The case continues: The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject.
Flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control.
Water power development from dams in navigable streams is from the public's standpoint a by-product of the general use of the rivers for commerce.
The Congressional authority under the commerce clause is complete unless limited by the Fifth Amendment.Under the Rands rule, when the federal government condemns land on or near a navigable waterway, it has no obligation to pay the full measure of just compensation to the landowner.
It unmistakably provides that, notwithstanding Rands, when property above the high-water mark is condemned for any of several specified purposes, the landowner is entitled to compensation for the part taken, under the same constitutional rules that are applicable in the non-riparian context.
The dike cut the riparian owner off from direct access to deep water, and he claimed that his rights had been invaded and his property taken without compensation.
It is a qualified title, a bare technical title, not at his absolute disposal, as is his upland, but to be held at all time subordinate to such use of the submerged lands and of the waters flowing over them as may be consistent with or demanded by the public right of navigation.So unfettered is this control of Congress over navigable streams of the country that its judgment as to whether a construction in or over such a river is or is not an obstacle and a hindrance to navigation is conclusive.
In U. S. v. Chandler-Dunbar Water Power Co.,[17] the government acquired upland property located on the St. Mary's river, the outlet of Lake Superior.
So, also, it may permit the construction and maintenance of tunnels under or bridges over the river, and may require the removal of every such structure placed there with or without its license, the element of contract out of the way, which it shall require to be removed or altered as an obstruction to navigation.In United States v. Commodore Park,[18] the United States had dredged a tidewater navigable bay and deposited the dredged materials in a navigable arm of the bay called Mason Creek.
The Court stated that "The broad question presented is whether the Fifth Amendment requires the government to compensate an owner of residential property contiguous to the creek, whose fast lands, though not physically invaded, were decreased in market value."
Whether this blocking be done by altering the stream's course, by lighthouses, jetties, piers, or a dam made of dredged material, the government's power is the same and in the instant case is derived from the same source-its authority to regulate commerce.
Since the judgment awarded rested entirely upon the conclusion that respondent's property had been taken by 'filling and closing Mason Creek', and since all of respondent 'riparian rights' were subordinate to the government's power to close the stream, the judgment is reversed.In United States v. Dickinson[19] the Supreme Court considered the consequences of construction of the Winfield Dam, South Charleston.
The Court rejected that contention: Property is taken in the constitutional sense when inroads are made upon an owner's use of it to an extent that, as between private parties, a servitude has been acquired either by agreement or in course of time.
The Supreme Court has found a taking when a Government project directly subjects land to permanent intermittent floods to an owner's damage.
[24] The Court's decision begins with some historical context: To enjoy the promise of its fertile soil in safety has, for generations, been the ambition of the valley's occupants.
Until 1883, piecemeal flood protection for separate areas was attempted through uncoordinated efforts of individuals, communities, counties, districts and States.
Experience demonstrated that these disconnected levees were utterly incapable of safeguarding an ever increasing people drawn to the fertile valley.Eventually, the Corps of Engineers came to recognize that not all reaches of the river could be protected.
Upon the assumption that there might be floods of such proportions as to overtop the river's banks and levees despite all the Government could do, this plan was designed to limit to predetermined points such escapes of floodwaters from the main channel.
Additional 'guide levees' were to be constructed to confine the diverted flood waters within limited floodway channels leading from the fuse plugs.
The suggested fuse plug which respondent claims would damage her property was to be at Cypress Creek, within two to two and one-half miles of her land, and her land lies in the path of the proposed floodway to stem from this particular fuse plug.The Supreme Court rejected the contention that landowners exposed to sporadic flooding as a result of this flood control plan were constitutionally required to compensation: An undertaking by the Government to reduce the menace from flood damages which were inevitable but for the Government's work does not constitute the Government a taker of all lands not fully and wholly protected.
When undertaking to safeguard a large area from existing flood hazards, the Government does not owe compensation under the Fifth Amendment to every landowner which it fails to or cannot protect.
... .The far reaching benefits which respondent's land enjoys from the Government's entire program precludes a holding that her property has been taken because of the bare possibility that some future major flood might cause more water to run over her land at a greater velocity than the 1927 flood which submerged it to a depth of fifteen or twenty feet and swept it clear of buildings.
"But if governmental activities inflict slight damage upon land in one respect and actually confer great benefits when measured in the whole, to compensate the landowner further would be to grant him a special bounty."
This is not quite accurate, even as to the first part of Section 111, because Congress cannot abrogate or "set aside" or "repeal" a decision of the Court regarding the government's obligations under the Just Compensation Clause.