United States v. 3,928.09 ACRES OF LAND, ETC., Civ. No. 786

Decision Date26 August 1953
Docket NumberCiv. No. 786,1038,1073.,1033
Citation114 F. Supp. 719
CourtU.S. District Court — District of South Carolina
PartiesUNITED STATES v. 3,928.09 ACRES OF LAND, MORE OR LESS, IN McCORMICK COUNTY, SOUTH CAROLINA et al. UNITED STATES v. 3,906.24 ACRES OF LAND, MORE OR LESS, IN McCORMICK COUNTY, SOUTH CAROLINA et al. UNITED STATES v. 12,138.74 ACRES OF LAND, MORE OR LESS, IN McCORMICK COUNTY, SOUTH CAROLINA et al. UNITED STATES v. 5,231.66 ACRES OF LAND, MORE OR LESS, IN McCORMICK COUNTY, SOUTH CAROLINA et al.

John C. Williams, U. S. Atty., Greenville, S. C., W. Braxton Miller, Atty., Dept. of Justice, Washington, D. C., for plaintiff.

David W. Robinson, Columbia, S. C., for Twin City Power Co.

Edgar A. Brown, Barnwell, S. C., J. D. Parler, St. George, S. C., A. R. McGowan, Charleston, S. C., for Annie P. Robinson.

WYCHE, Chief Judge.

In its acquisition of land for its Clark Hill development on the Savannah River, the United States in Civil Actions 786, 1033, 1038 and 1073 instituted between June 25, 1947 and July 5, 1950 has taken all of the properties, with insignificant exceptions, of the respondent, Twin City Power Company, a South Carolina corporation. The Georgia properties of its wholly owned subsidiary, the Twin City Power Company of Georgia, have been taken by the United States in Civil Actions 432, 521 and 537 instituted between June 19, 1947 and July 13, 1950 in the Southern District of Georgia. For convenience these corporations are treated together as "Twin City".

The return of Twin City in each of the seven condemnation actions averred that its aquisition of these properties on both sides of the Savannah River was for the purpose of developing a unified site on which to generate and distribute hydro-electric energy, that the two corporations together had acquired all of the land necessary for the development of a 60 foot head with a dam at Price's Island, that the potential use of these properties for this purpose should be considered in determining the market value of the properties, and asked that the several actions be consolidated for trial.

After the motions of the United States to strike these returns on the ground that they claimed consequential damages, anticipated profits and compensation based on adaptability for the development of hydro-electric power, had been overruled by this Court and by the District Court for the Southern District of Georgia, U. S. v. 1532.63 Acres of Land, 86 F.Supp. 467, the issues in the South Carolina actions so far as they affected Twin City were consolidated and referred to Commissioners pursuant to the provisions of sub-division (h) of Rule 71A of the Rules of Civil Procedure, 28 U.S. C.A. A similar order, referring the issues in the Georgia cases to the same Commissioners was filed in the Southern District of Georgia. Each order authorized the Commissioners to hear the Georgia and South Carolina cases together.

The Commissioners held extended hearings and after mature consideration filed their Report with this Court and with the District Court for the Southern District of Georgia. The Commissioners found that the adaptability of these properties for use in the generation of hydro-electric energy was a factor entitled to consideration in determining their market value at the times of taking and fixed the just compensation to which the two Twin City corporations were entitled at a total figure of $1,257,033.20 which they allocated among the properties taken in the several civil actions on an acreage basis. (Report 65-67)

Objections filed by the United States and by Twin City, as provided in Rule 53(e) (2) bring the issues here for decision. Able and exhaustive written briefs have been filed by the attorneys for the parties on the questions presented by the objections to the Report of the Commissioners. For convenience oral arguments were heard jointly with Judge F. M. Scarlett of the Southern District of Georgia, who is filing his Decree disposing of the questions as they affect the lands involved in the Georgia actions.

The United States urges that the potential use of the Twin City lands by themselves or in combination with other lands for the production of hydro-electric energy because of their proximity to the Savannah River should not have been considered by the Commissioners in arriving at a value for these properties. (Objections I-VIII) This position poses the principal challenge to the Report.

Just compensation is usually measured by the market value of the property, taking into consideration all uses to which the property is presently devoted as well as other uses to which it may be adapted in the reasonably near future. In arriving at a fair market value all reasonable uses of the property, if not remote or speculative must be taken into consideration. The fact that the most profitable use of a tract of land can be made only in combination with other lands does not necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect its market value. U. S. v. 1532.63 Acres of Land, D.C., 86 F. Supp. 467, 472; United States ex rel. Tennessee Valley Authority v. Powelson, 319 U.S. 266, 275, 63 S.Ct. 1047, 87 L.Ed. 1390; Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 78 L.Ed. 1236; Grand River Dam Authority v. Grand-Hydro, 335 U.S. 359, 69 S.Ct. 114, 93 L.Ed. 64.

