# Petition for a Writ of Certiorari and Brief in Support Thereof — Grand River Dam Authority v. Grand-Hydro > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386406_0075%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari and Brief in Support Thereof - **Published:** January 1, 1949 - **Citation:** 335 U.S. 359 ## Text ie . oe | Ceaer : ; t -, £+73 ff) : f ‘ | K it le 4 i , ar a Shee SUPREME COURT OF THE UNITED STATES - OCTOBER TERM, 1947 a GRAND RIVER DAM AUTHORITY, A PUBLIC COR- PORATION, Petitioner, : vs. = “GRAND. HYDRO, A Private Convonation, Poe a PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF a : AND BRIEF be SUPPORT THEREOF. Quince B. Boypstuy, Detmas E. Martin,” Rosert Leander Davipson, ‘y Counsel for Petitioner. ge . Respondent INDEX : cee SuBseEct Inpex’. , ® a) , ; - Petition for writ of cattiocart Summary statement of the eibbar invelved A Statement of points relied upon by petitioner. . _ Grounds for believing that the questions pre- sented are stibstantial and that the writ ap- plied for.should be granted. ~ «Br ief in support of petition Opinion below... 2... Jurisdiction——... 2... . wes "Specification ‘of errors eae eee sea droae Argument _.... x a he ye Arid States doctrine of water rights pre-. ’ vails in Oklahoma. ..... ptt ine arth rel ores Applicable Federal.laws..00.4 0000.00... eS Adaptability for dam site use cee be con- sidered in fixing just compensation. . Section 27—Federal Power Act......°.... * > Seetion 10(¢)—Federal Power Act... i Appandix A—Opinion of Supremé Court of Oklahoma, NO Fey ee ee te eee Appendix B—Opinion of Supr eme Cour t of Oklahoma, case N 0. reel OB MD Hi te SO ee) a eee SA ee eg a PSR Cee be ors Cae We Tap OF Cases Hives 606. 3 Alabama ‘Power Co. v. Smith, 299 Ala, 105, 155 So. 601 ie i a ek a 7 oe ar Oh ae ee a ey cae me ie Avian v. S Caliacdia: 283 U, 8. 423, 76 L. Ed.-1154 Belden vy. Chase, 150 U. S..674.* Bellows. Falls Hydro-ele etric "Corp. | petition of, 47 Atl. (2d) 409. ‘Alabama Power Co. v. Gulf Power Co., 283 Ped. : esa oe . ay INDEX | : : ai Page» a Board of Counts Comsiees. v. Smith, 47 Okla, 184, 14% -. Pac. 11) ..; 26. Ceirtral Pacific Railroad Co 0. V. , Pearson, 35 ( ‘al. 247 «6-14, 34 Claflin v. Houseman, 93 U;S. 130, 23 L. Ed. 833 26 Continental Land v. United States, 88 I. (2d) 104 17, 34° Corrigan Transit Co. v. Sanitary District of ¢ ‘hicago, 137 Fed. 851... .. aie - 15, 28,37 Creswill v.. Grand Lodge, 295 U. S. 246; 56 L. Kad. aa ON ee ee a te 32 First Iowa Hydro-Electric Cooperative v. Federal © Power viata 328 U. S. .152, ad L. Ed. 1143, 13, 14, 15, 16, 17, 19, 20 ‘Garvet Moore- Mevoied Co., 317 U. 8.239. -..- 19° Georgia Power Co. v. Federal Powe rCommn., 152 F. | Pe fs es ks dey 20s 32 ~-.Grand- Hydro v. Grand River Dam’ Authority, 192 Okla. 693, 139 Pv (2d) 798 |. 3,8, 14, 17, 34 Grand River Dam Aainory: v: oe 29 Fed. Supp. : a ALE Runt area cat crt he a re os 4G, 20,20, 33 ‘Great Northern v. Washington, 300 U.S. 154, 81 L. : Kd. ‘HT3 - Sse ay a Rawat as een tape aes Aree. ee acd oie! 31 ‘Hines v. Lowrey, 305 U.S. 85, 83 L. Ed. 56 re - - 26 Humpieh’ s Trustees v. Louisville Gas and Electric - Co., 269 WO se eee | S.-i ( Ninos Steel Co,v. B.&: O. R. Co. , 320 U. §..508 19 Kansas City Southern y. VAC. HH, Albers Commn. : Co., 223 U. S. 573,56. Ed.556 ea Lae Rapid. Transit R.. R. Co. v. City of- Law- ton, 31 Okla, 458,122 P.212 | 3, 14, 34 _ Leo Feist, In¢., v. Young, 138 F. (2d) 972 26: Lousville Hydroelectric Co. v. Coburn, ‘ 270 Ky. 631, | 110 S. W, (2d). 445 15, 36 ’ Niagara Falls Power Co. v. Fede ral Powe yr Commn.; 137 F:, (2d) 787 : \ 13, 14, 15, 33, 35 Norris v. Alabama, 294 U.S. 587, 79 L. Ed: 1074 — .. 31 - Northern Pac. Ry. vy. North Dakota, 236 U, S.565.1.: - 22 Oklahoma, ex rel. Phillips y. Guy F. Atkinson €o., 313 U.S. 508, 85.L. Ed. 1487 13, 15, 16, 32 Olson v. United States, 292 U. 8.246, 78 L. Ea. | 7 ain eemect. eee 14,17 e ‘ . nm ¥ . Fed. 877 ... ».' 14; 34 . ; United States v. Bre we ver-Elliot! Oil Gus Co., 249 | ~ Fed. 609 | rs a United States v.C handler- Dunbar W ‘ate r Power Co... 229 U.S. 53, 57 L. Ed. 1063... . ..... ar - 14,17, 34 United States v. Mackey; 214 Fed. 137 eee 16, 26 United “gigs v. Miller, 317 U. S. 369, a4 L. Ed. 336, 47 ALR. 56 .::... 37 d'nited States v. Pink. 315 U.S 5. 203, 86 L. Ka. 796 31 United. States vRio Grande Dem ‘and Irrigation Co., 174 U.S. 690, 43.L. Ed. 1136 ~ 13, 1619, 26, 32 " ‘Wisconsin v. Illinois, 278 U. S. 867, 73 i Ed. 423, 13, 16, 19, 32° Wisconsin Public Service Corp. \ . Federal Power Commn.; 147 F. (2d) 743 : 1:3, 15, 33, 35 \ i ° - SraTuTEs Cirep _ Act of March 3; 1899 (30 Siat, ees. Se Act of August 18, 1941 (55 Stat. 638, 645) 2. 27, 30 Act of Oklahoma Legislature (S. L. 19335, Art IV, Ch. | 70; 82 O. S.A. $$ 861-881) ~~ | ’ ere Acts.of Regular Session of Eleventh Legislature of ° Oklahoma, Cap. 70, asamended = 11: a 7 » . ‘a e iv | . | INDEX’. im | ei Orne i ais | Constitution ofthe United States: ” Page Article I, See. & Clause 30. .. # WN,.12,-13, 5 “Article I, Sec. 8, Clause 18. | - 1P, 12, 13, e Article V1, Clause 2 ne -. 35,14 Federal Water Power Act.of June. 10, 1920,-41 Stat. 1063, as amended by Act of August 26, 1935, 49 Stat. t. we me Te Meee et 13, lo, 16,17, 24 Flood Control. Act of June 22, 1936 (49 Stat. 1570, © A RE oe ES ce 30 Flood Control Act of June 28, 1938, 32 Stat. 12 15, Eads ‘ Fenrir Judicial Code, See. 237, as sumendea. a 18, 19, 22. Revised—hLaws of Oklahoma 1910, Chap... 40, as , amended ........-— | ' Rivers and Harbors Act- ge: January 2, 1927 (44 Stat. 1010, 1015) ..... eee . 16, 30 Rivers and Harbors Act.of deceit 3, 1935 (49 Stat. A, Ook _> 40) SS ni SORT 30 Riv ers and athens Act of August 18,. 1941 (55 Stat. en Gee bas see 16 Water Code of State of Oklahoma (8. + 1905, p. 275), as amended SO See pits Pe aaa giiss eee 3 Orner AvutrHority Crrep - House Decnment No. 107, ‘76th Congress First Ses- Pe egbe sion SD) Se eran shee TR ~ 10, hg 27 , 30° 5 ag “ ee] SUPREME COURT OF THE: UNITED: statis | OCTOBER: TERM, 1947 oa, | oe Rages No. 379° | GRAND RIV ER DAM ‘AUTHORITY, : PUBLIC COR- PORATION, ae | aed : : Petitioner, spas aad HYDRO, A PRIVATE. Conrozanion, Respondent - PETITION Hon a: were OF CERTIORARI 1 REQUIR. ING THE SUPREME COURT OF THE STATE OF OKLAHOMA TO CERTIFY TO THE SUPREME COURT OF THE UNITED STATES FOR ITS REVIEW AND DETERMINATION THE CASE OF GRAND RIVER DAM AUTHORITY, A PUBLIC CORPORA- . TION, PLAINTIFF IN ERROR, v. GRAND-HYDRO,——— A PRIVATE CORPORATION, . DEFENDANT: IN | ERROR, No. 32,399, ON THE DOCKET OF THE STATE ———— couRT. ~ To the Wenbrable Fred M. Vinson, Chief Justice of the ; —~ > IV. Wah ag ; ‘Specification of Errors . The errors of the Supreme Court of Oklahoma relied upon .— for reversal of its judgment in this case are set forth in the 93° Petition for W rit of Cc ixtionéat under “Statement of Points Relied Upon by Petitione r’? and are adopted by reference asa a part of this brief. ; . ‘ | aes _ ARGUMENT Arid States Bn 2 Water Rights Prevails in Oklahoma ' Under’ the statute law of Oklahoma, water flowing in a definite stream belongs to the public and a riparian owner -ean not prevent the natural flow fhereof (60 O.S.A., sec. 60), and tlre right to put such watér to a beneficial use can be acquired only through’ compliance with the Water Code.of the State (82 0.8.A., See: 1, et.seqg.), as amended by pections 2 and 3 of the Act of the Oklahoma Legislature, approved * Janus ary 27, 1927 (S.L. 1927, p. 91). The respondent applied for and obteinda its water set to construct, maintain, and operate its proposed hydroelectric project on’ Grand | River in Okinhows under” and purauant to these State statutes. "Applicable Federal’ Laws ‘ Under -Clause 3 of Section 8, Article I, of the Federal “‘tnstitution, it is provided that the Congress shall have _ Power to Regulate Commerce with foreign nations, and among the several states, and with the Indian tribés, Un-. der Glause 18 of said section and article of the C onstitu- tion, the Congress is authorized to make all laws which shall : be necessary and proper for carrying into execution such , pawns, = ens Under Clause 2 of Article VI of the Federal Constitution it is provided: «This Constitution, and the laws of the United States which shall ‘be made in pursuance thereof, * * * shall be the supreme law of the land; and the- judges i in ev ery. “4 : state shall be bountl thereby ainfthing in the: constitu-: tion or ‘laws of any state to the contrary notwithstand- ae o ine, a : a, + _ Under authority of Clauses'3 and 18 of Section 8 of. Article I of the Federal Constitution, the Congress enacted, the Federal Water Power Act of June 10, 1920 (41 Stat. 1063), and the EF ederal Power Act of Augast ~~ 1935" (49_ Stat 836). Under Section -£(e) of the Federal Power Act (16 U.S.C.A- 797), the Federal Power ( ommission is authorized and empowered to issue licenses to citizens of the United ‘ States, or to any association of such citizens, or to any ' corporation organized under the laws of the U nited States or any state thereof, or to any’state or “municipality for. the purpose of constructing, operating, and maintaining hydro- °° . electric projects in any stream or other body of water over which Congr ess has. jurisdiction under its author ity to reg- ulate commerce with foreign nations and’ among the several states, and under Section 23(b) of the Federal Power, Act. (16 ULS.C.A. 817) it is madeé“unlawful for any such person, | eorporation, state or mupiicipality, for the purpose-of devel: ‘oping electric power, to construct, operate, or maintain any project works i in any such stream without applying for and receiving from the Federal Power tegration license therefor. k Sertign?25(b) of the Federal Powe er Act (16 U.S,C.A. 817) we provides that: fe: tarp “Tt shall be: unlawful for any, person, state, or munic- ipality,, for the purpose. of deve loping electric power, to construct, operate-or maintain any dam, water con- duit, reservoir, power house, or other works incidental — thereto-across, alony, or in any_of the navigable waters of the U nited States, or upon any part of the public lands or reservations of the United -States (including the territories), or utilize the surplus water -or water ‘ i ae o 25 power fromfany Government dam, except under and in accordance with the terms of a permit or valid existing right-of-way granted prior to June 10, £920, or a license granted pursuant to this chapter. Any.