*1 if That must be substantial and immediate interest if the require- standard of statute and constitutional ments of case or controversy, interpreted by the Sand- Scripps-Howard ers and the cases, are be satisfied. necessary It is to show effect that KOA has sustained in- or is about some direct and substantial sustain jury (see Mellon, 488)— Massachusetts v. S. 447, injury which for an case purpose this must result from electrical interference. The Sanders and the case Scripps-Howard dispense require- case do not with that They ment. hold an merely appellant has his case in light public decided interest, standards of the not by standing him give the criteria which appeal.
I do not understand that opinion of the Court takes a contrary view. It only phase holds the case that KOA adequate showing (b). made an under § I disagree with that conclusion.
UNITED STATES TENNESSEE VALLEY ex rel. AUTHORITY POWELSON, ASSIGNEE AND IN
SUCCESSOR INTEREST OF SOUTHERN STATES POWER COMPANY et al. Argued 3. 12, 13, Reargued
No. March 1, 2, 1942. March 1943. May
Decided *2 William, Fahy Fitts, Jr. Solicitor General and Mr. C. original argument States; made the for the United and reargument. Arnold Raum and Mr. Fitts Messrs. McCarthy were on the briefs. Charles J. Lyle Wright argued Jones George George
Messrs. H. Arthur reargument, the cause on and Mr. T. Vander- original argument, respondent. bilt on Douglas opinion delivered Mr. Justice Court. out
This case arises of condemnation the United Valley Authority on behalf States Tennessee lying land Carolina 12,000 about acres of North along River, major tributary a of the Ten- Hiwassee case involved was owned nessee. land respondent Company, Southern States Power North wholly corporation, Carolina subsidiary, owned Georgia Company, corporation. the Union Power Since States Power condemnation, Company the Southern has assigned its property arising interest and out of proceedings respondent Powelson, these to the W. V. N. *3 its sole stockholder. For convenience Powelson and Southern States will be referred interchangeably as “respondent.” January 1936,
On original when the declaration of taking was filed proceedings and these began, Southern and Power States Union owned a small hydroelectric generating plant the Nottely River, tributary on a of the Hiwassee. known This was as Murphy plant. It had system a distribution which supplied town of Murphy, Carolina, surrounding territory. North and These com- also panies 22,000 owned acres about of on land both Nottely sides of Hiwassee and Rivers. These included four lands at dam known sites are as the Powelson (site dam), of Hiwassee Appalachia, Murphy and Nottely sites, large part a of land required Appalachia Powelson and and projects, some land for required the Murphy Nottely and projects. Powel- experienced hydroelectric an son, engineer, began as early as 1913 and continued until 1931 to explore, and survey, acquire these lands and develop and promote a plan for constructing integrated an four-dam hydroelectric plant on these rivers at these sites. The actual cost
269
from
distinguished
as
case,
this
of the lands involved
$277,821.66.
was
them,1
total investment
Carolina-Tennessee
States
successor
Southern
of the North Carolina
by special act
Power
created
granted
legislature2
1909. Carolina-Tennessee
by
by
to take
the State
powers
broad
and was authorized
along
water
riparian
eminent
lands and
domain
non-navigable
Carolina.3
stream North
present
in the
condemned
the Government
lands
the site
its Hiwassee
proceedings
part
constitute a
by the
constructed
dam,
multiple-purpose
project
as
the Hiwassee River
Authority
Valley
Tennessee
system
Tennessee River
part
development
navigation, and flood
hydroelectric
for
power production,
De-
Congress on the Unified
control.
to the
Report
See
through
respondent
$1,061,942.53
been invested
The sum of
had
Of
sum
owned
it.
22,000
entire
acres
land
$586,196.21.
expenditure
personally
The total
contributed
Powelson
taxes,
condemned, $73,412.68 for
$188,271.86
lands not
included
for
$94,074.71
legal expenses,
expense,
for
$82,480.81
New York office
for
travelling expenses, $64,358.46
construction
trans
$14,321.68 for
for
$194,487.50
Murphy plant,
operation of the
mission lines for and
plant,
Murphy
respects
the bonds on
interest and amortization
studies, advertising
expenditures
surveying, engineering
furniture.
C.,
76, p. 185.
Priv. L.
c.
N.
Company, organized under
rival,
the Hiawassee Eiver Power
A
*4
acquire
rights
State, proceeded to
lands and
general
laws
a
condemnation,
contract,
and threatened to construct
deed and
hydroelectric
which would interfere with
plant
the Hiwassee Eiver
on
development projected by Carolina-Tennessee. Carolina-Tennes-
rights
litigation
against
engaged
long
its
establish its
as
see
right
litigation
prior
established
and dominant
That
rival.
develop
territory
water
in this
respondent’s predecessor to
land
its claim to condemn the
and water
and sustained
Company.
