Property Reserve, Inc. v. Superior Court of San Joaquin County ( 2016 )

Filed 7/21/16
IN THE SUPREME COURT OF CALIFORNIA
PROPERTY RESERVE, INC., )
)
Petitioner, )
) S217738
v. )
) Ct.App. 3 C067758
THE SUPERIOR COURT OF SAN JOAQUIN ) San Joaquin County Super. Ct.
COUNTY, ) JCCP No. 4594
)
Respondent; )
)
DEPARTMENT OF WATER RESOURCES, )
)
Real Party in Interest. )
)
)
CAROLYN A. NICHOLS, as Trustee, etc. et al., )
)
Petitioners, )
) Ct.App.3 C067765
v. ) San Joaquin County Super Ct.
) JCCP No. 4594
THE SUPERIOR COURT OF SAN JOAQUIN )
COUNTY, )
)
Respondent; )
)
DEPARTMENT OF WATER RESOURCES, )
)
Real Party in Interest )
)
) Ct.App.3 C068469
DEPARTMENT OF WATER RESOURCES CASES.) San Joaquin County Super. Ct.
) JCCP No. 4594
In an effort to improve the reliability of the water supply system in
California as well as to address environmental and ecological concerns, the
SEE CONCURRING OPINION
California Department of Water Resources (hereafter, the Department) undertook
to investigate the feasibility of constructing a new tunnel or canal in the
Sacramento-San Joaquin Delta as a means of delivering fresh water from Northern
California to Central and Southern California. As part of the preliminary steps in
going forward with the project, the Department sought to conduct environmental
and geological studies and testing on more than 150 privately owned parcels of
land that the state, in the future, might seek to acquire for the project through
negotiation or eminent domain.
In pursuing the proposed studies and testing, the Department proceeded
through the specific statutory procedure established by the California Eminent
Domain Law (Code Civ. Proc., pt. 3, tit. 7) relating to precondemnation entry and
testing. (Code Civ. Proc., §§ 1245.010-1245.060.)1 The Department filed
petitions in superior court relating to the privately owned properties, seeking a
court order granting the Department authority to enter the properties and undertake
various environmental and geological testing activities. The Department
maintained that these activities were necessary to determine the suitability of each
property for the project and to comply with the numerous state and federal
environmental laws governing such a project.
After a four-day hearing, the trial court issued a detailed and lengthy order
authorizing the Department to enter all of the private properties and conduct
various environmental studies and testing under specified limitations. After a
1 Unless otherwise indicated, subsequent statutory references are to the Code
of Civil Procedure. For convenience, this opinion generally refers, collectively, to
the provisions of the Eminent Domain Law at issue here — sections 1245.010 to
1245.060 — as the precondemnation entry and testing statutes, and refers to the
activities authorized in those statutes, collectively, as testing activities or testing.
2
separate hearing, the trial court denied the Department‘s request to conduct
geological testing — testing that contemplated the drilling and refilling of deep
test holes on certain properties in question — on the ground that the Department‘s
authority to conduct that drilling could be obtained only through a classic
condemnation action rather than through the statutory precondemnation
procedure.2
Both the landowners and the Department sought review of the trial court‘s
rulings in the Court of Appeal. The Court of Appeal, in a two-to-one decision,
upheld the trial court‘s denial of the Department‘s request to enter and to conduct
geological testing, but reversed the trial court‘s grant of authority to conduct
environmental testing. The majority in the Court of Appeal concluded (1) that the
procedure established by the precondemnation entry and testing statutes does not
satisfy the demands of the takings clause of the California Constitution with regard
to any precondemnation entry and testing activity that would constitute a taking or
damaging of property within the meaning of the state takings clause, and (2) that
both the geological testing sought by the Department and the environmental
activities authorized by the trial court fell within that category. The Court of
Appeal majority held that in order to conduct such activities, the Department was
required to proceed to condemn a temporary easement through a classic
2 One issue in this case is whether the judicial proceeding provided by the
precondemnation entry and testing statutes constitutes an ―eminent domain
proceeding[]‖ as that term is used in the California takings clause — article I,
section 19, subdivision (a) of the California Constitution. (See post, p. 54, fn. 20.)
To avoid confusion, this opinion refers to the judicial proceeding that the Eminent
Domain Law prescribes for the condemnation of property (see § 1250.110 et seq.)
as a classic condemnation action or proceeding, and to the judicial proceeding
provided by the precondemnation entry and testing statutes as a precondemnation
proceeding.
3
condemnation action, rather than proceeding by means of the procedure
established by the precondemnation entry and testing statutes.
The Department sought review of the Court of Appeal decision in this
court. We granted review and posed three questions for briefing and argument:
(1) Do the geological testing activities proposed by the Department constitute a
taking? (2) Do the environmental testing activities authorized by the trial court‘s
order constitute a taking? (3) If so, do the precondemnation entry and testing
statutes provide a constitutionally valid eminent domain proceeding for the
activities?
For the reasons set forth below, we conclude that there is no need to
determine under the first two questions whether the authorized environmental
testing activities or the proposed geological testing activities constitute a taking or
damaging of property for purposes of the state constitutional takings clause.
(Cal. Const., art. I, § 19, subd. (a).) Assuming, without deciding, that both the
environmental and the geological activities in question amount to a taking or
damaging of property for which just compensation must be paid under the
California takings clause, we conclude that in answer to our third question the
procedure established by the precondemnation entry and testing statutes satisfies
the requirements of the California takings clause when the procedure is reformed
to comply with the jury trial requirement of that clause. As we explain, the
precondemnation entry and testing statutes (1) require a public entity, before
undertaking such entry and testing, to seek and obtain a court order specifically
authorizing the activities that are to be conducted on the property and to deposit in
court an amount that the court determines is the probable compensation for the
authorized activities, and (2) permit the property owner to obtain damages in the
same proceeding for any actual damage and substantial interference with the
possession or use of the property caused by the public entity‘s entry and testing
4
activities. This procedure satisfies the California takings clause when reformed to
permit the property owner to obtain a jury determination of damages in the
proceeding if the property owner so chooses.
Accordingly, we conclude that the Court of Appeal judgment should be
reversed in its entirety, both insofar as the Court of Appeal affirmed the trial
court‘s denial of the Department‘s proposed geological testing and insofar as it
reversed the trial court‘s authorization of environmental testing.
I. Facts and Proceedings Below
In this case, the Department proposed to enter more than 150 privately
owned properties in the Sacramento-San Joaquin Delta area (Delta) in order to
conduct environmental and geological studies and testing needed to investigate the
feasibility of adding new water conveyance facilities — such as tunnels or
additional canals — in the Delta and to determine the suitability of potential
alternative routes for the contemplated project. The proposed new facilities would
become part of the Bay Delta Conservation Plan and are intended to improve the
reliability of the water supply statewide as well as to restore the Delta ecosystem
and native fish populations.3
3 The contemplated project would be a component of the State Water Project,
a statewide water storage and delivery system that is made up of reservoirs,
aqueducts, and power and pumping plants. The main purpose of the State Water
Project is to store and distribute water to urban and agricultural water suppliers in
Northern California, the San Francisco Bay Area, the San Joaquin Valley, the
Central Coast, and Southern California. According to the Department‘s Web site,
approximately 70 percent of the contracted water supply goes to urban users and
30 percent to agricultural users. (Dept. of Wat. Resources, State Water Project,
online at [as of July 21, 2016].)
5
Because the alternative potential locations for the new facilities cross or lie
beneath privately owned lands, the Department sought to enter the private
properties in question to ascertain preliminary environmental and geological
information about the properties. The Department maintains that the proposed
entries and testing are necessary for two reasons: (1) to determine the feasibility
and best potential location for the contemplated conveyance system, and (2) to
assess the potential effects of the project on biological, environmental, geological,
and archeological resources within the properties in order to comply with
numerous applicable state and federal environmental laws, including the
California Environmental Quality Act, the National Environmental Policy Act, the
California Endangered Species Act, the Federal Endangered Species Act, the
Federal Clean Water Act, and the California Porter-Cologne Water Quality Act.
Between 2008 and 2009, the Department filed more than 150 separate
petitions in superior court pursuant to section 1245.030, seeking entry onto
properties located in five separate counties — San Joaquin, Contra Costa, Solano,
Yolo, and Sacramento. In June 2009, the Department filed a request to coordinate
in a single proceeding the numerous entry petitions at issue here, and in March
2010, the superior court granted the request, coordinating the petitions in a single
proceeding before the San Joaquin County Superior Court.
In September 2010, the Department filed a ―Master Amended Petition‖ in
which it sought authority to conduct what the petition characterized collectively as
―environmental activities‖ with respect to all properties and ―geological activities‖
with respect to 35 properties. The proposed environmental activities consisted of
mapping and surveys relating to plant and animal species, habitat, soil conditions,
hydrology, cultural and archeological resources, utilities, and recreational uses.
The proposed geological activities consisted of drilling deep holes or borings to
determine subsoil conditions. The Master Amended Petition attached declarations
6
from environmental managers, planners, and surveyors employed by the
Department, describing the scope and purpose of the proposed testing activities.
Thereafter, at a case management conference in October 2010, the trial
court bifurcated the upcoming hearing on the Master Amended Petition, setting an
initial hearing limited to the proposed environmental activities and a subsequent
hearing for the proposed geological activities. The court indicated that it had
reviewed the numerous declarations that had already been submitted on behalf of
many landowners describing concerns with the Department‘s proposed activities,
and invited any property owner, prior to the upcoming hearings, to present
additional evidence by declaration regarding any property-specific issues that
could affect the scope of any order the court might ultimately issue. The court
also directed the Department to be prepared to produce witnesses at the hearings
who would testify in person with regard to the nature and scope of the proposed
entries and activities and who would be subject to cross-examination by the court
and landowners.
A. Environmental activities hearing and order
In December 2010, and January and February 2011, the trial court held a
hearing on the proposed environmental activities. It considered the declarations
filed on behalf of the Department and the landowners, and the in-person testimony
of a number of Department employees, as well as suggestions, concerns and
objections raised by the landowners and the Department to a series of tentative
orders drafted by the court. On February 22, 2011, the trial court issued a detailed
33-page order granting the Department limited authority to enter each of the
parcels at issue to conduct the various types of environmental testing sought by the
Department. The order stated that ―[t]he court has determined the nature and
scope of the activities reasonably necessary to accomplish the purposes identified,
taking due consideration of constitutional limitations and statutory procedures
7
required for a taking of property. The court has provided suitable limitations to
strike the best possible balance between the needs of [the Department] and the
interests of the property owners.‖
In brief summary, the order authorized Department employees to enter each
property4 for a maximum of 25 to 66 days (depending on property size) over a
one-year period in order to conduct the designated environmental survey,
sampling, and testing activities (recreational, botanical, hydrolic, general, habitat,
vernal pool, archeological and utility surveys, and mapping activities) under
specific conditions and limitations set forth in the order with regard to each type of
activity.5 The authorized environmental activities generally would be conducted
by walking, visual observation, minor soil and plant sampling and testing,
4 The order defined ―a property‖ for purposes of the order as ―an enterprise
unit such as a single ranch, even though comprised of several [assessed parcels].‖
5 As an example of the detailed nature of the order, the portion of the order
relating to botanical surveys states: ―1. Activities will consist of identifying
existing plants and characterizing the vegetation community; evaluating existing
vegetation for its suitability as habitat for special status species; visually
characterizing the soil and the existing substrate; and identifying wildlife for signs
of certain special status species. Activities will include walking the subject
property to assess the habitat and determine the presence or absence of sensitive
plant species; collecting samples of vegetation; recording locations using handheld
Global Positioning System (GPS) equipment; photographing landscape and
vegetation; digging holes with a trowel or shovel approximately two feet wide and
two feet deep to examine soil. After examination, soil will be used to refill the
hole from which it came so that it is placed as close as possible to its original
condition. Soil samples will not be taken from the subject properties. Watersides
of larger sloughs and rivers and in-stream islands may require surveys by small
boat. [¶] 2. All surveys and delineations will be conducted during daylight hours
during the months of February through October. Between 2 and 6 personnel
identified by DWR will require 1 to 12 days to survey each parcel concurrently
with hydrologic and general survey activities, and an additional 1 to 4 days if
wetlands are found.‖
8
photography, and trapping and releasing small animals. The entries would be on
foot where practicable, and any vehicle use would be restricted to existing roads.
The order required the Department to give a landowner 72-hour advance
notice before each entry, prohibited any entry on agricultural land during harvest
season or on hunting land during hunting season, limited the number of persons
per entry (two-to-eight persons) by property size, specified the time of day the
activities could be conducted (generally between 7:00 a.m. and 7:00 p.m.), and
provided that most of the authorized activities were to be conducted concurrently
in order to reduce the total number of days Department employees would be on the
property. No equipment could be left on the property between entries with the
exception of small traps that could be left for 14 days and small cloth targets for
aerial mapping that could remain on the property for between 30 and 38 days
(depending on property size).6 The order prohibited any inspection of or entry
within 100 feet of an inhabited dwelling, as well as any entry into any other
structures that are not open to the public. The order also contained a schedule of
general conditions, relating to indemnification, confidentiality, disclosure of
gathered information to landowner, and other matters.
Finally, the order set forth a schedule designating by property size the
amount of probable compensation that the Department was required to deposit
prior to entering any property to conduct the authorized environmental activities.
Under the order, the amount of probable compensation to be deposited ranged
from $1,000 per property for properties of 100 acres or fewer to $6,000 per
property for properties of 3,501 to 8,500 acres.
6 The order specified that the presence of traps or targets on the ground was
not to be considered a day of entry for purposes of the maximum days of entry per
property.
9
B. Geological activities hearing and order
After issuing its order relating to the environmental activities, the trial court
held a hearing over a number of days in February, March, and April 2011,
concerning the proposed geological testing. In declarations and testimony,
Department employees explained that geological tests were needed on 35
properties in order to determine the suitability of the subsurface of those properties
for several alternative potential alignments of surface canals or underground water
conveyance tunnels.
Two engineering geologists employed by the Department testified in some
detail with regard to the testing protocol. For each property, the process would
generally begin with a two- or three-day entry to determine, in consultation with
the property owner and utility and reclamation district personnel, the best location
for the drilling operations, taking into account existing uses of the property and the
location of underground utilities. The geologists testified that the sites of the
drilling initially suggested by the Department could be adjusted within the
proposed alignment of the project, and that the goal would be to find locations for
the drilling along existing roads and turnouts in order to minimize any damage or
interference with the landowner‘s ongoing uses of the property.
Once the optimal sites for drilling were determined, the Department would
first conduct ―cone penetrometer testing‖ (CPT) on each of the 35 properties. CPT
involves pushing into the ground a long rod that emits signals to determine the
subsurface composition of the tested land. The CPT creates a hole that is one and
one-half inches in diameter and up to 205 feet in depth, and that is refilled after the
rod is withdrawn. The CPT process generally requires four persons and up to four
vehicles (including a five-ton or 25-ton CPT truck) and a portable toilet, and is
generally completed in a single day. Thus, on properties that the Department
proposed to conduct only CPT, the Department‘s proposed geological activities
10
generally would be completed in a total of no more than four working days,
including the preliminary identification of the site location.
With respect to 28 of the 35 properties, the Department geologists indicated
that, in addition to the CPT process, the Department would need to drill additional,
larger ―soil borings‖ or ―drill holes‖ that would generally be located within five
feet of the CPT hole. The soil borings or drill holes would range from three and
seven-tenths to eight inches in diameter, would reach up to 205 feet in depth, and
would be refilled once the drilling and retraction of soil for sampling was
completed. The geologists testified that the drilling of drill holes generally
requires a five-person crew and larger and more equipment than the CPT
(generally including a drilling rig, forklift, support trucks, 55-gallon storage
drums, a mudbox, and a portable toilet). They further testified that in undertaking
this type of drilling the Department would need to use an area of approximately
100 feet by 100 feet as a worksite7 for a period of between five and 10 days
(depending upon the depth of the drilling), a period that would include the time for
setting up and taking down the drilling rig as well as the actual drilling.
Accordingly, with regard to the 28 properties on which both the CTP and drill
holes would be conducted, the geological testing activities generally would require
the Department to be engaged on each property for no more than a total of 14
working days.
