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Overview

After the decision in Property Reserve, Inc. v. Superior Court property owners in California now have some added protection against intrusions upon their property by public agencies. The California Court of Appeal, on March 13, 2014, held that entry onto property for geological and environmental testing amounted to a taking under the state constitution. Prior to the Court’s ruling a public agency wishing to take property for some public improvement could enter onto a person’s land to conduct various geological and environmental tests prior to eminent domain proceedings. The public agency could interfere in a person’s possession and use of his property without due process of law and the Court deemed this to be an unlawful taking.

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Background

The State of California thought it would be a good idea to construct a tunnel to divert fresh water from Northern California to the thirsty population of Southern California. Since every tunnel needs land, California identified property impacted by the tunnel construction. With property now identified, California then needed to conduct feasibility studies concerning geological and environmental issues. Under California Code of Civil Procedure § 1245.010, California could lawfully enter property before commencing eminent domain proceedings to complete their desired geological and environmental studies after filing a petition with the court setting forth the amount of compensation the government determined reasonably compensated the property owners for the intrusion and damage to their property. After determining the merits of the petition the court would make a ruling and the State would tender a deposit. After the deposit was made California then had the right to enter the property and the property owner had to make a claim against the deposited funds for reimbursement.

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