# United States v. Virginia Electric and Power Company/Dissent Whittaker

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Douglas
* Dissenting Opinion Whittaker
United States Supreme Court
365 U.S. 624
United States v. Virginia Electric and Power Company
Argued: Nov. 10, 1960. --- Decided: April 3, 1961
Mr. Justice WHITTAKER, with whom THE CHIEF JUSTICE and Mr. Justice BLACK join, dissenting.
In the hope that it might eventually acquire from the Federal Government a license to construct a power dam across a navigable river, the power company acquired, by conveyances from the fee ownners, easements permanently to flood 1,540 acres of fast lands adjacent to the river. It did not own any other estate or interest in those lands, and the exercise of its easement to flood them was, of course, necessarily subject to the prior issuance of a federal license authorizing the private damming of the river, for without such a license the power company could not dam the river, see § 4 of the Federal Power Act, 41 Stat. 1065, 16 U.S.C. § 797, 16 U.S.C.A. § 797, and thus back its waters upon those lands, and it had no right to use the lands for any other purpose.
No federal license to dam the river at or near this point was ever issued. Instead, the Federal Government itself determined to construct a power dam at this point in the river, and as a necessary consequence to inundate these lands as a part of the resulting reservoir. To that end, it brought this condemnation action against the power company, and therein filed its declaration of taking, and took, the latter's easement to back flow these lands, and the question here is: What value, if any, did that easement have to the power company at the time the Government took it?
We think that, as a matter of fact and of law, it did not have any value whatever at that time. This is so because: (1) The sole and only right the power company ever had in these lands was the right to dam and back the river's waters upon them; (2) the exercise of that right was always contingent and dependent upon the prior issuance of a federal license authorizing the private damming of the river (16 U.S.C. § 797(e), 16 U.S.C.A. § 797(e)), for the Government's power over the flow of a navigable stream 'is a dominant one which can be asserted to the exclusion of any competing or conflicting one,' United States v. Twin City Power Co., 350 U.S. 222, 224-225, 76 S.Ct. 259, 261, 100 L.Ed. 240; and (3) when the Government determined to construct the power dam and appurtenant facilities for its own benefit, it necessarily 'displace(d) all competing interests and appropriate(d) the entire flow of the river for the declared public purpose,' United States v. Twin City Power Co., supra, 350 U.S. at page 225, 76 S.Ct. at page 261. (4) Therefore, at the time the Government took this easement, there was no possibility that the power company could ever dam and back the river's waters upon these lands and, inasmuch as it had no estate in or right to use the lands for any other purpose, it must follow that the easement was wholly without value to the power company for any purpose at the time the Government took it.
However, the Court, after adverting to the power company's argument that 'the easement had other value, derived from uses of the land not dependent upon the flow of the stream,' says: 'We think such a finding might be warranted.' It finds such value to exist in the 'right to destory (agricultral, timber and grazing) uses and the value which they created.'
But the right to 'destroy' agricultural uses, although a proper consideration in determining the damages to be paid to the owner of the unencumbered fee when an easement to flow is being condemned and taken from him, United States v. Kansas City Life Ins. Co., 339 U.S. 799, 70 S.Ct. 885, 94 L.Ed. 1277; Olson v. United States, 292 U.S. 246, 253-254, 54 S.Ct. 704, 707-708, 78 L.Ed. 1236, is not a thing of value-even of recognizable 'hold up' value-to the owner of the easement, United States v. ChandlerDunbar Water Power Co., 229 U.S. 53, 79-80, 33 S.Ct. 667, 678, 57 L.Ed. 1063, except for the authorized flooding use, or possibly as against the owner of the subservient fee who might be willing to pay for the riddance of the easement and restoration of his original right to make agricultural uses of the land. See Roberts v. New York City, 295 U.S. 264, 282-283, 55 S.Ct. 689, 693-694, 79 L.Ed. 1429. At all events, the clincher is that any right of the power company to 'destroy' agricultural uses of these lands consisted solely of its right to dam and back the river's waters upon them, and when the Government determined to construct the dam for its own benefit even that nebulous 'right' was gone. Hence, the easement had no possible value-not even a nuisance value-to the power company at the time the Government took it.
