United States v. Twin City Power Company/Dissent Burton

Mr. Justice BURTON, with whom Mr. Justice FRANKFURTER, Mr. Justice MINTON, and Mr. Justice HARLAN join, dissenting.

The issue here is the determination of the compensation which, under the Fifth Amendment, must be paid for privately owned fast land adjoining a navigable stream when such land is taken by the United States for a public use. For the reasons hereafter stated, I agree with the courts below that the proper measure of such compensation is the fair market value of the land at the time it is taken, and that this includes recognition of any fair market value of the land that is due to its riparian character.

This issue has confronted the United States ever since it proposed to construct a multipurpose dam across the Savannah River, and found it necessary to acquire privately owned land on which to locate its Clark Hill dam, plant and reservoir. Part of the needed land lay in South Carolina on the north bank of the river and the remainder on its south bank in Georgia. Of the 70,000 or more acres thus required, about 4,700, at the heart of the project, are the ones before us. Those in South Carolina are owned by the Twin City Power Company, a South Carolina corporation. Those in Georgia are owned by the Twin City Power Company of Georgia, a Georgia corporation. The latter is a wholly owned subsidiary of the former and the two will be referred to as Twin City.

In 1947, the United States, in seven proceedings, but under a single program, took possession of the 4,700 acres. It filed four actions in the United States District Court for the Western District of South Carolina, and three in the corresponding court for the Southern District of Georgia. Each sought to condemn the title to some of the property taken and to fix the compensation to be paid for it.

Because of the necessity for proceeding in two jurisdictions, the compensation issue has been passed upon by two District Courts and two Courts of Appeals, as well as by three Commissioners appointed jointly by the District Courts to recommend the compensation to be paid. All of the opinions rendered have held that the fair market value of the land taken should include recognition of the value of its location, availability and exceptional suitability for use as a dam site, plant site or reservoir basin incidental to a water-power development. By doing so, they have expressly declined to limit their estimates of the fair market value of the Twin City land merely to its market value for agricultural purposes and the supplying of timber as contended by the Government.

For over 50 years, the land in question has been the subject of frequent consideration and negotiation in connection with the proposed construction of some dam to raise the level of the Savannah River from 60 to 100 feet in that vicinity. Twin City was organized for the development of a hydroelectric plant in this area and began acquiring this property for that purpose in 1901. By 1911, it owned practically all of the land necessary for an integrated site for a hydroelectric power project with a 60-foot head at Price's Island. Under six Acts of Congress, passed between 1901 and 1919, Twin City was authorized to build power dams in the Savannah River at Price's Island utilizing the land involved here. The Secretary of War and the Chief of Engineers of the United States approved those plans. The land before us included an excellent dam site where the river narrowed to 900 feet. At appropriate points, the land included sound foundation rock and much clay suitable for earth dam purposes. The stream flow at Price's Island exceeded that of most hydro developments in North Carolina, South Carolina or Georgia. At all material times, there has been an ample and growing market for the electrical energy to be produced. The area contained substantially no improvements requiring removal and was suited for a reservoir basin extending 11 or more miles up the river.

In 1925, the Federal Power Commission granted Twin City a preliminary permit for a development at Price's Island involving a dam with a 60-foot head of water. In 1926, the Southeastern Power & Light Company negotiated with Twin City for the purchase of its land. Shortly thereafter, the Savannah River Electric Company intervened and obtained a license from the Commission to construct a 90-foot dam for a hydroelectric development which would have absorbed the land now before us. The Savannah River Electric Company also instituted, but later abandoned, proceedings to condemn the Twin City property. After World War II, the Savannah River Electric Company applied to the Commission for a permit to construct a dam for the development of water power at a point almost identical with the Clark Hill site. That proposal called for occupation of the Twin City land and negotiations for its purchase were renewed. By then, however, the United States had made plans for its own comprehensive improvement of the Savannah River for flood control, navigation and power purposes. In 1944, Congress had authorized the Clark Hill project. 58 Stat. 894. In 1947, the efforts of the Savannah River Electric Company came to an end with its unsuccessful petition for a federal license. In that year, the Government took possession of the land for its present Clark Hill project, calling for a 130-foot dam about six miles below Price's Island and for the complete absorption of the Twin City land.

Included in the 4,707.65 acres to be evaluated are 4,519.15 acres owned in fee, and 188.50 over which Twin City merely has flowage rights. The latter are significant because a market for flowage rights is a recognition of a special value of the land for that use.

