(dissenting).
It seems to me there is no substantial reason for not applying the same rule for determining just compensation in the instant cases that we held to be applicable in United States v. Jaramillo, 10 Cir., 190 F.2d 300.
The hardy pioneers who settled the semiarid West early learned that ample water for livestock was of paramount importance. Hence, they acquired by homesteading and by purchase, tracts of land where water supply from streams, springs, and wells could be developed that would enable them to carry not only the livestock that could be grazed on their privately-owned lands, but many more livestock that could be grazed on adjacent public domain where grass was abundant, but little water available. By controlling the lands which would supply water they' controlled the use of the adjacent public domain. Enduring privations, suffering hardships, and encountering grave dangers, these settlers developed livestock raising enterprises that provided them with homes and a means of livelihood.
They first used the public domain under an implied license.1 Ultimately, they utilized the public domain under preferential permits issued under the Taylor Grazing Act.2
In the instant cases the landowners whose private lands were condemned had developed valuable water and water rights in their privately-owned lands and hold preferential grazing permits on public lands adjacent to their privately-owned lands. In Oman v. United States, 10 Cir., 179 F.2d 738, 742, we said: “As long as the permits were unrevoked, a grantor would have no more right to interfere with their exercise than would any third party. In fact, by the very terms of the Taylor Act, the grantor (defendant) had not merely a duty to refrain from the invasion of plaintiffs’ grazing privileges, but an affirmative obligation to adequately safeguard them.”
It is true that the Secretary of the Interior is authorized under the Taylor Grazing Act to withdraw lands from grazing districts and to cancel or revoke permits.3 *298While the allegations of the amended complaints in the instant cases warrant the inference that the public lands adjacent to the privately-owned lands were to be included in the project for which the privately-owned lands were to be taken, at the time of the taking and at the time of the trial below the public lands had not been withdrawn from the grazing district by the Secretary of the Interior and the permits had not been revoked, but were in full force and effect. The declaration of taking did not embrace the permit rights. The United States did not undertake to condemn those rights. Indeed, it expressly affirms the contrary. Until the permit rights are cancelled or revoked the taking is subject to them.
In valuing privately-owned ranch properties which control available water supply in the semi-arid West, buyers and sellers for many years have taken into consideration the availability and accessibility of public lands which can be utilized in connection with the privately-owned lands and water under preferential grazing privileges. Without available water supply to provide drink for livestock grazing on public domain, the public lands are of little value. But, their availability and accessibility for use in connection with private lands which control the water supply substantially increase the value of the privately-owned lands.
Just compensation means the full and perfect equivalent in money of the property taken. The compensation to which the owner is entitled rests on equitable principles.4 “The owner is to be put in as good position pecuniarily as he would have occupied if his property had not 'been taken.”5 Market value is the ordinary criterion. It is what a willing buyer would pay in cash to a willing seller, when neither is acting under compulsion.6 Market value is to be determined as of the time of the taking.7
The value should be fixed by considering the property in its condition and situation at the time it was taken.8
A reduction or increase in the value of the property taken which results from governmental action providing for the project cannot be considered.9
We are not here concerned with consequential damages that will result from the ultimate cancellation or revocation of the permits. Clearly, no such damages can be recovered. Rather, our question is the fair market value of the privately-owned lands and the valuable water and water rights developed by the landowners thereon in the environment in which such lands and water rights were situated at the time of the taking.
Prudent sellers and buyers of land, in arriving at market value, take into consideration the environment in which the land is located. That environment may enhance, and it may detract from, the value of the land.
*299In Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 708, 78 L.Ed. 1236, the court said:
“The judicial ascertainment of the amount that shall be paid to the owner of private property taken for public use through exertion of the sovereign power of eminent domain is always a matter of importance for, as said in Monongahela Navigation Co. v. United States, 148 U.S. 312, 324, 13 S.Ct. 622, 625, 37 L.Ed. 463: Tn any society the fullness and sufficiency of the securities which surround the individual in the use and enjoyment of his property constitute one of the most certain tests of the character and value of the government.’ The statement in that opinion (page 326 of 148 U.S., 13 S.Ct. 622, 626, [37 L.Ed. 463]) that ‘no private property shall be appropriated to public uses unless a full and exact equivalent for it be returned to the owner’ aptly expresses the scope of the constitutional safeguard against the uncompensated taking or use of private property for public purposes. Reagan v. Farmers’ Loan & Trust Co., 154 U.S. 362, 399, 14 S.Ct. 1047, 38 L.Ed. 1014.
t( * % ❖ * * *
“In respect of each item of property that value [market value] may be deemed to be the sum which, considering all the circumstances, could have been obtained for it; that is, the amount that in all probability would have been arrived at by fair negotiations between an owner willing to sell and a purchaser desiring to buy. In making that estimate there should be taken into account all considerations that fairly might be brought forward and reasonably be given substantial weight in such bargaining. Brooks-Scanlon Corp. v. United States, 265 U.S. 106, 124, 44 S.Ct. 471, 68 L.Ed. 934.” (Italics mine.)
