Court Order Inspection of Land

Martin v. Reynolds Metals Corp., 297 F.2d 49, 57 (9th Cir. 1961), a federal case, as support for an interpretation of "inspection" that includes entry onto land to take samples of soil and water for testing. See Martin., 297 F.2d at 57. Martin involved the interpretation of an inspection of land under former Federal Rule of Civil Procedure 34 which permitted an order requiring a party to produce and permit the inspection and . . . photographing . . . of any designated objects, or tangible things . . . which constitute or contain evidence . . . or . . . to permit entry upon designated land or other property . . . for the purpose of inspecting, measuring, surveying, or photographing the property or any designated object or operation thereon . . . .Id. at 56 (quoting then-current federal rule 34). The Martin court was concerned with the trial court's power to regulate discovery. By interpreting the rule liberally, the court allowed the trial court's order of inspection to include the taking of samples of forage, cattle feeds, air, water, soil, and vegetation and mineral supplements. See id. at 53 n.1, 57. In contrast to the Martin court's interpretation of "inspection" under then-current federal rule 34 is Fisher v. United State Fidelity & Guaranty Co., 246 F.2d 344 (7th Cir. 1957). The Fisher court refused to interpret the word "inspection" to include the right to test. See Fisher, 246 F.2d at 348-49. Thus, Martin and Fisher represent two different interpretations by the federal courts of the meaning of "inspection" under the federal rules. Current federal rule 34 specifically provides for testing and sampling. See FED. R. CIV. P. 34(a). Like federal rule 34, Texas Rule of Civil Procedure 196.7 allows entry on the land to " inspect, measure, survey, photograph, test, or sample the property . . . ." TEX. R. CIV. P. 196.7(a) (replacing former rule 167 effective Jan. 1, 1999). Rule 196.7 does not define "inspection" as testing and sampling nor does it require interpretation of the term "inspection" to allow testing and sampling. Thus, rule 196.7 does not subsume testing and sampling within the term "inspection."