There is no need to discuss here the question whether the Clark Hill project, as authorized by Congress, is primarily in the interest of navigation, rather than of flood control or power development, for, in any event, the United States has the power of eminent domain. By payment of just compensation, it may acquire whatever private property may be necessary and appropriate for the project, including the Twin City fast land and flowage rights.

There also is no need to discuss the traditional servitude, generally referred to as the navigation servitude, which the United States enjoys within the banks and bed of the Savannah River. All of the Twin City land and flowage rights involved are located above and beyond the ordinary high-water mark of the river. It is conceded that the United States has a right to exercise its navigation servitude without payment of compensation within the limits of the servitude. There is no claim made here for payment for any value in the flow of the stream, for any part of the bed of the river or for any land below the ordinary high-water mark of the river.

'It is not the broad constitutional power to regulate     commerce, but rather the servitude derived from that power      and narrower in scope, that frees the Government from      liability in these cases (United States v. Chicago, M., St.      P. & P.R. Co., 312 U.S. 592, 61 S.Ct. 772, 85 L.Ed. 1064, and      United States v. Willow River Power Co., 324 U.S. 499, 65      S.Ct. 761, 89 L.Ed. 1101). When the Government exercises this     servitude, it is exercising its paramount power in the interest of navigation, rather than taking the private      property of anyone. The owner's use of property riparian to a     navigable stream long has been limited by the right of the      public to use the stream in the interest of navigation. See     Gould on Waters, c. IV, §§ 86-90 (1883); I Farnham, Waters      and Water Rights, c. III, § 29 (1904). This has applied to     the stream and to the land submerged by the stream. There     thus has been ample notice over the years that such property      is subject to a dominant public interest. This right of the     public has crystallized in terms of a servitude over the bed      of the stream. The relevance of the high-water level of the     navigable stream is that it marks its bed. Accordingly, it is     consistent with the history and reason of the rule to deny      compensation where the claimant's private title is burdened      with this servitude but to award compensation where his title      is not so burdened.' United States v. Kansas City Ins. Co.,     339 U.S. 799, 808, 70 S.Ct. 885, 890, 94 L.Ed. 1277.

Similarly, there is no controversy here between the United States, any State, or private landowner as to the paramount right of the United States to take possession of the land in question for the purposes stated. Unlike the situation in Federal Power Commission v. Niagara Mohawk Corp., 347 U.S. 239, 74 S.Ct. 487, 98 L.Ed. 686, there are no vested water rights claimed here under state law. Twin City does not contest the right of the United States to develop the power resources of the river. It asks only that, to the extent that the United States takes private fast land for public use, it shall pay its fair market value, including its fair market value for riparian uses.

' * *  * The statement in that opinion (Monongahela Navigation      Co. v. United States, 148 U.S. 312, p. 326, 13 S.Ct. 622,      626, 37 L.Ed. 463) that 'no private property shall be      appropriated to public uses unless a full and exact      equivalent for it be returned to the owner' aptly expresses      the scope of the constitutional safeguard against the      uncompensated taking or use of private property for public      purposes. Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362,     399, 14 S.Ct. 1047 (1055) 38 L.Ed. 1014.

'That equivalent is the market value of the property at the     time of the taking contemporaneously paid in money. * *  *

'Just compensation includes all elements of value that inhere     in the property, but it does not exceed market value fairly      determined. The sum required to be paid the owner does not     depend upon the uses to which he has devoted his land but is      to be arrived at upon just consideration of all the uses for      which it is suitable. The highest and most profitable use for     which the property is adaptable and needed or likely to be      needed in the reasonably near future is to be considered, not      necessarily as the measure of value, but to the full extent      that the prospect of demand for such use affects the market      value while the property is privately held. Mississippi & R.     R. Boom Co. v. Patterson, 98 U.S. 403, 408, 25 L.Ed. 206;     Clark's Ferry Bridge Co. v. Public Service Comm., 291 U.S.      227, 54 S.Ct. 427, 78 L.Ed. 767; 2 Lewis, Eminent Domain, 3d     ed., § 707, p. 1233. 1 Nichols, Eminent Domain, 2d ed., §     220, p. 671. The fact that the most profitable use of a     parcel can be made only in combination with other lands does      not necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect      market value.' Olson v. United States, 292 U.S. 246, 254      256, 54 S.Ct. 704, 708-709, 78 L.Ed. 1236.

