United States v. Chicago, B. & QR Co.

• Decision Date: 10 February 1936
• Docket Number: No. 10250.,10250.
• Citation: 82 F.2d 131
• Parties: UNITED STATES v. CHICAGO, B. & Q. R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

82 F.2d 131 (1936)

UNITED STATES v. CHICAGO, B. & Q. R. CO.^*

No. 10250.

Circuit Court of Appeals, Eighth Circuit.

February 10, 1936.

John P. Kyle, Sp. Asst. to Atty. Gen. (George F. Sullivan, U. S. Atty., of St. Paul, Minn., on the brief), for the United States.

J. C. James, of Chicago, Ill., and A. C. Scott, of Denver, Colo. (R. B. Scott, of Chicago, Ill., on the brief), for appellee.

Before STONE, BOOTH, and FARIS, Circuit Judges.

FARIS, Circuit Judge.

Appellant brought this action to condemn a floodway easement on and over a part of the right of way and railroad embankment of appellee, which runs along the Mississippi river just west of and up the river from the town of Hastings, Minn. By the construction by the United States of a dam in said river, near Hastings, the waters thereof will be raised at times to a point 699 feet above the Memphis datum, and ordinarily will stand at 696.4 feet above such datum. This will result, when the dam is holding back the contemplated maximum depth of water, in flooding the riverward side of appellee's right of way and railroad embankment to a point about 3.45 feet below the top of the railroad ties.

The area, or acreage of such right of way, which will actually be flooded by the pool formed by the dam, is about 24 acres and involves about four miles of appellee's track, which from a point about one mile up river from Hastings runs along the east bank of the Mississippi river, called hereinafter Mississippi for brevity. For a part of this distance, the track of appellee parallels the track of the Chicago, Milwaukee & St. Paul Railroad, and partly occupies the latter's right of way.

By an Act of Congress approved January 21, 1927 (44 Stat. 1010), appellant was authorized to construct in aid of navigation ten dams on the Mississippi, of which eight are in the so-called "St. Paul District." The dam here involved is one of these. Work thereon was begun in 1929, and at the time of the trial, it had been fully completed, as also had been the raising or reconstruction of numerous culverts and bridges, and the raising of appellee's track, so as to create a free-board of some 7 feet above the 696.4 feet datum. A negligible amount of riprapping had not been done. At some points of the pool, which contacts with appellee's embankment, the wind-sweep over pool water is some one to two and a half miles wide, north and south, and some seven miles long, east and west.

Appellant brought this action under the provisions of section 591, title 33, U.S.C., 33 U.S.C.A. § 591, by filing its petition for condemnation on June 16, 1930, later, and on May 7, 1931, it amended its petition by limiting the floodway sought, to 699 feet above the Memphis datum and to lands on the riverward side only of appellee's railroad tracks. The court nisi, on September 18, 1930, appointed three commissioners, who after the usual procedure, not herein attacked, reported an award for damages in favor of appellee in the total sum of $280,674.36, together with interest thereon, from July 10, 1931, at the rate of 6 per cent. The date of the commencement of interest seems to be an attempt at averaging the three several orders made by the court, on June 21, 1931, June 24, 1931, and October 6, 1931, ordering appellee to render to appellant possession of the easement; but this is not very important (since not questioned), in view of subsequent proceedings. From the report of these commissioners and the sum of their award, and the items of damages for which appellee was by the commissioners' report awarded compensation, appellant took an appeal to the Federal District Court for the District of Minnesota. This suit came on for trial in said court in April, 1933. It was tried to a jury, and resulted, after a trial lasting some 75 days, in a verdict on July 11, 1933, for appellee in the sum of $240,000, to which the trial court, in the judgment rendered, added interest in the sum of $33,120. This was interest on the sum found by the jury at 6 per cent. from July 10, 1931, the date (or perhaps, average date) of the orders of court commanding appellee to render possession of the flowage easement to appellant.

From this verdict and judgment, appellant appealed conventionally, save for certain tribulations and vicissitudes, in no wise now and here relevant.

