State of Missouri v. Union Electric Light & Power Co.

• Decision Date: 18 July 1930
• Docket Number: No. 233.,233.
• Citation: 42 F.2d 692
• Parties: STATE OF MISSOURI ex rel. and to Use of CAMDEN COUNTY, MO., et al. v. UNION ELECTRIC LIGHT & POWER CO. et al.
• Court: U.S. District Court — Eastern District of Missouri

42 F.2d 692 (1930)

STATE OF MISSOURI ex rel. and to Use of CAMDEN COUNTY, MO., et al. v. UNION ELECTRIC LIGHT & POWER CO. et al.

No. 233.

District Court, C. D. Missouri, W. D.

July 18, 1930.

Sid C. Roach (of Jones, Hocker, Sullivan & Angert), of St. Louis, Mo., and Morgan M. Moulder, Pros. Atty., of Linn Creek, Mo., for complainants.

Theodore Rassieur (of Rassieur & Goodwin), of St. Louis, Mo., and Edgar Shook (of Baker, Botts, Parker & Garwood), of Kansas City, Mo., for defendants.

REEVES, District Judge.

This is an action to enjoin the construction of a dam across the Osage river, near Bagnell, in Miller county, Mo. It is alleged by complainants that the object of said construction is to secure power for a hydroelectric plant, and that said plant is to be operated by the defendant Union Electric Light & Power Company solely for the purpose of generating electricity for profit. Although complainants assert that the Osage river and many of its tributaries are navigable in fact and in law, yet they say that the construction of said dam would not serve to promote navigation thereon, but would impede same; that the size of said dam, as now contemplated, would inevitably create an immense reservoir and cause the inundation of vast tracts and bodies of land, the submergence of many public highways and school districts, and the permanent overflow of the village of Linn Creek in Camden county, which is now the county seat of said county; and that the courthouse and other public property situated in said Linn Creek would be flooded and rendered useless.

It is further alleged that said dam is not intended as a public improvement and in fact would not be for the public interest, but is wholly designed as a private enterprise for the generation of electricity to be disposed of commercially, and on account of the lake formed thereby a condition deleterious to the public health would be created.

The defendants, on their part, admit the proposed and intended construction of said dam. They assert, however, that it would be an aid and benefit to navigation. The defendants, and particularly the Union Electric Light & Power Company, plead the legal right to construct said dam, which, it says, is vested by virtue of Federal License Project 459 Missouri, granted by the Federal Power Commission, pursuant to the provisions of the Federal Water Power Act of June 10, 1920, being chapter 12, title 16 of the United States Code (16 USCA §§ 791-823). The authority of the Federal Power Commission, it is asserted, arises from clause 3, § 8, of article 1 of the Constitution of the United States, whereby power is vested in the Congress "to regulate commerce with foreign nations, and among the several States."

The defendants, and particularly the Union Electric Light & Power Company, plead compliance with said water power act and assert the right not only to construct said dam but to acquire by condemnation, if necessary, all property of a private or public nature, situated within the proposed reservoir or in any manner affected by said project.

Other questions and minor issues raised by the pleadings and evidence will be stated in the course of this memorandum opinion.

The evidence, on the part of the complainants, tended to show that navigation on the Osage river and its tributaries had been carried on uninterruptedly for many years, but that the volume of business had been so far reduced that it was practically negligible at the present time. Such navigation was seasonal and dependent in a large measure upon the stage of the rivers affected, which in turn were largely dependent upon uncertain rainfalls.

The evidence was undisputed that the dam, as proposed by the defendant Union Electric Light & Power Company, would have the effect to accumulate a vast body of water in a huge reservoir, and that the entire region within the valley of the Osage river and the valleys of its tributaries, for a distance of more than 100 miles, would be overflowed. This would result in submerging both public and private property, including the courthouse and jail in the village of Linn Creek, a large number of school districts, and at sundry points inundate the public highways. It was undisputed that Camden county would be divided in three parts by the lake to be formed, and that each part would be rendered inaccessible to the other parts.

