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Property Reserve, Inc. v. Superior Court (Department of Water Resources)

California Court of Appeals, Third District, San Joaquin

March 13, 2014

PROPERTY RESERVE, INC., Petitioner,
v.
THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent DEPARTMENT OF WATER RESOURCES, Real Party in Interest. CAROLYN A. NICHOLS, as Trustee, etc., et al., Petitioners,
v.
THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; DEPARTMENT OF WATER RESOURCES, Real Party in Interest. DEPARTMENT OF WATER RESOURCES CASES.

[REVIEW GRANTED BY CAL. SUPREME COURT]

APPEAL from a judgment of the Superior Court of San Joaquin County JCCP No. 4594 and ORIGINAL PROCEEDINGS in mandate and prohibition. John P. Farrell, Judge. (Retired judge of the L.A. Sup.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part, and petitions granted.

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COUNSEL

Matteoni, O’Laughlin & Hechtman, Norman E. Matteoni, Gerry Houlihan; Kirton & McConkie and Christopher S. Hill for Petitioner Property Reserve, Inc.

Freeman, D’Aiuto, Pierce, Gurev, Keeling & Wolf, Thomas H. Keeling, Arnold J. Wolf; Downey Brand, Scott D. McElhern; Nomellini, Grilli & McDaniel, Dante J. Nomellini, Jr.; Somach Simmons & Dunn and Daniel Kelly for Petitioners Carolyn A. Nichols et al.

No appearance for Respondent.

Kamala D. Harris, Attorney General, Steven M. Gevercer, Assistant Attorney General, Alberto González, John M. Feser, Jr., Michael P. Cayaban, and James C. Phillips, Deputy Attorneys General, for Real Party in Interest.

Best Best & Krieger and Stefanie D. Hedlund for State Water Contractors as Amicus Curiae on behalf of Real Party in Interest.

OPINION

NICHOLSON, J.

This case tests the strength of the constitutional rights granted landowners against the state’s authority to take private property. The State of California (the State) seeks to build a tunnel to transport water from the north to the south. Before condemning the land needed for the project, it desires to study the environmental and geological suitability of hundreds of properties on which the tunnel may be constructed. The difficulty here is that those precondemnation activities may themselves be a taking; an intentional taking the California Constitution has always required to be directly condemned in a condemnation suit brought by the condemnor that provides the affected landowners with all of their constitutional protections against the exercise of eminent domain authority, including the determination by a jury of just compensation for the value of the property interest intentionally taken.

Pursuant to a statutory procedure that purports to authorize these precondemnation activities, the State petitioned the trial court for orders to enter the affected private properties and conduct the studies. For the geological studies, the State requested authority to enter the properties and conduct borings and drillings in the ground that would leave permanent columns of cement in the bored holes up to depths of 200 feet. The court denied the State’s petition for the geological activities. It ruled these activities constituted a taking, and they

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could be authorized only in a direct condemnation action, not by the precondemnation procedure.

The trial court, however, granted the State’s petition to enter the affected properties to conduct environmental studies. It effectively granted the State a blanket temporary easement for one year, during which the State may enter the properties and conduct its studies for up to 66 days during the year with up to eight personnel each entry. The court concluded such access and the environmental activities to be performed did not work a taking. As required by the statutory procedure, the court conditioned the environmental entries on the State depositing an amount of money the court determined to be the probable amount necessary to compensate the landowners for actual damage to, or substantial interference with their possession or use of, their properties, which the State’s activities may cause.

The State appealed from the trial court’s denial of its petition to conduct the geological activities. The gist of the State’s appeal has been the court erred in denying the geological petition and the State can perform the activities under the statutory precondemnation procedure, but the State’s arguments for why it believes the court erred have changed and contradicted each other throughout this litigation such that its latest concession defeats its appeal.

The landowners petitioned and appealed for relief from the trial court’s granting the State authority to conduct the environmental activities. They claimed the court erred in granting the environmental petition because the entries constitute a taking that cannot be acquired through the statutory entry proceeding but must instead be directly condemned in a condemnation suit.

We conclude both the geological activities and the environmental activities as authorized will work a taking. The geological activities will intentionally result in a permanent physical occupation of private property, defined constitutionally as a taking per se. The environmental activities will work a taking because they intentionally acquire a temporary property interest of sufficient character and duration to require being compensated.

We also conclude the statutory precondemnation procedure cannot be used to accomplish these intentional takings. If an entity with the power of eminent domain intentionally seeks to take property or perform activities that will result in a taking, the California Constitution requires that entity to directly condemn the affected property interest in an authorized condemnation suit it brings and in which a landowner receives all of his constitutional protections against eminent domain. The statutory precondemnation procedure does not provide such a suit, as it fails to authorize the determination of

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the value of the property interest intentionally sought to be taken and to do so in a noticed hearing, and it fails to provide for a jury determination of just compensation in that hearing.

