The Fifth District Court of Appeal has concluded that Fresno County did have the right to pursue eminent domain proceedings in order to obtain an easement across private land required to prevent another property from being rendered landlocked by another condemnation proceeding. The case began when the county constructed a wastewater treatment facility on land adjacent to property owned by the Donleavey family. The Donleaveys filed an inverse condemnation action. In a proposed settlement agreement, the county agreed to purchase part of the Donleavey property - and also to convey to the Donleaveys a road and utility easement across a third party's private property so that their remaining property would not become landlocked. Under the settlement agreement, the county agreed to let the Donleaveys resume her inverse condemnation suit if the county did not convey the easement to them in a timely manner. In order to obtain the easement, the county filed an eminent domain action against owners of an adjacent property, including the Kriegbaum family and Bernadynne Shelton. But at this point, the county got caught up in a Catch-22. The Kriegbaums and Ms. Shelton argued that the county lacked standing to bring such a condemnation proceeding until it had completed the condemnation of the Donleavey property for public use. But under the settlement agreement with the Donleaveys, the county could not obtain title to the Donleavey property until it had obtained the easement from the Kriegbaums and Shelton. The county responded by arguing that under Code of Civil Procedure ยง1240.350, which covers eminent domain, it had to show only that the purchase was "underway" - not that it was complete. Fresno County Superior Court Judge Stephen J. Kane ruled in favor of the Kriegbaums and Shelton and also ordered the county to pay their attorneys' fees. While an appeal was pending, the county reached a settlement agreement with the Kriegbaums and Shelton and obtained the Donleavey property. Fresno County asked the Fifth District to move forward with a ruling even though the issue was apparently moot, arguing that the situation was likely to recur and clarity was needed. The county also wanted the Fifth District to revisit the attorneys' fees issue. On appeal, the Fifth District ruled in favor of the county, with the issue turning on how the word "acquire" is used in the Code of Civil Procedure. The court ruled that Judge Kane had improperly "omitted the word 'acquires' from the statute and replaced it with the past tense 'acquired'." In so doing, the Fifth District said, Judge Kane had "not taken into account section 1235.050's legislative mandate that the statutes found in Title 7 of the Eminent Domain Law, of which section 1240.350 is a part, be construed so that the 'present tense includes the past and future tenses; and the future, the present." The court also found that the Code of Civil Procedure "clearly authorized the county to initiate this eminent domain proceding against the parcel owned by Ms. Shelton." The Case: County of Fresno v. Bernadynne B. Shelton, No. F023910, 98 Daily Journal D.A.R. 9783 (issued September 9, 1998). The Lawyers: For Fresno County: Philip J. Norgaard, Deputy County Counsel, (925) 335-1830. For Shelton: Jon Wallace Upton, Kimball, MacMichael & Upton, (209) 435-5500.