33.1-94 - Right to enter on land to ascertain its suitability for highway and other transportation purposes; damage resulting from such entry.
§ 33.1-94. Right to enter on land to ascertain its suitability for highwayand other transportation purposes; damage resulting from such entry.
A. The Commonwealth Transportation Commissioner, through his duly authorizedofficers, agents, or servants, may enter upon any land in the Commonwealthfor the purposes of making examination and survey thereof, including but notlimited to photographing, testing, including but not limited to soil boringsor testing for contamination, making appraisals, and taking such actions asmay be necessary or desirable to determine its suitability for highway andother transportation purposes, or for any other purpose incidental thereto.Such officers, agents, or servants shall exercise care to protect anyimprovements, growing crops, or timber in making such examination or survey.
B. Notice shall be sent to the owner by certified mail, at the addressrecorded in the tax records, return receipt requested, or delivered byguaranteed overnight courier or otherwise delivered to the owner in personwith proof of delivery not less than 15 days prior to the first date of theproposed entry. Notice of intent to enter shall be deemed made on the earlierof the date of mailing, if mailed, or on the date delivered.
C. The notice shall include the anticipated date or dates such entry isproposed to be made and the purpose of such entry. Any entry authorized bythis section shall be for the purposes of making examination and surveythereof, including but not limited to photographing, testing, including butnot limited to soil borings or testing for contamination, making appraisals,and taking such other actions as may be necessary or desirable to determinethe suitability of such property for highway and transportation purposes andshall not be deemed a trespass.
D. The Commonwealth Transportation Commissioner, through his duly authorizedofficers, agents, or servants, shall make reimbursement for any actualdamages to real or personal property resulting from entry upon the property.In any action filed under this section, the court may award the owner hisreasonable attorney fees, court costs, and fees for no more than three expertwitnesses testifying at trial if: (i) the court finds that the Commissionermaliciously, willfully, or recklessly damaged the owner's property and (ii)the court awards the owner actual damages in an amount 30 percent or moregreater than the Commissioner's final written offer made no later than 30days after the filing of an answer in circuit court or the return date ingeneral district court. A proceeding under this subsection shall not precludethe owner from pursuing any additional remedies available to the landowner.
(Code 1950, § 33-57.2; 1960, c. 491; 1970, c. 322; 2007, c. 755.)