Washington Water Power Co. v. United States, 10127.

• Decision Date: 05 June 1943
• Docket Number: No. 10127.,10127.
• Citation: 135 F.2d 541
• Parties: WASHINGTON WATER POWER CO. et al. v. UNITED STATES. UNITED STATES v. WASHINGTON WATER POWER CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

135 F.2d 541 (1943)

WASHINGTON WATER POWER CO. et al. v. UNITED STATES.

UNITED STATES v. WASHINGTON WATER POWER CO. et al.

No. 10127.

Circuit Court of Appeals, Ninth Circuit.

April 30, 1943.

Rehearing Denied June 5, 1943.

Alan G. Paine and H. E. T. Herman, both of Spokane, Wash. (Post, Russell, Davis & Paine, of Spokane, Wash., of counsel), for appellants Washington Water Power et al.

Norman M. Littell, Asst. Atty. Gen., Vernon L. Wilkinson, and Dwight D. Doty, Attys., Department of Justice, both of Washington, D. C., Edward M. Connelly, U. S. Atty., of Spokane, Wash. (B. E. Stoutemyer, District Counsel, Bureau of Reclamation, of Portland, Or., of counsel), for United States of America.

Osee W. Noble, of Republic, Wash., for appellee Ferry County, Wash F. Leo Grinstead, of Colville, Wash., for appellee Stevens County, Wash.

Before DENMAN, MATHEWS, and HANEY, Circuit Judges.

HANEY, Circuit Judge.

The government brought a proceeding to condemn certain lands. Both the government and the owner appeal from the judgment fixing "just compensation" therefor.

Part of the lands in question are situated in Ferry County and part in Stevens County, State of Washington. Taxes were levied on the lands by the two counties in October, 1939. The government acquired title to the lands on December 9, 1939. Wash.Rem.Rev.Stat.Ann. § 11265, as amended: "The taxes assessed upon real property shall be a lien thereon from and including the first day of January in the year in which they are levied until the same are paid, but as between a grantor and a grantee such lien shall not attach until the fifteenth day of February of the succeeding year. * * *"

After the condemnation proceedings were commenced, the owner of the lands, The Washington Water Power Company, hereafter called the company, and the government stipulated that the value of the lands for purposes other than power site values was $7,950.35. At the trial, the company offered certain evidence which was excluded by the court below. The evidence related to the value of the lands for power site purposes. Instructions based on such evidence were requested and refused.

The excluded evidence offered by the company may be briefly summarized: that when the lands were released from Colville Indian Reservation in 1906, they were purchased by one Graves as part of a larger tract, for use as abutments for power site purposes, the tract costing $80,000; that in 1912, Graves sold the tract to a corporation for the same purposes for $100,000; that the corporation sold the tract to the company in 1921 for the same purposes for $156,043.33; that the company made preliminary studies, topographical maps, exploration studies, general engineering work, surveying work and other work at a total cost of $317,352.64; that the company spent in addition $66,832.90 for taxes and fees in connection with water rights; that the company had a contract with the state to buy shore lands for $29,000; that the company had applied to the state for permits to appropriate and store water; that the company had negotiated with the Federal Power Commission for a license, and had been granted a preliminary permit; that the highest and best use for which the lands were adaptable was as a power site; that its value for that purpose was an amount varying from $480,000 to $550,000.

The jury was instructed to return a verdict of $7,950.35 for the company plus the amount of taxes levied.

The general rule applicable to condemnation proceedings is stated in United States v. Miller, January 4, 1943, 317 U.S. 369, 63 S.Ct. 276, 279, 87 L.Ed. ___, as follows:

"The Fifth Amendment of the Constitution provides that private property shall not be taken for public use without just compensation. Such compensation means the full and perfect equivalent in money of the property taken. * * *

"It is conceivable that an owner's indemnity should be measured in various ways depending upon the circumstances of each case and that no general formula should be used for the purpose. In an effort, however, to find some practical standard, the courts early adopted, and have retained, the concept of market value. * * *

"Where, for any reason, property has no market resort must be had to other data to ascertain its value; and, even in the ordinary case, assessment of market value involves the use of assumptions, which make it unlikely that the appraisal will reflect true value with nicety. It is usually said that market value is what a willing buyer would pay in cash to a willing seller. Where the property taken, and that in its vicinity, has not in fact been sold within recent times, or in significant amounts, the application of this concept involves, at best, a guess by informed persons."

The property in question...