Murray, &C., v. A. & L. M. Preston

• Decision Date: 06 May 1899
• Citation: 106 Ky. 561
• Parties: Murray, Etc. v. A. & L. M. Preston.
• Court: Kentucky Court of Appeals

Page 561

106 Ky. 561

Murray, Etc. v. A. & L. M. Preston.

Court of Appeals of Kentucky.

May 6, 1899.

APPEAL FROM JOHNSON CIRCUIT COURT.

JAMES GOBLE FOR THE APPELLANTS.

STEWART & STEWART FOR THE APPELLEES.

JUDGE HOBSON DELIVERED THE OPINION OF THE COURT.

Appellees had a large quantity of staves on the waters of Chestnut creek, in Johnson county, which they desired to float down the stream, and with this view, obtained an act from the Legislature declaring it a navigable stream. Appellant owned the land on both sides of the creek near its mouth, and had placed water gaps across it, in his fencing; he also had a mill and dam, which he had maintained for many years; and he objected to appellees clearing out the stream and floating their staves out. They then obtained an injunction enjoining him from obstructing the stream, and on final hearing the injunction was made perpetual; and he was required not to put any water gaps across the creek, or do anything else that would interfere with its use as a navigable stream.

He seeks the reversal of this judgment.

The first question is, what is the effect of the act of the Legislature declaring this creek a navigable stream?

The Constitution of the State forbids private property being taken for public use without just compensation being previously made. If the creek was not a navigable stream when this act was passed, it was the private property of the owners of the adjoining lands. If it was the private property of appellant, within the boundary of his land, the Legislature could not divest him of his rights by simply calling it a navigable stream, when it was not one in fact. The rule on this subject is thus stated in Cooley on Constitutional Limitations (side page 591):

"The question, what is a navigable stream, would seem to be a mixed question of law and fact; and, though it is said that the Legislature of the State may determine whether a stream shall be considered a public highway or not, yet, if in fact it is not one, the Legislature can not make it so by simple declaration, since, if it is private property, the Legislature can not appropriate it to a public use without providing for compensation."

It remains, therefore, to consider whether this creek was in fact a navigable stream when so declared by the Legislature. It is not contended that it was navigable for boats or other water craft, but only that it was a floatable stream. The law in regard to this kind of streams is well stated by a standard author as follows:

"There is a class of streams which, although not navigable by boats or lighters, are yet susceptible, for the whole or a portion of the year, of valuable use for the purpose of floating logs and other products of the country along their banks to market or to mills, and which are considered, to that extent, navigable. But if such stream, in its natural state, is not floatable, it is absolutely private, and, though made floatable by the owner by artificial means, is not subject to public use, nor where it is only fit for that purpose during high water or periodical freshets. A stream that would not float logs without the aid of a person in a canoe, or of people on the banks, to push them along, and when the logs are frequently injured by the difficulty in passing them through, is not a navigable stream. The public may use a stream for floating logs, although it may injure the riparian owner, or, although it may at times be necessary to go upon its banks to effect such floating, and one is not liable to a riparian owner on whose land they strand. But a needless obstruction, or negligence in any respect, will render the party liable."...