48 Wis. 385 | Wis. | 1880
The state of Wisconsin, in making the improvement of the Fox and Wisconsin rivers, under the act of congress of August 8, 1846, making a grant of lands for such purpose, and the act of the legislature of Wisconsin of June 29, 1848, accepting the trust, constructed, as a part of such improvement, the dam by means of which the lands of the plaintiffs were overflowed and damaged. Any question which might otherwise have arisen, whether such flowing of and consequential damages to the lands of the plaintiffs by means of such dam constitute a taking of such lands for public use
Until this act of congress, after the United States had become tho owner of the improvement and assumed the bui'-den of making such just compensation not only for lands thereafter to he taken, but also for lands which had been already taken by such flowage, there had been no provisions made by law for such compensation or for ascertaining the same. As the dam was completed so as to cause the flowage and consequential damage in the year 1861, this act may well be construed to authorize the ascertainment of the past damages of the plaintiffs, as well as the future or permanent damages to the lands, and in this respect may not be strictly analogous to a future taking or condemnation of lands for the use of the improvement. It will be seen that the act provides for both cases, and as to the questions. of constitutionality and jurisdiction these provisions may well stand -together; but as to the measure of damages in each case, the provisions are distinctive and independent.
Such a provision, allowing full compensation to the owner of lands already flowed and damaged by works already constructed, as for lands actually taken at the time when the flowage was caused by the works, for jpast damages, within the period of limitation by the statute of the state, as well as for future and permanent damages, would be most reasonable, and
The first section of the act provides, “ that whenever, in the prosecution and maintenance of the improvement of the Wisconsin and Eox rivers in the state of Wisconsin, it becomes necessary or proper, in the judgment of the secretary of war, to take possession of any lands, or the right of way over any lands, for canals and cut-offs, or to' use any earth, quarries or other materials lying adjacent to or near to the line of said improvement, and needful for its prosecution or maintenance, the officers in charge of said works may, in the name of the United States, take possession of and'use the same, after first having paid or secured to be paid the value thereof, which may have been ascertained in the mode provided by the laws of the state wherein such property lies. In case any lands or other property is now or shall be flowed or injured by means of any part of the works of said improvement heretofore or hereafter constructed, for which compensation is now or shall become legally owing, and, -in the opinion of the officer in charge, it is not prudent that the dam or dams be lowered, the amount of such compensation may be ascertained in like manner. The department of justice shall represent the interests of the United States in legal proceedings under this act, and for flowage damages hereinbefore occasioned.”
' The second section appropriates $25,000, to be applied in "payment for the property and rights so taken and used.
In section 2 of an act of the legislature of this state approved March 12, 1874, it is provided that, “ in case the lands of any person have leen overflowed, or injured, or taken, or if it shall be found necessary or proper hereafter to overflow, injure or take the lands of any person, for or by reason of the construction of any dam, bridge, lock or pier, or the re
I have emphasized the words in the above acts used in a past tense, significantly applicable to these proceedings, which were instituted and have been conducted in accordance with said acts as far as their provisions were applicable.
It is contended by the learned counsel of the appellant, that the language, “in the mode” and “in like manner,” as used in the act of congress, refers only to the method, form or manner of the proceedings themselves, and does not embrace the tribunal in which they are to be instituted, and does not import any diz-ection or permission that such proceedings may be taken in the courts of the state in which the lands overflowed are situated. "We think such is not its meaning, because — First. Such a strict construction would destroy the only purpose of the act, and make the act itself wholly unnecessary; for without it there is no doubt of the jurisdiction of the federal courts in such a case, or of their method of proceeding. Kohl et al. v. United States, 91 U. S. Rep., 367. Second. In that case Mr. Justice Milleb, in his opinion, uses the word “ mode ” as embracing both the proceedings to condemn lands and the tribunal in which they are to be taken, when he says: “Doubtless congz-ess might
We assume, therefore, that by the above acts of congress and of the legislature of this state, the United States government has authorized and directed the institution of these proceedings in the state court, and fully assented thereto, and this state has consented to the use of the state tribunals for such purpose. This brings us to the question of the constitutionality of the laws above cited, which is made the important question in this case by the learned counsel of the appellant. The condemnation of private property to the public use by the United States is the exercise of the sovereign power, through such agencies as congress- may determine; and, as the supreme court has said in Kohl et al. v. U. S., supra, “doubtless congress might have provided a mode of taking the land and determining the compensation to be made, which would have been exclusive of all other modes. They might have prescribed in what tribunal, or by what agents, the taking and the ascertainment of the just compensation should be accomplished. It might have been by a commission, or it might.
