Constitutional Law - Eminent Domain - Condemnation of Riparian Lands Under the Commerce Power

Michigan Law Review Volume 55 Issue 2 1956 Constitutional Law - Eminent Domain - Condemnation of Riparian Lands Under the Commerce Power George F. Lynch S.Ed. University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Constitutional Law Commons, Land Use Law Commons, Law and Economics Commons, Legal Remedies Commons, and the Water Law Commons Recommended Citation George F. Lynch S.Ed., Constitutional Law - Eminent Domain - Condemnation of Riparian Lands Under the Commerce Power, 55 MICH. L. REV. 272 (1956). Available at: https://repository.law.umich.edu/mlr/vol55/iss2/6 This Response or Comment is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. 2-72 MICHIGAN LAW REVIEW [Vol. 55 CONSTITUTIONAL LAW - EMINENT DOMAIN - CONDEMNATION OF RIPARIAN LANDS UNDER THE COMMERCE PoWER-The power of the United States to regulate commerce comprehends a right to control navigation and the means of navigation. To the extent necessary for -the enjoyment of this power the government may condemn .riparian property.1 The federal power of eminent domain is limited by the mandate of the Fifth Amendment which requires just compensation for private property taken for a public use. Usually, the standard of just compensation is the market value of the property, taking into consideration the most profitable uses for which the property is suited and likely to be used2 at the time of the taking,3 but not including any special value it may have solely to the taker.4 By this test the market value of land riparian to a navigable stream would seem to include the uses a ·riparian owner can make of the river, including water rights and potential hydroelectric uses of the river and adjacent land. However, in United States v. Twin City Power Co./' the Supreme Court ruled that the United States as condemner of riparian land on a naviga ble river need not pay the owner the value the lands have as a power· dam site, even though the condemnee -held the land for that purpose and the government took the land to build its own dain. The Court said that the United States has a quasi-pro prietary right in navigable waters, as against the owner of the river bank, derived from its plenary power to regulate and control such waters in aid of navigation. · That a riparian landowner may be deprived of a valuable power dam site without compensation for loss of water rights is a doctrine peculiar to federal condemnation suits. Justification for l. U.S. CoNsr., art. I, §8. The power of eminent domain is implied and may be used in. conjunction with the express powers of the United States. Kohl v. United States, 91 U.S. 367 (1875). 2 Boom Co. v. Patterson, 98 U.S. 403 (1878). 3 Kerr v. South Park Commissioners, 117 U.S. 379 (1886). See 2 LEWIS, EMINENT DOMAIN, 3d ed., 1220 (1909). 4 Boston Chamber ·of Commerce v. City of Boston, 217 U.S. 189 (1910); Kimball Laundry Co. v. United States, 338 U.S. 1 (1949). 5 350 U.S. 222 (1956), reh. den. 350 U.S. 1009 (1956). 1956] COMMENTS 273 such a result is found in the concept of a governmental right in navigable waters. This interest supersedes the property rights of individual landowners, and has the effect of making the general rule applied in condemnation proceedings under the Fifth Amend ment inapplicable to this type of case. The nature and scope of the federal power in waterways is the key to understanding when it is that the government must make compensation for riparian property and what the measure of that compensation must be. I. The Extent of the Commerce Power in Navigable Waters A. Generally. The power of Congress to control navigation under the commerce clause was recognized at an early date.6 This regulatory right is absolute between the banks of a watercourse and is limited only by the express restrictions of the Constitution. There can be no objection when the United States asserts its power to extend navigation by dredging channels, removing qbstacles to navigation, or by raising water levels on navigable rivers to the ordinary high water mark.7 The number of rivers subject to the jurisdiction of Congress has been substantially increased by recent decisions: For many years a river was part of interstate commerce only if it was navigable in its ordinary condition.8 By this standard a river was navigable if presently navigable, or if in the past it had been navigable,9 or if by artificial means it had become navigable.10 Navigability is a matter of judicial determination and the stand ards of the ultimate conclusion are questions of mixed law and fact. The scope of the navigation aspect of commerce control was ex tended in United States v. Appalachian Electric Power Co.,11 in which the Court held that "ordinary condition" referred to the volume of water, flow, and grade of the.river bed. A waterway may be navigable in law even though artificial aids are necessary to make it navigable in fact. The present test of navigability re quires an evaluation of the availability of a river for navigation, taking into consideration its volume, flow, and grade, as well as the cost of improvements necessary to make the river navigable 6 Gibbons v. 