The contention of counsel for the United States, and the postulate upon which the majority rests its conclusion, if I correctly understand it, is that since the public lands were to be embraced within the project, they would not in the future be available for use in connection with the privately-owned lands under grazing permits and, hence, they should not be considered in arriving at the value of the privately-owned lands. But, the permits were in full force and effect when the land was taken and that postulate, in my opinion, departs from the rule that value is to be fixed for the property as it stands on the date of the taking. In United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336, the court held that in arriving at the value of lands taken for a public project, an increase in value which would result from the construction of the project could not be considered. It seems to me the converse must be true that a decrease in value that would result in the future from the construction of the project should not be considered. My views may be expressed more concretely by an illustration: Let us assume that an individual owns a block of land in a city on which he has constructed his home; that it is situated on a two lane parkway street with the parkway beautifully landscaped; that adjacent to the home there is located a public park and a public school which enhance the value of his block of land; that the municipality owning the public park, street, and the public school decides to demolish the school and to utilize the school grounds, the street, and the public park for the construction of a stadium and for parking space and roadways leading thereto, and that it sought to condemn the privately-owned block of land to be included in the project. Obviously, any enhancement of value that would result from the construction of the project could not be considered in arriving at the value of the individual’s privately-owned block of land. Likewise, it seems to me, that the municipality could not urge that in determining the market value of the privately-owned land at the time of the taking, consideration could not be given to the enhancement of value resulting from the public park, parkway street and public school, because it was contemplated that in the future the park, the parkway street and school building would cease to exist and would no longer be available. I emphasize that the question is not consequential damages resulting from the talcing away of the park, the parkway street and the school for other public purposes, but the value of the privately-owned *300land taken in its environment at the time of the taking.
Of course, compensation may not be awarded for the value of the permits. But, it does seem to me that to the extent public lands adjacent to the privately-owned lands available on the date of the taking for use in connection therewith increased the value of the privately-owned lands and water rights, such increased value was a proper item to be taken into consideration in determining the value of the privately-owned lands. It is an element, which together with the water and water rights developed on the privately-owned lands, any purchaser of the privately-owned lands under the conditions existing on the date of the taking would have taken into consideration. To deny the landowners that element of value will not give them the full and perfect equivalent in money of their property taken on the date of the taking. It will deny the landowners any value whatever for a large portion of the water and water rights they have developed on their privately-owned lands. I cannot believe the law is so inflexible that it cannot accommodate itself to the unusual factual situations here presented and award to these landowners fair and just compensation for their privately-owned lands and the water and water rights developed thereon.
At the trial below, counsel for the United States concurred in the views I have expressed. The Court gave, at their request, the following instruction, in Number 4201: “You are to determine, only the value of the privately owned land. In determining the value of the privately owned land you may consider the existence of the permit to graze livestock on the public domain as bearing upon the value of the tracts owned by the condemnee but you are specifically charged you cannot make an allowance for the taking of the public domain itself upon which the land owner had a grazing permit because that is a mat- ■ ter to be determined by the War Department outside of the condemnation proceedings.”
And they requested substantially the same instruction in Number 4148.
It is my view that the judgment should be reversed and the cause remanded with instructions to determine the value of the privately-owned lands in accordance with the views I have expressed.
. Buford v. Houtz, 133 U.S. 320, 326, 10 S.Ct. 305, 83 L.Ed. 618.
. 43 U.S.C.A. § 315b, in part, provides:
“Preference shall be given in the issuance of grazing permits to those within or near a district who are landowners engaged in the livestock business, bona fide occupants or settlers, or owners of water or water rights, as may be necessary to permit the proper use of lands, water or water rights owned, occupied, or leased by them”.
. Oman v. United States, 10 Cir., 179 F.2d 738.
Cf. Red Canyon Sheep Co. v. Ickes, 69 App.D.C. 27, 98 F.2d 308.
. Seaboard Air Line Ry. Co. v. United States, 261 U.S. 299, 304, 43 S.Ct. 354, 67 L.Ed. 664.
. United States v. Miller, 317 U.S. 369, 373, 63 S.Ct. 276, 279, 87 L.Ed. 336; Seaboard Air Line Ry. Co. v. United States, 261 U.S. 299, 304, 43 S.Ct. 354, 67 L.Ed. 664.
. United States v. Miller, 317 U.S. 369, 374, 63 S.Ct. 276, 87 L.Ed. 336; Olson v. United States, 292 U.S. 246, 257, 54 S.Ct. 704, 78 L.Ed. 1236; Maher v. Commonwealth, 291 Mass. 343, 197 N.E. 78, 81.
. United States v. Klamath and Moadoc Tribes of Indians, 304 U.S. 119, 123, 58 S.Ct. 799, 82 L.Ed. 1219; Danforth v. United States, 308 U.S. 271, 283, 60 S.Ct. 231, 84 L.Ed. 240; Jacobs v. United States, 290 U.S. 13, 17, 54 S.Ct 26, 78 L.Ed. 142; Seaboard Air Line Ry. Co. v. United States, 261 U.S. 299, 306, 43 S.Ct. 354, 67 L.Ed. 664.
. Seaboard Air Line Ry. Co. v. United States, 261 U.S. 299, 306, 43 S.Ct. 354, 67 L.Ed. 664; United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 76, 33 S.Ct. 667, 57 L.Ed. 1063.
. Playa De Elor Land & Imp. Co. v. United States, D.C. Canal Zone, 70 F.Supp. 281, 357, modified on other grounds, United States v. Playa De Flor Land & Imp. Co., 5 Cir., 160 F.2d 131.