Where the Government erects dams and other obstructions across a river, causing an overflow of water which renders the property affected unfit for agricultural use and deprives it of all value, there is taking of property for which the Government is under an implied contract to make just compensation.[295] The construction of locks and for "ca.n.a.lizing" a river, which cause recurrent overflows, impairing but not destroying the value of the land amounts to a partial taking of property within the meaning of the Fifth Amendment;--the fee remains in the owner, subject to an eas.e.m.e.nt in the United States to overflow it as often as may necessarily result from the operation of the lock and dam for purposes of navigation.[296] Compensation has been awarded for the erosion of land by waters impounded by a Government dam,[297] and for the destruction of the agricultural value of land located on a nonnavigable tributary of the Mississippi River, which as a result of the continuous maintenance of the river"s level at high water mark, was permanently invaded by the percolation of the waters, and its drainage obstructed.[298] When the construction of locks and dams raised the water in a nonnavigable creek to about one foot below the crest of an upper milldam, thus preventing the drop in the current necessary to run the mill, there was a taking of property in the const.i.tutional sense.[299] A contrary conclusion was reached with respect to the destruction of property of the owner of a lake through the raising of the lake level as a consequence of an irrigation project, where the result to the lake owner"s property could not have been foreseen.[300]
JUST COMPENSATION
If only a portion of a single tract is taken, the owner"s compensation includes any element of value arising out of the relation of the part taken to the entire tract.[301] Thus, where the taking of a strip of land across a farm closed a private right of way, an allowance was properly made for value of the eas.e.m.e.nt.[302] On the other hand, if the taking has in fact benefited the owner, the benefit may be set off against the value of the land condemned.[303] But there may not be taken into account any supposed benefit which the owner may receive in common with all from the public use to which the property is appropriated.[304]
Where Congress condemned certain lands for park purposes, setting off resulting benefits against the value of property taken, and by subsequent act directed the erection of a fire-station house therein, it was held that property was not thereby taken without just compensation.[305] The Const.i.tution does not require payment of consequential damages to other property of the owner consisting of separate tracts adjoining that affected by the taking.[306]
Just compensation means the full and perfect equivalent, in money, of the property taken.[307] The owner"s loss, not the taker"s gain is the measure of such compensation.[308] Where the property has a determinable market value, that is the normal measure of recovery.[309] Market value is "what a willing buyer would pay in cash to a willing seller."[310] It may reflect not only the use to which the property is presently devoted but also that to which it may be readily converted.[311] But the value of the property to the Government for its particular use is not a criterion.[312] In two recent cases the Court held that the owners of cured pork[313] and black pepper[314] which was requisitioned by the Government during the war could recover only the O.P.A. ceiling price for those commodities, despite findings of the Court of Claims that the replacement cost of the meat exceeded its ceiling price, and that the pepper had a "retention value" in excess of that price. By a five-to-four decision it ruled that the Government was not obliged to pay the market value of a tug where such value had been enhanced as a consequence of the Government"s urgent war time needs.[315]
Consequential damages such as destruction of a business,[316] the expense of moving fixtures and personal property from the premises, or the loss of goodwill which inheres in the location of the land, are not recoverable when property is taken in fee.[317] But a different principle obtains where only a temporary occupancy is a.s.sumed. If a portion of a long term lease is taken, damage to fixtures is allowed in addition to the value of the occupancy, and the expenses of moving, storage charges, and the cost of preparing the s.p.a.ce for occupancy by the Government are proper elements to be considered in determining the fair rental value of the premises for the period taken.[318] These elements are not taken into account in fixing compensation for condemnation of leaseholds for the remainder of their term.[319] In Kimball Laundry Co. _v._ United States,[320] the Court by a close division held that when the United States condemned a laundry plant for temporary occupancy, evidence should have been received concerning the diminution in the value of its business due to destruction of its trade routes, and compensation allowed for any demonstrable loss of going-concern value. In United States _v._ Pewee Coal Co.,[321]
involving another temporary seizure by the government, a similarly divided Court sustained the Court of Claims in awarding the company compensation for losses attributable to increased wage payments by the government. Four Justices thought no such loss had been shown.
