Appearing in JNREL Vol. 22 No. 2, this comment was written by former Comments Editor Ashley Owens. This abstract was written by staff member Tanner James.

Few legal terms elicit an impassioned response comparable to that inspired by "eminent domain." When discussing the governmental power to take possession of private, real property, the reactions are as varied and intense as one might imagine. Given this volatility, courts are faced with a delicate balancing act when defining the terms and limits of this power and its interpretation.

In Metropolitan Water District v. Campus Crusade for Christ, Inc., 161 P.3d 1175 (Cal. 2007), the California Supreme Court undertook the task of defining the role of judge and jury in determining damages (i.e., compensation) in eminent domain actions. At issue was the question of who should decide what constitutes "the highest and most profitable use to which the property might be put in the reasonably near future." Specifically, when property would require rezoning in order to achieve its "highest and most profitable use," who is to decide whether the possibility of rezoning is sufficient to justify damages based on the planned use of the property?

In a reversal of the lower court, the California Supreme Court held that the jury must be presented any evidence that would show a "reasonable probability" of rezoning. Furthermore, the court held that the question of rezoning-probability should be submitted to the fact-finders if a reasonable juror could find that rezoning is likely. This holding effectively establishes the judge as a gatekeeper, while also granting substantial power to the jury to determine the extent of damages.

The implications of this case are, appropriately, subject to criticism from both poles. While the damages awarded may increase as a result of jury control, the judge still retains the power to exclude certain damages as the ultimate gatekeeper.