use is a
public use was left in doubt by the decision in United States ex rel.
T.V.A. _v._ Welch.[266] Speaking for the majority, Justice Black
declared: "We think that it is the function of Congress to decide what
type of taking is for a public use * * *"[267] In a concurring opinion
in which Chief Justice Stone joined, Justice Reed took exception to that
portion of the opinion, insisting that whether or not a taking is for a
public purpose is a judicial question.[268] Justice Frankfurter
interpreted the controlling opinion as recognizing the doctrine that
"whether a taking is for a public purpose is not a question beyond
judicial competence."[269] All agreed that the condemnation of property
which had been isolated by the flooding of a highway, to avoid the
expense of constructing a new highway, was a lawful public purpose.
Previous cases have held that the preservation for memorial purposes of
the line of battle at Gettysburg was a public use for which private
property could be taken by condemnation;[270] that where establishment
of a reservoir involved flooding part of a town, the United States might
take nearby property for a new townsite and the fact that there might be
some surplus lots to be sold did not deprive the transaction of its
character as taking for public use.[271]

RIGHTS FOR WHICH COMPENSATION MUST BE MADE

The franchise of a private corporation is property which cannot be taken
for public use without compensation. Upon condemnation of a lock and dam
belonging to a navigation company, the Government was required to pay
for the franchise to take tolls as well as for the tangible
property.[272] Letters patent for a new invention or discovery in the
arts confer upon the patentee an exclusive property for which
compensation must be made when the Government uses the patent.[273] The
frustration of a private contract by the requisitioning of the entire
output of a steel manufacturer is not a taking for which compensation is
required.[274] Where, however, the Government requisitioned from a power
company all of the electric power which could be produced by use of the
water diverted through its intake canal, thereby cutting off the supply
of a lessee which had a right, amounting to a corporeal hereditament
under State law, to draw a portion of that water, the latter was awarded
compensation for the rights taken.[275] An order requiring the removal
or alteration of a bridge over a navigable river, to abat