United States v. Great Falls Manufacturing Company

This is an appeal from a judgment in favor of the Great Falls Manufacturing Company, a corporation of the state of Virginia, for the sum of $15,692 as compensation for all past and future use and occupation by the United States of certain land, water-rights, and privileges claimed by that company, and all consequential damages which it may legally assert by reason of the execution of a certain one of the plans adopted by the government for supplying the cities of Washington and Georgetown with water. The case made by the finding of facts, is, in substance, as will be now stated:

On the thirty-first of August, 1852, congress appropriated $5,000 to enable the president to cause the necessary surveys and estimates to be made for the best means of supplying those cities with good and wholesome water. 10 St. 92, c. 108. In execution of that act, President Fillmore transmitted to congress the report of Gen. Totten, of the corps of engineers, recommending the construction of an aqueduct from the Great falls of the Potomac, situated in the state of Maryland, about 16 miles distant from Washington. The Great falls form a series of rapids extending for about one-half or three-fourths of a mile, in the course of which the river falls about 70 feet; from which to the tide-level at Washington there is a further fall of about 70 feet. Just above these rapids is Conn's island, lying near the Maryland shore, and distant about 1,400 feet from the Virginia shore. At its head, extending up the stream, are several small islands called the Cyclades, separated from each other and Conn's island by narrow channels. On the Virginia side, is a body of land known as the Toulson tract, extending along the river from a point opposite the middle of Conn's island to a point below the Great falls, and running back a distance of about half mile. A considerable portion of it is elevated ground, well adapted to the construction of mills and manufactories, which may be supplied with water-power from the river, and by canals, races, or other artificial water-ways. Before the construction by the government of the dam and other works to be presently referred to, Conn's island divided the Potomac river into two unequal channels, about 98 per cent. of the water passing through the Virginia channel, and 2 per cent. through the Maryland channel, at low stages; the total flow at low water being estimated at about 1,065 cubic feet per second, or 700,000,000 gallons daily. Of these lands, water-rights, and privileges, the Great Falls Manufacturing Company claimed to be the owner at and prior to the before-mentioned appropriation of $5,000.

On the third of March, 1853, congress appropriated, 'to be expended under the direction of the president of the United States, for the purpose of bringing water into the city of Washington, upon such plans and from such places as he may approve, one hundred thousand dollars: provided, that if the plan adopted by the president should require water to be drawn from any source within the limits of Maryland, the assent of the legislature of that state should first be obtained.' 10 St. 206, c. 97. On the third of May, 1853, the legislature of Maryland passed an act giving her assent to the purchase by the United States of such lands, and to the construction of such dams, reservoirs, buildings, and other works, within her limits, as might be required under any plan adopted by the president for supplying Washington with water. That act provided that if the United States could not agree with the owners for the purchase of land, earth, timber, stone, or gravel required for the construction of such works, or in case the owner thereof should be a feme covert or under age, non compos mentis, or a non-resident, 'it shall, nevertheless, be lawful for the United States to enter upon such lands, and to take and use such materials, after having first made payment or tendered payment for the same at the valuation assessed thereon,' in the manner prescribed in that act; also, that before the act should take effect, the United States 'shall agree to such conditions as the Chesapeake & Ohio Canal Company may consider necessary to secure the canal from injury in carrying into effect any plan that may be adopted for supplying the city of Washington with water as aforesaid.' Then following certain appropriations by congress for the purpose of executing the said plan: $250,000 'for continuing the work on the Washington aqueduct,' (10 St. 664, Act March 3, 1855, c. 175;) $250,000, or so much thereof as was necessary, 'for paying existing liabilities for the Washington aqueduct, and preserving the work already done from injury,' (11 St. 86, Act August 16, 1856, c. 129;) and $1,000,000 'for continuing the Washington aqueduct,' (11 St. 225, Act March 3, 1857, c. 108.)

By an act entitled 'An act to acquire certain lands needed for the Washington aqueduct, in the District of Columbia,' approved April 8, 1858, (11 St. 263, c. 14,) it was, among other things, provided: 'Whereas, it is represented that the works of the Washington aqueduct, in the District of Columbia, are delayed in consequence of the proprietors' refusal, in some cases, to sell lands required for its construction at reasonable prices, and because in other cases the title to the said land is imperfect, or is vested in minors or persons non compos mentis, or in a feme covert, or in persons out of the District of Columbia; and whereas, it is necessary for the making of said aqueduct, reservoirs, dams, ponds, feeders, and other works, that a provision should be made for condemning a quantity of land for the purpose: Therefore, be it enacted, etc., that it shall and may be lawful for the United States, or its approved agent, to agree with the owners of any land in the District of Columbia, through which said aqueduct is intended to pass, for the purchase or use and occupation thereof; and in case of disagreement, or in case the owner thereof shall be a feme covert, under age, non compos, or out of the District of Columbia, on application to a judge of the circuit court of said district, the said judge shall issue his warrant, under his hand, to the marshal of the said district to summon a jury. * * *' The rest of the act is limited to mere details.

On the twelfth of June, 1858, (11 St. 323, c. 154,) the further sum of $800,000, and so much of the $250,000 as was not used under the act of August 18, 1856, were appropriated 'for the completion of the Washington aqueduct.' Thereafter, on the twenty-seventh of July, 1858, proceedings were commenced by the United States, before a justice of the peace in Maryland, for the assessment of the damages which the dam of the Washington aqueduct proposed to be constructed at the Great falls should cause to the appellee, of which the latter had due notice. The damages were assessed at $150,000; but, in November of the same year, the inquisition, upon the application of the United States, was set aside by the circuit court of Montgomery county, Maryland, and another one was ordered. But there was no further prosecution of these proceedings.