It is settled that the 'just compensation' required by the Fifth Amendment to be paid for the taking of private property for public use is the value at the very time of the taking to the person from whom taken. 'The value should be fixed as of the date of the proceedings and with reference to the loss the owner sustains, considering the property in its condition and situation at the time it is taken, and not as enhanced by the purpose for which it was taken. Kerr v. South Park Commissioners, 117 U.S. 379, 387 (6 S.Ct. 801, 805, 29 L.Ed. 924, 927); Shoemaker v. United States, 147 U.S. 282, 304, 305 (13 S.Ct. 361, 37 L.Ed. 170).' United States v. Chandler-Dunbar Water Power Co., supra, 229 U.S. at page 76, 33 S.Ct. at page 677.
The Fifth Amendment 'merely requires that an owner of property taken should be paid for what is taken from him. * * * And the question is what has the owner lost, not what has the taker gained.' Boston Chamber of Commerce v. City of Boston, 217 U.S. 189, 195, 30 S.Ct. 459, 460, 54 L.Ed. 725. See also United States v. Twin City Power Co., supra, 350 U.S. at page 228, 76 S.Ct. at page 262. At the time of this taking, the Government had determined to build the dam itself, thus precluding any possibility that the power company could ever dam and back the river's waters upon these lands, and, inasmuch as it had no right to use them for any other purpose, it must follow that the easement had no possible value to the power company at the time the Government took it. Surely 'the government cannot be justly required to pay for an element of value which did not (then) inhere in (the easement).' United States v. Chandler-Dunbar Water Power Co., supra, 229 U.S. at page 76, 33 S.Ct. at page 677.
Nor does the Fifth Amendment contemplate a disregard of separate estates and interests in land. It contemplates only that the condemnee shall be paid 'just compensation' for the particular estate or interest that he owned and that was taken from him. In Boston Chamber of Commerce v. City of Boston, supra, the city condemned for public street purposes a part of a tract of land owned in fee by the Chamber of Commerce, but over a large portion of the part condemned a wharf company owned 'an easement of way, light and air.' The Chamber of Commerce and the wharf company agreed between themselves to claim, and they sought, damages to both estates 'in a lump sum.' If this could be done, it was agreed that the estate, considered as the sole unencumbered estate of a single person, was worth 12 times more than if the damage should be assessed according to the condition of the title at the time. The city's contention that the several estates should be separately valued was sustained by the trial court, and this Court speaking through Mr. Justice Holmes, affirmed saying:
'But the Constitution does not require a disregard of the mode of ownership,-of the state of the title. It does not require a parcel of land to be valued as an unencumbered whole when it is not held as an unencumbered whole. It merely requires that an owner of property taken should be paid for what is taken from him. * * * And the question is what has the owner lost, not what has the taker gained.' 217 U.S. at page 195, 30 S.Ct. at page 460.
The Government cannot here, just as the city could not there, 'be made to pay for a loss of theoretical creation, suffered by no one in fact,' id., 217 U.S. at page 194, 30 S.Ct. at page 460, for there is 'no justice in (requiring the Government to pay) for a loss suffered by no one in fact.' United States v. Chandler-Dunbar Water Power Co., supra, 229 U.S. at page 76, 33 S.Ct. at page 677.
