CANTIL-SAKAUYE, C. J. —
In an effort to improve the reliability of the water supply system in California as well as to address environmental and ecological concerns, the Department of Water Resources (hereafter, the
In pursuing the proposed studies and testing, the Department proceeded through the specific statutory procedure established by the Eminent Domain Law (Code Civ. Proc., pt. 3, tit. 7, § 1230.010 et seq.) relating to precondemnation entry and testing (Code Civ. Proc., §§ 1245.010-1245.060).
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 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.
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
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 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.
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.
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 (Pub. Resources Code, § 21000 et seq.), the National Environmental Policy Act of 1969 (42 U.S.C. § 4321 et seq.), the California Endangered Species Act (Fish & G. Code, § 2050 et seq.), the federal Endangered Species Act of 1973 (16 U.S.C. § 1531 et seq.), the federal Clean Water Act of 1977 (Pub.L. No. 95-217 (Dec. 27, 1977) 91 Stat. 1566), and the Porter-Cologne Water Quality Control Act (Wat. Code, § 13000 et seq.).
Between 2008 and 2009, the Department filed more than 150 separate petitions in superior court pursuant to section 1245.030, seeking entry onto
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 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
In brief summary, the order authorized Department employees to enter each property
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
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.
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,
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 worksite
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 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."
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
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.
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 Eminent Domain Law. (§§ 1245.010-1245.060.)
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 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 particular 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.)
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." (§ 1245.040.)
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 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 California 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). [¶] (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
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 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.
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 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 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
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 former 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 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." (The Code Civ. Proc. of the State of California (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. (See 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
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 the 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 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
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 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 Hastings 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)].)
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 Relating to 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 (id. 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. (1963) p. 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."]).
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 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
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 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 California 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 (Code Civ. Proc., tit. 7, ch. 4, art. 1), containing the current precondemnation entry and testing statutes — sections 1245.010 to 1245.060 — that we have set forth above. (See ante, pp. 174-177.)
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?
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."
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."
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, 1974) analysis of Prop. 7 by Legis. Analyst, p. 26; Recommendation and Study Relating to Taking Possession and Passage of Title in Eminent Domain Proceedings (Oct. 1960) 3 Cal. Law Revision 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
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 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),
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. (Jacobsen, supra, 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 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.
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 Hastings L.J. at pp. 509-511.) Further, as we have noted, both the California 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 Hastings 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.
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."
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 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.
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
(ii) Need for a classic condemnation action?
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
As already observed (ante, p. 189), 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
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 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." (Cal. Const., art. I, § 19, subd. (a).) 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,
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.
We note that the overwhelming majority of judicial decisions in other states have upheld statutory provisions that authorize precondemnation entry and 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.,
(iii) Adequate measure of damages?
Like the concept of just compensation under the federal takings clause (ante, pp. 185-186), 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 [31 Cal.Rptr. 316, 382 P.2d 356].)
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
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. Otay Mesa Property, L.P. v. U.S. (Fed.Cir. 2012)
(b) Does the environmental order violate the takings clause by failing to provide for a jury trial on damages?
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 damage 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.
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).
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 [73 L.Ed.2d 868, 102 S.Ct. 3164] (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 one 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 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
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
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 statutes do not on their face violate the federal takings clause. (See ante, pp. 186-187.)
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 328, 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
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.
Werdegar, J., Chin, J., Corrigan, J., Cuéllar, J., and Kruger, J., concurred.
LIU, J., Concurring. —
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
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 property without first paying the owner, so long as certain protections enacted by the Legislature are observed. (Maj. opn., ante, at pp. 201-202 ["[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. 201, 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 [86 P.2d 372].) 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, subd. (b).) 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 [54 Cal.Rptr.3d 752, 151 P.3d 1166].) 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. 1963, ch. 70, § 1, p. 698; Code Civ. Proc., former § 1243.4, added by Stats. 1961, ch. 1613, § 1, p. 3442; Code Civ. Proc., 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
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. 188-189, 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 proceeding. (Maj. opn., ante, at p. 201, 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 p. 201, fn. 20, citing Recommendation Proposing The Eminent Domain Law (Dec. 1975) 13 Cal. Law Revision Com. Rep. (1976) p. 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].)
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 p. 170.) 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 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
In all other respects, I join the court's opinion.
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.)
The concurring opinion maintains that the term "eminent domain proceedings" in the second sentence of article I, section 19 of the California Constitution 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 entry and testing statutes, which define a different type of eminent domain proceeding — so long as the same procedural protections apply.
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.)
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" (Ricards, supra, 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.)