In a pleasant surprise for property owners in California, the Third District Court of Appeal ruled last week in Property Reserve v Superior Court that the state must initiate eminent domain proceedings before it can drill and fill bore holes on private property. The issues in the case were fairly straightforward, but may have larger consequences for the proposed Delta Tunnels..
Recently, the state began conducting geological tests on various properties in order to determine what properties the proposed underground water tunnel from Sacramento-San Joaquin River Delta to Central and Southern California will pass through once completed. While such activities may sound innocuous, they are actually quite involved. To test a property, government officials and equipment must remain on the property for up to sixty days. During that time, state officials trap animals take soil samples, and then finally, bore 200 feet tunnels into the properties’ soil and fill those tunnels with permanent concrete.
One hundred fifty property owners affected by this process brought suit arguing that these “testing” activities constitute a taking of private property, and that they should be compensated for the loss of their property in eminent domain. To any first year law student, it is pretty obvious that the property owners should have won. The United States Supreme Court has repeatedly made clear that when the government physically occupies private property, that occupation constitutes a taking and the property owner must be compensated. This remains true even if the physical occupation is small. Most famously, in Loretto v. Teleprompter Manhattan CATV Corp, the Supreme Court held that a law requiring the installation of a small cable box on private property was a taking.
However, California law can often stray from the broad principles taught to first year law students. So this ruling should come as a relief to property owners.
In the coming days, there will likely be some negative things said about this opinion. After all, requiring the government to initiate eminent domain proceedings on various properties before it can determine the placement of the Delta Tunnels may slow the completion of the project. Such complaints should be taken with a grain of salt. The protection of constitutional rights is always “inconvenient” and “expensive” for government. Such delays are the price of freedom. This court merely said that the government has to play by the rules when dealing with property owners. There is nothing radical about that.
The Sacramento eminent domain lawyers at Kassouni Law have been involved in many seminal Constitutional property rights matters, having set legal precedents for clients throughout California and the United States. This experience makes Kassouni Law one of the leading land use and property rights law firms in the state of California. If you have an eminent domain question or concern, contact the Sacramento eminent domain lawyers by calling 877-770-7379.