The geologists further testified that, with respect to both the CPT and drill
holes, the top two to five feet of the holes would be refilled with native topsoil, to
restore the surface area as closely as possible to its original condition. In
7 The Department employees testified that the worksite could be stretched
alongside a roadway if needed to avoid drilling in fields.
11
accordance with current California regulations, the lower depths of the CPT holes
and the drill holes would be refilled with bentonite grout. As described by the
geologists, bentonite grout hardens into a type of cement, but because it lacks the
aggregate materials (sand and gravel) found in concrete, bentonite grout when
hardened is similar in texture to the native subsurface material that it would
replace, is soft enough to be shaved with a pen knife, would not interfere with or
damage farm machinery, and would not adversely affect the filled land for
agricultural or other purposes. The geologists explained that bentonite grout is
used in order to provide stability and avoid groundwater contamination. An expert
witness testifying on behalf of landowners raised no objection to the Department‘s
proposed use of bentonite grout and described such use as ―textbook sealing.‖
After considering the evidence regarding the factual nature and scope of the
proposed geological activities as well as briefing by all parties regarding the
constitutional issues raised by those proposed activities, the trial court issued an
order denying the Department‘s petition as it related to the proposed geological
activities. The trial court‘s order relied heavily upon this court‘s 1923 decision in
Jacobsen v. Superior Court (1923) 192 Cal. 319 (Jacobsen), which denied a
public entity‘s request to conduct somewhat similar drilling activities under an
earlier precondemnation entry statute. (We discuss the Jacobsen decision in detail
below, post, pp. 20-24.) The trial court acknowledged that the current
precondemnation entry and testing statutes were enacted by the Legislature after
the Jacobsen decision and include boring among the precondemnation activities
explicitly covered by those statutes. Nonetheless, the court denied the order for
the following reasons: the current statute does not explicitly state that it is
intended to apply to the type of deep drilling involved in Jacobsen and the present
case; Jacobsen concluded that such drilling activity would constitute a taking or
damaging of property for purposes of the California taking clause; and because the
12
precondemnation entry and testing statutes do not satisfy the requirements of the
state takings clause, the precondemnation entry and testing statutes should not be
interpreted to authorize this type of drilling activity.
C. Court of Appeal Proceedings
Prior to the entry of the trial court‘s geological testing order, the
landowners initially filed two petitions for writs of mandate, prohibition, or other
appropriate relief in the Court of Appeal, challenging the trial court‘s
environmental testing order and seeking a stay of that order. The appellate court
initially summarily denied the writ petitions, but this court granted review and
directed the Court of Appeal to order the Department to show cause why the writs
should not issue.
In the meantime, after the entry of the trial court‘s geological testing order,
the Department appealed the trial court judgment insofar as it denied entry to
conduct the proposed geological activities and the landowners appealed the
judgment insofar as it authorized entry to conduct the environmental activities.
The Court of Appeal stayed the environmental testing order and consolidated the
writ petitions and appeals for hearing and decision.
After briefing and argument, the Court of Appeal, in a two-to-one decision,
affirmed the trial court order insofar as it denied the Department‘s petition to
conduct geological activities, but reversed the trial court order insofar as it granted
the Department authority to conduct the environmental activities. The majority in
the Court of Appeal, relying heavily on this court‘s 1923 decision in Jacobsen,
supra, 192 Cal. 319, concluded that the current precondemnation entry and testing
statutes would be constitutionally valid if the statutes were interpreted to authorize
only those precondemnation entry and testing activities that are sufficiently
―innocuous‖ and ―superficial‖ that they do not constitute a taking or damaging of
property within the meaning of the California takings clause. Because, in the
13
majority‘s view, the proposed geological activities ―will result in permanent
structures being placed in the ground on the affected landowners‘ properties,‖ the
majority concluded that such activities constituted a per se taking of property for
purposes of both the federal and state takings clauses. And in light of the duration
and scope of the environmental activities authorized by the trial court order —
permitting entry and surveying throughout each property for between 25 to 66
days in a one-year period — the majority concluded that the environmental order
effectively granted the Department ―a temporary blanket easement for one year.‖
Such an easement, the Court of Appeal concluded, constituted a compensable
property interest for purposes of the federal and state Constitutions‘ takings clause.
The majority rejected the Department‘s contention that even if the geological and
environmental activities constitute a taking or damaging of property for purposes
of the California takings clause, the procedural requirements established by the
current precondemnation entry and testing statutes satisfy the demands of the state
takings clause. The majority found the statutory procedure constitutionally
deficient in several respects. It determined that the Department was required to
institute a classic condemnation proceeding for a temporary easement in order to
obtain the authority to undertake the precondemnation environmental and
geological testing activities at issue here.
One Court of Appeal justice dissented, concluding that neither the
environmental activities authorized by the trial court nor the geological activities
proposed by the Department — because of their temporary nature and very limited
economic impact — constituted a taking or damaging of property for purposes of
the California takings clause. Furthermore, the dissenting justice concluded that,
in any event, the procedure embodied in the precondemnation entry and testing
statutes satisfies the requirements of the state takings clause.
14
The Department sought review of the Court of Appeal decision in this
court. We granted review to decide the significant issues posed by this case.
II. Current Precondemnation Entry and Testing Statutes
Before discussing the specific issues raised in this case, we begin with an
overview of the precondemnation entry and testing statutes contained in
California‘s Eminent Domain Law. (§§ 1245.010-1245.060.)
Section 1245.010 sets forth the general authority granted to public entities
by the precondemnation entry and testing statutes. It provides: ―Subject to
requirements of this article, any person authorized to acquire property for a
particular use by eminent domain may enter upon property to make photographs,
studies, surveys, examinations, tests, soundings, borings, samplings, or appraisals
or to engage in similar activities reasonably related to acquisition or use of the
property for that use.‖ (Ibid.)
Section 1245.020 establishes the circumstances under which the property
owner‘s consent or, alternatively, a court order is required before a public entity
can enter property to conduct precondemnation testing. The section provides: ―In
any case in which the entry and activities mentioned in Section 1245.010 will
subject the person having the power of eminent domain to liability under Section
1245.060, before making such entry and undertaking such activities, the person
shall secure: [¶] (a) The written consent of the owner to enter upon his property
and to undertake such activities; or [¶] (b) An order for entry from the superior
court in accordance with Section 1245.030.‖ (Ibid.) In this case, the Department
has acknowledged that either the consent of the property owner or a court order is
required under this provision before it may enter and conduct the proposed
activities at issue here.
Section 1245.030 sets forth the procedure governing an order for entry.
The section provides: ―(a) The person seeking to enter upon the property may
15
petition the court for an order permitting the entry and shall give such prior notice
to the owner of the property as the court determines is appropriate under the
circumstances of the case. [¶] (b) Upon such petition and after such notice has
been given, the court shall determine the purpose for the entry, the nature and
scope of the activities reasonably necessary to accomplish such purpose, and the
probable amount of compensation to be paid to the owner of the property for the
actual damage to the property and interference with its possession and use. [¶]
(c) After such determination, the court may issue its order permitting the entry.
The order shall prescribe the purpose for the entry and the nature and scope of the
activities to be undertaken and shall require the person seeking to enter to deposit
with the court the probable amount of compensation.‖ (Ibid.)
Although section 1245.030 does not explicitly require the trial court to hold
a hearing and afford the property owner an opportunity to present evidence
relevant to the factors that the court is required to consider under section
1245.030, we conclude a hearing and an opportunity to be heard on a public
entity‘s entry petition is clearly contemplated by and implicit in the statutory
scheme. The notice to the property owner required by section 1245.030 would
make little sense if the owner had no ability to respond to the notice and make its
views known prior to the issuance of any order, and the very next section —
section 1245.040 — explicitly provides that the court may modify any order
entered under section 1245.030 ―after notice and hearing‖ (§ 1245.040, subd. (a),
italics added). In the present case, as we have seen, the trial court held extensive
hearings on the Department‘s petition and afforded the property owners the
16
opportunity to participate in the hearings. We conclude the trial court did not err
in so doing.8
Section 1245.040 authorizes the trial court, after notice and hearing, to
modify any order entered under section 1245.030 and to require the public entity
to deposit additional funds if it determines the initial deposit is inadequate. The
section provides: ―(a) The court, after notice and hearing, may modify any of the
provisions of an order made under Section 1245.030. [¶] (b) If the amount
required to be deposited is increased by an order of modification, the court shall
specify the time within which the additional amount shall be deposited and may
direct that any further entry or that specified activities under the order as modified
be stayed until the additional amount has been deposited.‖ (Ibid.)
Section 1245.050 governs the deposited funds. It provides: ―(a) Unless
sooner disbursed by court order, the amount deposited under this article shall be
retained on deposit for six months following the termination of the entry. The
period of retention may be extended by the court for good cause. [¶] (b) The
deposit shall be made in the Condemnation Deposits Fund in the State Treasury,
or, upon the written request of the plaintiff filed with the deposit, in the county
treasury. . . .‖ (Ibid.)
Finally, section 1245.060 addresses the property owner‘s right to recover
damages. The section provides: ―(a) If the entry and activities upon property
cause actual damage to or substantial interference with the possession or use of the
property, whether or not a claim has been presented in compliance with [the Tort
Claims Act presentation requirements], the owner may recover for such damage or
interference in a civil action or by application to the court under subdivision (c).
8 Because the issue is not before us, we have no occasion in this case to
consider the type or form of hearing that is required under section 1245.030.
17
[¶] (b) The prevailing claimant in an action or proceeding under this section shall
be awarded his costs and, if the court finds that any of the following occurred, his
litigation expenses incurred in proceedings under this article: [¶] (1) The entry
was unlawful. [¶] (2) The entry was lawful but the activities upon the property
were abusive or lacking in due regard for the interests of the owner. [¶] (3) There
was a failure substantially to comply with the terms of an order made under
Section 1245.030 or 1245.040. [¶] (c) If funds are on deposit under this article,
upon application of the owner, the court shall determine and award the amount the
owner is entitled to recover under this section and shall order such amount paid
out of the funds on deposit. If the funds on deposit are insufficient to pay the full
amount of the award, the court shall enter judgment for the unpaid portion.
[¶] (d) Nothing in this section affects the validity of any other remedy the owner
may have for the damaging of his property.‖ (Ibid.)
III. Do the environmental and geological testing activities that the
Department proposed to conduct on the landowners’ properties fall within
the scope of the current precondemnation entry and testing statutes?
We consider first the proper scope of the current precondemnation entry
and testing provisions as a matter of statutory interpretation and legislative intent.
In their briefing in this court, the landowners, relying upon the interpretation of an
early California precondemnation entry statute in the 1923 Jacobsen decision
(Jacobsen, supra, 192 Cal. 319), contend that the current entry and testing statutes
are properly interpreted to authorize only innocuous entries and superficial testing.
The landowners assert that the Department ―overreached‖ and ―urged a radical
expansion‖ of the precondemnation entry and testing statutes in proposing to
utilize the precondemnation statutory procedure to proceed with the type and
amount of both environmental and geological activities sought to be conducted in
this case. If, as the landowners maintain, the precondemnation entry and testing
18
statutes were not intended to encompass the extensive environmental and
geological activities proposed by the Department, the Court of Appeal ruling
against both the environmental and geological activities could be upheld on that
statutory basis alone, and there would be no need to reach any constitutional issue.
For the reasons explained hereafter, however, we conclude that both the language
and the legislative history of the precondemnation entry and testing statutes
demonstrate that the statutes were intended to apply to the types of
precondemnation activities at issue here.
To begin with, the plain language of the governing statute, on its face,
appears to encompass the testing activities that the Department proposed to
conduct. As set forth above (ante, p. 15), section 1245.010 explicitly authorizes a
public entity that is authorized to acquire property by eminent domain to enter the
property ―to make photographs, studies, surveys, examinations, tests, soundings,
borings, samplings, or appraisals or to engage in similar activities reasonably
related to acquisition or use of the property for that use.‖ Nothing in the statutory
language indicates that the statute was intended to apply only to innocuous or
superficial surveys or testing. The explicit listing of ―examinations, tests,
soundings, borings, [and] samplings‖ (ibid., italics added) without qualification
reasonably suggests that the Legislature contemplated that the statute would apply
to all of the designated testing activities that are reasonably necessary to determine
whether the public entity should utilize its authority to acquire the property for the
stated public purpose by use of eminent domain.
As noted, the landowners contend that the relevant language of section
1245.010 cannot be read in isolation but must be understood in light of this court‘s
decision and holding in Jacobsen, supra, 192 Cal. 319. We agree that the
Jacobsen decision provides a useful starting point for discerning the intended
19
scope of the current precondemnation entry and testing statutes and accordingly
we review that decision in some detail.
In Jacobsen, supra, 192 Cal. 319, the Petaluma Municipal Water District
was considering acquiring privately owned land as a possible site for a reservoir
that was needed to supply water to the residents of Petaluma. At the time, the land
in question was being used for the cultivation of hay, grain, and other crops and
for the operation of a dairy. The landowners initially granted the district
permission to make some surface surveys and examinations of the property, but
objected when the district requested permission ―to go upon their said lands with
well-boring outfits, tools, machinery, and appliances for the purpose of boring
holes and making excavations for the avowed object of ascertaining whether or not
there was underneath the surface of . . . said lands rock strata or other formations
suitable or necessary for the construction of dams and building of reservoirs . . . .‖
(Id. at p. 322.) The landowners maintained that the proposed activities ―would
result in substantial and irreparable injury to the . . . lands and crops and would be
an invasion of their private property rights in their respective holdings.‖ (Ibid.)
The water district then filed an action against the landowners in superior
court, seeking an injunction to prohibit the landowners from preventing the
district‘s employees from ―entering upon or occupying‖ the property ―for the
purpose of making the excavations, borings, and subsoil examinations‖ described
in the complaint. (Jacobsen, supra, 192 Cal. at p. 322.) The complaint identified
the precise location of the proposed test holes and test pits and stated that the test
holes would be from three to eight inches in diameter and 150 feet or more deep
and that the test pit excavations would measure about four feet by six feet and be
up to 15 feet in depth. The complaint noted that the proposed activities would
require the presence on the landowners‘ property of four persons for a period of
about 60 days with occasional visits from the district‘s officials. The complaint
20
further acknowledged that some of the locations in question contained growing
crops of hay and grain that would be damaged or destroyed by the proposed
activities. However, the complaint stated that upon completion of the activities the
district ―would restore the lands . . . to their original condition by filling in said
test holes and excavations and by removing their appliances from said lands.‖ (Id.
at p. 323.) The trial court granted the injunction sought by the district, ordered the
district to deposit $1,000 as security for any damage that might be caused to the
property by the activities permitted by the order, and then stayed its order to give
the landowners an opportunity to seek writ relief. (Id. at p. 324.)
The landowners sought writ relief in this court, maintaining that the trial
court‘s injunctive order was invalid as a violation of the state constitutional
takings clause, then set forth in article I, section 14 of the California Constitution
(now art. I, § 19, subd. (a).). In analyzing the issue, the Jacobsen court observed
at the outset that ―[i]t is conceded by the respondents [i.e., the district] in their
briefs . . . that if the entry upon and examination of the lands of the petitioners
herein, as applied for and permitted in the above-mentioned action, would amount
to the taking or damaging of petitioners‘ property within the meaning of section 14
of article I of the state constitution, the said order of the court would be violative
of that provision of the constitution.‖ (Jacobsen, supra, 192 Cal. at p. 324.) The
court explained that the district‘s position was that the activities at issue would not
amount to a taking or damaging of property for purposes of the state takings
clause, but instead were acts that were permitted under the terms of the sole then-
existing entry statute, former section 1242 of the Code of Civil Procedure (as
enacted 1872). At the time, former section 1242 read in full: ―In all cases where
land is required for public use, the state, or its agents in charge of such use, may
survey and locate the same; but it must be located in the manner which will be
most compatible with the greatest public good and the least private injury, and
21
subject to the provisions of section twelve hundred and forty-seven. The state, or
its agents in charge of such public use, may enter upon the land and make
examinations, surveys, and maps thereof, and such entry shall constitute no cause
of action in favor of the owners of the land, except for injuries resulting from
negligence, wantonness, or malice.‖ (Code Civ. Proc. (Deering, edit. 1923)
§ 1242, p. 674, italics added.)
In considering whether the activities at issue in that case constituted the
taking or damaging of property within the meaning of the state takings clause, the
court in Jacobsen first reviewed the history of the state takings clause, explaining
that the relevant constitutional provision was amended at the 1879 Constitutional
Convention to add the words ―or damaged‖ to the provision. (Jacobsen, supra,
192 Cal. at pp. 326-327.) The court then reviewed the activities the district
proposed to undertake on the landowners‘ property and stated that the court
―entertain[ed] no doubt‖ that the proposed acts amounted to a taking or damaging
of property under the state takings clause. (Id. at p. 328.) The court observed in
this regard: ―[The district] proposes to enter upon the petitioners‘ private lands, in
advance or absence of any condemnation proceeding, with a force of employees
and with mechanical structures operated by steam or gasoline enginery and with
other appliances and implements suited to the execution of its intended purpose,
which is that of making a number of test borings from three to eight inches in
diameter and of a depth of 150 feet or more at various points upon petitioners‘ said
lands, and also of making at other places thereon excavations of an area of four by
six feet and of a depth of fifteen feet, and of occupying so much of said lands as
shall be needed for ingress and egress and for accomplishment of the foregoing
purposes, and of trampling down and destroying the growing grain of the
petitioners over the area to be occupied during such operations, and of building
fences around such test holes and excavations for the better protection thereof
22
pending such operations.‖ (Ibid.) The court concluded: ―It is idle to attempt to
argue that such entry, occupation, disturbance, and destruction of the properties of
these petitioners would not constitute such an interference with their exclusive
rights to the possession, occupation, use, and enjoyment of their respective
holdings as would amount to a taking and a damaging thereof to the extent and
during the period of such entry upon said lands and of the operations of the
[district] thereon.‖ (Ibid.)
Finally, in response to the district‘s contention that the proposed activities
in that case were authorized by the terms of former section 1242 — which, as we
have seen, referred to the state‘s entry of land to ―make examinations, surveys, and
maps thereof‖ — the court in Jacobsen concluded that the statute could not
properly be interpreted to apply to the district‘s proposed conduct. The court
stated in this regard: ―The opening sentence of the section apparently
contemplates the existence and pendency of [condemnation] proceedings as a
basis for whatever entry upon or examination of the lands of private owners
affected thereby is permitted by the succeeding clauses of the section. But
however this may be, it is clear that whatever entry upon or examination of private
lands is permitted by the terms of this section cannot amount to other than such
innocuous entry and superficial examination as would suffice for the making of
surveys or maps and as would not in the nature of things seriously impinge upon
or impair the rights of the owner to the use and enjoyment of his property. Any
other interpretation would, as we have seen, render the section void as violative of
the foregoing provisions of both the state and federal constitution.‖ (Jacobsen,
supra, 192 Cal. at p. 329.) As already noted, at that time former section 1242 did
not require a public entity to obtain prior judicial authorization or deposit funds
before entering and conducting examinations, surveys, and mapping, and
23
permitted a landowner to maintain an action for damages only for an injury
resulting from the public entity‘s negligence, wantonness, or malice.
The landowners in the present case contend that because the Jacobsen court
concluded that the provisions of the entry statute at issue in that case — former
section 1242 — were properly interpreted to apply only to innocuous entries and
superficial examinations of private property, the current precondemnation entry
and testing statutes should similarly be interpreted to apply only when the
activities listed in the statutes are innocuous or superficial in intensity or scope.
As we explain, the post-Jacobsen legislative history of the current statutes clearly
refutes the landowners‘ proposed interpretation of the current statutes.
As we have seen, in Jacobsen the drilling and excavation activities were
proposed by a water district that was investigating the suitability of the property in
question for use as a site for a reservoir. In 1959, the Legislature enacted a new
entry statute — former section 1242.5 — which applied specifically and
exclusively to precondemnation entry and exploration intended to determine the
suitability of property for reservoir purposes. (Stats. 1959, ch. 1865, § 1,
pp. 4423-4424.) In context, it is evident that the statute was a direct legislative
response to Jacobsen.
As enacted in 1959, former section 1242.5 authorized a public entity that
has the power to condemn land for reservoir purposes to survey and explore
property to determine its suitability for such use by complying with the
requirements set forth in the statute. Under the 1959 version of former section
1242.5 — unlike the version of former section 1242 that was in effect at the time
of Jacobsen — an entity empowered to condemn land for reservoir purposes was
required to petition the superior court for permission to undertake such survey and
exploration, and the superior court was required to ascertain whether the entry was
sought in good faith for such purposes and to require the entity to deposit cash
24
security ―in an amount sufficient to compensate the landowner for any damage
resulting from the entry, survey, and exploration.‖ (Stats. 1959, ch. 1865, § 1,
p. 4423.)
Although the 1959 statute did not spell out the particular activities that were
authorized under the statute, because the statute was directed specifically at
exploration to determine a property‘s suitability as a reservoir site, it is clear that
the legislation was intended to apply to the kind of deep drilling and excavations
that are inevitably required in evaluating whether property is suitable for such a
purpose. (See Van Alstyne, Inverse Condemnation: Unintended Physical Damage
(1969) 20 Hast. L.J. 431, 510 (Unintended Physical Damage) [―Section 1242.5
was designed to meet the special problem of substantial property damage likely to
occur from the kinds of technical operations, including soil tests, trenching, and
drilling operations, often necessitated by reservoir investigations‖ (fn. omitted.)].)9
The Legislature evidently was of the view that the additional requirements
imposed by the 1959 legislation — which compelled the public entity to obtain
judicial authorization and to deposit an amount sufficient to compensate the
property owner for any damage resulting from the entity‘s activities prior to
entering the property and conducting such activities — overcame the
constitutional objections to a public entity‘s undertaking of such extensive
precondemnation testing activities that had animated the Jacobsen decision.
9 A letter from the author of the bill to the Governor stated in this regard:
―The land selected for reservoir purposes must be subjected to rather extensive
exploration which includes core drilling and ditching to the bedrock to reveal any
geologic faults or weaknesses that would make the land unsuitable for use as a
reservoir. Under this bill, only the land that is proved suitable by exploration will
be condemned.‖ (Assemblyman S.C. Masterson, letter to Gov. Edmund G. ―Pat‖
Brown, June 29, 1959.)
25
In 1969, the California Law Revision Commission published a report
including a chapter entitled ―Damages Arising From Entries for Survey and
Examination‖ that dealt specifically with the subject at issue here.
(Recommendation: Sovereign Immunity No. 10 — Revisions of the
Governmental Liability Act (Sept. 1969) 9 Cal. Law Revision Com. Rep. (1969)
pp. 811-815 (1969 Law Revision Commission Report).) The report explicitly
discussed the Jacobsen decision (at p. 811), and stated that ―[t]he holding in the
Jacobsen case has been partially overcome by a special statutory procedure,
provided in 1959 by enactment of Section 1242.5 of the Code of Civil Procedure.
Section 1242.5 is limited to public entities that have the power to condemn land
‗for reservoir purposes.‘ ‖ (1969 Law Revision Com. Rep. at pp. 811-812; see
also A Study Relating to Sovereign Immunity (Jan., 1963) 5 Cal. Law Revision
Com. Rep. 11, 110, fn. 5 (1963 Van Alstyne Study) [―In the case of surveys and
tests to determine the suitability of lands for reservoir purposes, the restrictive
influence of the Jacobsen case . . . has been eliminated by a special statutory
procedure established in Cal. Code Civ. Proc. § 1242.5, enacted in 1959.‖])10
The 1969 Law Revision Commission report observed that, like
investigations necessary to determine the suitability of potential reservoir sites, the
necessary precondemnation exploration of potential sites for other public projects
in addition to reservoirs may also ―involve activities that present the likelihood of
compensable damage, including the digging of excavations, drilling of test holes
or borings, cutting of trees, clearing of land areas, moving of earth, use of
10 The 1963 study was authored by Professor Arlo Van Alstyne and
represented the views of Professor Van Alstyne and not necessarily those of the
Law Revision Commission. (1963 Van Alstyne Study, supra, 5 Cal. Law.
Revision Com. Rep. at p. 5, fn. *.)
26
explosives, or employment of vehicles or mechanized equipment.‖ (1969 Law
Revision Com. Rep., 9 Cal. Law Revision Com. Rep., supra, at p. 814, italics
added.) Noting that ―[r]epresentatives of local public entities have suggested that
the deposit-and-court-order system provided by Section 1242.5 be extended to all
types of condemnors without limitation as to the purpose of the contemplated
acquisition,‖ the report ultimately recommended that ―Section 1242.5 should be
expanded to cover entries for any purpose for which land may be acquired by
condemnation.‖ (Ibid.) Furthermore, the report also recommended, as a clarifying
companion measure, the addition of a new provision (Gov. Code, § 816) to the
California Tort Claims Act, ―providing that, in connection with any entry upon
private property to conduct surveys, explorations, or similar activities, a public
entity is liable for ‗actual damage‘ to property or for ‗substantial interference‘ with
the owner‘s use or possession.‖ (1969 Law Revision Com. Rep., 9 Cal. Law
Revision Com. Rep., supra, at p. 815.)
The following year, the Legislature amended section 1242.5 and added a
new section 816 to the Government Code, as recommended in the 1969 Law
Revision Commission report. As amended in 1970, section 1242.5 applied to all
entities having the power of eminent domain and required all such entities, in the
absence of the property owner‘s consent, to obtain a court order and deposit an
amount to compensate the landowner for any resulting damage before entering and
undertaking any activities that would result in any actual damage or substantial
interference with the owner‘s possession or use of the property. As amended,
section 1242.5 applied to all entries and activities specified in section 1242 as
amended in the same bill (former § 1245.5, subd.(a), as amended by Stats. 1970,
ch. 662, § 3, p. 1289), and thus specifically applied to entries ―to make studies,
surveys, examinations, tests, soundings, or appraisals or to engage in similar
activities reasonably related to the purpose for which the power may be
27
exercised.‖ (Former § 1242, subd. (b), as amended by Stats 1970, ch. 662, § 2,
p. 1288.) The newly enacted section 816 of the Government Code explicitly
provided that, notwithstanding the general provision of the Tort Claims Act
affording immunity to a public employee arising out of an entry upon property
when the entry is expressly or impliedly authorized by law (Gov. Code, § 821.8), a
public entity is liable for actual damage to property or for a substantial
interference with the possession or use of property when such damage or
interference arises from an entry pursuant to sections 1242 or 1242.5 of the Code
of Civil Procedure to engage in the activities embodied in those sections. (Gov.
Code § 816, added by Stats. 1970, ch. 1099, § 3, p. 1957.)
In 1975, as the culmination of a multiyear effort to update and reorganize
California‘s eminent domain statutes into a comprehensive statutory scheme, the
Legislature enacted a new, lengthy, and detailed Eminent Domain Law. (Stats.
1975, ch. 1275, §§ 1-5, pp. 3409-3466.) The new Eminent Domain Law moved
and revised the then-existing precondemnation entry and testing provisions of
former sections 1242 and 1242.5 into a new, separate article of the Eminent
Domain Law (ch. 4, art. 1), containing the current precondemnation entry and
testing statutes — sections 1245.010 to 1245.060 — that we have set forth above.
(Ante, pp. 15-18.)
Although the legislative history of the 1959 and 1970 versions of former
sections 1242 and 1242.5 makes it quite clear that those statutes were intended to
encompass drilling or boring along with the other activities typically required to
determine the suitability of property as a potential site for a contemplated reservoir
or other public project (see ante, pp. 24-28), the prior statutes did not explicitly
include ―drillings‖ or ―borings‖ as one of the activities specifically listed in the
statute. As enacted in 1975, the current applicable statute specifically includes
―borings‖ as one of the listed categories of activities to which the
28
precondemnation entry and testing statutes apply. (§ 1245.010 [authorizing entry
―to make photographs, studies, surveys, examinations, tests, soundings, borings,
samplings, or appraisals or to engage in similar activities reasonably related to
acquisition or use of the property‖].) In this regard, the 1975 California legislation
closely tracks the comparable provision of the Uniform Law Commissioners‘
Model Eminent Domain Code, a model code that had been adopted by the
National Conference of Commissioners on Uniform State Laws a year earlier in
1974. (13 pt. 1 West‘s U. Law Ann. (2002) U. Eminent Domain Code, § 301,
subd. (a) [―A condemnor . . . may enter upon real property and make surveys,
examinations, photographs, tests, soundings, borings, and samplings, or engage in
other activities for the purpose of appraising the property or determining whether
it is suitable and within the power of the condemnor to take for public use . . . .‖].)
In sum, the language of the current precondemnation entry and testing
statutes does not limit the listed activities to activities that are only innocuous or
superficial. The legislative history of the current statutes demonstrates a
legislative intent to create a procedure under which a public entity that is
considering acquisition of property for a public project can conduct the type of
extensive investigatory testing and exploration that the Jacobsen decision
concluded was not permitted under the entry statute in effect at that time. For
these reasons, we conclude that the current precondemnation entry and testing
statutes are properly interpreted to encompass the type and degree of
precondemnation environmental and geological testing at issue here. Accordingly,
we reject the landowners‘ claim that the Department overreached in invoking the
29
precondemnation entry and testing statutes in order to obtain authority to conduct
the precondemnation activities proposed in this case.11
Having concluded that the precondemnation statutes were intended to and
do apply to these proposed activities, we turn to the constitutional question.
IV. Did the Court of Appeal correctly conclude that an order issued pursuant
to the precondemnation entry and testing statutes would violate the takings
clause as applied to (1) the environmental activities authorized by the trial
court and (2) the geological activities proposed by the Department?
Both the United States Constitution and the California Constitution provide
that when a public entity takes private property for a public use just compensation
must be paid to the property owner. (U.S. Const., 5th amend. [federal takings
clause]; Cal. Const., art. I, § 19, subd. (a) [state takings clause].)12 The United
11 Contrary to the landowners‘ assertion, the Court of Appeal opinion in
County of San Luis Obispo v. Ranchita Cattle Co. (1971) 16 Cal. App. 3d 383
(Ranchita) did not hold that ―entry upon private lands permitted by the Entry
Statute cannot amount to anything other than such innocuous entry and superficial
examination as would suffice for making surveys and maps.‖ In Ranchita, the
public entity and landowner entered into an access agreement permitting entry, but
the agreement failed to specify the scope of the activities permitted upon entry.
Absent such specification, the court held that the access agreement gave the entity
―no more than a right to make an innocuous entry and superficial examination
sufficient for the making of surveys and maps.‖ (Id. at p. 389.) The Ranchita
court did not hold or suggest that when a public entity obtains a court order
pursuant to the entry statute, a court may authorize only superficial examination or
testing.
12 California and federal authorities establish that eminent domain — the
authority ―to take privately owned property . . . and convert it to public use‖
(Black‘s Law Dict. (10th ed. 2014) p. 637) — is ―an inherent attribute of
sovereignty‖ and that the takings clauses impose constitutional limitations upon
the exercise of that inherent sovereign power. (People v. Chevalier (1959) 52
Cal. 2d 299, 304; see, e.g., United States v. Carmack (1946) 329 U.S. 230, 241;
Georgia v. Chattanooga (1924) 264 U.S. 472, 480.); County of San Mateo v.
Coburn (1900) 130 Cal. 631, 634.
30
States Supreme Court has long held that the federal takings clause applies to the
states through the Fourteenth Amendment. (Chicago, B. & Q.R. Co. v. Chicago
(1897) 166 U.S. 226, 239.)
A. Federal Takings Clause
The federal takings clause, as embodied in the Fifth Amendment of the
United States Constitution, provides simply and concisely: ―nor shall private
property be taken for public use without just compensation.‖
In general, the United States Supreme Court has interpreted the federal
takings clause to require a state to establish a procedure through which a property
owner, whose property has been taken, can recover just compensation after a
taking has occurred. The federal takings clause has not been construed to require
a state to adopt any particular type of eminent domain procedure or to compel a
public entity either to initiate an eminent domain proceeding or to pay just
compensation before engaging in conduct that results in a taking of property
within the meaning of the federal takings clause.
