United States v. Lucinda Grizzard
| Decision Date | 03 January 1911 |
| Docket Number | No. 66,66 |
| Parties | UNITED STATES, Plff. in Err., v. LUCINDA GRIZZARD, William Grizzard, Mrs. Lila Chaney, and Wilson Chaney |
| Court | U.S. Supreme Court |
Assistant Attorney General John Q. Thompson and P. M. Cox for plaintiff in error.
No appearance for defendants in error.
Action by the owners of a farm for a taking of a part thereof by the United States for public purposes. Judgment for the plaintiffs below.
The farm of the defendants in error lies upon Tates creek, a tributary of the Kentucky river. For the purpose of improving the navigation of that stream, the government has erected a series of locks and dams. As a consequence, the waters of Tates creek are backed up to such an extent as to flood or submerge a strip of the Grizzard farm, permanently destroying its use for agricultural purposes. The court below, a jury being waived, found that 7 1/2 acres of land had been actually taken. He then added:
1. 'That in addition there is taken an easement of access from plaintiff's land by way of the county road to the Tates creek pike.
2. 'That the whole land was worth $3,000 before said taking, and what was left after the taking was worth $1,500.
3. 'I divide the damage by reason of the taking between the land taken and the easement of access, taken equally; i. e., I allow $750 for the land taken, and a like sum of $750 for the easement of access taken.
'I therefore conclude as a matter of law that plaintiffs are entitled to a judgment for $1,500.'
The errors assigned relate only to so much of the judgment as allows damages for the 'easement of access,' referred to in the findings above set out. That there was a taking by flooding permanently the 7 1/2 acres, valued at $750 by the court below, is not contested. Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166, 20 L. ed. 557; United States v. Lynah, 188 U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349; United States v. Welch, 217 U. S. 333, 54 L. ed. 787, 30 Sup. Ct. Rep. 527; High Bridge Lumber Co. v. United States, 16 C. C. A. 460, 37 U. S. App. 234, 69 Fed. 323.
The contention is that the 'easement of access' destroyed, and therefore taken, was not a private right of way constituting property such as that for which compensation was allowed in United States v. Welch, but was a public county road; and reference has been made to the well-known class of cases touching an injury to land not taken by the construction of a railroad along and upon an abutting public road, or a change of grade, to the damage of adjacent property, and like indirect injuries to the use of property adjacent, but of which no part was taken from the owner. Northern Transp. Co. v. Chicago, 99 U. S. 635; 25 L. ed. 336; Sharp v. United States, 191 U. S. 341, 48 L. ed. 211, 24 Sup. Ct. Rep. 114.
But here there has been an actual taking by permanently flooding a part of the farm of the defendants in error. An incident of that flooding is that a public road running across the flooded land is also flooded. But if this were not so, and the roadway had simply been cut off by the interposition of the flooded portion of the farm, the damage would be the same. Since, therefore, there has been a taking of a part of the owners' single tract, and damage has resulted to the owners' remaining interest by reason of the relation between the taken part and that untaken, or by reason of the use of the taken land, the rule applied in the cases cited does not control this case.
That the petition laid stress upon the flooding of the highway which crossed the flooded land, and sought to recover for a deterioration of an easement in the public road, is not fatal. The damage to the land not appropriated is the obvious consequence of the taking of a part of the whole by flooding,—a manner of appropriating which has made the village market, church, and school so inconvenient of access as to add some 3 miles of travel by an unimproved and roundabout country road. Whenever there has been an actual physical taking of a part of a distinct tract of land, the compensation to be awarded includes not only the market value of that part of the tract appropriated, but the damage to the remainder resulting from that...
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