217 U.S. 333 (1910), 147, United States v. Welch

Docket NºNo. 147
Citation217 U.S. 333, 30 S.Ct. 527, 54 L.Ed. 787
Party NameUnited States v. Welch
Case DateApril 25, 1910
CourtUnited States Supreme Court

Page 333

217 U.S. 333 (1910)

30 S.Ct. 527, 54 L.Ed. 787

United States

v.

Welch

No. 147

United States Supreme Court

April 25, 1910

Argued April 11, 1910

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES

FOR THE EASTERN DISTRICT OF KENTUCKY

Syllabus

A private right of way is an easement and is land, and it destruction for public purposes is a taking for which the owner of the dominant estate to which it is attached is entitled to compensation.

The value of an easement cannot be ascertained without reference to the dominant estate to which it is attached. In this case, an award for destruction of a right of way and also for damage to the property to which it was an easement sustained.

The facts are stated in the opinion.

Page 338

HOLMES, J., lead opinion

MR. JUSTICE HOLMES delivered the opinion of the Court.

This is a proceeding under the Act of March 3, 1887, c. 359, § 2, 24 Stat. 505, to recover the value of land taken by the United States. It is admitted that a strip of about three acres of land lying along the side of Four Mile Creek, and running east and west, was taken, and is to be paid for. It was permanently flooded by a dam on the Kentucky River, into which Four Mile Creek flows. United States v. Lynah, 188 U.S. 445. Manigault v. Springs, 199 U.S. 473, 484. The plaintiffs owned other land south of and adjoining the strip taken, and had a private right of way at right angles to the creek, northerly, across land of other parties, to the Ford County Road, which ran parallel to the creek and at some distance from it. This was the only practical outlet from the plaintiffs' farm to the county road. The taking of the intervening strip, of course, cut off the use of the way, and the judge who tried the case found that it lessened the value of the farm $1,700. He allowed this sum in addition to $300 for the land taken. The United States took a writ of error on the ground that the former item was merely for collateral damage not amounting to a taking, and of a kind that cannot be allowed; that at most it was only a tort. The case is likened to the depreciation in value of a neighboring but distinct tract by reason of the use to which the government intends to put that which it takes. Sharp v. United States, 191 U.S. 341, 355.

The petition, like the form of the finding, lends some countenance to this contention by laying emphasis on the damage

Page 339

to the farm, although it is to be noted that,...

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