HIGH BRIDGE LUMBER CO. v. UNITED STATES et al., 69 F. 320

LURTON, Circuit Judge, after stating the facts as above, delivered the opinion of the court.

Tlie several assignments of error present substantially but one question, and that is, whether the district judge erred originally in instructing the commissioners “not to consider any damages that may result to adjacent property of the defendant by reason of any overflow, or any other damages that may result by the construction or operation of said lock and dam.” The anticipated diversion of the current of the stream from one side of the river to the other, thereby inconveniencing the conduct of the business of the High Bridge Lumber Company, and the anticipated raising of the level of the stream causing overflows and a consequent damage to its mill machinery and to the use of its adjacent lands for the purposes of its business, «ire manifestly injuries not directly the result of tlie taking of the small parcel desired by the government, but damage anticipated as consequent upon the construction and maintenance of a lock and dam in ¡he Kentucky river.

If the land condemned had been acquired by purchase, the same result to the remainder might be as well anticipated; or, if the condemned parcel had belonged to a different owner, the High Bridge Lumber Company would be subjected to the same class and kind of injuries, as a result of the improvement of the river. The supposed increase of risk from fire during the work of construction belongs to the same class of consequential damages.

The question at last is this: Do such damages constitute, within the meaning of the constitutional limitation upon the taking of private property for public uses, any part of the value of the land condemned, or any part of that “just compensation” which the owner is entitled to demand before he can be deprived of his property? The commissioners have already allowed satisfactory compensation to the owner for any impairment of the value of the remainder of its land by reason of the relation of the part taken to the remainder of the owner’s tract. This was obviously just.

A strip carved out of a tract, in such a way as to divide the remainder, might very seriously affect tlie enjoyment of the parts not taken. If thereby the value of the adjacent and remaining land is impaired, such impairment constitutes an element to be considered in assessing the value of that which is condemned. Tlie relation of that taken to tlia,t which is left is, therefore, a proper element to be estimated in assessing a “just compensation.” Cooley, Const. Lim. side pp. 565-568.

But plaintiff in error insists that the district judge should have gone further by allowing anticipated damages to the remainder consequent upon the use to which the condemned parcel is to be put. Let us consider the purpose for which this land is desired, and the use to which it is to be put. The Kentucky river is a navigable stream, accessible from states other than that in which it lies, and, therefore, within the constitutional powers of congress over the navigable waters of tbe United States.

Congress may rightfully open and keep ojien such a river for the public benefit, and may make such improvements as its discretion may dictate for the purpose of maintaining its safe and profitable navigation. Gilman v. Philadelphia, 3 Wall. 721-725; Scranton v. Wheeler, 16 U. S. App. 152, 6 C. C. A. 585, 57 Fed. 803. The power to lock and dam such a stream in the interest of navigation is unquestioned.

Now, if it be assumed that the gal e of this structure shall be so placed as that the direction of the current of the stream will be changed in a way which shall impair the usefulness of the lands of the plaintiff in error above the dam, and that, as a further consequence of the presence of the dam in the river, the level of the water above it shall be so raised as to overflow tbe lands of riparian owners, including plaintiff in error, may such consequential damages to plaintiff in error be considered in estimating the value of the parcel now condemned?

The well-se'ffled rule in respect of consequential injuries resulting from the prudent and skillful construction of public works by tbe government or tbe state, or those acting under legislative authority, is that for such damages no action will lie unless expressly conferred by statute. Cooley, Const. Lim. side pp. 541-543; Transportation Co. v. Chicago, 99 U. S. 635-641; Railroad Co. v. Bingham, 87 Tenn. 522, 11 S. W. 705; Smith v. Washington, 20 How. 135. In Transportation Co. v. Chicago, cited above, this doctrine is very clearly stated.

