the right to enter, but statutes don't stop bullets and you may not be able to exercise your right to leave under your own power.


For Paul: Limited access freeway RWs are specifically excluded from the ROE.


My interpretation, and I'm no more certain that it is the correct interpretation than are Tom or Rich regarding theirs, falls between Tom's and Rich's take, but maybe a bit closer to Rich's.

Many different kinds of surveys, including topos, often tie into boundary corners for reference or control. I believe that the statute allows you to search for and locate that boundary control regardless of the type of survey you are locating it for, and authorizes all of the survey activities necessary to make that search and recovery. But I do not believe that it extends to the authority to place construction stakes for improvements within the RW or on adjacent parcels, nor to collect other topo data where doing so would require you to physically trespass, and probably would also be interpreted to not authorize the collection of topographic data where doing so remotely would be considered a violation of privacy.

That last part about privacy is just my guess as to how it would be interpreted based on how other privacy concerns have been adressed in the context of other statutes. I'm more certain about the non-boundary work that requires physical trespass.

[rmaher]

Great discussion and I appreciate everyone's ideas, references, and input.

On the subject of savvy owners ... I had one owner remark once that my field crew were not licensed surveyors. I'm curious if my responsible charge over them and to perform land surveying extends the ROE to them? If not, being present myself, then could only a licensed crew member join me in entering?

It left me thinking perhaps I should deputize and/or "administer an oath or affirmation to the persons employed as chain carriers, obliging each of them to the faithful performance of the duty."

Thank you Evan, Tom, Ric, Bryan, Jon, et al.

[TTaylor]

On the subject of who is allowed ROE? Is it only the LS or does it extend to the LS' crew. If I recall correctly, the LSACTS paper penned by Larry Stevens opined that it extended to the crew while Gary Duke, a lawyer for BPELSG, opined it is only for the licensed professional.

IMO, the strict interpretation on the language is that it is only for the licensed professional. However, the practical reality is more towards extending to the crew. Otherwise if you needed more than one person on the property then they would both have to licensed.

[Ric7308]

On the subject of savvy owners ... I had one owner remark once that my field crew were not licensed surveyors. I'm curious if my responsible charge over them and to perform land surveying extends the ROE to them? If not, being present myself, then could only a licensed crew member join me in entering?

As I stated in my earlier post, if you are referring to 8774 and 846.5, where the language states "...persons legally authorized to practice land surveying...", subordinates working under the direct supervision of a licensed land surveyor are "authorized" only within those conditions. See 8705 and 8730(b)(2).

[Ric7308]

Can the Board of Registration introduce language to clarify our right of entry law?

BPELSG would only sponsor legislation if the public is/was adversely affected by the current language. For BPELSG to consider supporting language introduced by others, evidence that the public is/was adversely affected by the current language would need to be presented and supported.

[rpost]

Be professional. Explain your job and leave when fire arms are involved. If we bailed everytime someone didn't like our presence, we would not be able to finish many of our surveys. Also, learn spanish. It is a hudge help when a language barrier presents itself. No joke.

Every cop I have explained the law to has granted me access. I also try to give neighbors a headsup prior to the survey. Sometimes I include in the contract that the client contact the neighbors.

A CHP once asked me to remove myself from his highway. It is my highway too.

[marois]

The latest issue of the California Surveyor has an interesting article about Right of Entry. It is written by Ralph Simoni, CLSA’s Legislative Advocate. Apparently surveyors, among others, working on the High Speed Rail project were causing issues with farmers in the Central Valley. There was a proposed Senate Bill that would have required surveyors to let land owners know if they are an employee of the High Speed Rail Authority and to obtain permission to enter from the land owner prior to access. However the bill was defeated.