When the Constitution Trumps Eminent Domain Statutory Law

An important issue that comes up repeatedly in eminent domain cases is the superiority of the constitutional requirement of Just Compensation over eminent domain statutes.  California’s Eminent Domain statutes allow a governmental agency to investigate property before taking it in eminent domain.  Under the statutes, the government can make borings, take samples or “engage in similar activities reasonably related to acquisition or use of the property” for the government’s project.  A California appellate court, however, has held that the constitutional requirement of Just Compensation trumps these statutes when the government’s activity itself is a taking of property, even though a small one.  In Property Reserve v. Superior Court (a published decision filed on march 13, 2014), the court held that the government cannot conduct such activities until it files an eminent domain action and pays Just Compensation.  Any such activity before condemnation is unconstitutional even though the statutes permit it.  The Property Reserve decision does NOT undercut these statutes completely, however.  The government may still generally investigate property for a project before filing an eminent domain suit (including taking photographs, surveys, and inspections) so long as those activities do not themselves involve a taking for which Just Compensation must be paid.  If you have any questions, call Callanan, Rogers & Dzida, LLP, for a free consultation.

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