Property Reserve, Inc. v. Superior Court of San Joaquin County

Filed 7/21/16

IN THE SUPREME COURT OF CALIFORNIA

PROPERTY RESERVE, INC., )

)

Petitioner, )

) S217738

v. )

) Ct.App. 3 C067758

THE SUPERIOR COURT OF SAN JOAQUIN ) San Joaquin County Super. Ct.

COUNTY, ) JCCP No. 4594

)

Respondent; )

)

DEPARTMENT OF WATER RESOURCES, )

)

Real Party in Interest. )

)

)

CAROLYN A. NICHOLS, as Trustee, etc. et al., )

)

Petitioners, )

) Ct.App.3 C067765

v. ) San Joaquin County Super Ct.

) JCCP No. 4594

THE SUPERIOR COURT OF SAN JOAQUIN )

COUNTY, )

)

Respondent; )

)

DEPARTMENT OF WATER RESOURCES, )

)

Real Party in Interest )

)

) Ct.App.3 C068469

DEPARTMENT OF WATER RESOURCES CASES.) San Joaquin County Super. Ct.

) JCCP No. 4594

In an effort to improve the reliability of the water supply system in

California as well as to address environmental and ecological concerns, the

SEE CONCURRING OPINION

California Department of Water Resources (hereafter, the Department) undertook

to investigate the feasibility of constructing a new tunnel or canal in the

Sacramento-San Joaquin Delta as a means of delivering fresh water from Northern

California to Central and Southern California. As part of the preliminary steps in

going forward with the project, the Department sought to conduct environmental

and geological studies and testing on more than 150 privately owned parcels of

land that the state, in the future, might seek to acquire for the project through

negotiation or eminent domain.

In pursuing the proposed studies and testing, the Department proceeded

through the specific statutory procedure established by the California Eminent

Domain Law (Code Civ. Proc., pt. 3, tit. 7) relating to precondemnation entry and

testing. (Code Civ. Proc., §§ 1245.010-1245.060.)1 The Department filed

petitions in superior court relating to the privately owned properties, seeking a

court order granting the Department authority to enter the properties and undertake

various environmental and geological testing activities. The Department

maintained that these activities were necessary to determine the suitability of each

property for the project and to comply with the numerous state and federal

environmental laws governing such a project.

After a four-day hearing, the trial court issued a detailed and lengthy order

authorizing the Department to enter all of the private properties and conduct

various environmental studies and testing under specified limitations. After a

1 Unless otherwise indicated, subsequent statutory references are to the Code

of Civil Procedure. For convenience, this opinion generally refers, collectively, to

the provisions of the Eminent Domain Law at issue here — sections 1245.010 to

1245.060 — as the precondemnation entry and testing statutes, and refers to the

activities authorized in those statutes, collectively, as testing activities or testing.

2

separate hearing, the trial court denied the Department‘s request to conduct

geological testing — testing that contemplated the drilling and refilling of deep

test holes on certain properties in question — on the ground that the Department‘s

authority to conduct that drilling could be obtained only through a classic

condemnation action rather than through the statutory precondemnation

procedure.2

Both the landowners and the Department sought review of the trial court‘s

rulings in the Court of Appeal. The Court of Appeal, in a two-to-one decision,

upheld the trial court‘s denial of the Department‘s request to enter and to conduct

geological testing, but reversed the trial court‘s grant of authority to conduct

environmental testing. The majority in the Court of Appeal concluded (1) that the

procedure established by the precondemnation entry and testing statutes does not

satisfy the demands of the takings clause of the California Constitution with regard

to any precondemnation entry and testing activity that would constitute a taking or

damaging of property within the meaning of the state takings clause, and (2) that

both the geological testing sought by the Department and the environmental

activities authorized by the trial court fell within that category. The Court of

Appeal majority held that in order to conduct such activities, the Department was

required to proceed to condemn a temporary easement through a classic

2 One issue in this case is whether the judicial proceeding provided by the

precondemnation entry and testing statutes constitutes an ―eminent domain

proceeding[]‖ as that term is used in the California takings clause — article I,

section 19, subdivision (a) of the California Constitution. (See post, p. 54, fn. 20.)

To avoid confusion, this opinion refers to the judicial proceeding that the Eminent

Domain Law prescribes for the condemnation of property (see § 1250.110 et seq.)

as a classic condemnation action or proceeding, and to the judicial proceeding

provided by the precondemnation entry and testing statutes as a precondemnation

proceeding.

3

condemnation action, rather than proceeding by means of the procedure

established by the precondemnation entry and testing statutes.

The Department sought review of the Court of Appeal decision in this

court. We granted review and posed three questions for briefing and argument:

(1) Do the geological testing activities proposed by the Department constitute a

taking? (2) Do the environmental testing activities authorized by the trial court‘s

order constitute a taking? (3) If so, do the precondemnation entry and testing

statutes provide a constitutionally valid eminent domain proceeding for the

activities?

For the reasons set forth below, we conclude that there is no need to

determine under the first two questions whether the authorized environmental

testing activities or the proposed geological testing activities constitute a taking or

damaging of property for purposes of the state constitutional takings clause.

(Cal. Const., art. I, § 19, subd. (a).) Assuming, without deciding, that both the

environmental and the geological activities in question amount to a taking or

damaging of property for which just compensation must be paid under the

California takings clause, we conclude that in answer to our third question the

procedure established by the precondemnation entry and testing statutes satisfies

the requirements of the California takings clause when the procedure is reformed

to comply with the jury trial requirement of that clause. As we explain, the

precondemnation entry and testing statutes (1) require a public entity, before

undertaking such entry and testing, to seek and obtain a court order specifically

authorizing the activities that are to be conducted on the property and to deposit in

court an amount that the court determines is the probable compensation for the

authorized activities, and (2) permit the property owner to obtain damages in the

same proceeding for any actual damage and substantial interference with the

possession or use of the property caused by the public entity‘s entry and testing

4

activities. This procedure satisfies the California takings clause when reformed to

permit the property owner to obtain a jury determination of damages in the

proceeding if the property owner so chooses.

Accordingly, we conclude that the Court of Appeal judgment should be

reversed in its entirety, both insofar as the Court of Appeal affirmed the trial

court‘s denial of the Department‘s proposed geological testing and insofar as it

reversed the trial court‘s authorization of environmental testing.

I. Facts and Proceedings Below

In this case, the Department proposed to enter more than 150 privately

owned properties in the Sacramento-San Joaquin Delta area (Delta) in order to

conduct environmental and geological studies and testing needed to investigate the

feasibility of adding new water conveyance facilities — such as tunnels or

additional canals — in the Delta and to determine the suitability of potential

alternative routes for the contemplated project. The proposed new facilities would

become part of the Bay Delta Conservation Plan and are intended to improve the

reliability of the water supply statewide as well as to restore the Delta ecosystem

and native fish populations.3

3 The contemplated project would be a component of the State Water Project,

a statewide water storage and delivery system that is made up of reservoirs,

aqueducts, and power and pumping plants. The main purpose of the State Water

Project is to store and distribute water to urban and agricultural water suppliers in

Northern California, the San Francisco Bay Area, the San Joaquin Valley, the

Central Coast, and Southern California. According to the Department‘s Web site,

approximately 70 percent of the contracted water supply goes to urban users and

30 percent to agricultural users. (Dept. of Wat. Resources, State Water Project,

online at <http://www.water.ca.gov/about/swp.cfm> [as of July 21, 2016].)

5

Because the alternative potential locations for the new facilities cross or lie

beneath privately owned lands, the Department sought to enter the private

properties in question to ascertain preliminary environmental and geological

information about the properties. The Department maintains that the proposed

entries and testing are necessary for two reasons: (1) to determine the feasibility

and best potential location for the contemplated conveyance system, and (2) to

assess the potential effects of the project on biological, environmental, geological,

and archeological resources within the properties in order to comply with

numerous applicable state and federal environmental laws, including the

California Environmental Quality Act, the National Environmental Policy Act, the

California Endangered Species Act, the Federal Endangered Species Act, the

Federal Clean Water Act, and the California Porter-Cologne Water Quality Act.

Between 2008 and 2009, the Department filed more than 150 separate

petitions in superior court pursuant to section 1245.030, seeking entry onto

properties located in five separate counties — San Joaquin, Contra Costa, Solano,

Yolo, and Sacramento. In June 2009, the Department filed a request to coordinate

in a single proceeding the numerous entry petitions at issue here, and in March

2010, the superior court granted the request, coordinating the petitions in a single

proceeding before the San Joaquin County Superior Court.

In September 2010, the Department filed a ―Master Amended Petition‖ in

which it sought authority to conduct what the petition characterized collectively as

―environmental activities‖ with respect to all properties and ―geological activities‖

with respect to 35 properties. The proposed environmental activities consisted of

mapping and surveys relating to plant and animal species, habitat, soil conditions,

hydrology, cultural and archeological resources, utilities, and recreational uses.

The proposed geological activities consisted of drilling deep holes or borings to

determine subsoil conditions. The Master Amended Petition attached declarations

6

from environmental managers, planners, and surveyors employed by the

Department, describing the scope and purpose of the proposed testing activities.

Thereafter, at a case management conference in October 2010, the trial

court bifurcated the upcoming hearing on the Master Amended Petition, setting an

initial hearing limited to the proposed environmental activities and a subsequent

hearing for the proposed geological activities. The court indicated that it had

reviewed the numerous declarations that had already been submitted on behalf of

many landowners describing concerns with the Department‘s proposed activities,

and invited any property owner, prior to the upcoming hearings, to present

additional evidence by declaration regarding any property-specific issues that

could affect the scope of any order the court might ultimately issue. The court

also directed the Department to be prepared to produce witnesses at the hearings

who would testify in person with regard to the nature and scope of the proposed

entries and activities and who would be subject to cross-examination by the court

and landowners.

A. Environmental activities hearing and order

In December 2010, and January and February 2011, the trial court held a

hearing on the proposed environmental activities. It considered the declarations

filed on behalf of the Department and the landowners, and the in-person testimony

of a number of Department employees, as well as suggestions, concerns and

objections raised by the landowners and the Department to a series of tentative

orders drafted by the court. On February 22, 2011, the trial court issued a detailed

33-page order granting the Department limited authority to enter each of the

parcels at issue to conduct the various types of environmental testing sought by the

Department. The order stated that ―[t]he court has determined the nature and

scope of the activities reasonably necessary to accomplish the purposes identified,

taking due consideration of constitutional limitations and statutory procedures

7

required for a taking of property. The court has provided suitable limitations to

strike the best possible balance between the needs of [the Department] and the

interests of the property owners.‖

In brief summary, the order authorized Department employees to enter each

property4 for a maximum of 25 to 66 days (depending on property size) over a

one-year period in order to conduct the designated environmental survey,

sampling, and testing activities (recreational, botanical, hydrolic, general, habitat,

vernal pool, archeological and utility surveys, and mapping activities) under

specific conditions and limitations set forth in the order with regard to each type of

activity.5 The authorized environmental activities generally would be conducted

by walking, visual observation, minor soil and plant sampling and testing,

4 The order defined ―a property‖ for purposes of the order as ―an enterprise

unit such as a single ranch, even though comprised of several [assessed parcels].‖

5 As an example of the detailed nature of the order, the portion of the order

relating to botanical surveys states: ―1. Activities will consist of identifying

existing plants and characterizing the vegetation community; evaluating existing

vegetation for its suitability as habitat for special status species; visually

characterizing the soil and the existing substrate; and identifying wildlife for signs

of certain special status species. Activities will include walking the subject

property to assess the habitat and determine the presence or absence of sensitive

plant species; collecting samples of vegetation; recording locations using handheld

Global Positioning System (GPS) equipment; photographing landscape and

vegetation; digging holes with a trowel or shovel approximately two feet wide and

two feet deep to examine soil. After examination, soil will be used to refill the

hole from which it came so that it is placed as close as possible to its original

condition. Soil samples will not be taken from the subject properties. Watersides

of larger sloughs and rivers and in-stream islands may require surveys by small

boat. [¶] 2. All surveys and delineations will be conducted during daylight hours

during the months of February through October. Between 2 and 6 personnel

identified by DWR will require 1 to 12 days to survey each parcel concurrently

with hydrologic and general survey activities, and an additional 1 to 4 days if

wetlands are found.‖

8

photography, and trapping and releasing small animals. The entries would be on

foot where practicable, and any vehicle use would be restricted to existing roads.

The order required the Department to give a landowner 72-hour advance

notice before each entry, prohibited any entry on agricultural land during harvest

season or on hunting land during hunting season, limited the number of persons

per entry (two-to-eight persons) by property size, specified the time of day the

activities could be conducted (generally between 7:00 a.m. and 7:00 p.m.), and

provided that most of the authorized activities were to be conducted concurrently

in order to reduce the total number of days Department employees would be on the

property. No equipment could be left on the property between entries with the

exception of small traps that could be left for 14 days and small cloth targets for

aerial mapping that could remain on the property for between 30 and 38 days

(depending on property size).6 The order prohibited any inspection of or entry

within 100 feet of an inhabited dwelling, as well as any entry into any other

structures that are not open to the public. The order also contained a schedule of

general conditions, relating to indemnification, confidentiality, disclosure of

gathered information to landowner, and other matters.

Finally, the order set forth a schedule designating by property size the

amount of probable compensation that the Department was required to deposit

prior to entering any property to conduct the authorized environmental activities.

Under the order, the amount of probable compensation to be deposited ranged

from $1,000 per property for properties of 100 acres or fewer to $6,000 per

property for properties of 3,501 to 8,500 acres.

6 The order specified that the presence of traps or targets on the ground was

not to be considered a day of entry for purposes of the maximum days of entry per

property.

9

B. Geological activities hearing and order

After issuing its order relating to the environmental activities, the trial court

held a hearing over a number of days in February, March, and April 2011,

concerning the proposed geological testing. In declarations and testimony,

Department employees explained that geological tests were needed on 35

properties in order to determine the suitability of the subsurface of those properties

for several alternative potential alignments of surface canals or underground water

conveyance tunnels.

Two engineering geologists employed by the Department testified in some

detail with regard to the testing protocol. For each property, the process would

generally begin with a two- or three-day entry to determine, in consultation with

the property owner and utility and reclamation district personnel, the best location

for the drilling operations, taking into account existing uses of the property and the

location of underground utilities. The geologists testified that the sites of the

drilling initially suggested by the Department could be adjusted within the

proposed alignment of the project, and that the goal would be to find locations for

the drilling along existing roads and turnouts in order to minimize any damage or

interference with the landowner‘s ongoing uses of the property.