In the instant case, the Commissioners, the District Courts and the Court of Appeals have applied the above rule. The Commissioners considered all elements of value which they could ascertain with reasonable accuracy, provided those elements were sufficiently assured to be reflected in the fair market value of the premises. In confirming the report of the Commissioners, the District Court said:

'Since the award to Twin City of $1,257,033.20 is not the     value of its property for any particular purpose but      represents its fair market value after considering all of the      reasonable uses of the property which were not too remote or      speculative, this amount is the 'just compensation' required      by the Fifth Amendment and the applicable statutes. * *  *      This is the amount that in all probability would have been      arrived at by fair negotiations between an owner willing to      seel and a purchaser desiring to buy.' United States v.      3,928.09, etc., 114 F.Supp. 719, at page 725.

The potential use of this land for dam, plant and reservoir purposes is far from speculative in the light of the 50 years of recognition of its availability and suitability for those purposes. The land was accumulated by Twin City for this very purpose and it is now flooded as part of the Clark Hill project. The steam-plant comparison computations made by the Commissioners are substantially uncontroverted. If a purchase price had been sought by negotiation in 1947, it is inevitable that a primary consideration would have been the value of the flowage rights and of the dam and plant locations in relation to water-power development. We cannot realistically imagine that such a negotiation would have been limited to a consideration of the land's timber and its minor value for agricultural uses.

The value recommended by the Commissioners and approved by the courts below includes nothing for strategic or 'hold-up' value. It reflects no inflation due to the 'taking' of the property by the Government and no deflation due to the absence of other bidders after the Government announced that it would take the property. There was nothing condemned or valued that could be described as 'in the flow of the stream.' Only the fast land was taken and valued. It is because of that land's location near, but apart from, the flow of the stream that an additional fair market value, long recognized in this land, was recommended and approved below. The location of land is always a factor, and often a primary factor, in determining its market value. Every public utility exercising the right of eminent domain is required to pay it.

Before passage of the Water Power Act, 16 U.S.C.A. § 791a et seq., the paramount, but unexercised, right of the Government to control the water power in the Savannah River did not exclude the development of that river under state control. The Water Power Act imposed additional conditions and provided for federal licensing. See Federal Power Commission v. Niagara Mohawk Corp., 347 U.S. 239, 74 S.Ct. 487, 98 L.Ed. 686, and Grand River Dam Authority v. Grand-Hydro, 335 U.S. 359, 69 S.Ct. 114, 93 L.Ed. 64. But, even though a federal license then became generally necessary, a substantial market for the fast land still existed, because of its importance to any licensee. Up to the time of its 'taking' of the property, the Government was but one of several prospective purchasers.

After the Federal Government announced that it would, itself, develop and use the water power, it still had to acquire fast land for its dam and plant site and for its reservior basin. Although its taking of the property cut off further competitive bids for the land, the Government had the same constitutional obligation to pay 'just compensation' for whatever private property it took.

A classic comment upon a comparable situation was made by this Court when the Federal Government, after condemning a lock and dam, sought to pay only for the tangible property taken, without recognizing the established value of a franchise issued by a State to exact tolls for the use of the canal and lock. In requiring recognition of the latter value, the Court said:

'And here it may be noticed that, after taking this property,     the government will have the right to exact the same tolls      the navigation company has been receiving. It would seem     strange that if, by asserting its right to take the property,      the government could strip it largely of its value,      destroying all that value which comes from the receipt of      tolls, and having taken the property at this reduced      valuation, immediately possess and enjoy all the profits from      the collection of the same tolls. In other words, by the     contention this element of value exists before and after the      taking, and disappears only during the very moment and      process of taking. Surely, reasoning which leads to such a     result must have some vice, at least the vice of injustice.'      Monongahela Navigation Co. v. United States, 148 U.S. 312,      337-338, 13 S.Ct. 622, 630-631, 37 L.Ed. 463.

While the United States enjoys special rights in relation to navigable streams, such as its navigation servitude, there is no good reason why, when the Government condemns private property for a public use, its condemnee should not receive from the Government the same measure of 'just compensation' as from other condemnors. If the property taken is 'private property,' the constitutional compensation for it should be the same. That measure includes the 'highest and most profitable use for which the property is adaptable * *  * to the full extent that the prospect of demand for such use affects the market value while the property is privately held.' Olson v. United States, supra, 292 U.S. at page 255, 54 S.Ct. at page 708.