In Williamson Planning Comm’n v. Hamilton Bank (1985) 473 U.S. 172,
194-195 (Williamson), the high court explained in this regard: ―The Fifth
Amendment does not proscribe the taking of property; it proscribes taking without
just compensation. [Citation.] Nor does the Fifth Amendment require that just
compensation be paid in advance of, or contemporaneously with, the taking; all
that is required is that a ‗ ―reasonable, certain and adequate provision for obtaining
compensation‖ ‘ exist at the time of the taking. [Citations.] If the government has
provided an adequate process for obtaining compensation, and if resort to that
process ‗yield[s] just compensation,‘ then the property owner ‗has no claim
against the Government‘ for a taking.‖
Furthermore, although the high court has made clear that just compensation
under the federal takings clause is to be determined by what the property owner
31
has lost, not by what the public entity has gained (see, e.g., Brown v. Legal
Foundation of Wash. (2003) 538 U.S. 216, 235-236 [―[T]he ‗just compensation‘
required by the Fifth Amendment is measured by the property owner‘s loss rather
than the government‘s gain‖]), the governing decisions make clear that there is no
single formula or standard for ascertaining an amount that constitutes just
compensation. As the high court stated in United States v. Virginia Electric Co.
(1961) 365 U.S. 624, 633: ―The guiding principle of just compensation is
reimbursement to the owner for the property interest taken. ‗He is entitled to be
put in as good a position pecuniarily as if his property had not been taken. He
must be made whole but is not entitled to more.‘ [Citation.] [Citations.] In many
cases this principle can readily be served by the ascertainment of fair market
value — ‗what a willing buyer would pay in cash to a willing seller.‘ [Citation.]
But this is not an absolute standard nor an exclusive method of valuation.‖ (See,
e.g., United States v. Commodities Corp. (1950) 339 U.S. 121, 123 [―This Court
has never attempted to prescribe a rigid rule for determining what is ‗just
compensation‘ under all circumstances and in all cases. Fair market value has
normally been accepted as a just standard. But when market value has been too
difficult to find, or when its application would result in manifest injustice to owner
or public, courts have fashioned and applied other standards.‖ (fn. omitted)];
United States v. Toronto Nav. Co. (1949) 338 U.S. 396, 402 [―Perhaps no warning
has been more repeated than that the determination of value cannot be reduced to
inexorable rules.‖].)
As we have seen, the current precondemnation entry and testing statutes not
only establish a statutory compensation procedure but also expressly preserve a
property owner‘s right to pursue and obtain damages in a statutorily authorized
civil action or an ordinary inverse condemnation action. (§ 1245.060, subds. (a),
(c), (d).) Taken as a whole, state law clearly provides ― ‗ ―a reasonable, certain,
32
and adequate‖ ‘ ‖ procedure (Williamson, supra, 473 U.S. at p. 194) to enable a
property owner to recover money damages for any injury caused by the activities
authorized by the statutes. In their briefing, the landowners do not address the
prerequisites to a federal takings claim, set forth in the Williamson decision (see
473 U.S. at pp. 196-197 [holding federal takings claim premature where property
owner had not pursued available state inverse condemnation action]). Nor do they
cite any decision that holds that the damages authorized by the precondemnation
entry and testing statutes and California‘s inverse condemnation principles are, on
their face, inadequate to constitute just compensation under the federal takings
clause for the type of precondemnation entry and testing activities authorized by
the statutes. (Cf., post, pp. 57-63 [explaining that damages authorized by the
precondemnation entry and testing statutes constitute just compensation for
purposes of state takings clause].) Furthermore, because the landowners have
mounted this challenge before the Department has undertaken any activities and
before any determination has been made as to the damages to which the
landowners are entitled under the relevant statute and California inverse
condemnation principles, it cannot be determined at this point that the available
California procedures have not ― ‗yield[ed] just compensation.‘ ‖ (Williamson,
supra, 473 U.S. at p. 195.) Accordingly, the landowners‘ current constitutional
challenge cannot rest on the federal takings clause.13
13 In a footnote, the Court of Appeal acknowledged that in light of the United
States Supreme Court opinion in Williamson, the landowners‘ challenge was not
supported by the federal takings clause, and that the merits of the challenge rested
solely on the requirements of the California takings clause.
33
B. California Takings Clause
The takings clause of the California Constitution, currently embodied in
article I, section 19, subdivision (a), provides: ―Private property may be taken or
damaged for a public use and only when just compensation, ascertained by a jury
unless waived, has first been paid to, or into court for, the owner. The Legislature
may provide for possession by the condemnor following commencement of
eminent domain proceedings upon deposit in court and prompt release to the
owner of money determined by the court to be the probable amount of just
compensation.‖14
On its face, the California takings clause differs from the federal takings
clause in a number of respects. First, whereas the federal takings clause applies
only to the taking of property for public use without just compensation, the state
takings clause requires just compensation to be paid for the ―tak[ing] or
damag[ing]‖ of property for a public use. (Cal. Const. art. 1, § 19, subd. (a).)
Second, unlike the federal takings clause, the state takings clause affords a
property owner the right to have just compensation ―ascertained by a jury unless
waived.‖ (Ibid.) Third, in contrast to the federal takings clause, the state takings
clause provides in its first sentence that private property may be taken or damaged
for public use ―only when just compensation, ascertained by a jury unless waived,
has first been paid to, or into court for, the owner.‖ (Ibid., italics added.) The
second sentence of the state takings clause, however, qualifies this third
14 Article I, section 19 of the California Constitution was amended by an
initiative measure in June 2008 to place limits on a public entity‘s acquisition by
eminent domain of ―an owner-occupied residence for the purpose of conveying
[the property] to a private person.‖ (Cal. Const. art. I, § 19, subd. (b); see id.,
art. I, § 19, subds. (c)-(e).) Those provisions are not at issue in this case.
34
requirement that a jury determination of the amount of compensation that is due
and payment of that amount to the owner precede any taking or damaging of
property, declaring that ―[t]he Legislature may provide for possession by the
condemnor following commencement of eminent domain proceedings upon
deposit in court and prompt release to the owner of money determined by the court
to be the probable amount of just compensation.‖ (Ibid.) As we shall see, this
second sentence of the state takings clause has particular significance for the
issues presented by this case.
As a general matter, a classic condemnation action is ordinarily required
when a public entity has made the determination to acquire legal title to or
exclusive possession of property for use in the construction of a public project.
Given the nature and severity of the property owner‘s loss in that classic taking
context, the quite elaborate and lengthy process established by the Eminent
Domain Law and related statutes for classic condemnation actions — involving
appraisal and negotiation, the official adoption of a resolution of necessity after
notice and hearing, the formal commencement of a proceeding by a complaint and
answer, discovery and exchange of valuation data, a bifurcated trial on objections
to the right to take and on the issue of compensation, and a jury determination of
compensation — is understandable. (See §§ 1245.210 to 1263.530; Gov. Code,
§§ 7267 to 7267.7.)
The second sentence of article I, section 19, subdivision (a) of the
California Constitution — explicitly authorizing the Legislature to permit a
condemnor to obtain possession of property prior to a jury‘s ascertainment of just
compensation by depositing in court the probable amount of just compensation —
was adopted primarily to give the Legislature broad authority to enact a so-called
quick take statutory procedure that fairly protects the interests of both public
entities and property owners. (See Voter Information Guide, Gen. Elec. (Nov. 5,
35
1974) analysis of Prop. 7 by Leg. Analyst, p. 26; Recommendation: Taking
Possession and Passage of Title in Eminent Domain Proceedings (Oct. 1960) 3
Cal. Law Rev. Com. Rep. (1961) pp. B-10 to B-11.) Through the current statutory
quick take procedure (§ 1255.010 et seq.), a public entity that has already
determined that it intends to acquire a specific property for public use may, after
taking the steps necessary to commence a classic condemnation action, obtain
exclusive possession of the property and begin construction of the project before
the typically lengthy classic condemnation action has fully run its course and a
jury determination of just compensation has been made. (See Mt. San Jacinto
Community College Dist. v. Superior Court (2007) 40 Cal. 4th 648, 657-658 (Mt.
San Jacinto).)
However, the state takings clause does not always require the
commencement of a classic condemnation action when private property is taken or
damaged for public use within the meaning of that clause. Most typically, for
example, although damage to property adjacent to a public improvement caused
by the construction or operation of the improvement constitutes a compensable
taking or damaging of property for purposes of the state takings clause, a public
entity is not considered to have violated the state takings clause simply because
the public entity has not commenced a classic condemnation action or paid or
deposited in court just compensation as ascertained by a jury before inflicting such
damage. Instead, under such circumstances, the California takings clause has been
interpreted to afford the property owner a right to maintain an action for
damages — an inverse condemnation action — after the damage has been
incurred. (See, e.g., Reardon v. City & County of San Francisco (1885) 66 Cal.
492 [foundation of building on property adjacent to roadway project damaged by
subsidence of supporting land during construction of the roadway]; Albers v.
County of Los Angeles (1965) 62 Cal. 2d 250 [damage to adjacent property from
36
landslide resulting from landfill deposited in construction of a public
improvement]; Belair v. Riverside County Flood Control Dist. (1988) 47 Cal. 3d
550 [damage to adjacent property when flood control levee failed and adjacent
property was flooded].)
As this court observed in People v. Ricciardi (1943) 23 Cal. 2d 390, 400:
―When compensation is claimed either for a taking or a damaging the issues may
be presented for adjudication in at least two forms of action. In one there is an
absence of a proceeding in eminent domain. In that form of action the property
owner seeks relief by bringing an action for compensation for a taking or a
damaging of his property or both, as the case may be. . . . [¶] The other form of
action is, as here, a proceeding in eminent domain . . . .‖ Similarly, in Heimann v.
City of Los Angeles (1947) 30 Cal. 2d 746, 753, the court explained: ―Here the
proceeding is not one brought by a condemnor, but is an action wherein the
owners seek compensation under article I, section 14 of the Constitution for the
taking and damaging of their properties for a public use without just compensation
having first been made or paid into court. In both forms of action the result is the
same in that in each the property owner receives compensation for the invasion of
his property rights; only the procedure in arriving at the result is different . . . .‖
And in People v. Ayon (1960) 54 Cal. 2d 217, 229, where a property owner sought
to obtain recovery for damage that the property owner maintained would result
from a project as proposed, the court further explained: ―But such damages cannot
be recovered until they have occurred. They may never occur. . . . [¶] . . . [¶]
When the condemnation action is tried before the improvement is constructed, and
substantial although temporary interference with the property owner‘s right of
possession or access occurs during construction, the property owner may maintain
a subsequent action for such damage occurring during construction.‖ (Italics
added; see Eachus v. Los Angeles etc. Ry. Co. (1894) 103 Cal. 614, 621-622.)
37
The statutes at issue in the present case involve a factual setting —
precondemnation entry and testing — that falls between the classic condemnation
proceeding where the public entity is seeking to obtain title to or a compensable
property interest in the property and the typical inverse condemnation action
where the public entity does not intend to enter or intrude upon private property
but damage to such property nonetheless ensues. Here, the proposed
precondemnation entry and testing activities upon the subject property are
intentional, but the public entity is not seeking to obtain title to or exclusive
possession of the property for a significant period of time. Rather, the public
entity is seeking temporary access to the property to conduct investigations that
are needed to decide whether the property is suitable for a proposed project and
should thereafter be acquired by the public entity. Furthermore, as in the inverse
condemnation context, the public entity is not acting for the purpose of taking or
damaging the private property at issue, and any loss suffered by the property
owner is often an unavoidable consequence of the public entity‘s necessary
exploratory activities. In this precondemnation setting, the Legislature
determined — in response to Jacobsen, supra, 192 Cal. 319 — that a procedure
less elaborate than that embodied in a classic condemnation action is
constitutionally adequate and appropriate. We proceed to analyze the
constitutional validity of the current precondemnation entry and testing statutes.
In evaluating the validity of the statutory scheme the Legislature created to
respond to Jacobsen, supra, 192 Cal. 319 — the court order and deposit procedure
embodied in the current precondemnation entry and testing statutes — it is useful
to understand the general common law background relating to the entry of public
officials onto private property to conduct lawfully authorized activities. At
common law, when a public official was required or authorized by statute to
perform a public duty or activity, the statutory authority was generally recognized
38
as carrying with it a legal privilege to enter private property for the purpose of
performing or exercising such duty or authority that absolved the government of
liability for what would otherwise be considered a trespass. (See Rest.2d Torts,
§ 211 & com. (c), pp. 398-401; 1 Harper et al. on Torts (2d ed. 1986) § 1.20,
pp. 64-68.)15 In enacting the California Tort Claims Act in 1963, the Legislature
essentially codified this general common law privilege in declaring that public
employees are not liable ―for an injury arising out of [the] entry upon any property
where such entry is expressly or impliedly authorized by law.‖ (Gov. Code,
§ 821.8; see id., § 815.2 [public entity liable only to extent public employee
liable].)16
Outside the precondemnation entry and testing context, numerous statutes
grant public entities and employees the authority to enter and to engage in official
activities on private property for a very wide range of purposes. Common
15 Section 211 of the Restatement Second of Torts reads in full: ―A duty or
authority imposed or created by legislative enactment carries with it the privilege
to enter land in the possession of another for the purpose of performing or
exercising such duty or authority in so far as the entry is reasonably necessary to
such performance or exercise, if, but only if, all the requirements of the enactment
are fulfilled.‖
Comment (c) to section 211, in turn, states in relevant part: ―The
legislative duty or authority carries with it a privilege to enter land in the
possession of another if it is reasonably necessary to do so in order to perform the
duty or exercise the authority. The privilege of entry for the purpose of
performance or exercise of such duty or authority may be specifically given, as
where an employee of a public utility is in terms authorized to enter upon privately
owned land for the purpose of making surveys preliminary to instituting a
proceeding for taking by eminent domain.‖ (Rest. 2d. Torts, § 211, com. (c),
p. 399, italics added.)
16 At the same time, Government Code section 821.8 recognizes that there
may be liability for injuries to the property caused by negligence or a wrongful act
or omission.
39
examples include entries to execute search warrants, to conduct health and safety
inspections, to enforce fish and game regulations, to carry out workplace
inspections, and to investigate and eliminate nuisances. (See generally 1963 Van
Alstyne Study, 5 Cal. Law Revision Com. Rep. supra, 11, 110-119.) As a general
matter, in the absence of any connection with the construction or operation of a
public improvement, conducting such entries and activities on private property,
even when such activities result in damage to the property, has not been
considered to constitute either the taking of a compensable property interest in
property or the damaging of property so as to entitle the property owner to just
compensation under the state takings clause. (See, e.g., Customer Co. v. City of
Sacramento (1995) 10 Cal. 4th 368, 378 [―Neither the ‗taken‘ nor the ‗or damaged‘
language [of California Constitution article I, section 19] ever has been extended
to apply outside the realm of eminent domain or public works to impose a
Constitution-based liability, unamenable to legislative regulation, for property
damage incidentally caused by the actions of public employees in the pursuit of
their public duties.‖]; Onick v. Long (1957) 154 Cal. App. 2d 381, 387 [no liability
for entry by alcohol beverage control agents to enforce liquor laws].) Instead, any
potential recovery by a property owner against a public entity outside the public
improvement context has been based on tort principles. (See, e.g., Customer Co.
v. City of Sacramento, supra, at p. 378.)
As Jacobsen, supra, 192 Cal. 319, demonstrates, however, some
precondemnation entry and testing activities — when they involve operations that
will result in actual injury to, or substantial interference with the possession and
use of, the entered property — have been viewed as triggering the protections of
the California takings clause. (Id. at pp. 324-328; see Heimann v. City of Los
Angeles, supra, 30 Cal.2d at pp. 755-756.) The relevant precondemnation entry
and testing provisions of the Eminent Domain Law at issue here — provisions
40
that, as we have explained, were adopted by the Legislature in recognition of and
in response to the Jacobsen decision — implicitly recognize that a public entity‘s
precondemnation entry on private property and its conducting of examinations,
surveys, borings, and similar related activities on such property will at times fall
into the category of activities that constitute a taking or damaging of property
under the California takings clause.
In recognition of the interests of the property owner protected by the state
takings clause as well as the interest and need of public entities in conducting
precondemnation investigation and testing, the current precondemnation entry and
testing statutes establish a special, compact, and expedited procedure with which
public entities must comply before intentionally entering private property and
engaging in precondemnation activities that may damage or significantly interfere
with the property owner‘s possession or use of the property. The statutes require
the public entity either to obtain the consent of the property owner or to seek and
obtain a court order that specifically authorizes the particular activities that the
public entity may conduct on the property and requires the public entity to deposit
an appropriate sum equal to the amount of probable compensation to which the
property owner is entitled. The statutes further give the property owner access to
the deposited funds by establishing what the property owner has lost as a result of
the public entity‘s activities.