Once the optimal sites for drilling were determined, the Department would

first conduct ―cone penetrometer testing‖ (CPT) on each of the 35 properties. CPT

involves pushing into the ground a long rod that emits signals to determine the

subsurface composition of the tested land. The CPT creates a hole that is one and

one-half inches in diameter and up to 205 feet in depth, and that is refilled after the

rod is withdrawn. The CPT process generally requires four persons and up to four

vehicles (including a five-ton or 25-ton CPT truck) and a portable toilet, and is

generally completed in a single day. Thus, on properties that the Department

proposed to conduct only CPT, the Department‘s proposed geological activities

10

generally would be completed in a total of no more than four working days,

including the preliminary identification of the site location.

With respect to 28 of the 35 properties, the Department geologists indicated

that, in addition to the CPT process, the Department would need to drill additional,

larger ―soil borings‖ or ―drill holes‖ that would generally be located within five

feet of the CPT hole. The soil borings or drill holes would range from three and

seven-tenths to eight inches in diameter, would reach up to 205 feet in depth, and

would be refilled once the drilling and retraction of soil for sampling was

completed. The geologists testified that the drilling of drill holes generally

requires a five-person crew and larger and more equipment than the CPT

(generally including a drilling rig, forklift, support trucks, 55-gallon storage

drums, a mudbox, and a portable toilet). They further testified that in undertaking

this type of drilling the Department would need to use an area of approximately

100 feet by 100 feet as a worksite7 for a period of between five and 10 days

(depending upon the depth of the drilling), a period that would include the time for

setting up and taking down the drilling rig as well as the actual drilling.

Accordingly, with regard to the 28 properties on which both the CTP and drill

holes would be conducted, the geological testing activities generally would require

the Department to be engaged on each property for no more than a total of 14

working days.

The geologists further testified that, with respect to both the CPT and drill

holes, the top two to five feet of the holes would be refilled with native topsoil, to

restore the surface area as closely as possible to its original condition. In

7 The Department employees testified that the worksite could be stretched

alongside a roadway if needed to avoid drilling in fields.

11

accordance with current California regulations, the lower depths of the CPT holes

and the drill holes would be refilled with bentonite grout. As described by the

geologists, bentonite grout hardens into a type of cement, but because it lacks the

aggregate materials (sand and gravel) found in concrete, bentonite grout when

hardened is similar in texture to the native subsurface material that it would

replace, is soft enough to be shaved with a pen knife, would not interfere with or

damage farm machinery, and would not adversely affect the filled land for

agricultural or other purposes. The geologists explained that bentonite grout is

used in order to provide stability and avoid groundwater contamination. An expert

witness testifying on behalf of landowners raised no objection to the Department‘s

proposed use of bentonite grout and described such use as ―textbook sealing.‖

After considering the evidence regarding the factual nature and scope of the

proposed geological activities as well as briefing by all parties regarding the

constitutional issues raised by those proposed activities, the trial court issued an

order denying the Department‘s petition as it related to the proposed geological

activities. The trial court‘s order relied heavily upon this court‘s 1923 decision in

Jacobsen v. Superior Court (1923) 192 Cal. 319 (Jacobsen), which denied a

public entity‘s request to conduct somewhat similar drilling activities under an

earlier precondemnation entry statute. (We discuss the Jacobsen decision in detail

below, post, pp. 20-24.) The trial court acknowledged that the current

precondemnation entry and testing statutes were enacted by the Legislature after

the Jacobsen decision and include boring among the precondemnation activities

explicitly covered by those statutes. Nonetheless, the court denied the order for

the following reasons: the current statute does not explicitly state that it is

intended to apply to the type of deep drilling involved in Jacobsen and the present

case; Jacobsen concluded that such drilling activity would constitute a taking or

damaging of property for purposes of the California taking clause; and because the

12

precondemnation entry and testing statutes do not satisfy the requirements of the

state takings clause, the precondemnation entry and testing statutes should not be

interpreted to authorize this type of drilling activity.

C. Court of Appeal Proceedings

Prior to the entry of the trial court‘s geological testing order, the

landowners initially filed two petitions for writs of mandate, prohibition, or other

appropriate relief in the Court of Appeal, challenging the trial court‘s

environmental testing order and seeking a stay of that order. The appellate court

initially summarily denied the writ petitions, but this court granted review and

directed the Court of Appeal to order the Department to show cause why the writs

should not issue.

In the meantime, after the entry of the trial court‘s geological testing order,

the Department appealed the trial court judgment insofar as it denied entry to

conduct the proposed geological activities and the landowners appealed the

judgment insofar as it authorized entry to conduct the environmental activities.

The Court of Appeal stayed the environmental testing order and consolidated the

writ petitions and appeals for hearing and decision.

After briefing and argument, the Court of Appeal, in a two-to-one decision,

affirmed the trial court order insofar as it denied the Department‘s petition to

conduct geological activities, but reversed the trial court order insofar as it granted

the Department authority to conduct the environmental activities. The majority in

the Court of Appeal, relying heavily on this court‘s 1923 decision in Jacobsen,

supra, 192 Cal. 319, concluded that the current precondemnation entry and testing

statutes would be constitutionally valid if the statutes were interpreted to authorize

only those precondemnation entry and testing activities that are sufficiently

―innocuous‖ and ―superficial‖ that they do not constitute a taking or damaging of

property within the meaning of the California takings clause. Because, in the

13

majority‘s view, the proposed geological activities ―will result in permanent

structures being placed in the ground on the affected landowners‘ properties,‖ the

majority concluded that such activities constituted a per se taking of property for

purposes of both the federal and state takings clauses. And in light of the duration

and scope of the environmental activities authorized by the trial court order —

permitting entry and surveying throughout each property for between 25 to 66

days in a one-year period — the majority concluded that the environmental order

effectively granted the Department ―a temporary blanket easement for one year.‖

Such an easement, the Court of Appeal concluded, constituted a compensable

property interest for purposes of the federal and state Constitutions‘ takings clause.

The majority rejected the Department‘s contention that even if the geological and

environmental activities constitute a taking or damaging of property for purposes

of the California takings clause, the procedural requirements established by the

current precondemnation entry and testing statutes satisfy the demands of the state

takings clause. The majority found the statutory procedure constitutionally

deficient in several respects. It determined that the Department was required to

institute a classic condemnation proceeding for a temporary easement in order to

obtain the authority to undertake the precondemnation environmental and

geological testing activities at issue here.

One Court of Appeal justice dissented, concluding that neither the

environmental activities authorized by the trial court nor the geological activities

proposed by the Department — because of their temporary nature and very limited

economic impact — constituted a taking or damaging of property for purposes of

the California takings clause. Furthermore, the dissenting justice concluded that,

in any event, the procedure embodied in the precondemnation entry and testing

statutes satisfies the requirements of the state takings clause.

14

The Department sought review of the Court of Appeal decision in this

court. We granted review to decide the significant issues posed by this case.

II. Current Precondemnation Entry and Testing Statutes

Before discussing the specific issues raised in this case, we begin with an

overview of the precondemnation entry and testing statutes contained in

California‘s Eminent Domain Law. (§§ 1245.010-1245.060.)

Section 1245.010 sets forth the general authority granted to public entities

by the precondemnation entry and testing statutes. It provides: ―Subject to

requirements of this article, any person authorized to acquire property for a

particular use by eminent domain 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 that use.‖ (Ibid.)

Section 1245.020 establishes the circumstances under which the property

owner‘s consent or, alternatively, a court order is required before a public entity

can enter property to conduct precondemnation testing. The section provides: ―In

any case in which the entry and activities mentioned in Section 1245.010 will

subject the person having the power of eminent domain to liability under Section

1245.060, before making such entry and undertaking such activities, the person

shall secure: [¶] (a) The written consent of the owner to enter upon his property

and to undertake such activities; or [¶] (b) An order for entry from the superior

court in accordance with Section 1245.030.‖ (Ibid.) In this case, the Department

has acknowledged that either the consent of the property owner or a court order is

required under this provision before it may enter and conduct the proposed

activities at issue here.

Section 1245.030 sets forth the procedure governing an order for entry.

The section provides: ―(a) The person seeking to enter upon the property may

15

petition the court for an order permitting the entry and shall give such prior notice

to the owner of the property as the court determines is appropriate under the

circumstances of the case. [¶] (b) Upon such petition and after such notice has

been given, the court shall 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 damage to the property and interference with its possession and use. [¶]

(c) After such determination, the court may issue its order permitting the entry.

The order shall prescribe the purpose for the entry and the nature and scope of the

activities to be undertaken and shall require the person seeking to enter to deposit

with the court the probable amount of compensation.‖ (Ibid.)

Although section 1245.030 does not explicitly require the trial court to hold

a hearing and afford the property owner an opportunity to present evidence

relevant to the factors that the court is required to consider under section

1245.030, we conclude a hearing and an opportunity to be heard on a public

entity‘s entry petition is clearly contemplated by and implicit in the statutory

scheme. The notice to the property owner required by section 1245.030 would

make little sense if the owner had no ability to respond to the notice and make its

views known prior to the issuance of any order, and the very next section —

section 1245.040 — explicitly provides that the court may modify any order

entered under section 1245.030 ―after notice and hearing‖ (§ 1245.040, subd. (a),

italics added). In the present case, as we have seen, the trial court held extensive

hearings on the Department‘s petition and afforded the property owners the

16

opportunity to participate in the hearings. We conclude the trial court did not err

in so doing.8

Section 1245.040 authorizes the trial court, after notice and hearing, to

modify any order entered under section 1245.030 and to require the public entity

to deposit additional funds if it determines the initial deposit is inadequate. The

section provides: ―(a) The court, after notice and hearing, may modify any of the

provisions of an order made under Section 1245.030. [¶] (b) If the amount

required to be deposited is increased by an order of modification, the court shall

specify the time within which the additional amount shall be deposited and may

direct that any further entry or that specified activities under the order as modified

be stayed until the additional amount has been deposited.‖ (Ibid.)

Section 1245.050 governs the deposited funds. It provides: ―(a) Unless

sooner disbursed by court order, the amount deposited under this article shall be

retained on deposit for six months following the termination of the entry. The

period of retention may be extended by the court for good cause. [¶] (b) The

deposit shall be made in the Condemnation Deposits Fund in the State Treasury,

or, upon the written request of the plaintiff filed with the deposit, in the county

treasury. . . .‖ (Ibid.)

Finally, section 1245.060 addresses the property owner‘s right to recover

damages. The section provides: ―(a) If the entry and activities upon property

cause actual damage to or substantial interference with the possession or use of the

property, whether or not a claim has been presented in compliance with [the Tort

Claims Act presentation requirements], the owner may recover for such damage or

interference in a civil action or by application to the court under subdivision (c).

8 Because the issue is not before us, we have no occasion in this case to

consider the type or form of hearing that is required under section 1245.030.

17

[¶] (b) The prevailing claimant in an action or proceeding under this section shall

be awarded his costs and, if the court finds that any of the following occurred, his

litigation expenses incurred in proceedings under this article: [¶] (1) The entry

was unlawful. [¶] (2) The entry was lawful but the activities upon the property

were abusive or lacking in due regard for the interests of the owner. [¶] (3) There

was a failure substantially to comply with the terms of an order made under

Section 1245.030 or 1245.040. [¶] (c) If funds are on deposit under this article,

upon application of the owner, the court shall determine and award the amount the

owner is entitled to recover under this section and shall order such amount paid

out of the funds on deposit. If the funds on deposit are insufficient to pay the full

amount of the award, the court shall enter judgment for the unpaid portion.

[¶] (d) Nothing in this section affects the validity of any other remedy the owner

may have for the damaging of his property.‖ (Ibid.)

III. Do the environmental and geological testing activities that the

Department proposed to conduct on the landowners’ properties fall within

the scope of the current precondemnation entry and testing statutes?

We consider first the proper scope of the current precondemnation entry

and testing provisions as a matter of statutory interpretation and legislative intent.

In their briefing in this court, the landowners, relying upon the interpretation of an

early California precondemnation entry statute in the 1923 Jacobsen decision

(Jacobsen, supra, 192 Cal. 319), contend that the current entry and testing statutes

are properly interpreted to authorize only innocuous entries and superficial testing.

The landowners assert that the Department ―overreached‖ and ―urged a radical

expansion‖ of the precondemnation entry and testing statutes in proposing to

utilize the precondemnation statutory procedure to proceed with the type and

amount of both environmental and geological activities sought to be conducted in

this case. If, as the landowners maintain, the precondemnation entry and testing

18

statutes were not intended to encompass the extensive environmental and

geological activities proposed by the Department, the Court of Appeal ruling

against both the environmental and geological activities could be upheld on that

statutory basis alone, and there would be no need to reach any constitutional issue.

For the reasons explained hereafter, however, we conclude that both the language

and the legislative history of the precondemnation entry and testing statutes

demonstrate that the statutes were intended to apply to the types of

precondemnation activities at issue here.

To begin with, the plain language of the governing statute, on its face,

appears to encompass the testing activities that the Department proposed to

conduct. As set forth above (ante, p. 15), section 1245.010 explicitly authorizes a

public entity that is authorized to acquire property by eminent domain to enter the

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 that use.‖ Nothing in the statutory

language indicates that the statute was intended to apply only to innocuous or

superficial surveys or testing. The explicit listing of ―examinations, tests,

soundings, borings, [and] samplings‖ (ibid., italics added) without qualification

reasonably suggests that the Legislature contemplated that the statute would apply

to all of the designated testing activities that are reasonably necessary to determine

whether the public entity should utilize its authority to acquire the property for the

stated public purpose by use of eminent domain.

As noted, the landowners contend that the relevant language of section

1245.010 cannot be read in isolation but must be understood in light of this court‘s

decision and holding in Jacobsen, supra, 192 Cal. 319. We agree that the

Jacobsen decision provides a useful starting point for discerning the intended

19

scope of the current precondemnation entry and testing statutes and accordingly

we review that decision in some detail.

In Jacobsen, supra, 192 Cal. 319, the Petaluma Municipal Water District

was considering acquiring privately owned land as a possible site for a reservoir

that was needed to supply water to the residents of Petaluma. At the time, the land

in question was being used for the cultivation of hay, grain, and other crops and

for the operation of a dairy. The landowners initially granted the district

permission to make some surface surveys and examinations of the property, but

objected when the district requested permission ―to go upon their said lands with

well-boring outfits, tools, machinery, and appliances for the purpose of boring

holes and making excavations for the avowed object of ascertaining whether or not

there was underneath the surface of . . . said lands rock strata or other formations

suitable or necessary for the construction of dams and building of reservoirs . . . .‖

(Id. at p. 322.) The landowners maintained that the proposed activities ―would

result in substantial and irreparable injury to the . . . lands and crops and would be

an invasion of their private property rights in their respective holdings.‖ (Ibid.)

