In a suit brought by the United States for the condemnation of private land adjoining a navigable river as part of a project for the improvement of the Savannah River basin, the just compensation which the Fifth Amendment requires to be paid does not include the value of the water power in the flow of the stream. Pp. 223-228.
Ralph S. Spritzer argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Morton and Roger P. Marquis.
David W. Robinson argued the cause for respondents. With him on the brief were James F. Dreher and R. Hoke Robinson.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This is a suit for condemnation of land instituted by the United States against respondent power company. A single question of valuation is presented. It is whether the just compensation which the United States must pay by force of the Fifth Amendment includes the value of the land as a site for hydroelectric power operations. The Fourth Circuit Court of Appeals held that it does. 215 F.2d 592. The Court of Appeals for the Fifth Circuit reached the same result in litigation involving other lands in the same hydroelectric project. United States v. Twin City Power Co., 221 F.2d 299. We granted the petition for certiorari in the former case because of the importance of the issue presented. 348 U.S. 910 .
The condemnation proceedings are part of the procedure for completion of the Clark Hill project on the Savannah River, a navigable stream in southeastern United States. The Clark Hill project is the first in a series of steps recommended by the Chief of Army Engineers for the improvement of the basin of that river. H. R. Doc. No. 657, 78th Cong., 2d Sess. That Report conceives of the Clark Hill project as serving multiple purposes - hydroelectric, flood control, and navigation. It states that the Clark Hill project, "if suitably constructed and operated primarily for hydroelectric-power development, would incidentally reduce downstream flood damages and improve low-water flows for navigation." Id., [350 U.S. 222, 224] p. 3. Congress approved this project as part of "the comprehensive development of the Savannah River Basin for flood control and other purposes." Section 10 of the Flood Control Act of 1944, 58 Stat. 887. And see United States ex rel. Chapman v. Federal Power Commission, 345 U.S. 153, 170 .
The Court of Appeals concluded that the improvement of navigation was not the purpose of the taking but that the Clark Hill project was designed to serve flood control and water-power development. 215 F.2d, at 597. It is not for courts, however, to substitute their judgments for congressional decisions on what is or is not necessary for the improvement or protection of navigation. See Arizona v. California, 283 U.S. 423, 455 -457. The role of the judiciary in reviewing the legislative judgment is a narrow one in any case. See Berman v. Parker, 348 U.S. 26, 32 ; United States ex rel. TVA v. Welch, 327 U.S. 546, 552 . The decision of Congress that this project will serve the interests of navigation involves engineering and policy considerations for Congress and Congress alone to evaluate. Courts should respect that decision until and unless it is shown "to involve an impossibility," as Mr. Justice Holmes expressed it in Old Dominion Co. v. United States, 269 U.S. 55, 66 . If the interests of navigation are served, it is constitutionally irrelevant that other purposes may also be advanced. United States v. Appalachian Power Co., 311 U.S. 377, 426 ; Oklahoma ex rel. Phillips v. Atkinson Co., 313 U.S. 508, 525 , 533-534. As we said in the Appalachian Power Co. case, "Flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control." 311 U.S., at 426 .
The interest of the United States in the flow of a navigable stream originates in the Commerce Clause. That Clause speaks in terms of power, not of property. But the power is a dominant one which can be asserted to the [350 U.S. 222, 225] exclusion of any competing or conflicting one. The power is a privilege which we have called "a dominant servitude" (see United States v. Commodore Park, Inc., 324 U.S. 386, 391 ; Federal Power Commission v. Niagara Mohawk Power Corp., 347 U.S. 239, 249 ) or "a superior navigation easement." United States v. Gerlach Live Stock Co., 339 U.S. 725, 736 . The legislative history and construction of particular enactments may lead to the conclusion that Congress exercised less than its constitutional power, fell short of appropriating the flow of the river to the public domain, and provided that private rights existing under state law should be compensable or otherwise recognized. Such were United States v. Gerlach Live Stock Co., supra, and Federal Power Commission v. Niagara Mohawk Power Corp., supra. We have a different situation here, one where the United States displaces all competing interests and appropriates the entire flow of the river for the declared public purpose.