Eminent domain authority must be exercised in strict conformity to the constitutional protections and procedures that limit its operation. If a condemnor intends to take private property or intends to perform actions that will result in the acquisition of a property interest, permanent or temporary, large or small, it must directly condemn those interests, and pay for them, in a condemnation suit that provides the affected landowner with all of his constitutional protections against the state’s authority. Based on that fundamental state constitutional doctrine, we affirm the trial court’s order denying entry to conduct the geological activities, and we reverse the order granting entry to conduct the environmental activities.

FACTS

The State proposes to construct a tunnel or canal to divert fresh water from Northern California around the Sacramento-San Joaquin River Delta to Central and Southern California. To pursue the proposal, the State, by and through the Department of Water Resources, sought to conduct surveys, tests, and borings on parcels of land that could potentially be acquired for locating and constructing the project. In 2009, the State filed numerous petitions pursuant to Code of Civil Procedure section 1245.010 et seq. (referred to as the entry statutes) for orders for entry to conduct the studies and borings. Ultimately, the petitions were judicially coordinated, and the State filed a master petition to obtain the rights of entry. The coordinated proceedings affect more than 150 owners of more than 240 parcels in San Joaquin, Contra Costa, Solano, Yolo, and Sacramento Counties.

The properties, totaling tens of thousands of acres, are used primarily for various commercial agriculture enterprises, cattle ranching, and recreation. Many of the parcels are improved with residences, barns and other out buildings and storage facilities, wells and irrigation systems, utilities, roads, and other infrastructure. Many are also encumbered with easements in favor of various public utilities, including reclamation districts that maintain levies on the properties.

With its master petition, the State sought entry onto these properties for the following precondemnation purposes: “(1) to investigate potential impacts of a water conveyance system to, among other things, biological resources, water resources, environmental resources, geology, archeology and utilities found on the Subject Properties; (2) to investigate the feasibility of alternative

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types of water conveyance systems, the best alternative conveyance alignment location, and the best alternative corridor location within each alternative conveyance alignment location; (3) to investigate the various types of conveyance systems, including surface level canals, surface level pipelines, and buried tunnels; (4) to investigate conveyance alternative locations, including a west alignment, a through-Delta or dual alignment, and an east alignment, and (5) to investigate whether a water conveyance system should be constructed in the Delta.”

The State sought authority to conduct what it designated as two general categories of precondemnation activities: environmental activities and geological activities. It sought to conduct the environmental activities on all of the parcels in the coordinated action, and to conduct the geological activities on selected parcels. It alleged the activities would require entry for a total of 60 intermittent 24-hour days spread over a period of two years for each of the parcels.

In general, the environmental activities consisted of various surveys to determine and document each parcel’s botany and hydrology; the existence of sensitive plant and animal species; the existence of vernal pools, wetlands, and other animal habitat; the existence of cultural resources and utilities; and the parcel’s recreational uses. Personnel would also map the properties using aerial photography and large targets secured by stakes. Personnel would take minor soil samples, and they would observe and trap certain animal species. They would access the properties by motor vehicle, on foot, and by boat when necessary.

The geological activities involved various soil testing and boring activities that would affect 35 parcels. One type of test involved inserting a one and one-half-inch diameter rod into the ground up to a depth of 200 feet to learn various soil characteristics. Another test involved boring into the ground up to a depth of 205 feet, creating a hole roughly six inches in diameter, and removing soil cores and samples for review and testing. The holes created by both types of tests would be filled with a permanent cement/bentonite grout.

The trial court bifurcated the proceeding and conducted separate hearings on the petitions to enter and conduct the environmental activities and the geological activities. On February 22, 2011, it issued an order, referred to by the parties as the entry order, granting the State’s petitions to enter the parcels and conduct the environmental activities, subject to a number of conditions. In its order, the court noted it had taken “due consideration of constitutional limitations and statutory procedures required for a taking of property, ” and that it had “provided suitable limitations to strike the best possible balance between the needs of [the State] and the interests of the property owners.” It

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ordered the State to deposit $1, 000 to $6, 000 per owner based on the amount of property owned as probable compensation for actual damages or substantial interference with the owner’s use or possession of his property the entries would cause.