Justice Strong sums up the discussion by saying: “The remedy, therefore, for a consequential injury resulting from the state’s action throng a its agents, if there be any, must be that, and. that only, which the legislature shall give. It does not exist at common law. The decisions to which we have referred were made in view of Magna Cbarta, and the restriction to be found in tbe constitution of every state, that private property shall not be taken for public use without just compensation being made.

But acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the sta~e or its agents, or give him any right of action. This is supported by an immense weight of authority. Those who are curious to see the decisions will find them collected in Gooley on Constitutional Limitations (page 542 and notes).

The extremest qualification of the doctrine is to be found, perhaps, in Pumpelly v. Green Bay Co., 13 Wall. 166, and in Eaton v. Railroad Co., 51 N. H. 504.

In those cases it was held that permanent flooding of private property may he regarded as a ‘taking.’ In those cases there was a physical invasion of the real estate of the private owner, and a practical ouster of his possession.” One difficulty in all such cases is to determine what are consequential damages, when a part only of a larger parcel belonging to tbe same owner is sought to he condemned, and another grows out of the varying terms of statutes prescribing the nature of the damages which are to be ascertained as a condition upon which the right of eminent domain may be exercised.

In this case there is no statute prescribing the damages to be assessed. The Kentucky statute concerns only the damages which are to be allowed as a condition upon which railroad corporations are allowed to condemn lands or materials necessary in railroad construction.

The provision in the act of congress heretofore cited, requiring condemnation proceedings to be prosecuted “in accordance with the laws relating to suits for the condemnation of property of the states wherein the proceedings may be instituted,” has no application to a condemnation for river improvement purposes instituted by the United States, other than to require that the practice and proceeding shall, “as near as may be,” be in accordance with like causes in the courts of record of the state within which such circuit or district court is held.

It is not to be conceived that congress intended that a legislative requirement, giving to an owner consequential damages when his land was sought to be appropriated by a railroad company, should have application when the United States undertakes to condemn land necessary for the improvement of navigation. The right of eminent domain is a common-law right, inherent in every sovereignty unless denied by its fundamental law.

It is a right which exists in the federal government, and may be exercised by it within the states, so far as necessary to the enjoyment of the powers conferred upon it by the constituiion. • Cooley, Const. Lim. 526; Kohl v. U. S., 91 U. S. 367; U. S. v. Jones, 109 U. S. 513, 3 Sup. Ct. 346. Congress may create a special tribunal for condemnation purposes, adopt the tribunals of the states, or authorize purely common-law proceedings in the courts of the United States.

In the absence of direction by congress, as to the tribunal or mode of procedure, an action at common law will lie in the name of the United States in the district in which the land to be condemned lies. Kohl v. U. S., 91 U. S. 367; U. S. v. Jones, 109 U. S. 513, 3 Sup. Ct. 346. The only constitutional limitation upon this right of eminent domain is found in the provision which forbids the taking of private property for public purposes without just compensation.

That congress may delegate to state tribunals the power to fix and determine the amount of compensation to be paid by the United States for private property taken by them for public purposes, or adopt the rules of law prescribed by the state for that purpose, is not to be doubted. The case of U. S. v. Jones, heretofore cited, arose under

an act of congress which assumed all liability theretofore or thereafter incurred, both on account of the taking and overflowing of lands in the prosecution of the Fox River improvements, when the same should be “ascertained in the mode provided by the laws of the state.” The Wisconsin statute expressly provided for compensation for lands “overflowed or otherwise injured or taken.” There was, therefore, no doubt about the liability of the United States for any judgment which might be pronounced by a Wisconsin court, acting under the Wisconsin statute.

The act of congress under which this action was begun may be said to adopt the law of Kentucky, so far as applicable to a condemnation proceeding of this kind. Exit the law of Kentucky does not prescribe any rule of daxnages applicable to a condemnation for any other than railway construction purposes. We are, therefore, to determine under the principles of the common law what is “just compensation,” within the meaning of the fifth amendment of the constitution of the United States, for the land here sought to be condemned.