The water district then filed an action against the landowners in superior

court, seeking an injunction to prohibit the landowners from preventing the

district‘s employees from ―entering upon or occupying‖ the property ―for the

purpose of making the excavations, borings, and subsoil examinations‖ described

in the complaint. (Jacobsen, supra, 192 Cal. at p. 322.) The complaint identified

the precise location of the proposed test holes and test pits and stated that the test

holes would be from three to eight inches in diameter and 150 feet or more deep

and that the test pit excavations would measure about four feet by six feet and be

up to 15 feet in depth. The complaint noted that the proposed activities would

require the presence on the landowners‘ property of four persons for a period of

about 60 days with occasional visits from the district‘s officials. The complaint

20

further acknowledged that some of the locations in question contained growing

crops of hay and grain that would be damaged or destroyed by the proposed

activities. However, the complaint stated that upon completion of the activities the

district ―would restore the lands . . . to their original condition by filling in said

test holes and excavations and by removing their appliances from said lands.‖ (Id.

at p. 323.) The trial court granted the injunction sought by the district, ordered the

district to deposit $1,000 as security for any damage that might be caused to the

property by the activities permitted by the order, and then stayed its order to give

the landowners an opportunity to seek writ relief. (Id. at p. 324.)

The landowners sought writ relief in this court, maintaining that the trial

court‘s injunctive order was invalid as a violation of the state constitutional

takings clause, then set forth in article I, section 14 of the California Constitution

(now art. I, § 19, subd. (a).). In analyzing the issue, the Jacobsen court observed

at the outset that ―[i]t is conceded by the respondents [i.e., the district] in their

briefs . . . that if the entry upon and examination of the lands of the petitioners

herein, as applied for and permitted in the above-mentioned action, would amount

to the taking or damaging of petitioners‘ property within the meaning of section 14

of article I of the state constitution, the said order of the court would be violative

of that provision of the constitution.‖ (Jacobsen, supra, 192 Cal. at p. 324.) The

court explained that the district‘s position was that the activities at issue would not

amount to a taking or damaging of property for purposes of the state takings

clause, but instead were acts that were permitted under the terms of the sole then-

existing entry statute, former section 1242 of the Code of Civil Procedure (as

enacted 1872). At the time, former section 1242 read in full: ―In all cases where

land is required for public use, the state, or its agents in charge of such use, may

survey and locate the same; but it must be located in the manner which will be

most compatible with the greatest public good and the least private injury, and

21

subject to the provisions of section twelve hundred and forty-seven. The state, or

its agents in charge of such public use, may enter upon the 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.‖ (Code Civ. Proc. (Deering, edit. 1923)

§ 1242, p. 674, italics added.)

In considering whether the activities at issue in that case constituted the

taking or damaging of property within the meaning of the state takings clause, the

court in Jacobsen first reviewed the history of the state takings clause, explaining

that the relevant constitutional provision was amended at the 1879 Constitutional

Convention to add the words ―or damaged‖ to the provision. (Jacobsen, supra,

192 Cal. at pp. 326-327.) The court then reviewed the activities the district

proposed to undertake on the landowners‘ property and stated that the court

―entertain[ed] no doubt‖ that the proposed acts amounted to a taking or damaging

of property under the state takings clause. (Id. at p. 328.) The court observed in

this regard: ―[The district] proposes to enter upon the petitioners‘ private lands, in

advance or absence of any condemnation proceeding, with a force of employees

and with mechanical structures operated by steam or gasoline enginery and with

other appliances and implements suited to the execution of its intended purpose,

which is that of making a number of test borings from three to eight inches in

diameter and of a depth of 150 feet or more at various points upon petitioners‘ said

lands, and also of making at other places thereon excavations of an area of four by

six feet and of a depth of fifteen feet, and of occupying so much of said lands as

shall be needed for ingress and egress and for accomplishment of the foregoing

purposes, and of trampling down and destroying the growing grain of the

petitioners over the area to be occupied during such operations, and of building

fences around such test holes and excavations for the better protection thereof

22

pending such operations.‖ (Ibid.) The court concluded: ―It is idle to attempt to

argue that such entry, occupation, disturbance, and destruction of the properties of

these petitioners would not constitute 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

[district] thereon.‖ (Ibid.)

Finally, in response to the district‘s contention that the proposed activities

in that case were authorized by the terms of former section 1242 — which, as we

have seen, referred to the state‘s entry of land to ―make examinations, surveys, and

maps thereof‖ — the court in Jacobsen concluded that the statute could not

properly be interpreted to apply to the district‘s proposed conduct. The court

stated in this regard: ―The opening sentence of the section apparently

contemplates the existence and pendency of [condemnation] proceedings as a

basis for whatever entry upon or examination of the lands of private owners

affected thereby is permitted by the succeeding clauses of the section. But

however this may be, 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 federal constitution.‖ (Jacobsen,

supra, 192 Cal. at p. 329.) As already noted, at that time former section 1242 did

not require a public entity to obtain prior judicial authorization or deposit funds

before entering and conducting examinations, surveys, and mapping, and

23

permitted a landowner to maintain an action for damages only for an injury

resulting from the public entity‘s negligence, wantonness, or malice.

The landowners in the present case contend that because the Jacobsen court

concluded that the provisions of the entry statute at issue in that case — former

section 1242 — were properly interpreted to apply only to innocuous entries and

superficial examinations of private property, the current precondemnation entry

and testing statutes should similarly be interpreted to apply only when the

activities listed in the statutes are innocuous or superficial in intensity or scope.

As we explain, the post-Jacobsen legislative history of the current statutes clearly

refutes the landowners‘ proposed interpretation of the current statutes.

As we have seen, in Jacobsen the drilling and excavation activities were

proposed by a water district that was investigating the suitability of the property in

question for use as a site for a reservoir. In 1959, the Legislature enacted a new

entry statute — former section 1242.5 — which applied specifically and

exclusively to precondemnation entry and exploration intended to determine the

suitability of property for reservoir purposes. (Stats. 1959, ch. 1865, § 1,

pp. 4423-4424.) In context, it is evident that the statute was a direct legislative

response to Jacobsen.

As enacted in 1959, former section 1242.5 authorized a public entity that

has the power to condemn land for reservoir purposes to survey and explore

property to determine its suitability for such use by complying with the

requirements set forth in the statute. Under the 1959 version of former section

1242.5 — unlike the version of former section 1242 that was in effect at the time

of Jacobsen — an entity empowered to condemn land for reservoir purposes was

required to petition the superior court for permission to undertake such survey and

exploration, and the superior court was required to ascertain whether the entry was

sought in good faith for such purposes and to require the entity to deposit cash

24

security ―in an amount sufficient to compensate the landowner for any damage

resulting from the entry, survey, and exploration.‖ (Stats. 1959, ch. 1865, § 1,

p. 4423.)

Although the 1959 statute did not spell out the particular activities that were

authorized under the statute, because the statute was directed specifically at

exploration to determine a property‘s suitability as a reservoir site, it is clear that

the legislation was intended to apply to the kind of deep drilling and excavations

that are inevitably required in evaluating whether property is suitable for such a

purpose. (See Van Alstyne, Inverse Condemnation: Unintended Physical Damage

(1969) 20 Hast. L.J. 431, 510 (Unintended Physical Damage) [―Section 1242.5

was designed to meet the special problem of substantial property damage likely to

occur from the kinds of technical operations, including soil tests, trenching, and

drilling operations, often necessitated by reservoir investigations‖ (fn. omitted.)].)9

The Legislature evidently was of the view that the additional requirements

imposed by the 1959 legislation — which compelled the public entity to obtain

judicial authorization and to deposit an amount sufficient to compensate the

property owner for any damage resulting from the entity‘s activities prior to

entering the property and conducting such activities — overcame the

constitutional objections to a public entity‘s undertaking of such extensive

precondemnation testing activities that had animated the Jacobsen decision.

9 A letter from the author of the bill to the Governor stated in this regard:

―The land selected for reservoir purposes must be subjected to rather extensive

exploration which includes core drilling and ditching to the bedrock to reveal any

geologic faults or weaknesses that would make the land unsuitable for use as a

reservoir. Under this bill, only the land that is proved suitable by exploration will

be condemned.‖ (Assemblyman S.C. Masterson, letter to Gov. Edmund G. ―Pat‖

Brown, June 29, 1959.)

25

In 1969, the California Law Revision Commission published a report

including a chapter entitled ―Damages Arising From Entries for Survey and

Examination‖ that dealt specifically with the subject at issue here.

(Recommendation: Sovereign Immunity No. 10 — Revisions of the

Governmental Liability Act (Sept. 1969) 9 Cal. Law Revision Com. Rep. (1969)

pp. 811-815 (1969 Law Revision Commission Report).) The report explicitly

discussed the Jacobsen decision (at p. 811), and stated that ―[t]he holding in the

Jacobsen case has been partially overcome by a special statutory procedure,

provided in 1959 by enactment of Section 1242.5 of the Code of Civil Procedure.

Section 1242.5 is limited to public entities that have the power to condemn land

‗for reservoir purposes.‘ ‖ (1969 Law Revision Com. Rep. at pp. 811-812; see

also A Study Relating to Sovereign Immunity (Jan., 1963) 5 Cal. Law Revision

Com. Rep. 11, 110, fn. 5 (1963 Van Alstyne Study) [―In the case of surveys and

tests to determine the suitability of lands for reservoir purposes, the restrictive

influence of the Jacobsen case . . . has been eliminated by a special statutory

procedure established in Cal. Code Civ. Proc. § 1242.5, enacted in 1959.‖])10

The 1969 Law Revision Commission report observed that, like

investigations necessary to determine the suitability of potential reservoir sites, the

necessary precondemnation exploration of potential sites for other public projects

in addition to reservoirs may also ―involve activities that present the likelihood of

compensable damage, including the digging of excavations, drilling of test holes

or borings, cutting of trees, clearing of land areas, moving of earth, use of

10 The 1963 study was authored by Professor Arlo Van Alstyne and

represented the views of Professor Van Alstyne and not necessarily those of the

Law Revision Commission. (1963 Van Alstyne Study, supra, 5 Cal. Law.

Revision Com. Rep. at p. 5, fn. *.)

26

explosives, or employment of vehicles or mechanized equipment.‖ (1969 Law

Revision Com. Rep., 9 Cal. Law Revision Com. Rep., supra, at p. 814, italics

added.) Noting that ―[r]epresentatives of local public entities have suggested that

the deposit-and-court-order system provided by Section 1242.5 be extended to all

types of condemnors without limitation as to the purpose of the contemplated

acquisition,‖ the report ultimately recommended that ―Section 1242.5 should be

expanded to cover entries for any purpose for which land may be acquired by

condemnation.‖ (Ibid.) Furthermore, the report also recommended, as a clarifying

companion measure, the addition of a new provision (Gov. Code, § 816) to the

California Tort Claims Act, ―providing that, in connection with any entry upon

private property to conduct surveys, explorations, or similar activities, a public

entity is liable for ‗actual damage‘ to property or for ‗substantial interference‘ with

the owner‘s use or possession.‖ (1969 Law Revision Com. Rep., 9 Cal. Law

Revision Com. Rep., supra, at p. 815.)

The following year, the Legislature amended section 1242.5 and added a

new section 816 to the Government Code, as recommended in the 1969 Law

Revision Commission report. As amended in 1970, section 1242.5 applied to all

entities having the power of eminent domain and required all such entities, in the

absence of the property owner‘s consent, to obtain a court order and deposit an

amount to compensate the landowner for any resulting damage before entering and

undertaking any activities that would result in any actual damage or substantial

interference with the owner‘s possession or use of the property. As amended,

section 1242.5 applied to all entries and activities specified in section 1242 as

amended in the same bill (former § 1245.5, subd.(a), as amended by Stats. 1970,

ch. 662, § 3, p. 1289), and thus specifically applied to entries ―to make studies,

surveys, examinations, tests, soundings, or appraisals or to engage in similar

activities reasonably related to the purpose for which the power may be

27

exercised.‖ (Former § 1242, subd. (b), as amended by Stats 1970, ch. 662, § 2,

p. 1288.) The newly enacted section 816 of the Government Code explicitly

provided that, notwithstanding the general provision of the Tort Claims Act

affording immunity to a public employee arising out of an entry upon property

when the entry is expressly or impliedly authorized by law (Gov. Code, § 821.8), a

public entity is liable for actual damage to property or for a substantial

interference with the possession or use of property when such damage or

interference arises from an entry pursuant to sections 1242 or 1242.5 of the Code

of Civil Procedure to engage in the activities embodied in those sections. (Gov.

Code § 816, added by Stats. 1970, ch. 1099, § 3, p. 1957.)

In 1975, as the culmination of a multiyear effort to update and reorganize

California‘s eminent domain statutes into a comprehensive statutory scheme, the

Legislature enacted a new, lengthy, and detailed Eminent Domain Law. (Stats.

1975, ch. 1275, §§ 1-5, pp. 3409-3466.) The new Eminent Domain Law moved

and revised the then-existing precondemnation entry and testing provisions of

former sections 1242 and 1242.5 into a new, separate article of the Eminent

Domain Law (ch. 4, art. 1), containing the current precondemnation entry and

testing statutes — sections 1245.010 to 1245.060 — that we have set forth above.

(Ante, pp. 15-18.)

Although the legislative history of the 1959 and 1970 versions of former

sections 1242 and 1242.5 makes it quite clear that those statutes were intended to

encompass drilling or boring along with the other activities typically required to

determine the suitability of property as a potential site for a contemplated reservoir

or other public project (see ante, pp. 24-28), the prior statutes did not explicitly

include ―drillings‖ or ―borings‖ as one of the activities specifically listed in the

statute. As enacted in 1975, the current applicable statute specifically includes

―borings‖ as one of the listed categories of activities to which the

28

precondemnation entry and testing statutes apply. (§ 1245.010 [authorizing entry

―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‖].) In this regard, the 1975 California legislation

closely tracks the comparable provision of the Uniform Law Commissioners‘

Model Eminent Domain Code, a model code that had been adopted by the

National Conference of Commissioners on Uniform State Laws a year earlier in

1974. (13 pt. 1 West‘s U. Law Ann. (2002) U. Eminent Domain Code, § 301,

subd. (a) [―A condemnor . . . may enter upon real property and make surveys,

examinations, photographs, tests, soundings, borings, and samplings, or engage in

other activities for the purpose of appraising the property or determining whether

it is suitable and within the power of the condemnor to take for public use . . . .‖].)

In sum, the language of the current precondemnation entry and testing

statutes does not limit the listed activities to activities that are only innocuous or

superficial. The legislative history of the current statutes demonstrates a

legislative intent to create a procedure under which a public entity that is

considering acquisition of property for a public project can conduct the type of

extensive investigatory testing and exploration that the Jacobsen decision

concluded was not permitted under the entry statute in effect at that time. For

these reasons, we conclude that the current precondemnation entry and testing

statutes are properly interpreted to encompass the type and degree of

precondemnation environmental and geological testing at issue here. Accordingly,

we reject the landowners‘ claim that the Department overreached in invoking the

29

precondemnation entry and testing statutes in order to obtain authority to conduct

the precondemnation activities proposed in this case.11

Having concluded that the precondemnation statutes were intended to and

do apply to these proposed activities, we turn to the constitutional question.

