United States v. Reynolds (397 U.S. 14)/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

All constitutional questions aside, there was in the present case a right to trial by jury on 'the issue of just compensation' as provided in Rule 71A(h). I do not see how 'the issue of just compensation' can be decided without considering whether or not the property was probably within or not within the project's original scope. As the opinion of the Court makes plain, important questions of value turn on that decision. In this case it is seen in the difference between the value of the property as agricultural land and its value as potential lakeside residential or recreational property.

If it were certain beyond doubt that the property was within the original scope of the project, a different question might be presented. But there is nothing in this record to show that respondents' property was included in the original design. We deal here with probabilities or perhaps with possibilities. If the property were not within the original design, a purchaser could reasonably anticipate that he would be able to devote the land to its highest economic use reflected in part by its proximity to the Government's project. Henry George would have it otherwise; but that has not been the direction of our economy. Hence what we are talking about is market value and that in turn includes all of the ingredients that make up price. The most central element of price in the area now litigated was the relation of the land to the original project and that issue was one of fact. The 'issue of just compensation' as used in Rule 71A(h) truly cannot be resolved without considering that question.

There seems to be no reason why the jury chosen by Congress to decide the final issue of 'just compensation' should be denied the power to determine the subordinate issues of fact upon which the jury's final verdict must rest.

There are powerful forces loose in this country that deprecate the use of juries. The Department of Justice and other federal agencies often seem to dislike juries in condemnation cases. In my Circuit, juries have unexpectedly risen up in favor of homeowners and against Washington, D.C., and granted 'just compensation' in large sums, in retaliation, it is believed, against hard-nosed officials who, with all the power of the central government, seek to plow them under. At other times the jury has acted differently and cut down the award. Juries in these condemnation cases perform, in other words, an historic restraint on both executive and judicial power. See Bushell's Case. 6 How.St.Tr. 999, decided in 1670.