Here the power company rests solely upon a claimed right to back the river's waters upon these lands. It thus necessarily depends upon and claims a right in and to use the waters of the river for that purpose. This Court held in the Twin City case, supra, that the owner of adjoining fast lands has no interest in the waters of a navigable river, and that those waters do not, as against the Government, attribute to the value of such lands. It said:
'If the owner of the fast lands can demand water-power value as part of his compensation, he gets the value of a right that the Government in the exercise of its dominant servitude can grant or withhold as it chooses. The right has value or is an empty one dependent solely on the Government. What the Government can grant or withhold and exploit for its own benefit has a value that is peculiar to it and that no other user enjoys.' 350 U.S. at page 228, 76 S.Ct. at page 263.
The Government, by determining to exploit its stream for its own benefit, 'displace(d) all competing interests and appropriate(d) the entire flow of the river for the declared public purpose.' Id., 350 U.S. at page 225, 76 S.Ct. at page 261. In these circumstances, '(t)o require the United States to pay for this water-power value would be to create private claims in the public domain.' Id., 350 U.S. at page 228, 76 S.Ct. at page 263.
The Twin City and Chandler-Dunbar cases, supra, seem clearly to require the conclusion, on the facts here, that the easement to flood these lands had no value to the power company at the time the Government took it.
It was its failure to obtain a federal license to dam the river-not the taking of its easement to flow-that hurt the power company, for once the Government determined to construct the power dam for its own use and benefit no possibility remained that the power company could ever use the easement, and hence its entire value was gone.
To the Court's observation that 'the Government's argument would mean, in a case like this one, that compensation could be denied the fee owner because he had already conveyed the flowage easement, * * * and denied the owner of the easement because it was valueless against condemnation by the United States,' the law requires us to say: Exactly so. The fee owners had sold and conveyed, for consideration satisfactory to them, the right permanently to flood these lands and no longer owned any interest in that estate. Indeed, they claim none. That estate in these lands was not taken by the Government from them. Not having taken anything from the fee owners, the Government does not owe them 'just compensation' for anything. This also demonstrates the Court's further error in remanding the case for 'apportionment' of the 'damages' between the owner of the easement and the owners of the fee. In no event could there be anything to apportion to the fee owners. What the Government took was the easement. It belonged solely to the power company, and if it had any value at the time it was taken by the Government, that value belonged solely to the power company. But the easement had no value to the power company at the time it was taken by the Government. The power company's sole estate in these lands was an easement to back the river's waters upon them. The exercise-and hence the value-of that easement was always contingent upon the prior issuance of a federal license authorizing the private damming of the river. No such license was ever issued. Instead, the Government determined to construct the dam and appurtenant facilities for its own benefit. This left no possibility that the power company could ever dam and back the river's waters upon these lands, and inasmuch as it had no right to use them for any other purpose, it seems clearly to follow that the easement was wholly without value to the power company for any purpose at the time the Government took it.
It is of course true, as already stated, that if the Government had taken the right to flow these lands from the owner of the unencumbered fee, the law would require it to pay his damages resulting from that deprivation of his right to make agricultural and similar surface uses of these lands. United States v. Kansas City Life Ins. Co., supra. From that premise it is argued that the owner of the easement to flow, having acquired it from the owner of the unencumbered fee, 'stands in the shoes of his predecessor in title' and is thus entitled to like damages from the Government when it takes that easement from him. But that premise is erroneous. The error lies in the obvious fact that the power company never acquired or owned any right to make agricultural uses of these lands. Hence it did not suffer, and is not entitled to recover, any damages for the destruction of such uses. Quite distinguishable from an unencumbered fee, the only estate of the power company in these lands was the right to store the river's waters upon them. Once the Government determined to construct the power dam for its own use no possibility remained that the power company could ever use the lands for that purpose and, having no right to use the lands for any other purpose, it must follow that the easement was wholly without value to the power company for any purpose at the time the Government took it.
We believe that the Fifth Amendment's command that 'private property (shall not) be taken for public use, without out just compensation' should be liberally construed in favor of the condemnee, but that does not mean that the Government should be required to pay something for nothing.
For these reasons, we think the judgment should be reversed with directions to enter judgment for the Government.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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