‘ person, associa- tion, corporation). stafe,.or municipality intending to ‘ construct a dam or other project works across, along, over, or In any stream or part thereof, other than those defined in this chapter as navigable waters, and pv eB which Congress. has jurisdiction under.its author ity to regulate commerce with foreign nations and among the several states'shall before such construction file declara- ® tion of such intention with the Commission, whereupon. ‘the Commission shall cause immediate investigation of - such proposed construction to be made, and: if’upon in- vestigation it shall find that the interests of interstate or foreign commerce would be affected by such proposed construction, such person, association, corporation, state, or municipality shall not construct, maintain, or operate such dam or other project works until it shall have applied for and shall have received a license under the provisions of this chapter. . If the Commission shall not so find, and if nd-publie lands or reservations are _ affected, permission is hereby granted to construct such dam or other project works in such stream upon com. pliance with state laws.’’ “ : % ; ; The Congress, in the Federal Power Act, set up and con- stituted the Federal Power Commission as an administra- tive agency to determine, as oceasion therefor arose, whether a particular stream sought to be utilized for power _ purposes, is such a stream as Congress has. jurisdiction over . under. the Commerce Clanse, laid down a‘formula to guide ‘the Federal Power ‘omission i in making such determina- . tion, that is, whetlier or not such use of the stream would affect the navigable capacity of any navigable waters of the United States and thereby affect the interests af interstate ‘or foreign commerce, and prohibited the use of such waters ‘for power purposes except in compliance with said act. ff . ae ae re} Ke 26 | | The laws of .the United States are laws of the several states, and just as much binding on citizens and courts thereof as the state laws are. ( ‘laflia v. Houseman, 93 U.S. 130, 23 L. ed. 833; 838 ; Hines v. Lowrey, 305 U.S: 85,°83 Le ed. 56. cu | - When-a Federal statute condemns an act as unlawful, the extent and nature of the legal consequences of the condem- nation are Federal questions, the answers to which are con- _ trolled by Federal law and Federal policy. To the Federal statute and poliey, conflicting state law and policy must _ yield. Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 87 L. Ed. 165;.Leo Feist, Inc., v. Young, 138 F (2d) 972. ~ Grand River is Subject to Federal Control The Grand River in Oklahoma is such a stream as Con: cress has control over under the Commerce Clause of the Federal Constitution. It isa non- navigable stream, except for two miles up the rive# from its mouth; although it might well be considered navizable under the ruling of the United States Supreme Court in United States v./ Appalachian Electric Power Co., 311 U. 8. 377, 85 L. Ed. 243. It is, however, a principal and immediate tributary to the Arkan- sas River, which is a navigable water of the United States all the way up to the mouth of the Grand River. The Court will take judicial: knowledge. of the fact that the Arkansas ‘River is a navigable water of the United. States up to the | mouth of Grand River, and that Grand River.is an impor- - tant ‘as well as the principal tributary of the Arkansas. Arizona v. California, 283 U.S. 423, 76.L. Ed. 1154; United States v. Rio Grande Dam and Irrigation Co., 174 U.S. 690, 43 L. Ed. 1136; Grand River Dam Authority.v. Going, 29 me Supp. 316; United States v. Brewer-Elliott Oil &:Gas ¢ . 249 Fed. 609; U 'nited States v. Mackey, 214 Fed. 137; per df County Commissioners v. Smith, 47 Okla. 184, 148 Pac. ’ 6 07 ; sar os 114; State v. Nolegs, 40) Okla. 479, 139 Pace, 945. The ree, ord in this case is repte te with evidence as to the characte “- istics of the Grand River, including its drainage urea, the volume of ‘its flow, both during ordina ry and flood periods, for many years, which established beyond controversy that — _ the Grand River in Oklahoma is such a streym as Congress has jurisdiction over ander the Commerce Clause of the’ Constitution. Army Engineers-Report House Document No. 107,.76th Congress; First Session (R.'445-455).. Fargo Engineering Company: 's Report Gh Mos. we The Pensacola reservoir is one of the reservoirs included in the general comprehensive plan for flood control and power development ‘in the Arkansas River. Basin approved by the 1938 Fload Control Act (R. 452), (52 Stat. 1215, 1218). In addition, the Court will take judicial knowledge of the fact that Cohgress has approved the construefion by the Army Engineers of the Markham Ferry and Fort Gib- son Dams: on ‘Grand River for the dua! purpose of flood control and power produe tion (50 Stat. 638, 645), and that the Corps of Kngineers made a survey of Grand River ‘for flood control and power development under authoyity of Section 1 of the Rivers and Harbors Act of January 21,. 1927, and Section’6 of the Rivers and Harbors Act of ka gust 30, 19: 35, and made a report to the Secretary of. + ar on January 4, 19: 39, which in turn was ‘transmitted to Con- gress by the Seeretary of War on January 12, 1939, which report-is known as House. Document Ne. 107, 76th Congress, ‘First Session, in which the Army Engineers said: ‘*The Neosho River, known as the Grand River in its lower reaches, is not generally considered navigable with the exception of its lower 2 miles. The stream’ ‘rises in the roliing hill area in east central Kansas, near Parkerville (Mile 452), flows southeasterly 297 miles in Kansas, thence in a southerly direction across the ‘northeast rertion of the State of Oklahoma, a distance Fg ? aa 28 of 163 miles, to its junction with the Saunas River near Fort. Gibson, Oklahoma-(Mile 2). It has i total length of 460° miles and drains /a’ total area of 12,640 square miles, of whiclhi. 6,285 are in Kansas, 2999 in - Missouri, 415 in Arkansas, and 2,965 in Oklahomir.*? (R. 453) : | and: .> With the. exception of, its lower 9 rhiles, the Grand - (Neosho) River is not generally considered a navigable | stream, nor is there any demand for such development. * While the opération of the desired power plants could | . not be expected to’ greatly benefit the present open-’ river navigation conditions on the Arkansas River, the resulting addition to low-water flows ‘would unques- tionably improve the year-around navigation condi- — tions and, in the event that works for a canalized: Arkansas River should be constructed for navigation in the future, the regulated flow from a power plant would be of material: value in providing a necessary water supply for lockage, -leakage, and evaporation losses in the eanalized system.’’ (R. 404) and: : ‘Valuable benefits from the control of floods of the— Grand River would acerue along the Arkansas River. Reduction in the flood flows-of the Arkansas River also — would be of benefit on the lower Mississippi River. The proposed Pensacola reservoir is one of the reser- voirs included in the general comprehensive plan {or flood control in the Arkansas River Basin approved by the 1958 i Control Act.’’ - 452) and:. : “The Grand (N Jeosho) Rives i is a main contr ibutor: to - flood flows in the Arkansas River and hence in the lower . Mississippi River. Phe reduction of its flood flows would benefit the four States of Oklahoma, Arkansas, Mississippi, and Louisiana.” (R. 45% 3) : a 29 ana: portent | es : “While the plan profiosed by the district engineer | anakes. no allocation of capacity at any of the three * sites to the necds of navigation, the regulation of flow - which the plant insures in time of flood, due to the flood: control alloc ations, and in time of: low- water, flow, due to the power allocations, can-be anticipated to insprove . navigation conditions in the Arkansas River. below. Such improvement would benefit Oklahoma and Ar- kansas)since. portions of the river are considered navi-, gable yu both states; and to a lesser degree’ Mississippi and Louisiana, on-the navigable Mississippi River be=. low the mouth of the Arkansas’ *(R. 459). & and that: ae - +s Tne Grand (Neosho) River is one. of the most im- £X por tant streams in the Arkatisas River Basin, owing to ‘its Targe flood flows, potential power possibilities, and coritribution to low-water flow in‘the Arkansas River at the head of the portion generally considered navi- gable, Since it is interstate in all three’ respects, inter- . -. est in its development transcends State boundaries and therefore becomes of national importance. Liaaes ¢ | 2 454) After linvestigating the Declaration of Intention filed by Seared 9 the Federal Power Commission determined that the construction and operation of the Pensacola * project woukl” affect navigable states of the Arkansas River, a> navigable water of the United States, to whieh the Grand River is tributary, and wonld affect the interests of inter- “tate commerce (Ro486). In its order authorizing the issu- ance-of petitioner's license, the Commission found: and de- termined on January 27, 1939 that. the Pensacola project ‘is desirable and: justified in thé public interest for the pur- © pose of improving or developing the Grand Rivér and the — Arkansas River, to which it is tributary, for the use or benefit of interstate commerce.’