On April 8, 2011, the trial court denied the State’s petition to conduct the geological activities on any of the properties. It ruled the activities constituted a taking or damaging, and the entry statutes were unconstitutional if used to take or damage property. The court stated the State had conceded its geological borings would result in a taking or damaging of property, and the court so found. It further found that the entry statutes did not comply with article I, section 19, subdivision (a), of the California Constitution (article I, section 19(a)), the state constitutional provision limiting the use of eminent domain, and thus they could not be used to authorize the State’s proposed taking or damaging of property. The entry statutes failed to satisfy article I, section 19(a) because the court proceeding they authorized was not an “eminent domain proceeding” as referenced in article I, section 19(a) that provided the affected landowners with all of their constitutional rights against the State’s exercise of eminent domain authority, including the right to a jury determination of just compensation.

Challenges to the court’s rulings came from both sides. Landowners filed two petitions for writs of mandate, prohibition, or other appropriate relief in this court seeking reversal of the trial court’s entry order authorizing the environmental activities. They contended the entry order unlawfully authorized a taking of private property in violation of article I, section 19(a) and its requirement that a taking occur only after commencement of an eminent domain proceeding. Our court initially denied the petitions, but the Supreme Court granted review and directed us to issue an order to the State to show cause why the writs should not issue. We issued that order on July 19, 2011.

Meanwhile, the State appealed from the court’s judgment denying entry for the geological activities. The State claims the trial court erred in denying entry, but, as we will explain below, its arguments of why the court erred have changed throughout this action. The landowners also filed appeals from the judgment, again challenging the environmental entry order as an unconstitutional taking and raising additional procedural issues.

We stayed the entry order and consolidated the writ petitions and the appeals for hearing and decision.

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DISCUSSION

I

The State’s Appeal

The State contends the trial court erred when it denied its petition to perform the geological activities. However, its arguments for why it believes the court erred have changed, and contradicted each other, throughout the course of this litigation to the point that its latest concession defeats its appeal. The issues it raised in its appeal, however, are questions of law affecting significant government and public interests that will arise again. Accordingly, besides deciding the State’s appeal on its concession, we also address those important issues by resolving the following questions of law based on undisputed facts: first, do the geological activities constitute a taking; and, second, if so, do the entry statutes provide an eminent domain proceeding for a direct condemnation in which the affected landowners receive all of their constitutional rights against the State’s exercise of its eminent domain authority?

We conclude, as the State earlier conceded, the geological activities will work a taking per se, as they will result in a permanent occupancy of private property. As a result, the State must exercise its eminent domain authority before it can perform the geological activities.

We also conclude, as the State most recently conceded, the entry statutes do not provide a constitutionally valid eminent domain proceeding by which the State can take the landowners’ property interests to accomplish the geological activities. This is because the proceeding, as a matter of California constitutional law, does not provide for a condemnation suit in which the landowners receive all of their constitutional rights against the State’s exercise of its eminent domain authority, including the right to a jury determination of just compensation for a direct and permanent taking.

We first explain how the geological activities constitute a taking. We then explain the constitutional doctrines that govern the entry statutes and show why the latter do not conform to the former when a taking such as this is sought by the state.

A. The geological activities will work a taking per se

1. Additional background information

There is no dispute the geological activities will result in permanent structures being placed in the ground on the affected landowners’ properties.

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In a declaration accompanying the State’s petition for the entry order, a supervising land agent for the State testified the geological activities would necessitate compensation to the affected landowners.

At the evidentiary hearing on the petition, expert witnesses explained that the geological activities would involve two main types of activities. The first is referred to as cone penetrometer testing (CPT). For this test, operators push a rod into the ground up to a depth of 200 feet. CPT provides a mechanical measurement of the force on the front of the tip of the rod being pushed into the ground, and the friction it incurs while being pushed down. It also accommodates an electrical measurement of the soil’s weight velocity. After the test is complete, the rod is withdrawn, and the hole, about one and one-half inches in diameter, is filled with a permanent grout made up of 95 percent cement and five percent bentonite.[1]

A CPT can take up to 10 hours to perform, plus an additional two days for meeting landowners and setting up the equipment. It involves the use of a CPT truck, a support truck, a trailer, two operators, a geologist with his truck, and an environmental scientist with his truck.

The second geological activity is boring. For this, operators will bore into the ground to depths of up to 205 feet. Soil samples and cores will be removed and tested. Bore holes will be approximately six inches in diameter. Each boring will remove up to 2.04 cubic yards of earth, which will be replaced by a column of near equal volume of permanent cement/bentonite grout. Operators will fill the hole with the grout, which dries and settles a bit, and they will cover the remainder of the hole with soil. If requested by the landowner, they will fill the hole up to two feet from the surface with the grout, and cover the remainder. Significant amounts of mud for drilling would also be injected into the bore holes as part of the boring, recovered, and removed from the sites.