It is well established, of course, that as a general rule statutes are presumed
to be constitutional. (See, e.g., Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal. 3d
805, 814.) And, as past decisions of this court have held, when the Legislature has
enacted a statute with constitutional constraints in mind ―[t]here is a ‗strong
presumption in favor of the Legislature‘s interpretation of a provision of the
41
Constitution.‘ ‖ (Mt. San Jacinto, supra, 40 Cal.4th at p. 656;17 Rooney v.
Vermont Investment Corp. (1973) 10 Cal. 3d 351, 365-366; Methodist Hosp. of
Sacramento v. Saylor (1971) 5 Cal. 3d 685, 691-696.) As this court explained in
Pacific Legal Foundation v. Brown (1981) 29 Cal. 3d 168, 180: ―[O]ur past cases
establish that the presumption of constitutionality accorded to legislative acts is
particularly appropriate when the Legislature has enacted a statute with the
relevant constitutional prescriptions clearly in mind. [Citation.] In such a case,
the statute represents a considered legislative judgment as to the appropriate reach
of the constitutional provision. Although the ultimate constitutional interpretation
must rest, of course, with the judiciary (see Marbury v. Madison (1803) 5 U.S.
(1 Cranch) 137, 176-180), a focused legislative judgment on the question enjoys
significant weight and deference by the courts.‖
Here, the Legislature enacted the statutory provisions at issue (and their
immediate predecessors) with full knowledge and in light of this court‘s decision
in Jacobsen, and on the recommendation of the California Law Revision
Commission and Professor Van Alstyne, a leading academic authority on eminent
domain. (See 1969 Law Revision Com. Rep., 9 Cal. Law Revision Com. Rep.,
supra, at pp. 814-815; Unintended Physical Damage, supra, 20 Hast. L.J. at
17 The Mt. San Jacinto decision clearly refutes the Court of Appeal‘s
suggestion that the general presumption of constitutional validity does not apply to
an eminent domain statute. In Mt. San Jacinto, this court applied the presumption
of constitutional validity in determining the constitutionality of a number of
challenged provisions of the quick take statute. The decision relied upon by the
Court of Appeal stands for the proposition that public entities that wish to exercise
the power of eminent domain must strictly comply with the requirements imposed
by the applicable eminent domain statutes. (See Burbank-Glendale-Pasadena
Airport Authority v. Hensler (2000) 83 Cal. App. 4th 556, 562.) Here, the
Department has complied with the procedural requirements set forth in the
precondemnation entry and testing statutes.
42
pp. 509-511.) Further, as we have noted, both the Law Revision Commission and
Professor Van Alstyne expressed the view that the court order and deposit
procedure embodied in the post-Jacobsen statutes remedied the constitutional
defects in the entry statute that was in effect at the time of the Jacobsen decision.
(1969 Law Revision Com. Rep., 9 Cal. Law Revision Com. Rep., supra, at
pp. 811-812; Unintended Physical Damage, supra, 20 Hast. L.J. at p. 485.)
In this case, the Department acknowledged from the outset that its entry
and proposed exploration activities were subject to the provisions of the
precondemnation entry and testing statutes and that it was required under those
provisions either to obtain the consent of each property owner or to comply with
the procedure set forth in the statutes. (§ 1245.020.) Accordingly, we have no
occasion in this case to decide what types of precondemnation entries and testing
are so minimal or innocuous that they do not trigger the statutory requirements
imposed by the precondemnation statutes.
As noted, with regard to the environmental activities, the trial court
concluded that the applicable statutory procedures established by the
precondemnation entry and testing statutes were sufficient to comply with the
federal and state takings clauses. The trial court issued an order authorizing the
Department to undertake specified environmental activities subject to a variety of
detailed conditions imposed by the court. At the same time, with regard to the
proposed geological activities, the trial court concluded that, in light of the
Jacobsen decision, the precondemnation entry and testing statutes should not be
interpreted to encompass such activities and that, in any event, the current
statutory procedures are not sufficient to comply with the California takings
clause. Accordingly, the trial court rejected the Department‘s request for an order
authorizing it to undertake such activities.
43
The majority in the Court of Appeal affirmed the trial court‘s denial of an
order permitting the proposed geological activities, but it reversed the trial court‘s
order authorizing the environmental activities. The Court of Appeal concluded
that given the breadth and duration of the environmental activities authorized by
the trial court, the procedure established by the precondemnation entry and testing
statutes was insufficient to satisfy the demands of the California takings clause.
The Department contends that the Court of Appeal erred with respect to
both the proposed geological activities and the environmental activities authorized
by the trial court. Among other contentions, the Department maintains that the
procedure embodied in the precondemnation entry and testing statutes satisfy the
constitutional requirements of the California takings clause as applied to both the
authorized environmental activities and the proposed geological activities.
We turn first to the validity of the precondemnation entry and testing
statutes as applied to the environmental activities authorized by the trial court.
1. Environmental Testing Activities
As noted, the trial court expressly found that the precondemnation
environmental testing activities at issue were reasonably related to the
Department‘s investigation of its potential eminent domain acquisitions. In
fashioning its order the court stated it had ―determined the nature and scope of the
activities reasonably necessary to accomplish the purposes identified, taking due
consideration of the constitutional limitations and statutory procedures required
for a taking of property. The court has provided suitable limitations to strike the
best possible balance between the needs of [the Department] and the interests of
the property owners.‖
The Court of Appeal did not suggest that the authorized environmental
activities were not reasonably necessary for the Department to conduct, nor that
the scope of the activities permitted by the trial court exceeded the degree
44
reasonably required to obtain the relevant information. Nonetheless, the Court of
Appeal held that the trial court‘s environmental order was impermissible, relying
on two grounds on which it concluded the precondemnation entry and testing
statutes violate the state takings clause as applied to the environmental activities
authorized by the trial court order. First, the Court of Appeal concluded that the
environmental order violated the state takings clause because the order authorized
the taking of a compensable property interest in the subject properties — what the
Court of Appeal characterized as a ―blanket temporary easement‖ — without the
commencement of a classic condemnation proceeding in which the measure of
damages provided to the property owner would be based on the value of the
temporary easement rather than on the damages authorized by the
precondemnation entry and testing statutes. Second, the Court of Appeal
concluded that the environmental order additionally violated the state takings
clause because the precondemnation entry and testing statutes fail to provide a
property owner with a right to a jury trial on the amount of compensation to which
the owner is entitled.
We discuss each of these asserted flaws in turn.
(a) Does the environmental order violate the takings clause by
(i) taking a compensable property interest, (ii) without the
commencement of a classic condemnation action (iii) in which
the property owner is afforded an adequate measure of just
compensation?
(i) Compensable property interest?
The Court of Appeal concluded that in light of the number of days the trial
court order permitted the Department‘s employees to enter and conduct the
specified environmental activities on the landowners‘ property — from 25 to 66
days over a one-year period, depending upon the size of the property — and the
45
fact that the order permitted the Department to conduct the environmental
activities throughout the properties, the order granted the Department a blanket
temporary easement that constituted a compensable property interest for purposes
of the state takings clause. The Court of Appeal held that such an interest could be
obtained under the state takings clause only through a classic condemnation action
in which just compensation would be measured by the value of such a temporary
easement rather than by recovery for any damage to the property and substantial
interference with possession and use of the property resulting from the
environmental testing activities.
The Department takes issue with the Court of Appeal‘s characterization of
the order as granting the Department a blanket temporary easement or that the
asserted easement constitutes a compensable property interest for purposes of the
state takings clause. It is well established that an easement may constitute a
compensable property interest for purposes of the takings clause. (See, e.g., City
of Los Angeles v. Ricards (1973) 10 Cal. 3d 385, 388-389 (Ricards) [inverse
condemnation action for temporary destruction of property owner‘s easement over
a bridge that afforded access to owner‘s property]; Pacific Gas & Electric v.
Hufford (1957) 49 Cal. 2d 545 [condemnation action to obtain an easement for the
construction, operation, and maintenance of electrical transmission line]; see
generally 1 Matteoni, Condemnation Practice in Cal. (3d ed. 2014) § 4.80, pp. 4-
130 to 4-132.) It is questionable, however, whether the authority afforded by the
trial court‘s environmental order can accurately be characterized as granting the
Department a compensable property interest for purposes of the state takings
clause. Although the total number of days Department employees are permitted to
enter and conduct investigatory activities on a landowner‘s property is not
insignificant, the activities encompassed in the trial court‘s environmental order
consist primarily of surveying and sampling activities that have been limited by
46
the trial court so as to minimize any interference with the landowner‘s use of the
property. The landowner will retain full possession of the property and no
significant damage to the property is intended or anticipated. The landowners
have not cited any decision in which the granting of comparable authority to a
public entity has been held to constitute a taking or damaging of a compensable
property interest for purposes of the state takings clause.18
Nonetheless, in our view there is no need to definitely decide whether the
nature and scope of the environmental activities authorized by the trial court
should properly be characterized as granting the Department a compensable
temporary easement for purposes of the California takings clause or at what point
a compensable property interest might arise. Assuming, without deciding, that the
trial court‘s environmental order can properly be characterized as granting the
Department a compensable temporary easement for purposes of the state takings
clause, we conclude that the procedure with which a public entity must comply
under the precondemnation entry and testing statutes satisfies the requirements of
the state takings clause so long as it is reformed to provide a property owner the
18 In advancing the argument that the environmental order amounts to the
taking of a temporary easement, the landowners point to statements in a number of
opinions to the effect that ― ‗the right to exclude [others is] ―one of the most
essential sticks in the bundle of rights that are commonly characterized as
property.‖ ‘ ‖ (Nollan v. California Coastal Comm’n. (1987) 483 U.S. 825, 831.)
As demonstrated by the common law rule recognizing that public officials
generally enjoy a privilege to enter private property and to conduct statutorily
authorized activities on such property (see, ante, pp. 37-38), however, the right to
exclude others has never been viewed as an absolute or unqualified attribute of
property ownership. Entries onto private property by public officials or employees
to conduct statutorily authorized activities are a long recognized limitation of a
property owner‘s right to exclude others.
47
option of obtaining a jury trial on the measure of damages (see discussion, post, at
pp. 63-66.)
(ii) Need for a classic condemnation action?
To begin with, it is quite clear that the Eminent Domain Law itself does not
contemplate that a classic condemnation action must be brought by a public entity
that wishes to conduct the precondemnation testing activities encompassed by the
precondemnation entry and testing statutes. In the Eminent Domain Law, the
precondemnation entry and testing statutes (§§ 1245.010-1245.060) precede the
provisions that set forth the procedure for commencing a classic condemnation
action (§ 1250.110 et seq.). The relevant provisions of the Eminent Domain Law
require a public entity, before commencing a classic condemnation action, to
adopt a ―resolution of necessity‖ that, among other matters, finds that the proposed
project for which property is to be taken ―is planned or located in the manner that
will be most compatible with the greatest public good and the least private injury‖
and that ―[t]he property described in the resolution is necessary for the proposed
project.‖ (§§ 1245.220, 1245.230, subd. (c)(2), (3).) The entire purpose of
precondemnation entry and testing is to enable the public entity to determine
whether or not the property is suitable and should be acquired for a public project
and whether a classic condemnation action should be commenced. It is
counterintuitive to maintain that the commencement of a classic condemnation
action is required before such precondemnation activities may be undertaken.
(See Ranchita, supra, 16 Cal.App.3d at p. 389 [―[I]f the statute is construed . . . to
compel the public agency to first file an action in eminent domain to condemn the
land as a condition precedent to the exercise of the rights conferred under sections
1242 and 1242.5 of the Code of Civil Procedure, and then abandon the action upon
discovery, after survey, that the land was unsuitable, such construction would
48
require the agency to perform a useless act.‖]; Cal. Law Revision Com. com.,
19 West‘s Ann. Code Civ. Proc. (2007 ed.) foll. § 1245.010, p. 406.)
In reaching its conclusion that a classic condemnation action is required to
perform precondemnation activities that rise to the level of a taking or damaging
of property, the Court of Appeal relied heavily on language in the Jacobsen
decision stating that ―[t]he only legal procedure provided by the constitution and
statutes of this state for the taking of private property for a public use is that of a
condemnation suit which the constitution expressly provides must first be brought
before private property can be taken or damaged for a public use.‖ (Jacobsen,
supra, 192 Cal. at p. 331.) The current precondemnation entry and testing statutes,
however, were not in existence at the time of Jacobsen. The only entry statute in
existence at the time of Jacobsen did not require a public entity to obtain any type
of judicial order before undertaking such precondemnation activities, and did not
condition entry and the conducting of such activities upon the public entity‘s
deposit of probable compensation for the proposed activities. Furthermore, that
now defunct entry statute permitted the landowner to obtain damages after entry
and examination only if the public entity acted negligently or in bad faith in
undertaking such activities. It did not provide compensation for any actual
damage to or substantial interference with the property owner‘s possession or use
of the property that resulted from the public entity‘s entry and examination
activities in the absence of negligence or bad faith.
As we have discussed, the Legislature enacted the current precondemnation
entry and testing statutes to satisfy the constitutional flaw the Jacobsen decision
found in the prior statute. (See, ante, pp. 24-29.) The current statutes authorize
entry and testing that may result in actual damage or substantial interference with
the property owner‘s possession or use of the property only if the public entity first
obtains the consent of the property owner or complies with the protective
49
procedures set forth in the statute. The current statutes require a public entity
(1) to seek and obtain a properly limited court order prior to undertaking such
precondemnation activities, (2) to deposit into court, prior to any entry or testing,
an amount that the court has determined is likely to cover any loss that the
property owner sustains as a result of the authorized precondemnation activities,
and (3) to pay damages to the property owner to compensate for any injury or
substantial interference with possession or use that the owner incurs as a result of
the precondemnation activities. These statutes were specifically intended to
satisfy the obligations imposed by the state takings clause while at the same time
affording both the public entity and the landowner an expedited legal procedure
that the Legislature concluded was appropriate for the precondemnation context.
As we have explained, ―[t]here is a ‗strong presumption in favor of the
Legislature‘s interpretation of a provision of the Constitution.‘ ‖ (Mt. San Jacinto,
supra, 40 Cal.4th at p. 656.) Contrary to the Court of Appeal‘s determination, we
conclude that the state takings clause does not preclude the Legislature, in the
precondemnation entry and testing context, from authorizing a public entity to
proceed pursuant to an expedited precondemnation procedure rather than through
a more elaborate classic condemnation proceeding.
As already observed (ante, pp. 36-37), the state takings clause has not been
interpreted always to require the commencement of a classic condemnation
proceeding before a public entity undertakes activity that may result in the taking
or damaging of property for which just compensation must be paid. Most
obviously, in the inverse condemnation context, a public entity has not been
required to bring a condemnation action before undertaking activity that may
possibly result in a taking or damaging of property. Instead, in that setting, the
public entity satisfies its obligation under the takings clause by paying damages
50
that are awarded to the property owner in a subsequent inverse condemnation
action.
A classic condemnation action is required when a public entity seeks to
obtain legal title or a permanent property interest in private property; it has also
been utilized when a public entity seeks to obtain exclusive possession of a portion
of the property for a significant, albeit temporary, period of time (for example,
through acquisition of a temporary construction easement).19 In the
precondemnation entry and testing setting a public entity is not seeking to obtain
legal title to a property interest or exclusive possession of any portion of the
property for a significant period of time. Instead, the public entity is seeking
permission to enter the property and conduct specific activities for a limited period
of time — activities that do not oust the property owner from its ownership or
possession of the property even though they may potentially cause some property
damage or interfere with the owner‘s possession and use of the property.
As Justice Blease in his dissenting opinion in the Court of Appeal observed,
the procedure set forth in the current precondemnation entry and testing statutes
closely tracks the procedure authorized by the second sentence of article I, section
19, subdivision (a) of the California Constitution. To repeat, that sentence states:
―The Legislature may provide for possession by the condemnor following
19 Unlike temporary construction easements that have been the subject of
formal condemnation proceedings when a public entity needs to temporarily
occupy a portion of adjacent property over a significant period of time for the
storage of equipment during the construction of a project on other property (see,
e.g., City of Corona v. Liston Brick Co. (2012) 208 Cal. App. 4th 536, 539-540), the
environmental order at issue here does not grant the Department exclusive
possession of any portion of a landowner‘s property for a significant period of
time.
