In Texas, certain pipeline companies have the power of eminent domain. Eminent domain is a sovereign’s power to take land for certain public purposes, but the sovereign (Texas) has delegated that power to pipeline companies that meet threshold requirements.
It is this power of eminent domain that allows a pipeline company to insist on a survey of your land. Texas courts have ruled that the pipeline’s power of eminent domain includes the power to make a preliminary survey. So yes, you should generally assume that you do have to allow a survey of your land – as long as the pipeline company is one of those that has eminent domain powers.
The vast majority of pipeline companies indeed have this power, but not all. If you have been approached by a pipeline company that is seeking access to your land, you should have a lawyer determine whether the company has eminent domain power or not.
In order to qualify for eminent domain power in Texas, companies typically need to qualify as a “common carrier” under Texas’s Natural Resources Code. However, gas utilities qualify under a different rule.
To be considered a common carrier, the company simply has to be one that will own, operate or manage a pipeline, for the public, carrying:
- Crude oil
- Carbon dioxide
- Products of carbon gasification
Owners, operators and managers of private pipelines do not necessarily have the power of eminent domain.
A T-4 permit from the Railroad Commission is pretty good evidence that the pipeline is one that has eminent domain power. However, since private pipeline operators are generally required to have a T-4 permit, having such a permit does not prove they have eminent domain power. Moreover, some public pipelines do not have to have a T-4 permit.
If the pipeline company does not have the power of eminent domain, you have the upper hand in negotiations with that company. If you refuse to allow access to your land and the company can’t move forward without that access, you should expect to receive a premium price.