IV. Did the Court of Appeal correctly conclude that an order issued pursuant

to the precondemnation entry and testing statutes would violate the takings

clause as applied to (1) the environmental activities authorized by the trial

court and (2) the geological activities proposed by the Department?

Both the United States Constitution and the California Constitution provide

that when a public entity takes private property for a public use just compensation

must be paid to the property owner. (U.S. Const., 5th amend. [federal takings

clause]; Cal. Const., art. I, § 19, subd. (a) [state takings clause].)12 The United

11 Contrary to the landowners‘ assertion, the Court of Appeal opinion in

County of San Luis Obispo v. Ranchita Cattle Co. (1971) 16 Cal.App.3d 383

(Ranchita) did not hold that ―entry upon private lands permitted by the Entry

Statute cannot amount to anything other than such innocuous entry and superficial

examination as would suffice for making surveys and maps.‖ In Ranchita, the

public entity and landowner entered into an access agreement permitting entry, but

the agreement failed to specify the scope of the activities permitted upon entry.

Absent such specification, the court held that the access agreement gave the entity

―no more than a right to make an innocuous entry and superficial examination

sufficient for the making of surveys and maps.‖ (Id. at p. 389.) The Ranchita

court did not hold or suggest that when a public entity obtains a court order

pursuant to the entry statute, a court may authorize only superficial examination or

testing.

12 California and federal authorities establish that eminent domain — the

authority ―to take privately owned property . . . and convert it to public use‖

(Black‘s Law Dict. (10th ed. 2014) p. 637) — is ―an inherent attribute of

sovereignty‖ and that the takings clauses impose constitutional limitations upon

the exercise of that inherent sovereign power. (People v. Chevalier (1959) 52

Cal.2d 299, 304; see, e.g., United States v. Carmack (1946) 329 U.S. 230, 241;

Georgia v. Chattanooga (1924) 264 U.S. 472, 480.); County of San Mateo v.

Coburn (1900) 130 Cal. 631, 634.

30

States Supreme Court has long held that the federal takings clause applies to the

states through the Fourteenth Amendment. (Chicago, B. & Q.R. Co. v. Chicago

(1897) 166 U.S. 226, 239.)

A. Federal Takings Clause

The federal takings clause, as embodied in the Fifth Amendment of the

United States Constitution, provides simply and concisely: ―nor shall private

property be taken for public use without just compensation.‖

In general, the United States Supreme Court has interpreted the federal

takings clause to require a state to establish a procedure through which a property

owner, whose property has been taken, can recover just compensation after a

taking has occurred. The federal takings clause has not been construed to require

a state to adopt any particular type of eminent domain procedure or to compel a

public entity either to initiate an eminent domain proceeding or to pay just

compensation before engaging in conduct that results in a taking of property

within the meaning of the federal takings clause.

In Williamson Planning Comm’n v. Hamilton Bank (1985) 473 U.S. 172,

194-195 (Williamson), the high court explained in this regard: ―The Fifth

Amendment does not proscribe the taking of property; it proscribes taking without

just compensation. [Citation.] Nor does the Fifth Amendment require that just

compensation be paid in advance of, or contemporaneously with, the taking; all

that is required is that a ‗ ―reasonable, certain and adequate provision for obtaining

compensation‖ ‘ exist at the time of the taking. [Citations.] If the government has

provided an adequate process for obtaining compensation, and if resort to that

process ‗yield[s] just compensation,‘ then the property owner ‗has no claim

against the Government‘ for a taking.‖

Furthermore, although the high court has made clear that just compensation

under the federal takings clause is to be determined by what the property owner

31

has lost, not by what the public entity has gained (see, e.g., Brown v. Legal

Foundation of Wash. (2003) 538 U.S. 216, 235-236 [―[T]he ‗just compensation‘

required by the Fifth Amendment is measured by the property owner‘s loss rather

than the government‘s gain‖]), the governing decisions make clear that there is no

single formula or standard for ascertaining an amount that constitutes just

compensation. As the high court stated in United States v. Virginia Electric Co.

(1961) 365 U.S. 624, 633: ―The guiding principle of just compensation is

reimbursement to the owner for the property interest taken. ‗He is entitled to be

put in as good a position pecuniarily as if his property had not been taken. He

must be made whole but is not entitled to more.‘ [Citation.] [Citations.] In many

cases this principle can readily be served by the ascertainment of fair market

value — ‗what a willing buyer would pay in cash to a willing seller.‘ [Citation.]

But this is not an absolute standard nor an exclusive method of valuation.‖ (See,

e.g., United States v. Commodities Corp. (1950) 339 U.S. 121, 123 [―This Court

has never attempted to prescribe a rigid rule for determining what is ‗just

compensation‘ under all circumstances and in all cases. Fair market value has

normally been accepted as a just standard. But when market value has been too

difficult to find, or when its application would result in manifest injustice to owner

or public, courts have fashioned and applied other standards.‖ (fn. omitted)];

United States v. Toronto Nav. Co. (1949) 338 U.S. 396, 402 [―Perhaps no warning

has been more repeated than that the determination of value cannot be reduced to

inexorable rules.‖].)

As we have seen, the current precondemnation entry and testing statutes not

only establish a statutory compensation procedure but also expressly preserve a

property owner‘s right to pursue and obtain damages in a statutorily authorized

civil action or an ordinary inverse condemnation action. (§ 1245.060, subds. (a),

(c), (d).) Taken as a whole, state law clearly provides ― ‗ ―a reasonable, certain,

32

and adequate‖ ‘ ‖ procedure (Williamson, supra, 473 U.S. at p. 194) to enable a

property owner to recover money damages for any injury caused by the activities

authorized by the statutes. In their briefing, the landowners do not address the

prerequisites to a federal takings claim, set forth in the Williamson decision (see

473 U.S. at pp. 196-197 [holding federal takings claim premature where property

owner had not pursued available state inverse condemnation action]). Nor do they

cite any decision that holds that the damages authorized by the precondemnation

entry and testing statutes and California‘s inverse condemnation principles are, on

their face, inadequate to constitute just compensation under the federal takings

clause for the type of precondemnation entry and testing activities authorized by

the statutes. (Cf., post, pp. 57-63 [explaining that damages authorized by the

precondemnation entry and testing statutes constitute just compensation for

purposes of state takings clause].) Furthermore, because the landowners have

mounted this challenge before the Department has undertaken any activities and

before any determination has been made as to the damages to which the

landowners are entitled under the relevant statute and California inverse

condemnation principles, it cannot be determined at this point that the available

California procedures have not ― ‗yield[ed] just compensation.‘ ‖ (Williamson,

supra, 473 U.S. at p. 195.) Accordingly, the landowners‘ current constitutional

challenge cannot rest on the federal takings clause.13

13 In a footnote, the Court of Appeal acknowledged that in light of the United

States Supreme Court opinion in Williamson, the landowners‘ challenge was not

supported by the federal takings clause, and that the merits of the challenge rested

solely on the requirements of the California takings clause.

33

B. California Takings Clause

The takings clause of the California Constitution, currently embodied in

article I, section 19, subdivision (a), provides: ―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.‖14

On its face, the California takings clause differs from the federal takings

clause in a number of respects. First, whereas the federal takings clause applies

only to the taking of property for public use without just compensation, the state

takings clause requires just compensation to be paid for the ―tak[ing] or

damag[ing]‖ of property for a public use. (Cal. Const. art. 1, § 19, subd. (a).)

Second, unlike the federal takings clause, the state takings clause affords a

property owner the right to have just compensation ―ascertained by a jury unless

waived.‖ (Ibid.) Third, in contrast to the federal takings clause, the state takings

clause provides in its first sentence that private property may be taken or damaged

for public use ―only when just compensation, ascertained by a jury unless waived,

has first been paid to, or into court for, the owner.‖ (Ibid., italics added.) The

second sentence of the state takings clause, however, qualifies this third

14 Article I, section 19 of the California Constitution was amended by an

initiative measure in June 2008 to place limits on a public entity‘s acquisition by

eminent domain of ―an owner-occupied residence for the purpose of conveying

[the property] to a private person.‖ (Cal. Const. art. I, § 19, subd. (b); see id.,

art. I, § 19, subds. (c)-(e).) Those provisions are not at issue in this case.

34

requirement that a jury determination of the amount of compensation that is due

and payment of that amount to the owner precede any taking or damaging of

property, declaring that ―[t]he 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.‖ (Ibid.) As we shall see, this

second sentence of the state takings clause has particular significance for the

issues presented by this case.

As a general matter, a classic condemnation action is ordinarily required

when a public entity has made the determination to acquire legal title to or

exclusive possession of property for use in the construction of a public project.

Given the nature and severity of the property owner‘s loss in that classic taking

context, the quite elaborate and lengthy process established by the Eminent

Domain Law and related statutes for classic condemnation actions — involving

appraisal and negotiation, the official adoption of a resolution of necessity after

notice and hearing, the formal commencement of a proceeding by a complaint and

answer, discovery and exchange of valuation data, a bifurcated trial on objections

to the right to take and on the issue of compensation, and a jury determination of

compensation — is understandable. (See §§ 1245.210 to 1263.530; Gov. Code,

§§ 7267 to 7267.7.)

The second sentence of article I, section 19, subdivision (a) of the

California Constitution — explicitly authorizing the Legislature to permit a

condemnor to obtain possession of property prior to a jury‘s ascertainment of just

compensation by depositing in court the probable amount of just compensation —

was adopted primarily to give the Legislature broad authority to enact a so-called

quick take statutory procedure that fairly protects the interests of both public

entities and property owners. (See Voter Information Guide, Gen. Elec. (Nov. 5,

35

1974) analysis of Prop. 7 by Leg. Analyst, p. 26; Recommendation: Taking

Possession and Passage of Title in Eminent Domain Proceedings (Oct. 1960) 3

Cal. Law Rev. Com. Rep. (1961) pp. B-10 to B-11.) Through the current statutory

quick take procedure (§ 1255.010 et seq.), a public entity that has already

determined that it intends to acquire a specific property for public use may, after

taking the steps necessary to commence a classic condemnation action, obtain

exclusive possession of the property and begin construction of the project before

the typically lengthy classic condemnation action has fully run its course and a

jury determination of just compensation has been made. (See Mt. San Jacinto

Community College Dist. v. Superior Court (2007) 40 Cal.4th 648, 657-658 (Mt.

San Jacinto).)

However, the state takings clause does not always require the

commencement of a classic condemnation action when private property is taken or

damaged for public use within the meaning of that clause. Most typically, for

example, although damage to property adjacent to a public improvement caused

by the construction or operation of the improvement constitutes a compensable

taking or damaging of property for purposes of the state takings clause, a public

entity is not considered to have violated the state takings clause simply because

the public entity has not commenced a classic condemnation action or paid or

deposited in court just compensation as ascertained by a jury before inflicting such

damage. Instead, under such circumstances, the California takings clause has been

interpreted to afford the property owner a right to maintain an action for

damages — an inverse condemnation action — after the damage has been

incurred. (See, e.g., Reardon v. City & County of San Francisco (1885) 66 Cal.

492 [foundation of building on property adjacent to roadway project damaged by

subsidence of supporting land during construction of the roadway]; Albers v.

County of Los Angeles (1965) 62 Cal.2d 250 [damage to adjacent property from

36

landslide resulting from landfill deposited in construction of a public

improvement]; Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d

550 [damage to adjacent property when flood control levee failed and adjacent

property was flooded].)

As this court observed in People v. Ricciardi (1943) 23 Cal.2d 390, 400:

―When compensation is claimed either for a taking or a damaging the issues may

be presented for adjudication in at least two forms of action. In one there is an

absence of a proceeding in eminent domain. In that form of action the property

owner seeks relief by bringing an action for compensation for a taking or a

damaging of his property or both, as the case may be. . . . [¶] The other form of

action is, as here, a proceeding in eminent domain . . . .‖ Similarly, in Heimann v.

City of Los Angeles (1947) 30 Cal.2d 746, 753, the court explained: ―Here the

proceeding is not one brought by a condemnor, but is an action wherein the

owners seek compensation under article I, section 14 of the Constitution for the

taking and damaging of their properties for a public use without just compensation

having first been made or paid into court. In both forms of action the result is the

same in that in each the property owner receives compensation for the invasion of

his property rights; only the procedure in arriving at the result is different . . . .‖

And in People v. Ayon (1960) 54 Cal.2d 217, 229, where a property owner sought

to obtain recovery for damage that the property owner maintained would result

from a project as proposed, the court further explained: ―But such damages cannot

be recovered until they have occurred. They may never occur. . . . [¶] . . . [¶]

When the condemnation action is tried before the improvement is constructed, and

substantial although temporary interference with the property owner‘s right of

possession or access occurs during construction, the property owner may maintain

a subsequent action for such damage occurring during construction.‖ (Italics

added; see Eachus v. Los Angeles etc. Ry. Co. (1894) 103 Cal. 614, 621-622.)

37

The statutes at issue in the present case involve a factual setting —

precondemnation entry and testing — that falls between the classic condemnation

proceeding where the public entity is seeking to obtain title to or a compensable

property interest in the property and the typical inverse condemnation action

where the public entity does not intend to enter or intrude upon private property

but damage to such property nonetheless ensues. Here, the proposed

precondemnation entry and testing activities upon the subject property are

intentional, but the public entity is not seeking to obtain title to or exclusive

possession of the property for a significant period of time. Rather, the public

entity is seeking temporary access to the property to conduct investigations that

are needed to decide whether the property is suitable for a proposed project and

should thereafter be acquired by the public entity. Furthermore, as in the inverse

condemnation context, the public entity is not acting for the purpose of taking or

damaging the private property at issue, and any loss suffered by the property

owner is often an unavoidable consequence of the public entity‘s necessary

exploratory activities. In this precondemnation setting, the Legislature

determined — in response to Jacobsen, supra, 192 Cal. 319 — that a procedure

less elaborate than that embodied in a classic condemnation action is

constitutionally adequate and appropriate. We proceed to analyze the

constitutional validity of the current precondemnation entry and testing statutes.