The power of eminent domain is conceded by the learned counsel to be political and not judicial, and many authorities are cited by him in support of the principle, such, as People v. Smith, 21 N. Y., 597; Hays v. Risher, 32 Pa. St., 169; Bankhead v. Brown, 25 Iowa, 540, and others; and if political, of course it cannot be delegated to the courts, although congress may by law confer upon any court or tribunal, or upon a commission, jurisdiction, and prescribe and determine the proceedings for the efficient and convenient exercise of this power by the government. In this case, the power to condemn and take the lands of the respondents for the use of the improvement had already been exercised, and they have long since been actually appropriated to such use, but conditionally, upon the payment of just compensation therefor, when ascertained in the way and mode prescribed by the law of congress above considered; and neither this state nor its courts have assumed any power to condemn, but only to determine the compensation to be made for lands already taken and condemned, according to the act of congress and the statute of this state.
Whether the United States had taken the first step and asked the appointment of these commissioners, as would have been necessary to assert the power of eminent domain and condemn lands not before taken and 'already appropriated, or the respondents had become the moving party, and asked for
There, can be no question hut that the "United States may institute these proceedings in a state court -without any special legislative permission, and secure precisely the same legal results as were effected in this case. "When the proceeding is instituted by the private owner of the property already taken for public use, as in this case, merely for the ascertainment of the compensation to be paid therefor, it may be in form a suit against the United States, and be so. entitled; but this form of the proceeding does not change its substance, and it remains, until the ascertainment of the compensation, a judicial proceeding by the United States to enforce the right of eminent domain by the condemnation of the property to public use. But if it be a suit, both in form and substance, against the United States, then there is no principle better established than that the United States may, by act of congress, waive its sovereignty, and authorize, permit or consent that such suit may be brought in the state court.
"Without such consent, it is .an axiom that no sovereignty, state or national, can be sued in any court — in its own of foreign courts. In United States v. Clarke, 8 Peters, 444, Chief Justice Marshall says: “As the United States are not suable of common right, the party who institutes such suit must bring his ease within the authority of some act of congress or the court cannot exercise jurisdiction over it.” In that case the suit Was by petition against the United States, praying that the court would decree confirmation of the title of the petitioner to certain lands claimed to have been granted to him by the governor of the province of Florida; and the court held that jurisdiction of the superior court of Florida, in such case, had been conferred by the consent of the United States by act of congress. In Reeside v. Walker, 11 How., U. S., 290, Mr. Justice Woodbury says: “ It is well settled, too, that no action of any kind can be sustained against the
It is significant that numerous statutes of the United States, from 1789 until the present, have been passed authorizing suits to be brought against the United States in the state courts and for various purposes, and such authority has not been questioned. It is needless to discuss questions not in this case, and to review authorities cited by the learned counsel, where the United States were a party to litigation in state courts and no such jurisdiction was conferred by act of congress expressing consent.
We have been cited to no case, and we think none can be found, in which it has been held that such jurisdiction may not be conferred by such legislative assent, or that such an act of congress was unconstitutional.
We shall be brief in disposing of the other questions raised upon this appeal.
First. The title of the plaintiff appears to have been -sufficiently proved.
Second. The condition found in the act of congress above referred to, “ and in the opinion of the officer in charge it is not prudent that the dam or dams be lowered, the amount of such compensation may be ascertained in like manner,” imposes upon the officer of the United States an active, not a passive duty, which is not performed by the mere expression of an opinion, but which requires such final and conclusive action of the government of the United States, by such officer, as would he a legal release and relinquishment of all present and future right to maintain the dam. Any other coüstruction would allow the mere opinion of the officer on the ques
Third. The fact that another dam besides the one in question might, to some extent, contribute to produce the flowage, raises a question which has already been decided by this court, and by the supreme court of the United States, adversely to the position taken by the counsel for the appellant. Arimond v. Green Bay Co., 35 Wis., 41, and Pumpelly v. Green Bay Co., 13 Wall., 166.
Fourth. The rule of damages submitted by the court to the jury appears to be more favorable to the United States than the rule contended for by the learned counsel of the appellant, and seems to have been substantially in compliance with the construction of the act of congress which we have already given to it, as allowing the assessment of all the past damages which were caused by the construction of the dam
By the Coxtrt.— The judgment of the circuit court is affirmed, with costs.