Legal Question in Real Estate Law in California

Legality of Eminent Domain for City to seize part of Open Space

Can anyone point to any sources of precedents for a town's use of the Eminent Domain clause to seize from itself a small part of a large, previously designated Open Space property. The intent is for taking 3 acres, plus whatever access road acreage may be necessary, from a 30-100 acre parcel for the purpose of building a publics works Corporation Yard. Can we bypass the deed from the original owner which states that any building or development of any kind on the 'Open Space' voids the deed, causing the entire parcel to revert from the city's control back to the donors.

Specifically, one such deed states:

''PARTY X hereby grants to TOWN Y, A Municipal corporation, the following real property...

This grant is being made so that said real property can be devoted only to the following ''open-space uses'':

(A) Scenic land; (B) Watershed or ground recharge land, (C ) Wildlife habitat. If said property, or any part of it, ceases continuously for two (2) years or more to be used for such purposes, the same shall revert in fee ownership to Grantor and its heirs and assigns.''

Also, does this wording in any way allow for public hiking access? Thank you.


Asked on 3/14/04, 5:59 am

1 Answer from Attorneys
Martin Snitow

Re: Legality of Eminent Domain for City to seize part of Open Space

The former owner granted a fee subject to reversion. What you are proposing would satisfy the condition and trigger the reversion.

The town could certainly condemn part of the property and use it as it wishes. But the market value of that part of the property and title to the rest of the land would belong to the grantor or his heirs.

I don't see why hiking would not be an appropriate activity for "scenic land."

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Answered on 3/15/04, 2:12 pm


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