Appellant relies for reversal upon multitudinous, manifold, and, as urged on us, manifest errors, numbering as set out in its assignment of errors precisely fifty. No need arises to fill up space and take time in setting out all of these alleged errors; for learned counsel for appellant, in order perhaps to conserve his own time and space in his brief, has relied on and discussed these alleged errors in his argument in eleven classes, in the form of propositions in his brief. This court may do the like, under the rule in Schnitzer v. United States (C.C.A.) 77 F.(2d) 233, wherein it is said that alleged errors not argued will be deemed waived.

The eleven propositions, so relied on for reversal, and to which it is contended, the court nisi refused to adhere are as follows:

1. Property is not taken unless it is physically invaded, or unless there is such a practical destruction of the use thereof as to amount to an ouster of the possession of the owner.

2. Merely injuring or damaging property is not a taking, nor is incidental or consequential injuries to property a taking.

3. A riparian owner is subject to all the injury not amounting to a taking of his property which may result from the lawful improvement of a navigable river for purposes of navigation in the exercise of the rights given to the United States by the Commerce Clause of the Federal Constitution.

4. Where injury or damage to property can be avoided by protective measures there is no taking.

5. Damages anticipated, feared, or expected to arise in the future over a period of years through the intervention or by force of natural causes, such as silting, wave action, ice action, and saturation, do not constitute a present taking, and are, besides, incidental or consequential and speculative, conjectural, imaginative, uncertain, and remote.

6. Where, as in this case, the Railroad Company is left in the possession, use, and enjoyment of its railroad as before, the measure of damages is the diminution in the value of the Railroad Company's embankment or right of way caused by its joint or concurrent use for flowage by the government.

7. The rule that where part of an entire tract or farm is taken, the owner is entitled to the value of the part taken, and to damages to the remainder, is not applicable, where the owner is left in possession and use of his property, and a joint use by the government for flowage does not interfere therewith, particularly where there are no present damages to the remainder.

8. Conflicting and confusing instructions given to the jury pointed out under assignment of error 9.

9. The theory of damages adopted by the trial court is erroneous.

10. Errors in admitting evidence.

11. Error in entering judgment for the plaintiff for the amount of the verdict, $240,000 and interest, because the verdict is not justified by the evidence, and because the damages are excessive, and not warranted by the facts or law.

We think propositions 1, 2, 3, 5, 6, 7, and 9 having to do, only, with the proper measure of damages in this sort of case, are so far germane that all of them may be discussed together. Propositions 4, 8, and 10 may well be separately treated; while proposition 11 is in so far as it is not ruled by the cases of Ætna Life Insurance Co. v. Ward, 140 U.S. 76, 91, 11 S.Ct. 720, 35 L.Ed. 371, and New York, Lake Erie & W. Railroad Co. v. Winter's Adm'r, 143 U.S. 60, 12 S.Ct. 356, 36 L. Ed. 71, as to lack of power in a federal appellate court to review alleged excessiveness of a verdict, is only a corollary to other propositions and is to be ruled by what is said touching them; particularly, as to the question of what is the true measure of the damages sustained by appellee and for which it is entitled to be compensated.

So, we think appellant's contentions of alleged error may be boiled down into three questions: (a) For what items of hurts, injuries, and expense is appellee, under the law and facts, entitled to be compensated? (b) Must appellee bear the whole loss and expense of costly protective means where injury can be avoided, or minimized by adopting and using such means? (c) Was error committed by the trial court in the admission of evidence? As said already, proposition 11, supra, is rather clearly a corollary of question (a) hereinabove, as also in fair effect is proposition (b) supra. So after all, there are actually but two questions for discussion.

In final analysis, the case really presents but a single question. That question is: What constitutes that "just compensation" which is guaranteed to the owner of private property when that property is taken for public use? See Fifth Amendment, Constitution of the United States. As a foreword, it may be premised that, if well-nigh the unanimous voice of stare decisis shall be heeded, appellee had the right to build its railroad along the bank of the Mississippi, even though a navigable stream, and that in so doing it had the legal right to rely upon the continued maintenance of the natural level, width, and flow thereof. And that the right to increase artificially this level, width, and flow (to the hurt of appellee) beyond that provided by nature, could be obtained by appellant only by the exercise of the sovereign right of eminent domain, and the payment to appellee of just compensation for the damages by it sustained. United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539; United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746; Jacobs v. United States (C.C.A.) 45 F. (2d) 34; United States v. Wheeler Township (C.C.A.) 66 F.(2d) 977.

As to the proper measure of damages, appellant takes the...