No Trespass Claim for Pipeline Survey Crew

Property owners in Augusta County who challenge defendants’ proposed entry onto their property as authorized by Va. Code § 56-49.01 to survey for construction of natural gas pipeline across plaintiffs’ land cannot sue for trespass; the Harrisonburg U.S. District Court also rejects plaintiffs’ constitutional challenge to Code § 56-49.01 as void for vagueness.

In an attempt to halt a survey crew’s entry onto their property, plaintiffs filed this action against defendant Dominion in Augusta County Circuit Court. Dominion removed the case to this court and now moves to dismiss the complaint.

Plaintiffs fail to state a claim for trespass under Virginia law. The complaint does not allege sufficient facts to establish that defendant entered onto plaintiffs’ property without authorization and thereby interfered with plaintiff’s right of exclusive possession. The claim accrues when there has been such an entry. Without facts establishing Dominion’s entry onto their property, plaintiffs’ trespass claim must fail.

Plaintiffs also fail to state a vagueness claim. Like their trespass claim, plaintiffs’ vagueness claim fails at the outset. Under no reasonable reading is the language of Va. Code § 56-49.01 vague. By its plain terms, the statute gives a natural gas company the right to enter property “without the written permission of its owner,” so long as the company has requested the owner’s permission to inspect the property on a certain date; not received the owner’s written permission before that date; and given the owner notice of intent to enter. If the company satisfies these three requirements, then its entry onto property “shall not be deemed a trespass.”

Nothing in § 56-49.01 suggests that a landowner may thwart this right by affirmatively and in writing denying the company’s request for permission to enter his property, as plaintiffs allege. It is of no significance to the company’s right to enter under the statute whether a landowner chooses to respond to the request for permission to enter or not. As long as the company complies with the statute’s notice requirements, it may enter the landowner’s property.

The court finds § 56-49.01 plain on its face and thus not susceptible to a vagueness challenge. Even if the court thought otherwise, it would still uphold the statute as constitutional because it is not impermissibly vague even under the most stringent vagueness test. The detailed terms of § 56-49.01 easily satisfy both due process concerns reflected in the void-for-vagueness doctrine – fair notice and fair enforcement. The statute is therefore not unconstitutionally vague.

Suit dismissed.

Little v. Dominion Transmission Inc. (Dillon) No. 5:14cv60, Sept. 30, 2015; USDC at Harrisonburg, Va. VLW 015-3-484, 16 pp.