By an act approved March 3, 1859, (11 St. 435, c. 84,) the dams, aqueducts, water-gates, reservoirs, and all improvements connected therewith, constructed or to be constructed by the United States for the conveyance of water from the Potomac river, above the Great falls, to the cities of Washington and Georgetown, were directed to be placed by the president 'under the immediate care, management, and superintendence of a properly qualified officer of the United States corps of engineers to be appointed by him, who shall act under the department of the interior,' etc.; his decision 'to be subject only to appeal to the secretary of the interior.' On the twenty-fifth of June, 1860, (12 St. 106, c. 211,) congress appropriated the sum of $500,000 for the aqueduct, 'to be expended according to the plans and estimates of Capt. Meigs, and under his superintendence.' On the twentieth of November, 1862, articles of agreement were executed between the secretary of the interior, in the name of the United States, and the Great Falls Manufacturing Company, wherein was recited the claim of the latter for compensation for the use by the former of certain lands and water-rights at the Great falls, the cost that would ensue to both parties from any further delay in the settlement of their differences, and the anxiety of the government to prosecute the work in question, and whereby such claim was referred to arbitrators, one of whom was the late Benjamin R. Curtis, with power to examine into, decide upon, and award such compensation, if any, as the claimant may be entitled to for the use and occupation of said land and water-rights, and all consequential damages that the company might legally claim by reason of the execution of the several plans adopted by the government in the location and construction of the dams and other works of the Washington aqueduct. Pursuant to this agreement, the United States and the claimant appeared by counsel before the arbitrators, witnesses were examined, and documentary evidence was submitted by the respective parties.

At the hearing the Great Falls Manufacturing Company filed with the arbitration a specific description of the lands to which they asserted title, and which they claimed would be affected by the improvements made or proposed to be made. The United States filed the specifications of their proposed plans of operations, being four in number. The arbitrators made an award in writing on the twenty-eighth of February, 1863, all the costs and expenses of which, including $12,000, the amount of compensation charged by them, were paid by the secretary of the interior out of the appropriations for the completion of the Washington aqueduct. By the award it was determined that the amounts to which the company was entitled as compensation and damages for the use and occupation by the United States of the land, water-rights, and privileges claimed by it, were as follows: If the first plan of improvements was carried into execution, $63,766; if the second, $50,000; if the third, $77,200; if the fourth, $15,692. The fourth plan involved the construction of a dam of masonry from the Maryland shore to Conn's island, and gave the United States the right to deepen the channels in the Maryland side of Conn's island, near its head, so as to supply the aqueduct with whatever quantity of water the dams would yield. The claimants presented to the arbitrators title deeds and proofs, showing a valid title in it to the Toulson tract, Conn's island, and the Cyclades. Objections were presented and urged on behalf of the United States, but the arbitrators held the title of claimants to be valid and satisfactory. No other title than that of claimant is asserted.

The conduit through which the water supply of the city of Washington is drawn was completed on the fifth of December, 1863. On the fourth of July, 1864, congress appropriated the sum of $150,000 'for the purpose of constructing the dam of solid masonry across the Maryland branch of the Potomac river, near the Great falls, and for constructing the conduit around the receiving reservoir, and for paying existing liabilities and expenses, engineering, superintendence, and repairs of said aqueduct.' 13 St. 384, c. 244. On the thirtieth of July, 1864, the United States entered into a contract for the construction of that dam, and, proceeding to construct it, took possession of so much of Conn's island as was required for the purpose of securing the dam and making a permanent abutment for it. And on July 28, 1866, the further sum of $51,687 was appropriated 'to complete the dam in the Potomac river at the head of the aqueduct, from the shore to Conn's island, with cut stone.' 14 St. 316. The dam so constructed is about 1,176 feet long. It extends from a point on the Maryland shore, just below the feeder or mouth of the aqueduct, across the channel between Falls island and Conn's island, to its abutment on the latter island, closing the Maryland channel of the river entirely across. It was constructed substantially in conformity with the fourth of the alternative plans presented to the arbitrators by the United States. Conn's island, in connection with the the Maryland shore and the dam, forms such a basis as is necessary for the purpose of supplying the aqueduct, having its upper end open to receive the flow of the water as needed. There is no other island or natural formation which could be utilized for forming a suitable basin without carrying the aqueduct much further up the river. So that if that island was not used it would be necessary to incur the expense of a larger aqueduct, and to carry the dam across to the Virginia shore, either above or below the island, or build some structure to take the place of the island. From any point below the rapids the elevation is insufficient to admit of the distribution of water by aqueduct; but there is sufficient elevation for that purpose from any point above them. The uses of the aqueduct require the entire flow of the water in the Maryland channel in the low stages of the river. The water drawn through it is distributed in the cities of Washington and Georgetown for the use of the government in its buildings, navy-yard, fountains, etc., and for the municipal and domestic uses of the said cities and their inhabitants. The cost of the present dam is $77,250, while that of the aqueduct is nearly four millions of dollars.

It is also found as a fact that the value of the water for the uses to which this is applied is derived from its elevation, which will admit of its flow or descent through the city; and when found at sufficient elevation to admit of being distributed by its natural flow, it possesses great value, and is paid for by cities, when taken from the control of private owners, according to its value.

Upon this state of facts, the court of claims found, as a conclusion of law, that the claimants were entitled to the judgment from which the present appeal is prosecuted.

''Sol. Gen. Phillips'', for appellant.

[Argument of Counsel from 653 intentionally omitted]

B. F. Butler and C. F. Peck, for appellee.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court: