United States v. Chandler-Dunbar Water Power Company

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These writs of error are for the purpose of reviewing a judgment in a condemnation proceeding instituted by the United States under the 11th section of an act of Congress of March 3, 1909, being chapter 264, 35 Stat. at L. pp. 815, 820, U.S.C.omp. Stat. Supp. p. 1536. The section referred to is set out in the margin.1

The notice of condemnation required by the statute was duly given by the Secretary of War, and this proceeding was instituted against all the corporations and persons supposed to have any interest in the property sought to be condemned. A jury was waived and the evidence submitted to the court, which, at the request of all the parties, made specific findings of fact and law.

By an agreement, the property of the International Bridge Company required by the government was acquired by deed, and later, in the progress of the case, the property of the Edison-Sault Electric Company involved in the proceeding was acquired by stipulation. This eliminates from the cases every question except those arising in respect to the compensation to be awarded to the Chandler-Dunbar Water Power Company, the St. Marys Power Company, and Clarence M. Brown, receiver of the Michigan Lake Superior Power Company. The final judgment of the court was:

1. That the ownership in fee simple absolute by the United States of all lands and property of every kind and description north of the present St. Marys Falls ship canal, throughout its entire length, and lying between the said ship canal and the international line at Sault St. Marie, in the state of Michigan, was necessary for the purposes of navigation of said waters and the waters connected therewith, as declared by the act of March 3, 1909.

The compensation awarded was as follows:

a. To the Chandler-Dunbar Company, $652,332. Of this $550,000 was the estimated value of the water power.

b. To the St. Marys Falls Power Company, $21,000.

c. To the Edison-Sault Electric Company, $300,000, which has, however, been settled by stipulation.

d. To the Michigan Lake Superior Powr Company, nothing.

From these awards the government, the Chandler-Dunbar Company, the St. Marys Falls Power Company, and the Michigan Lake Superior Power Company, have sued out writs of error.

The errors assigned by the United States challenge the allowance of any compensation whatever on account of any water power right claimed by any of the owners of the condemned upland, and also the principles adopted by the district court for the valuation of the upland taken. The several corporations, who have sued out writs of error, complain of the inadequacy of the award on account of water power claimed to have been taken, and also of the valuation placed upon the several parcels of upland condemned.

The errors assigned by the United States deny that any water power in which the defendants below had any private property right has been taken, and also deny the claim that riparian owners must be compensated for exclusion from the use of the water power inherent in the falls and rapids of the St. Marys river, whether the flow of the river be larger than the needs of navigation or not. The award of $550,000 on account of the claim of the Chandler-Dunbar Company to the undeveloped water power of the river at the St. Marys rapids in excess of the supposed requirements of navigation constitutes the prime question in the case, and its importance is increased by the contention of that company that the assessment of damages on that account is grossly inadequate and should have been $3,450,000.

Each of the several plaintiffs in error also challenge the awards made on account of the several parcels of upland taken,-the government insisting that the awards are excessive, and the owners, that they are inadequate.

Assistant to the Attorney General Fowler and Mr. Reeves T. Strickland for the United States.

Mr. William L. Carpenter for the St. Marys Power Company.

Messrs. Moses Hooper, A. B. Eldredge and John H. Goff for the Chandler-Dunbar Water Power Company.

Statement by Mr. Justice Lurton:

Mr. Justice Lurton, after making the foregoing statement, delivered the opinion of the court: