United States v. Willow River Power Company/Dissent Roberts

Mr. Justice ROBERTS.

I think the judgment of the Court of Claims should be affirmed. The findings of fact by that court are supported by the evidence. They are to the following effect.

The St. Croix River is navigable. The Willow River is a non-navigable stream emptying into the St. Croix at Hudson, Wisconsin. The respondent has constructed several dams in the Willow River for the purpose of generating power. The one farthest down stream is 'located near the confluence of the Willow River and the St. Croix River in the city of Hudson, Wisconsin, on land owned by (respondent) above ordinary high water of the St. Croix River.' At the time of the erection of the respondent's dam, ordinary high water in the St. Croix at Hudson was 672 feet above sea level. The respondent's dam raised the water level in Willow River to a height of 694.5 feet above sea level, thus affording a power head of 22.5 feet.

By the Government's erection of Red Wing Dam the water level in the St. Croix at Hudson was raised to 675.3 feet above mean sea level. The backing up of the water reduced the power head of respondent's dam by approximately three feet, and diminished its supply of power accordingly.

In the court below the United States denied that the Red Wing Dam had raised the level of the St. Croix at Hudson to the extent claimed by the respondent, and contended that Willow River was a navigable stream and the respondent's dam was, therefore, an obstruction in the navigable waters of the United States for interference with or injury to which the United States was not responsible. These contentions were overruled and are now abandoned. There was no claim by the Government that any portion of the respondent's construction was below ordinary highwater mark in the St. Croix. In fact the Government's answer admitted averments of the petition that the dam and power plant were located near a point where the Willow River discharges into the St. Croix River, and upon the respondent's property described in the petition. The answer further alleged that the 'dam so constructed by the plaintiff near the point where the Willow River discharges into the St. Croix River * *  * was constructed upon a concrete foundation extending across or occupying the full width of the mouth of a navigable stream' (meaning the Willow River, which the Government then claimed was navigable). The opinion of the court below states that respondent's tail race emptied into the St. Croix River below ordinary high-water level, and this seems to be true. But the fact is irrelevant.

The respondent owned the land on either side of the Willow River at and above the point where its dam was constructed. Under the law of Wisconsin the respondent owned the bed of Willow River, and both by common and statute law of Wisconsin it had the right to erect and use the dam. That right was property; and such a right recognized as private property by the law of a state is one which under the Constitution the federal government is bound to recognize. Monongahela Nav. Co. v. United States, 148 U.S. 312, 13 S.Ct. 622, 37 L.Ed. 463; Fox River Paper Co. v. Railroad Commission of Wisconsin, 274 U.S. 651, 654, 655, 47 S.Ct. 669, 670, 671, 71 L.Ed. 1279. Compare Henry Ford & Son v. Little Falls Fibre Co., 280 U.S. 369, 375, 377, 50 S.Ct. 140, 141, 74 L.Ed. 483.

Unless United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746, is to be disregarded or overruled, the respondent is entitled to recover for the property taken by the reduction of the efficiency of its dam due to the raising of the high-water mark. If the respondent's power dam had been in Willow River at a distance of one hundred yards or more above the confluence of the two streams, there can be no question that the decision in the Cress case would require payment for the injury done to its water power. Since under local law the owner of the land and the dam was entitled to have the water of the non-navigable stream flow below his dam at the natural level of the Willow River, which is affected by the natural level of the St. Croix, the raising of that level by navigation works in the St. Croix invaded the respondent's rights. This is the basis of decision in the Cress case. The fact that the respondent's dam is close to the high-water mark of the St. Croix River can not call for a different result.

The court concludes that the Cress case is inapplicable by ignoring the finding of the trial court that the increase in level of the St. Croix above high-water mark has diminished the head of respondent's dam by three feet. But to reach its conclusion the court must also disregard the natural law of hydraulics that water seeks its own level. At the confluence of the two rivers at normal high water of the St. Croix, both the St. Croix and the Willow are at the same level. Any increase in the level of the St. Croix above highwater mark must result in raising the natural level of the Willow to some extent. The court below has found that the increase in the level of the St. Croix operates to diminish the head at respondent's dam by the specified amount. The facts thus established are in all relevant respects precisely those on the basis of which this court sustained the recovery of damages in the Cress case.

If the fact is that respondent discharges the water from its power plant through a tail race extending below highwater mark of the St. Croix, that fact is irrelevant to the problem presented. Respondent claims, and the court below has sustained, only the right to have the flow of the Willow maintained at its natural level. That level has been increased by raising the level of the St. Croix above its highwater mark. The increase in the level of the St. Croix above high-water mark has operated to raise the level below the respondent's dam to an extent which has damaged respondent by diminishing the power head. To that extent respondent has suffered damage and is entitled to recover on principles announced in the Cress case.

United States v. Cress, supra, has stood for twenty-eight years as a declaration of the law applicable in circumstances precisely similar to those here disclosed. I think it is a right decision if the United States, under the Constitution, must pay for the destruction of a property right arising out of the lawful use of waters not regulable by the federal government because they are not navigable.

The CHIEF JUSTICE concurs in this opinion.