Update: Here's a story on the case from the Sacramento Bee ("State Supreme Court to rule in Delta property-rights case"). See also "Property Reserve on Hold: Supreme Court to Review Eminent Domain Right of Entry Statutes" from Brad Kuhn at the California Eminent Domain Law Report.
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Thanks to our New York colleague Mike Rikon at Bulldozers at Your Doorstep, we've come to learn that on June 25, 20154, the California Supreme Court agreed to review a very important eminent domain case, Property Reserve, Inc. v. Superior Court, 224 Cal. App. 4th 828 (2014).
That's the case in which the Court of Appeal held that California's entry statute (Cal. Civ. Pro. Code § 1245.010 et seq.), was unconstitutional because it allowed an uncompensated taking. We summarized the Court of Appeal opinion here.
California's entry statute is much like similar provisions in other states' eminent domain codes, and generally allows a condemnor to enter land in anticipation of a taking in order to conduct surveys, studies, and the like. For an example, see Hawaii's version:
Any agent or servant of a plaintiff may, for the purpose of locating or surveying land to be condemned in accordance with this part, enter upon the land and make examinations and surveys. The entry shall not constitute a cause of action in favor of the owner of the land, except for damages resulting from wilful acts or negligence on the part of the agent or servant.
Haw. Rev. Stat. § 101-8.
The Court of Appeal concluded that in order to enter the land and undertake geological survey activities, the state must first have condemned it and paid for it by following the eminent domain procedures:
The 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.
Slip op. at 20. In other words, no matter how small the interest, if the government wants to take property, it must condemn and pay for it first, by following the usual emient domain process (including a jury trial to determine compensation). The Supreme Court agreed the review the following issues:
The petition for review is granted. The issues to be briefed and argued are limited to the following: (1) Do the geological testing activities proposed by the Department of Water Resources constitute a taking? (2) Do the environmental testing activities set forth in the February 22, 2011 entry order constitute a taking? (3) If so, do the precondemnation entry statutes (Code Civ. Proc., §§ 1245.010-1245.060) provide a constitutionally valid eminent domain proceeding for the taking? Votes: Cantil-Sakauye, C.J., Baxter, Werdegar, Chin, Corrigan and Liu, JJ.
Mike has a more detailed background on the case and the issue. Will we be following this case and posting the briefs? You bet.
We conclude with a sidebar: a review of the docket shows one of those weird California-isms, the term "doghouse" as in "C067758 - two doghouses (volumes 2 and 3) C068469 - five doghouses (volumes 2-6) C067765 - two doghouses (volumes 2 and 3)." In case your courts do not use a similar term (and we are unaware of any that do), here's the story on "doghouse."