In evaluating the validity of the statutory scheme the Legislature created to

respond to Jacobsen, supra, 192 Cal. 319 — the court order and deposit procedure

embodied in the current precondemnation entry and testing statutes — it is useful

to understand the general common law background relating to the entry of public

officials onto private property to conduct lawfully authorized activities. At

common law, when a public official was required or authorized by statute to

perform a public duty or activity, the statutory authority was generally recognized

38

as carrying with it a legal privilege to enter private property for the purpose of

performing or exercising such duty or authority that absolved the government of

liability for what would otherwise be considered a trespass. (See Rest.2d Torts,

§ 211 & com. (c), pp. 398-401; 1 Harper et al. on Torts (2d ed. 1986) § 1.20,

pp. 64-68.)15 In enacting the California Tort Claims Act in 1963, the Legislature

essentially codified this general common law privilege in declaring that public

employees are not liable ―for an injury arising out of [the] entry upon any property

where such entry is expressly or impliedly authorized by law.‖ (Gov. Code,

§ 821.8; see id., § 815.2 [public entity liable only to extent public employee

liable].)16

Outside the precondemnation entry and testing context, numerous statutes

grant public entities and employees the authority to enter and to engage in official

activities on private property for a very wide range of purposes. Common

15 Section 211 of the Restatement Second of Torts reads in full: ―A duty or

authority imposed or created by legislative enactment carries with it the privilege

to enter land in the possession of another for the purpose of performing or

exercising such duty or authority in so far as the entry is reasonably necessary to

such performance or exercise, if, but only if, all the requirements of the enactment

are fulfilled.‖

Comment (c) to section 211, in turn, states in relevant part: ―The

legislative duty or authority carries with it a privilege to enter land in the

possession of another if it is reasonably necessary to do so in order to perform the

duty or exercise the authority. The privilege of entry for the purpose of

performance or exercise of such duty or authority may be specifically given, as

where an employee of a public utility is in terms authorized to enter upon privately

owned land for the purpose of making surveys preliminary to instituting a

proceeding for taking by eminent domain.‖ (Rest. 2d. Torts, § 211, com. (c),

p. 399, italics added.)

16 At the same time, Government Code section 821.8 recognizes that there

may be liability for injuries to the property caused by negligence or a wrongful act

or omission.

39

examples include entries to execute search warrants, to conduct health and safety

inspections, to enforce fish and game regulations, to carry out workplace

inspections, and to investigate and eliminate nuisances. (See generally 1963 Van

Alstyne Study, 5 Cal. Law Revision Com. Rep. supra, 11, 110-119.) As a general

matter, in the absence of any connection with the construction or operation of a

public improvement, conducting such entries and activities on private property,

even when such activities result in damage to the property, has not been

considered to constitute either the taking of a compensable property interest in

property or the damaging of property so as to entitle the property owner to just

compensation under the state takings clause. (See, e.g., Customer Co. v. City of

Sacramento (1995) 10 Cal.4th 368, 378 [―Neither the ‗taken‘ nor the ‗or damaged‘

language [of California Constitution article I, section 19] ever has been extended

to apply outside the realm of eminent domain or public works to impose a

Constitution-based liability, unamenable to legislative regulation, for property

damage incidentally caused by the actions of public employees in the pursuit of

their public duties.‖]; Onick v. Long (1957) 154 Cal.App.2d 381, 387 [no liability

for entry by alcohol beverage control agents to enforce liquor laws].) Instead, any

potential recovery by a property owner against a public entity outside the public

improvement context has been based on tort principles. (See, e.g., Customer Co.

v. City of Sacramento, supra, at p. 378.)

As Jacobsen, supra, 192 Cal. 319, demonstrates, however, some

precondemnation entry and testing activities — when they involve operations that

will result in actual injury to, or substantial interference with the possession and

use of, the entered property — have been viewed as triggering the protections of

the California takings clause. (Id. at pp. 324-328; see Heimann v. City of Los

Angeles, supra, 30 Cal.2d at pp. 755-756.) The relevant precondemnation entry

and testing provisions of the Eminent Domain Law at issue here — provisions

40

that, as we have explained, were adopted by the Legislature in recognition of and

in response to the Jacobsen decision — implicitly recognize that a public entity‘s

precondemnation entry on private property and its conducting of examinations,

surveys, borings, and similar related activities on such property will at times fall

into the category of activities that constitute a taking or damaging of property

under the California takings clause.

In recognition of the interests of the property owner protected by the state

takings clause as well as the interest and need of public entities in conducting

precondemnation investigation and testing, the current precondemnation entry and

testing statutes establish a special, compact, and expedited procedure with which

public entities must comply before intentionally entering private property and

engaging in precondemnation activities that may damage or significantly interfere

with the property owner‘s possession or use of the property. The statutes require

the public entity either to obtain the consent of the property owner or to seek and

obtain a court order that specifically authorizes the particular activities that the

public entity may conduct on the property and requires the public entity to deposit

an appropriate sum equal to the amount of probable compensation to which the

property owner is entitled. The statutes further give the property owner access to

the deposited funds by establishing what the property owner has lost as a result of

the public entity‘s activities.

It is well established, of course, that as a general rule statutes are presumed

to be constitutional. (See, e.g., Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d

805, 814.) And, as past decisions of this court have held, when the Legislature has

enacted a statute with constitutional constraints in mind ―[t]here is a ‗strong

presumption in favor of the Legislature‘s interpretation of a provision of the

41

Constitution.‘ ‖ (Mt. San Jacinto, supra, 40 Cal.4th at p. 656;17 Rooney v.

Vermont Investment Corp. (1973) 10 Cal.3d 351, 365-366; Methodist Hosp. of

Sacramento v. Saylor (1971) 5 Cal.3d 685, 691-696.) As this court explained in

Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180: ―[O]ur past cases

establish that the presumption of constitutionality accorded to legislative acts is

particularly appropriate when the Legislature has enacted a statute with the

relevant constitutional prescriptions clearly in mind. [Citation.] In such a case,

the statute represents a considered legislative judgment as to the appropriate reach

of the constitutional provision. Although the ultimate constitutional interpretation

must rest, of course, with the judiciary (see Marbury v. Madison (1803) 5 U.S.

(1 Cranch) 137, 176-180), a focused legislative judgment on the question enjoys

significant weight and deference by the courts.‖

Here, the Legislature enacted the statutory provisions at issue (and their

immediate predecessors) with full knowledge and in light of this court‘s decision

in Jacobsen, and on the recommendation of the California Law Revision

Commission and Professor Van Alstyne, a leading academic authority on eminent

domain. (See 1969 Law Revision Com. Rep., 9 Cal. Law Revision Com. Rep.,

supra, at pp. 814-815; Unintended Physical Damage, supra, 20 Hast. L.J. at

17 The Mt. San Jacinto decision clearly refutes the Court of Appeal‘s

suggestion that the general presumption of constitutional validity does not apply to

an eminent domain statute. In Mt. San Jacinto, this court applied the presumption

of constitutional validity in determining the constitutionality of a number of

challenged provisions of the quick take statute. The decision relied upon by the

Court of Appeal stands for the proposition that public entities that wish to exercise

the power of eminent domain must strictly comply with the requirements imposed

by the applicable eminent domain statutes. (See Burbank-Glendale-Pasadena

Airport Authority v. Hensler (2000) 83 Cal.App.4th 556, 562.) Here, the

Department has complied with the procedural requirements set forth in the

precondemnation entry and testing statutes.

42

pp. 509-511.) Further, as we have noted, both the Law Revision Commission and

Professor Van Alstyne expressed the view that the court order and deposit

procedure embodied in the post-Jacobsen statutes remedied the constitutional

defects in the entry statute that was in effect at the time of the Jacobsen decision.

(1969 Law Revision Com. Rep., 9 Cal. Law Revision Com. Rep., supra, at

pp. 811-812; Unintended Physical Damage, supra, 20 Hast. L.J. at p. 485.)

In this case, the Department acknowledged from the outset that its entry

and proposed exploration activities were subject to the provisions of the

precondemnation entry and testing statutes and that it was required under those

provisions either to obtain the consent of each property owner or to comply with

the procedure set forth in the statutes. (§ 1245.020.) Accordingly, we have no

occasion in this case to decide what types of precondemnation entries and testing

are so minimal or innocuous that they do not trigger the statutory requirements

imposed by the precondemnation statutes.

As noted, with regard to the environmental activities, the trial court

concluded that the applicable statutory procedures established by the

precondemnation entry and testing statutes were sufficient to comply with the

federal and state takings clauses. The trial court issued an order authorizing the

Department to undertake specified environmental activities subject to a variety of

detailed conditions imposed by the court. At the same time, with regard to the

proposed geological activities, the trial court concluded that, in light of the

Jacobsen decision, the precondemnation entry and testing statutes should not be

interpreted to encompass such activities and that, in any event, the current

statutory procedures are not sufficient to comply with the California takings

clause. Accordingly, the trial court rejected the Department‘s request for an order

authorizing it to undertake such activities.

43

The majority in the Court of Appeal affirmed the trial court‘s denial of an

order permitting the proposed geological activities, but it reversed the trial court‘s

order authorizing the environmental activities. The Court of Appeal concluded

that given the breadth and duration of the environmental activities authorized by

the trial court, the procedure established by the precondemnation entry and testing

statutes was insufficient to satisfy the demands of the California takings clause.

The Department contends that the Court of Appeal erred with respect to

both the proposed geological activities and the environmental activities authorized

by the trial court. Among other contentions, the Department maintains that the

procedure embodied in the precondemnation entry and testing statutes satisfy the

constitutional requirements of the California takings clause as applied to both the

authorized environmental activities and the proposed geological activities.

We turn first to the validity of the precondemnation entry and testing

statutes as applied to the environmental activities authorized by the trial court.

1. Environmental Testing Activities

As noted, the trial court expressly found that the precondemnation

environmental testing activities at issue were reasonably related to the

Department‘s investigation of its potential eminent domain acquisitions. In

fashioning its order the court stated it had ―determined the nature and scope of the

activities reasonably necessary to accomplish the purposes identified, taking due

consideration of the constitutional limitations and statutory procedures required

for a taking of property. The court has provided suitable limitations to strike the

best possible balance between the needs of [the Department] and the interests of

the property owners.‖

The Court of Appeal did not suggest that the authorized environmental

activities were not reasonably necessary for the Department to conduct, nor that

the scope of the activities permitted by the trial court exceeded the degree

44

reasonably required to obtain the relevant information. Nonetheless, the Court of

Appeal held that the trial court‘s environmental order was impermissible, relying

on two grounds on which it concluded the precondemnation entry and testing

statutes violate the state takings clause as applied to the environmental activities

authorized by the trial court order. First, the Court of Appeal concluded that the

environmental order violated the state takings clause because the order authorized

the taking of a compensable property interest in the subject properties — what the

Court of Appeal characterized as a ―blanket temporary easement‖ — without the

commencement of a classic condemnation proceeding in which the measure of

damages provided to the property owner would be based on the value of the

temporary easement rather than on the damages authorized by the

precondemnation entry and testing statutes. Second, the Court of Appeal

concluded that the environmental order additionally violated the state takings

clause because the precondemnation entry and testing statutes fail to provide a

property owner with a right to a jury trial on the amount of compensation to which

the owner is entitled.

We discuss each of these asserted flaws in turn.

(a) Does the environmental order violate the takings clause by

(i) taking a compensable property interest, (ii) without the

commencement of a classic condemnation action (iii) in which

the property owner is afforded an adequate measure of just

compensation?

(i) Compensable property interest?

The Court of Appeal concluded that in light of the number of days the trial

court order permitted the Department‘s employees to enter and conduct the

specified environmental activities on the landowners‘ property — from 25 to 66

days over a one-year period, depending upon the size of the property — and the

45

fact that the order permitted the Department to conduct the environmental

activities throughout the properties, the order granted the Department a blanket

temporary easement that constituted a compensable property interest for purposes

of the state takings clause. The Court of Appeal held that such an interest could be

obtained under the state takings clause only through a classic condemnation action

in which just compensation would be measured by the value of such a temporary

easement rather than by recovery for any damage to the property and substantial

interference with possession and use of the property resulting from the

environmental testing activities.

The Department takes issue with the Court of Appeal‘s characterization of

the order as granting the Department a blanket temporary easement or that the

asserted easement constitutes a compensable property interest for purposes of the

state takings clause. It is well established that an easement may constitute a

compensable property interest for purposes of the takings clause. (See, e.g., City

of Los Angeles v. Ricards (1973) 10 Cal.3d 385, 388-389 (Ricards) [inverse

condemnation action for temporary destruction of property owner‘s easement over

a bridge that afforded access to owner‘s property]; Pacific Gas & Electric v.

Hufford (1957) 49 Cal.2d 545 [condemnation action to obtain an easement for the

construction, operation, and maintenance of electrical transmission line]; see

generally 1 Matteoni, Condemnation Practice in Cal. (3d ed. 2014) § 4.80, pp. 4-

130 to 4-132.) It is questionable, however, whether the authority afforded by the

trial court‘s environmental order can accurately be characterized as granting the

Department a compensable property interest for purposes of the state takings

clause. Although the total number of days Department employees are permitted to

enter and conduct investigatory activities on a landowner‘s property is not

insignificant, the activities encompassed in the trial court‘s environmental order

consist primarily of surveying and sampling activities that have been limited by

46

the trial court so as to minimize any interference with the landowner‘s use of the

property. The landowner will retain full possession of the property and no

significant damage to the property is intended or anticipated. The landowners

have not cited any decision in which the granting of comparable authority to a

public entity has been held to constitute a taking or damaging of a compensable

property interest for purposes of the state takings clause.18

Nonetheless, in our view there is no need to definitely decide whether the

nature and scope of the environmental activities authorized by the trial court

should properly be characterized as granting the Department a compensable

temporary easement for purposes of the California takings clause or at what point

a compensable property interest might arise. Assuming, without deciding, that the

trial court‘s environmental order can properly be characterized as granting the

Department a compensable temporary easement for purposes of the state takings

clause, we conclude that the procedure with which a public entity must comply

under the precondemnation entry and testing statutes satisfies the requirements of

the state takings clause so long as it is reformed to provide a property owner the

18 In advancing the argument that the environmental order amounts to the

taking of a temporary easement, the landowners point to statements in a number of

opinions to the effect that ― ‗the right to exclude [others is] ―one of the most

essential sticks in the bundle of rights that are commonly characterized as

property.‖ ‘ ‖ (Nollan v. California Coastal Comm’n. (1987) 483 U.S. 825, 831.)

As demonstrated by the common law rule recognizing that public officials

generally enjoy a privilege to enter private property and to conduct statutorily

authorized activities on such property (see, ante, pp. 37-38), however, the right to

exclude others has never been viewed as an absolute or unqualified attribute of

property ownership. Entries onto private property by public officials or employees

to conduct statutorily authorized activities are a long recognized limitation of a

property owner‘s right to exclude others.

47

option of obtaining a jury trial on the measure of damages (see discussion, post, at

pp. 63-66.)

(ii) Need for a classic condemnation action?

