Agencies May Conduct Precondemnation Testing Before Satisfying Other Prerequisites to Condemnation
In Department of Water Resources Cases, 119 Cal.App.5th 602 (2026), the Third District held that the Department of Water Resources (DWR) may obtain court orders authorizing entry onto private property for surveys, sampling, and similar investigative work without first satisfying the requirements that govern a traditional eminent domain action.
The DWR sought access to numerous private properties to conduct surveys, borings, sampling, and other investigative activities for a potential water conveyance project. DWR relied on precondemnation entry statutes (Code Civ. Proc., § 1245.010 et seq.), which authorize a public entity with eminent domain power to obtain a court order permitting entry for studies and testing reasonably related to a potential acquisition.
The landowners argued that Water Code sections 250 and 11580 required DWR to have an authorized and funded project before undertaking these activities. In effect, they contended that DWR was required to satisfy the same prerequisites that apply when a public agency decides to condemn property.
The court disagreed. Relying heavily on the California Supreme Court's decision in Property Reserve, Inc. v. Superior Court, 1 Cal.5th 151 (2016), it explained that the purpose of the precondemnation entry statutes is to enable a public agency to determine whether property is suitable for acquisition before making a final decision to condemn it. The Water Code sections relied on by the landowners, by contrast, are explicit prerequisites to a decision to “commence [a] proceeding in eminent domain.” Requiring a completed project authorization and funding before investigative testing would largely eviscerate the purposes of the precondemnation statutes.
The court therefore held that DWR was not required to obtain the authorizations and findings associated with a decision to condemn property before seeking entry orders under the precondemnation statutes.
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Public agencies frequently need environmental, geotechnical, and engineering information before deciding whether to acquire property for a project. This decision confirms that agencies generally may conduct those investigative activities under the precondemnation entry statutes before taking the formal steps necessary to acquire property through eminent domain. For property owners, the more promising grounds for challenging an entry request involve the scope of the proposed activities, the degree of interference with the property, or the amount of compensation owed, rather than the absence of formal condemnation authorization.