Tower Co. v.
Hiawassee Eiver Power
Carolina-Tennessee
248,
N.
(1916),
C.
S. E. 349
175
River Tower
171
88
Hiawassee
(1923),
668,
(1918),
179,
C.
119
N.
270 velopment of the Tennessee River System, Tennessee Val- ley Authority, March pp. 1936, 18-20, 96, 99. The dam itself is situated on acquired land from respondent and known Powelson site. It stipulated was that the the, navigable Hiwassee River is not at site the Hi- or in wassee dam any part through respond- course ent’s land.4
The property condemned includes the Murphy dam and hydroelectric plant the Nottely River and about 12,000 along acres land Hiwassee River North these, 2,000 Carolina. Of some acres been have cleared and remaining rough cultivated. The area is and moun- tainous, consisting large surface, of rock mountain part peaks gorges. Much of the land was inaccessible at being the taking, practically high- time of there no ways thereon, cartways. although there were some
The condemnation were proceedings pur conducted ,the suant to 25 of Tennessee Valley Authority § Act of c. 1933, 32, 58, § Stat. S. C. 831x.5 Under the procedure specially prescribed therein for condemnations Valley on behalf Authority, Tennessee the District appointed testimony Court three commissioners to take the property. to determine the value of The Govern $95,000 ment that the from property contends was worth sought $165,000. Respondent to establish value of $7,500,000. Respondent’s valuation based on the condemned, theory together that the with other by respondent, could property owned be united with nu by strangers merous other tracts owned construc hydroelectric project. Only tion of an elaborate four-dam projected one of the dams was to located four on the Tributaries, 328, River H. Doc. No. And see Tennessee 71st Sess., Cong., p. 2d (h) also, § 258a; (i) C. 5See 46 Stat. §4 Valley 58-61, Authority Stat.
Tennessee Act of 16 U. S. C. (h) (i). § 831c
271 condemned, dam, at the of the viz. site Hiwassee commercially which, alone, taken was not considered power development. feasible for The Commission found land condemned was for use as the site suitable hydroelectric power plant; use furnished such greatest the basis for inherent it had value; and that though $277,- of $1,437,000,6 only value its cost was $253,000 821.56. The Commission in addition awarded damages as severance of lands not condemned respect remaining but ownership Southern States Union Power. parties sought
Both review of the award before three-judge District Court for which 25 of the Tennessee § Valley Authority Act makes provision. The District Court $976,289.40 reduced value of the land condemned damages $100,000 to $211,791.23, and severance of which Murphy system. was for the distribution Interest was filing taking. initial added from of the declarations of Appeals 33 519. The Circuit Court of excluded Supp. F. damages taking Murphy plant severance $18,907.02 excluded Nottely River; and also damages with respect awarded as severance to land held thirty days Power within after the man- Union unless in the corporation date was filed District Court by the party should be made a so as to become bound judgment. these modifications it affirmed With 2d 79. The case judgment of the District Court. F. writ of which we petition is here on a certiorari granted public importance of the issues because raised. scope
I. A relates to the of review preliminary question Court Appeals § the Circuit under of the Act. plant, $110,000 Murphy Commission also awarded deposited by the when it filed its which sum had been United States taking. declaration of *6 commis- appointment provides
That section the of the lands examine into value who are “to sioners, hearings and receive to conduct condemned, be sought to steps as appropriate to take such evidence, generally the value” of the for the determination may proper required report to such The are lands. commissioners the action of the an Review of and make award. value court, three-judge district is commissioners de novo the had before the pass upon proceedings “shall take commissioners, may property, may view the hearings judges the Upon additional evidence. such said award, fixing shall file their own therein value of regardless sought condemned, to be of the award property There previously made the said commissioners.” from court circuit court appeal appeals, an to the hearing said upon appeal dispose which “shall regard without upon same the awards record, findings or theretofore made commissioners or judges, and such circuit court of appeals district shall thereupon fix property sought the value of the said to be condemned.” contended that
It is the Circuit Court of Appeals did upon not the functions perform placed § which 25 it. That permitted court § stated to consider findings “in light under review of the record.” 118 2d p. F. gave weight opportunity 83. It to the of the commission- judges who took the testimony ers and to see and hear the But while it witnesses. adverted to those circumstances findings, and modified and “affirmed” the judgment of three-judge court, say we cannot that it did per- Congress form the functions which gave it § under 25. purpose The 25§ was to free the Circuit Court of Appeals from the commonly strictures applicable questions of disputed review of fact. Under 25 it § does errors.” not sit a “court of Reynolds, States F. 2d duty Its is to dispose of the matter findings to the awards record, regard without “upon it need not fix But made” and the value. theretofore advantages of the tribunals below special itself to the blind A with the fresh trial novo evaluating the evidence. de re- independent An required. is not taking of evidence contemplated. condemned is valuation here. was met requirement And “the covering authorizes awards II. Sec. 25 of the. Act sought condemned.” storm of the lands to be value value controversy is whether water center *7 respondent’s in may be included award. though that even argued petitioner
It is on behalf of non-navigable throughout part River is the Hiwassee the compensation course, supposed loss no more than in case a navi permissible value is pointed out that gable stream. It United States v. Co., 53, “no 229 U. S. held that there is Chandler-Dunbar navigable in the flow” stream. private property Appalachian Power Co., United States v. although is contended that Hiwassee
427. And it
non-navigable
points
flow
question,
River is
at
such
and immediate
places
upon
at
has
a direct
effect
those
navigable
of the river farther downstream as to
portion
plenary
the United States the
control over both
give
same
navigable
non-navigable portions
of the river
(United
Appalachian
Co., supra;
Power
States
Okla-
thereby
508),
bringing
into
homa v. Atkinson
case. Cf.