We can also put aside such cases as United States v. Kansas City Life Ins. Co., 339 U.S. 799 , where assertion of the dominant servitude in the navigable river injured property beyond the bed of the stream. Here we are dealing with the stream itself, for it is in the water power that respondents have been granted a compensable interest.
It is argued, however, that the special water-rights value should be awarded the owners of this land since it lies not in the bed of the river nor below high water but above and beyond the ordinary high-water mark. An effort is made by this argument to establish that this private land is not burdened with the Government's servitude. The flaw in that reasoning is that the landowner here seeks a value in the flow of the stream, a value that inheres in the Government's servitude and one that under our decisions the Government can grant or withhold as it chooses. It is no answer to say that payment is [350 U.S. 222, 226] sought only for the location value of the fast lands. That special location value is due to the flow of the stream; and if the United States were required to pay the judgments below, it would be compensating the landowner for the increment of value added to the fast lands if the flow of the stream were taken into account.
That is illustrated by United States v. Chandler-Dunbar Co., 229 U.S. 53 , the case that controls this one. In that case a private company installed a power project in St. Mary's River under a permit from the Government, revocable at will. The permit was revoked, Congress appropriating the entire flow of the stream for navigation purposes. The Court unanimously held that the riparian owner had no compensable interest in the water power of which it had been deprived. Mr. Justice Lurton, speaking for the Court, said, "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., at 69. The Court accordingly reversed a judgment that awarded the riparian owner what respondents have obtained in this case, viz., "the present money value of the rapids and falls to the Chandler-Dunbar Company as riparian owners of the shore and appurtenant submerged land." Id., at 74. The Court said, "The Government had dominion over the water power of the rapids and falls and cannot be required to pay any hypothetical additional value to a riparian owner who had no right to appropriate the current to his own commercial use." * Id., at 76. Some of the land owned by the private [350 U.S. 222, 227] company was in the bed of the stream, some above ordinary high water. But the location of the land was not determinative. It was the dominion of the Government over the water power that controlled the decision. Both in Chandler-Dunbar and in this case it is the water power that creates the special value, whether the lands are above or below ordinary high water. The holding in Chandler-Dunbar led us to say in United States v. Appalachian Power Co., supra, at 424, that the "exclusion of riparian owners" from the benefits of the power in a navigable stream "without compensation is entirely within the Government's discretion." And again, "If the Government were now to build the dam, it would have to pay the fair value, judicially determined, for the fast land; nothing for the water power." Id., at 427.
The power company in the present case is certainly in no stronger position than the owner of the hydroelectric site in the Chandler-Dunbar case. While the latter was deprived of a going private power project by the Government, the present private owners never had a power project on the Savannah and as a result of the Government's pre-emption never can have one.
It is no answer to say that these private owners had interests in the water that were recognized by state law. We deal here with the federal domain, an area which Congress can completely pre-empt, leaving no vested private claims that constitute "private property" within the meaning of the Fifth Amendment. Location of the lands might under some circumstances give them special value, [350 U.S. 222, 228] as our cases have illustrated. But to attach a value of water power of the Savannah River due to location and to enforce that value against the United States would go contra to the teaching of Chandler-Dunbar - "that the running water in a great navigable stream is capable of private ownership is inconceivable." 229 U.S., at 69 .
The holding of the Chandler-Dunbar case that water power in a navigable stream is not by force of the Fifth Amendment a compensable interest when the United States asserts its easement of navigation is in harmony with another rule of law expressed in United States v. Miller, 317 U.S. 369, 375 .
