United States v. Twin City Power Company of Georgia

• Decision Date: 12 April 1955
• Docket Number: No. 15084.,15084.
• Parties: UNITED STATES of America v. TWIN CITY POWER COMPANY OF GEORGIA et al.
• Court: U.S. Court of Appeals — Fifth Circuit

221 F.2d 299 (1955)

UNITED STATES of America v. TWIN CITY POWER COMPANY OF GEORGIA et al.

No. 15084.

United States Court of Appeals, Fifth Circuit.

April 12, 1955.

John F. Cotter, Atty. Dept. of Justice, Edmund B. Clark, Dept. of Justice, Perry W. Morton, Asst. Atty. Gen., Washington, D. C., William C. Calhoun, Augusta, Ga., for appellant.

David W. Robinson, Robinson, Robinson & Dreher, Columbia, S. C., for appellees.

Before HUTCHESON, Chief Judge, HOLMES, Circuit Judge, and DAWKINS, District Judge.

HUTCHESON, Chief Judge.

These are consolidated appeals from judgments entered in condemnation proceedings in the United States District Court for the Southern District of Georgia. They present on substantially the same record and in the same way the self same question, "whether the value of land as a potential power site on a navigable stream is an element of just compensation under the Fifth Amendment", which was presented for the decision of the Court of Appeals for the Fourth Circuit in appeals from judgments in three condemnation suits instituted in the United States District Court for the Western District of South Carolina. Indeed the United States, on page 13 of its brief in this case, states, "The foregoing is the identical argument made by the government to the United States Court of Appeals for the Fourth Circuit in its appeals from the judgments entered in the companion cases to these."

Copying for our convenience, as an appendix to its brief, the opinion of the Court of Appeals for the Fourth Circuit¹ and characterizing it as the only one in the books so holding, it goes on to say: "In reaching this unique conclusion the opinion ignores the explicit holding of the leading case of United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063, that the running water, i. e., the power potential, of a navigable river is not susceptible of private ownership and that riparian land is not enhanced in value by that potential".

Urging that the challenged opinion not only does violence to the opinion in the Chandler-Dunbar case but is also in direct conflict with two cases in the Ninth Circuit, Continental Land Co. v. United States, 88 F.2d 104 and Washington Water Power Co. v. United States, 135 F.2d 541, and declaring in substance that the judges of the Fourth Circuit, like sheep, have gone astray, the brief concludes thus: "It is submitted that the decision of the Fourth Circuit is entitled to no weight here because it fails to follow United States v. Chandler-Dunbar, gives no effect to the uniform dicta of the Supreme Court and other courts of appeals recognizing the principle of that case, and is in conflict with the decisions of the Court of Appeals of the Ninth Circuit".

We have read with care and attention the opinions of the district judges in this and the companion cases and the opinion of the Court of Appeals affirming the judgments in the companion cases from the Fourth Circuit. These opinions have our full approval, and, but for the fact that appellant insists so vigorously that they are in conflict with the Chandler-Dunbar case and the two Ninth Circuit cases, we should content ourselves with announcing that we affirm the judgments for the reasons given in them. Because, however, of the vigor of appellant's attack, we have concluded to say that we are in complete disagreement with appellant's view that the opinion of the Supreme Court in the Chandler-Dunbar case is either directly or in its teachings and tendencies in conflict with the opinion of the Court of Appeals in United States v. Twin City Power Co., supra.

As to the opinions of the Ninth Circuit in the Continental Land and Washington Power cases, while we agree with appellant that the opinions in those cases are purportedly based on the decision in Chandler-Dunbar and perhaps in decision and certainly in dicta are contrary to the Twin City decision, we agree with the appellees that to the extent that they are based on the Chandler-Dunbar case, they are wrongly based and are contrary to the fundamental principles governing the scope and application of the Just Compensation clause of the Fifth Amendment as those principles have been, consistently and without varying, authoritatively declared and applied.

In the opinion in the Twin City case, the court, carefully pointing out the reason for the differences in point of view and treatment accorded in the two circuits, correctly shows that they arise from the failure of the Court of Appeals for the Ninth Circuit to see and draw the distinction between the taking of the bed of a navigable stream and fast lands adjoining for purposes of navigation and the taking, as here, of fast lands for entirely different purposes. Conceding that if the taking in this case had been, as it was in the Chandler-Dunbar case, of the bed of the stream and fast lands adjoining for the improvement of navigation, appellees would not have been entitled to pay for the water power value of the land taken, the court, supporting its position by citing many cases, clearly points out the difference between the two situations. This difference is that, in the Chandler-Dunbar case, the United States took the bed and adjoining fast lands of a navigable stream for the purposes of navigation, and it was held that the water power value of the land was not a proper element in determining the value of the land taken in condemnation because while the title to the bed of the stream and to the fast lands adjoining was in the landowner, this title was completely subject to the rights of the United States to improve the stream for navigation and it could not, therefore, be justly said that there was taken from the landowner either the bed of the stream, the water running in it, or the right of the landowner to use the stream for water power purposes. Here the taking is not for purposes of navigation but for use by the United States for a water power project, the very use for which the landowner acquired and was holding the land and it could not, therefore, be justly said that the value of it could be taken from him without paying him just compensation therefor.

Nothing in the facts or in the decision of the Dunbar case at all supports the claim which the United States here asserts. Stating 229 U.S. 53, 33 S.Ct. 671, "The technical title of the Chandler-Dunbar Company, therefore, includes the bed of the river opposite its upland on the bank to the middle thread of the stream * * *" and that "By reason of that fact, and the ownership of the shore, the company's claim is, that it is the owner of the river and of the inherent power in the falls and rapids, subject only to the public right of navigation", the Supreme Court went on to say in...