A Claim for Severance Damages Based on a Temporary Construction Easement Must be Supported By Evidence that TCE Interfered with Owner's Actual Intended Use of the Property

April 29, 2008, by Meyers Nave

Severance Damages for a temporary construction easement were not allowed by the California Court of Appeal in its recent City of Fremont v. Fisher case (February 28, 2008) 160 Cal.App.4th 666. The Court's ruling was based on the property owner having failed to show that the TCE interfered with their actual intended use of the property. Even though temporary severance damages resulting from the construction of a public project are compensable, the temporary easement must interfere with the owner's actual intended use of the property to present evidence to the jury on temporary severance damages. In the Fisher case, the owner must have presented evidence as to a specific loss attributable to the delay in construction; a claim for such severance damages cannot be based on a hypothetical or conjectural, possible use of the property by the property owner during the TCE.

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