of the Chandler-Dunbar
play
rule
Kelly,
stop
The burden value of Hazen, was respondent. Ralph condemned on 2d F. Welch v. 70; Valley Tennessee Authority, 95, 101. F. 2d Respondent endeavored carry that bur- den by introducing evidence that the property condemned had a fair market $7,500,000. value of said, As we have theory was that the lands condemned, together with other property owned respondent, could be united with several hundred other by strangers tracts owned and that hydroelectric a four-dam project could be constructed upon all those lands.7 As we have noted, only one of the four hypothetical dams was to be located lands condemned. That was at the dam site, which, Hiwassee considered alone, was not contended to be profitable for power development. Although respondent owned or con- trolled some of the other lands necessary the four-dam project, about half of them were It adverse hands. practically was acquisition conceded that of all the property necessary for the four-dam development could not, all reasonable probability, be accomplished with- out resort to the of eminent domain. It in- sisted, however, that since that power had been conferred by North Carolina, the case if should be viewed as re- spondent every owned required foot of land for the hypo- *8 project. thetical Respondent proceeded from that as- sumption to other assumptions: an estimated cost of $30,000,000 the four-dam project; an output annual of 512,500,000 kwh of reserve, so-called or superprimary, or “Saluda-type” energy;8 production electricity a cost of 7 respondent While necessary Ap owned most of the lands for the palachia reservoir, acquired yet lay about half the of those not Tennessee, which, state appears, of power so far as it had no of emi And, according respondent’s nent domain. to estimates the of lands necessary for yet the other projects, acquire three it had of 22% reservoir, the Powelson Nottely, of the Murphy. and of 73% 96% 8 theory projected was that reservoirs would store water during the wet season and power that neighboring would be sold during dry utilities given season. The type name that of is said to derive from Lexington the fact that Water Power Co. sold the output plant of its Saluda to Duke Power Co. aon similar basis.
275 of selling 3.75 mills and a mills per kwh; price of 6.34 per energy kwh for On produced. all the the basis assumptions those an assumed net return computed. was That net rate capitalized given assumed return was at a portion sum, $7,500,000, of that i. e. was allocated challenged question. lands Petitioner most cost assumptions. those It introduced evidence that higher project of the would than respondent four-dam be charges assumed; proj- that the total annual fixed of the ect estimated; production would exceed those that energy per greater, would be the cost kwh would less, be respond- kwh be per sale would lower than price Court ent estimated. The the District Commissioners, re- Appeals and the Circuit Court of found the basis project spondent’s estimates of the four-dam availability value, and that their lands had water element of their purposes constituted the chief highest property. value value the basis $7,500,- agreed, however, respondent’s All estimate noted, we have the District high. too And as was Appeals concluded Court and the Circuit Court purposes of the for power fair market value lands $976,000. some entitled sought to be condemned lands is
An owner of fairly determined.” United States “market value their Miller, may That reflect U. value devoted presently which the only the use to readily converted. may which it that use to but also Patterson, v. 403; McCandless Boom Co. may the value In that connection S. 342. use higher in light special be determined not be need parcels; with other combined land when can be land is or which the use to merely by the measured York, v. New McGovern tract. put separate as a *9 adaptability special for that in order 363. But S. probability a reasonable must be considered, be there other tracts with combined being in question the lands for that near future. purpose reasonably Olson v. In 246, 292 U. S. 255. absence of such a showing, being the chance of their special united regarded speculative use is “as too remote and to have legitimate upon effect the valuation.” McGovern v. York, supra, New p. 372.