We have already seen that, under the well-settled common law applicable to such cases, damages not directly consequent upon the “taking,” but incident to or consequent upon the construction and operation of a public improvement in a prudent and skillful manner, are damnum absque injuria, unless such injuries are to be compensated by the terms of the statute under which the work was prosecuted.

But the insistence of the plaintiff in error is that, if the increased cost of insurance or the diversion of the current of the stream from one side of the stream to the other be consequential, the injury from overflow will be a “taking,” within the meaning of the constitution. For this the case of Pumpelly v. Green Bay Co., 13 Wall. 181, has been much relied upon.

That case does undoubtedly hold that a permanent flooding of private property may be regarded as a “taking.” But that case was subsequently characterized as “the extremest qualification of the doctrine,” as to non-liability for consequential injuries resulting from a public improvement and without negligence. Transportation Co. v. Chicago, 99 U. S. 642.

The opinion just cited likewise calls attention to the fact that there was in that case an actual “physical invasion” of private property amoxmting to a “practical ouster.” In this case there has been no present appropriation or physical invasion of any part of the remainder of the lands of plaintiff in error.

There may never be such a permanent flooding as, under the Pumpelly Case, will amount to a “taking.” If, as apprelxended, the level of the river shall be raised, so as to flood the remaining lands of plaintiff in error, bxxt not of sxich a permanent diameter as to amount to a permanent flooding and a practical ouster of the owner, then, under the general rule, the owner, as a riparian proprietor affected by sxidi extraordinary or temporary flooding, will have sustained only such consequential damages as any and all other riparian proprietors will sxxstain as a consequence of the improvement of the river in the pxiblic interest.

On the other hand, if the construction of the dam shall result in such permanent flooding as to amount to a “taking,” the right of action for the value of the land then taken will for the first time arise, and could not be regarded as barred by the present proceeding. What we hold is: First, that a mere temporary flooding, not amounting to a “taking,” and not the result of negligent construction or maintenance, is an injury consequential upon tlxe proper and lawful improvement of a navigable river, and is not such an injury as would be actionable.

That such injuries are apprehended in respect of lands of plaintiff in error not condemned gives no greater right to recover than if the purpose was to construct the proposed dam on the land of a third person. Second. To now seek compensation for the remainder of the land on the theory that the dam will be so constructed and maintained as to permanently flood the remainder, and amount to a “taking” of such land, is premature. The remainder has not yet been “taken,” and until it has been appropriated in fact, by permanent flooding, no right to be compensated will accrue. Third.

Neither the anticipated change in the current of the river, nor the anticipated increase in danger from fire during the work of construction, are proper subjects for compensa,lion. Both are injuries purely consequential, and constitute no actionable claim against the government. The case of Van Schoick v. Canal Co., 20 N. J. Law, 249, was a case where a statute controlled the condemnation, and gave the right only upon compensating the owner for all damages sustained.

The case turned upon the meaning of the language of the statute requiring an assessment of all “damages sustained by the owner.” The court construed the phrase as contemplating a recovery by the owner of “all damages accruing to the owner of lands from any and every physical effect pr'oduced by the construction and use of the canal, * * * whether they arise from the alteration or destruction of a public or private way, the exclusion or the overflowing of waters, the alteration or change in the current of streams or in the destruction of crops, the deterioration of adjacent lands by leakage, or whatever other damages may result from the natural and physical effects produced by the canal.” The cases cited from the Kentucky courts, including Asher v.

Railroad Co., 87 Ky. 391, 8 S. W. 854, likewise turn upon the construction of the statutes prescribing the damages recoverable. Where there is a statute requiring compensation in condemnation cases for consequential injuries to property not taken, all such damages will presumptively be paid for by the amount awarded in the condemnation proceeding. Pearce, R. R. 203; Railroad Co. v. Thillman, 143 Ill. 135, 32 N. E. 529; Van Schoick v. Canal Co., 20 N. J. Law, 249. The conclusion we reach is (hat the judgment must be affirmed.