The extent to which private property shall be taken for public use rests wholly in the legislative discretion.[265] Whether the courts have power to review a determination of the lawmakers that a particular use is a public use was left in doubt by the decision in United States ex rel. T.V.A. v. Welch.[266] Speaking for the majority, Justice Black declared: "We think that it is the function of Congress to decide what type of taking is for a public use * * *"[267] In a concurring opinion in which Chief Justice Stone joined, Justice Reed took exception to that portion of the opinion, insisting that whether or not a taking is for a public purpose is a judicial question.[268] Justice Frankfurter interpreted the controlling opinion as recognizing the doctrine that "whether a taking is for a public purpose is not a question beyond judicial competence."[269] All agreed that the condemnation of property which had been isolated by the flooding of a highway, to avoid the expense of constructing a new highway, was a lawful public purpose. Previous cases have held that the preservation for memorial purposes of the line of battle at Gettysburg was a public use for which private property could be taken by condemnation;[270] that where establishment of a reservoir involved flooding part of a town, the United States might take nearby property for a new townsite and the fact that there might be some surplus lots to be sold did not deprive the transaction of its character as taking for public use.[271]
RIGHTS FOR WHICH COMPENSATION MUST BE MADE
The franchise of a private corporation is property which cannot be taken for public use without compensation. Upon condemnation of a lock and dam belonging to a navigation company, the Government was required to pay for the franchise to take tolls as well as for the tangible property.[272] Letters patent for a new invention or discovery in the arts confer upon the patentee an exclusive property for which compensation must be made when the Government uses the patent.[273] The frustration of a private contract by the requisitioning of the entire output of a steel manufacturer is not a taking for which compensation is required.[274] Where, however, the Government requisitioned from a power company all of the electric power which could be produced by use of the water diverted through its intake canal, thereby cutting off the supply of a lessee which had a right, amounting to a corporeal hereditament under State law, to draw a portion of that water, the latter was awarded compensation for the rights taken.[275] An order requiring the removal or alteration of a bridge over a navigable river, to abate the obstruction to navigation, is not a taking of property within the meaning of the Constitution.[276] The exclusion, from the amount to be paid to the owners of condemned property, of the value of improvements made by the Government under a lease, was held constitutional.[277] An undertaking to reduce the menace from flood damages which was inevitable but for the Government's work does not constitute the Government a taker of all lands not fully protected; the Government does not owe compensation under the Fifth Amendment to every landowner whom it fails to or cannot protect.[278]
When Property is Taken
According to the Legal Tender Cases,[279] the requirement of just compensation for property taken for public use refers only to direct appropriation and not to consequential injuries resulting from the exercise of lawful power. This formula leaves open the question as to whether injuries are "consequential" merely. Recent doctrine embodies a more definite test. In United States v. Dickinson,[280] the Supreme Court held that property is "taken" within the meaning of the Constitution "when inroads are made upon the owner's use of it to an extent that, as between private parties, a servitude has been acquired either by an agreement or in course of time."[281] Where the noise and glaring lights of planes landing at or leaving an airport leased to the United States, flying below the navigable air space as defined by Congress, interfere with the normal use of a neighboring farm as a chicken farm, there is such a taking as to give the owner a constitutional right to compensation.[282] That the Government had imposed a servitude on land adjoining its fort so as to constitute a taking within the law of eminent domain may be found from the facts that it had repeatedly fired the guns of the fort across the land and had established a fire control service there.[283] A corporation chartered by Congress to construct a tunnel and operate railway trains therein was held liable for damages in the suit by an individual whose property was so injured by smoke and gas forced from the tunnel as to amount to a taking of private property.[284]
Navigable Waters
Riparian ownership is subject to the power of Congress to regulate commerce. When damage results consequentially from an improvement of a navigable river, it is not a taking of property, but merely the exercise of a servitude to which the property is always subject.[285] What constitutes a navigable river within the purview of the commerce clause often involves sharply disputed issues of fact and of law. In the leading case of The Daniel Ball[286] the Court laid down the rule that: "Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water."[287] In 1940, over the dissent of two Justices, the Court held that the phrase "natural and ordinary condition" refers to volume of water, the gradients and the regularity of the flow. It further held that in determining the navigable character of a river it is proper to consider "the feasibility of interstate use after reasonable improvements which might be made."[288] A few months later it decided unanimously that Congress may exercise the power of eminent domain in connection with the construction of a dam and reservoir on the nonnavigable stretches of a river in order to preserve or promote commerce on the navigable portions.[289]
The Government does not have to compensate a riparian owner for cutting off his access to navigable waters by changing the course of the stream in order to improve navigation.[290] Where submerged land under navigable waters of a bay are planted with oysters, the action of the Government in dredging a channel across the bay in such a way as to destroy the oyster bed is not a "taking" of property in the constitutional sense.[291] The determination by Congress that the whole flow of a stream should be devoted to navigation does not take any private property rights of a water power company which holds a revocable permit to erect dams and dykes for the purpose of controlling the current and using the power for commercial purposes.[292] The interest of a riparian owner in keeping the level of a navigable stream low enough to maintain a power head for his use was not one for which he was entitled to be compensated when the Government raised the level by erecting a dam to improve navigation.[293] Inasmuch as a riparian owner has no private property in the flow of the stream, a license to maintain a hydroelectric dam, may, without offending the Fifth Amendment, contain a provision giving the United States an option to acquire the property at a value assumed to be less than its fair value at the time of taking.[294]
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 "canalizing" 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 easement 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 constitutional 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]