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OFFICE OF THE CITY ATTORNEY <br />OPINION NO. 73-13 <br />FEBRUARY 12 , 197 3 <br />~- <br />SUBJECT: Possible Condemnation by a City of an Open Space <br />Easement on a Golf Course Owned by that City; the <br />Easement Being Owned by Another City. <br />REQUESTED BY: City Attorney <br />OPINION BY: Stephen Chase, Deputy City Attorney <br />QUESTION No.l: Can a city condemn an open space easement on that <br />city's golf course when the easement is owned by <br />another city? <br />ANSWER: Under certain circumstances, yes. <br />QUESTION N0.2: Can the City of Santa Ana make an agreement with another <br />city setting the value of an easement should that other <br />city condemn the easement? <br />ANSWER: Subject to limitations, yes. <br />ANALYSIS OF QUESTION NO. 1: <br />Code of Civil Procedure Section 1240 provides in relevant part, <br />"The private property which may be taken under this title includes:. <br />(3) property appropriated to public use; but such property shall not <br />be taken unless for a more necessary public use than that to which it <br />has already been appropriated...but property appropriated to the use <br />of any county, city and county, incorporated city or town, or m~ini- <br />cipal water district, may not be taken by any other county, city and <br />county, incorporated city or town, or municipal water district while <br />such property is so appropriated and used for the public purpose for <br />which is has been so appropriated." <br />Thus under the above quoted Code Section, the City might well <br />condemn the easement on property already appropriated to a public <br />use (and a golf course would be a public use), if it was used for <br />a more necessary public use. It is also clear under the above quoted <br />Section that merely to condemn the easement, and still use it for a <br />golf course purposes would be prohibited by the Section. The question <br />then arises, what is then a more necessary public use? There is no <br />definition of a more necessary public use. However, there are certain <br />statutory indications of what will be considered more necessary public <br />uses in certain circumstances. For example, C.C.P. Section 1241.7 es- <br />tablishes, subject to certain exceptions, a rebuttable presumption <br />23 <br />