Respondent difficulty seeks to avoid that by reliance on granted eminent domain by North Carolina. argument is that the effecting means of a combina- tion of lands is not important is whether the land- —it owner had a reasonable chance doing it. This Court, however, held in the McGovern case that in estimating that chance or probability “the power effecting change by eminent domain be must left out.” 229 U. S. p. 372. And that view was followed in Sage, New York v. 239 U. 57, 61. Respondent attempts distinguish those cases on ground that, since the landowners question did not have they eminent domain, merely were denied recovery dependent a value upon a combination they could not reasonably expect to effect. But the thrust of the rule If deeper. against owner’s claim sovereign were increased rea- son of the power of eminent domain, then the very exist- ence of right of condemnation would confer on the owner “a value for which he must be paid when right is exercised.” Hale, Value to the Taker in Condemna- Cases, tion Col. Rev.
The fact that
the owner also has a power of eminent
domain does not alter the situation. See Tacoma v. Nis-
qually
Co.,
Power
Wash.
433,
277 may for which no sovereign price a part power of of its Yadkin River follows that view. exacted. North Carolina Ac- E. 188. C. 63 S. Whitney Power 150 N. Co. v. than if rather cordingly it that North Carolina seems clear constructing public project the United were States re- lands for the condemning purpose, the identical oppor- spondent compensated need the loss of an not be through of to utilization tunity develop power project North Carolina’s right to In case this was the condemn. combining project these numerous respondent’s chances would be power project into for a ownership tracts one power of eminent do reference to the measured without but an domain would be main. The eminent inclusion the pay Carolina making North indirect method the privilege. of the That impairment destruction power of eminent private company’s privilege use the to if the prop in the need not be reflected valuation domain those few by state indicated taken the is erty were the See Tacoma point. which seem to reached cases have Co., supra. That result the neces Nisqually is Power Akron, in ruling Sears v. sary import of this Court’s in the trustee brought that case 242. Suit was U. S. enjoin City the corporation Ohio to of an property constructing dam and reservoir on of Akron from had received from Cuyahoga corporation River. operate a right power to construct State Ohio state given by it And was also system the river. affected question of a market value have here the We do not con extent to may reflect some prices market Olson Court stated As that situation this demn. corpora knowledge public service supra, p. “It common 256: frequently are having domain] and others [eminent tions single competitors, only owner potential for tracts held actual or requiring locations, sites areas way, and other ship also for but And, parcels by different owners. held union of numerous by prospective purchasers or probable demand extent condemnors account,” value, into market is to be taken affects might acquire- that it of eminent domain so In that necessary project. case land acquisition private company apparently program respondent’s present not as far as was advanced degree development ease. But the is un- difference *11 important since each the private project case was still beyond inchoate and had not the progressed promotional phase public when the project was launched. This Court although held that project by City constructed might Akron imperil wholly company’s defeat the there impairment nowas project, contract, and no tak- ing or appropriation company’s property. In the latter connection Brandéis, Justice speaking Mr. Court, stated that it was clear “that Ohio retained the against one of creatures, any revoke such right to appropriate property until it had been upon acted by acquiring the property authorized to be taken.” 246 p.S. It was accordingly city held that against free as the company “to appropriate any of the any land or water might which otherwise have come under the development described in its certificate of incorporation.” pp. Id. 249-250.
This is a case of impression. first No precedent has been advanced suggests a measure of different compensation should be required where the United States rather than the state is taker of the property for a public project. any Nor has reason suggested why been as a matter of principle or policy there should be a dif measure of compensation in such a case. It has ferent long been assumed that in other respects national government was under greater “no limitation” by reason of the Fifth Amendment than were the by states virtue of the Fourteenth. Hamilton v. Kentucky Distilleries Co., 251 U. 146, 156. That is implicit view in eondem hatiQU' cases wherethe amount of just re- compensation Fifth quired by See, Amendment issue. for ex- Omnia Co. v. United 508-509. ample, why protection given “private prop-' do not We see erty” imposes upon under Fifth Amendment duty provide higher United States a measure of com- pensation for these lands than would be imposed if were the Amendment the state upon Fourteenth has taker.10 Nor reason based on considerations equity dealing and fair been advanced for justifying instant case be- higher compensation measure being public project spon- cause the lands are taken for a North sored the United States rather than Caro- authority lina. The the United putting warrant or disadvantage apparent. States such a is not at right of the United to exercise the States and “can neither “complete eminent domain is itself” *12 enlarged by be nor diminished Kohl v. United State.” Though meaning “prop- the of 91 U. S. erty” in of Act in Fifth Amend- as used § question, normally federal it will obtain its con- ment is a when we look to lo- by tent reference to local law. Yet in find no indication present case, law the we that cal by instituted purposes proceedings of condemnation question in would the lands the value of North Carolina privilege to use respondent’s be increased reason of com- far as constitutional of eminent domain. So power noted, that it as we have concerned, plain, are is pulsions in state were included case the that factor need not be in case present Moreover, the result the condemnor. (33 District Court if with the is not different we assume right” under “prior 522) respondent’s F. that Supp. p. which right, law “constituted valuable North Carolina It does proceeding.” destroyed by this condemnation Q. 226, 233-241, Chicago, Chicago, B. & R. Co. v. Cf. arising under Amendment. the Fourteenth
not right” follow that that “prior “private property” was within meaning of Fifth Amendment which was taken the United States.