? (R. 477). In, the license ae issued to the petitioner, the Commission recited its deter mination that the Grand River is a stream over which Con ogress ‘has jurisdiction under. its authority to. regulate*com. merce “with foreign nations and among the several states: : (R. 462)... eee The U nited States District € ‘ourt for the, Northern Dis. trict of Oklahoma, in the case of Grand River Dam Author- ity Vv. Going, 29 Fed. Supp. 316, took judicial knowledge of ‘the fact that the Arkansas River is navigable to the mouth ) of the Grand River; that the Grand River is an important and principal immediate tributary of the Arkansas Riwer and held that-the Grand River is such a stream as Con-. ‘gress has jurisdiction over under the Commerce Clause of the C onstitution. ; . ps After studies and surveys, ‘authorized by C ongress under Séction I of the Rivers and. Harbors Act of January 21,, 1927 (44. Stat. 1010, 1015) ; Section 6 of the Rivers and iHar- . hors Act of August 30, 1935 (49 ‘Stat. 1028,-1048), and Sec--. tions 6 and 7 of the Flood Control Act of June 22, 1936 (49 Stat. 1570, 1596), Major Genéral J.L. Schley, Chief of En- gineers, recommended’ that the Peasacola, Matkham Ferry, and Fort Gibson reservoirs should be constr ucted and oper: ated by the Federal government as’ one coordinated unit in the combined interests of flood control and, power devel- opment ‘(House Document No. 107, 76th Congress, First: Session, p. 6), and the Congress, thereafter, in the Act, of August 18, 1941 {55 Stat. 638, 645), authorized” one ap- proved the construction of said projec ts. The. Army Engineers have considered, and the C ONLTESS -° lias enacted legislation on the theory,;that the Grand River _in Oklahoma is such a stream as Congress has cout rol over: under the Commerce Clause of the ‘Constitution, and the . Federal Power (¢ ‘onimission—the administrative agency set up by Congress to determine whether any :particular stréam wae wy Sa sought to he-utitized for power purposes is such a stream lias d@frmined in’ an appropriate proceeding that the (Grand River is such a stream and has issued to the peti tioner, on July 2601939, effective. January 1, Es 9, a license, “granting the’ petitioner the exclusive right. to _constraet, maintain, and operate its hydroclect rie prejoct at the Pen- sacela’ location on Grand River. for a period of fiftys (50) years, The right of the respondent. to have: the adaptability. of its lands as a dam site for a hydroelectric. project consid- ered in fixing just compensation for their taking depends upon whether respondent had the1 ‘ight on the date of taking - to utilize the waters of the triv er and said lands for that purpose. Such right depends upon the applicability of the Federal Power, Act*to the Grand Riyer. In- order for re- spondent’s State permit to have any force‘and effeet, with respect. to the ¢ rand Riv er, it is necessary for the respond- ent to file with the Feder at Power Cormission its Declara- tion of Intention to construct its proposed project and to obtain from the Commission a determination that its proposed. project would not affect the interests of inter- state commerce. If, on the other hand, the Commission .— should find on its investigation of the Declaration of In- + tention that the interests of interstate commerce would be - affected, it ‘would be nécessa ry. for the respondent to make application to the Commission for a license and to receive ‘from the Commission ‘the license apphed for in order to acquire any ritht to utilize the waters of the river and its ~ dam site lands for such a project. This ¢ ‘ourt will review the ey idence which is incorporated “in the record to determine for itsélf, independently of the findings of the State Court, the facts on which the Federal "question involved depends. United States v. Pink, 93 U.S. ~ 203, 86 L. Ed. 796; Great Northern Railway Co. v. W ash- ington, 300 U.S. 154, 81 L. Ed. 57 3; Norris v. Alabama, 294 32 UL S. O87, 79 L. Kad. iv6; Aner at Kayptian hviti Order Vv. Michaux, 279°U. S. ODT, e 48 L.. "Bide ag Northirir Prairie ~ i a : ied Rahway Cow: Nwith Dakota, : 2: 65 -E. ASD, 5O LL. dead, ic3ed: Kansas City Southern Raiiw ay ty ED ¢€: HW. Albers €om- MISSION ('o, cn 203 U ° S, a3 oer D6 L. Kd. 3 he is Crese - 7; (rrand: _ Lode Knights of Pythias of Georgia, 225 U. » 246;, nO L. Ed. to74. Eee . ~ . ; It ix now settled by decisions of the Supreme Court. of the United States that Congréss has jurisdiction under the Conmerce Clause of the Federal Constitution over non- navigable waters which affect the navigable waters of the United States for the purpose of protecting fand iimproving — the navigable capacity of such navigable waters. United States v. Rio Grande Dam and Irrigation Co. 174 U.S. 690, 43 L. Ed sas Sanitary District. of Olina Vv: United States. 266 U.S. 405, 69. L. Ed. 352; Wisconsin v. Minnis, 978 U.S. 367,.73 L. Ed. 423; United States v. Appalac lian _ Electric Pow er Co., 81 -CS--377, 85 bed. 243: Oklahoma, ex rel, Phillips v. Guy F, Atkinsow Co,, 313.U S. 508, SD LL. Kd. 1487 ; First Towa Hydro-k ‘lectric Corporation v. Fed- « ‘ral Power Commeéssion, 328 U. S. 152, 90 4,. Hd. 11433. Inferior Federal courts, following these deel isions ‘of the ° Supreme Court, hove: held that tha jur isdiction of thie Con- gress under the Comineree Clause and the jurisdiction of the Fede ri Power Commision under the Federal Power Act extends to non-navigable. tributaries ‘of navigable: witters ‘of the United States. Grand. Ricer Dam “Authority *, Going, 29 ¥F. Supp, 316; Georgia Power Co, v. Fede ral: Power Commission, 152 F. (2d) 908; 0 nited States v. “Ap- | palachian Electr Power Co., 107 Fy (2d) :769, 795,-and dissenting opinion of Judge Parker, 798, It has been held by the United States -Cireuit Court of Appeals in three different circuits that the Federal Pow er Act applies to Projects. located i in streams ov er which Con- . o, : Bat SS vross hos. _jirisdiction under the (' omme ree ‘lause “ hich were Gonstrneted unde authority of State TAW Ss tefore the. Federal Power Act was enacted, and that such projects can het be maintained or operated without a license trom the Federal Power. Comission, Wisconsin Publié Servic | Corp. \ a Fede ral Power C CARIMESSTON, 147 FF. (2d) 745 (cer: tiprari on June 18, 1945, 89 L. Bd. 1996) ; ; Niagara Falls Power Co. v. Federal Power Commission, 137 KF. (2d) 787 (certiorari pet November 22, 1943, 88 L. Kd. 477, rehear- ing denied Deceniber. 6,.1943, 88 LL. Ed. 478: Pennsylvania . ater d Power C 0. Ve Federal Power Commission, 123 F, (2d) 155 (certiorari ‘denied February 16, 1942, 86 LL. Ed. 1205). = : It is indisputable under the record in this case that Con- Sgress has assumed cand preempted jurisdiction | éver the - Grand River through the passage of ‘the Federal Water Power Act of June 10, 1920, as amended by the Federal ‘Power Act of August 26, 1935, enacted under its authority to rezulate interstate cou. merce; that no riparian owner ‘could‘acquire the right to utilize the waters of the river or lands riparian thereon forthe ‘production of electric power and energy without complying with’ the provisions of the Federal Power Act. The respondent never complied with | > “the provisions of said Act or acquired under Federal law such -right of: use. - On the othe } hand, the petitioner did comply with the provisions of the Federal Power Act and ‘obtained from the Commission a’ Neense to construct, ilin- tain, and operate its project, at the Pensacola location on Grand River, effective January 1, 1959. The date of taking ~was January 19, 1940, At. that time, the responde nt vould not possibly hive ‘acquired such right of use because. the pe titione r had been granted by the Federal Power: Com. *‘— mission. the exclusive right to build.and operate its project , at the Pensacola location, The resporident. not only had not: ee ‘ s ” ; 34 and eould not acquire suc ‘ht right of use; but was prohibited hy the Federal Power Act from making such use of ‘ts lands | and the waters of the river, Respondent's claim to such - right of use by virtue of its State permit fades and disap- pears in the face of this prohibition, Adaptability for Dam Site Use Can Not Be Considered in | oF Fixing Just Compensation Without a lawful right to utilize the waters of ‘the 1 river and the lands riparian thereon for the production of e leetrie power and energy, the respondent was not entitled to have the adaptability of ‘ts lands as a dam site for such use con- | "sidered in fixing-just compensation for their taking.. Grand- _ Hydro v. Grand River Dam Authority, 192 Okla. 693, 139, P. (3d) 798; Lawton- Rapid Transit; Railroad C 0. ie of Lawton, 31 Okla. 458, 122 Pace. 212; U wited’ Syites v. Chandler-Dunbar W.ater Power C 0., 229 U.S. 53, 57. L. Ed. | 1063 ; Olson v. United States, 67 F. (2d) 24; Continental Land Co. v. United States, 88 F. (2d) 104 (ceftiorari denied Gaiener 11, 1937, 82 L. Fd. 552); U nited States v. Boston C.CL& N.Y, Canal Co., 271, F. 877; Central Pac ific Railroad © Co. v. Pe arson, 39 Cal. 247, ; Section’ 27—Federal Power Act : Section 97 of the Federal: Power Act, 41 Stat. 1077 (16 US. CA. 821) provides: “That nothing: heviele contained shail -be construed as affecting or intending to affeet or in any way to inter- fere with the laws of ‘the respective States relating to the-control, appropriation, use; or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein.’’ 3 ‘The teriu “other uses’ ' doos not ine clude the generation of eleetrie power and energy. This Court has definitely so Sars Bea Sie i. / 35 held in the case of First Iowa Hydro-Ele« my Cooperative V. Fede ral Power. Commission, B28 U, S. 152,-90 L. Bd. 1143, in which the Court cites and appreves Pirie Power Co. v. Gulf Power Co., 283 I. 606. This Section recounizes and - preserves the continued operation of the local laws of the respective states relating to the control, appropriation, use and distribution of water used for irrigation or municipal purposes, and uses of a similar nature, but does not for power purposes, and’ respects and preserves any vested. right acquired thereunder for irrigation, municipal, or other similar