United States v. Seufert Bros. Co.

• Decision Date: 09 February 1897
• Docket Number: 2,308-2,318.
• Citation: 78 F. 520
• Parties: UNITED STATES v. SEUFERT BROS. CO.
• Court: U.S. District Court — District of Oregon

78 F. 520

UNITED STATES v. SEUFERT BROS. CO.

Nos. 2,308-2,318.

United States Circuit Court, D. Oregon.

February 9, 1897

Daniel R. Murphy, U.S. Atty., and Charles J. Schnabel, Asst. U.S atty.

Alfred S. Bennett and Lionel R. Webster, for defendants.

BELLINGER District Judge.

This is a proceeding by the United States to condemn a right of way for a portage boat railway along the Columbia river, on the south side, between Celilo and Dalles City, to avoid the obstructions to navigation in the river known as 'The Dalles of the Columbia.' Two trials have been had. On the first trial the jury assessed defendants' damages at $25,087.50. Both parties moved for a new trial, which was granted as of course, without implying, however, that the court might not refuse the motion notwithstanding such an agreement. Upon the second trial the defendants' damages were assessed by the jury at $35,000. The United States moves for a new trial upon the ground that there were errors of law occurring on the trial, and that the verdict is excessive.

In the argument, the only error of law pointed out in support of the motion was the ruling of the court excluding evidence offered to show that, at a place on the line of the proposed boat railway not on the land of defendants, the existing appropriation by the Oregon Railway & Navigation Company occupied all the space between the bluff and the river. This evidence was intended to meet defendants' claim that the land taken had an especial value as a railroad right of way the contention being that the availability of the land through this pass for railroad uses, and for the particular use, must be determined by its capacity for such use at the narrowest point in the pass, so that, if the pass was already occupied by a prior condemnation and road at any point through which a line must be located in order to reach defendants' land, the value of such land for right of way purposes would be thereby diminished. This evidence was not admitted because I was of the opinion that, in estimating the value of land taken for a public use, its value for such use is not to be considered. The decision of the supreme court in Boom Co. v. Patterson, 98 U.S. 403, was thought not to apply to the case on trial, since the question of value there considered had regard to existing business wants, of which the owner might avail himself either on his own account or for general use. The use for which condemnation was sought in that case was for the construction of log booms in the Mississippi river adjacent to the lands condemned. The owner might use his land for this purpose on his own or on public account. The use was not necessarily a public one, and required no public license, so long as the navigation of the river was not obstructed. There is therefore no reason why the adaptability of the lands condemned for boom purposes was not a proper element to be considered in estimating the value of such lands.

The court, however, appears to give its approval to the case of Young v. Harrison, 17 Ga. 30, where land necessary for an abutment of a bridge was appropriated. The supreme court of Georgia held that the value of the land as a bridge site, in addition to its other capacities, should be allowed in the estimate of compensation to be awarded to the owner although such use, in the nature of things, was not available to the owner, but was exclusively in the public. If this is the true rule, then, in estimating the value of the land sought to be condemned in this case, its adaptability and value for right of way for a boat railway may be considered, although the owner cannot so use it, and there is no standard by which such value can be estimated. If, in condemning land for a bridge site, its 'availability' as such site is a measure of value to be paid the owner, there is involved a consideration of the importance of the particular place to the intended use. In other words, the availability of the site is measured by the importance of the use, and in a matter of the greatest public concern a value so measured may be inestimable, and so the supreme necessity of the country to build defenses against its enemies become a measure of value, to be paid the owner whose land is taken for that purpose. The claim that the extent of the private interest to be taken is to include, in addition to all the uses available to the owner, the value, if that is possible of ascertainment, of the public interest to be served, is, in my opinion, without equity, and against public policy. Nevertheless, I was persuaded, further on in the case, by the apparent sanction given the case of Young v. Harrison by the supreme court, to allow witnesses to give their opinions as to the value of the land in question as a right of way for railroad uses, and instructed the jury, at defendants' request, that, if the land was especially adapted to the construction of...