United States v. 1532.63 ACRES OF LAND, ETC.

• Decision Date: 01 October 1949
• Docket Number: 786.,Civ. A. No. 740
• Citation: 86 F. Supp. 467
• Parties: UNITED STATES v. 1532.63 ACRES OF LAND, MORE OR LESS, IN McCORMICK COUNTY et al. UNITED STATES v. 3829.09 ACRES OF LAND, MORE OR LESS, IN McCORMICK COUNTY et al.
• Court: U.S. District Court — District of South Carolina

86 F. Supp. 467

UNITED STATES v. 1532.63 ACRES OF LAND, MORE OR LESS, IN McCORMICK COUNTY et al.

UNITED STATES v. 3829.09 ACRES OF LAND, MORE OR LESS, IN McCORMICK COUNTY et al.

Civ. A. Nos. 740, 786.

United States District Court W. D. South Carolina, Greenwood Division.

October 1, 1949.

Oscar H. Doyle, U. S. Atty., Anderson, S. C., J. Saxton Daniel, U. S. Atty., Savannah, Ga., E. P. Riley, Asst. U. S. Atty., Walter H. Hood, Asst. U. S. Atty., Greenville, S. C., Robert R. MacLeod, Department of Justice, Washington, D. C., Lands Division, Charles D. Russell, Sp. Asst. to Atty. Gen., for petitioner.

M. G. McDonald, Greenwood, S. C., G. L. B. Rivers, Charleston, S. C., D. W. Robinson, Columbia, S. C., C. A. Mays, Greenwood, S. C., J. Fred Buzhardt, McCormick, S. C., J. Perrin Anderson, Greenwood, S. C., Julian J. Willingham, Augusta, Ga., Harllee Branch, Jr., Atlanta, Ga., Inman Curry, Augusta, Ga., H. G. Howard, Augusta, Ga., J. Richard Bowden, Atlanta, Ga., for defendants.

WYCHE, Chief Judge.

Condemnation proceedings have been instituted by the United States in the above stated cases for the acquisition of different tracts of land of the Savannah River Electric Company, and other lands, for the improvement and development of Savannah river at what is known as Clark Hill, where the Government is constructing a large hydro-electric plant as a part of a multiple-purpose program. Similar condemnation proceedings have been instituted in District Courts of the United States in Georgia, for the same purpose.

The Savannah River Electric Company is a corporation of this State organized, under a special Act of the General Assembly, for the specific purpose of constructing a hydro-electric development at Clark Hill and acquiring lands and other property under the power of eminent domain for such purpose. The Government is utilizing the lands taken from Savannah River Electric Company for the identical purpose for which they were acquired by the latter, viz.: a hydro-electric development. The condemnee initially attempted to enjoin the proceedings instituted by the Government, pending the final adjudication of its application before the Federal Power Commission for a license to construct a dam across the Savannah river at Clark Hill. When this application was refused, it withdrew the injunctive proceedings and filed a formal answer in each of the condemnation proceedings, setting forth: the purpose of its incorporation; its acquisition of approximately 40,000 acres of land on each side of Savannah River, including the lands here involved, with all of said lands integrated into a single tract and alleged to be peculiarly adapted to use as the site for a hydro-electric development by reason of location in proximity to and along the river, including the site of the dam now under construction by the Government; the value of the land as a whole, based upon its location value, including the dam site; that the taking of said land in piecemeal, results in totally destroying the unitary value of the whole for hydro-electric development; that such value is realizable by it "both through the development of said (hydro electric) plant or through the sale of said property at such location to other parties interested in such development"; that the fair market value of said entire tract of land by reason of its location and proximity to the Savannah river is also based upon the use of the same for agriculture, grazing, and dairying operations, and that the taking thereof in small tracts through separate condemnation proceedings destroys its unitary value for each of the purposes for which it is adapted.