51
commencement of eminent domain proceedings upon deposit in court and prompt
release to the owner of money determined by the court to be the probable amount
of just compensation.‖ As already noted, this aspect of the takings provision was
specifically intended to authorize legislative enactment of a so-called quick take
procedure that is fair to both the property owner and the public entity. The quick
take procedure enables a public entity that has already decided to acquire property
by eminent domain to obtain possession of the property and to begin construction
and operation of a public project quickly by depositing the probable amount of
compensation into court for the protection of the property owner while the formal
condemnation action proceeds. However, this second sentence of article I, section
19, subdivision (a) is not necessarily limited to the quick take context.
In the precondemnation entry and testing statutes, the Legislature relied on
the procedural approach set forth in the second sentence of article I, section 19,
subdivision (a) of the California Constitution, fashioning procedural protections
for the respective interests of the property owner and the public entity in a manner
that serves the fundamental purpose of the state takings clause in light of the
special characteristics of the precondemnation setting. Unlike the circumstances
that give rise to the quick take procedure, in which the public entity has already
decided to condemn the property and the property interest that will be taken by a
public entity is known and certain at the outset, in the precondemnation setting the
public entity is still in the process of determining whether to condemn the
property. In this setting, as the facts of the present case demonstrate, whether a
public entity‘s proposed precondemnation activities will rise to the level of a
compensable taking or damaging of property for purposes of the state takings
clause, and, if so, the extent of the loss that will actually be sustained by a property
owner for which compensation is due, cannot reliably be determined until the
scope of the precondemnation activities that are authorized by the trial court is
52
known and the activities have actually been undertaken by the public entity. Even
in those situations when it appears from the trial court‘s order that some damage to
property will be unavoidable, the extent of the damage that will actually be
incurred ordinarily would be speculative because the public entity, in carrying out
the approved activities, may be able to minimize the damage sustained by the
property owner and thus reduce the compensation that is due and the ultimate cost
to the public. Furthermore, as already noted, the public entity‘s purpose in the
precondemnation setting, as in the inverse condemnation context, is not to take or
damage property, and any loss ultimately sustained by a property owner, however
predictable, is generally an unavoidable consequence of reasonable and necessary
precondemnation investigatory activity.
In view of the unquestioned need for precondemnation entry and testing in
order to avoid the ill-advised and premature condemnation of private property and
the substantial uncertainties inherent in the precondemnation testing context, the
Legislature established a statutory scheme that takes into account the significant
public and private interest in an expedited precondemnation procedure and at the
same time extends to a property owner the fundamental procedural protections
embodied in the second sentence of article I, section 19, subdivision (a) of the
California Constitution whether or not a public entity‘s proposed precondemnation
activities actually rise to the level of a taking or damaging of property for purposes
of the state takings clause. First, the statutes require the public entity to institute a
judicial proceeding under the Eminent Domain Law prior to undertaking any
precondemnation entry or testing that poses a risk of damage or interference with
53
the property owner‘s possession or use of the property. (§ 1245.020.)20 Second,
the statutes require the trial court to limit the public entity‘s authorized activities
20 The landowners maintain that the judicial proceeding provided for in the
precondemnation entry and testing statutes does not constitute an ―eminent domain
proceeding[]‖ within the meaning of the second sentence of article I, section 19,
subdivision (a) of the California Constitution. In support of this position, they
point to other provisions of the Eminent Domain Law that use the term ―eminent
domain proceeding‖ to refer to a classic condemnation action that is commenced
when a public entity seeks to acquire legal title to or exclusive possession of
property for use in a public project. (See § 1250.110 et seq.) Those statutory
provisions, however, do not purport to define the term ―eminent domain
proceedings‖ as used in article I, section 19, subdivision (a) of the California
Constitution, and nothing in the takings clause or any other provision of the
California Constitution limits the meaning of that term in such a fashion. Because
the precondemnation entry and testing proceeding is a judicial proceeding
explicitly contained within and authorized by the Eminent Domain Law —
comprehensive legislation that the California Law Revision Commission described
as ―intended to supply rules for eminent domain proceedings‖ (The Eminent
Domain Law (Dec. 1975) 13 Cal. Law Revision Com. Rep. 1007, 1009, fn. 2) —
we conclude the precondemnation proceeding is reasonably viewed as an eminent
domain proceeding as that term is used in the second sentence of article I, section
19, subdivision (a) of the California Constitution. Under the statutes at issue,
precondemnation entry and testing follows commencement of the
precondemnation proceeding.
The concurring opinion maintains that the term ―eminent domain
proceedings‖ in the second sentence of article I, section 19 must be read to refer
only to a classic condemnation action. But there is nothing to suggest that the
second sentence of article I, section 19 was intended to require a classic
condemnation action to be commenced before undertaking precondemnation entry
and testing activities when a public entity has not yet decided whether or not to
condemn or acquire the property. The second sentence of article I, section 19
recognizes the Legislature‘s authority to permit a public entity to obtain exclusive
possession of property (and begin work on a public project) before a jury
determination and payment of compensation so long as the public entity deposits
an amount equal to probable compensation before taking such possession. Given
that, it is reasonable to interpret the second sentence as likewise recognizing the
Legislature‘s authority to permit a public entity to effect a lesser interference with
the owner‘s possession and use of the property — under the precondemnation
(footnote continued on next page)
54
(or, in the terminology of the second sentence of Cal. Const., art. I, § 19, subd. (a),
to limit the nature and extent of the public entity‘s authorized ―possession‖ of the
property) to those activities that are reasonably necessary to accomplish the public
entity‘s investigatory purpose. (§ 1245.030.) Further, the statutes require the
public entity, prior to undertaking such activities, to deposit into court for the
benefit of the property owner an amount that the court determines, based on the
circumstances of the particular case, is the probable amount of just compensation
for the activities authorized by the court. (Ibid.)21 Finally, the statutes provide a
procedure through which a property owner can promptly obtain compensation
from the deposit for any loss suffered as a result of the public entity‘s
precondemnation activities, and, if those funds are insufficient, can obtain a
judgment for the unpaid portion. (§ 1245.060, subds. (a), (c).)
Accordingly, although the second sentence of article I, section 19,
subdivision (a) of the California Constitution may not have been drafted with the
precondemnation setting in mind, in fashioning the precondemnation entry and
testing statutes the Legislature, acting under the authority granted by that sentence,
has provided comparable protections to the property owner so as to satisfy the
requirements of the state takings clause.
(footnote continued from previous page)
entry and testing statutes, which define a different type of eminent domain
proceeding — so long as the same procedural protections apply.
21 In addition, in further recognition of the uncertain and dynamic nature of
the investigatory process, the statutes explicitly authorize the trial court, at any
time during the precondemnation process, to modify its initial order and to require
the public entity to deposit additional funds if the court determines the initial
deposit is inadequate. (§ 1245.040.)
55
Thus, we conclude that the Legislature did not violate the state takings
clause by authorizing a public entity to enter private property to conduct
substantial precondemnation activities without the owner‘s consent or the
commencement of a classic condemnation action so long as (1) the public entity
obtains a court order specifying the activities that may be conducted on the
property and first deposits in court an amount that the trial court determines is
sufficient to cover the probable compensation to which the property owner may be
entitled for losses sustained as a result of the entry and testing activities, and
(2) the property owner is entitled to recover damages for any injury to the property
and any substantial interference with its possession or use of the property resulting
from the public entity‘s activities. Nothing in this court‘s decision in Jacobsen,
supra, 192 Cal. 319, is contrary to this conclusion.22
We note that the overwhelming majority of judicial decisions in other states
have upheld statutory provisions that authorize precondemnation entry and
22 In concluding that a classic condemnation action is required, the Court of
Appeal pointed in part to the provisions of Government Code section 7267.6.
Government Code section 7267.6 provides: ―If any interest in real property is to
be acquired by exercise of the power of eminent domain, the public entity shall
institute formal condemnation proceedings. No public entity shall intentionally
make it necessary for an owner to institute legal proceedings to prove the fact of
the taking of his real property.‖ Unlike the statutes at issue here, Government
Code section 7267.6 is not directed at precondemnation entry and testing
activities, and that statute cannot reasonably be interpreted as intended to limit or
displace the precondemnation entry and testing statutes. Instead, section 7267.6 is
intended to apply after the public entity has conducted any precondemnation
activities and has already decided to acquire real property. Further, under the
precondemnation statutes a public entity is required to file a judicial proceeding to
obtain authority to enter and conduct proposed testing; the statutes do not make it
necessary for a property owner to institute legal proceedings to prove that its
property has been taken.
56
preliminary surveys or examinations comparable to the activities authorized by the
environmental order against a claim that the statute violates the takings clause of
the applicable state constitution. (See, generally, Annot., Eminent Domain: Right
to Enter Land for Preliminary Survey or Examination (1970) 29 A.L.R. 3d 1104,
1111-1113, § 4, and later cases (2015 supp.) 158-159 ].) These decisions have
concluded that property owners who are subjected to such precondemnation
testing are adequately protected when they are permitted to recover for any
damages they incur as a result of the entry and testing activities.23 We also
observe that the Uniform Eminent Domain Law, drafted by a nationwide body of
eminent domain legal experts, contains provisions authorizing the same type of
precondemnation entry and testing under procedures that closely parallel those in
the applicable California statutes. (See 13 pt. 1 West‘s U. Laws Ann., supra,
U. Eminent Domain Code §§ 301-305.)
(iii) Adequate measure of damages?
Furthermore, contrary to the Court of Appeal‘s conclusion, we conclude
that the statutory damages that a property owner is entitled to obtain under section
1245.060, the applicable precondemnation entry and testing statute, are a
constitutionally adequate measure of just compensation under the state takings
clause for the precondemnation activities authorized by the statutory scheme.
23 As we discuss below in connection with the geological testing issue, a
number of out-of-state decisions have concluded that a public entity is required to
condemn a temporary easement before undertaking significant precondemnation
drilling or boring activities on private property. (Post, p. 72, fn. 33.) As we
explain, none of the jurisdictions in question had adopted a precondemnation
statutory scheme containing the substantial procedural protections embodied in the
California precondemnation entry and testing statutes.
57
Like the concept of just compensation under the federal takings clause
(ante, pp. 31-32), the just compensation required by the state takings clause is the
amount required to compensate the property owner for what the owner has lost.
(See, e.g., Mt. San Jacinto, supra, 40 Cal.4th at p. 666 [― ‗ ―The just compensation
required by the Constitution to be made to the owner is to be measured by the loss
caused to him by the appropriation. He is entitled to receive the value of what he
has been deprived of, and no more. To award him less would be unjust to him; to
award him more would be unjust to the public.‖ ‘ ‖]; Citizens Utilities Co. v.
Superior Court (1963) 59 Cal. 2d 805, 817.)
Although the measure of compensation that is ―just‖ for purposes of both
the federal and state takings clause is often determined by the ―fair market value‖
of what has been lost, both federal and state takings cases uniformly recognize that
the fair market value standard is not applicable in all circumstances and that there
is no rigid or fixed standard that is appropriate in all settings. (See, e.g., United
States v. Virginia Electric Co., supra, 365 U.S. at p. 633; Citizens Utilities Co. v.
Superior Court, supra, 59 Cal.2d at p. 817.) In other contexts, it is frequently
possible to determine the fair market value of an easement by considering
comparable sales or other evidence disclosing the price a willing buyer and willing
seller would agree upon in relation to the value of the property as a whole prior to
and after the taking or damaging of the easement in question. (See, e.g., United
States v. Virginia Electric Co., supra, 265 U.S. at p. 630; Pacific Gas & Elec. Co.
v. Hufford, supra, 49 Cal.2d at pp. 553-554; see generally 1 Matteoni,
Condemnation Practice in Cal., supra, § 4.80, pp. 4-130; Clarke, Easement and
Partial Taking Valuation Problems (1969) 20 Hast. L.J. 517.) However, the
precondemnation entry and testing statutes authorize only temporary and limited
types of activities — surveying and testing activities. Significantly, this limitation
is further restricted by the individualized nature of each court order prescribing
58
specific limitations under which the authorized activities may be undertaken.
Thus, even if we assume that in some circumstances a trial court order‘s entry and
testing order can properly be characterized as the grant of a compensable
temporary easement, there generally would not be a reliable and consistent means
of establishing a fair market value for the particular easement at issue.24 (Accord,
§ 1263.320, subd. (b) [―The fair market value of property taken for which there is
no relevant, comparable market is its value on the date of valuation as determined
by any method or valuation that is just and equitable‖].)
In concluding that the damages authorized by the precondemnation entry
and testing statutes would be inadequate for the activities authorized by the trial
court‘s environmental order, the Court of Appeal suggested that, in addition to any
damages that are recoverable under section 1245.060, a property owner is entitled
to recover the rental value of the property for the period of time during which the
activities authorized by that order are permitted. In light of the nature of the
environmental order at issue here, however, granting a property owner the rental
value of the property in addition to any damages the owner sustains for actual
injury or substantial interference with the possession or use of the property would
afford the owner an unwarranted windfall. Under the trial court‘s environmental
order, the owner retains full possession and use of the property over the period
covered by the order, notwithstanding the authorized testing activities. Under
these circumstances, the rental value of the property would not be a valid measure
of what the property owner has lost as a result of the trial court‘s environmental
order. (Cf. e.g., Otay Mesa Prop., L.P. v. United States (Fed. Cir. 2012) 670 F.3d
24 In this case, no evidence was presented indicating that the proposed
temporary environmental or geological testing would reduce the fair market value
of any property.
59
1358, 1368-1369 (Otay Mesa).)25 Accordingly, awarding such an amount to the
property owner under these circumstances clearly would not be just to the
public.26
25 In Otay Mesa, supra, 670 F.3d 1358, the United States Border Patrol had
placed sensors on private property to aid in its apprehension of border crossing
violations. The sensors did not interfere with the property owner‘s use of the
property and would be removed whenever the property owner notified the Border
Patrol that it intended to develop the area on which a sensor was located. In an
inverse condemnation action brought by the property owner against the Border
Patrol, the trial court, after finding that the Border Patrol‘s actions constituted the
taking of a temporary easement, awarded the property owner just compensation
based on the rental value of the property that had been charged in other instances
for activities (skydiving and parachute training) that had precluded any use of the
property by the property owner during the rental period.
On appeal, the Federal Circuit Court of Appeals held that the trial court had
erred in using rental value as the basis for determining just compensation under
the circumstances involved in that case. The Federal Circuit explained: ―By
exclusively applying a rental value methodology and looking to rents paid for the
use of land for skydiving and parachute training, the [trial] court . . . overlooked
exactly what has been taken by the Border Patrol — a minimally invasive
permanent easement to use undeveloped land that is unilaterally terminable by
Otay Mesa [the property owner]. Under the easement, each sensor must be
located so as not to affect the functionality of the property. In addition, should
Otay Mesa wish to develop any portion of the property, any affected sensor will be
removed or redeployed upon 30 days written notice . . . . Finally, upon removal of
a sensor, the portion of the easement relating to that sensor terminates. In short,
the court did not squarely address the just compensation appropriate to
compensate Otay Mesa for the taking.‖ (Otay Mesa, supra, 670 F.3d at pp. 1368-
1369.)
26 Under other circumstances — for example, when a precondemnation order
grants a public entity exclusive possession of all or a portion of the property for a
significant period of time — the rental value of the occupied property might well
be an appropriate measure of the loss suffered by a property owner for substantial
interference with its possession or use of the property and thus a proper measure of
damages recoverable under section 1245.060. (Cf. Kimball Laundry Co. v. United
States (1949) 338 U.S. 1, 7.)
60
Instead, the compensation authorized by section 1245.060 — damages for
any ―actual damage‖ to the property and for ―substantial interference with the
[property owner‘s] possession or use of the property‖ — appears on its face to be a
reasonable means of measuring what the property owner has lost by reason of the
specific precondemnation activities that are authorized by the trial court‘s
environmental order. (Accord, e.g., Sacramento & San Joaquin Drainage Dist. v.
Goehring (1970) 13 Cal. App. 3d 58, 66-67 [affirming an award of $900 for the
taking of a temporary easement for roadway purposes based on damage to the
roadway]; Ricards, supra, 10 Cal.3d at pp. 388-390 [only nominal damages
permitted when temporary taking of easement resulted in no loss].)27 Because this
27 In Ricards, supra, 10 Cal. 3d 385, the city‘s construction of a project
upstream from the property owner‘s property caused a diversion of waters that
destroyed a private bridge over which the downstream property owner held an
easement that provided the sole access to her property. Thereafter, the property
owner brought an inverse condemnation action against the city, seeking just
compensation for the temporary loss of the easement for the two years that elapsed
before a public bridge was constructed to replace the old bridge.