The boring would require use of a drill rig, a support truck for transporting personnel and samples, occasionally a forklift and containers or drums for mud, and personnel. Each bore site would occupy 10, 000 square feet of land. Conducting the boring would require up to 10 days per hole.

The State proposed to conduct 46 CPT’s and bore 41 holes across a total of 35 parcels. Some parcels would incur only one hole for one of the tests, others would incur up to a total of nine holes.

In supplemental briefing in the trial court, the State conceded the geological activities would constitute a compensable taking or damaging. It conceded

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“the geological borings and boring backfill activities it seeks to conduct constitute a ‘taking or damaging’ of private property for public use.” In a supplemental posthearing brief filed in the trial court, the State attempted to modify its concession by stating the geological activities would constitute a compensable damaging, but not a taking. This was because the geological activities allegedly would not substantially interfere with the landowners’ possession or use of their property or cause any economic impact to them.

At oral argument here, the State asserted the geological activities did not constitute a taking and thus need not have been performed pursuant to its eminent domain authority.

2. Analysis

As originally conceded by the State, the geological activities will work a taking. They would result in a permanent physical occupation by the government removing earth from the parcels and filling the CPT holes and bore holes with permanent column of cement/bentonite grout to depths of up to 205 feet. “[A] permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve.” (Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419, 426 [73 L.Ed.2d 868, 876, 102 S.Ct. 3164] (Loretto).)

In Loretto, the United States Supreme Court determined a state statute that authorized a cable television carrier to attach a cable and two cable boxes on the roof of a residential apartment building worked a taking per se. The high court wrote: “[W]e have long considered a physical intrusion by government to be a property restriction of an unusually serious character for purposes of the Takings Clause. Our cases further establish that when the physical intrusion reaches the extreme form of a permanent physical occupation, a taking has occurred. In such a case, ‘the character of the government action’ not only is an important factor in resolving whether the action works a taking but also is determinative.” (Loretto, supra, 458 U.S. at p. 426.) “[A] permanent physical occupation is a government action of such a unique character that it is a taking without regard to other factors that a court might ordinarily examine.” (Id. at p. 432, fn. omitted.) “[W]hen the ‘character of the governmental action, ’ [citation], is a permanent physical occupation of property, our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner.” (Id. at pp. 434-435.)

Quoting Professor Michelman, the Loretto Court stated: “ ‘The modern significance of physical occupation is that courts... never deny compensation for a physical takeover. The one incontestable case for compensation

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(short of formal expropriation) seems to occur when the government deliberately brings it about that its agents, or the public at large, “regularly” use, or “permanently” occupy, space or a thing which theretofore was understood to be under private ownership.’ [Citation.]” (Loretto, supra, 458 U.S. at pp. 427, fn. 5, quoting Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law (1967) 80 Harv.L.Rev. 1165, 1184, original italics.)

Significantly for our purposes, the Loretto court ruled the size of the permanent physical occupation had no effect on determining whether a taking had occurred. The cable equipment at issue in Loretto displaced only one and one-half cubic feet of space, less than the volume of earth to be removed and the permanent grout to be filled in each of the bore holes here, but the high court still held it to be a taking. (Loretto, supra, 458 U.S. at p. 438, fn. 16.) “[C]onstitutional protection for the rights of private property cannot be made to depend on the size of the area permanently occupied.” (Id. at p. 436, fn. omitted.) “[W]hether the installation is a taking does not depend on whether the volume of space it occupies is bigger than a breadbox.” (Id. at p. 438, fn. 16.) Indeed, “ ‘ “[an] owner is entitled to the absolute and undisturbed possession of every part of his premises, including the space above, as much as a mine beneath.” ’ ” (Id. at p. 437, fn. 13, quoting United States v. Causby (1946) 328 U.S. 256, 265, fn. 10 [90 L.Ed. 1206, 1212, 66 S.Ct. 1062, 106 Ct.Cl. 854].) "Our cases establish that even a minimal ‘permanent physical occupation of real property’ requires compensation under the [5th Amendment Takings] Clause. [Citation.]” (Palazzolo v. Rhode Island (2001) 533 U.S. 606, 617 [150 L.Ed.2d 592, 607, 121 S.Ct. 2448] (Palazzolo).)

The State’s proposed geological activities will work a taking, as they will result in a permanent occupancy of private property. The State proposes to bore holes in the ground between 100 and 205 feet deep with a diameter of up to six inches, remove the earth from those borings, and fill the holes with the permanent cement/bentonite grout. It also proposes to push a rod one and one-half inches in diameter to a depth of up to 200 feet, and then fill the resulting hole with cement/bentonite grout. The grout is comprised of 95 percent cement and five percent bentonite. The State’s expert witness described the grout as “a permanent physical” column of “hardened cement.”