uses, but not for power purposes. | | if Wisconsin: Public Servi ice Corp. v. Federal. Power Commission, 147 F. (2d) 743, decided February 26, 1945, the Wi isconsin Public Service C orp. had constructed a dam’ and power, project on the Wisconsin River, under and in - -accordance with the laws of the State of Wisconsin .before thé Federal Power Act was enacted and relied upon Section 27 of the Federal Power Act to protect its project from control of the Federal Power Commission under the Federal Power Act. The court held thaf the Federal Power Act applied and the Wiseonsin Publie Service Corporation was required to comply with the. provisions of the Federal Power Act and accept a license from the Federal Power Commission’ in order to lawfully continue the operation of its project, The court cited in support of its. holding the case of Pe nnsyly ania Water-Power Co. ¥. Federal Power Commission, 123 KF. ( (2d) 155, and. Niagara Falls Power Co, v..Fede ral Power C ommission, (137 F. (2d) 787. The decision of the Supreme Court in the Firs? low a Hydro-Electric Coope rative case, supra, was followed by the Supreme Court of Vermont in the case of Bellows Falls Hydroelectric ( orporation, 47 Atl. (2d) 409. In that case the Publie Serv ice ‘ormmission of Vermont; under authority of a State statute, had granted to the Bellows Falls Hydro- . eleetrie Corporation authority to redevelop its: water power er 36 | facilities on the Connecticut.River by the erection of a dam in that stream. An appeal was taken’ from the order of the Commission to the Supreme Court of the State where the order of the Commission was reversed on the ground * that the Commissidn did not have the right to exercise the - jurisdiction conferred upon it by the Vegmont statute for the reason that the Federal Power Commission had - ex- clusive ‘jurisdiction over the Connecticut Riv: er-under the Federal Power Act. nest “In the Appalachian Electric Power C ompany case, the Supreme Court held that the Federal Power, Commission could require a Fedeffl license from an applicant who had complied fully with the loeal laws of West Virginia under which it held a completely valid license to construct and operate its project on the New River, and in the First lowa Hydro-Electric Cooperative case the Supreme Court held that the Federal Power Conimission had jurisdiction to isstie a Federal license without the applicant’s compliance with the local.laws of the State of Iowa, and without ob-. tairing 2 State license thereunder to construct and operate a project on Cedar River. . , ‘Section 10 (c)—Federal Power Act ‘ It j is provided under Section 10(¢) of the Federal Power e Act (16 UL S.C. A. 803), and Article 17 of the petitioner’s — Federal License, that the: Licensee “shall be’ liable for all _ damages oéeasioned to the property of others by ‘the con: struction, maintenance, or operation”’ of ‘the licensed .projeet. This-provision of the Federal Power Act and of _the petitioner’ s License does not create a new liability | not otherwise ‘existing. Tt merely requires the assumption by the Licensee of such liability as may legally arise ‘inde- &,, ndently of the provision, Alabama Power Co. v. Smith, 229 Ala. 105, 155.So0: 601, 604; Louisville Hydroele etrie C 0. v. Coburn, 270 Ky. 631, 110 S. W. (2d) 445, 448; Humpich’ Py \ 37 Trustecs ve. Lowsrilli Gas and Eli tric C'o., P69 Ky. as, TUS S. W... (2d) 509, oft, pe Corrigan Transit Cp. ¥. Sani- lary District of Chie “qo, 4 F662: The liability of- the advert legally arising, independ- ently of this provision is te pay just compensation. But what is ‘just compensation, and what are the damages which the petitioner j is required to pay? What is the measure of “compensation or damages? ‘The measure of compensation - +) .- ina condemnation proceeding is a substahtive right. United Statés v. Miller, 317 U.S. 369, 87 L. Ed. 336, 147 A. L. R: 55. The petitioner. is. obligated to pay Grand- Hydro for ‘the: lands taken the fair market value thereof, which includes Es any” special value inberent in said, lands, because of their adaptability. or suitability for any particular use to which the respondent could: lawfully apply sajd lands. The re- spondent did not have the right under Federal law to use its lands for a dain site-for a hydrocleetrie project, but was by Federal law prohibited from using them’ for such pur- spose, and it is not entitled to compensation based upon a right of use which never existed in fact and which it could not on the date of taking lawfully acquire. The measure _- of compensation in this cike is a Federal question because _ it depends on a right of use controlled bay paramount Fed- eral law. It is therefore reSpeet fully submitted that the writ of . ‘certiorari applied for shouldbe granted by this. ¢ ‘ourt and thereafter the decision of the Nupresie-€ourt of Oklahoma review ed and reverséd.- Qu INe EB. ae: N, rs Se Mieant Vinita, Onrehens; beaten _Devmas E. “Martin, Tulsa Oklahoma ; 2, Rages LEANDER Davinscs, Tulsa, hme, Wie . Attorneys for Petitioner. X wit a , i - 4 “ — “7 dd 38 APPEN DIX “A” IN THE SUPREME COURT OF THE STATE OF OKLAHOMA ; No. 30447 / : / - ‘ | Granv-Hypro, a Corporation, Plaintiff in Error, ni o.: : . Vv. ; ] | Granp River Dam AvtHority, a Corporation, Celesdant 1 in _ Error } , 2 De In determining the marketi value of real property taken _ by power of eminent domain, it is not merely the value of the property for the use to which it has been employed by the owner fhat should be considered, but its adaptability to all purposes, present and prospectiv e, to which it may rea- ‘sonably be applied by the condemnee must, be considered and taken into account in fixing such value. : Appeal From District Court of Mayes Counity “Hon. N. B. Johnson, Judge. : Proceedings i in condemnation by Grand River ae: Au- thority against Grand-Hydro, a corporation. - From. an alleged insufficient award of .compensation, the condemnee-. appeals. > - - REVERSED AND Remaxbep Wirth Directions Harve N. Langley, R. A. Wilkerson, both of Pryor, Okla- — - homa; 8S. F. Fowler, Knoxville, Tenn. ; R. D, Hudson, Tulsa, - “Oklahoma, for Plaintiff in ‘Error. Pp _. Edw. P. Marshall, Tulsa, Oklahoma ; J.B. Dudley, Okla- homa C ity; R. L. Dav idson, Tulsa, for Defendant im Error. ‘Gussos,,V. C.J.: This is an appeal by: the condegnnee from the judgment ofthe district court of Mayes County rendered on a verdict in condemnati6n ane eedings. — wo 390 The proceedings were instituted by Grand River Dime. Authority, a-corporate.instr umentality of the State, against Girand-Hydro, a corporation, to condemn some 1400 acres _ of land located in the Grand River. valley. The commis- -sjoners, appointed by the court awarded. Grand- Hydro the sum of $281,842.74, whereupon said corporation filed its objections thereto and demanded a jury trial. Thereafter — said Authority algo filed its objections-and demanded a jury. ‘The trial resulted in a verdict fixing the damages at. $136,- 200, and Grand-Hydro appeals from the ensuring judgment.. Grand River. Dam Authority was created by S. B. No. 395, S. L. 1985 (now 82.0. S. 1941, °861- 881, as later — amended), aid was the corporate name applied to a con- servation and reclamation district thereby created, and comprising certain,désignated counties, including the county of Mayes. - Said Authority, as ‘‘a governmental agency, body politic and corporate,’’ wis endowed with the power, among numerous others, to develop water power ‘and élec. tric energy within dhe houndaries of said district and on the Grand River , including the power of eminent domain. Grand-Hydro was incorporated ip 1929 under the laws of this State for the purpose of developing and selling hydro- eleetric energy and water for irrigation on.Grand River. Pursuant to its corporate powers it acquired title to the lands here involved and which include the land selected by the. Authority as a.dam site for the erection of its power project. In 1931 said corporation applied for and obtained from the State Conservation Commission a license and per- mit to appropriate the waters of Grand River for beneficial _use including the construction of a dam and the dev elop- ment of hydro-electric power for sale, pursuant. to chapter 40, S. 1. 1910 ($82 0. S. 1941, 1-83), and: chapter 70, S. L. 1927 (82 O. 8S. 1941, 451-510, as subsequently amended). | The Authority claims tlie right to use the strean? in the development of electric power, ete., under article 4, chapter _ 70, S. L. 1935, as amended by aviieles 1 and 2, chapter 70, S. L. 1937 (82 O. S. 1941; 861-881). btce + The*principal controversy on appeal involves the action of the trial court in striking the testimony of certain expert witnesses relating to the value ofa portion of fhe } premises, a tract of 417 acres, from the standpoint of its-special ater 4 a ae in ascertaining the market value when they enter into and siee. _ 40° co ability to dam-cite purposes, The trial court withdrew the evidence from the jury en the ground that the adaptability of the tract to such purpose was not a proper clement for. consideration Hi estimating the market value thereof, | Grandvdro says the trial court erred in striking the a ‘testimony, and erred in its admonition to the, jury not to consider the same, and erred in refusing certain requested instructions pertaining to'the right to have.such testimony | considered. And it is ihsisted that this action of the court rysulted in depriving the condemnee.of.its property without due process‘of law,.and without just compensation. *The measure of compensation in such case is the-fair ‘market or cash value ef the land condemned. City of Tulsa . Creekmore, 167 Okle. 298, 29 Pac. (2d) 10% In that case the court, speaking of the elements to be considered in determining market ralue;.said : ‘It is the market, value that-is the test and not its vidue for some particular use to which it might be subjected, ‘although its adaptability to this partiqular use may be considered las one of the factors 7 ‘affect the cash market value of the\property. Revell v. / City of Muskogee, 36 Okla, 529, 129 Paeos33; Public Service - Co. r. Leatherbee (TIT), 143 N. FE. 97.’