dissenting.

The court today achieves rough justice between the parties but in so doing blurs over significant legal distinctions. I am therefore unable to join the court’s opinion, which may prove to be a troublesome precedent in future cases where the United States condemns land within local political subdivisions.

The court and I part company at its assertion that this is “a dispute over the water rights appurtenant to the fee simple in the land taken by the Navy.” At 718. The court treats the water here in question as a common law property right, akin to a riparian right or a right to extract minerals. As I read the record, however, the right to water is quite different in character: it is a benefit of membership in YMID, a political subdivision of the state of Arizona. Indeed, providing water is the only service YMID offers and the only reason for its existence.

That the service in question happens to resemble a common law property right 1 ought not distract us from its fundamental character as a political right dependent upon membership in a governmental entity, much like the right to police and fire protection. This distinction was recognized by the Department of the Interior which bluntly rejected the approach adopted by the court today:

Letter from Alexander H. Good, Associate Solicitor, Department of the Interior, to Gary Peterson, Assistant Chief, Land Acquisition Section, Department of Justice (April 28, 1983) (emphasis added). As the Executive Branch Department charged with providing YMID water and monitoring its compliance with applicable federal statutes, regulations and contracts, I should think we would give the Interior Department’s opinion on this issue significant weight.

The court ignores the restriction on YMID’s authority to provide water based on its conclusion that there really are no obligations of membership in YMID (other than to pay for the water) and that “the Navy occupies with respect to its rights to water a position no better than that of other landowners.” At 719. While this may be true, I am not sure why it matters. Whether the obligations of membership in YMID are few or many, and whether the Navy is being treated fairly or not, the fact remains that the Navy is not a member of YMID. In my view, it simply will not do to say “close enough” and force YMID to deal with the Navy as if it were one of its members.

The result the court reaches certainly comports with common sense and fair play: if YMID is to receive “a lump-sum payment equivalent to the payments a private landowner would have made in the upcoming *722 years,” this should “entitle the government to water” in the same amount. At 719. However, this approach stands the law of eminent domain on its head. It not only forces YMID to provide water in contravention of its charter, but it also requires the United States to pay for water it has not condemned. The normal rule, of course, is that the condemning authority only pays for that which it has condemned. See Olson v. United States, 292 U.S. 246, 255 , 54 S.Ct. 704, 709 , 78 L.Ed. 1236 (1934); see generally, 3 Nichols On Eminent Domain §§ 8.6, 8.6[1] (1985).

My approach is different. I would start with the proposition that, by virtue of our earlier ruling, the United States is deemed to have condemned a portion of YMID’s assessment base, but nothing more. Since the United States did not condemn the water, and since I can find no independent right for the United States to receive water, I would hold that the United States is not entitled to any water. The question I would then address is the following: What does the United States owe YMID, given that it has reduced its assessment base while at the same time eliminating its obligation to provide water for 77.4 acres? The rule, as the court recognizes, is that “the owner of the condemned property ‘must be made whole but is not entitled to more.’ ” Olson, 292 U.S. at 255 , 54 S.Ct. at 709 (emphasis omitted), quoted with approval in United States v. 564-54 Acres of Land, 441 U.S. 506, 516 , 99 S.Ct. 1854, 1860 , 60 L.Ed.2d 435 (1979). Where the United States only takes part of the property, or where the condemnation confers a benefit to the condemnee, the value left to the condemnee is taken into account in calculating the amount of compensation. United States v. Miller, 317 U.S. 369, 376 , 63 S.Ct. 276, 281 , 87 L.Ed. 336 (1943); United States v. Trout, 386 F.2d 216, 221 (5th Cir.1967). In other words, the United States need pay only for the diminution in value to the condemnee. Here the amount the United States has taken from YMID is the narrowing of its assessment base, offset by the value of the water it saves. 2

The approach taken by the majority requires the United States to make a large payment at the outset and obligates YMID to provide water, presumably in perpetuity. Under the approach I suggest, the United States would, in all likelihood, be required to make a much smaller payment, and the land would be cut free of all rights and obligations with respect to YMID. If the United States then wants water, it can sign a contract with YMID or condemn the water. While both results comport with justice, the result adopted by the court forces the United States and YMID into an uneasy, undefined relationship that can only result in friction between them. The majority’s approach also sets a precedent that in all likelihood will be troublesome in future cases. I therefore respectfully dissent.

. The resemblance between the service provided by YMID and a common law water right is less striking than would at first appear. YMID’s water does not flow freely with the forces of nature but is dammed, piped, pumped and metered. It more closely resembles the service provided by a municipal water company.

. While the United States has not argued this theory, it has appealed from the district court’s judgment on other grounds. See at 717. It is unnecessary to address whether the United States has waived its claim to an offset as a result of its conduct of the litigation. It suffices to note that any waiver by the United States cannot inure to the detriment of YMID, which has consistently and forcefully maintained that it may not be obligated to provide water. If the analysis I have suggested is correct, it would be correct even if the United States were unable to take advantage of its full implications because of a procedural default.