United States v. 2,648.31 ACRES OF LAND, ETC.

• Decision Date: 05 January 1955
• Docket Number: No. 6833.,6833.
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: UNITED STATES of America, Appellant, v. 2,648.31 ACRES OF LAND, MORE OR LESS, IN THE COUNTIES OF CHARLOTTE AND HALIFAX, VIRGINIA, J. P. Stevens and Company, Inc., et al., and unknown owners, Appellees.

218 F.2d 518 (1955)

UNITED STATES of America, Appellant, v. 2,648.31 ACRES OF LAND, MORE OR LESS, IN THE COUNTIES OF CHARLOTTE AND HALIFAX, VIRGINIA, J. P. Stevens and Company, Inc., et al., and unknown owners, Appellees.

No. 6833.

United States Court of Appeals, Fourth Circuit.

Argued October 13, 1954.

Decided January 5, 1955.

Fred W. Smith, Atty., Department of Justice, Washington, D. C. (Perry W. Morton, Asst. Atty. Gen., John Strickler, U. S. Atty., Roanoke, Va., and Roger P. Marquis, Atty., Department of Justice, Washington, D. C., on brief), for appellant.

James S. Easley, South Boston, Va. (Easley, Edmunds & Vaughan, South Boston, Va., on brief), for appellees.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is an appeal by the United States from a judgment awarding compensation in a proceeding for the condemnation of flowage easements over three certain tracts of land in connection with a flood control project, the John H. Kerr Dam and Reservoir on the Roanoke River in Virginia and North Carolina. The trial judge held that the owners were entitled to recover the fee simple value of the several tracts, amounting to $58,000, $9,000 and $10,000 respectively, and excluded testimony offered by the government tending to show that the decrease in the value of the several tracts due to the acquisition of the flowage easements by the government was only $15,000, $2,000 and $3,000 respectively. The question in the case is the proper measure of compensation for the taking of a flowage easement over land.

The declaration of taking shows clearly that only flowage rights over the lands were being taken, that these flowage rights were taken with respect to a particular dam which was being built for flood control purposes, with a showing of the contour of the lands which would be in any way affected by the construction and with a reservation to the owners of the right to make any use of the lands which would not interfere with the flowage rights which were being condemned. The pertinent portion of the declaration of taking is as follows:

"The full, complete, and perpetual right, power and privilege to overflow, permanently or intermittently, as may be necessary as a result of the construction, maintenance and operation of the John H. Kerr Dam and Reservoir, (describing the lands) together with the right, power and privilege to go upon the lands involved from time to time as the occasion may require to accomplish any activities in connection with the maintenance and operation of the John H. Kerr Dam and Reservoir and to remove from said lands natural or artificial structures or obstructions which, in the opinion of the representative of the United States in charge, may be detrimental to the maintenance and operation of said project, reserving, however, to the owner(s) and their assigns, all such rights and privileges as may be used and enjoyed without interfering with or abridging the rights and easements acquired by the United States, subject, however, to existing easements for public roads and highways, for public utilities, for railroads and for pipelines.

"4. The plan showing the lands taken is annexed hereto as Schedule `B\' and made a part hereof.

The government offered proof, which was excluded, as to the extent to which the tracts in question would actually be flooded, either permanently or intermittently, by operation of the project. The offer of proof is accurately summarized in appellant's brief as follows:

"Included in the offer was a report by the District Engineer, Corps of Engineers, U. S. Army, Norfolk, Virginia, describing the dam and reservoir as actually constructed and the operation of the same, showing that the elevation of the spillway was 288 feet, and that with the spillway gates closed the top elevation of the dam would be at elevation 320 feet. The report further stated that `the space from elevation 300 the power pool level to 320 will be reserved for flood water storage\' and that `The land above elevation 310 will be inundated so rarely that it could be used for farming.\' Thus water is retained in the reservoir above elevation 300 only during flood conditions, and it was made clear to the court below and to opposing counsel at the hearing that as soon as conditions permitted the pool would be pulled down to power pool or 300 feet elevation. Included in the offer of proof is a map in color showing the 320-foot contour on the three tracts in question, the areas below that level being colored yellow. That map shows that no part of Tract KK-3621E is below that level, and that only small portions of Tracts NN-3918E and NN-3939E are below that level. Thus the Government offered to prove that no part of Tract KK-3621E could be overflowed permanently and that only very small portions of the other two tracts `will be overflowed permanently, except as have otherwise been overflowed naturally.\' And in paragraph 5 the Government offered to prove that `it will be impossible physically to overflow these three tracts permanently\' and `it will also be impossible physically to overflow even a portion of them intermittently to any materially greater extent than that to which they have always been subject by natural flooding.\' On the question of natural flooding of the three tracts here involved, the Government offered to prove by records of the Weather Bureau the frequency and elevations of past natural floods opposite the tracts during the period 1901 to 1952, and on that subject a detailed `Record of Flood Heights on Roanoke (Staunton) River Near Randolph and Clover, Va.\' was offered as an exhibit. Finally the Government offered the evidence of witnesses to prove that the value of the easements, on the basis of actual flooding due to operation of the dam, was $3,000 as to Tract KK-3621E, $2,000 as to Tract NN-3918E, and $15,000 as to Tract NN-3939E."

We think that the learned trial judge was in error in excluding the proof thus offered and in holding that the landowners were entitled to recover the fee simple value of the lands over which only flowage rights were being taken. A flood control project, such as was being constructed by the government, will necessarily cause the permanent flooding of some lands but as to others only intermittent flooding as the result of delayed run-off when flood conditions prevail in the river. Lands not permanently but only intermittently flooded can be used by the owner almost as satisfactorily as if the project were not in existence and the extent of the intermittent flooding and its effect upon the value of the land can be as readily determined as any of the other matters ordinarily involved in determining compensation. In such a situation there is no reason why the government should condemn and pay for anything more than the flowage rights for these intermittent floodings and no reason why the compensation to be awarded therefor should be anything other than the difference in the value of the land with and without the flowage easement.

In United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 385, 61 L.Ed. 746, there was involved the question of the government's liability for periodic flooding incident to the operation of a lock and dam which formed part of a government navigation project. After pointing out that the periodic flooding was a "permanent condition" in that the land would be subject to such flooding as the operation of the dam necessitated, the court proceeded to make clear that the recovery should be limited to the value of the easement so taken. The court said:

"If any substantial enjoyment of the land still remains to the owner, it may be treated as a partial instead of a total divesting of his property in the land. The taking by condemnation of an interest less than the fee is familiar in the law of eminent domain. Where formal proceedings are initiated by the party condemning, it is usual and proper to specify the precise interest taken, where

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