?) Atiin the syllabus by the court the fair eash or market value bf land taken — in eminent domain is defined as follows: ate : ~ _.. “By fair market value is meant the amount of nieney which a purchaser willing: but not obliged to buy tlm property would pay to an owner willing but not obliged « . to sell it, taking’ 1 into consideration all-uses to whieh ~— the land was aie | d and might | in reason be applies Re . With referene ¢ to the question of adaptability or davailabil- itv fora par ticular use as an ‘element in determining market value , the court held.as follows: ‘In determining the:market value of a piece of real estate for the purposes of a taking by eminent domain, it ix not merely the value of the property for the use to whie +h it has heen applied by the owner that should. he taken. into consideration, but the possibility of ‘its use for all purposes, present - prospective, for which 41. it is adi ipted and to whiclrit might in reason be applic “dl, must be considered, and its value for the use to wig! men of prudence and wisdom and having dl: means would devote the proper ty if owned by them must he t tuken as the ultimate test.’ . TRe above cause Contains a reasonably clear statement of the law ebtaining in this State and which must be applied _ here. The condemneé is ordinarily entitked to compensation “measured not only by the value of the land for the use to ‘which he has applied it, but the Value thereof for all possible owt ee purposes, present.and prospective, to which he or his ordi- nary grantee might legally apply the same. ‘Howey er, it is et that ‘the law announced in the above - case does not entirely cover the situation here presented. li is said that the rule may apply generally to all uses to, which the éondemnee or his grantee ata free sale may law- fully employ the land, but does not apply in thase instances where, as here, the condemnee or his ordinary grantee would have no legat right to use the land-for the purpose for which the condemnee now urges ds an element of compensation. . We agree that the rule for the measure of compensation as announced in the Creekmore case applies’ only to those adaptable. uses to which the condemnee or his. ordinary grintee may lawfuily place the land.’ United States. v. Boston, (". C2:& N.Y. Canal Co., 271 Fed. 877. In the opin- ion in that ¢ase the court said: “We are of the opinion _ that, in ascertaining -the ‘market value of property taken “toa condemnation. proceeding the utility or availability of ‘theproperty for the special purpose of the taker cannot be shown, if:the taker is the only party who ean use the property for that purpose, “If, however, the property has a . special utility or availability, not only to the taker, but: to. other parties who could use the property for‘the particular -purposes. intended by the taker, then this utility or avail- ability may be shown.’ See also United States v. Chand- ler-Dunbar Water Power €o., 229 U.S. 53, 33S. Ct. 667, “57 L. ed. 1068, wherein it was said. that the question in ‘cases of, this character. ‘is what has the owner lost, and snot what has the taker gained.’ : : The Authority urges that as a governmental instrumen- * % - , . tality cof the. State it had exclusive authority jo use, the waters of Grand River for commercial purposes, and that Grand-Hydro possessed neither that right nor the right to construct a dam and to impound the waters for any Purpose, and could not sell to any one possessing those rights other. than to the Authority, and was therefore not entitled to urge the adaptability of the land in that respeet as an clement of compensation. — . fs The above eontention forms the mats of. the principal question in this case. . | The owner of land 1 may use the water of a natural stream flowing across the same, but he may not prevent the natural How thereof. 60 O. S. 1941, 60. The statute, supra, creating the Grand River Dam Au- thority and defining its functions purports to be an express appropriation -by the State of the waters in Grand River . to be applied to the uses th-rein stated, and to place in its said agency exclusivé authority to-develop the stream in the manner therein provided.. The State may control ihe - flow of'all non-navigable streams such as the Grand River. And it may reserve to itself or grant to private parties _ the right to utilize stich stre eams for power and other pur-, | _ poses. 67 ©. J. 683, see. 10. : _ As a basis for its argument that Grand- Hydro nieiely owned the land and was without right 'to use the waters for ‘developing power, the ‘Authority says that Grand-Iydro’s purported license and -permit issued by the Conservation Commission was void, or‘at least had expired hy ats own .terms, and was no longer in force aid effect. First, it was urged that said permit was void for the’ reason that no judicial decree by any court had been entered - determining all rights of all parties along the stream to use the waters thereof as provided -by 82 O. S. 1941, 12, 13, 14 (sees. 3640, 3641, 3642, R. 1. 1910), and which deeree, “says the » Authority, was a condition precedent to the author- : a fo-tiape: commission to issue the permit. (Owens v. Snider, Ikla at . 772, 153 Pae. 833.). ; Under 82 0. S. 1941 11 (see. 3639, R.tL. 1910) the state ‘engineer was required’ to njake hydrographic surveys of ktreatn systems and to deliyer the same to the Attorney General whose duty it’ was to enter suit in court to obtain - 43 judicial determination ‘of all rights of parties within the stream systim to the use of the waters of the stream. ~~ Under &2 OLS. 1941, 21 (see. 3640, R. Le 1910) the state engineer was authorized to issue pertaits to applicants to appropriate the water ‘for beneficial use.’’ At the time Grand-Hydro received its permit to utilize the water for ‘power purposes, August 29; 1931, the’ Conservation. Com- mission had succeeded to. all the powers of -the state -en- gineer, with many more powers added. Ch, 70 S. L2 1927 (now contained, as ee amended, in 82 O. S. 1941, 451-510). 82 QO. 8.1941, 12, supra, is a part of an Act passed in 1905 relating to be ‘neficial use of the waters in streams, and particularly to its use for irrigation. ‘The Act now appears in 82 O. S. 1941, 1-83. A similar Act was passed in 1924 pertaining to drainage and irrigation (éh. 139, S. L. 1923 j 24). Section 3,of the latter Act’ authorized the district courts, by certain procedure, to-organize conservancy dis- tricts for the preve ntion of floods, for irrigation and other designated purposes.. W ater power was not mentioned therein, According to the title of the Act, the whole pur- pose was State control of drainage and irrigation. The latter Act was amended in. certain particulars by Chapter 148, 8. L. 1925. In 1927 the Legislature passed a compre- hensive’ Act pertaining . to drainage and irrigation and making specific provision for the development, of water power and the granting of permits for the development of such’ power. Ch. 70, S. L.. 1927. This Act created the Con- servation Commission and vested it with the authority "'theretofore held by the state engineer, and) additional 9 ‘powers, The Act does not -purport to alter former acts to ‘any appreciable degree with reference to organization of drainage > and irrigation distriets, so far as this case is concerned, But it gives to said commission’ specific author- ity to grant permits for water power development. That ~ authority is found. in paragraph (7); section 3’, of the Act, and re ids | as follows ; co, . “To stipervise, conserve and develop the water power of the State of Oklahoma, granting permission for the - development of such power, making such reasonable 44 rules and regulations J overning the development and operation and distrilution of such power -except as may be 6therwise provided by law, and to take suet . stepS as-may be necessary to encourage: the “de velop . ment of water power within said’ State, and to wWder- “take. by, and-on behalf of the State the developmicut of water power when private devel6pme nt may he in adequate or unsatisfactory om such terms as maly be hereinafter provided. by the Legislatire, and to exer- cise sueh further powers and duties astmay be directed hereafter by the Degislatare of this State.’’ That section iS now 82 O. Ss. 1941, 482. Section 16.0f the 1927 Act repealed all Acts and parts of Acts in coaflict therewith. | Under the Act of 1905 (82.0.8. 1941, 1-83) a court decree determining water rights for irrigation was a condttion precedent to the issuance of a permit to irrigate. Owens rv. Snider, supra. But we fail to find any statute enacted prior to 1927 giving the courts any specific authority t6 determine water rights asa preliminary requirement to : permit to devélop water power. Par ragraph (7), section 3, above, gives full power to the commission to grant per- aiks for water power, free ‘and independent of other agen- cies, and without regard to the boundary lines of. improve- ment districts. This law was in full force and effect at the / time Grand-Hydro procured its permit. The permit was therefore valid in its inception. The Authority says further that even if the permit. be. considered as valid at the time of issuance; it nevertheless | became invalid prior to the condemnation proceedings’ by reason of the fact that it had ¢xpired by its own terms, and as a result thereof Grand-Hydro oveupied the same position with referenee to condemnation as that of the cording ry. landowners along the river, . ‘ | Fhe permit was issued 7” Gr: and-Hydro on. Auignst 28, 193 . It provided that the works, the di mn within four years from date, and one-fi / to beneficial use within four years’ after the period for & ‘ ‘ é 45 ‘completion of the works. There was no provision in tlie permit declaring a forfeiture on failure to comply. ’ The Act creating the Authority came*into full force and effeet on July 29, 1935, or one month before -the expiration of four vears froin the date the license was issued... Assuming that one-fifth of- the works had not: been completed, Grand-H¥dro still had one month and four vears under its license to commence appropriating the waters to benefigial use. Ther: was nothing in the license to indicate that it should terminate within two years, four years or eight vears. There was no term fixed, The most that can be said of the time: periods mentioned is ‘that they were inserted in‘ the license as a means of. nieasuring the good faith of the licenses. .The purpose of the licensé was ta provide for.a public service within eight, years. Lt was - nothing less than /a franchise for that purpose, and it had not been abandoned, nor had it expired by its own limita- tion. And it had not been terminated by judicial decree. As said in 26 C. J. 1040, see. 98, «The grant of a franchise is atgrant in perpetuity unless limited in duration by the’ grant itself, or-as a consequence of some:limitation imposed - by general law, or by a limitation on the power of the au- thority making the grant.’’ And it is further said: ‘*The’ ownership of a franchise will not be divested by mere im- plication.’’ 26 C. J. 1042, see. 107. ‘We do not say tliat the State may not have ¢ iadialieas the .- license by appropriate legal-action on the ground of aban- donment or of bad faith if sueh were the facts. This was. not .done, however, and.so far as this case is céncerned the license or permit remained in fyll force until. the parties agreed to terminate it as h hereinafter mentioned, | The State: may engage in any occupation or business for publie perpeses: such as supplying hydro-electric power. See. 31, art. 2, ¢ ‘onst. And it exercised that power when the Legislature ¢ reated the Grand River Dam Authority. - “Pp rior to the creation of said Authority, and in February 1934, the City of Tulsa filéd an action. in, the distriet court of Mayes county putsuant to 82 0. S: "1941, 1-83, suypera, against Grand. Hydro and others, seeking an adjudication of the water rights of the parties to the waters of Spavinaw F ee > Ses : 46. Creek and to citable the city: ‘'s prior right thereto, and a like ¢ adjudication as to the waters of the Grand River stream. system and the priority ‘right thereto of Grand-Hydro éver other parties to said action. The Authority was ercated While that action was: pending, and on application of the City of Tulsa and Grand. Hydro the Authority was made a —par ty. Thereupon the Authority filed i its answer and cross. peti. tion seeking. an adjudication of the rights of all parties to . appropriate the waters of Grand River and its tributaries. After the Authority was made a party to said action, and | prior to’ filing its answer and cross- “petition ‘aforesaid, Grand-Ilydro and the Authority, as parties to the litigation, entered into an agreement in writing whereby Grand-Hydro, claiming under its permit and the work done” pursuant thereto the prior right to appropriate the waters of said river to‘the uses aforesaid, granted: and assigned’ to the Authority. Stall: of its rights, claims. interests ant privileges . in, to or concerning the waters of fhe Grand River and its” tributaries, cr the appropriation thereof arising out of or by virtue of said approved application and the work done _ under authority thereef, or otherwise, including, but without o limitation, all of its rights of priority.in the appropriation of the waters of Said River and its tributaries existing hy virtue of its having filed with the proper authorities the first application.to appropriate such waters to a beneficial use;’’.« But said agreement ‘also contained the following provision: ‘Tt is understood, however, that, this assignme nt and conveyance. shall not in any way affeet or impair the title of Grand-Hydroe, to any: Jands owned by it or any: interests therein, and if any lands or interests therein owned by the-‘said Grand- Hydro are acquired by the Grand River Dam Authority by purchase or condem nation, the value thereof or damage thereto, shall he asce tained and determined as though this assignment : and conveyance had - ney “been made.” ; . The Authority, then filed -its answer and cross petition in said action as “above related, oa. up the permit. ef 47 2 Girand-Hydro and alleging that by virtue of the assigmmuent above mentioned the Authority had become. possessed of all the rights, élaims, interest anil privileges i in and to or con- cerning the waters of Grand River theretofore held by - Grand-Hydro by virtue of its permit issued. by the Conserya- tion Commission, And the trial court held-in that case that — the Authority had-succeeded by virtue of said assignment to all rights Grand- Hidro may have held under its permit te _appropriate the waters of the. river. And the court. rendered judgment giving the Authority prior right to con- trol] and appropriate said waters, and that Grand- Hydro had no right therein. That judgment became final. Counsel for the Authority take the position that the judg- ment in the former case foreclosed any and all claims Grand- Hydro- may have had to compensation other_than for the value of the land for ordinary purposes, not including any value growing out of its special adaptability for damsite purposes. ; But, by the saravneit aforesaid, Grand:Hydro and the Authority specifically excluded from the issues in that case any’ question pertaining to the rights and claims of Grand- Hy dro ‘growing out of its permit, except in so far as‘the agreement. released or renouneed ‘or transferred those rights to the Authority. The question of compensation for every claim, whether, by purchase or by condemnation, was specifically reserved hy that portion of the agreement quoted above. - The court's decree in the C ity of Tulsa case contaims the following: ss 8 * me ‘Thereupon, the curt .... finds and-adjudges: “2. That on the 14th day of Sale 1931, the defendant, Grand- ILydre,-a domestic corporation, ‘filed with the Con servation Commission of Oklahoma its application in due form for a permit to appropriate 4,000 cubic feet per second of the. flow of Grand River for the purpose ‘of* generaBnyg . -cleetric energy and power; that the Commission fixed a day certain for the hearing of said applization, and diree ted that netice of said hearing be. given as provided by law; that said notice was duly given,and on the 29th day ‘of August: 1931, the said ‘Commission issued to the Grand- Hydro a. o > ] z 438 aE on Ce toa beneficial use (the eeteration at electric energy and power) 4,000 éubie feet per second ot the flow of Grand River; that, under the atthority of said approved application, Grand Hydro proceeded with ili —genee to acquire are more dam ‘sites: for the purpose of constracting a danto impound the waters ‘ef Grand River for use in the generation of electric power and energy, and in making extensive engineering itv estigations and stirves ‘and in the acquisition of lands in the hasin areacof the reser voir which would be inundated by the’ Impounded waters, but the court finds and adjudges that the Grand: livdro did not construct any works or facilities through which to utilize the waters of said river for the purpose of gene rating elec tric energy or for any other -beneficial use, and did not actually apply and has never actually applied er appro -priated any of the waters of said river to a beneficial use, and does not now have any right to apply or appropriate any of the waters of said river fo-any beneticial ase, dnt that if Grand-Hydro acquired any rights under its approves _ application, it has transferred and conve ‘ved the Same to the Grand River Dam Authority by virtue of its assigninent of January -10,,1988."" : It is true that the Authority alleged’ in tHhit case that Grand-Hydro's permit was issued prematurety by the com. ‘mission for the reason that no adjudication of priority rights of interested parties had theretofore been made by the proper court, and was therefore invalid. But ax we have said above, such adjudication ot priority rights was - “hot essential toa permit to develop: hydre-e Heetric power The Authority, also alles od: ‘This answering defendant further aliens that, the she -fendant, Grand- livdro, an Oklahoma corporation, chartered and organized for the purpose of engawine”in the business - of generating. hydro-electric. power and energy and the dis. tribution thereof in Oklahoma, filed in the office of the Con servation Commission of the State of. (klahoma (now the “Planning & Resources Board: of the State of Oklahoma) on July 14; 1931, its application in.dne. form to construct on Grand River in, Oklahoma, a dam and hydro- elee trie power *- ? £ SF ee or plant and t to appropriate all of the waters of Grand River’ for the beneficial purpose of generating hydro-electric _ power and energy; that pursuant to said application, due: and proper hydrographic survey was made and rotice®was issued and given in the manner prescribed by statute, and on the 2oth day of Augtst 1981, upon due consideration of said application, the hydrographic survey and the evidence introtluced; the said: Conservation Commi tission approved said application and endorsed: its approval on the back thereof; that on the 10th day of May 1934, the said Grand. Hydro filed in this cause its answer and eross- petition’ ser fing up these t fac ts, and claimed a prior right to appropriate the waters of Grand River to a beneficial use by virtue of having filed the first application, under the statutes of Okla homid;that onthe loth day of Januar ¥ 1998, the said de fend. ait Grand. Hydro, exee uted and_delive red.to this answering defendant all of its rights, claims, interests and privileges in, to, or concerning’ the waters of Grand River and’ ‘its tributaries or the appropriation, thereof arising ont of or by virtue of said approved application and the work done under