It further appeared beyond question that a large portion of the more fertile bodies of land in Camden county, lying along and in close proximity to the Osage river and its tributaries, would be inundated, so that the county, so far as agriculture is concerned, would be permanently deprived of its most valuable productive areas. There was evidence as to the necessary withdrawal of such lands from state and local taxation and the serious effect that would follow upon the revenues of Camden county. There was evidence that unsanitary conditions would be created by the exposure of large areas covered with mud and bog due to the recessions of the lake.

The evidence on the part of the defendants showed that navigation on the Osage and its tributaries had been so greatly reduced in recent years that it was now negligible. It was admitted that valuable properties, both public and private, would be inundated. The testimony of the defendants, however, showed that no unhealthy conditions would result from the construction of said dam and reservoir, but that, on the contrary, the areas covered by mud and bog would be greatly reduced by reason of said construction.

The Osage river and its tributaries are subject to frequent and extensive overflow in their natural state. Much of the area to be taken as part of the proposed reservoir is now subject to overflow. Following such overflows, deposits are left similar to that which would follow the withdrawal of waters in the reservoir and are far more extensive.

The evidence, on the part of the defendants, tended to show that navigation would be materially benefited by the construction of said dam; that the Osage river would be rendered navigable for heavy draft boats between Warsaw in Benton county and Bagnell in Miller county; and that this would comprehend a distance of approximately 100 miles and would connect with railroad carriers at both of these points.

The evidence was that for many years there has not been continuous navigation, but that freight was ordinarily taken from the river at Bagnell and thereafter carried by railroad. There was much evidence that the release of water from the reservoir would much more evenly distribute the flow on the Osage river below the dam, and that navigation would experience a dependable and adequate flow of water. Moreover, the Missouri river would be affected somewhat favorably for navigation at periods of low water.

Many legal questions have been interposed touching both the right of the defendants to appropriate property already dedicated to public use and the ability of the defendants to comply with certain regulatory laws both of the national and state governments. All of these questions will be treated hereinafter.

1. At the outset the court is concerned with the fundamental and jurisdictional question as to whether the project is one of federal judicial cognizance. As a postulate to a further consideration of the case, it must be acknowledged, and the parties so concede, that the national government, under the power "to regulate commerce with foreign nations and among the several states," has full and complete jurisdiction over all matters affecting navigation. Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 20 S. Ct. 96, 44 L. Ed. 136; Gibbons v. Ogden, 9 Wheat. 1, loc. cit. 229, 6 L. Ed. 23; Alabama Power Co. v. Gulf Power Co. (D. C.) 283 F. 606, loc. cit. 613. Moreover, this power and authority extends just as fully and completely to navigation upon the navigable waters wholly within a state.

In Sewell v. Arundel Corporation, 20 F. (2d) 503, loc. cit. 504, the Court of Appeals for the Fifth Circuit, said: "It is well settled that Congress has complete dominion over the navigable waters of the United States, whether wholly within the boundaries of a state or otherwise, and has authority to undertake and prosecute such work as may be thought necessary to improve their navigability. This authority includes the power to obstruct, and when Congress gives consent to the creation of an obstruction to navigation it ceases to be a nuisance and the courts are powerless to interfere. Wisconsin v. Duluth, 96 U. S. 379, 24 L. Ed. 668; Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 15 L. Ed. 435."

The above authorities, with many others that might be collated, express the law on this subject.

2. It is equally a well-settled proposition of law that, "if a certain means to carry into effect any of the powers, expressly given by the constitution to the government of the Union, be an appropriate measure, not prohibited by the constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance." McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579.

3. To the foregoing may be added the doctrine that has been laid down with unvarying uniformity: "That when Congress has, by any expression of its will, occupied the field, that action was conclusive of any right to the contrary asserted under State authority." Wisconsin v. Duluth, 96 U. S. 379, loc. cit. 387, 24 L. Ed. 668. The adjudged cases on this point are too numerous to require further citation of authorities.

4. With the foregoing propositions as to the authority, degree of necessity and exclusive control by Congress, in mind, the question as to what Congress has actually done may be intelligently discussed. As a preliminary to this discussion, the court announces a finding of fact to the effect that the evidence is rather overwhelming as to the benefits to navigation that will accrue from the proposed structure. At the...