Under Loretto, the State’s action will be a taking. Removing earth from private property and replacing it with a permanent, physical column of cement to depths of 205 feet is the type of physical invasion and occupation Loretto mandates must be acquired by eminent domain and compensated. The cement column destroys the landowner’s right to possess, use, and dispose of that property to the extent of the column’s size. It makes no difference that the top of the cement column may be covered by two feet of soil, will affect a

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small portion of each landowner’s property, may serve a beneficial purpose, or will have only minimal economic impact on the landowner. An intentional, permanent physical occupation by the government such as this is “of such a unique character that it is a taking without regard to other factors that a court might ordinarily examine.” (Loretto, supra, 458 U.S. at p. 432, fn. omitted.)

B. The entry statutes are not a constitutional eminent domain proceeding to acquire interests in private property directly

Having concluded the geological activities will work a taking per se, we must determine whether the State may exercise its eminent domain power and acquire interests in the landowners’ properties directly by means of the entry statutes. In other words, we must determine whether the entry statutes provide a constitutionally valid means to directly condemn property interests.

To be constitutionally valid, the entry statutes must at least provide the rights granted under article I, section 19(a) to affected landowners against the State’s exercise of eminent domain power. Section 19(a) consists of two sentences, and they read in full: “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.”

Here again, the State’s arguments have not been consistent. At trial, the State contended the entry statutes’ proceeding was not an eminent domain proceeding, but nonetheless could be used to acquire interests in private property because it provided landowners with all of their constitutional rights against the exercise of eminent domain.[2]

In its opening brief before us, the State continued to argue it could take or damage property under the entry statutes because they allegedly provided the affected landowners the constitutional rights guaranteed them under the first sentence of article I, section 19(a), including a jury determination of just compensation by means of allowing the landowners to file a new civil action to recover for the intentional taking. The State asserted the second sentence of Section 19(a) did not apply to the entry statutes because the latter did not commence an eminent domain proceeding.

The State has since changed its position twice. In supplemental briefing before us, the State conceded the entry statutes’ proceeding did not comply

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with the first sentence of article I, section 19(a), almost certainly because the proceeding did not provide for a jury determination of just compensation prior to the State entering the property. Instead, the State argued the proceeding complied with the second sentence of Section 19(a) because it was an eminent domain proceeding by which entry could be gained prior to a final determination of just compensation. The proceeding allegedly provided the landowners with all of their constitutional rights against the exercise of eminent domain power, including the determination of a probable amount of just compensation before the State entered the property, and the prompt release of that money. In this brief, the State said nothing about the right to a jury trial to determine just compensation.

At oral argument, the State changed its position again.[3] This time, it conceded the entry statutes did not authorize a taking because their procedures were not an eminent domain proceeding, as referenced in article I, section 19(a)’s second sentence. In other words, the State now claims the entry statutes may not be used to authorize precondemnation activities that result in a compensable taking of private property. Because we have determined the geological activities will work a taking per se, just as the State conceded in the trial court, the State’s latest concession, that the entry statutes may not be used to authorize a taking, ends the State’s appeal.

We treat the State’s concession at oral argument that the entry statutes do not provide a constitutionally valid eminent domain proceeding as binding for purposes of this appeal. (See Bell v. Tri-City Hospital Dist. (1987) 196 Cal.App.3d 438, 449 [241 Cal.Rptr. 796], disapproved on another ground in State of California v. Superior Court (2004) 32 Cal.4th 1234, 1244 [13 Cal.Rptr.3d 534, 90 P.3d 116].)

However, because the facial challenge to the entry statutes the State and the landowners originally disputed raises a question of significant public interest and law, we decide this case based on the State’s concession, but, as well, do so by also resolving the facial challenge. Whether the entry statutes provide an eminent domain proceeding that facially complies with the constitutional limits on the State’s exercise of eminent domain power is a question of first impression.

Generally, we assume the Legislature intended to adopt a constitutional statute, and where a statute is susceptible to two constructions, one of

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which will render the statute unconstitutional, we must adopt the meaning that, without doing violence to the statute’s language, renders the statute valid. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 509 [53 Cal.Rptr.2d 789, 917 P.2d 628].) However, that rule does not apply so broadly to statutes authorizing the use of eminent domain authority. “ ‘Statutory language defining eminent domain powers is strictly construed and any reasonable doubt concerning the existence of the power is resolved against the entity.’ [Citation.]” (Burbank-Glendale-Pasadena Airport Authority v. Hensler (2000) 83 Cal.App.4th 556, 562 [99 Cal.Rptr.2d 729].) The exercise of eminent domain authority “is strictly defined and limited by the express terms of the constitution or statute creating it.” (Jacobsen v. Superior Court (1923) 192 Cal. 319, 325 [219 P. 986] (Jacobsen).) In California, article I, section 19(a) is the “ ‘the exclusive and comprehensive authority in the California Constitution for the exercise of the power of eminent domain and for the payment of compensation to property owners when private property is taken or damaged by state or local government.’ ” (Historical Notes, 1D West’s Ann. Cal. Const. (2012 ed.) foll. § 19, p. 333.)