In this court‘s decision in Ricards, we agreed with the trial court‘s
conclusion that ―the destruction of the bridge constituted a taking or damaging of
the owner‘s property rights of access within the meaning of [the state takings
clause for which] [] [s]he . . . became entitled to just compensation‖ (10 Cal.3d at
p. 389), but we reversed the substantial monetary award that had been granted to
the property owner by the trial court. We explained: ―[T]he temporary
impairment of access caused neither loss of use or rental value or permanent
diminution in property value, nor financial disadvantage with respect to possible
interim sale of the property. The owner, therefore, suffered no injury that was not
cured by the City‘s replacement of the bridge. To afford her substantial
compensation under such circumstances would place her in a better financial
position than she would have been in had the bridge remained intact. Therefore
the judgment below must be reversed insofar as it awards the owner substantial
damages for impairment of access.‖ (Id. at pp. 389-390.) The court noted that on
remand the trial court could award the property owner nominal damages. (Id. at
p. 390, fn. 4.)
61
matter is before us prior to any precondemnation activities having been conducted,
we have no occasion in this case to determine exactly what specific items of actual
damage or substantial interference with possession or use of the property are
compensable under the statutes in question.28 We observe, however, that because
the statutory scheme must be interpreted so as to satisfy constitutional
requirements, the provisions of section 1245.060 should be construed and applied
in a manner that will permit a recovery by the affected property owner that fully
complies with the just compensation required by the state takings clause. The
numerous past California cases that have analyzed what damages are appropriately
awarded for the taking or damaging of property in the inverse condemnation
context may provide useful analogies in this regard. (See generally 8 Witkin,
Summary of Cal. Law (10th ed. 2005) Constitutional Law, §§ 1145-1152, pp. 786-
801 [listing cases].)29
28 The landowners contend that the precondemnation entry and testing statutes
preclude them from recovering any expense they may incur in having their own
employees accompany or supervise the Department‘s employees during the survey
and testing operations. But the landowners have not yet incurred such costs or
sought to recover damages for such expenses through the procedure established by
section 1245.060, subdivision (c), and thus we have no occasion to determine
whether such expenses are recoverable under the statute. The landowners have
not challenged the adequacy of the amount of probable compensation that the trial
court‘s environmental order required the Department to deposit on the ground that
such amount did not take into account such expenses.
29 The Court of Appeal also suggested that the precondemnation entry and
testing statutes were constitutionally deficient because the state takings clause
precludes placing the burden on a property owner to establish that it has sustained
a loss for which just compensation must be paid or to demonstrate the amount of
the loss. Section 1245.060, by its terms, does not explicitly impose a burden of
proof, but it does require a property owner to apply to obtain recovery from the
deposited funds and a judgment for an additional award if the deposited funds are
insufficient. (§ 1245.060, subds. (a), (c).) Contrary to the Court of Appeal‘s
position, however, the governing California cases do not hold that the state takings
(footnote continued on next page)
62
Accordingly, we conclude that a classic condemnation proceeding is not
required for precondemnation entry and testing.
(b) Does the environmental order violate the takings
clause by failing to provide for a jury trial on
damages?
The Court of Appeal additionally concluded that the precondemnation entry
and testing statutes are constitutionally deficient as applied to any environmental
testing activities that amount to a taking or damaging of property for purposes of
the state takings clause because the statutes do not provide a property owner with a
right to have a jury determine the amount of just compensation to which the
property owner is entitled. There is no dispute that the California takings clause
guarantees a property owner whose property has been taken or damaged for public
use a right to have the amount of just compensation ascertained by a jury, if the
property owner so chooses. (Cal. Const., art. I, § 19, subd. (a); see, e.g., Highland
Realty Co. v. City of San Rafael (1956) 46 Cal. 2d 669, 683; Citizens Utilities Co.
v. Superior Court, supra, 59 Cal.2d at p. 816.) Nonetheless, for the reasons
discussed hereafter, we conclude that the precondemnation entry and testing
statutes may not properly be held unconstitutional on this ground.
(footnote continued from previous page)
clause prohibits any procedure that requires the property owner to establish what it
has lost as a result of a public entity‘s alleged taking. As this court explained in
Ricards, supra, 10 Cal.3d at p. 390, footnote 4: ―Where an owner is unable to
prove that the taking or damaging of property by a governmental entity has caused
him any economic injury, he is entitled to recover only nominal damages.‖ (See
also § 1260.210 [in a classic condemnation proceeding, ―[t]he defendant [i.e., the
property owner] shall present his evidence on the issue of compensation first‖].)
63
It is true that the relevant provision of the precondemnation entry and
testing statutes — section 1245.060 — does not afford a property owner the right
to a jury trial on the measure of damages within the precondemnation proceeding
itself. Instead, section 1245.060 grants both the public entity and the property
owner what the Legislative perceived to be the benefit of a more expeditious and
streamlined procedure for obtaining recovery for any damage or interference with
use or possession that may result from the authorized precondemnation entry and
testing activities, by having such damages determined by the trial court.
(§ 1245.060, subd. (c).)
In defending the validity of the statutory scheme, the Department points out
that section 1245.060, subdivision (a), expressly provides that ―the owner may
recover for such damages or interference in a civil action or by application to the
court under subdivision (c).‖ (Italics added.) The Department argues that the jury
trial requirement of the state takings clause is satisfied because a property owner
can bring the civil action authorized under section 1245.060, subdivision (a), by
filing a cross-complaint in the precondemnation proceeding itself, and the property
owner would then be entitled to a jury determination of compensation in resolution
of its cross-complaint in the precondemnation proceeding.
We agree that, by virtue of the jury trial provision of the state takings
clause, a property owner would be entitled to a jury determination of
compensation in the separate civil action expressly authorized under section
1245.060, subdivision (a). However, we do not believe the provisions of section
1245.060, construed as a whole, can reasonably be interpreted to permit the civil
action provided for in subdivision (a) to be brought and litigated within the
precondemnation proceeding itself. Nothing in the statute purports to permit such
a civil action to be joined with the precondemnation proceeding in this fashion.
Such joinder appears inconsistent with the language of subdivision (a) itself,
64
which states that a property owner may recover damages either in a civil action or
by application to the court under subdivision (c). If the Legislature had intended
to authorize the merged procedure proposed by the Department, the statute would
not have been written in its present form.
Although we conclude that section 1245.060 as presently written does not
afford a property owner the right to have a jury determine the amount of
compensation within the precondemnation proceeding itself, and further agree
with the Court of Appeal that the statute is constitutionally deficient in this
respect, in our view the appropriate remedy for this constitutional flaw is not to
invalidate the precondemnation entry and testing statutes as applied to any
precondemnation testing activity that rises to the level of a taking or damaging of
property for purposes of the state takings clause. Instead, we conclude that the
appropriate remedy for this constitutional flaw is to reform the precondemnation
entry statutes so as to afford the property owner the option of obtaining a jury trial
on damages at the proceeding prescribed by section 1245.060, subdivision (c).
As this court explained in Kopp v. Fair Pol. Practices Com. (1995) 11
Cal. 4th 607, 615: ―[A] court may reform a statute to satisfy constitutional
requirements if it can conclude with confidence that (i) it is possible to reform the
statute in a manner that closely effectuates policy judgments clearly articulated by
the enacting body, and (ii) the enacting body would have preferred such a
reformed version of the statute to invalidation of the statute.‖ In light of the
legislative history of the precondemnation entry and testing statutes discussed
above, it is clear that the Legislature intended to adopt a procedure that satisfies
the requirements of the California takings clause. Further, providing a property
owner the ability to obtain a jury determination of damages at the latter stage of
the precondemnation proceeding will not interfere with or undermine the
fundamental purposes or policies of the precondemnation entry and testing
65
legislation. Thus, we conclude that both prongs of the Kopp standard are satisfied
here. Accordingly, the provisions of section 1245.060, subdivision (c), are
reformed to provide a property owner the option of obtaining a jury trial on the
measure of damages at the proceedings provided for in that subdivision.
2. Geological testing activities
As discussed above, both the trial court and the Court of Appeal held that
the precondemnation entry and testing statutes violate the state takings clause as
applied to the Department‘s proposed geological testing activities. These courts
reasoned that because the Department proposed to fill the holes that it bored in the
property with a type of grout that would be left in the holes after the Department
completed its investigatory activities, the geological activities amounted to a
permanent per se taking of property under the United States Supreme Court‘s
decision in Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419,
426 (Loretto). As a consequence, the proposed activity required the
commencement of a classic condemnation action prior to conducting such
activities.
The Department‘s proposed boring and refilling of deep holes in the
properties in question — along with the Department‘s exclusive possession of the
worksite area surrounding the boring sites for the 1 to 14 days needed to conduct
the drilling activities — may cause substantial interference with the landowner‘s
possession and use of a portion of its property during the time the drilling
activities are occurring. At the same time, however, under the precondemnation
entry and testing statutes, a landowner is entitled to be compensated for any such
interference with the owner‘s possession and use of the property, as well as for
any actual damage to the property caused by the CPT and drilling activities. The
landowners maintain that recovery under the precondemnation statutes for any
actual damage or substantial interference with possession or use of the property is
66
not sufficient. They argue that the proposed boring and refilling activity must be
viewed as the kind of permanent appropriation of a property interest that may only
be undertaken by first commencing a classic condemnation action, rather than by
proceeding under the precondemnation statutes. As explained, we disagree with
the landowners‘ contention on a number of grounds.
First, in our view it is doubtful that the proposed boring and filling activity
is properly characterized as a permanent occupation of property, and therefore a
per se taking, for federal constitutional purposes. In Loretto, supra, 458 U.S. 419
— upon which the lower courts relied — the United States Supreme Court phrased
the question before it as ―whether a minor but permanent physical occupation of
an owner‘s property authorized by government constitutes a ‗taking‘ of property
for which just compensation is due under the Fifth and Fourteenth Amendments of
the Constitution.‖ (Id. at p. 421.) In that case, a New York statute provided that a
residential landlord was required to permit a cable television company to install
cables and a cable box on the landlord‘s property. The New York Court of
Appeals had ruled that because the required installation served a legitimate police
power purpose and did not have an excessive economic impact on the landlord‘s
property rights or its reasonable investment-backed expectations, the statute did
not constitute a taking of the landlord‘s property for purposes of the federal
takings clause. (Id. at p. 425.)
In reversing the New York court‘s ruling, the majority in Loretto, supra,
458 U.S. 419, drew a distinction ―between a permanent occupation and a
temporary physical invasion‖ of property (id. at p. 434), and held that ―when [a]
physical intrusion reaches the extreme form of a permanent physical occupation, a
taking has occurred.‖ (Id. at p. 426.) In that case, because ―[t]he installation
involved a direct physical attachment of plates, boxes, wires, bolts, and screws to
the building‖ (id. at p. 438), and because ―[s]o long as the property remains
67
residential and a [cable] company wishes to retain the installation, the landlord
must permit it []‖ (id. at p. 439), the high court found that the required installation
amounted to a permanent physical occupation and thus constituted a taking of
property without regard to the economic impact of the requirement. (Id. at p. 441.)
At the same time, the court recognized that ―the extent of the occupation [is] one
relevant factor in determining the compensation due‖ (id. at p. 437, fn. omitted),
and noted that in that case ―[t]he issue of the amount of the compensation that is
due, on which we express no opinion, is a matter for the state courts to consider on
remand.‖ (Id. at p. 441, fn. omitted.)
Unlike the cable box in Loretto, which was owned and controlled by the
cable company and which the property owner was not permitted to remove, the
Department will retain no continuing interest in the grout after its testing activities
are completed. If a landowner chooses, it may remove the grout at any time and
replace it with any substance it desires (so long as, of course, the substance
complies with any applicable health and water regulations). In our view, the
Loretto decision cannot properly be interpreted to mean that a public entity that,
after digging up soil or conducting other activities on private property that
temporarily alter the property‘s condition, returns the property to the same or a
comparable state as the property previously enjoyed, is to be viewed as having
undertaken a permanent physical occupation of the property that amounts to a per
se taking of a property interest. A public entity‘s restoration of property to the
equivalent of its prior state is not the same as a public entity‘s authorizing a third
party to attach a structure or fixture to a property owner‘s property when the
structure or fixture continues for an unspecified period to be controlled by the
third party. Because here the Department would not retain possession of or any
interest in the filling material after its testing is completed, the proposed
geological activities do not involve any continued or permanent occupation of any
68
portion of the landowners‘ property that would effectively impinge upon the
owner‘s right to possess, use, or control the area in question. Under these
circumstances, in our view the proposed drilling and refilling would not constitute
a permanent physical occupation of a landowner‘s property within the meaning of
the Loretto decision.30
Second, even if leaving grout in the holes bored on the landowners‘
properties were properly viewed as a permanent physical occupation and, as such,
a per se taking of property for purposes of the federal takings clause under Loretto,
an order under the precondemnation entry and testing statutes authorizing such
geological activity still would not violate the federal takings clause. As previously
explained, because the precondemnation entry and testing statutes provide a
procedure by which a property owner may recover damages for any actual injury
or substantial interference with the property owner‘s possession or use of its
property that is caused by the continued presence of the grout on its property, the
30 In contending that the proposed geological activities would work a
permanent physical occupation, the landowners rely heavily on dicta in Hendler v.
United States (Fed. Cir. 1991) 952 F.2d 1364, 1376, discussing the permanency
requirement of Loretto. However, in a subsequent decision by the same circuit —
Boise Cascade Corp. v. United States (Fed. Cir. 2002) 296 F.3d 1339 — the court
stated that the cited language in Hendler ―has been widely misunderstood‖ (296
F.3d at p. 1356) and explained: ―Putting its dicta to one side, Hendler‘s holding
was unremarkable and quite narrow: it merely held that when the government
enters private land, sinks 100-foot deep steel reinforced wells surrounded by
gravel and concrete, and thereafter proceeds to regularly enter the land to
maintain and monitor the wells over a period of years, a per se taking under
Loretto has occurred.‖ (Id. at p. 1357, italics added.) The facts of Hendler are
quite different and distinguishable from the proposed geological activities at issue
in this case.
69
statutes do not on their face violate the federal takings clause. (See ante, pp. 32-
33.)31
Third, even if we assume that the Department‘s proposed geological
activities are sufficiently similar to the activities at issue in Jacobsen, supra, 192
Cal. at page 238, that the proposed activities would constitute a taking or
damaging of property for purposes of the state takings clause under the holding in
Jacobsen, an order authorizing such geological activities pursuant to the
procedures set forth in the current precondemnation entry and testing statutes
would not violate the state takings clause. As discussed above with reference to
the environmental order, the state takings clause does not always require a public
entity to institute a classic condemnation action before it engages in conduct that
may result in a taking or damaging of property for which just compensation must
be paid under the state takings clause. With respect to the proposed geological
testing, as with the authorized environmental testing, the Department is not
seeking to obtain title to private property, to permanently maintain bored holes on
the landowners‘ property, or to obtain exclusive possession of any portion of the
property for a significant period of time.32
31 We note in this regard that on remand from the United States Supreme
Court‘s decision in Loretto, supra, 458 U.S. 419, the New York Court of Appeals
concluded that even if the challenged New York statute worked a per se taking of
a landlord‘s property, the New York statute nonetheless did not violate the federal
takings clause because the statute permitted a landlord to obtain damages — just
compensation — for any loss sustained as a result of the statute‘s requirements.
(See Loretto v. Teleprompter Manhattan CATV Corp. (N.Y. 1983) 446 N.E.2d
428, 432-433, 448.)
32 Because no permanent physical occupation of property is involved here, we
have no occasion to determine what procedure would be required under the state
takings clause in the event that precondemnation testing required such activity.
70
Under the precondemnation entry and testing statutes, a landowner has the
opportunity to object to the proposed geological activities and to propose
limitations on drilling activities that would eliminate or minimize any potential
interference with the landowner‘s continued use of its properties during the period
in which the geological activities are undertaken. The landowner may present
evidence regarding the amount of funds that the Department should be required to
deposit in advance of its entry and undertaking of the geological activities to
compensate the property owner for any loss sustained as a result of those
activities. As the trial court‘s order with respect to the environmental activities
demonstrates, under the applicable statutes a trial court is required to take into
account the property owner‘s legitimate objections and concerns in devising the
conditions under which any geological testing may proceed and in determining the
amount of funds that the public entity is required to deposit before undertaking
such testing.
