VALIDITY OF EXCESS TAKING TO AVOID SEVERANCE DAMAGES

THERE ARE A NUMBER OF HIGHWAY CONDEMNATION CASES IN WHICH CONDEMNEES HAVE CHALLENGED THE CONDEMNOR'S RIGHT TO TAKE, EITHER ON THE BASIS THAT THE TAKING IS NOT FOR A RECOGNIZED PUBLIC USE, OR ON THE BASIS THAT EVEN THOUGH A VALID PUBLIC USE IS INVOLVED, THE DESIRED LAND IS NOT NECESSARY FOR THE PROJECT UNDERTAKEN. IN SOME CASES THE LANDOWNER CONTENDS THAT MORE LAND IS BEING TAKEN THAN IS NECESSARY, BUT A STATE STATUTE EXPRESSLY AUTHORIZES EXCESS CONDEMNATION. IN THE CASE OF THE PEOPLE V. LAGISS, THE CALIFORNIA DEPARTMENT OF PUBLIC WORKS INITIALLY SOUGHT TO ACQUIRE ALL OF THE DEFENDANT'S LAND FOR A STATE HIGHWAY. THE TRIAL COURT FOUND THAT NO PUBLIC USE ATTACHED TO THE EXCESS LAND, ACCEPTING DEFENDANT'S THEORY THAT IF PROPERTY IS NOT NEEDED FOR A PUBLIC USE, SUCH FINDINGS COMPEL A CONCLUSION THAT THE TAKING IS INVALID. IN REVERSING THE TRIAL COURT, THE APPELLATE COURT HELD THAT A TAKING UNDER CALIFORNIA'S EXCESS CONDEMNATION STATUTE IS VALID EVEN IF THE EVIDENCE SHOWS THAT THE COMMISSION DID NOT INTEND TO USE THE DISPUTED PORTION FOR THE HIGHWAY PURPOSES. THE LAGISS CASE SEEMS TO BE A CORRECT STATEMENT OF CALIFORNIA LAW UNDER THE STATE CONSTITUTIONAL PROVISION AUTHORIZING CONDEMNATION OF MARGINAL LAND BEYOND THE AMOUNT NEEDED FOR RIGHT-OF-WAY. THE QUESTION OF PRESENT NECESSITY FOR A PROPOSED TAKING AND PUBLIC USE OF THE PROPOSED TAKING ARE CLOSELY RELATED.

  • Supplemental Notes:
    • No 4, pp 13-21
  • Authors:
    • Snyder, R S
  • Publication Date: 1965-6

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Filing Info

  • Accession Number: 00238783
  • Record Type: Publication
  • Files: TRIS
  • Created Date: Jul 21 1970 12:00AM