United States v. Virginia Electric and Power Company/Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

If the 1,840 acres in question lay between low and high water, the United States by keeping the water level at the ordinary high-water contour would not in my view appropriate any private property. For that is use of the bed of the stream pursuant to the navigation servitude. Most of our cases deal with that. It was in that domain that United States v. Kansas City Life Ins. Co., 339 U.S. 799, 70 S.Ct. 885, 94 L.Ed. 1277, arose.

If the 1,840 acres were a dam site, any of their value for such a purpose would be noncompensable within the ruling of United States v. Twin City Power Co., 350 U.S. 222, 76 S.Ct. 259, 100 L.Ed. 240. Dam-site value is water-power value. And the flow of the stream in its natural state or through a structure that is low or high provides 'a head of water' (United States v. Willow River Co., 324 U.S. 499, 502, 65 S.Ct. 761, 764, 89 L.Ed. 1101) that often has great value. But when it is in a navigable stream, it is not a property right subject to private ownership and compensation under the Fifth Amendment. There is 'no private property in the flow' of this navigable stream. United States v. Appalachian Power Co., 311 U.S. 377, 427, 61 S.Ct. 291, 309, 85 L.Ed. 243.

Yet if the Federal Government builds a dam that raises the water above the ordinary high-water mark by a foot, by a hundred feet, or by five hundred feet, it asserts dominion over property not within its havigational servitude. As we said in United States v. Willow River Co., supra, 324 U.S. 509, 65 S.Ct. 767, 'High-water mark bounds the bed of the river. Lands above it are fast lands and to flood them is a taking for which compensation must be paid.'

It is in the latter domain that the present controversy lies. The flowage rights being condemned are rights to flood a part of the 1,840-acre tract that lies above the 'usual water line' which I understand to mean land above the ordinary high-water mark.

Whatever may be the reason why this particular interest in the uplands was acquired, the owner stands in the shoes of his predecessor in title. The owner of the easement is entitled, as the Court holds, to no water-power value. The owner is, in other words, entitled to nothing that gains value from the flow of the stream, from any head of water, or from the strategic location of his land for hydroelectric development of the river. But the owner of the easement and the owner of the subservient fee have all the other parts of the bundle of rights that represent 'property' within the meaning of the Fifth Amendment.

Hence, I join the opinion of the Court.

Mr. Justice WHITTAKER, with whom THE CHIEF JUSTICE and Mr. Justice BLACK join, dissenting.