A private right of way is an easement and constitutes land, making its permanent destruction by the government a compensable taking.
The United States permanently flooded a strip of land, severing a private right of way that served as the only practical outlet from the plaintiffs' adjoining farm to a county road. The district court awarded compensation for the land taken and for the diminished value of the farm resulting from the loss of the way. The United States argued that the loss of the way constituted only collateral damage or a tort, not a compensable taking. The Supreme Court held that a private right of way is an easement and constitutes land. Because the government’s action permanently cut off the use of the way, the easement was taken as incident to the fee. The Court affirmed the judgment, ruling that the value of the easement is compensable under the Fifth Amendment.
At page 339 Determining easement value when land is taken6 citing cases“a private right of way is an easement and is land.”
- United States v. Welte, 635 F. Supp. 388 (D.N.D. 1982).published (A private right of way is an easement and is land.)
- City of Janesville v. CC Midwest, Inc., 2007 WI 93, 734 N.W.2d 428.publishedUnited States v. Welch, 217 U.S. 333, 339 (1910); Sonday v. Dave Kohel Agency, Inc., 2006 WI 92 , ¶ 22 n.5, 293 Wis. 2d 458 , 718 N.W.2d 631 .
- United States v. 11.48 Acres of Land, 212 F.2d 853 (5th Cir. 1954).publishedAs the court said in United States, v. Welch, 1910, 217 U.S. 333, 339 [ 30 S.Ct. 527 , 54 L.Ed. 787 ], ‘ * * the value of the easement cannot be-ascertained without reference to the-dominant estate to which it is attached.’ Thus in the jud…
- Bacich v. Bd. of Control, 144 P.2d 818 (Cal. 1943).published (See United States v. Welch, 217 U. S. 333, 339 [ 30 S.Ct. 527 , 54 L.Ed. 787 ].) If he does not have such an easement he can have no recovery even though the value of the abutting property may be diminished as a result of the improvement.
- State v. foothills/hanke, No. CV-23-0292-PR (Ariz. Jan. 28, 2025).published See id. at 338-39; see also Childers v. United States, 116 Fed. Cl. 486, 532 (Fed. Cl. 2013) (characterizing the damages in Welch as “severance damages”).
- Farmers Drainage Dist. v. Sinclair Refining Co., 255 S.W.2d 745 (Mo. 1953).published
At page 338 Awarding severance damages for partial property taking5 citing casesfinding that plaintiffs were properly compensated for “damage . . . to the tract of which a part is taken
- State v. foothills/hanke, No. CV-23-0292-PR (Ariz. Jan. 28, 2025).published See id. at 338-39; see also Childers v. United States, 116 Fed. Cl. 486, 532 (Fed. Cl. 2013) (characterizing the damages in Welch as “severance damages”).
- Childers v. United States, No. 1:07-cv-04262 (Fed. Cl. Apr. 2, 2014).published (awarding severance damages because plaintiff proved that the partial taking caused plaintiff to lose access to a right- of-way, which decreased the value of the remainder)
- City of Milwaukee Post No. 2874 Vets. of Foreign Wars of the United States v. Redevelopment Auth. of Milwaukee, 2009 WI 84, 768 N.W.2d 749.published See, e.g., United States v. Welch, 217 U.S. 333, 338 (1910)." 6.45 Acres of Land, 409 F.3d at 148 (emphasis added); United States v. 499.472 Acres of Land, 701 F.2d 545, 549 (5th Cir. 1983); United States v. Corbin, 423 F.2d 821, 828 (10th…
awarding severance damages because plaintiff proved that the partial taking caused plaintiff to lose access to a right-of-way, which decreased the value of the remainder’
- Nathan & Deborah Childers v. United States 08-1981, 112 Fed. Cl. 617 (Fed. Cl. 2013).published (awarding severance damages because plaintiff proved that the partial taking caused plaintiff to lose access to a right-of-way, which decreased the value of the remainder’)
- Childers v. United States, 116 Fed. Cl. 486 (Fed. Cl. 2013).published (awarding severance damages because plaintiff proved that the partial taking caused plaintiff to lose access to a right-of-way, which decreased the value of the remainder)
54 L. Ed. at 788 cited at this page1 citing case
- Bormann v. Kossuth Cnty. Bd. of Sup'rs, 584 N.W.2d 309 (Iowa 1998).published United States v. Welch, 217 U.S. 333, 339 , 30 S.Ct. 527, 527 , 54 L.Ed. 787, 788 (1910).
