# United States v. Fuller (409 U.S. 488)/Opinion of the Court

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* Opinion of the Court
* Dissenting Opinion Powell
[p488] MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Respondents operated a large-scale "cow-calf" ranch near the confluence of the Big Sandy and Bill Williams Rivers in western Arizona. Their activities were conducted on lands consisting of 1,280 acres that they [p489] owned in fee simple (fee lands), 12,027 acres leased from the State of Arizona, and 31,461 acres of federal domain held under Taylor Grazing Act permits issued in accordance with § 3 of the Act, 48 Stat. 1270, as amended, 43 U.S.C. § 315b. The Taylor Grazing Act authorizes the Secretary of the Interior to issue permits to livestock owners for grazing their stock on Federal Government lands. These permits are revocable by the Government. The Act provides, moreover, that its provisions "shall not create any right, title, interest, or estate in or to the lands." Ibid.
The United States, petitioner here, condemned 920 acres of respondents' fee lands. At the trial in the District Court for the purpose of fixing just compensation for the lands taken, the parties disagreed as to whether the jury might consider value accruing to the fee lands as a result of their actual or potential use in combination with the Taylor Grazing Act "permit" lands. The Government contended that such element of incremental value to the fee lands could neither be taken into consideration by the appraisers who testified for the parties nor considered by the jury. Respondents conceded that their permit lands could not themselves be assigned any value in view of the quoted provisions of the Taylor Grazing Act. They contended, however, if on the open market the value of their fee lands was enhanced because of their actual or potential use in conjunction with permit lands, that element of value of the fee lands could be testified to by appraisers and considered by the jury. The District Court substantially adopted respondents' position, first in a pretrial order and then in its charge to the jury over appropriate objection by the Government.
On the Government's appeal, the Court of Appeals for the Ninth Circuit affirmed the judgment and approved the charge of the District Court. 442 F.2d 504. [p490] That court followed the earlier case of United States v. Jaramillo, 190 F.2d 300 (CA10 1951), and distinguished our holding in United States v. Rands, 389 U.S. 121 (1967). The dissenting judge in the Ninth Circuit thought the issue controlled by Rands, supra. We granted certiorari. 404 U.S. 1037 (1972).
Our prior decisions have variously defined the "just compensation" that the Fifth Amendment requires to be made when the Government exercises its power of eminent domain. The owner is entitled to fair market value, United States v. Miller, 317 U.S. 369, 374 (1943), but that term is "not an absolute standard nor an exclusive method of valuation." United States v. Virginia Electric & Power Co., 365 U.S. 624, 633 (1961). The constitutional requirement of just compensation derives as much content from the basic equitable principles of fairness, United States v. Commodities Trading Corp., 339 U.S. 121, 124 (1950, as its does from technical concepts of property law.
The record shows that several appraiser witnesses for respondents testified that they included as an element of the value that they ascribed to respondents' fee lands the availability of respondents' Taylor Grazing Act permit lands to be used in conjunction with the fee lands. Under the District Court's charge to the jury, the jury was entitled to consider this element of value testified to by the appraisers. This Court has held that generally the highest and best use of a parcel may be found to be a use in conjunction with other parcels, and that any increment of value resulting from such combination may be taken into consideration in valuing the parcel taken. Olson v. United States, 292 U.S. 246, 256 (1934). The question presented by this case is whether there is an exception to that general rule where the parcels to be aggregated with the land taken are themselves owned [p491] by the condemnor and used by the condemnee only under revocable permit from the condemnor.
To say that this element of value would be considered by a potential buyer on the open market, and is therefore a component of "fair market value," is not the end of the inquiry. In United States v. Miller, supra, this Court held that the increment of fair market value represented by knowledge of the Government's plan to construct the project for which the land was taken was not included within the constitutional definition of "just compensation." The Court there said:
   "But [respondents] insist that no element which goes to make up value... is to be discarded or eliminated. We think the proposition is too broadly stated...." 317 U.S., at 374.
