Court Rejects Statute Allowing Court Ordered Entry Onto Private Property by Public Agencies for Pre-Acquisition Testing

California Eminent Domain Law allows public agencies to obtain a court order permitting access onto private property to conduct pre-acquisition testing and inspections.  These tests and inspections can help an agency determine whether particular property is appropriate and necessary for a public project.  In Property Reserve, Inc. v. The Superior Court of San Joaquin County, Department of Water Resources (March 13, 2014, C067758) — Cal.App. 4th —-, the Court of Appeal sided with property owners by holding that such access results in a taking of property, and the statutes allowing access do not comply with the California Constitution.


The State of California has begun a controversial project to build a tunnel through the Sacramento-San Joaquin River Delta to transport water from north to south.  As part of the project planning, the State requires access to hundreds of parcels of property to determine if the parcels are environmentally and geologically suitable for use in the project.  When numerous landowners refused to allow the State to enter onto their property, the State sought orders permitting access on more than 240 parcels of land owned by more than 150 owners.

Code of Civil Procedure section 1245.010, et seq., allows a public agency to obtain a court order permitting access onto property to conduct pre-acquisition testing and inspections.  The court can enter such orders prior to the filing of any condemnation action.  As part of any such order, the court must require the public agency to deposit money to provide probable compensation for any actual damages or substantial interference with property access or use.

Based upon this statute, the State sought entry onto multiple parcels to conduct geological tests, including the drilling of holes to depths of 200 feet and then filling such holes with a concrete mixture, but the trial court denied the State's request.  The State also sought entry onto various parcels to conduct environmental studies, and the trial court effectively granted the State a blanket temporary easement for one year allowing personnel to be on the properties for up to 66 days with up to eight personnel per entry.  The trial court conditioned the orders on the State's deposit of  $1,000 to $6,000 per owner representing the probable amount necessary to cover actual damages and substantial interference with the owner's possession and use of the property. 

The State appealed the denial of the order to allow geological testing, and the property owners appealed the granting of access for the environmental studies.   


In a decision with one Justice dissenting, the Court of Appeal upheld the trial court's ruling refusing to allow geological testing, but also reversed the trial court's order allowing access for the environmental studies.  The court determined that the geological testing activities will intentionally result in a permanent physical occupation of the private property.  Such occupation constitutes a taking per se, and the State must exercise its eminent domain authority and directly condemn the property before it can perform the geological testing activities. 

The access orders for environmental studies also constitute a taking since the State has intentionally acquired a temporary property interest of sufficient character and duration to require compensation.  Although not permanent, "the State intends to invade the landowners' properties and to perform authorized activities.  The invasions are the foreseeable result of authorized government action.  These invasions will happen not just once, but are intended to occur up to 66 days over a one year period by as many as eight people at a time per owner.  This is a significant intentional invasion of private property."  Consequently, "[i]n short, if the State intends to take and use a temporary easement, it must directly condemn it."

The court also determined that the statutory pre-condemnation entry procedures are not adequate to address the takings.  Section 19(a) of the California Constitution requires a public agency to directly condemn the property it proposes to take through an authorized condemnation suit in which the property owner receives all of his or her constitutional protections.  These protections include the right to payment of fair market value for the property taken, a determination of just compensation by a jury, and a noticed hearing on any petition.  The challenged statutory provisions do not constitute an eminent domain proceeding and fail to provide these protections as required by the Constitution.

What This Means To You

Given this decision, the ability of a public agency to obtain a court order allowing for pre-condemnation access and testing has been cast in doubt.  Property owners are in a stronger position to deny access unless and until the public agency files a condemnation action and follows the acquisition procedures of eminent domain law.  This decision, however, does not prevent a public agency and a property owner from entering into a voluntary agreement allowing for access and testing.


If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.   

William T. Chisum or Jennifer A. Scott | 916.321.4500

Jon E. Goetz | 805.786.4302