What is a Partial Taking in Eminent Domain? (CCP § 1263.410)

Underwood-Blog-Images-1-300x300Not all eminent domain proceedings involve the government taking an entire piece of property. If the property is large enough and the government’s project is limited in scope (expanding a road, for instance), then the government can instead opt for a “partial” taking of the property.

Despite this difference, partial takings are nonetheless subject to the requirement of just compensation for property owners. And in addition, property owners may be entitled to special damages if the government project diminishes the fair market value of the rest of the property.

Eminent domain is, however, one of the more difficult fields to navigate in litigation. This is in no small part due to the many evidentiary hurdles in place that make proving the right amount of just compensation a timely and expensive process. At Underwood Law Firm, our attorneys are more than familiar with overcoming these evidentiary roadblocks and are ready to help assist you with your litigation efforts.

What is Eminent Domain?

Eminent domain is a complicated and controversial subject. At its core, it is the right of the government to take the private property of its citizens for its own means. But this cannot be done without compensating the owners.

Eminent domain is enshrined in both the California and federal Constitutions. Article 1, section 19, subdivision (a) of the California Constitution provides: “[p]rivate 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.”

As the rest of this post will illustrate, however, what constitutes “just” compensation is a difficult determination for courts to make.

What Separates a “Partial” Taking from a Regular Taking?

The key phrase in the California Constitution that allows for partial takings is that property may be taken or damaged. Put differently, government entities are entitled to conduct a condemnation of a whole property or just a portion thereof.

There are a few typical situations when the government would choose to employ the second option, but almost always, an easement is involved. For example, temporary construction easements are a common tool for the government to employ when it needs to occupy the private property to work on another project. They are utilized “when a public entity seeks to obtain exclusive possession of a portion of the property for a significant, albeit temporary, period of time.” (Property Reserve, Inc. v. Superior Court (2016) 1 Cal.5th 151, 199.)

Sometimes, however, the easement itself is a public project. If, for example, a road needs to be constructed through a multi-acre lot, then the government will “damage” only a portion of the property to ensure the project’s construction.

Whatever the case may be, partial takings all emphasize one aspect: the portion of the property taken or damaged is “part of a larger parcel.” (CCP § 1263.410 (a).)

What is Just Compensation?

Whether the government condemns the whole property or merely a portion, the owner of the property is entitled to “just compensation.” (San Diego Metro. Transit Dev. Bd. v. Cushman (1997) 53 Cal.4th 918, 925.) “Just compensation” is far and away the focus of almost every eminent domain action. While the principle is, in essence, to fully compensate the property owner for their loss, the exact measure of value is heavily litigated.

This source of debate comes from the fact that under the law, just compensation means the fair market value of the property. But the Code of Civil Procedure’s definition of fair market value is somewhat unwieldy. Courts have attempted to simply by the matter by stating instead that the fair market value is the “highest and best use” for which the property is adaptable. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 867.)

But this definition, too, is ambiguous for most litigants. And regardless of how the law may attempt to define fair market value, proving it in court is another matter entirely. By statute, one may establish the value of the property to be taken only through expert testimony. (Evid. Code § 813(a).) And not only will this expert testimony be inevitably expensive, but the experts themselves are also bound by rigid evidentiary protocols that limit their methods for valuation.

What is Severance Damages?

The most unique feature of partial takings is that they entitle property owners to a special type of recovery called “severance” damages. These are only available for partial takings because, normally, a full taking removes any future interest in the property that the property owner may have. In all likelihood, whatever was standing on the piece of land will be removed to complete the project.

But with partial takings, there is at least some portion of the land that will remain with the property owner. Thus, severance damages are the means by which the owner is compensated for any residual damage the government project may have on the rest of the property.

How Does a Court Calculate Severance Damages for Partial Takings?

Like the determination of “just compensation,” severance damages are prone to many code-specific definitions and mountains of legal jurisprudence.

The Code of Civil procedure states that “compensation for injury to the remainder [the land not being taken] is the amount of damage to the remainder caused by the taking, reduced by the amount of the benefit to the remainder caused by the taking.” (CCP § 1263.410.)

But just because the government institutes partial taking does not mean a property owner is automatically entitled to severance damages. Instead, the standard is that they are available only when the government project itself causes some diminution in the fair market value of the remainder of the property. (Metropolitan Water Dist. of So. California v. Campus Crusade for Christ (2007) 41 Cal.4th 954, 970.)

This means that the same issues addressed above regarding “fair market value” apply to determinations on severance damages. That said, there is some silver lining in that severance damages are not limited to situations where the government accidentally causes extra damage to the property. So long as a party can prove some factor from the project caused a decline in fair market value to the rest of the property, they are entitled to an award.

How can the Attorneys at Underwood Law Assist You?

Eminent Domain is an immensely complicated field. A property must usually be appraised multiple times to arrive at a fair market value, and even then, it can be subject to the determination of a jury. But at Underwood Law, our knowledgeable attorneys are here to help. If you’re concerned that a public entity’s offer for a partial taking is too low, wondering if you’re entitled to severance damages, or if you just have questions, please do not hesitate to contact our office.

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