The law of eminent domain is fashioned out of the
conflict between the
interest
in
people’s
public projects
and the principle
indemnity
of
landowner. We
Miller, supra, p. 375,
United States v.
recently
stated
adopt
“Courts have had
working
rules
order to
do
justice
substantial
proceedings.”
in eminent domain
Equity and fair
not
dealing
require
do
payment
United States to the
of
of
landowner
the amount
a valua-
tion of his lands based
his privilege
existence of
to use
power
“private
prop-
eminent domain.
It is
erty” which the Fifth Amendment declares shall not be
taken
public
just
use without
compensation. The
hardly
domain
eminent
can
be
to fall
said
category.
It is not a
personal privilege;
special
is a
authority impressed
a public
with
character and to be
public
An
for a
utilized
end.11
award based on the value
of that
would
an
privilege
appropriation
of public
authority
wholly private
to a
end. The denial of such
an
to the
injustice.
award
landowner does no
It is true
possession
respondent’s
eminent do-
part
main
opportunity
the basis
an
to unite the
present
with
lands
others into a
project. But he is
being deprived
expendi-
values
result from his
tures or activities. The
fruits
exercise
that power
Hagan,
See Pollard’s Lessee Boom Co. 212, 223;
3 How.
*13
Jones,
Patterson,
United States
403, 406;
513,
98
S.
109
S.
v.
U.
Railroad,
Spencer
518-519;
107, 121-122,
96;
v.
N.
137
C.
49 S. E.
Greenville,
490, 493-494,
919;
154 N.
E.
Wissler
v.
C.
S.
Jeffress
Co.,
v. Yadkin
River Power
465,
N. C.
E. 460.
In the latter
Supreme
(pp. 466-467):
case the
Court of North Carolina stated
upon corporations
“This
eminent
domain
conferred
affected
is
public use,
corporations
with
not much
so
for
benefit of the
them
large.”
selves,
people
but
the use
for
and benefit of the
at
And
being appropriated.
not
of eminent domain are
the United
against
raising
estoppel
is
an
there
no basis
Monongahela
thought
States
there was
See Om
States,
This to be hás frustrated project, of eminent do plan ent’s exploitation thing was a may privilege main. assume We means plan of value this frustration compensation our respondent. loss to But denial an the law exceptional that loss does not make this case business losses of eminent There are numerous domain. but which properties which from condemnation of result Fifth not Amendment. compensable are under is of cases point well illustrated two other lines rule that while it is the owner’s field. It is a well settled compen the measure of loss, gain, the taker’s Miller, (United taken sation for the States Co., supra, p. supra; United States Chandler-Dunbar Boston, 217 81; Boston Commerce v. U. S. Chamber of by the are com not all losses suffered owner 195), In absence of a under the Fifth Amendment. pensable *14 282
statutory Miller, (United supra, 376) mandate States v. p. sovereign takes, the must only what it not for pay opportunities owner may Orgel, lose. See 71, Valuation Under (1936) § Eminent Domain 73. On § the one Monongahela Navigation. hand are cases as such v. United supra, Co. States12 where it was held United States had appropriated going enterprise to its own ends and must compensation accordingly. make But it is well in settled that, ap Court13 “Frustration and propriation essentially things.” are different Omnia Co. v. United supra, p. 513. States, Thus Mitchell v. States, United 267 U. S. the owner was denied com pensation for the destruction of his business which resulted from taking public of his land for a project though even the business could not be elsewhere. reestablished This Court, noting after that “settled of law” precluded rules
12 Long Supply Brooklyn, And see 685; Island Co. 166 Water v. U. S. Cincinnati 390; Pennsyl v. Louisville & Nashville R. 223 U. S. Hospital Philadelphia, 20; Corp. vania v. 245 U. S. Brooks-Scanlon v. States, 106; United 265 De Laval Steam U. Turbine Co. v. United States, Monongahela 284 U. S. In the case the United States condemned a lock dam constructed at invitation of the United operated by Pennsyl States the owner under a franchise from special vania. This required Court held that the facts of the case going the franchise or enterprise concern value of included compensation payable owner. It was place said the first granted company Pennsylvania franchise awas property right, valuable since it was a contract under the rule of College Woodward, Dartmouth protected against v. 4 Wheat. impairment by Secondly, the state. the Court noted that the United destroy States did business; appropriated more than the enter prise public purposes. Moreover, as was stated in Omnia Co. v. States, supra, pp. 513-514, Monongahela case “rested primarily upon the estoppel, doctrine of as this Court has several pointed cases since out.” 13See States, 231; Bothwell v. United 254 U. S. Co. v. Provi Joslin dence, 668, 675; States, U. S. Atwater & Co. United U. S. 188; Carver, Corp. United States 294; Mullen Benevolent v. United S. 89. *15 damages” for “consequential losses