[ Footnote * ] In the Chandler-Dunbar case, an award of compensation was made for the value of the land for a lock and canal, passing "around the falls and rapids." United States v. Chandler-Dunbar Co., 229 U.S., at 67 , 76-78. It may be that the Court was influenced by the fact that, on the special facts of the case, the use of the land for canals and [350 U.S. 222, 227] locks was wholly consistent with the dominant navigation servitude of the United States and indeed aided navigation. Whatever may be said for that phase of the case, it affords no support for respondent, since water-power value, held to be compensable by the Court of Appeals, was ruled to be noncompensable in the Chandler-Dunbar case. [350 U.S. 222, 229]
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 [350 U.S. 222, 230] 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. 1
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 [350 U.S. 222, 231] 60-foot head at Price's Island. 2 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 [350 U.S. 222, 232] 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. 3 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. 4 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 [350 U.S. 222, 233] 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. 5
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, 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 , and Grand River Dam Authority v. Grand-Hydro, 335 U.S. 359 . 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 reservoir basin. Although its taking of the property cut off further competitive bids for the land, the Government had the same constitutional obligation to [350 U.S. 222, 239] 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:
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:
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., at 75. [350 U.S. 222, 242] 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:
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., at 74, 75. 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., at 74-75. Likewise, in valuing the smaller area, the District Court allowed an additional value of $5,000 in "connection [350 U.S. 222, 244] with the canal along the rapids, if used as a part of the development of 4,500 (6,500) horse power." Id., at 75. 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:
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:
[ Footnote 2 ] Twin City's 4,700 acres would include all except about 170 acres of the land and rights necessary for the location of a dam, plant and reservoir basin with a 60-foot head of water at Price's Island. A 60-foot head at that point with a 5-foot surcharge would require about 400 additional acres instead of 170, a 70-foot head with a 5-foot surcharge, 1,250 acres, and an 80-foot head with a 5-foot surcharge, 2,800 acres. The Twin City land was not only available but essential for such developments in the vicinity of Price's Island. Cf. United States ex rel. T. V. A. v. Powelson, 319 U.S. 266 ; Olson v. United States, 292 U.S. 246 .
[ Footnote 3 ] Savannah River Electric Co. v. Federal Power Commission, supra.
[ Footnote 4 ] These 188.50 acres are those on which the flowage rights have been found by the lower courts to be valid and enforceable, as distinguished from the 745.58 acres of "options" which have been treated by the lower courts as unenforceable. The flowage rights were acquired by Twin City through deeds of purchase and, for reservoir purposes, they are as valuable as a title in fee. They evidence a control over riparian land without which water rights are useless for the development of a hydroelectric project.
[ Footnote 5 ] The answers filed by the condemnees in this action were so construed by the District Court. The United States, relying on United States v. Chandler-Dunbar Co., 229 U.S. 53 , moved to strike portions of the amended answers filed by the condemnees. In denying these motions, the District Court said:
[ Footnote 6 ] Following the above statement, we illustrated, in a footnote, the limitation of the servitude to the bed of the stream as fixed by its ordinary high-water mark. We showed that in the Chicago case, supra, this Court permitted the overflowing, without compensation, of land within the bed of the stream but denied application of the servitude to nearby land outside of the bed of the stream. The Court also remanded that case for a determination of whether or not certain other lands were within the bed of the stream.
[ Footnote 7 ] Near this point, there also appears the following statement which has significance here in view of the competition between Twin City and others prior to the taking of the land in question by the United States:
[ Footnote 8 ] The following are excerpts from the Commissioner's report:
[ Footnote 9 ] The estimate which the Commissioners made of the value of the land based upon its timber and agricultural value, plus an allowance of $5 per acre for the assembly of the title under a single ownership, was about $37 per acre in South Carolina and $31 per acre in Georgia, producing a total of $150,841.85. This contrasts with the $267.02 per acre, and a total "just compensation" of $1,257,033.20, approved by the Commissioners and the courts below.
[ Footnote 10 ] The allowances of value are here discussed in the following order:
(1) for water rights; (2) for value of land for canal and lock purposes; (3) for value of land for general purposes; and (4) for value of land for factory sites contingent upon availability of surplus privately developed electric power. In the text of the Chandler case, at pages 74-75, the value of canal and lock purposes is treated last.
[ Footnote 11 ] Although erroneously referring to it as having been used in a lower court instruction in the Shoemaker case, Justice Lurton's quotation of the following language lends this Court's approval to it: