United States v. 2979.72 ACRES OF LAND, ETC.

• Decision Date: 31 July 1956
• Docket Number: No. 6839.,6839.
• Citation: 235 F.2d 327
• Parties: UNITED STATES of America, Appellant, v. 2979.72 ACRES OF LAND, MORE OR LESS, IN HALIFAX COUNTY, VIRGINIA, Olive Vaughan Williams et al., and unknown owners, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

235 F.2d 327 (1956)

UNITED STATES of America, Appellant, v. 2979.72 ACRES OF LAND, MORE OR LESS, IN HALIFAX COUNTY, VIRGINIA, Olive Vaughan Williams et al., and unknown owners, Appellees.

No. 6839.

United States Court of Appeals Fourth Circuit.

Argued June 13, 1956.

Decided July 31, 1956.

Rehearing Denied September 11, 1956.

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

Ralph H. Ferrell, Jr., Richmond, Va. (T. Justin Moore, Francis V. Lowden, Jr., and Hunton, Williams, Gay, Moore & Powell, Richmond, Va., on brief), for appellees.

Before PARKER, Chief Judge, SOPER, Circuit Judge, and BRYAN, District Judge.

Rehearing Denied September 11, 1956. See 237 F.2d 165.

PARKER, Chief Judge.

This is the second hearing of an appeal by the United States in condemnation proceedings had in connection with the John H. Kerr Dam and Reservoir, a flood control project on the Roanoke River in Virginia and North Carolina. The Virginia Electric and Power Company was the owner of a flowage easement over 1540 acres of land belonging to Mrs. Olive Vaughan Williams, and the value of this easement was destroyed by the taking of flowage rights by the United States in the condemnation proceeding. We affirmed the judgment below which awarded compensation on the basis that the right to flood permanently the entire 1540 acres had been taken. We based this affirmance on the ground that the value of the power company's flowage rights was destroyed by the taking, even though there would be only an intermittent flooding of the land as a result thereof. In this connection, following our decision in United States v. Twin City Power Company, 4 Cir., 215 F.2d 592, we held against the government's contention that there could be no recovery against the government for rights which would have value only in connection with the development of water power on a navigable stream. See United States v. 2979.72 Acres of Land etc., 4 Cir., 218 F.2d 524. The Supreme Court granted certiorari, vacated our judgment and remanded the case to us for further consideration in the light of its decision in the Twin City case, 350 U.S. 222, 76 S.Ct. 259, which reversed our decision in that case.

The holding of the Supreme Court in the Twin City case was that the availability of land on a navigable stream as a site for water power development could not be considered as an element of value in assessing damages on a taking by the government. Nothing in the opinion holds that compensation must not be made for other elements of value; and the case was expressly distinguished from United States v. Kansas City Life Ins. Co., 339 U.S. 799, 70 S.Ct. 885, 94 L.Ed. 1277, where, as here, "assertion of the dominant servitude in the navigable river injured property beyond the bed of the stream". See 350 U.S. at page 225, 76 S.Ct. at page 261. In taking the flowage easement over the 1540 acre tract here involved, therefore, the government must make compensation on the basis of the difference in the value of the land with and without the easement taken, on the principle that "the destruction of privately owned land by flooding is `a taking' to the extent of the destruction caused." United States v. Kansas City Life Ins. Co., supra, 339 U.S. 799, 809-810, 70 S.Ct. 885, 890, 94 L.Ed. 1277. Availability as a site for water power development must be excluded from consideration in making this valuation; but other elements of value not related to the flow of the stream, such as its value for agricultural or grazing purposes, can properly be considered. The amount thus determined must be paid into court by the government as compensation for the taking and must be awarded by the court to those having an interest in the land in accordance with their interest. The condemnation suit is a proceeding in rem. The owners of the res are entitled to have the compensation divided among them according to their interest in the res taken. See Meadows v. United States, 4 Cir., 144 F.2d 751, 753 and cases cited; 18 Am.Jur. 872; Cullen & Vaughn Co. v. Bender Co., 122 Ohio St. 82, 170 N.E. 633, 68 A.L.R. 1332; note 69...