Consistent with these rules of review, we conclude the entry statutes’ proceeding does not facially satisfy the demands of article I, section 19(a) as it applies to an intentional taking. Section 19(a) limits the intentional exercise of eminent domain authority exclusively to the filing of a condemnation suit that provides the affected landowners with all of their constitutional rights against the State’s exercise of eminent domain authority in that suit, including a determination of the probable amount of just compensation for the acquisition of a property interest and the right to a jury determination of just compensation. The entry statutes’ proceeding is not such a condemnation suit.

1. Jacobsen

The starting point of our analysis is Jacobsen, supra, 192 Cal. 319. Despite its age, Jacobsen’sholding applies today: a condemnor may not engage in precondemnation activities that will work a taking or damaging unless it first files a condemnation suit that provides the affected landowner all constitutional rights against the state’s exercise of eminent domain. The facial challenge to the entry statutes asks us to determine whether the entry statutes’ procedure for taking or damaging property is such a suit. Because the parties disagree as to Jacobsen’s role in this matter, we discuss it at length.

In Jacobsen, a municipal water district sought private landowners’ consent to enter their properties to conduct borings and excavations to determine whether the properties would support a proposed reservoir. Personnel would bore holes three to eight inches in diameter and 150 feet in depth. They

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would also excavate pits four feet by six feet and up to 15 feet deep. Four men would be on the premises for 60 days to accomplish the work. At some locations, the work would damage or destroy growing crops. Upon completing the work, personnel would restore the lands to their original conditions. (Jacobsen, supra, 192 Cal. at pp. 321-323.)

When the landowners refused to consent to the entries, the district filed a complaint for injunctive relief to prohibit the landowners from preventing the district’s entry to conduct the work pursuant to the entry statute then in effect, Code of Civil Procedure former section 1242.[4] The trial court granted a temporary restraining order against the owners. It also ordered the district to deposit $1, 000 with the court as security for any damages the work might cause. Aggrieved by the judgment, the landowners petitioned the Supreme Court for a writ of prohibition. (Jacobsen, supra, 192 Cal. at pp. 322, 324.)

Defending the trial court’s order, the district argued the proposed work did not amount to a taking or damaging, but was instead expressly permitted by former section 1242. The high court was “unable to give [its] assent to either of these propositions.” (Jacobsen, supra, 192 Cal. at p. 324.)

The Supreme Court first described the landowners’ constitutional rights that limited a condemnor’s exercise of eminent domain power. That power “has always and everywhere been limited and safeguarded by express provisions of the constitutions and statutes of the several states and it has been uniformly held that being in invitum[5] and in derogation of the common right, its exercise is strictly defined and limited by the express terms of the constitution or statute creating it. [Citations.]” (Jacobsen, supra, 192 Cal. at p. 325, original italics.) Specifically, the constitutional requirement that private property not be taken without just compensation required “a proceeding in court in the nature of a condemnation suit wherein the necessity for the taking of the property for the alleged public use could first be litigated and determined and wherein also the damages resultant upon such taking could be ascertained and provided for. [Citation.]” (Ibid., italics added.)

Answering the district’s two primary contentions, the Supreme Court first ruled the proposed borings and excavations amounted “pro tanto”to a taking.[6] (Jacobsen, supra, 192 Cal. at p. 327, original italics.) The court stated: “It is idle to attempt to argue that such entry, occupation, disturbance, and destruction of the properties of these petitioners would not constitute

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such an interference with their exclusive rights to the possession, occupation, use, and enjoyment of their respective holdings as would amount to a taking and a damaging thereof to the extent and during the period of such entry upon said lands and of the operations of the corporation thereon.” (Id. at p. 328.)

As to the district’s second contention, the Jacobsen court ruled former section 1242 did not authorize a taking by its language, and also could not be read to authorize a taking without violating the landowners’ constitutional rights. Former section 1242 authorized the condemnor to enter 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.’ ” (Jacobsen, supra, 192 Cal. at p. 329.) The statute did not authorize the borings and excavations the district sought to perform prior to condemnation.

