In cases where a landowner claims that their land is surrounded by the land of others, leaving no access to public roads, if the landowner wishes to survey and photograph the disputed area for evidence in a civil lawsuit, it must first be considered whether this constitutes trespassing.

            The law regarding necessary access is stipulated in the Civil and Commercial Code, Section 1349, which was established for the benefit of landowners who are landlocked.

“Section 1349 If any parcel of land is surrounded by other parcels of land such that there is no access to public roads, the owner of that parcel shall have the right to pass over the surrounding land to reach the public road.”

        If a parcel of land has access but requires crossing a pond, swamp, or sea, or if there is a steep incline where the level of the land is significantly higher than that of the public road, it is stated that the provisions of the first paragraph shall apply.

        The location and method of creating the access must be chosen reasonably according to the necessity of the person entitled to pass, while also considering the least possible damage to the surrounding land. If necessary, the entitled person may construct a road for access.

        The entitled person must compensate the owner of the surrounding land for any damage caused by the existence of the access. This compensation, in addition to damages for road construction, may also be set as an annual payment.”

According to the provisions of Section 1349, access can only be requested when the land is surrounded by other parcels, leaving no access to public roads. The person entitled to request necessary access must be the owner of the land that is landlocked. Even if someone has built a house on the land, if they are not the owner, they cannot file a lawsuit for necessary access. When considering the provisions of Section 1349, it is clear that there must be valid grounds for requesting necessary access, which can be summarized as follows:

  1. One parcel of land is surrounded by another parcel, leaving no access to public roads as per Section 1349, paragraph one.

The term "public road" is defined according to the Criminal Code, Section 2, meaning land and water routes for public traffic, including railways and tramways for public transport. Therefore, the public road mentioned in Section 1349 must be a route that the public can use. If that public road has not been used for a long time, such as a canal that has become shallow and is no longer navigated by boats, even if the land is adjacent to the canal, it does not qualify as a public road. The landowner has the right to request necessary access. However, if the landowner without access to public roads has permission from the neighboring landowner to use a passage to reach the public road, it still does not constitute access to a public road, as the granted right is not a legal right. The landowner can still file a lawsuit for necessary access.

2. The land has access to public roads but requires crossing a pond, swamp, or sea as per Section 1349, paragraph two. To request necessary access under this principle, it must be a case where the land requires crossing a pond, swamp, or sea, or similar difficult conditions. However, if access to public roads requires crossing a 4-5 meter ditch, and crossing that ditch is not difficult but merely inconvenient, necessary access cannot be requested because a ditch is not a pond, swamp, or sea. However, if the land is adjacent to a river that the public no longer uses for transit, the landowner can file a lawsuit for necessary access.

3. The land has access to public roads but has a steep incline where the level of the land is significantly higher than that of the public road as per Section 1349, paragraph two. For example, if the land is adjacent to a cliff, and there is a road on top of the cliff, but accessing the road requires climbing the cliff, which is inconvenient, the landowner has the right to request necessary access.

The method of creating necessary access is stipulated in Section 1349, paragraph three, which states:

  1. The landowner whose land is surrounded must choose a route that is reasonable according to necessity.

"Choosing reasonably according to necessity" means that the landowner whose land is surrounded can request to pass through any surrounding land. Section 1349, paragraph one, does not state that the landowner must request to pass through the land closest to the public road. Therefore, the landowner can use the shortest route to the public road, which is suitable for the landowner who is surrounded, or can use any surrounding land for access, but must exercise their rights in good faith.

  1. The landowner whose land is surrounded must consider minimizing damage to the surrounding land.

The phrase "must consider minimizing damage to the surrounding land" does not mean that the entitled person can only walk through; they also have the right to use vehicles on the necessary access. However, using the necessary access must cause the least damage to the surrounding land.

Regarding necessary access, the law does not stipulate that it must connect directly to a public road. The main purpose of Section 1349 is simply to ensure that the land that is surrounded has access to public roads. Therefore, requesting to open necessary access does not always have to end at a public road, and necessary access is a limitation of property rights as defined by law. The user of necessary access has the right to use it by virtue of law, and thus does not need to be registered again according to Section 1338.

From the above, it may raise questions about what benefits the landowner whose land is surrounded receives from allowing access. The law has therefore stipulated compensation for opening necessary access in Section 1349, paragraph four, which states that the entitled person must compensate the owner of the surrounding land for damages caused by the request for access. This compensation, in addition to damages for road construction, may also be set as an annual payment. However, it does not stipulate that compensation must be paid before using necessary access. Therefore, filing a lawsuit to open necessary access does not require offering compensation, but it is the responsibility of the landowner being sued to claim compensation themselves.

Considering the issue of whether a landowner is surrounded by the land of others, leaving no access to public roads, if the landowner wishes to survey and photograph the disputed area for evidence in a civil lawsuit, it would constitute trespassing. Although the right to use necessary access arises by law, the provisions merely limit the rights of the landowner whose land surrounds that of others, allowing the owner of the surrounded land to use the surrounding land to reach public roads. It does not grant the owner of the surrounded land the right to enter the land of others or perform any actions on the land of others arbitrarily. Furthermore, the right to use necessary access under the law must be considered based on the actual circumstances at that time, whether it meets the conditions set forth in Sections 1349 and 1350. If the facts regarding whether the landowner can request necessary access are not yet settled, the court in the civil case must determine the facts before concluding whether the land meets the criteria for necessary access. If the landowner enters the land of the injured party to survey and photograph the area without permission, it constitutes an unlawful exercise of rights, disturbing the peaceful possession of the injured party's property, and is considered trespassing (referencing Supreme Court Judgment No. 1323/2564).

For the landowner who is surrounded, to avoid committing the offense of trespassing, according to the Criminal Code, Section 362, it is necessary to consider the general dispute issues for filing a request for necessary access, namely:

1. Is the route the plaintiff is requesting the defendant to open necessary access? Considerations include proximity to the public road, convenience, and suitability compared to other routes.

 2. Does the plaintiff have a necessity to use the route through the defendant's land to reach the public road, which is xx meters wide, as claimed, or how wide is the disputed route?

From these two points, it can be seen that the landowner does not have such a necessity to survey and photograph the land before filing a lawsuit. In general practice, the landowner only needs to file a request to open necessary access along with a rough map, which may include obtaining a land title from the land office where their land is located, marking to indicate the necessary access, detailing the width and length of the disputed route, the distance from which land boundary to which land boundary, and may reference photographs of the disputed route from their land, or may utilize technology such as aerial photographs from Google Maps, Google Earth, and Land Maps, referencing coordinates according to the land title from the land department, etc. Then, they can file a request for surveying the necessary access, and the court will order the land officer to survey the land that is surrounded.

Therefore, it can be concluded that once a case is brought to court regarding land disputes, it is advisable to allow the authorized land officer to proceed with the matter rather than entering the land arbitrarily. Additionally, in cases of requesting necessary access, the plaintiff does not need to survey or photograph the land of others before filing, as the court must order evidence to be presented to determine whether the criteria for requesting necessary access are met, as explained above (read the article trespassing).