To begin with, it is quite clear that the Eminent Domain Law itself does not

contemplate that a classic condemnation action must be brought by a public entity

that wishes to conduct the precondemnation testing activities encompassed by the

precondemnation entry and testing statutes. In the Eminent Domain Law, the

precondemnation entry and testing statutes (§§ 1245.010-1245.060) precede the

provisions that set forth the procedure for commencing a classic condemnation

action (§ 1250.110 et seq.). The relevant provisions of the Eminent Domain Law

require a public entity, before commencing a classic condemnation action, to

adopt a ―resolution of necessity‖ that, among other matters, finds that the proposed

project for which property is to be taken ―is planned or located in the manner that

will be most compatible with the greatest public good and the least private injury‖

and that ―[t]he property described in the resolution is necessary for the proposed

project.‖ (§§ 1245.220, 1245.230, subd. (c)(2), (3).) The entire purpose of

precondemnation entry and testing is to enable the public entity to determine

whether or not the property is suitable and should be acquired for a public project

and whether a classic condemnation action should be commenced. It is

counterintuitive to maintain that the commencement of a classic condemnation

action is required before such precondemnation activities may be undertaken.

(See Ranchita, supra, 16 Cal.App.3d at p. 389 [―[I]f the statute is construed . . . to

compel the public agency to first file an action in eminent domain to condemn the

land as a condition precedent to the exercise of the rights conferred under sections

1242 and 1242.5 of the Code of Civil Procedure, and then abandon the action upon

discovery, after survey, that the land was unsuitable, such construction would

48

require the agency to perform a useless act.‖]; Cal. Law Revision Com. com.,

19 West‘s Ann. Code Civ. Proc. (2007 ed.) foll. § 1245.010, p. 406.)

In reaching its conclusion that a classic condemnation action is required to

perform precondemnation activities that rise to the level of a taking or damaging

of property, the Court of Appeal relied heavily on language in the Jacobsen

decision stating that ―[t]he 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.‖ (Jacobsen,

supra, 192 Cal. at p. 331.) The current precondemnation entry and testing statutes,

however, were not in existence at the time of Jacobsen. The only entry statute in

existence at the time of Jacobsen did not require a public entity to obtain any type

of judicial order before undertaking such precondemnation activities, and did not

condition entry and the conducting of such activities upon the public entity‘s

deposit of probable compensation for the proposed activities. Furthermore, that

now defunct entry statute permitted the landowner to obtain damages after entry

and examination only if the public entity acted negligently or in bad faith in

undertaking such activities. It did not provide compensation for any actual

damage to or substantial interference with the property owner‘s possession or use

of the property that resulted from the public entity‘s entry and examination

activities in the absence of negligence or bad faith.

As we have discussed, the Legislature enacted the current precondemnation

entry and testing statutes to satisfy the constitutional flaw the Jacobsen decision

found in the prior statute. (See, ante, pp. 24-29.) The current statutes authorize

entry and testing that may result in actual damage or substantial interference with

the property owner‘s possession or use of the property only if the public entity first

obtains the consent of the property owner or complies with the protective

49

procedures set forth in the statute. The current statutes require a public entity

(1) to seek and obtain a properly limited court order prior to undertaking such

precondemnation activities, (2) to deposit into court, prior to any entry or testing,

an amount that the court has determined is likely to cover any loss that the

property owner sustains as a result of the authorized precondemnation activities,

and (3) to pay damages to the property owner to compensate for any injury or

substantial interference with possession or use that the owner incurs as a result of

the precondemnation activities. These statutes were specifically intended to

satisfy the obligations imposed by the state takings clause while at the same time

affording both the public entity and the landowner an expedited legal procedure

that the Legislature concluded was appropriate for the precondemnation context.

As we have explained, ―[t]here is a ‗strong presumption in favor of the

Legislature‘s interpretation of a provision of the Constitution.‘ ‖ (Mt. San Jacinto,

supra, 40 Cal.4th at p. 656.) Contrary to the Court of Appeal‘s determination, we

conclude that the state takings clause does not preclude the Legislature, in the

precondemnation entry and testing context, from authorizing a public entity to

proceed pursuant to an expedited precondemnation procedure rather than through

a more elaborate classic condemnation proceeding.

As already observed (ante, pp. 36-37), the state takings clause has not been

interpreted always to require the commencement of a classic condemnation

proceeding before a public entity undertakes activity that may result in the taking

or damaging of property for which just compensation must be paid. Most

obviously, in the inverse condemnation context, a public entity has not been

required to bring a condemnation action before undertaking activity that may

possibly result in a taking or damaging of property. Instead, in that setting, the

public entity satisfies its obligation under the takings clause by paying damages

50

that are awarded to the property owner in a subsequent inverse condemnation

action.

A classic condemnation action is required when a public entity seeks to

obtain legal title or a permanent property interest in private property; it has also

been utilized when a public entity seeks to obtain exclusive possession of a portion

of the property for a significant, albeit temporary, period of time (for example,

through acquisition of a temporary construction easement).19 In the

precondemnation entry and testing setting a public entity is not seeking to obtain

legal title to a property interest or exclusive possession of any portion of the

property for a significant period of time. Instead, the public entity is seeking

permission to enter the property and conduct specific activities for a limited period

of time — activities that do not oust the property owner from its ownership or

possession of the property even though they may potentially cause some property

damage or interfere with the owner‘s possession and use of the property.

As Justice Blease in his dissenting opinion in the Court of Appeal observed,

the procedure set forth in the current precondemnation entry and testing statutes

closely tracks the procedure authorized by the second sentence of article I, section

19, subdivision (a) of the California Constitution. To repeat, that sentence states:

―The Legislature may provide for possession by the condemnor following

19 Unlike temporary construction easements that have been the subject of

formal condemnation proceedings when a public entity needs to temporarily

occupy a portion of adjacent property over a significant period of time for the

storage of equipment during the construction of a project on other property (see,

e.g., City of Corona v. Liston Brick Co. (2012) 208 Cal.App.4th 536, 539-540), the

environmental order at issue here does not grant the Department exclusive

possession of any portion of a landowner‘s property for a significant period of

time.

51

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.‖ As already noted, this aspect of the takings provision was

specifically intended to authorize legislative enactment of a so-called quick take

procedure that is fair to both the property owner and the public entity. The quick

take procedure enables a public entity that has already decided to acquire property

by eminent domain to obtain possession of the property and to begin construction

and operation of a public project quickly by depositing the probable amount of

compensation into court for the protection of the property owner while the formal

condemnation action proceeds. However, this second sentence of article I, section

19, subdivision (a) is not necessarily limited to the quick take context.

In the precondemnation entry and testing statutes, the Legislature relied on

the procedural approach set forth in the second sentence of article I, section 19,

subdivision (a) of the California Constitution, fashioning procedural protections

for the respective interests of the property owner and the public entity in a manner

that serves the fundamental purpose of the state takings clause in light of the

special characteristics of the precondemnation setting. Unlike the circumstances

that give rise to the quick take procedure, in which the public entity has already

decided to condemn the property and the property interest that will be taken by a

public entity is known and certain at the outset, in the precondemnation setting the

public entity is still in the process of determining whether to condemn the

property. In this setting, as the facts of the present case demonstrate, whether a

public entity‘s proposed precondemnation activities will rise to the level of a

compensable taking or damaging of property for purposes of the state takings

clause, and, if so, the extent of the loss that will actually be sustained by a property

owner for which compensation is due, cannot reliably be determined until the

scope of the precondemnation activities that are authorized by the trial court is

52

known and the activities have actually been undertaken by the public entity. Even

in those situations when it appears from the trial court‘s order that some damage to

property will be unavoidable, the extent of the damage that will actually be

incurred ordinarily would be speculative because the public entity, in carrying out

the approved activities, may be able to minimize the damage sustained by the

property owner and thus reduce the compensation that is due and the ultimate cost

to the public. Furthermore, as already noted, the public entity‘s purpose in the

precondemnation setting, as in the inverse condemnation context, is not to take or

damage property, and any loss ultimately sustained by a property owner, however

predictable, is generally an unavoidable consequence of reasonable and necessary

precondemnation investigatory activity.

In view of the unquestioned need for precondemnation entry and testing in

order to avoid the ill-advised and premature condemnation of private property and

the substantial uncertainties inherent in the precondemnation testing context, the

Legislature established a statutory scheme that takes into account the significant

public and private interest in an expedited precondemnation procedure and at the

same time extends to a property owner the fundamental procedural protections

embodied in the second sentence of article I, section 19, subdivision (a) of the

California Constitution whether or not a public entity‘s proposed precondemnation

activities actually rise to the level of a taking or damaging of property for purposes

of the state takings clause. First, the statutes require the public entity to institute a

judicial proceeding under the Eminent Domain Law prior to undertaking any

precondemnation entry or testing that poses a risk of damage or interference with

53

the property owner‘s possession or use of the property. (§ 1245.020.)20 Second,

the statutes require the trial court to limit the public entity‘s authorized activities

20 The landowners maintain that the judicial proceeding provided for in the

precondemnation entry and testing statutes does not constitute an ―eminent domain

proceeding[]‖ within the meaning of the second sentence of article I, section 19,

subdivision (a) of the California Constitution. In support of this position, they

point to other provisions of the Eminent Domain Law that use the term ―eminent

domain proceeding‖ to refer to a classic condemnation action that is commenced

when a public entity seeks to acquire legal title to or exclusive possession of

property for use in a public project. (See § 1250.110 et seq.) Those statutory

provisions, however, do not purport to define the term ―eminent domain

proceedings‖ as used in article I, section 19, subdivision (a) of the California

Constitution, and nothing in the takings clause or any other provision of the

California Constitution limits the meaning of that term in such a fashion. Because

the precondemnation entry and testing proceeding is a judicial proceeding

explicitly contained within and authorized by the Eminent Domain Law —

comprehensive legislation that the California Law Revision Commission described

as ―intended to supply rules for eminent domain proceedings‖ (The Eminent

Domain Law (Dec. 1975) 13 Cal. Law Revision Com. Rep. 1007, 1009, fn. 2) —

we conclude the precondemnation proceeding is reasonably viewed as an eminent

domain proceeding as that term is used in the second sentence of article I, section

19, subdivision (a) of the California Constitution. Under the statutes at issue,

precondemnation entry and testing follows commencement of the

precondemnation proceeding.

The concurring opinion maintains that the term ―eminent domain

proceedings‖ in the second sentence of article I, section 19 must be read to refer

only to a classic condemnation action. But there is nothing to suggest that the

second sentence of article I, section 19 was intended to require a classic

condemnation action to be commenced before undertaking precondemnation entry

and testing activities when a public entity has not yet decided whether or not to

condemn or acquire the property. The second sentence of article I, section 19

recognizes the Legislature‘s authority to permit a public entity to obtain exclusive

possession of property (and begin work on a public project) before a jury

determination and payment of compensation so long as the public entity deposits

an amount equal to probable compensation before taking such possession. Given

that, it is reasonable to interpret the second sentence as likewise recognizing the

Legislature‘s authority to permit a public entity to effect a lesser interference with

the owner‘s possession and use of the property — under the precondemnation

(footnote continued on next page)

54

(or, in the terminology of the second sentence of Cal. Const., art. I, § 19, subd. (a),

to limit the nature and extent of the public entity‘s authorized ―possession‖ of the

property) to those activities that are reasonably necessary to accomplish the public

entity‘s investigatory purpose. (§ 1245.030.) Further, the statutes require the

public entity, prior to undertaking such activities, to deposit into court for the

benefit of the property owner an amount that the court determines, based on the

circumstances of the particular case, is the probable amount of just compensation

for the activities authorized by the court. (Ibid.)21 Finally, the statutes provide a

procedure through which a property owner can promptly obtain compensation

from the deposit for any loss suffered as a result of the public entity‘s

precondemnation activities, and, if those funds are insufficient, can obtain a

judgment for the unpaid portion. (§ 1245.060, subds. (a), (c).)

Accordingly, although the second sentence of article I, section 19,

subdivision (a) of the California Constitution may not have been drafted with the

precondemnation setting in mind, in fashioning the precondemnation entry and

testing statutes the Legislature, acting under the authority granted by that sentence,

has provided comparable protections to the property owner so as to satisfy the

requirements of the state takings clause.

(footnote continued from previous page)

entry and testing statutes, which define a different type of eminent domain

proceeding — so long as the same procedural protections apply.

21 In addition, in further recognition of the uncertain and dynamic nature of

the investigatory process, the statutes explicitly authorize the trial court, at any

time during the precondemnation process, to modify its initial order and to require

the public entity to deposit additional funds if the court determines the initial

deposit is inadequate. (§ 1245.040.)

55

Thus, we conclude that the Legislature did not violate the state takings

clause by authorizing a public entity to enter private property to conduct

substantial precondemnation activities without the owner‘s consent or the

commencement of a classic condemnation action so long as (1) the public entity

obtains a court order specifying the activities that may be conducted on the

property and first deposits in court an amount that the trial court determines is

sufficient to cover the probable compensation to which the property owner may be

entitled for losses sustained as a result of the entry and testing activities, and

(2) the property owner is entitled to recover damages for any injury to the property

and any substantial interference with its possession or use of the property resulting

from the public entity‘s activities. Nothing in this court‘s decision in Jacobsen,

supra, 192 Cal. 319, is contrary to this conclusion.22

We note that the overwhelming majority of judicial decisions in other states

have upheld statutory provisions that authorize precondemnation entry and

22 In concluding that a classic condemnation action is required, the Court of

Appeal pointed in part to the provisions of Government Code section 7267.6.

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.‖ Unlike the statutes at issue here, Government

Code section 7267.6 is not directed at precondemnation entry and testing

activities, and that statute cannot reasonably be interpreted as intended to limit or

displace the precondemnation entry and testing statutes. Instead, section 7267.6 is

intended to apply after the public entity has conducted any precondemnation

activities and has already decided to acquire real property. Further, under the

precondemnation statutes a public entity is required to file a judicial proceeding to

obtain authority to enter and conduct proposed testing; the statutes do not make it

necessary for a property owner to institute legal proceedings to prove that its

property has been taken.

56

preliminary surveys or examinations comparable to the activities authorized by the

environmental order against a claim that the statute violates the takings clause of

the applicable state constitution. (See, generally, Annot., Eminent Domain: Right

to Enter Land for Preliminary Survey or Examination (1970) 29 A.L.R.3d 1104,

1111-1113, § 4, and later cases (2015 supp.) 158-159 ].) These decisions have

concluded that property owners who are subjected to such precondemnation

testing are adequately protected when they are permitted to recover for any

damages they incur as a result of the entry and testing activities.23 We also

observe that the Uniform Eminent Domain Law, drafted by a nationwide body of

eminent domain legal experts, contains provisions authorizing the same type of

precondemnation entry and testing under procedures that closely parallel those in

the applicable California statutes. (See 13 pt. 1 West‘s U. Laws Ann., supra,

U. Eminent Domain Code §§ 301-305.)

(iii) Adequate measure of damages?

Furthermore, contrary to the Court of Appeal‘s conclusion, we conclude

that the statutory damages that a property owner is entitled to obtain under section

1245.060, the applicable precondemnation entry and testing statute, are a

constitutionally adequate measure of just compensation under the state takings

clause for the precondemnation activities authorized by the statutory scheme.

