(a) Where property has been appropriated to public use by any person other than the state, the use thereof by the state for the same use or any other public use is presumed to be a more necessary use than the use to which such property has already been appropriated.
§ 1240.640.Presumption that Use By State More Necessary Use
Title 7. Eminent Domain Law · Chapter 3. The Right to Take · Article 7. Condemnation for More Necessary Public Use · Enacted 1975 · no amendments on record · Last verified July 29, 2026
In one sentenceSection 1240.640 creates rebuttable presumptions, affecting the burden of proof, that the state's use of property already appropriated by another entity is more necessary than the existing use, and that the state's own reuse of its own already-appropriated property is more necessary than any competing use another person might propose.
Full Text of § 1240.640
(b) Where property has been appropriated to public use by the state, the use thereof by the state is presumed to be a more necessary use than any use to which such property might be put by any other person.
(c) The presumptions established by this section are presumptions affecting the burden of proof.
Plain-English Summary
This is the first of several presumptions this article uses to allocate priority among competing public uses, and it favors the state specifically. Subdivision (a) presumes that when property has already been appropriated to public use by anyone other than the state, the state's use of that same property, for the same use or a different one, is more necessary than the use already there.
Subdivision (b) covers the reverse scenario: property the state has already appropriated. There, the state's continued use of its own property is presumed more necessary than any use another person might want to put it to.
Subdivision (c) sets the presumption's strength: it's a presumption affecting the burden of proof, the stronger of California's two presumption categories, meaning the party against whom it operates must persuade the court, not merely produce contrary evidence, to overcome it.
Frequently Asked Questions
Does the state get an advantage when it wants to condemn property already devoted to another public use?
Yes. Section 1240.640(a) presumes the state's use is more necessary than the existing use, when that existing use belongs to someone other than the state.
What about property the state already owns and uses?
Subdivision (b) presumes the state's continued use of its own already-appropriated property is more necessary than any competing use another person might propose.
How strong are these presumptions?
They affect the burden of proof, meaning the opposing party must persuade the court to overcome them, not merely produce some contrary evidence.
Amendment History
Added by Stats. 1975, Ch. 1275.
Source & verification. Section text is reproduced verbatim from
the Deering's California Codes Annotated / vLex. Enacted by the California Legislature.
Last verified July 29, 2026.
· Official source
Also known as: state eminent domain presumption more necessary use california