Interest
Ordinarily property is taken under a condemnation suit upon the payment of the money award by the condemner and no interest accrues.[322] If, however, the property is taken in fact before payment is made, just compensation includes an increment which, to avoid use of the term "interest," the Court has called "an amount sufficient to produce the full equivalent of that value paid contemporaneously with the taking."[323] If the owner and the Government enter into a contract which stipulates the purchase price for lands to be taken, with no provision for interest, the Fifth Amendment is inapplicable and the landowner cannot recover interest even though payment of the purchase price is delayed.[324] Where property of a citizen has been mistakenly seized by the Government, converted into money and invested, the owner is ent.i.tled, in recovering compensation, to an allowance for the use of his property.[325]
Enforcement of Right to Compensation
When a taking of private property has been ordered, the question of just compensation is judicial.[326] The compensation to be paid may be ascertained by any appropriate tribunal capable of estimating the value of the property. Whether the tribunal shall be created directly by Congress or one already established by the State shall be adopted for the occasion, is a matter of legislative discretion.[327] The estimate of just compensation is not required to be made by a jury, but may be entrusted to commissioners appointed by a court or by the executive, or to an inquest consisting of more or fewer men than an ordinary jury.[328] The federal courts may take jurisdiction of an action in ejectment by a citizen against officers of the Government, to recover property of which he has been deprived by force and which has been converted to the use of the Government without lawful authority and without just compensation.[329] Where property is taken by the United States in the exercise of the power of eminent domain, but without condemnation proceedings, the owner may, under the Tucker Act, bring suit for just compensation in the Court of Claims or in a district court sitting as a Court of Claims.[330]
The Fifth Amendment does not require that compensation shall actually be paid in advance of the taking[331] but the owner is ent.i.tled to reasonable, certain, and adequate provision for obtaining compensation before his occupancy is disturbed.[332] In time of war or immediate public danger private property may be impressed into public service without the consent of the owner, but such taking raises an implied promise on the part of the United States to reimburse the owner.[333] An objection that an act of Congress providing for condemnation of land for a public purpose limited the aggregate amount to be expended was rejected, since the limitation did not affect the right of property holders in the event of condemnation.[334]
Notes
[1] Ex parte Wilson, 114 U.S. 417 (1885).
[2] Ibid. 427.
[3] Mackin _v._ United States, 117 U.S. 348, 352 (1886).
[4] United States _v._ Moreland, 258 U.S. 433 (1922).
[5] Ex parte Wilson, 114 U.S. 417, 426 (1885).
[6] Wong Wing _v._ United States, 163 U.S. 228, 237 (1896).
[7] Ex parte Wilson, 114 U.S. 417 (1885).
[8] Mackin _v._ United States, 117 U.S. 348 (1886).
[9] Parkinson _v._ United States, 121 U.S. 281 (1887).
[10] United States _v._ DeWalt, 128 U.S. 393 (1888).
[11] Ex parte Wilson, 114 U.S. 417, 426 (1885).
[12] Duke _v._ United States, 301 U.S. 492 (1937).
[13] Ex parte Bain, 121 U.S. 1, 12 (1887).
[14] Breese _v._ United States, 226 U.S. 1 (1912).
[15] Johnson _v._ Sayre, 158 U.S. 109, 114 (1895).
[16] Ex parte Quirin, 317 U.S. 1, 43, 44 (1942).
[17] Ex parte Lange, 18 Wall. 103, 169 (1874).
[18] Ibid. 172, 173.
[19] Kepner _v._ United States, 195 U.S. 100 (1904). This case arose under the act of Congress of July 1, 1902 (32 Stat. 631) for the temporary civil government of the Philippine Islands. To the same effect are United States _v._ Sanges, 144 U.S. 310, 323 (1892), and United States _v._ Evans, 213 U.S. 297 (1909), both cases arising within the United States.
[20] United States _v._ Oppenheimer, 242 U.S. 85 (1916).
[21] United States _v._ Ball, 161 U.S. 622, 669 (1896).
[22] Ex parte Lange, 18 Wall. 163 (1874).
[23] Bozza _v._ United States, 330 U.S. 160 (1947).
[24] Wade _v._ Hunter, 336 U.S. 684, 689 (1949).
[25] United States _v._ Perez, 9 Wheat. 579 (1824); Logan _v._ United States, 144 U.S. 263, 298 (1892).
[26] Simmons _v._ United States, 142 U.S. 148 (1891); Thompson _v._ United States, 155 U.S. 271 (1894).
[27] Lovato _v._ New Mexico, 242 U.S. 199 (1916).
[28] Wade _v._ Hunter, 336 U.S. 684 (1949).
[29] Collins _v._ Loisel, 262 U.S. 426 (1923).
[30] Taylor _v._ United States, 207 U.S. 120, 127 (1907).
[31] Ba.s.sing _v._ Cady, 208 U.S. 386, 391-392 (1908).
[32] United States _v._ Wilson, 7 Pet. 150, 160 (1883).
[33] Burton _v._ United States, 202 U.S. 344 (1906); United States _v._ Randenbush, 8 Pet. 288, 289 (1834).
[34] Morgan _v._ Devine, 237 U.S. 632 (1915). _See also_ Carter _v._ McClaughry, 183 U.S. 365 (1902); Albrecht _v._ United States, 273 U.S. 1 (1927).
[35] Ex parte Nielsen, 131 U.S. 176, 188 (1889).
[36] Helvering _v._ Mitch.e.l.l, 303 U.S. 391 (1938).