' * *  * No precedent has been advanced which suggests that a      different measure of compensation should be required where      the United States rather than the state is the taker of the      property for a public project. Nor has any reason been     suggested why as a matter of principle or policy there should      be a different measure of compensation in such a case. * *  *

' * *  * The United States no more than a state can be excused      from paying just compensation measured by the value of the      property at the time of the taking merely because it could      destroy that value by appropriate legislation or regulation.'      United States ex rel. T.V.A. v. Powelson, 319 U.S. 266, 278,     284, 63 S.Ct. 1047, 1054, 1057. See also, United States v.     Cress, 243 U.S. 316, 319, 326-327, 329-330, 37 S.Ct. 380,     381, 384, 385-386, 61 L.Ed. 746.

The Government contends, however, that since it need not pay for appropriating the water in the stream, it should not be required to pay for any value in the fast lands that is predicated upon the riparian location of such lands, or their special value in relation to the use of that water. In this connection, the issues decided and the statements made by Justice Lurton for a unanimous Court in United States v. Chandler-Dunbar Co., 229 U.S. 53, 33 S.Ct. 667, are helpful. The Chandler case was a condemnation proceeding brought by the United States under a special Act of Congress relating to all the land and other property between the St. Mary's Falls Ship Canal at Sault Sainte Marie, Michigan, and the international boundary to the north. The United States 'took' this land and property so as to improve navigation in these highly navigable waters. It exercised plenary control over the entire river and over everything within its bed up to its ordinary highwater mark. It thus exercised its navigation servitude and eliminated, without compensation, a hydro-electric development which the Chandler-Dunbar Company had constructed on the latter's submerged land within the bed of the river. That elimination was no longer in issue in this Court. The principal questions related to the District Court's awards for water rights claimed by Chandler and for fast land owned by Chandler above and beyond the bed of the river.

1. The District Court allowed Chandler $550,000 for the water rights. Chandler, however, established no vested right to such water under state law and this Court disallowed the entire claim. It said:

' * *  * Unless *  *  * the water power rights asserted by the      Chandler-Dunbar Company are determined to be private      property, the court below was not authorized to award      compensation for such rights.

' * *  * Ownership of a private stream wholly upon the lands of      an individual is conceivable; but that the running water in a      great navigable stream is capable of private ownership is      inconceivable.' Id., 229 U.S. at page 69, 33 S.Ct. at page     674.

That conclusion is not questioned.

2. In fixing compensation to Chandler for its strip of eight acres of fast land, the District Court allowed for 'use for canal and lock purposes, an additional value of $25,000,' and for a smaller area consisting of two other parcels of fast land for 'its special value for canal and lock purposes an additional sum of $10,000.' Id., 229 U.S. at page 75, 33 S.Ct. at page 676. These allowances of additional value for fast lands, due to their suitability and availability for canal and lock purposes, are significant for our present purposes. The Court explained them as follows:

' * *  * That this land had a prospective value for the purpose      of constructing a canal and lock parallel with those in use      had passed beyond the region of the purely conjectural or      speculative. That one or more additional parallel canals and     locks would be needed to meet the increasing demands of lake      traffic was an immediate probability. This land was the only     land available for the purpose. It included all the land     between the canals in use and the bank of the river. Although     it is not proper to estimate land condemned for public      purposes by the public necessities or its worth to the public      for such purpose, it is proper to consider the fact that the      property is so situated that it will probably be desired and      available for such a purpose. Lewis, Em.Dom. § 707.     Mississippi & R.R. Boom Co. v. Patterson, 98 U.S. 403, 408,      25 L.Ed. 206, 208; Shoemaker v. United States, 147 U.S. 282,     13 S.Ct. 361, 37 L.Ed. 170; Young v. Harrison, 17 Ga. 30;     Alloway v. Nashville, 88 Tenn. 510, 13 S.W. 123, 8 L.R.A.      123; Sargent v. Merrimac, 196 Mass. 171, 81 N.E. 970, 11     L.R.A., N.S., 996.' (Emphasis supplied.) Id., 229 U.S. at      pages 76-77, 33 S.Ct. at page 677.

Justice Lurton then reviewed and quoted at length from the opinions in Mississippi & R.R. Boom Co. v. Patterson, supra, and Shoemaker v. United States, supra.

Coupled with the reasoning of the Court and its quotations from earlier cases, these allowances support the position taken by the lower courts in the instant case. They are 'additional values' allowed for the location, special suitability and availability of the riparian land for use in connection with the recognized future public use of the area. In fact, the uses for which the allowances are made are of the very same type as that for which the land has been condemned. There is no allowance for strategic or 'hold-up' value. The Chandler case thus supplies specific authority for the decision of the lower courts in the instant case.

