The compensation to be awarded under the Fifth Amendment for an
actual physical taking of a part of a distinct tract of land
includes not only the market value of the part appropriated, but
the damage to the remainder resulting from such taking, embracing
injury due to the use to which the part appropriated is to be
In this case, held
that such damage to the
unappropriated portion of the tract included that caused by cutting
off access therefrom to the public road by flooding the land
In determining the total amount of damages for land appropriated
and for damages to remainder, the trial court may divide the total
award and specify the amounts for each element of damage, and it is
not error if the total award represents the difference between the
value of the entire tract before the taking and that of the
remainder after the taking. A less sum would not be the just
compensation which the Fifth Amendment prescribes.
The facts are stated in the opinion.
Page 219 U. S. 181
MR. JUSTICE LURTON delivered the opinion of the Court.
Action by the owners of a farm for a taking of a part thereof by
the United States for public purposes. Judgment for the plaintiffs
The farm of the defendants in error lies upon Tates Creek, a
tributary of the Kentucky River. For the purpose of improving the
navigation of that stream, the government
Page 219 U. S. 182
has erected a series of locks and dams. As a consequence, the
waters of Tates Creek are backed up to such an extent as to flood
or submerge a strip of the Grizzard farm, permanently destroying
its use for agricultural purposes. The court below, a jury being
waived, found that seven and a half acres of land had been actually
taken. He then added:
"1. That in addition there is taken an easement of access from
plaintiff's land by way of the county road to the Tates Creek
"2. That the whole land was worth $3,000 before said taking, and
what was left after the taking was worth $1,500."
"3. I divide the damage by reason of the taking between the land
taken and the easement of access, taken equally; i.e.,
allow $750 for the land taken, and a like sum of $750 for the
easement of access taken."
"I therefore conclude as a matter of law that plaintiffs are
entitled to a judgment for $1,500."
The errors assigned relate only to so much of the judgment as
allows damages for the "easement of access," referred to in the
findings above set out. That there was a taking by flooding
permanently the seven and a half acres, valued at $750 by the court
below, is not contested. Pumpelly v. Green
13 Wall. 166; United States v. Lynah,
188 U. S. 445
United States v. Welch, 217 U. S. 333
High Bridge Lumber Co. v. United States,
69 F. 323.
The contention is that the "easement of access" destroyed, and
therefore taken, was not a private right of way constituting
property such as that for which compensation was allowed in
United States v. Welch,
but was a public county road, and
reference has been made to the well known class of cases touching
an injury to land not taken by the construction of a railroad along
and upon an abutting public road, or a change of grade, to the
Page 219 U. S. 183
of adjacent property, and like indirect injuries to the use of
property adjacent, but of which no part was taken from the owner.
Transportation Co. v. Chicago, 99 U. S.
; Sharp v. United States, 191 U.
But here there has been an actual taking by permanently flooding
a part of the farm of the defendants in error. An incident of that
flooding is that a public road running across the flooded land is
also flooded. But if this were not so, and the roadway had simply
been cut off by the interposition of the flooded portion of the
farm, the damage would be the same. Since therefore there has been
a taking of a part of the owners' single tract, and damage has
resulted to the owners' remaining interest by reason of the
relation between the taken part and that untaken, or by reason of
the use of the taken land, the rule applied in the cases cited does
not control this case.
That the petition laid stress upon the flooding of the highway
which crossed the flooded land, and sought to recover for a
deterioration of an easement in the public road, is not fatal. The
damage to the land not appropriated is the obvious consequence of
the taking of a part of the whole by flooding -- a manner of
appropriating which has made the village market, church, and school
so inconvenient of access as to add some three miles of travel by
an unimproved and roundabout country road. Whenever there has been
an actual physical taking of a part of a distinct tract of land,
the compensation to be awarded includes not only the market value
of that part of the tract appropriated, but the damage to the
remainder resulting from that taking, embracing, of course, injury
due to the use to which the part appropriated is to be devoted.
Thus, in Sharp v. United States, 191 U.
, 191 U. S. 353
damage resulting to adjacent but distinct parcels was denied
because there had been no actual appropriation of any part of such
separate parcel, but the principle was conceded as to injury, from
the character of the
Page 219 U. S. 184
use of that taken, to that untaken, of the same tract. Upon this
distinction, the Court said:
"Upon the facts which we have detailed, we think the plaintiff
in error was not entitled to recover damages to the land not taken
because of the probable use to which the government would put the
land it proposed to take. If the remaining land had been part of
the same tract which the government seeks to condemn, then the
damage to the remaining portion of the tract taken, arising from
the probable use thereof by the government would be a proper
subject of award in these condemnation proceedings. But the
government takes the whole of one tract."
To the same effect, see
Limitations, pp. 565, 566.
There is nothing in United States v. Welch,
above, which conflicts with the conclusion we have reached, but,
upon the contrary, the trend of the opinion is toward the decision
The constitutional limitation upon the power of eminent domain
possessed by the United States is that "private property shall not
be taken for public use without just compensation." The "just
compensation" thus guaranteed obviously requires that the
recompense to the owner for the loss caused to him by the taking of
a part of a parcel, or single tract of land, shall be measured by
the loss resulting to him from the appropriation. If, as the court
below found, the flooding and taking of a part of the plaintiff's
farm has depreciated the usefulness and value of the remainder, the
owner is not justly compensated by paying for only that actually
appropriated, and leaving him uncompensated for the depreciation
over benefits to that which remains. In recognition of this
principle of justice, it is required that regard be had to the
effect of the appropriation of a part of a single parcel upon the
remaining interest of the owner, by taking into account
Page 219 U. S. 185
both the benefits which accrue and the depreciation which
results to the remainder in its use and value. Thus, in Bauman
v. Ross, 167 U. S. 548
167 U. S. 574
it is said:
"Consequently, when part only of a parcel of land is taken for a
highway, the value of that part is not the sole measure of the
compensation or damages to be paid to the owner; but the incidental
injury or benefit to the part not taken is also to be considered.
When the part not taken is left in such shape or condition as to
be, in itself, of less value than before, the owner is entitled to
additional damages on that account. When, on the other hand, the
part which he retains is specially and directly increased in value
by the public improvement, the damages to the whole parcel by the
appropriation of part of it are lessened."
In Sharp v. United States, 191 U.
, 191 U. S. 354
and High Bridge Lumber Co. v. United States,
69 F. 320,
323, as well as in United States v. Welch, supra,
principle is recognized as settled law.
Both the petition and the finding show that access to the public
road has been cut off by the intervention of flooded land actually
That the trial judge found the damages for the land and for the
easement of access separately is not controlling. The determining
factor was that the value of that part of the Grizzard farm not
taken was $1,500, when the value of the entire place before the
taking was $3,000. A judgment for a less sum will not be that "just
compensation" to which the defendants are entitled. The case is not
different in legal consequence from what it would have been if a
railway had been constructed across one's lawn, cutting the owner
off from his road and outbuildings, etc. To say that such an owner
would be compensated by paying him only for the narrow strip
actually appropriated, and leaving out of consideration the
depreciation to the remaining
Page 219 U. S. 186
land by the manner in which the part was taken, and the use to
which it was put, would be a travesty upon justice.