authority thereof, incliding, but without limitation, all of its right of priority in the appropriation of the. waters of said’ river and its tributaries, existing hy virtue of its’ having filed with the proper authorities the first applieation ’ ° to appropriate such waters to a beneficial use. A true and ‘correet copy of said assignmefit is attached hereto and wade. a paert.hereof and marked for identifie: ation, “GRD A Exhibit No, ce re. } a | ‘This:answering defendant further alleges that the Con servation Cominission of the State of Oklahoma, on the 29th day of August 1981, in approving the upplieation of Grand Hydro for the appropriation of 4,000 eubie feet per seeond of the average annual flow of (irand River, for the purpose of eenerating electric energy, adjudged and declared that: ‘Graiid-Iydre is prior in time and is the first applicant and appropriator of the waters of (irand Rive? for beneficial ‘purposes’; that under the authority of said approved appli. eration, the- Grand-Hydro’ made exterisive exgineering in- vestigations and surveys on said river, including churn and core drilling, for the purposes of testing tlam site’ founda. tions, and that the Conservation Commission of the State “Ge . oa of Oklahoma on the hearing of the @rand-Hydro application, found and adjudged that the Grand-Hydro was finaneially able te construct the work proposed in its application. and had acted diligently and in good faith, and that there had -been no prior*appropriation ef the waters of said river to any beneficial use, and that the application of Grand. Hvelro was priar in point of time to all others; and this answering. ‘defendant further alleges that by virtue of said assignment - from Grand-Hydro to the Grand River Dam Authority, of January 10, 938, the Grand River.Dam Authority is now possessed with all the rights, claims, interests and privileges of Grand-Hydro in and to or concerning the weters of Grand River and its tributaries. and the appropriation: thereof _ arising out of: or by virtue of said approved applic ation and— the work done under authority thereof, including, but with- out limitation, all of its: rights of sngpiiy of in the appro- priation of the waters of said river and its tributaries, existing by virtue of it having filed with the proper author- ities’ the first: application to appropriate such waters to a beneficial use.’ It is apparent. from a reading of the Grand River Dam Authority’s answer and cross-petition and the court's de- cree in the, € ity of Tulsa case that the Authority sought and obtained an adjudication that it was the holder and owner, by assignment, of ‘all the rig&ts and privileges Grand- Hydro had.obtained under its permit. The Authority was bound by the agreement which was- entered into.in furtherance of the. settlement, or of defining issues involved in litigation. For, as said in Grand River Dam Authority r. Grand- Iiwdro, 188 Okla. 506, 111. Pae. (2d) 488, ‘‘its transactions are akin to those of private en- terprises, and the mere fact that it isan ageney of the * government does not extend to it the immunity of the sev. _ _eveign.”’ And further, ‘The Authority cannot exercise the - powers as conferred upon it, avail itself of judicial process - ‘and, in the absence 6f legislation relieving it, escape the . usual incidents .of litigation that fall upon private. liti- vanis.” Id. - a | a hen the preeent proceedings i in condemnation were com > ol. * menced Grand. Hydre stood in the samé position with refer ence. to compensation as it occupied at the time the. formes rT action was filed. At that time it held a valia and subsist ing franchise from the State to erect dams for the purpose of generating hydyo-electric power for public consumption, It released that vie tothe State by the aforesaid agree ment, but reserved the Weht- to full compensation for all privileges it was releasing: Those privileges werdcom: pensable as usés ‘to which its lands were reasonably adapta _ ble, A portion of those lands was sdaptable to dam site. _ purposes for the generation of hydro-electric power. -We are aware of but one. statute touching upon the > measure of damages where the State takes over the projects of licensees such as the Grani- Hydro. That is the. Act of : 1927, supra, section 12 therebdf: (82 OS. 1941, AS4), That section. provides that the Legislature ‘by enactment may revoke a license such as that held by Grand- Hydro and take over and operate the project after reimbursing the licensee as therein provided. But no such action may be taken by ~ thesLevislature until at least ten years after completion of. the works. Here, there had been no such competition, and — therefore the statute, with reference to reimbursement or’ compensation, does not apply. bs Grand-Hydro pursued the proper course for determining ‘ the market value of the land. It produced witnesses quali- fied to give their opinion as to that value from the stand- point of the adaptability of the land to every use to which Grand -Tydto might re: asonably employ the same, -Among those uses Wax that of dam construction for the de velop- ment of hydro-clectrie power for publie use. Grand-Hydro produced qualified. witnesses who.gave thei opinion ‘as to the market value of the land for the latter purpose, but their tegtiinony: was withdrawn by the court and the ynry ad. monished not to consider the same. The ground assigned for sneh procedure was that the adaptability, of the land to dam site purposes was not an clemer ‘ of nrarket value. In this the court erred. The judgment is reversed and the cause remanded with directions to set-aside the verdict and to allow the parties the ‘renpon to renew their motions for jury trial, and to take Me oe ee ‘such other ,action .as will conform to the *views herein expressed. | ’ Corn, C. M., and Osborn, Bayless, Welch, and Davidson, JJ., concur; Arnold, J:, coneurs in conclusion; Riley and Hurst, J.J., dissent. Sere ~ | APPEN DIX “B” mo THE SUP REME COU RT OF THE ST ATE OF | OKLAHOMA ; No. 32,399 Granp River Dam: Avutuorrty, a Public Corporation, Plaintiff in Error, v. | Granp-Hypro, a Private Corporation, Defendant in Error. ee a em te vaio SYLLABUS | - "@ 1. Ordinarily, all questions open to dispute and: either ex- . pressly or by necessary implication decided on appeal to this court will not be open for review on the s¢cond appeal, - but such decision-becomes the settled law of the casé as to all such questions, and is not subject to re-examination. 2. The passage-of the’ act creating the Grand River Dam Authority did not destroy the dam site valuevof land con-- demned, if properly an element to be considered in fixing the amount which condenmee is entitled to reeover. Art. 4,._ Chapt? 7, S. L. 1935, 82 0. S. 1941, Sees. 861-881. 3. That condemnee had not’ applied for, nor secured, license from Federal Power Commission for construction of dam on non- navigable stream was not material in 1 fixing value of land taken for dain site. 4.-In jury trial, argument of counsel should be limited to those: questions submitted to jury and should not extend to - yoyeren: of law determinable by the court. - Where, in a condemnation proceeding, ‘the jury fixes — the value of t pepperty taken as of the date of taking, ‘interest /% > from such date is allowable on halane ‘e not neid into court at that time by condemmnor. : Avrrat. From THe District Cover of Mayes County. ? r 2 e Ilon. N. B. Jan, Judge i } Affirmed (). B. Boydstun, R. .. Davidson, Tulsa, Okla, for Plaintiff in Error. =, HarveeN, Langley, R. A. W ilkerson, a Okla: . §. F. Fowler, Knoxville, Tenn. ; R. D. Hudson, Tulsa, Okla., for Defendant i in Error. am | J. Edward W illiams, Roger P. Marquis, USS. Dept. of Justice, Amicus curiae. ’ - Mae Q. Williamson, Attorney. General of Okla., Fred Hansen, Attorney General, Amicus curiae. aes Davi ISON, V.C.J.: ? . ~ This is an appeal from a judgment rendered upon a jury _verdict‘in an action in condemnation brought by the Grand — - River Dam Atthority, herein referred to.as. the Authority, as plaintiff, agafnst. Grand: Hydro, as defendant. : After commissioners Were appointed and had fixed the value of defendant’s property, both parties demanded a jury trial, resulting in a-verdict for defendant: of $136,250. . (On appeal to this court the catse was reversed and re- manded. , Grand-Hydro v. Grand River Dam Authority, 192 Okla. 693, 139 P. 2d 798.) ‘The ese was retried and judgment rendered upon the - verdict of the jury from which plaintiff brings the canse here on appeal. | Briefs amicus curiae, have been filed by the State of Oklahoma and by the United States. There is little dispute about the facts. The Grand- Hydro is i private corporation organized in 1929 and incorporated for the purpose of generating and distributing electrie power. It acquired title to mimerous. tracts of land along the Grand River, including that involved-in this litigation which consists of some’T,400 aeres. Included in this acreage is one 417 aere tract known as the Pensacola «ite, which ix the site of the dam later built by the Aittthority. — > , aos On August 29, 1931; after a proper applieation therefor was filed, the Conservation Commission of Oklahoma issued | to Grand-Hydro, a permit to appropriate to a beneficial - use 4,000 cubic feet per second of the flow of Grand River and to construct one fifty foot storage and power dam and « ~\ one 14 foot equalizing dam, pursuant to which, exter nsive en- \gineering investigations and surveys were made by at Grand- Hydro, ‘As pointed out in our former opinion, this permit was in effect at the time of its sengamnent to the | Authority. | In February, 1934, the City iz Tulsa, after having ob- tained. a permit to appropriate the waters of Spavinaw Creek, a tributary of Grand River, filed suit in the District Court of Mayes County to adjudicate the appropriated ant unappropriated waters of both streams. In that suit the Grand- Hydro was made defendant along with sev eral cities \ and towns. The State