3. In fixing the compensation for the same eight acres and the smaller area, the District Court also made a basic allowance of $20,000 for the value of the strip 'for all general purposes, like residences, or hotels, factory sites, disconnected with water power, etc.,' and $10,000 in relation to the smaller area for 'general wharfage, dock, and warehouse purposes.' Id., 229 U.S. at pages 74, 75, 33 S.Ct. at page 676. This Court upheld both, thereby further demonstrating that the location of land is a proper element to be considered in determining 'just compensation.'

4. On the other hand, the District Court approved one other element of 'additional value' in relation to these land areas which this Court rejected. In valuing the eight acres, the District Court allowed an 'additional value' of $20,000 for 'use as factory site in connection with the development of 6,500 horse power, either as a single site or for several factories to use the surplus of 6,500 horse power not now used in the city.' Id., 229 U.S. at pages 74-75, 33 S.Ct. at page 676. Likewise, in valuing the smaller area, the District Court allowed an additional value of $5,000 in 'connection with the canal along the rapids, if used as a part of the development of 4,500 (6,500) horse power.' Id., 229 U.S. at page 75, 33 S.Ct. at page 676. It has been suggested that these rejections are in conflict with the Court's simultaneous approval of the additional values of the same land for canal or lock purposes. The Government also claims to find in these rejections some support for its opposition in the instant case to any allowance reflecting the favorable location of the fast land it has taken on the banks of the Savannah River.

The Court's reasons for rejecting these particular values in the Chandler case, as expressly stated by Justice Lurton, lend no such support to the Government's position in the instant case. He said:

' * *  * These 'additional' values were based upon the      erroneous hypothesis that that company (Chandler-Dunbar) had      a private property interest in the water power of the river,      not possibly needed now or in the future for purposes of      navigation, and that that excess or surplus water was      capable, by some extension of their works already in the      river, of producing 6,500 horse power.

'Having decided that the Chandler-Dunbar Company, as riparian     owners, had no such vested property right in the water power      inherent in the falls and rapids of the river, and no right      to place in the river the works essential to any practical      use of the flow of the river, the government cannot be justly      required to pay for an element of value which did not inhere      in these parcels as upland.' Id., 229 U.S. at pages 75-76, 33      S.Ct. at page 677.

In other words, the rejected values were not part of the fair market value of the land for any assured use. They sought to recognize a value in the fast land for factory sites which were conditioned upon there being excess water in the stream not needed by the Government for navigation, and further conditioned upon the development by Chandler of structures in the bed of the stream to develop 6,500 additional horsepower from this excess water. Not only was there found to be no such excess water but Chandler's potential power development within the bed of the stream was expressly disallowed. The rejection thus was due to the speculative nature of the proposed use and not to the favorable riparian location of the land for assured uses. It was thoroughly consistent with the Court's allowance of established values of the land for canal and lock purposes.

To accept the Government's position in the instant case would, in effect, extend its navigation servitude far above and beyond the high-water mark of the Savannah River. In the face of decisions uniformly limiting that servitude to the bed of the stream, the Government would take 4,700 acres of private property for a public use, substantially without compensation therefor. This would enforce the Government's right of condemnation, while repudiating its constitutional obligation to pay for the private property taken.

The justice of sustaining the interpretation placed on the Fifth Amendment by the courts below is emphasized in the following statements made by this Court in Monongahela Navigation Co. v. United States, 148 U.S. 312, 324, 325, 13 S.Ct. 622, 625, 37 L.Ed. 463:

' * *  * The question presented is not whether the United      States has the power to condemn and appropriate this property      of the Monongahela Company, for that is conceded, but how      much it must pay as compensation therefor. Obviously, this     question, as all others which run along the line of the      extent of the protection the individual has under the      constitution against the demands of the government, is of      importance, for in any society the fullness and sufficiency      of the securities which surround the individual in the use and enjoyment of his property constitute one      of the most certain tests of the character and value of the      government. The first 10 amendments to the constitution,     adopted as they were soon after the adoption of the      constitution, are in the nature of a bill of rights, and were      adopted in order to quiet the apprehension of many that      without some such declaration of rights the government would      assume, and might be held to possess, the power to trespass      upon those rights of persons and property which by the      Declaration of Independence were affirmed to be unalienable      rights.

' * *  * And in this there is a natural equity which commends      it to every one. It in no wise detracts from the power of the     public to take whatever may be necessary for its uses; while,      on the other hand, it prevents the public from loading upon      one individual more than his just share of the burdens of      government, and says that when he surrenders to the public      something more and different from that which is exacted from      other members of the public, a full and just equivalent shall      be returned to him.'

For the foregoing reasons, the judgment of the Court of Appeals should be affirmed.