The proceedings are now before me upon the motion of the Government to strike portions of the amended answers of the Savannah River Electric Company upon the following grounds: That the matters set forth therein are, (1) immaterial and irrelevant, conclusions, inferences, or erroneous assumptions of fact; the pleading of evidence or "evidential" facts; (2) an attempt to enlarge the estate and interest in and the quantity of the lands being condemned; (3) the assertion of a claim for just compensation for the alleged taking of lands which are not the subject matter of this proceeding and not involved herein; an endeavor to assert a counterclaim against plaintiff without consent of plaintiff; an attempt to assert a claim for indirect and consequential damages; the assertion of claims for just compensation based upon frustration, or loss of anticipated profits or return on investment; and an attempt to enlist the aid of this Court in controlling the Secretary of the Army in the exercise of discretion in the determination of the necessity for the acquisition of lands and interests therein and in the selection of such lands, which discretion has been conferred exclusively upon the Secretary of the Army by the Congress of the United States; (4) the assertion of a claim for just compensation based upon water power value, or the adaptability of lands herein involved and other lands for hydro-electric power development or the availability of the water in the Savannah river and the power inherent therein; (5) that the relief sought by defendants is contrary to law and beyond the jurisdiction of this Court.

The main question arises from the motion to strike that portion of the answers which seeks to recover compensation for the property taken, upon the basis of its location value, adjacent to, and along the Savannah river, for water power development. No demand is made in the answers for compensation on the basis of frustration or loss of anticipated profits. The allegations as to the feasibility of the project appear to be alleged to establish that the values claimed are in no sense speculative and could be reasonably anticipated in the near future.

Condemnation proceedings for the acquisition of property for multiple-purposes of hydro-electric power, flood control, and navigation, are within the constitutional rights of the Federal Government "to regulate Commerce with foreign Nations, and among the several States," as set forth in Article I of Section 8 of the Constitution. Within the broad scope of the commerce powers, Congress has plenary control of waterways to the extent that is necessary to regulate such commerce. It has the right to build dams in navigable or non-navigable streams. State of Arizona v. California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154; State of Oklahoma v. Guy F. Atkinson Co., 313 U.S. 508, 523, 61 S.Ct. 1050, 85 L.Ed. 1487. It may prohibit the construction of a dam in a navigable or non-navigable stream. 33 U.S.C.A. § 401; U. S. v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136; U. S. v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243. It may require private parties to obtain a license as a condition precedent for constructing improvements or encroachments on navigable or non-navigable streams. U. S. v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243; Georgia Power Co. v. Federal Power Commission, 5 Cir., 152 F.2d 908. It may market electrical energy generated by a government dam. U. S. v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063; Ashwander v. Valley Authority, 297 U.S. 288. In constructing these projects it is not required to comply with state law, State of Arizona v. California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154, and by statute a licensing system has been provided which supersedes state law on the same subject. First Iowa Hydro-Elec. Co-op. v. Federal Power Comm., 328 U.S. 152, 66 S.Ct. 906, 90 L.Ed. 1143; 16 U.S.C.A. § 791a et seq.

But in the exercise of the powers vested under the Commerce Clause in the Federal Government, an express limitation is imposed by the Fifth Amendment providing that private property shall not be taken by the Federal Government for public use "without just compensation" to the owner. "Just compensation" is measured by the market value of the property, taking into consideration all uses to which the property is presently devoted, as well as all other uses (including the most profitable), to which it may be adapted in the reasonably near future. The award to the landowner is not the value of the property for any particular purpose, and no special adaptability is to be separately valued and then added to the market value of the property for other purposes, but in arriving at the fair market value all reasonable uses of the property, if not remote or speculative, must be taken into consideration. United States v. Powelson, 4 Cir., 138 F.2d 343; Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236; United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336, 147 A.L.R. 55; Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 206; Clark's Ferry Co. v. Comm., 291 U.S. 227, 54 S.Ct. 427, 78 L.Ed. 767.

Nichols on Eminent Domain, Second Edition, Volume 1, Section 217, lays down the rule that: "* * *, when a parcel of land is taken for public use by the exercise of the power of eminent domain, the measure of compensation is the fair market value of the land. By fair market value is meant the amount of money which a purchaser willing but not obliged to buy the property would pay to an owner willing but not obliged to sell it, taking into consideration all uses to which the land was adapted and might in reason be applied."

Again, the same text lays down the rule: "In determining the market value of a piece of real estate for the purposes of a taking by eminent domain, it is not merely the value of the property for the use to which it has been applied by the owner that should be taken into consideration, but the possibility of its use for all purposes, present and prospective, for which it is adapted and to which it might in reason be applied, must be considered, and its value for the use to which men of prudence and wisdom and having adequate means would...