United States v. Cors, 337 U.S. 325 (1949), held that the just compensation required to be paid to the owner of a tug requisitioned by the Government in October 1942, during the Second World War, could not include the appreciation in market value for tugs created by the Government's own increased wartime need for such vessels. The Court said: "That is a value which the government itself created and hence in fairness should not be required to pay." Id., at 334. A long line of cases decided by this Court dealing with the Government's navigational servitude with respect to navigable waters evidences a continuing refusal to include, as an element of value in compensating for fast lands that are taken, any benefits conferred by access to such benefits as a potential portsite or a potential hydro-electric site. United States v. Rands, supra; United States v. Twin City Power Co., 350 U.S. 222 (1956); United States v. Commodore Park, 324 U.S. 386 (1945).
[p492] These cases go far toward establishing the general principle that the Government as condemnor may not be required to compensate a condemnee for elements of value that the Government has created, or that it might have destroyed under the exercise of governmental authority other than the power of eminent domain. If, as in Rands, the Government need not pay for value that it could have acquired by exercise of a servitude arising under the commerce power, it would seem a fortiori that it need not compensate for value that it could remove by revocation of a permit for the use of lands that it owned outright.
We do not suggest that such a general principle can be pushed to its ultimate logical conclusion. In United States v. Miller, supra, the Court held that "just compensation" did include the increment of value resulting from the completed project to neighboring lands originally outside the project limits, but later brought within them. Nor may the United States "be excused from paying just compensation measured by the value of the property at the time of the taking" because the State in which the property is located might, through the exercise of its lease power, have diminished that value without paying compensation. United States ex rel. TVA v. Powelson, 319 U.S. 266, 284 (1943).
"Courts have had to adopt working rules in order to do substantial justice in eminent domain proceedings." United States v. Miller, supra, at 375. Seeking as best we may to extrapolate from these prior decisions such a "working rule," we believe that there is a significant difference between the value added to property by a completed public works project, for which the Government must pay, and the value added to fee lands by a revocable permit authorizing the use of neighboring lands that the Government owns. The Government [p493] may not demand that a jury be arbitrarily precluded from considering as an element of value the proximity of a parcel to a post office building, simply because the Government at one time built the post office. But here respondents rely on no mere proximity to a public building or to public lands dedicated to, and open to, the public at large. Their theory of valuation aggregates their parcel with land owned by the Government to form a privately controlled unit from which the public would be excluded. If, as we held in Rands, a person may not do this with respect to property interests subject to the Government's navigational servitude, he surely may not do it with respect to property owned outright by the Government. The Court's statement in Rands respecting portsite value is precisely applicable to respondents' contention here that they may aggregate their fee lands with permit lands owned by the Government for valuation purposes:
   "[I]f the owner of the fast lands can demand port site 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.... To require the United States to pay for this... value would be to create private claims in the public domain.'" 389 U.S., at 125, quoting United States v. Twin City Power Co., 350 U.S., at 228.
We hold that the Fifth Amendment does not require the Government to pay for that element of value based on the use of respondents' fee lands in combination with the Government's permit lands.
The Court of Appeals based its holding in part on its conclusion that although the Fifth Amendment might not have required the Government to pay compensation [p494] of the sort permitted by the trial court's charge to the jury, the history of the Taylor Grazing Act indicated that Congress had intended that such compensation be paid. Congress may, of course, provide in connection with condemnation proceedings that particular elements of value or particular rights be paid for even though in the absence of such provision the Constitution would not require payment. United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950). But we do think the factors relied upon by the Court of Appeals fall far short of the direction contained in the Reclamation Act of 1902, 32 Stat. 388, as amended, that payment be made for rights recognized under state law, which was determinative of the outcome in Gerlach. The provisions of the Taylor Grazing Act quoted supra make clear the congressional intent that no compensable property right be created in the permit lands themselves as a result of the issuance of the permit. Given that intent, it would be unusual, we think, for Congress to have turned around and authorized compensation for the value added to fee lands by their potential use in connection with permit lands. We find no such authorization in the applicable congressional enactments.
Reversed.