Eminent Domain Report

We’ve previously reported on the “Rails to Trails” process by which old railroad corridors are being abandoned and converted into other uses, such as hiking, biking or other trail purposes, and the potential ability of adjacent property owners to seek just compensation in certain circumstances.  But what happens when the railroad is owned in fee by the railroad, or alternatively, where the railroad continues to operate but adds a pathway within the railroad corridor?  Is compensation owed in these circumstances? 

The Nossaman team recently litigated these issues in a case ...

Under Arizona’s Constitution, as under its federal counterpart, a condemning authority may acquire private property if the use to which the acquired property will be put is a proper public use. From the outset of any contemplated acquisition, it is imperative that a governmental entity determine that the purpose for the acquisition will constitute a public use. This article summarizes some of the law governing public use.

A judge must determine that a proposed use is “really public” once an eminent domain action is filed. Ariz. Const. Art. 2, §17; A.R.S. § 12-1132(A). Though ...

As Nossaman’s annual eminent domain seminars are coming up on April 21st and April 28th, we thought it would be a perfect opportunity to do a little refresher on the condemnation process so that attendees are ready to dive in at the upcoming seminars.

What is Eminent Domain?

Eminent domain is the power to take property for “public use” upon paying just compensation. This power is rooted in the Fifth Amendment of the United States Constitution and Article I, Section 19 of the California Constitution.

Who has the Power of Eminent Domain?

In California, traditional public entities ...

Courts have historically denied inverse condemnation claims by property owners against water suppliers where the quality of water or chemicals used allegedly caused corrosion or damage to water pipes.  However, under a recent line of cases, that bar to recovery may be shifting.  In a new unpublished decision, Micheli v. City of Fresno (2026 Cal. App. Unpub. LEXIS 1027), the Court permitted a large-scale, class action inverse condemnation lawsuit to proceed where homeowners claimed the City’s water supply corroded their pipes and caused health-related concerns. 

Background ...

When the government approves a private development that diminishes neighboring property values, can a property owner maintain a takings claim?  According to a recent California court decision, the answer is no – governmental approval of a private project cannot trigger inverse condemnation liability. 

Background

In De La Cruz v. City of Los Angeles (2026 U.S. Dist. LEXIS 26413), a new six-story apartment building was being constructed next to the plaintiff’s residence.  The development was approved without a full environmental impact report based on a CEQA exemption for ...

When a lawsuit involves both inverse condemnation claims and other tort claims, trial courts often bifurcate the proceedings. A recent unpublished opinion from the Third District Court of Appeal, Rainey v. Nevada Irrigation District, 2026 Cal. App. Unpub. LEXIS 231, addresses what happens when findings made in the first phase resolve factual issues common to the claims reserved for the second phase.

Background

Two neighboring property owners sued the Nevada Irrigation District, alleging that water leaking and seeping from the District’s irrigation ditch caused landslides ...

In Washington State, when a public agency determines it needs to acquire property for a public project, the agency will work directly with the private property owner to negotiate a purchase price for the property rights needed. However, if the agency reaches an impasse in the negotiations with the property owner, the public agency may turn to its eminent domain power and initiate a condemnation lawsuit. A condemnation lawsuit triggers the formal legal process for the agency to take private property for a public purpose without the owner’s consent in exchange for payment of just ...

This seems like common sense, but a public agency cannot pursue an inverse condemnation cause of action for damages suffered from its own public improvements. Yet that is exactly what the County of Santa Cruz recently attempted against another local public agency. The Court denied leave to amend to add an inverse condemnation cause of action and left unanswered a significant policy question on whether a public agency can pursue a claim for inverse condemnation at all, or whether inverse condemnation only applies to damages to private (not public) property. … 

On the first day of Christmas my client came to me and asked: “who holds title to the partridge in a pear tree that is within our new proposed right-of-way?” I replied that a partridge is a wild animal and not typically subject to private ownership, however if the landowner claims it is a “pet”, it would be considered personal property.

On the second day of Christmas, my client asked me “what do we do if we find two turtle doves on the property that we need to condemn for a new highway?” I said let’s get a right-of-entry from the landowner to do a survey and environmental testing and ...

During the past several years, we’ve been following an eminent domain case playing out in Mendocino County related to the Skunk Train. In 2023, the court concluded that the Skunk Train operator, Mendocino Railway, did not have the right to take property because it was not proposing to put the property to a public use. In a recent unpublished opinion, the Court of Appeal revisited this conclusion, and addressed whether a railroad corporation qualified as a public utility with the authority to exercise eminent domain, and what evidentiary showing is required to establish public use ...