(dissenting):
I respectfully dissent. In my opinion, the court must start with the proposition that we held in our prior opinion in this case (181 Ct.Cl. 739 (1967)) that the plaintiffs were entitled to be paid for the “power value of their tribal lands.” The defendant there contended that the plaintiffs had been paid the power value of their lands, but the plaintiffs argued this was not so. The contentions of the parties were stated in our opinion as follows:
Finally, the Government argues that the provisions of the license to Montana Power Company, now challenged by the plaintiffs, caused no loss to them and therefore that nothing can be owing. * * * The Tribes rightly answer that this is a matter for the proofs * * *. Summary judgment cannot be awarded on a controverted factual question of this kind. [Emphasis supplied.] [Id. at 752.]
With the ease in this posture, we sent it back for a trial to allow the plaintiffs to prove, if they could, that under the license of May 23, 1930, they were deprived of the full power value of their lands used by the licensee. They did not make this proof at the second trial, nor did they even attempt to do so, notwithstanding the knowledge and information gained from our prior opinion as well as that obtained from literally dozens of pre-trial conferences held by the trial commissioner as to the issue and burden of proof at the second trial. They contented themselves by attempting to prove the value of the power received by the government from the licensee after the license was granted. The trial commissioner properly held this to be insufficient. In my opinion, to allow proof of the power value of the tribal lands in this fashion would be somewhat like allowing a condemnee in an eminent domain case to prove he was not paid the full value of his land in the condemnation proceedings by showing, after the condemnation is completed, the profit made by the condemnor in selling gravel from the land after it got title. After all, it is the loss to the owner and not the gain to the taker that is compensable. United States v. Miller, 317 U.S. 369, 375, 63 S.Ct. 276, 87 L.Ed. 336 (1943); and United States v. Twin City Power Co., 350 U.S. 222, 228, 76 S.Ct. 259, 100 L.Ed. 240 (1956).
The majority, in sending the case back for another trial, is giving the plaintiffs a second chance to prove what they should have proved, if they could, at the last trial, namely, that the license deprived them of the full power value of their tribal lands, and how much. So, we are back where we were when we handed down our prior opinion. The majority acknowledge they are being lenient toward the plaintiffs and that they “do not hold the plaintiffs strictly to their failure, up to now, to prove the existence and the amount of any loss they may have incurred,” because they are Indians. For this reason, the case is being remanded to the trial commissioner so that the plaintiffs may have a second chance to prove their case. Does the majority mean, at least by inference, that if the plaintiffs were not Indians they would not be given another trial? I do not agree with this reasoning or with what appears to me to be preferential treatment being given the plaintiffs in this case because they are Indians. This is not a case where the Indians are appearing pro se without the advice and services of counsel. In fact, they are represented by one of the ablest, most skillful and experienced law firms in the country in the field of Indian litigation.1 It *1344seems to me that when Indians appear before this court represented by able counsel, as in this case, we should give them the same fair treatment and consideration we give to all other litigants who are so represented in our court.
Finally, I do not agree with the measure of damages and standard of proof the majority has prescribed for the second trial of the issue involved in this case, which is:
* * * To recover, plaintiffs must prove that a supposititious willing buyer desiring to develop the site for power purposes, and able to obtain the necessary license, would have paid, and a willing owner would have accepted, a higher rental than the amount actually paid, if the former had not been burdened "with the necessity to sell at the prescribed rate the block of 15,000 horsepower to the Federal Government, and then the plaintiffs must show the probable amount of that excess.
This statement (except for the last clause) is apparently an attempt on the part of the majority to define “power value” of the lands in question. I think it is deficient for the following reasons:
It does not take into consideration the contributions of the government to the project such as land, water, money and other property as found by the trial commissioner, but makes it appear that everything connected with the project was contributed by and owned by the plaintiffs. In other words, the definition does not take into consideration all of the facts and circumstances then and there existing at the time of the taking — it only emphasizes the 15,000 horsepower burden on the license, much of which was not prime power, but was worthless surplus or “dump” power which would not otherwise have been sold or used.
The statement concludes by saying “the plaintiffs must show the probable amount of that excess” (if any). This appears to be highly speculative, indefinite and uncertain. A “probable” amount of excess would hardly support a judgment of any kind.
Even if the definition is applied to conditions and circumstances as they existed in 1930, which of course would have to be done, the plaintiffs will no doubt find that they have an impossible burden. It is highly unlikely that any responsible person can be found today, almost 40 years after the license was issued, who would give credible testimony that any “supposititious” (supposed, imaginary, hypothetical) company would have paid more in 1930 than the licensee paid if the 15,000 horsepower had been omitted. The purchase of such a license by a power company involves many factors such as need, costs, markets, plants, rates, locations, capital, distribution systems, investigations, evaluations, future plans, and many others, including decisions by its officers and directors. These factors constantly change. The testimony of anyone attempting to apply the “willing seller” — “willing buyer” test to the situation existing in this case 40 years ago will probably be so highly speculative and conjectural as to be without any probative value.
I think that the issue here is, and always has been: Were the plaintiffs paid the full power value of their tribal lands, and if not, what was the deficiency? The burden was on the plaintiffs to prove they were not so paid and the amount of the deficiency. This they have not done, and it is very doubtful if they can do so even with a second trial.
To put it another way, the plaintiffs must prove that the power value of their tribal lands at the time the license was issued in 1930, under all the facts and circumstances then and there existing, was more than that found and fixed for it by the Federal Power Commission, and how much.2
*1345In my opinion, the trial commissioner was correct when he found:
8. The evidence does not establish that under the license issued on May 23, 1930, plaintiffs were deprived of the full power value of the Tribes’ land used by the licensee. [Commissioner’s Memorandum Opinion filed December 3, 1968.]
I would adopt the commissioner’s opinion and dismiss plaintiff’s suit.
. The plaintiffs’ attorneys were leading counsel in a ease in which the largest judgment ever awarded by this court in an Indian case, or any other kind of case, was given ($31,938,473.43). See Confederated Band of Ute Indians v. United States, 117 Ct.Cl. 433 (1950), and Confederated Band of Ute Indians v. United States, 120 Ct.Cl. 609 (1951).
. Except for the generosity of the government, the plaintiffs would be entitled to nothing whatsoever for the power value of their land. This is because the power dam in this case is located on a navigable stream in which the government owns *1345the water power and can exclude riparian owners from its benefits without compensation, or grant the same, as it chooses. United States v. Twin City Power Co., supra.