23 As we discuss below in connection with the geological testing issue, a

number of out-of-state decisions have concluded that a public entity is required to

condemn a temporary easement before undertaking significant precondemnation

drilling or boring activities on private property. (Post, p. 72, fn. 33.) As we

explain, none of the jurisdictions in question had adopted a precondemnation

statutory scheme containing the substantial procedural protections embodied in the

California precondemnation entry and testing statutes.

57

Like the concept of just compensation under the federal takings clause

(ante, pp. 31-32), the just compensation required by the state takings clause is the

amount required to compensate the property owner for what the owner has lost.

(See, e.g., Mt. San Jacinto, supra, 40 Cal.4th at p. 666 [― ‗ ―The just compensation

required by the Constitution to be made to the owner is to be measured by the loss

caused to him by the appropriation. He is entitled to receive the value of what he

has been deprived of, and no more. To award him less would be unjust to him; to

award him more would be unjust to the public.‖ ‘ ‖]; Citizens Utilities Co. v.

Superior Court (1963) 59 Cal.2d 805, 817.)

Although the measure of compensation that is ―just‖ for purposes of both

the federal and state takings clause is often determined by the ―fair market value‖

of what has been lost, both federal and state takings cases uniformly recognize that

the fair market value standard is not applicable in all circumstances and that there

is no rigid or fixed standard that is appropriate in all settings. (See, e.g., United

States v. Virginia Electric Co., supra, 365 U.S. at p. 633; Citizens Utilities Co. v.

Superior Court, supra, 59 Cal.2d at p. 817.) In other contexts, it is frequently

possible to determine the fair market value of an easement by considering

comparable sales or other evidence disclosing the price a willing buyer and willing

seller would agree upon in relation to the value of the property as a whole prior to

and after the taking or damaging of the easement in question. (See, e.g., United

States v. Virginia Electric Co., supra, 265 U.S. at p. 630; Pacific Gas & Elec. Co.

v. Hufford, supra, 49 Cal.2d at pp. 553-554; see generally 1 Matteoni,

Condemnation Practice in Cal., supra, § 4.80, pp. 4-130; Clarke, Easement and

Partial Taking Valuation Problems (1969) 20 Hast. L.J. 517.) However, the

precondemnation entry and testing statutes authorize only temporary and limited

types of activities — surveying and testing activities. Significantly, this limitation

is further restricted by the individualized nature of each court order prescribing

58

specific limitations under which the authorized activities may be undertaken.

Thus, even if we assume that in some circumstances a trial court order‘s entry and

testing order can properly be characterized as the grant of a compensable

temporary easement, there generally would not be a reliable and consistent means

of establishing a fair market value for the particular easement at issue.24 (Accord,

§ 1263.320, subd. (b) [―The fair market value of property taken for which there is

no relevant, comparable market is its value on the date of valuation as determined

by any method or valuation that is just and equitable‖].)

In concluding that the damages authorized by the precondemnation entry

and testing statutes would be inadequate for the activities authorized by the trial

court‘s environmental order, the Court of Appeal suggested that, in addition to any

damages that are recoverable under section 1245.060, a property owner is entitled

to recover the rental value of the property for the period of time during which the

activities authorized by that order are permitted. In light of the nature of the

environmental order at issue here, however, granting a property owner the rental

value of the property in addition to any damages the owner sustains for actual

injury or substantial interference with the possession or use of the property would

afford the owner an unwarranted windfall. Under the trial court‘s environmental

order, the owner retains full possession and use of the property over the period

covered by the order, notwithstanding the authorized testing activities. Under

these circumstances, the rental value of the property would not be a valid measure

of what the property owner has lost as a result of the trial court‘s environmental

order. (Cf. e.g., Otay Mesa Prop., L.P. v. United States (Fed. Cir. 2012) 670 F.3d

24 In this case, no evidence was presented indicating that the proposed

temporary environmental or geological testing would reduce the fair market value

of any property.

59

1358, 1368-1369 (Otay Mesa).)25 Accordingly, awarding such an amount to the

property owner under these circumstances clearly would not be just to the

public.26

25 In Otay Mesa, supra, 670 F.3d 1358, the United States Border Patrol had

placed sensors on private property to aid in its apprehension of border crossing

violations. The sensors did not interfere with the property owner‘s use of the

property and would be removed whenever the property owner notified the Border

Patrol that it intended to develop the area on which a sensor was located. In an

inverse condemnation action brought by the property owner against the Border

Patrol, the trial court, after finding that the Border Patrol‘s actions constituted the

taking of a temporary easement, awarded the property owner just compensation

based on the rental value of the property that had been charged in other instances

for activities (skydiving and parachute training) that had precluded any use of the

property by the property owner during the rental period.

On appeal, the Federal Circuit Court of Appeals held that the trial court had

erred in using rental value as the basis for determining just compensation under

the circumstances involved in that case. The Federal Circuit explained: ―By

exclusively applying a rental value methodology and looking to rents paid for the

use of land for skydiving and parachute training, the [trial] court . . . overlooked

exactly what has been taken by the Border Patrol — a minimally invasive

permanent easement to use undeveloped land that is unilaterally terminable by

Otay Mesa [the property owner]. Under the easement, each sensor must be

located so as not to affect the functionality of the property. In addition, should

Otay Mesa wish to develop any portion of the property, any affected sensor will be

removed or redeployed upon 30 days written notice . . . . Finally, upon removal of

a sensor, the portion of the easement relating to that sensor terminates. In short,

the court did not squarely address the just compensation appropriate to

compensate Otay Mesa for the taking.‖ (Otay Mesa, supra, 670 F.3d at pp. 1368-

1369.)

26 Under other circumstances — for example, when a precondemnation order

grants a public entity exclusive possession of all or a portion of the property for a

significant period of time — the rental value of the occupied property might well

be an appropriate measure of the loss suffered by a property owner for substantial

interference with its possession or use of the property and thus a proper measure of

damages recoverable under section 1245.060. (Cf. Kimball Laundry Co. v. United

States (1949) 338 U.S. 1, 7.)

60

Instead, the compensation authorized by section 1245.060 — damages for

any ―actual damage‖ to the property and for ―substantial interference with the

[property owner‘s] possession or use of the property‖ — appears on its face to be a

reasonable means of measuring what the property owner has lost by reason of the

specific precondemnation activities that are authorized by the trial court‘s

environmental order. (Accord, e.g., Sacramento & San Joaquin Drainage Dist. v.

Goehring (1970) 13 Cal.App.3d 58, 66-67 [affirming an award of $900 for the

taking of a temporary easement for roadway purposes based on damage to the

roadway]; Ricards, supra, 10 Cal.3d at pp. 388-390 [only nominal damages

permitted when temporary taking of easement resulted in no loss].)27 Because this

27 In Ricards, supra, 10 Cal. 3d 385, the city‘s construction of a project

upstream from the property owner‘s property caused a diversion of waters that

destroyed a private bridge over which the downstream property owner held an

easement that provided the sole access to her property. Thereafter, the property

owner brought an inverse condemnation action against the city, seeking just

compensation for the temporary loss of the easement for the two years that elapsed

before a public bridge was constructed to replace the old bridge.

In this court‘s decision in Ricards, we agreed with the trial court‘s

conclusion that ―the destruction of the bridge constituted a taking or damaging of

the owner‘s property rights of access within the meaning of [the state takings

clause for which] [] [s]he . . . became entitled to just compensation‖ (10 Cal.3d at

p. 389), but we reversed the substantial monetary award that had been granted to

the property owner by the trial court. We explained: ―[T]he temporary

impairment of access caused neither loss of use or rental value or permanent

diminution in property value, nor financial disadvantage with respect to possible

interim sale of the property. The owner, therefore, suffered no injury that was not

cured by the City‘s replacement of the bridge. To afford her substantial

compensation under such circumstances would place her in a better financial

position than she would have been in had the bridge remained intact. Therefore

the judgment below must be reversed insofar as it awards the owner substantial

damages for impairment of access.‖ (Id. at pp. 389-390.) The court noted that on

remand the trial court could award the property owner nominal damages. (Id. at

p. 390, fn. 4.)

61

matter is before us prior to any precondemnation activities having been conducted,

we have no occasion in this case to determine exactly what specific items of actual

damage or substantial interference with possession or use of the property are

compensable under the statutes in question.28 We observe, however, that because

the statutory scheme must be interpreted so as to satisfy constitutional

requirements, the provisions of section 1245.060 should be construed and applied

in a manner that will permit a recovery by the affected property owner that fully

complies with the just compensation required by the state takings clause. The

numerous past California cases that have analyzed what damages are appropriately

awarded for the taking or damaging of property in the inverse condemnation

context may provide useful analogies in this regard. (See generally 8 Witkin,

Summary of Cal. Law (10th ed. 2005) Constitutional Law, §§ 1145-1152, pp. 786-

801 [listing cases].)29

28 The landowners contend that the precondemnation entry and testing statutes

preclude them from recovering any expense they may incur in having their own

employees accompany or supervise the Department‘s employees during the survey

and testing operations. But the landowners have not yet incurred such costs or

sought to recover damages for such expenses through the procedure established by

section 1245.060, subdivision (c), and thus we have no occasion to determine

whether such expenses are recoverable under the statute. The landowners have

not challenged the adequacy of the amount of probable compensation that the trial

court‘s environmental order required the Department to deposit on the ground that

such amount did not take into account such expenses.

29 The Court of Appeal also suggested that the precondemnation entry and

testing statutes were constitutionally deficient because the state takings clause

precludes placing the burden on a property owner to establish that it has sustained

a loss for which just compensation must be paid or to demonstrate the amount of

the loss. Section 1245.060, by its terms, does not explicitly impose a burden of

proof, but it does require a property owner to apply to obtain recovery from the

deposited funds and a judgment for an additional award if the deposited funds are

insufficient. (§ 1245.060, subds. (a), (c).) Contrary to the Court of Appeal‘s

position, however, the governing California cases do not hold that the state takings

(footnote continued on next page)

62

Accordingly, we conclude that a classic condemnation proceeding is not

required for precondemnation entry and testing.

(b) Does the environmental order violate the takings

clause by failing to provide for a jury trial on

damages?

The Court of Appeal additionally concluded that the precondemnation entry

and testing statutes are constitutionally deficient as applied to any environmental

testing activities that amount to a taking or damaging of property for purposes of

the state takings clause because the statutes do not provide a property owner with a

right to have a jury determine the amount of just compensation to which the

property owner is entitled. There is no dispute that the California takings clause

guarantees a property owner whose property has been taken or damaged for public

use a right to have the amount of just compensation ascertained by a jury, if the

property owner so chooses. (Cal. Const., art. I, § 19, subd. (a); see, e.g., Highland

Realty Co. v. City of San Rafael (1956) 46 Cal.2d 669, 683; Citizens Utilities Co.

v. Superior Court, supra, 59 Cal.2d at p. 816.) Nonetheless, for the reasons

discussed hereafter, we conclude that the precondemnation entry and testing

statutes may not properly be held unconstitutional on this ground.

(footnote continued from previous page)

clause prohibits any procedure that requires the property owner to establish what it

has lost as a result of a public entity‘s alleged taking. As this court explained in

Ricards, supra, 10 Cal.3d at p. 390, footnote 4: ―Where an owner is unable to

prove that the taking or damaging of property by a governmental entity has caused

him any economic injury, he is entitled to recover only nominal damages.‖ (See

also § 1260.210 [in a classic condemnation proceeding, ―[t]he defendant [i.e., the

property owner] shall present his evidence on the issue of compensation first‖].)

63

It is true that the relevant provision of the precondemnation entry and

testing statutes — section 1245.060 — does not afford a property owner the right

to a jury trial on the measure of damages within the precondemnation proceeding

itself. Instead, section 1245.060 grants both the public entity and the property

owner what the Legislative perceived to be the benefit of a more expeditious and

streamlined procedure for obtaining recovery for any damage or interference with

use or possession that may result from the authorized precondemnation entry and

testing activities, by having such damages determined by the trial court.

(§ 1245.060, subd. (c).)

In defending the validity of the statutory scheme, the Department points out

that section 1245.060, subdivision (a), expressly provides that ―the owner may

recover for such damages or interference in a civil action or by application to the

court under subdivision (c).‖ (Italics added.) The Department argues that the jury

trial requirement of the state takings clause is satisfied because a property owner

can bring the civil action authorized under section 1245.060, subdivision (a), by

filing a cross-complaint in the precondemnation proceeding itself, and the property

owner would then be entitled to a jury determination of compensation in resolution

of its cross-complaint in the precondemnation proceeding.

We agree that, by virtue of the jury trial provision of the state takings

clause, a property owner would be entitled to a jury determination of

compensation in the separate civil action expressly authorized under section

1245.060, subdivision (a). However, we do not believe the provisions of section

1245.060, construed as a whole, can reasonably be interpreted to permit the civil

action provided for in subdivision (a) to be brought and litigated within the

precondemnation proceeding itself. Nothing in the statute purports to permit such

a civil action to be joined with the precondemnation proceeding in this fashion.

Such joinder appears inconsistent with the language of subdivision (a) itself,

64

which states that a property owner may recover damages either in a civil action or

by application to the court under subdivision (c). If the Legislature had intended

to authorize the merged procedure proposed by the Department, the statute would

not have been written in its present form.

Although we conclude that section 1245.060 as presently written does not

afford a property owner the right to have a jury determine the amount of

compensation within the precondemnation proceeding itself, and further agree

with the Court of Appeal that the statute is constitutionally deficient in this

respect, in our view the appropriate remedy for this constitutional flaw is not to

invalidate the precondemnation entry and testing statutes as applied to any

precondemnation testing activity that rises to the level of a taking or damaging of

property for purposes of the state takings clause. Instead, we conclude that the

appropriate remedy for this constitutional flaw is to reform the precondemnation

entry statutes so as to afford the property owner the option of obtaining a jury trial

on damages at the proceeding prescribed by section 1245.060, subdivision (c).

As this court explained in Kopp v. Fair Pol. Practices Com. (1995) 11

Cal.4th 607, 615: ―[A] court may reform a statute to satisfy constitutional

requirements if it can conclude with confidence that (i) it is possible to reform the

statute in a manner that closely effectuates policy judgments clearly articulated by

the enacting body, and (ii) the enacting body would have preferred such a

reformed version of the statute to invalidation of the statute.‖ In light of the

legislative history of the precondemnation entry and testing statutes discussed

above, it is clear that the Legislature intended to adopt a procedure that satisfies

the requirements of the California takings clause. Further, providing a property

owner the ability to obtain a jury determination of damages at the latter stage of

the precondemnation proceeding will not interfere with or undermine the

fundamental purposes or policies of the precondemnation entry and testing

65

legislation. Thus, we conclude that both prongs of the Kopp standard are satisfied

here. Accordingly, the provisions of section 1245.060, subdivision (c), are

reformed to provide a property owner the option of obtaining a jury trial on the

measure of damages at the proceedings provided for in that subdivision.