a consideration of recovery “No destruction, or stated: of a business its taking be as for of the business. therefor can had now a fact the Government took finding is no as a that There taking. it did intended a business, or that what as the an un destroyed, If destruction was the business was the 345. taking p. of land.” U. S. incident of the intended meaning the within property” which is not “private That may thing be a of value Fifth likewise Amendment taking impaired the of lands destroyed or which is destroyed like but But the business United States. the it need not be reflected the Mitchell case “taken” Congress unless so award due the landowner the provides. to profits that as the say the evidence no answer
It is in- project was hypothetical four-dam respondent’s from loss or profits of an award for not as the basis troduced estimating the for true water only but as a basis business computation of those power property. value enter- projected existence of the very profits assumes could of eminent domain alone power prise which these condemnations frustrated. possible make en- any that allowance of such value would an repeat We prospect loss of a business based payment a tail of eminent domain. As we have on unexercised an or precedent principle appears said, no reason based of eminent respondent’s privilege use why as within “private property” should be treated domain meaning give of the Fifth Amendment so rise against claim Nor public treasury. is private to a Congress adopted regard there indication compensation liberalized than would more standard Fifth under Amendment. provided be suggested this result would mean It is con- proceedings pay United States need not demnation at the time of the if taking property value di- might destroy is or state where the located through exercise of appropriate minish that value an A is is not the case. police power. It manifest that such as- may destroy state or diminish values an of course making necessity sertion of its without the police Dis- Kentucky for the loss. Hamilton v. compensation Co., Hirsch, 256 tilleries Block supra; (United change While such a will not States presumed v. River Rouge 411), possibility prob- ability present action, values, such so far as it affects subject proper valuing property consideration in purposes of a condemnation award. See Reichelderfer *16 Quinn, gen- 287 U. 323. not disturb S. We do those eral The principles. United no more a state States than can just be from paying compensation excused measured by the the property taking value of at the time of the merely because it could value destroy that appropriate legislation regulation. have unique But we here a sit- power uation. The which respondent eminent domain seeks to have reflected is largely valuation unexer- cised and need be not reflected in the measure of compen- if sation which state the privilege conferred were the taker of the If lands. these already numerous tracts had been by respondent united through power of eminent domain into a power project, problems distinct would be posed Akron, as Sears v. supra, indicates. Then United States be acquiring would business, simply a not frustrating a promotional merely scheme. We hold the United States, specific absence of a re- statutory quirement, need not make compensation for the loss a business opportunity based on the unexercised privilege to use power of eminent domain where the state need not do so were it sponsor of the public project and the obliga- taker of the lands. The constitutional tion of the United States to make compensation does not extend so far. will reduce an award
It is that this result true equal approximately noted was Appeals Court of Circuit acquired in the lands total investment respondent’s Amendment But the Fifth interest. project, plus 3% prop fair of his market value only allows the owner him his investment. guarantee not return erty; does Cases, Brooks-Scanlon 352, 454; Minnesota Rate United Corp. 106, 123; 265 U. Olson States, supra, 255. p. power use the respondent’s privilege result is determining be may not considered
of eminent domain lands probability whether there reasonable into a with other tracts question being combined reasonably If near future. in the project the chances of mak- account, out of eminent domain left “to to be too remote and slim ing appear the combination upon the valuation.” McGov- any legitimate effect have York, has supra, Respondent therefore p. ern v. New the water value proof the basis for established asserted. which was enterprise attributable to the only profits,
We hold launch, are inadmissible as hoped which respondent which were taken. Re- evidence of the value of lands the market course, entitled to value spondent is, *17 And that value fairly determined. should (United rules with established found accordance Miller, practi- so far as supra) uninfluenced, States v. — he whose are by lands con- cable, the circumstance of eminent domain. We do not demned has the at the and in the question reach much discussed bar earnings respondent’s of briefs whether evidence hypothetical project four-dam should have been excluded speculative.14 too further reason that was 14 States, Diego 341, 348-350; Sharp v. San 191 S. See U. 977; Neale, & Matter 50, 58-63, 25 Land Town Co. v. 88 Cal. P. York, 441; City 272, 275, 103 New New App. 118 Div. N. Y. S.
286 judgment
The is reversed and the cause is remanded to Appeals Circuit Court of proceedings conformity with this opinion.