More significantly, even if former section 1242 had authorized borings, it did not provide landowners with their constitutional rights against the exercise of eminent domain, including the filing of a condemnation suit in which the validity of the taking and just compensation could be determined. Former section 1242 required a condemnation action to acquire the property being studied to have been filed before the condemnor entered the property to conduct its studies and tests, but even with a complaint already filed to condemn the property as so required, the high court ruled the entry statute still could not be used to authorize a taking. A separate condemnation suit had to be filed by the government to perform the entry. The Jacobsen court wrote: “But however this may be [referring to the requirement to file a condemnation action first], 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, italics added.)

In other words, if the precondemnation entry works a taking, “[t]he only means by which [the condemnor] can acquire such property without the owner’s consent is through the exercise of the right of eminent domain. 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. ([Cal. Const., art. I, former § 14, now see article I, section 19(a)].)” (Jacobsen, supra, 192 Cal. at p. 331,

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italics added & omitted.) Former section 1242 did not require the district to file a condemnation suit before entering private property to conduct its tests, and thus, the district’s attempt to work a taking by means of a complaint for injunctive relief based on former section 1242 instead of a condemnation suit with its attendant constitutional protections violated the landowners’ constitutional rights.

Of importance here, the Jacobsen court recognized that the California Constitution, in a precursor to article I, section 19(a)’s current second sentence, then authorized certain condemnors for reservoir purposes to take immediate possession of property before just compensation has been determined “ ‘upon first commencing eminent domain proceedings according to law in a court of competent jurisdiction and thereupon giving such security in the way of money deposits as the court in which such proceedings are pending may direct... to secure the owner of the property sought to be taken immediate payment of just compensation for such taking.’ This exception, ” wrote the Jacobsen court, “only serves to emphasize the otherwise general rule that no court in any other action or proceeding than an action in eminent domain has jurisdiction to order the taking or damage of private property for a public use.” (Jacobsen, supra, 192 Cal. at p. 331, italics added.) Both the acquisition of the property being studied, and the performance of the studies that will result in a taking, could be authorized only by separate actions in eminent domain.

Jacobsen thus sets the constitutional foundation for the issue we face. If the State desires to enter private property to conduct tests in a manner that will cause actual damage to the property or result in a taking, it can do so only by first filing a condemnation suit for that purpose and which provides in that suit all constitutional rights granted to a property owner against the State’s power of eminent domain.[7]

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2. The current entry statutes

Is the proceeding provided by the current entry statutes such a condemnation suit? The current entry statutes are the result of attempts by the Legislature to provide a precondemnation entry procedure that complies with the rule of Jacobsen.[8] In various entry statutes and government liability statutes enacted after Jacobsen and in the current entry statutes, the Legislature attempted to address both of the failings found by the Jacobsen court in former section 1242. First, the current entry statutes expressly authorize a condemnor to enter private property to conduct the activities the State seeks to conduct here. The condemnor may “enter upon property to make photographs, studies, surveys, examinations, tests, soundings, borings, samplings, or appraisals or to engage in similar activities reasonably related to acquisition or use of the property for [the proposed] use.” (§ 1245.010.)

Second, the State argued the current entry statutes purport to grant an affected landowner all of his constitutional rights that limit the State’s exercise of eminent domain power, protection Jacobsen found missing in former section 1242. At issue is whether the Legislature succeeded in its attempts to provide all of those constitutional rights to affected landowners subject to a direct taking by means of the entry statutes.

The entry statutes operate as follows: if the condemnor’s entry and activities on the property will cause “actual damage to or substantial interference with the possession or use of the property” (§ 1245.060, subd. (a)), the entry statutes require the condemnor, before making entry, to secure either the owner’s written consent or an order for entry from the superior court. (§ 1245.020.)

If the owner will not consent, the condemnor must petition the superior court for an order for entry and provide prior notice to the owner as the court directs. (§ 1245.030, subd. (a).) After notice has been given, the court must 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

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damage to the property and interference with its possession and use.” (§ 1245.030, subd. (b).) The entry statutes do not provide the landowner with a hearing on the petition.[9]

After making these determinations, the court may issue the order for entry, but it must prescribe the entry’s purpose and the nature and scope of the activities to be undertaken, and it must require the condemnor to deposit with the court the probable amount of compensation. (§ 1245.030, subd. (c).) A court may thus issue an entry order, and the entry may occur, before the landowners obtain a hearing to contest the order.

After subsequent notice and a hearing, the court may modify any provisions of the entry order, including increasing the amount of compensation to be deposited. (§ 1245.040, subd. (a).) If it increases the amount to be deposited, the court may direct that any further entry be stayed until the additional amount has been deposited. (§ 1245.040, subd. (b).)