The evidence in this case shows that Twin City owned some 4,500 acres in fee, together with flowage rights over additional acres. These lands extended for some eleven miles along both sides of the Savannah River from Price's Island to Chamberlain's Ferry, including all of the land for dam site and reservoir purposes except 170 acres which would be needed for dam with a 60 foot head at Price's Island, all of the land save 400 acres which would be needed for a dam with a 60 foot head and provision for a five foot surcharge, all of the land save 1,250 acres which would be needed for a 70 foot head with a five foot surcharge, all of the land save 2,800 acres which would be needed for an 80 foot head with a five foot surcharge.

These properties included an excellent dam site at Price's Island where the river narrows between rock spurs to some 900 feet with vertical rock foundations, with excellent clay soil particularly useful in the building of an earth dam. The absence of railroads, major highways, utilities, and homes in the reservoir area above Price's Island minimized construction costs. Twin City owned in fee a strip of land for a railroad from the Price's Island dam site to the C. & W. C. Railroad at Modoc, S. C., over which construction materials and electrical equipment could be economically transported. At the time of taking the Georgia Power Company's high tension transmission facilities running within five miles of the Price's Island site furnished an excellent vehicle for marketing power.

The Twin City properties were capable of development for hydro-electric purposes at various heads. Dams at Price's Island were economically feasible for use in connection with a 60', 70', 80', 90' and 100' head. The properties were also valuable for use with other property in developing a reservoir with a dam down stream from Price's Island. At the time of taking there was an ample and growing market for all of the energy which could be produced and at that time the power would have had a premium value for peaking purposes.

The drainage area of the Savannah River at Price's Island is 5,960 miles. For more than 99½% of the time the stream flow at that point is 2,200 cubic feet per second, and for 82% of the time 4,000 cubic feet per second. This stream flow exceeds that of every hydro development in North Carolina, South Carolina and Georgia, except those on the Savannah River at Stevens Creek and Clark Hill and on the Santee River at Pinopolis. (Report 45)

Studies by the engineers show that the development of energy by water at Price's Island would have been more economical than the development of a comparable amount by steam. The expert witnesses, including engineers placed on the stand by the Government, testified to the excellent potential of this property for hydro-electric purposes.

A comparison of this market value of the Twin City properties with the land cost of constructed projects on the basis of land cost per installed kilowatt and on the basis of the land cost to the annual output of kilowatt hours shows that the market value found here is a conservative figure. The same result is obtained if a comparison with completed hydros is made on the basis of the percentage of land cost to the total cost of the project.

The Government's contention that a valuation of the Twin City properties should not include a consideration of their adaptability for water power purposes is based primarily on the testimony of the witness Russell Farley to the effect that after 1928 the Federal Power Commission would not have licensed a hydro-electric development with a dam at Price's Island because it considered that a better comprehensive plan for the development of the Savannah River basin between between the backwater of the existing Stevens Creek plant and the confluence of the Seneca and the Tugaloo required a dam at Clark Hill some six miles down stream from Price's Island and that without such Federal Power Commission license Twin City could not have built this project. 16 U.S.C.A. §§ 803, 817. The fact that the Federal Power Commission might not have licensed the project for a dam at Price's Island does not determine the issue of whether the Twin City properties were adaptable for water power purposes within the reasonably near future. Olson v. United States, supra. By preferring a dam at another site the Power Commission merely said that the best development of Twin City properties is in combination with other properties for a higher dam and larger reservoir. The Federal Power Commission does not, by...

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5 cases
  • United States v. Twin City Power Company
    • United States
    • U.S. Supreme Court
    • 23 Enero 1956
    ...have been arrived at by fair negotiations between an owner willing to seel and a purchaser desiring to buy.' United States v. 3,928.09, etc., 114 F.Supp. 719, at page 725. The potential use of this land for dam, plant and reservoir purposes is far from speculative in the light of the 50 yea......
  • United States v. Twin City Power Company
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 30 Agosto 1954
    ...below entered judgment for the landowner and its mortgagee in accordance with the valuation of the commissioners, United States v. 3928.09 Acres of Land, D.C., 114 F.Supp. 719; and the United States has appealed.1 No question is raised on the appeal except with respect to considering the av......
  • United States v. Twin City Power Company of Georgia
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 16 Abril 1958
    ...report of the commission as to the value of the lands in that State. See the opinion of Judge Wyche reported in United States v. 3,928.09 Acres of Land, D.C.1953, 114 F.Supp. 719. The Fourth Circuit affirmed, United States v. Twin City Power Co., 1954, 215 F.2d 592, as did this Court, 1955,......
  • Crist v. Iowa State Highway Commission, 30830
    • United States
    • Iowa Supreme Court
    • 17 Septiembre 1963
    ...25, 26, 60 L.Ed. 143, 146; Emmons v. Utilities Power Co., 83 N.H. 181, 141 A. 65, 58 A.L.R. 788, 792; and United States v. 3,928.09 Acres of Land, D.C., 114 F.Supp. 719, 721, and authorities there It is interesting to note here that the subject tract, S, was zoned R-3, which means for resid......
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