2. Geological testing activities

As discussed above, both the trial court and the Court of Appeal held that

the precondemnation entry and testing statutes violate the state takings clause as

applied to the Department‘s proposed geological testing activities. These courts

reasoned that because the Department proposed to fill the holes that it bored in the

property with a type of grout that would be left in the holes after the Department

completed its investigatory activities, the geological activities amounted to a

permanent per se taking of property under the United States Supreme Court‘s

decision in Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419,

426 (Loretto). As a consequence, the proposed activity required the

commencement of a classic condemnation action prior to conducting such

activities.

The Department‘s proposed boring and refilling of deep holes in the

properties in question — along with the Department‘s exclusive possession of the

worksite area surrounding the boring sites for the 1 to 14 days needed to conduct

the drilling activities — may cause substantial interference with the landowner‘s

possession and use of a portion of its property during the time the drilling

activities are occurring. At the same time, however, under the precondemnation

entry and testing statutes, a landowner is entitled to be compensated for any such

interference with the owner‘s possession and use of the property, as well as for

any actual damage to the property caused by the CPT and drilling activities. The

landowners maintain that recovery under the precondemnation statutes for any

actual damage or substantial interference with possession or use of the property is

66

not sufficient. They argue that the proposed boring and refilling activity must be

viewed as the kind of permanent appropriation of a property interest that may only

be undertaken by first commencing a classic condemnation action, rather than by

proceeding under the precondemnation statutes. As explained, we disagree with

the landowners‘ contention on a number of grounds.

First, in our view it is doubtful that the proposed boring and filling activity

is properly characterized as a permanent occupation of property, and therefore a

per se taking, for federal constitutional purposes. In Loretto, supra, 458 U.S. 419

— upon which the lower courts relied — the United States Supreme Court phrased

the question before it as ―whether a minor but permanent physical occupation of

an owner‘s property authorized by government constitutes a ‗taking‘ of property

for which just compensation is due under the Fifth and Fourteenth Amendments of

the Constitution.‖ (Id. at p. 421.) In that case, a New York statute provided that a

residential landlord was required to permit a cable television company to install

cables and a cable box on the landlord‘s property. The New York Court of

Appeals had ruled that because the required installation served a legitimate police

power purpose and did not have an excessive economic impact on the landlord‘s

property rights or its reasonable investment-backed expectations, the statute did

not constitute a taking of the landlord‘s property for purposes of the federal

takings clause. (Id. at p. 425.)

In reversing the New York court‘s ruling, the majority in Loretto, supra,

458 U.S. 419, drew a distinction ―between a permanent occupation and a

temporary physical invasion‖ of property (id. at p. 434), and held that ―when [a]

physical intrusion reaches the extreme form of a permanent physical occupation, a

taking has occurred.‖ (Id. at p. 426.) In that case, because ―[t]he installation

involved a direct physical attachment of plates, boxes, wires, bolts, and screws to

the building‖ (id. at p. 438), and because ―[s]o long as the property remains

67

residential and a [cable] company wishes to retain the installation, the landlord

must permit it []‖ (id. at p. 439), the high court found that the required installation

amounted to a permanent physical occupation and thus constituted a taking of

property without regard to the economic impact of the requirement. (Id. at p. 441.)

At the same time, the court recognized that ―the extent of the occupation [is] one

relevant factor in determining the compensation due‖ (id. at p. 437, fn. omitted),

and noted that in that case ―[t]he issue of the amount of the compensation that is

due, on which we express no opinion, is a matter for the state courts to consider on

remand.‖ (Id. at p. 441, fn. omitted.)

Unlike the cable box in Loretto, which was owned and controlled by the

cable company and which the property owner was not permitted to remove, the

Department will retain no continuing interest in the grout after its testing activities

are completed. If a landowner chooses, it may remove the grout at any time and

replace it with any substance it desires (so long as, of course, the substance

complies with any applicable health and water regulations). In our view, the

Loretto decision cannot properly be interpreted to mean that a public entity that,

after digging up soil or conducting other activities on private property that

temporarily alter the property‘s condition, returns the property to the same or a

comparable state as the property previously enjoyed, is to be viewed as having

undertaken a permanent physical occupation of the property that amounts to a per

se taking of a property interest. A public entity‘s restoration of property to the

equivalent of its prior state is not the same as a public entity‘s authorizing a third

party to attach a structure or fixture to a property owner‘s property when the

structure or fixture continues for an unspecified period to be controlled by the

third party. Because here the Department would not retain possession of or any

interest in the filling material after its testing is completed, the proposed

geological activities do not involve any continued or permanent occupation of any

68

portion of the landowners‘ property that would effectively impinge upon the

owner‘s right to possess, use, or control the area in question. Under these

circumstances, in our view the proposed drilling and refilling would not constitute

a permanent physical occupation of a landowner‘s property within the meaning of

the Loretto decision.30

Second, even if leaving grout in the holes bored on the landowners‘

properties were properly viewed as a permanent physical occupation and, as such,

a per se taking of property for purposes of the federal takings clause under Loretto,

an order under the precondemnation entry and testing statutes authorizing such

geological activity still would not violate the federal takings clause. As previously

explained, because the precondemnation entry and testing statutes provide a

procedure by which a property owner may recover damages for any actual injury

or substantial interference with the property owner‘s possession or use of its

property that is caused by the continued presence of the grout on its property, the

30 In contending that the proposed geological activities would work a

permanent physical occupation, the landowners rely heavily on dicta in Hendler v.

United States (Fed. Cir. 1991) 952 F.2d 1364, 1376, discussing the permanency

requirement of Loretto. However, in a subsequent decision by the same circuit —

Boise Cascade Corp. v. United States (Fed. Cir. 2002) 296 F.3d 1339 — the court

stated that the cited language in Hendler ―has been widely misunderstood‖ (296

F.3d at p. 1356) and explained: ―Putting its dicta to one side, Hendler‘s holding

was unremarkable and quite narrow: it merely held that when the government

enters private land, sinks 100-foot deep steel reinforced wells surrounded by

gravel and concrete, and thereafter proceeds to regularly enter the land to

maintain and monitor the wells over a period of years, a per se taking under

Loretto has occurred.‖ (Id. at p. 1357, italics added.) The facts of Hendler are

quite different and distinguishable from the proposed geological activities at issue

in this case.

69

statutes do not on their face violate the federal takings clause. (See ante, pp. 32-

33.)31

Third, even if we assume that the Department‘s proposed geological

activities are sufficiently similar to the activities at issue in Jacobsen, supra, 192

Cal. at page 238, that the proposed activities would constitute a taking or

damaging of property for purposes of the state takings clause under the holding in

Jacobsen, an order authorizing such geological activities pursuant to the

procedures set forth in the current precondemnation entry and testing statutes

would not violate the state takings clause. As discussed above with reference to

the environmental order, the state takings clause does not always require a public

entity to institute a classic condemnation action before it engages in conduct that

may result in a taking or damaging of property for which just compensation must

be paid under the state takings clause. With respect to the proposed geological

testing, as with the authorized environmental testing, the Department is not

seeking to obtain title to private property, to permanently maintain bored holes on

the landowners‘ property, or to obtain exclusive possession of any portion of the

property for a significant period of time.32

31 We note in this regard that on remand from the United States Supreme

Court‘s decision in Loretto, supra, 458 U.S. 419, the New York Court of Appeals

concluded that even if the challenged New York statute worked a per se taking of

a landlord‘s property, the New York statute nonetheless did not violate the federal

takings clause because the statute permitted a landlord to obtain damages — just

compensation — for any loss sustained as a result of the statute‘s requirements.

(See Loretto v. Teleprompter Manhattan CATV Corp. (N.Y. 1983) 446 N.E.2d

428, 432-433, 448.)

32 Because no permanent physical occupation of property is involved here, we

have no occasion to determine what procedure would be required under the state

takings clause in the event that precondemnation testing required such activity.

70

Under the precondemnation entry and testing statutes, a landowner has the

opportunity to object to the proposed geological activities and to propose

limitations on drilling activities that would eliminate or minimize any potential

interference with the landowner‘s continued use of its properties during the period

in which the geological activities are undertaken. The landowner may present

evidence regarding the amount of funds that the Department should be required to

deposit in advance of its entry and undertaking of the geological activities to

compensate the property owner for any loss sustained as a result of those

activities. As the trial court‘s order with respect to the environmental activities

demonstrates, under the applicable statutes a trial court is required to take into

account the property owner‘s legitimate objections and concerns in devising the

conditions under which any geological testing may proceed and in determining the

amount of funds that the public entity is required to deposit before undertaking

such testing.

For the reasons set forth in our discussion relating to the environmental

order, we conclude that the precondemnation entry and testing statutes — by

requiring the Department to obtain a court order prior to undertaking the

geological testing activities, authorizing the trial court to limit the activities in a

manner that protects the interests of the property owner, requiring the Department

to deposit in court an amount that the court determines is sufficient to cover the

damages that may result from the authorized activities, and authorizing a

landowner to recover damages for any actual damage to the property or substantial

interference with the owner‘s possession and use of the property resulting from the

71

Department‘s geological activities — satisfy the requirements of the California

takings clause as applied to the proposed geological testing.33

Accordingly, we conclude that the trial court and Court of Appeal erred in

determining that the state takings clause precluded the trial court from issuing an

order, pursuant to the precondemnation entry and testing statutes, that would

authorize the Department to conduct the proposed geological activities on the

properties at issue.

33 The landlords have cited a number of out-of-state cases that hold, consistent

with our Jacobsen decision, that when a public entity intends to conduct deep

drilling as part of precondemnation testing, the drilling activity would constitute a

taking or damaging of property for purposes of the applicable state takings clause

and that, in such a case, a classic condemnation action must be instituted. (See,

e.g., County of Kane v. Elmhurst Nat. Bank (Ill.Ct.App. 1982) 443 N.E.2d 1149,

1154; Missouri Highway & Transportation Com. v. Eilers (Mo.Ct.App. 1987) 729

S.W.2d 471, 473-474; Burlington No. & S.F. Ry. V. Chaulk (Neb. 2001) 631

N.W.2d 131, 140;.) None of the jurisdictions in question, however, had adopted a

statutory scheme comparable to California‘s current precondemnation entry and

testing statutes, in which a public entity, prior to engaging in such drilling

activities, must obtain a court order and deposit in court an amount that the court

determines is probable compensation for any loss that may be caused by the

authorized drilling. Thus, none of the decisions upon which the landlords rely is

inconsistent with the conclusion reached here. (Cf. Mackie v. Mayor & Comm’rs

of Elkton (Md. 1972) 290 A.2d 500, 506 [―We shall not undertake to say here that

prior payment or the tender of payment is a sine qua non for entries and activities

looking to the acquisition of the ‗information‘ [i.e., data from subsoil testing]

appellees say they must have. It seems reasonable to suppose that the Legislature

will devise a mechanism which will be adequate, equitable and valid.‖ (Italics

added.)].)

72

IV. Conclusion

For the reasons discussed above, the judgment of the Court of Appeal is

reversed in its entirety, and the matter is remanded to the Court of Appeal for

further proceedings consistent with this opinion.34

CANTIL-SAKAUYE, C. J.

WE CONCUR:

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

CUÉLLAR, J.

KRUGER, J.

34 In light of its constitutional ruling, the Court of Appeal did not reach a

number of additional issues raised by the landowners on appeal, including the

validity of the trial court‘s rulings with regard to the availability of discovery in a

precondemnation proceeding and the right of lessees or easement holders to

participate in such a proceeding. The Court of Appeal may address those issues

on remand.

73

CONCURRING OPINION BY LIU, J.

I agree with the results the court reaches today. But as to the holding that

California Constitution, article I, section 19, subdivision (a) (hereafter article I,

section 19(a)) does not require the Department of Water Resources (Department)

to initiate a classic condemnation proceeding before conducting its proposed

environmental and geological testing activities, I am not persuaded by the court‘s

reasoning and would reach this holding on different grounds.

In this case, the Department sought judicial authorization under the

precondemnation entry and testing statutes (Code Civ. Proc., §§ 1245.010–

1245.060) to engage in certain environmental and geological testing activities as a

preliminary step to possibly condemning property for use in new water

conveyance facilities. The question is whether such activities and the statutory

procedures that authorize them are consistent with article I, section 19(a), which

states: ―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.‖

Today‘s opinion says the second sentence of this provision authorizes a

public agency to conduct testing activities that may result in taking or damage to

1

property without first paying the owner, so long as certain protections enacted by

the Legislature are observed. (Maj. opn., ante, at p. 55 [―[A]lthough the second

sentence of article I, section 19, subdivision (a) of the California Constitution may

not have been drafted with the precondemnation setting in mind, in fashioning the

precondemnation entry and testing statutes the Legislature, acting under the

authority granted by that sentence, has provided comparable protections to the

property owner so as to satisfy the requirements of the state takings clause.‖].) By

its plain terms, the second sentence of article I, section 19(a) speaks of

legislatively enacted procedures that apply ―following commencement of eminent

domain proceedings.‖ In the court‘s view, a petition to obtain an order for

precondemnation testing (Code Civ. Proc., § 1245.030) is an ―eminent domain

proceeding‖ within the meaning of article I, section 19(a). (Maj. opn., ante, at

p. 53, fn. 20.) I respectfully disagree.

When construing a constitutional provision, ― ‗[i]t is to be presumed, in the

absence of anything in the context to the contrary, that the words were used in the

ordinary acceptation and as defined by the statutes in force at the time.‘ ‖ (State

M. B. & L. Assn. v. Los Angeles (1939) 30 Cal.App.2d 383, 385.) Under the

Eminent Domain Law, ―[a]n eminent domain proceeding is commenced by filing a

complaint with the court.‖ (Code Civ. Proc., § 1250.110.) The filing of a

complaint initiates a condemnation proceeding, and the public agency is required

to give any interested persons a clear description of ―the property sought to be

taken.‖ (Id., § 1250.120.) This was the meaning of the phrase ―commencement of

eminent domain proceedings‖ at the time of article I, section 19‘s enactment in its

current form in 1974. (See Mt. San Jacinto Community College Dist. v. Superior

Court (2007) 40 Cal.4th 648, 657.) The Eminent Domain Law referred to a

―proceeding in eminent domain‖ as a proceeding in which a complaint is filed to

condemn property. (See Code Civ. Proc., former § 1243, as amended by Stats.

2

1963, ch. 70, § 1, p. 698; id., former § 1243.4, added by Stats. 1961, ch. 1613, § 1,

p. 3442; id., former § 1243.5, added by Stats. 1957, ch. 1508, § 1, p. 2840.) When

the Legislature reenacted the Eminent Domain Law in its present form in 1975

(Stats. 1975, ch. 1275, § 2, p. 3409) shortly after the enactment of article I, section

19(a), it was presumably aware of that constitutional provision and used the term

―eminent domain proceeding‖ with that provision in mind. (See California

Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575, 59

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