Opinion of the Court. 229 U.S. by some extension of their works already in the river, of producing 6,500 horse power. Having decided that the Chandler-Dunbar Company as riparian owners had no such vested property right in the water power inherent in the falls and rapids of the river, and no right to place in the river the works essential to any practical use of the flow of the river, the Government cannot be justly required to pay for an element of value which did not inhere in these parcels as upland. The Government had dominion over the water power of the rapids and falls and cannot be required to pay any hypothetical additional value to a riparian owner who had no right to appropriate the current to his own commercial use. These additional values represent, therefore, no actual loss and there would be no justice in paying for a loss suffered by no one in fact. "The requirement of the Fifth Amendment is satisfied when the owner is paid for what is taken from him. The question is what has the owner lost, and not what has the taker gained." Boston Chamber of Commerce v. Boston, 217 U. S. 189, 194, 195. Neither can consideration be given to probable advancement in the value of such riparian property by reason of the works to be constructed in the river by the Government, or the use to which the flow of the stream might be directed by the Government. The value should be fixed as of the date of the proceedings and with reference to the loss the owner sustains, considering the property in its condition and situation at the time it is taken and not as enhanced by the purpose for which it was taken. Kerr v. Park Commissioners, 117 U. S. 379, 387; Shoemaker v. United States, 147 U. S. 282, 304, 305. The exception taken to the inclusion as an element of value of the availability of these parcels of land for lock and canal purposes must be overruled. That this land had a prospective value for the purpose of constructing a canal and lock parallel with those in use had passed beyond the region of the purely conjectural or speculative. That one or more additional parallel canals and locks would be needed to meet the increasing demands of lake traffic was an immediate probability. This land was the only land available for the purpose. It included all the land between the canals in use and the bank of the river. Although it is not proper to estimate land condemned for public purposes by the public necessities or its worth to the public for such purpose, it is proper to consider the fact that the property is so situated that it will probably be desired and available for such a purpose. Lewis on Eminent Domain, § 707. Boom Co. v. Patterson, 98 U. S. 403, 408; Shoemaker v. United States, 147 U. S. 282; Young v. Harrison, 17 Georgia, 30; Alloway v. Nashville, 88 Tennessee, 510; Sargent v. Merrimac, 196 Massachusetts, 171. Boom Company v. Patterson was this: A boom company sought to condemn three small islands in the Mississippi river so situated with reference to each other and the river bank as to be peculiarly adapted to form a boom a mile in length. The question in the case was whether their adaptability for that purpose gave the property a special value which might be considered. This court held that the adaptability of the land for the purposes of a boom was an element which should be considered in estimating the value of the lands condemned. The court said, touching the rule for estimating damages in such cases: "So many and varied are the circumstances to be taken into account in determining the value of property condemned for public purposes, that it is perhaps impossible to formulate a rule to govern its appraisement in all cases. Exceptional circumstances will modify the most carefully guarded rule; but, as a general thing, we should say that the compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future." In Shoemaker v. United States, supra, lands were condemned for park purposes. In the court below the commissioners were instructed to estimate each piece of land at its market value and that, "the market value of the land includes its value for any use to which it may be put, and all the uses to which it is adapted, and not merely the condition in which it is at the present time, and the use to which it is now applied by the owner; that if, by reason of its location, its surroundings, its natural advantages, its artificial improvement or its intrinsic character, it is peculiarly adapted to some particular use-e. g., to the use of a public park-all the circumstances which make up this adaptability may be shown, and the fact of such adaptation may be taken into consideration in estimating the compensation." The court approved this instruction. The Chandler-Dunbar Company has also assigned as error the denial of any award on account of a portion of Portage Street to which it claimed title. The title to that parcel has never passed out of the United States. It was part of a street laid off by a survey made of the village of Sault Sainte Marie, a town which had grown up on public land of the United States. But that survey was never carried into a patent and the village never accepted this part of the street. Thus abandoned, it was occupied for a time by the Chandler-Dunbar Company, but not long enough to acquire title. The court did not err in holding that the company had acquired no title, and that title was already in the United States. The award to the St. Marys Power Company, as owner of island No. 5 is excepted to. The value of that island was fixed at $21,000. That amount was reached, as shown by the 70th finding of fact, in this manner: a. As a base value, for general purposes, as for $1,000 $15,000 c. As an additional value, by reason of its special suitability for lock or canal purposes". $5,000 This island No. 5, otherwise known as Oshawano Island, is on the American edge of the rapids and below the Chandler-Dunbar property, and opposite that part of the shore belonging to the United States. It has an area of about one-third of an acre. The court found that it had no appreciable water power which was in any sense appurtenant, and so no allowance was made on that account. Because none was made the St. Marys Power Company sued out a writ of error. The reasons which have induced us to deny such an allowance in respect of upland upon the bank of the river, require the assignment referred to to be held bad. The court below held, however, that the island had value in other ways, being those mentioned above. In respect to the allowance of $15,000 as its "strategic value," the court below in its opinion said: "Owing to its location, this property has, and always has had, a strategic value with reference to any general scheme of water development in the river and because it must be included as a tail race site, if not otherwise, in any completely efficient plan of development by any owner, private or public. This value is denied, because it is, as Government counsel say, of the 'hold up' character. It should not be permitted to assume the latter character, nor should the fair strategic value be denied because there might be an attempt at exaggeration or abuse. I fix this so-called strategic value at $10,000 Opinion of the Court. 229 U. S. (afterwards raised to $15,000), and it should be awarded under the circumstances of this case to whomsoever the owner may be." This allowance has no solid basis upon which it may stand. That the property may have to the public a greater value than its fair market value affords no just criterion for estimating what the owner should receive. It is not proper to attribute to it any part of the value which might result from a consideration of its value as a necessary part of a comprehensive system of river improvement which should include the river and the upland upon the shore adjacent. The ownership is not the same. The principle applied in Boston Chamber of Commerce v. Boston, 217 U. S. 189, is applicable. In that case it appeared that one person owned the land condemned subject to servitudes to others. It was sought to have damages assessed upon a bill in which all of the interests joined for the purpose of having a lump sum awarded to be divided as the parties might or had agreed. If this could be done it was agreed that the estate, considered as the sole unencumbered estate of a single person, was worth many times more than if the damage should be assessed according to the condition of the title at the time. This court held that the requirement of compensation when land is taken for a public purpose "does not require a disregard of the mode of ownership. It does not require a parcel of land to be valued as an unencumbered whole." The "Strategic Value" for which $15,000 has been allowed is altogether speculative. It is based not upon the actual market value for all reasonable uses and demands, but the possible worth of the property to the Government. A "strategic value" might be realized by a price fixed by the necessities of one person buying from another, free to sell or refuse as the price suited. But in a condemna |