Reversed. Justice Jackson, dissenting: Me. Chief Justice, Robeets, Justice Jus- Me. Me. and I understand
tice Feankfuetee
hold
the Court to
that property physically adaptable to power purposes,
by
taken
the Federal Government
for power purposes
among others, is to be
valued as
pur-
worthless for
poses matter
projected
of law
development
because
might be defeated if the
State should revoke the
of eminent domain admittedly
possessed by
owner at
taking.
the time
proper
We think it denies
effect
policy
state law and
effect at the
taking.
time of
Unless
decision overrules the law
Mr.
as stated
Justice
Brandéis for
unanimous Court, flowing streams
governed
are natural
resources owned and
rights
grantees
and the
of their
riparian owners are
settled
the local law which is
on us.
conclusive
Port
Oregon &
Co.,
Seattle v.
Washington R.
U.
255
S.
St.
56;
Anthony Falls Water Power Co. v. St. Paul Water
Comm’rs, 168 U.
349; Shively Bowlby,
v.
1;S.
cf.
Oregon,
United States v.
its ownership to the beds navigable and shores of all waters in the up including state to and ordinary high the line of tide in waters flows, where the tide ebbs up including and to and the line of ordinary high navigable water within the banks of all rivers Provided, lakes: that this section shall not be construed so as de- any person bar asserting from his claim to vested courts of the state.”. XXI, Article 1: use “The waters irrigation, state for § mining, manufacturing purposes public shall be deemed a use.”
Wisconsin, XXI, Article 1: shall juris- “The state have concurrent §
288 including it corporation gave powers extensive 2 acquired, right corporation eminent domain. The dam condemnation, partly by purchase partly by key sites, stream, riparian properties bed of the lands and right acquire by necessary development. to the needed was never any condemnation additional lands or but on the other hand was con repealed withdrawn by litigations.3 firmed courts in a There state series finding is no or forfeiture, repeal impair evidence that or ment of these has been considered or threatened if remotely legally the State or is even probable, even possible. paramount powers navigation
Under its the Fed- over eral Government has elected to take this resource out the control of away grantee the State and from the corpo- subject ration which is taxing regulatory State power. may do, This it but only upon making just com- pensation. But the Court holds that compensation must be computed as if the grant State had refused to it what granted has or had withdrawn given what it has no indica- tion of withdrawing. By thus cancelling for the purpose bordering diction on all rivers and lakes on this state so far as such boundary rivers or lakes shall form a common to the state and territory other state or formed, now or hereafter to be and bounded same; Mississippi navigable and the leading river and the waters Mississippi Lawrence, carrying places into the and St. and the be same, highways tween the shall be well free, common and forever to the inhabitants of the state as to the citizens of the United States, any tax, impost duty without therefor.” Bay Co.,
See also Kaukauna Water Power Co. Green Canal 142 Paper cf. International 254, 272; Co. v. U. S.
399.
2
Carolina,
Private
1909,
76, p
Laws of North
c.
3
Co.,
Carolina-Tennessee
v. Hiawassee
Power Co.
River
Power
171
N. C.
E.
(1916),
(1918),
88 S.
349
175 N. C.
E. 99
96 S.
179, 119
(1923),
186 N. C.
E.
128, 123
(1924);
S.
188 N. C.
S.E. 312
Hiawassee River Power
Co. v. Carolina-Tennessee
Power
(1920),
(1925).