For the reasons set forth in our discussion relating to the environmental
order, we conclude that the precondemnation entry and testing statutes — by
requiring the Department to obtain a court order prior to undertaking the
geological testing activities, authorizing the trial court to limit the activities in a
manner that protects the interests of the property owner, requiring the Department
to deposit in court an amount that the court determines is sufficient to cover the
damages that may result from the authorized activities, and authorizing a
landowner to recover damages for any actual damage to the property or substantial
interference with the owner‘s possession and use of the property resulting from the
71
Department‘s geological activities — satisfy the requirements of the California
takings clause as applied to the proposed geological testing.33
Accordingly, we conclude that the trial court and Court of Appeal erred in
determining that the state takings clause precluded the trial court from issuing an
order, pursuant to the precondemnation entry and testing statutes, that would
authorize the Department to conduct the proposed geological activities on the
properties at issue.
33 The landlords have cited a number of out-of-state cases that hold, consistent
with our Jacobsen decision, that when a public entity intends to conduct deep
drilling as part of precondemnation testing, the drilling activity would constitute a
taking or damaging of property for purposes of the applicable state takings clause
and that, in such a case, a classic condemnation action must be instituted. (See,
e.g., County of Kane v. Elmhurst Nat. Bank (Ill.Ct.App. 1982) 443 N.E.2d 1149,
1154; Missouri Highway & Transportation Com. v. Eilers (Mo.Ct.App. 1987) 729
S.W.2d 471, 473-474; Burlington No. & S.F. Ry. V. Chaulk (Neb. 2001) 631
N.W.2d 131, 140;.) None of the jurisdictions in question, however, had adopted a
statutory scheme comparable to California‘s current precondemnation entry and
testing statutes, in which a public entity, prior to engaging in such drilling
activities, must obtain a court order and deposit in court an amount that the court
determines is probable compensation for any loss that may be caused by the
authorized drilling. Thus, none of the decisions upon which the landlords rely is
inconsistent with the conclusion reached here. (Cf. Mackie v. Mayor & Comm’rs
of Elkton (Md. 1972) 290 A.2d 500, 506 [―We shall not undertake to say here that
prior payment or the tender of payment is a sine qua non for entries and activities
looking to the acquisition of the ‗information‘ [i.e., data from subsoil testing]
appellees say they must have. It seems reasonable to suppose that the Legislature
will devise a mechanism which will be adequate, equitable and valid.‖ (Italics
added.)].)
72
IV. Conclusion
For the reasons discussed above, the judgment of the Court of Appeal is
reversed in its entirety, and the matter is remanded to the Court of Appeal for
further proceedings consistent with this opinion.34
CANTIL-SAKAUYE, C. J.
WE CONCUR:
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
34 In light of its constitutional ruling, the Court of Appeal did not reach a
number of additional issues raised by the landowners on appeal, including the
validity of the trial court‘s rulings with regard to the availability of discovery in a
precondemnation proceeding and the right of lessees or easement holders to
participate in such a proceeding. The Court of Appeal may address those issues
on remand.
73
CONCURRING OPINION BY LIU, J.
I agree with the results the court reaches today. But as to the holding that
California Constitution, article I, section 19, subdivision (a) (hereafter article I,
section 19(a)) does not require the Department of Water Resources (Department)
to initiate a classic condemnation proceeding before conducting its proposed
environmental and geological testing activities, I am not persuaded by the court‘s
reasoning and would reach this holding on different grounds.
In this case, the Department sought judicial authorization under the
precondemnation entry and testing statutes (Code Civ. Proc., §§ 1245.010–
1245.060) to engage in certain environmental and geological testing activities as a
preliminary step to possibly condemning property for use in new water
conveyance facilities. The question is whether such activities and the statutory
procedures that authorize them are consistent with article I, section 19(a), which
states: ―Private property may be taken or damaged for a public use and only when
just compensation, ascertained by a jury unless waived, has first been paid to, or
into court for, the owner. The Legislature may provide for possession by the
condemnor following commencement of eminent domain proceedings upon
deposit in court and prompt release to the owner of money determined by the court
to be the probable amount of just compensation.‖
Today‘s opinion says the second sentence of this provision authorizes a
public agency to conduct testing activities that may result in taking or damage to
1
property without first paying the owner, so long as certain protections enacted by
the Legislature are observed. (Maj. opn., ante, at p. 55 [―[A]lthough the second
sentence of article I, section 19, subdivision (a) of the California Constitution may
not have been drafted with the precondemnation setting in mind, in fashioning the
precondemnation entry and testing statutes the Legislature, acting under the
authority granted by that sentence, has provided comparable protections to the
property owner so as to satisfy the requirements of the state takings clause.‖].) By
its plain terms, the second sentence of article I, section 19(a) speaks of
legislatively enacted procedures that apply ―following commencement of eminent
domain proceedings.‖ In the court‘s view, a petition to obtain an order for
precondemnation testing (Code Civ. Proc., § 1245.030) is an ―eminent domain
proceeding‖ within the meaning of article I, section 19(a). (Maj. opn., ante, at
p. 53, fn. 20.) I respectfully disagree.
When construing a constitutional provision, ― ‗[i]t is to be presumed, in the
absence of anything in the context to the contrary, that the words were used in the
ordinary acceptation and as defined by the statutes in force at the time.‘ ‖ (State
M. B. & L. Assn. v. Los Angeles (1939) 30 Cal. App. 2d 383, 385.) Under the
Eminent Domain Law, ―[a]n eminent domain proceeding is commenced by filing a
complaint with the court.‖ (Code Civ. Proc., § 1250.110.) The filing of a
complaint initiates a condemnation proceeding, and the public agency is required
to give any interested persons a clear description of ―the property sought to be
taken.‖ (Id., § 1250.120.) This was the meaning of the phrase ―commencement of
eminent domain proceedings‖ at the time of article I, section 19‘s enactment in its
current form in 1974. (See Mt. San Jacinto Community College Dist. v. Superior
Court (2007) 40 Cal. 4th 648, 657.) The Eminent Domain Law referred to a
―proceeding in eminent domain‖ as a proceeding in which a complaint is filed to
condemn property. (See Code Civ. Proc., former § 1243, as amended by Stats.
2
1963, ch. 70, § 1, p. 698; id., former § 1243.4, added by Stats. 1961, ch. 1613, § 1,
p. 3442; id., former § 1243.5, added by Stats. 1957, ch. 1508, § 1, p. 2840.) When
the Legislature reenacted the Eminent Domain Law in its present form in 1975
(Stats. 1975, ch. 1275, § 2, p. 3409) shortly after the enactment of article I, section
19(a), it was presumably aware of that constitutional provision and used the term
―eminent domain proceeding‖ with that provision in mind. (See California
Housing Finance Agency v. Elliott (1976) 17 Cal. 3d 575, 595.)
A petition to enter property for precondemnation activities pursuant to
Code of Civil Procedure section 1245.030 is by definition not an action to
condemn property, and it is therefore not the commencement of an ―eminent
domain proceeding‖ as that term has long been used in statute. Further, there is no
indication that the term means something different in article I, section 19(a). To
the contrary, article I, section 19(a) uses the term ―eminent domain proceeding‖ in
the same sense as the Eminent Domain Law does. As the court acknowledges, the
second sentence of article I, section 19(a) ―was adopted primarily to give the
Legislature broad authority to enact a so-called quick take statutory procedure that
fairly protects the interests of both public entities and property owners.
[Citations.] Through the current statutory quick take procedure (§ 1255.010 et
seq.), a public entity that has already determined that it intends to acquire a
specific property for public use may, after taking the steps necessary to commence
a classic condemnation action, obtain exclusive possession of the property and
begin construction of the project before the typically lengthy classic condemnation
action has fully run its course and a jury determination of just compensation has
been made.‖ (Maj. opn., ante, at pp. 35–36, italics added.)
The court says that because the Legislature has made the precondemnation
statutes a part of the Eminent Domain Law, a petition to gain precondemnation
entry for testing activities qualifies as the commencement of an eminent domain
3
proceeding. (Maj. opn., ante, at p. 53, fn. 20.) But the court cites nothing to rebut
the presumption that the Legislature and those who enacted the constitutional
provision had a common understanding of that term. Against the backdrop of
settled usage equating an ―eminent domain proceeding‖ with a classic
condemnation action, it is unpersuasive to infer that the Legislature intended a
precondemnation action to qualify as an eminent domain proceeding without some
specific indication to that effect. Neither the fact that the precondemnation
statutes are part of the Eminent Domain Law nor the fact that the California Law
Revision Commission made the general statement, without mentioning the
precondemnation statutes, that the Eminent Domain Law was ― ‗intended to
supply rules for eminent domain proceedings‘ ‖ (maj. opn., ante, at pp. 53–54,
fn. 20, citing The Eminent Domain Law (Dec. 1975) 13 Cal. Law Revision Com.
Rep. 1007, 1009, fn. 2) provides a firm basis for inferring the Legislature‘s intent
to alter the consistent meaning of ―eminent domain proceeding‖ that the statute
itself has stated in its many iterations. (Code Civ. Proc., §§ 1250.110, 1250.120;
id., former §§ 1243 [as amended in 1963], 1243.4 [enacted in 1961], 1243.5
[enacted in 1957].)
Indeed, in the report cited by the court, the Commission said in its
comments on Code of Civil Procedure section 1245.010: ―Although appraisal and
suitability studies generally precede the commencement of the eminent domain
proceeding, Section 1245.010 does not preclude such studies after the proceeding
to acquire the property has been commenced.‖ (The Eminent Domain Law,
supra, 13 Cal. Law Revision Com. Rep. at p. 1119, italics added.) Thus, the
Commission understood the term ―eminent domain proceedings‖ in the
conventional sense to mean a ―proceeding to acquire . . . property‖ and as
something distinct from the commencement of ―appraisal and suitability studies‖
in the precondemnation statutes.
4
Instead of trying to shoehorn the precondemnation procedure into the
second sentence of article I, section 19(a), I would hold that article I, section
19(a)‘s requirement that a public agency commence a classic condemnation
proceeding before taking property does not apply to situations where there is
genuine uncertainty as to whether or to what extent a taking or any damage will
occur. The purpose of California‘s takings clause is not to prevent the government
from undertaking legitimate activities, but to ensure that the government pays just
compensation if those activities result in a taking or damage to property. Article I,
section 19(a) could not have been intended to require the impossible: It could not
have been intended to require a jury ascertainment of just compensation where the
extent of any taking or damage is uncertain before the government actually
undertakes its proposed activities. In contrast to a classic condemnation action,
which requires the government to know and to clearly specify what property will
be taken (Code Civ. Proc., § 1250.310, subd. (b)), a proceeding to authorize
precondemnation testing activities often presents circumstances where the extent
of any taking or damage will be unclear until the activities are completed. In such
circumstances, the entry and testing activities authorized by the precondemnation
statutes do not require the commencement of a classic condemnation proceeding.
In this case, the trial court‘s order authorizing the Department to enter the
property and conduct environmental testing activities provided a maximum
number of days that the Department had a right of entry and a range of activities
that the Department could undertake. (Maj. opn., ante, at pp. 8–9.) It was
uncertain at the time the order was entered how many days the Department would
actually enter each property, precisely what activities it would undertake, and
whether and to what extent those activities would damage the property or
substantially interfere with its use. Similarly, the extent of any taking or damage
to property resulting from the proposed geological testing activities was uncertain
5
at the time the trial court entered its order. In enacting an orderly process to
provide for both legitimate government testing activities and just compensation in
the face of such uncertainties, the Legislature addressed circumstances to which
the second sentence of article I, section 19(a) does not apply. Accordingly, the
Department was not required to commence classic condemnation proceedings
before conducting its testing activities. It could defer compensation to the
property owner in the manner provided in the precondemnation statutes.
In all other respects, I join the court‘s opinion.
LIU, J.
6
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Property Reserve, Inc. v. Superior Court
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 224 Cal. App. 4th 828
Rehearing Granted
__________________________________________________________________________________
Opinion No. S217738
Date Filed: July 21, 2016
__________________________________________________________________________________
Court: Superior
County: San Joaquin
Judge: John P. Farrell*
__________________________________________________________________________________
Counsel:
Matteoni, O‘Laughlin & Hechtman, Norman E. Matteoni, Gerry Houlihan; Kirton & McConkie and
Christopher S. Hill for Petitioner Property Reserve, Inc.
Freeman, D‘Aiuto, Pierce, Gurev, Keeling & Wolf, Thomas H. Keeling, Arnold J. Wolf; Nomellini, Grilli
& McDaniel and Dante J. Nomelini, Jr., for Petitioners Mark G. Scribner, Jr., Randy J. Baranek, Siara
Andrews, J.H. Jonson & Sons, Inc., Arnaudo Bros., Delta Wetlands Properties, The 2000 teVelde Family
Trust, The Biagi Living Trust Agreement, The Carolyn Nichols Revocable Living Trust dated 12/09/1999,
Carolyn A. Nichols as Trustee, Venice Island, Coney Island Farms, Inc., Robert A. DalPorto, Jr., Islands,
Inc., Richard Brann as Trustee, S.S. & S.M. Oates Family Trust, Wilson Vineyard Properties, Eileen V.
Nichols Revocable Living Trust dated 12/09/1999, Eileen V. Nichols as Trustee, Victoria Island, L.P.,
Lucille L. Christensen Family Trust dated 8/31/2004, Lucille J. Christensen as Trustee, Smith and Karen
Cunningham, Zuckerman Mandeville, Inc., and Heritage Land Co., Inc.
Downey Brand and Scott D. McElhern for Petitioners CCRC Farms, LLC and Tuscany Research Institute.
Somach Simmons & Dunn, Stuart L. Somach and Daniel Kelly for Petitioners Sutter Home Winery, Inc.,
and Delta Ranch Partnership.
J. David Breemer and Jonathan Wood for Pacific Legal Foundation as Amicus Curiae on behalf of
Petitioners.
Luke A. Wake; Damon Key Leong Kupchak Hastert, Robert H. Thomas; Manatt, Phelps & Phillips and
Edward G. Burg for Owners‘ Counsel of America and National Federation of Independent Business Small
Business Legal Center as Amici Curiae on behalf of Petitioners.
*Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
Page 2 – S0217738 – counsel continued
Counsel:
Jenny & Jenny and Scott E. Jenny as Amici Curiae on behalf of Petitioners.
Nancy N. McDonough and Kari E. Fisher for California Farm Bureau Federation as Amicus Curiae on
behalf of Petitioners.
No appearance for Respondent.
Kamala D. Harris, Attorney General, Steven M. Gevercer and Kristin G. Hogue, Assistant Attorneys
General, Alberto González, John M. Feser, Jr., Michael P. Cayaban, James C. Phillips, Neli N. Palma and
Gregory D. Brown, Deputy Attorneys General, for Real Party in Interest.
Jeanne Scherer, David Gossage and Lucille Y. Baca for California Department of Transportation as
Amicus Curiae on behalf of Real Party in Interest.
Meyers, Nave, Riback, Silver & Wilson and David W. Skinner for League of California Cities, California
State Association of Counties and Association of California Water Agencies as Amici Curiae on behalf of
Real Party in Interest.
Woodruff, Spradlin & Smart, Gary C. Weisberg and Laura A. Morgan for Orange County Transportation
Authority as Amicus Curiae on behalf of Real Party in Interest.
Stephanie D. Morris for State Water Contractors as Amicus Curiae on behalf of Real Party in Interest.
Best, Best & Krieger, Stefanie D. Hedlund and Kendall H. MacVey for Riverside County Transportation
Commission as Amicus Curiae on behalf of Real Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Norman E. Matteoni
Matteoni, O‘Laughlin & Hechtman
848 The Alameda
San Jose, CA 95126
(408) 293-4300
Thomas H. Keeling
Freeman, D‘Aiuto, Pierce, Gurev, Keeling & Wolf
1818 Grand Canal Boulevard, Suite 4
Stockton, CA 95207
(209) 474-1818
Gregory D. Brown
Deputy Attorney General
1300 I Street
Sacramento, CA 95814
(916) 445-2482