(a) Where property has been appropriated to public use by any person other than a public entity, the use thereof by a public entity for the same use or any other public use is a more necessary use than the use to which such property has already been appropriated.
§ 1240.650.Use By Public Entity More Necessary Use
Title 7. Eminent Domain Law · Chapter 3. The Right to Take · Article 7. Condemnation for More Necessary Public Use · Last amended 1993 · Last verified July 29, 2026
In one sentenceSection 1240.650 states, without presumption language, that a public entity's use of property already appropriated by a non-public-entity is a more necessary use, and that a public entity's reuse of its own already-appropriated property is more necessary than any non-public-entity's competing use, except that electric, gas, or water utility property gets only a rebuttable presumption rather than this flat rule.
Full Text of § 1240.650
(b) Where property has been appropriated to public use by a public entity, the use thereof by the public entity is a more necessary use than any use to which such property might be put by any person other than a public entity.
(c) Where property which has been appropriated to a public use is electric, gas, or water public utility property which the public entity intends to put to the same use, the presumption of a more necessary use established by subdivision (a) is a rebuttable presumption affecting the burden of proof, unless the acquiring public entity is a sanitary district exercising the powers of a county water district pursuant to Section 6512.7 of the Health and Safety Code.
Plain-English Summary
Section 1240.640 speaks in terms of presumption for the state. Section 1240.650 uses flatter language for public entities generally: subdivision (a) says the use of property already appropriated by a non-public-entity, when taken over by a public entity, is a more necessary use, not merely presumed to be. Subdivision (b) does the same for a public entity's continued use of its own already-appropriated property against a non-public-entity's competing use.
That distinction in wording is worth noticing. Section 1240.640's presumptions for the state are expressly rebuttable and affect the burden of proof; subdivisions (a) and (b) here don't use presumption language at all, stating the more-necessary-use conclusion as a given rather than something a defendant might disprove.
Subdivision (c) then carves out an exception that reintroduces a presumption: where the appropriated property is electric, gas, or water public utility property that the acquiring public entity intends to put to the same use, the more-necessary-use conclusion in subdivision (a) becomes a rebuttable presumption affecting the burden of proof after all, unless the acquiring entity is a sanitary district exercising county water district powers under Health and Safety Code § 6512.7, in which case the flat rule in subdivision (a) applies without the utility carve-out softening it.
Frequently Asked Questions
Does a public entity automatically win a more-necessary-use fight against a non-public-entity's existing use?
Subdivisions (a) and (b) state the conclusion directly rather than framing it as a rebuttable presumption, unlike the parallel provisions for the state in § 1240.640.
Is there an exception to that flat rule?
Yes. When the appropriated property is electric, gas, or water utility property the acquiring public entity intends to use the same way, subdivision (c) turns the rule into a rebuttable presumption affecting the burden of proof.
Does the utility exception apply to every public entity?
No. It doesn't apply if the acquiring entity is a sanitary district exercising the powers of a county water district under Health and Safety Code § 6512.7.
Amendment History
Amended by Stats. 1992, Ch. 812, Sec. 2. Effective January 1, 1993.
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: public entity more necessary use utility property california