Determination of value of *20 use, always involves some prospective as affected a prophecy probabilities. element of and some estimation of court that we know of has ever and we do proposed, No to value the of eminent domain either propose, separately ingredient or as an taken. Its property only purpose existence should be considered determining advantageous the most probable usefulness property legal as affects its The principles value. governing questions the solution of the fact laid are down Olson United 292 U. Of v. S. 246. course uncertainty right or limitation as to the to condemn prop- erty or probable impairment, forfeiture, evidence of or weighed withdrawal of it would with be other evidence in arriving judgment feasibility to the project at a property. value of the This Court has said a by governing body exercise a possibility of its affecting subject changes proper make values con- Quinn, fixing values. sideration Reichelderfer it held 315, 323. But never until now has U. S. legally if to be determined as requires present
law values changes already have factually improbable, possible, but place. taken gov from so immune the effects
New are properties en may action not be authority that some ernmental items them. One of the would devalue visioned which from re Government this case by the Federal taken going of control of the State was a and out spondent distributing generating plant sys an electric concern, accepted the award made for parties both tem. Since plant longer issue, it is no an but is illustrative of the legal problem opinion. raised the Court’s Doubtless many the State innova Government had to make impose tions detrimental to its and to burdens success perhaps that would detract from its had re value and powers corporate served to annul its or franchises. special suppose hypothetical But we would not that such destruc minimize tion of values could be invoked to com pensation payable taking any on a more than hypothetical through accretions to its state action, possible but could increase accomplished, compensation. never such In use hence many cases beneficial value if abutting be decreased property may public authority canal, or obstructs a street or public changes closes or .4 grade county the location of street, of a seat examples Quinn, supra, cases in See and citation of Reichelderfer at 319. opinion principle adopted by majority may validity following: against hypothetical such cases as the tested navigable projecting a dock into a stream State S. The 0 owns *21 may destroy require it or its removal without Federal Government (United Chicago, M., payment compensation of States v. P. & St. appear 592), likely not Co., but it does that it will do P. R. 312 U. S. commercially property. so, acquires is a and the dock valuable S the by condemnation, payment by seeks relying upon dock and to avoid the destroy power of the Federal Government to its value. acquires distillery by condemnation, in State S. S owns a it O asserting payment by the existence of the
and resists Federal Govern prohibition thereby destroy power ment’s to enact a law dimin or distillery payment without compensation the of ish the value 146). (Hamilton Kentucky Distilleries S. v. 251 U. upon by option option land owns an owned State S. The 3. 0 S, unlikely, option will of but revocation seems revocable at the the acquires by The Federal has Government it commercial value. con- upon payment by relying demnation, power resists of but S’s revocation. complicated by supposing
These cases can be further the con- sovereign itself, by corporation private but a demnation is not the it with of eminent domain. vested the should payable the compensation in all such cases But allowing taking, time of at the property value the the might exert, contingencies any influence these upon probability. their depend would which authorizes supports decision this Court previous No eminent do existing right state disregard of presently McGovern In v. taking property. main a federal Sage, York 239 U. York, S. New New the State and agency of the condemnation was an probability no not and showed the condemnees did have obtaining from the State. such us is Sears now before Even less relevant to the question Akron, a condemnation case 242. It was not City construc enjoin to from equity at all but a suit river dam diversion of water. tion of a and reservoir and any com City propose property The not take did to creditor de mortgage pany through plaintiff which In fact any rights company rived he asserted. did although any shortly own in the property project, included City’s but de suit, before commencement of after completed, acquired it two velopment practically was City’s dam. But parcels small some distance below company’s gave right of domain charter it a eminent and, although so, it had taken to it step no do claimed taking. to right expropriate City was property same sought ground It enjoin the its un City upon exercised right to take an indefeasible was property property right being defeated and rendered in preempting valueless because the ahead of City was properties which the company might acquire want to under power. State of had retained "re Ohio voke right such until it had appropriate *22 been acted upon by acquiring authorized to property be taken.” Id. at 250. had The of course revoked State power to the extent the City, it had authorized its own But instrumentality, the property. to take Jus-
tice Brandéis pointed out that “Nor are we called to upon determine to what extent the commencement of the ac- quisition of property preparation needed for the development, or even actual commencement of construc- tion, would right have vested in the company the com- to Ibid. The plete development.” decision now relied upon to establish the point expressly reserved. More- over, the company Ohio had tried to use con- demnation, and Ohio courts had held its charter did not authorize it to take lands Cuya- essential to its project. hoga River Power Co. Co., Northern Realty In the case now before us the North Carolina courts had held the power given by that State to this company complete was prior every to other at very location involved here.5
These cases do not decide what would have been re- spondent’s rights if North Carolina, rather than the United States, had instituted present condemnation proceed- ings, thereby expressing her unwillingness to have the respondent carry the ect proj through completion. They wholly are inapposite the question we upon are called decide, which is whether North Carolina’s expressed willingness and undoubted the respondent should do so, and to that end her sovereign should exercise domain, may along eminent be considered with all bearing upon question other facts prospects completion. contrary
The Government and the Court have taken a position to one when the now announced shoe Rouge United States v. River In on the other foot. sought to deduct from the 269 U. the Government condemned the benefits conferred value property. owner improvement upon severed should because denied that these benefits considered by the Gov- them be terminable enjoyment his would supra. footnote See *23 any ernment at The Court credit for time. sustained that was pointing nothing out “there the evi- benefits, indicating probability dence the Government any abrogate right any curtail would at time or Id. at 420. respect.” against apply
We think same rule should as for en- Government, question and that the property being titled the time extended by to the benefits at State authority probability of evidence of absence do not think abrogated curtailed. We they would have may of eminent domain that because the matter of law been revocable it follows as State nonexistent, it must be treated as we dissent grounds. from based on such a reversal DREDGE & DOCK CO. GREAT LAKES al. et OF HUFFMAN, ADMINISTRATOR, DIVISION DE- SECURITY, LOUISIANA EMPLOYMENT PARTMENT OF LABOR. Argued May 5, 6, 24, 1943. May 1943. Decided
No.