Statement of the Case. MONONGAHELA NAVIGATION COMPANY v. APPEAL FROM AND ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA. No. 722. Argued October 25, 26, 1892. - Decided March 27, 1893. In the proceedings taken under the act of August 11, 1888, 25 Stat. pp. 400, 411, c. 860, to condemn lock and dam No. 7 of the Monongahela Navigation Company, that company is entitled under the provisions of the Fifth Amendment to the Constitution, to recover compensation from the United States for the taking of the franchise to exact tolls, as well as for the value of the tangible property taken. The assertion by Congress of its purpose to take the property which that company had constructed in the Monongahela River by authority of the State of Pennsylvania did not destroy the franchise granted to the company by the State. Bridge Company v. United States, 105 U. S. 470, distinguished from this case. By the act of August 11, 1888, 25 Stat. 400, 411, c. 860, Congress, among other things, enacted: "The Secretary of War be, and is hereby, authorized and directed to negotiate for and purchase, at a cost not to exceed one hundred and sixty-one thousand, seven hundred and thirtythree dollars, and thirteen cents, lock and dam number seven, otherwise known as 'the Upper Lock and Dam,' and its appurtenances, of the Monongahela Navigation Company, a corporation organized under the laws of Pennsylvania, which lock and dam number seven and its appurtenances constitute a part of the improvements in water communication in the Monongahela River, between Pittsburgh, in the State of Pennsylvania, and a point at or near Morgantown, in the State of West Virginia. And the sum of one hundred and sixty-one thousand, seven hundred and thirty-three dollars and thirteen cents, or so much thereof as may be necessary, is hereby appropriated, out of any moneys in the Treasury not otherwise appropriated, for consummating said purchase, the same Statement of the Case. to be paid on the warrant of the Secretary of War, upon full and absolute conveyance to the United States of the said lock and dam number seven, and its appurtenances, of the said Monongahela Navigation Company. "In the event of the inability of the Secretary of War to make voluntary purchase of said lock and dam number seven and its appurtenances for said sum of one hundred and sixtyone thousand, seven hundred and thirty-three dollars and thirteen cents, or a less sum, then the Secretary of War is hereby authorized and directed to institute and carry to completion proceedings for the condemnation of said lock and dam number seven and its appurtenances, said condemnation proceedings to be as prescribed and regulated by the provisions of the general railroad law of Pennsylvania, approved February nineteenth, eighteen hundred and forty-nine, and its supplements, except that the United States shall not be required to give any bond, and except that jurisdiction of said proceedings is hereby given to the Circuit Court of the United States for the Western District of Pennsylvania, with right of appeal by either party to the Supreme Court of the United States: Provided, That in estimating the sum to be paid by the United States, the franchise of said corporation to collect tolls shall not be considered or estimated; and the sum of five thousand dollars, or so much thereof as may be necessary, is hereby appropriated, out of any moneys in the Treasury not otherwise appropriated, to pay the necessary costs of said condemnation proceedings; and upon final judgment being entered therein the Secretary of War is hereby authorized and directed to draw his warrant on the Treasury for the amount of said judgment and costs, and said amount for the payment thereof is hereby appropriated out of any moneys in the Treasury not otherwise appropriated. And when said lock and dam number seven and its appurtenances shall have been acquired by the United States, whether by purchase or condemnation, the Secretary of War shall take charge thereof, and the same shall thereafter be subject to the provisions of section four of an act, entitled 'An act making appropriations for the construction, repair and preservation for certain public work on rivers Statement of the Case. and harbors, and for other purposes,' approved July fifth, eighteen hundred and eighty-four." The effort at a voluntary purchase failing, on December 1, 1888, proceedings of condemnation were commenced in the Circuit Court of the United States for the Western District of Pennsylvania. Viewers were appointed, who reported the value of the lock and dam number seven to be $209,393.52. Such valuation did not take into account the franchise of the company to collect tolls. An appeal was taken, as provided by the statutes of Pennsylvania, which appeal gave the right to a trial de novo, according to the course of the common law. A jury having been waived, the matter was tried before the court, the Navigation Company being the plaintiff as to the question of amount of compensation. These facts appeared on the trial: "In 1836, the State of Pennsylvania incorporated and by acts