If you want to see a solid, unanimous eminent domain opinion by the California Supreme Court, the kind that we often need but rarely get in this field of law, see Metropolitan Water District v. Campus Crusade for Christ, filed July 23rd, 161 P.3d 1175, 41 Cal.4th 954, 62 Cal.Rptr.3d 623 (2007). It’s a straightforward expositive opinion that lays out the proper purview of decision-making by juries as opposed to judges, and straightens out preexisting confusion in California eminent domain law concerning burden of proof.
The trial judge overruled another trial judge and granted a series of MWD’s motions in limine whose combined effect was to forbid Campus Crusade to present any evidence of severance damages, ruling in the process that a condemnee has the burden of persuasion and that here, Campus Crusade failed to carry it.
On the latter point, lawyers for MWD had the chutzpah to argue that, notwithstanding an express California statute abolishing burden of proof in eminent domain cases, the condemnees still had the burden of proof on every factual issue, except for the “bottom line” award. The court disagreed. It responded by differentiating between the burden of going forward with the evidence (which is on the condemnee) and the burden of persuasion on which neither side has the burden of proof. Besides, severance damages are the difference between fair market value of the subject property in the before condition and that of the remainder in the after condition. Thus, said the court, calculation of severance damages inherently involves valuation of the subject property — a classic jury issue.
The trial judge made his ruling of no severance damages even though the taking was for a water tunnel so designed that in case of an earthquake it would rupture a few feet under the surface of the subject property and inundate it at the rate of thousands of cubic feet of water per second. And did I mention that this tunnel crosses the San Andreas fault right under the subject property? It does.
The California Court of Appeal, reversed the second trial judge, and now the state Supreme Court has affirmed that holding.
This opinion also holds that the issue of highest and best use (where such use is other than the currently pernitted one) is also for the jury, with the condemnee required to present enough evidence to cross the threshold of substantiality. The judge only acts as a gatekeeper charged with making sure that there is sufficient substantial evidence to raise the issue. From then on, probability of rezoning is a jury question.