'Ogden, 9 Wheat. (22 U.S.) 1 at 189 (1824). 7 United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913); United States v. Chicago, Milwaukee, Saint Paul and Pacific R. Co., 312 U.S. 592 (1941). 8 The Daniel Ball, 10 Wall. (77 U.S.) 557 at 563 (1870). 9 Arizona v. California, 283 U.S. 423 (1931). 10 The Montello, 20 Wall. (87 U.S.) 430 (1874). 11311 U.S. 377 (1940). 274 MICHIGAN LAw REVIEW [Vol. 55 in fact.12 Whether any inland waterway is free from the power of Congress is now in doubt. It has been held that the Tenth Amendment is not a bar to the exercise of federal power in non navigable reaches of a river otherwise open to commercial uses, and the power has been extended even to non-navigable tributaries of a navigable stream.13 In earlier cases the Supreme Court took the view that the federal power in navigable waters could be exercised only in aid of navigation.14 The advent of comprehensive water resource projects precipitated a judicial broadening of the scope of the power,15 the Court adopting a position that all means having any reasonable relation to the improvement of navigation were within the means of the Federal Government.16 In 1940 the Court stated in dictum that congressional power in navigable waters is as broad as the needs of commerce,17 thus implying an extension of the rule. Although this proposition has never been tested, it seems clear that Congress does have power to use rivers for watershed im provement, reclamation, flood control and power plants independ ent of any conjectural aid to navigation.18 B. The Nature of the Federal Right. The exercise of a power delegated to Congress is qualified by the requirement that just compensation be paid for property directly taken,19 but this re quireme~t does not extend to the destruction of private pr(')perty in the bed of a river or bay resulting from an act authorized under 12 The courts have indicated that they will seldom overrule a determination by Con gress that a river is navigable, although such a conclusion is ordinarily a judicial function. Arizona v. California, 283 U.S. 423 (1931); Continental Land Co. v. United States, (9th Cir. 1937) 88 F. (2d) 104, cert. den. 302 U.S. 715 (1937). 13 Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508 (1941); United States v. Rio Grande Dam and Irrigation Co., 174 U.S. 690 (1898). 14 Port of Seattle v. Oregon and Washington R. Co., 255 U.S. 56 (1921); United Stares v. River Rouge Improvement Co., 269 U.S. 411 (1926). 15 United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913), was the first case to hold that the United States could sell surplus electric power from its dam to recoup construction and maintenance costs. In Oklahoma ex rel. Phillips v. Guy Atkinson Co., 313 U.S. 508 (1941), the Supreme Court ruled it to be a matter of legislative discretion to authorize a dam to be constructed w.,enty feet higher than necessary in order to provide a power head. 16Arizona v. California, 283 U.S. 423 (1931). 17 United States v. Appalachian Electric Power Co., 311 U.S. 377 (1940). 18 In Kansas v. Colorado, United States Intervenor, 206 U.S. 46 (1907), it was held that the United States had no "inherent sovereign power" in navigable waters as would permit an assertion of a federal right in a reclamation project. But see United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950), where it was held that a reclamation project was within the power of Congress as an exercise of the power to spend for the general welfare. 19 Monongahela Navigation Co. v. United States, 148 U.S. 312 (1893). 1956] COMMENTS 275 the commerce power.20 Even though local law may leave the title to the bed of a stream in the state or give it to the riparian owner,21 such title cannot be asserted against the absolute power of Con gress to legislate for the improvement of navigation.22 Proprie tary interests of the titleholder to the river bed are inferior and subordinate to the paramount right of the United States.23 An exercise of this power which results in damage to property in or under the river is not a taking of private property but an exercise of the power to which the property was always subservient.24 Thus, the United States is said to have a "dominant servitude" in naviga ble waters.26 The courts have frequently used the term "dominant servitude" as a means of describing the navigation right, yet no one would suggest that Congress has a latent property interest in all level ground such as would permit condemnation of land for a military airport without compensation, and it seems illogical to find that power to control navigation gives the government an inherent property interest in rivers.

Load more