Com., Dept. of Highways v. Thomas

• Decision Date: 15 December 1967
• Parties: COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. M. W. THOMAS et ux., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 213

427 S.W.2d 213

COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. M. W. THOMAS et ux., Appellees.

Court of Appeals of Kentucky.

Dec. 15, 1967.

As Modified on Denial of Rehearing May 10, 1968.

Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Frankfort, Richard Weisenberger, Dept. of Highways, Paducah, for appellant.

Ben B. Wright, Hopkinsville, for appellees.

EDWARD P. HILL, Judge.

In this case the novel question is presented concerning the right of riparian or littoral landowners to recover for the destruction or impairment of their access to Barkley Lake by reason of the construction by appellant of a roadway, also by a fill across an inlet bordering on the landowners' property. The courts of the states are about equally divided in interpreting the law on this question.

The judgment appealed from awarded appellees $18,000 damages, from which only the Commonwealth appeals. The award of the county court commissioners was $7500.

Appellees own an 18-acre 'lakeside development' tract of land on Barkley Lake. Appellant is taking 1.87 acres for a road right of way. An additional 0.725-acre section is severed from the main tract and is left between the new road and the lake.

The west side of appellees' land fronts the main body of Barkley Lake. The north side fronts on a shallow inlet or cove known as Terrapin Creek Bay. A high earthen fill was planned across said Bay (which by now no doubt has been completed) so that the portion of appellees' land fronting on Terrapin Creek Inlet will have no access by water to Barkley Lake. The culvert at Terrapin Creek is too small for the passage of boats. So the small portion of land taken (less than two acres) has not grieved appellees nearly as much as the taking of their access from their lots adjoining Terrapin Creek Bay to the main body of the lake.

Appellants contend on this appeal that inasmuch as the land on which the fill across Terrapin Creek was constructed was not the land of appellees, they are in no position to complain; that appellees are not entitled to compensation for loss of access to Barkley Lake; and that the verdict is excessive.

On the first argument advanced by appellant, it may be said as a general proposition in highway condemnation cases that 'recovery for diminution of value suffered by virtue of construction and operation of adjacent public works is usually not allowed when no part of the property is deemed to have been taken.' Orgel on Valuation under Eminent Domain, vol. 1, 2d, § 54, p. 254. Appellant cites a number of cases involving the taking of land for highway purposes, which particularly refer to questions of rerouting of highways, loss of profits, inconvenience, rerouting of traffic, and loss of access. But these cases are of little assistance in determining the riparian rights of appellees herein.

We turn now to the question of the riparian or littoral rights, if any, of appellees. In doing so, our research leads us immediately to a jungle of confusion and inconsistencies. As proof of this statement, it is written in 93 C.J.S. Waters § 6, p. 606, that:

'The common-law rules as to riparian rights exist in a number of jurisdictions, but have been modified in some, while in others riparian rights have been abolished or do not exist.'

In Nichols on Eminent Domain, 3d, vol. 2, Riparian Rights, § 5.79, p. 223, it is said: 'There is very little uniformity in the decisions as to what constitutes a compensable interference with or destruction of the rights of a riparian proprietor.'

Riparian rights in the various states of this Union have been further confused by public rights and regulations. 65 C.J.S. Navigable Waters § 61.

We now take a look at some of the decisions denying recovery to riparian proprietors. First in this category is United States v. Rands et ux., 389 U.S. 121, 88 S.Ct. 265, 19 L.Ed.2d 329, decided November 13, 1967. Rands owned land on the Columbia River in the state of Oregan. It was taken by the United States in connection with the John Day Lock and Dam Project as a part of the comprehensive plain for the development of the Columbia River. The Supreme Court denied a recovery for the value of Rands' port site. His recovery was limited to the diminution in the value of his fast lands, disregarding the value of his port site. The U.S. Supreme Court said:

'But 'just as the navigational privilege permits the Government to reduce the value of riparian lands by denying the riparian owner access to the stream without compensation for his loss, it also permits the Government to disregard the value arising from this same fact of riparian location in compensating the owner when fast lands are appropriated.' United States v. Virginia Elec. & Power Co., 365 U.S. 624, 629, 81 S.Ct. 784, 788, 5 L.Ed.2d 838 (1961).'

As recently as October 3, 1967, in Colberg, Inc. v. State ex rel. Department of Public Works, 62 Cal.Rptr. 401, 432 P.2d 3, California denied recovery to the riparian proprietors, Colberg and Stephens. For sixty years they had owned and conducted shipyards for the construction and repair of yachts and ocean-going vessels on the Stockton Deep Water Ship Channel, a navigable tidal waterway extending from the mouth of the San Joaquin River to the Port of Stockton.

It should be noted in this connection that while California has a constitution similar to our own, requiring 'just compensation' for land taken for public use, yet the 'State of California holds all of its navigable waterways and lands lying beneath them 'as trustee of a public trust for the benefit of the people." The interference by the state, giving rise to the litigation, consisted of the construction of a bridge arching 45 feet above the water line so that most ocean-going vessels could not get to plaintiffs' shipyards.

In denying recovery, the California court said in Colberg, supra, 432 P.2d at page 11:

'As we have shown above, the power of the State of California to deal with its navigable waters, though subject to the superior federal power, is considerably wider in scope than that paramount power. The state, as owner of its navigable waterways subject to a trust for the benefit of the people, may act relative to those waterways in any manner consistent with the improvement of commercial traffic and intercourse. We are of the further view that the law of California burdens property riparian or littoral to navigable waters with a servitude commensurate with the power of the state over such navigable waters, and that 'when the act (of the state) is done, if it does not embrace the actual taking of property, but results merely in some injurious effect upon the property, the property owner must, for the sake of the general welfare, yield uncompensated obedience.' (Gray v. Reclamation District No. 1500, supra, 174 Cal. 622, 636, 163 P. 1024, 1030).'

Taking its place along with the Supreme Court of the United States and the state of California, our own sister state of Ohio held in State ex rel. Anderson v. Masheter, 1 Ohio St.2d 11, 203 N.E.2d 325 (1964), that a riparian proprietor operating a marine terminal on the Maumee River could not recover damages to his business occasioned by the construction of a lowlevel bridge several thousand feet down-river from his property. The court said on page 328 of 203 N.E.2d:

'Where the construction of a bridge across a navigable stream is properly authorized, riparian owners who have access to the navigable part of the stream but who are cut off from navigation to and from the outside world have no constitutional right to compensation.'

To the short majority opinion in Masheter, supra, Judge Herbert wrote an exhaustive dissent, in which he took the position that Masheter was not founded upon Ohio case law precedent.

Other states, including the so-called arid midwestern states, have followed the line of authorities denying recovery to riparian proprietors in cases similar to the one at bar.

States that have taken the opposite view and allowed recovery for impairment of riparian rights include: Florida, Tennessee, Virginia, Ohio, Michigan, Oregon, Washington, our own state of Kentucky, and many others. See 65 C.J.S. Navigable Waters § 67, note 33.

All the authorities agree that riparian rights in navigable waters are held in subordination to the right of the public to navigate such waters and to make improvements in aid of such navigation. Before the construction of Barkley Dam and the resulting formation of Barkley Lake, the Cumberland River in the vicinity of the property here involved was a navigable stream. Consequently, Barkley Lake...