Other citing cases
- Stearns Co. v. United States, 53 Fed. Cl. 446 (Fed. Cl. 2002).published
- Newton H. Ancarrow & Josephine Ancarrow v. City of Richmond, Newton H. Ancarrow & Josephine Ancarrow v. City of Richmond, 600 F.2d 443 (4th Cir. 1979).published
- United States v. 10.0 Acres, 533 F.2d 1092 (9th Cir. 1976).published
- United States v. Virginia Elec. & Power Co., 365 U.S. 624 (1961).published
- Adaman Mut. Water Co. v. United States, 278 F.2d 842 (9th Cir. 1960).published
- United States of Am., & Cross-Appellee v. Twin City Power Co., & Cross-Appellant. (Tract No. C-215). United States of Am., & Cross-Appellee v. Twin City Power Co., & Cross-Appellant. (Tracts Nos. F-500 & H-700). United States of Am., & Cross-Appellee v. Twin City Power Co., & Cross-Appellant. (Tracts Nos. F-541 (Part) & H-732), 248 F.2d 108 (4th Cir. 1957).published
- United States v. Twin City Power Co., 248 F.2d 108 (4th Cir. 1957).published
- United States v. 2979.72 Acres of Land, 235 F.2d 327 (4th Cir. 1956).published
- Ederal Real Est. & Storage Co. v. United States, 79 Ct. Cl. 667 (Ct. Cl. 1933).published
- United States v. 6.45 Acres of Land, 409 F.3d 139 (3d Cir. 2005).published
Show 4 more citing cases
- Foster v. United States, 221 Ct. Cl. 412 (Ct. Cl. 1979).published
- Cravens v. United States, 163 F. Supp. 309 (W.D. Ark. 1958).published
- S. Counties Gas Co. of Cal. v. United States, 157 F. Supp. 934 (Ct. Cl. 1958).published
- United States v. Gen. Motors Corp., 323 U.S. 373 (1945).published
v.
Welch
delivered the opinion of the court.
This is a. proceeding under the act of March 3, 1887, c. 359, § 2, 24 Stat. 505, to recover the value of land taken by the United States. It is admitted that a strip of about three acres of land lying along the side of Four Mile Creek and running east and west was taken, and is to be paid for. It was permanently flooded by a dam on the Kentucky River, into which Four Mile-Creek flows. United States v. Lynah, 188 U. S. 445. Manigault v. Springs, 199 U. S. 473, 484. The plaintiffs owned other land south of and adjoining the strip taken, and had a private right of way at right angles to the creek northerly across land of other parties to the Ford County Road, which ran parallel to the creek and at some distance from it. This was the only practical outlet from the plaintiffs’ farm to the county road. The taking of the intervening strip of course cut off the use of the way, and the judge who tried the case found that it lessened the value of the farm $1,709. He allowed this sum in addition to $300 for the land taken. The United States took a writ of error on the ground that the former item was merely for collateral damage not amounting to a taking and of a kind that cannot be allowed; that at most it was oñly a.tort. The case is likened to the depreciation in value of a neighboring but distinct tract by reason of the use to. which the Government intends to put that which it takes. Sharp v. United States, 191 U. S. 341, 355.
The petition like the form of the finding lends some countenance to this contention, by laying emphasis on the damage[*339] to the farm, although it is to be noted that even in this aspect the damage is to the tract of which a part is taken. Sharp v. United States, 191 U. S. 354. But both petition and finding in substance show clearly that the way has been permanently cut off. A private right of way is an easement and is land. We perceive no reason why it should not be held to be acquired by the United States as incident to the fee for which it admits that it must pay. But if it were only destroyed and ended, a destruction for public purposes may as well be a taking as would be an appropriation for the same end. Miller v. Horton, 152 Mass. 540, 547. The same reasoning that allows a recovery for the taking of land by permanent occupation allows it for a right of way taken in the same manner, and the value of the easement cannot be ascertained without reference to the dominant estate to which it was attached. The argument is only confused by reference to cases like Gibson v. United States, 166 U. S. 269, Harvard College v. Stearns 15 Gray, 1, Smith v. Boston, 7 Cush. 354, &c., where it was held, although there are decisions the other way, that a landowner cannot recover for the obstruction of a public water course, the discontinuance of a public way, or the like. The ground of such decisions is that the plaintiff’s rights are subject to superior public rights, or that he has no private right, and that his damage, though greater in'degree than that of the rest of the public, is the sanie in kind. Here there is no question of the plaintiffs’ private right.
Judgment affirmed.
Mr. Jusa'iv'o Harlan concurs in the judgment only so far as it allows the item of 1300.