Legislature in 1935 created the Gril Siver Dam Authority as\a governmental corporate agency, to. \ develop and sell water power arid electric energy in the ~ Grand River Basin, and endowed: it with the power of eminent domain. __ * After being made.a paxty to the City of Tulsa suit and before filing answer, the Authority aequired ‘on January 10, 1938, by assignment and deéd, all of the title and interest of the-Grand- Hydro ina 45 acre trict of land and in the permit and license . to appropriate the waters of Grand ‘River to a benéficial use. The Authority then, on January, 18, 1938, filed its’'answer and cross petition, alleging among other -things the assignment and: the ownership by the Authority of all the interest of Grand-Hydro in the perinit — and license. About a month later judgment was rendered adjudging that the several municipalities: had a prior right ° to divert and appropriate for municipal purposes very small -amounts of the flow of Grand River and that the Aiithority had a prier.right to the.remainder of said flow. In Mareh; 1938, Grand-Hydro conveyed another 10 acres. to the Authority and in. July conveyed to Ait the right of entry on all lands at the Pensacola dam site and south — thereof. The convevanees of the jand were made on condi- tion that thre énusidevution would later be determined = - agreement or condemnation and the assigiment was on the “gondition provided for therein: o*.: —“*It is understood, howevet, that this assignment and ~ conveyance shall not, ineany. w ay, affect or impair.the ‘title of Grand-Hydro to- any nds owned by, ity or any interests therein, and if any lands or interest therein owned by the! said Grang@ Iydro, are acquired: by the Grand River Dam Authority by purchase or eondemna- _ tion, the value thereof or- damage thereto shall be ascer- “tained and determined as though this assignment and conveyance had never been mants. $3 Pps oa The parties being unable to agree on the value of the property, the Authority filed this actian in condemnation February 17,1939. It was stipulated by the parties that the | takin date was January 19, 1940. In July, 1939, aft’ proper application by the Authority and-after a finding that the construction proposed would | . affect interstate commerce because of its effect on the Arkansas River, the Federal Power Commission issued a license to the Authority to construct, maintain and operate the dam which. it later built. The spillway was built on the 49 acre traét acquired by deed and the dam was built on adjacent land still owned by Grand-Hydro but covered by the right of entry... GramlHydro - had no sueh Federal hicense nor, had it taken any steps toward’ procuring one. bn the second trial the witnesses, on behalf of the Grand- Hydro testified that the 417 acre tract had a value of $750,- 000 te $1,000,000 for dam site purpose and the balance of the land had a value of $78,375. to $83,600, T4 Authority intredueed no testimony as to the value of the land for dam site purposes’ but their witnesses testified the entire 1,400 acres had a value of $34,500 to $56,656.50. ee The. numerons assignments of error urged by appellant — will be considered in the order presented, first and foremost heing whether or not the former opinion of this court con- stitutes the law of the case on this appeal. The conclusions otherein expr ‘essed were arrived at after extensive arguments by counsel, the filing of various petitions | for rehearing and 7 eee ee | : 56 | = f ° \ a. : Sue aie consideration ofvevery question presented. Many cases pre cited by each party stating the rule of law: a she All questions open to dispute nk ‘either expressly or by hecessary implies ition decided on appeal to this court will not be open for review on the second: vappeal, but such decision becomes the settled lay 6f “the case as to/all Such questions, and is not subject ‘to re- examination. ” St. Louis & S. F. Ry. v. Hardy, 49.Qkla. 423,146 ms 38 ‘ at \ ’ And the sone ‘to thé rule: : =D eer, ner e-'e 8 Mhe Courts uniformiy hold that an appel- “jate bait. may review and reverse its former decision ‘in the same case where it is satisfied that gross or-mani-. -, fest injustice has been done by its former decision, or y~ + where the mischief to be: cured far outWeighs any injury: ~ that may be done in the particular case by overruling a _ prior decision.’’ = ade 2 ee & Killingsworth, 89 - ORla. 64, 213 P. 54 : \ pie Pee Ntlioueh’ a tae courts hold thet there i is-no aeietstlon to the i; | general rule, We have consisteutly held that, ifthe: facts, of — a ~ the particular case warrant, the exception should apply. . But, as heretofore stated, the opinion on the first appeal wes: oQVas rendered only after exhaustive study amd is the law ae ~ \e “this ease of all questions therein decided. ne a the first appeal we held thiat the permit of the Grand- Hydre was_not invalid ab-initio, nor had it expired by its own terms, nor had it been abandoned, nor r did the City of Tulsa ‘ese so hold. : | , The doctrine-ef. “the law-of the case’? is not contr ing «where the facts and issues are different in a. subsequent appeal from what they were in the former appeal.’’? M. K. &T! Ry,Co. v.: Tulsa, 113 Okla: 21,-238 P: 452 at 456. In- this appeal the new or different facts and issues presented ae _ consist of the competency of the testimony, as presented in: \ 7). the last trial, of the expert-witnesses as to’ the market valne ry of the.dam site; the submission of such testimony to the . jury under-proper instructions; the effect of Grand- Hydro’ s jack ofa. hen rmuit trom the Feder ‘al Power C ‘omission; the 57 trial court's refusal to allow ‘connsel to argue to the: jury that the condemned land bad no dam of the ‘act ereating ; the Authority was, in effect, a forfeiture of the Grand- Hydro permit and therefore it was ot entitled to recover the dam - - site value of the lands condemned: “If such was the intent _ of the legislature in passing the act, it was in Violation of the Constitution, article 2, section * 24. The state cannot, through its law making body, remove the principal value of . private property and through its established agency, acquire the property by condemnation, basing the reimbuitsetent to the owner: on the: reduced value. If it were otherwise it” would be possible to cireumivent the above section of our Constitution. The value of the right to appropriate water which constitutes one element in fixing the value of land as a. dam site” was discussed in our former opinion. "i . @ . ns The parties themselves realized that the suit, ability of the. Jandas adam site was the principalelement of value. Other wise, there would have been no reason.tar the nbore queted Proviso in the assignment of the license atid permit. This is further borne out by the stand taken by the Authority in the City of Tulsa casein whitel: the Authority.’ s answer and CYOSs petitions ‘set up the assignment as a basis, Ob ower _ ship of all of the Grand-Hydro's right to appropriate the river flow. The judgment. in that case sustained that posi tion. | ° The testimony of the e epert Witnesses as introduce od Wils, | therefore, competent to prove the dam site vwaluesef fhe property and was in accord with our opinion on the former appeal... "Fo-the same effeet is the California case of Metro- politan Water Dist. of Southern. ( ‘alifornia v. Adaws, et al. (Cal.) 116 P. 2d 7, wherein there is an extensfve discussion of many of the points herein involved and a. collectioni .of many authorities on /the subject. Although the Authority had .been granted a license by the Federal Power Commission granting it the exe Husive right to use the 417 acre tract as a dam. site, it could not thereby take private property without just, compensation. Nor was the-issuance%of such license intended to have that effect because the plain’ provision requires the licensee to ‘pay all damages to. the property of others caused by the construction, operation and maintenance of the project. - In addition, the Federal Power Commission based its authority jo take jurisdiction upon a finding of fact that the condtrue- ‘tion and operation of the project ‘‘as proposed by the dedtar- ant will affect navigable stages of the: Arkansas River a navigable water of the United States, to which said Grand River is tributary.’’» The Commission would have no, an\ thority whatever if the dam site were used for the construe- tion of such a dam. that the navigability of the Arkansas River would not be affected. a ~The trial court, therefore, was correct in refusing to sllow counsel to argue to the. jury the proposition Hat the lands had no dam site value because of the provisions of the legislative act creating the Authority and the issuance to it of the lie ‘nse by the F ederal Power Commission. The jnstructions‘to the jury. fully cover alli issues “submitted and « are-in harmony with our of pinion herein and-in the first appeal, Ee (on January: hu 1940, the date of the take, the Antliority Jai inte court the’ ameunt found®hy the, coniunissioners to “be the Value of the property, S281, S02.74. The jury fined — the value at $800,000 and the judvinent of the eaurt allowed Interest on ROPS TTL, the: difference Getween these two amounts, from said date of taking, The qitestian of interest ir this typ of case mist be reserved: by the court, as in St. Louis, BE. Ro& WR: ('e., Niver, 17 Okla. O89, 87.P. 423, or it must be wpparent that the Jury omitted it, mn order for thie court to allow the Same. « Blackwell, Eo & S. W. R. Co, Bebowt, | 9 Okla. 6.5, tp. STi. Herein, the trial court. | - structed the jury to tix the market value of the lands.as of the date of taking. Theretore it wassproper to allow: inter. est from that date, JO ees — ee. Finding no @rror, the judynient is affirmed? a. * Osborn, ge MSs, We leh, Gibson & Arno} l, JJ3.. Coneur Hurst, (. J. & Riley. J, Dissent. & «6 (2790). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386406_0075%3A02. Public record. Not legal advice.