If the condemnor’s entry and activities “cause actual damage to or substantial interference with the possession or use of the property, ” the owner may recover for that damage and interference either by filing a new civil action (§ 1245.060, subd. (a)), or by applying to the court for recovery from the funds the condemnor deposited with the court. (§ 1245.060, subds. (a), (c).)

If the owner applies to the court to recover from the funds on deposit, the court shall determine and award the amount the owner is entitled to recover and shall order it paid out of the deposit. (§ 1245.060, subd. (c).) If the funds on deposit are insufficient to pay the full amount of the award, the court “shall enter judgment for the unpaid portion.” (Ibid.)

The entry statutes do not provide a jury determination of just compensation if the landowner elects to apply to the court to recover the funds on deposit. If the landowner desires a jury to determine just compensation, he must file a new action against the state, and incur the costs and delays that inhere in any legal proceeding a citizen undertakes against the government. (§ 1245.060, subd. (a).)

Nothing in the entry statutes is to affect the availability of any other remedy the owner may have for the damage done to his property by the government or its agents. (§ 1245.060, subd. (d).)

3. Constitutional rights not provided in the entry statutes

The landowners claim the entry statutes do not provide all of the constitutional rights guaranteed them under article I, section 19(a) and Jacobsen.

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Specifically, they argue the entry statutes (1) do not provide for the acquisition of an interest in property, but provide only for probable damages for actual damage or interference; (2) do not provide for a jury determination of just compensation; (3) do not make the deposit of the probable amount of just compensation promptly available; and (4) are not an eminent domain proceeding, which they define as the formal condemnation action filed under the Eminent Domain Law (§ 1240.010 et seq.), in which the power of eminent domain may be exercised.

We agree with two of the landowners’ arguments. Jacobsen holds that as a matter of California constitutional law, a condemnor who intends to take private property may do so only by filing a “condemnation suit wherein the necessity for the taking of the property for the alleged public use could first be litigated and determined and wherein also the damages resultant upon such taking could be ascertained and provided for.” (Jacobsen, supra, 192 Cal. at p. 325, italics added.) In other words, if a California condemnor intends to take property, it must acquire a property interest by filing a condemnation suit that provides in it all constitutional rights owed the landowner against the exercise of eminent domain. It may not intentionally take property while leaving to the landowner the responsibility to initiate a new legal action to receive his constitutional rights. The entry statutes violate this principle of California constitutional law, as they do not provide for a condemnation suit by which a condemnor can directly acquire an interest in property and in which the affected landowner can receive a jury determination of just compensation in that suit.

First, the entry statutes do not provide for the acquisition and transfer of a property interest when the entry is an intentional, direct taking. The trial court hearing a petition for an entry order is authorized to determine only the probable amount of just compensation owed a landowner if the entry will inflict actual damage to the property or will substantially interfere with the landowner’s use or possession of his property. (§ 1245.060, subd. (a).) A direct, intentional taking, by contrast, requires a determination of the fair market value of the property interest sought to be acquired. This is a value separate from damage subsequently caused to the property or later suffered due to a substantial interference with its possession or use where an interest in property was not intentionally taken.

This point is further shown by the entry statutes’ imposition of a burden of proof on the landowner. Before the affected landowner can recover any compensation for damage or interference under the entry statutes, he must show in that proceeding the state’s activities actually caused damage to or interfered with his property rights after the entry has been completed. (§ 1245.060.) By contrast, in a direct condemnation action, causation is

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irrelevant. Just compensation is determined based on the property interest’s fair market value before the state enters the property. In a direct condemnation action, just compensation is a factual issue of valuation on which neither the condemnor nor the landowner bear any burden of proof, and the landowner bears only a burden of going forward. (§ 1260.210, subd. (b).)

This constitutional principle violated by the entry statutes is also reflected in the Legislature’s statutory pronouncement that if a government wants to acquire property in eminent domain, it must bring a condemnation suit to do so. Government Code section 7267.6 provides: “If any interest in real property is to be acquired by exercise of the power of eminent domain, the public entity shall institute formal condemnation proceedings. No public entity shall intentionally make it necessary for an owner to institute legal proceedings to prove the fact of the taking of his real property.”

If used to acquire an interest in real property, the entry statutes conflict with Government Code section 7267.6. The entry statutes do not allow for the condemnor to acquire an interest in real property in the hearing it initiates. And even if the entry statutes were interpreted as a constitutionally valid exercise of eminent domain power to acquire property the state will damage, they still require the landowner to file a separate action -- either a claim with the trial court that granted the entry order or a new action -- to prove the fact that his property was actually taken, i.e., was actually damaged ...


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