Remember the Property Reserve case in which the California Supreme Court came up with a let’s say … creative solution to the conundrum of precondemnation entries?

For the uninitiated, these are where an entity with the power of eminent domain (the government or a delegee of the power) may enter private property to inspect and survey, to see whether the land is suitable for acquisition. Some of these intrusions on the owner’s right to exclude are relatively minor and not deemed takings, while other, more disruptive intrusions are takings in themselves. Some states require that the entering party provide some kind of compensation, while others let the entering party off the hook entirely

In Property Reserve, the California court held that the precondemnation entries for a big water infrastructure project were intrusive enough to constitute takings in themselves. But the court also held that even though this effected a taking, the entering party did not have to adhere to all of California’s eminent domain procedures, even though the California Constitution expressly requires a jury trial in takings cases. The precondemnation entry statute lacked any jury requirement. Uh oh.

But the Property Reserve court “saved” the precondemnation entry statute from unconstitutionality by judicially rewriting it, holding that it required a jury trial even though there is no such requirement in the statute. And that the entering entity had no obligation to exercise eminent domain for these takings, and could enter and wait for the owner to sue for inverse.

With that background, here’s the latest chapter of that fight.

In Department of Water Resource Cases, No. C103207 (Mar. 26, 2026), the Third Appellate District rejected the owner’s claim that to enter property there must be a project to which the entry is tied. You can’t come on my property because without a project and a plan with authorization and funding, this is just a fishing expedition. No held the court, the whole point of precondemnation entries is to see whether a project involving your property might be worthwhile. One of the major reasons for authorizing precondemnation entries is to allow a potential condemnor to evaluate whether the land is suitable for a future project or taking:

DWR need not commence a classic condemnation action, or comply with the “authorization and funding” requirements of Water Code sections 250 and 11580, before conducting precondemnation testing activities, irrespective of whether the activities will result in a taking or damaging of property. To conclude otherwise would be inimical to the purpose of the precondemnation entry and testing procedure, which is designed to “enable the public entity to determine whether or not the property is suitable and should be acquired for a public project.”

Slip op. at 3.

We were all set to dive in and offer up our deep analysis of the decision and its practical impacts, when our colleagues at Nossaman’s Eminent Domain Report beat us to the punch. In “Property Reserve Redux: Do Statutory Conditions on the Power to Condemn Apply to Precondemnation Entries?,” Robin Thornton writes that the court “rejected landowners’ arguments that the Department of Water Resources must meet additional statutory conditions (specifically, as noted at Water Code sections 250 and 11580), that require project authorization and funding, before it may invoke the precondemnation entry statutes.”

We recommend you read her post and analysis.

Department of Water Resource Cases, No. C103207 (Cal. Ct. App. Mar. 26, 2026)