in that and subsequent years granted to the Monongahela Navigation Company the right 'to enter upon the said river Monongahela and upon the lands on either side, and to use the rocks, stone, gravel or earth which may be found thereon in the construction of their works, and to form and make, erect and set up any dams, locks or any other device whatsoever which they shall think most fit and convenient, to make a complete slack-water navigation between the points herein mentioned, to wit: the city of Pittsburgh and the Virginia State line.' "The Monongahela River rises in the mountains of West Virginia, flows northwardly through Pennsylvania to Pittsburgh, where it forms a junction with the Allegheny and Ohio Rivers. "In pursuance of its charter the Navigation Company, between 1841 and the present time, has constructed in said river seven locks and dams, which together now carry the slack-water navigation as far as the West Virginia State line. "Prior to the construction of said company's works, that is to say, prior to the year 1841, the navigation of the Monongahela River was conducted altogether in small vessels, including small steamboats of not exceeding a tonnage of fifty Statement of the Case. tons, which could not ascend the river at all seasons, but only during limited periods, depending on the rise in the river. The trade or commerce on said river, prior to its improvement by said company's works, was small, particularly in the article of coal, for which the river in its natural condition did not furnish sufficient harbors or places of shipment at all seasons of the year; but by the construction and maintenance of said company's works there has been created an existing navigation for large steamboats at all seasons of the year, and facilities for a large commerce, particularly in the article of coal, of which there is now transported in a single day as much as was, before the construction of the company's works, transported in an entire year. "The construction of the lock and dam No. 7, the property attempted to be appropriated in this proceeding, by the Monongahela Navigation Company, was begun in the year 1882 and completed in 1884, being the last one built, and completing the company's improvements in the State of Pennsylvania. "The work was commenced under the following circum stances: "It was provided by an act of the legislature of Pennsylvania, constituting a supplement to the company's charter, approved April 8, 1857, that whenever the construction of sufficient locks and dams to extend the slack water on the Monongahela River from the Pennsylvania State line to Morgantown, in Virginia, shall have been commenced, it shall be the duty of the Monongahela Navigation Company to commence the construction of lock and dam No. 7 in such manner and on such plan as will extend the navigation from its present terminus to the Virginia State line, and complete the same simultaneously with the completion of the work extending to Morgantown.” On March 3, 1881, Congress passed an act, 21 Stat. 468, 471, c. 136, among other things appropriating $25,000 for improving the Monongahela River in West Virginia and Pennsylvania with this proviso: "But this sum shall not be expended until the Monongahela Navigation Company shall have undertaken in good faith the Statement of the Case. building of lock and dam number seven at Jacob's Creek, and until said company shall, in manner satisfactory to the Secretary of War, give assurance of their ability and purpose to complete the same." After the passage of this act, and on March 24, 1881, Colonel Wm. E. Merrill, the engineer and officer in charge of the public works of the United States on the river Monongahela, addressed this letter to the Navigation Company: "U. S. ENGINEER'S OFFICE, CUSTOM-HOUSE, "CINCINNATI, O., March 24, 1881. "Hon. J. K. MOORHEAD, President Mon. Nav. Co., Pittsburgh, Pa. "SIR: The last river and harbor bill contains the following appropriation: 666 Improving Monongahela River, West Virginia and Pennsylvania, $25,000, but this sum shall not be expended until the Monongahela Navigation Company shall have undertaken in good faith the building of lock and dam number seven, at Jacob's Creek, and until said company shall, in manner satisfactory to the Secretary of War, give assurance of their ability and purpose to complete the same." "You will, therefore, see that my work on number eight is wholly dependent on your work on number seven. "I have, therefore, to urge on your company that you will, at the earliest date possible, undertake in good faith the building of lock and dam number seven,' and that you will give the Secretary of War satisfactory assurance of your ability and purpose to complete it. "I would, therefore, suggest that it might be useful for your secretary to communicate at once to the Secretary of War such facts as to the financial resources of the company and its intentions about number seven as will satisfy him on the points specially left to his discretion, and unlock the appropriation so that it may be used this summer. "Respectfully, your obedient servant, |