Natcher v. City of Bowling Green

• Decision Date: 02 June 1936
• Citation: 264 Ky. 584,95 S.W.2d 255
• Parties: NATCHER et al. v. CITY OF BOWLING GREEN et al.
• Court: Kentucky Court of Appeals

95 S.W.2d 255

264 Ky. 584

NATCHER et al. v. CITY OF BOWLING GREEN et al.

Court of Appeals of Kentucky

June 2, 1936

Appeal from Circuit Court, Warren County.

Suit by Blanche G. Natcher and another against the City of Bowling Green and others. From a judgment for the defendant, the plaintiffs appeal.

Reversed and remanded.

Milliken & Milliken, of Bowling Green, for appellants.

Rodes &amp Harlin, J. Frank Denton, and John B. Rodes, all of Bowling Green, for appellees.

STANLEY Commissioner.

The suit is by the appellants, Blanche G. Natcher and husband seeking to compel the removal by the city of Bowling Green and its officers of a dam erected across Barren river and to recover damages for the consequent destruction of her gravel bars. The judgment went for the defendants.

Barren river forms the northern boundary of Bowling Green. In the north-east corner of the city is the pumping station of the municipal waterworks, and above and adjoining it outside the city limits is the property of the plaintiff. For a great many years the city and its predecessor owner of the water system have obtained the supply from a natural pool at this point. It is about 18 feet deep, and extends nearly or all the way across the river, which is nearly 200 feet wide. Just above this are three gravel and sand bars from which material has been taken for many years. Title to two of these bars was adjudged to be in Mrs. Natcher's remote vendor in Strange v. Spalding, 29 S.W. 137, 17 Ky.Law Rep 305. In the natural and seasonable flow of the river these bars or islands were submerged perhaps half the time. During the other part of the year they normally stood well out of the water, and the owner was able to send in wagons and haul out the gravel. During part of this time there was practically no channel or flow between them and the shore. The plaintiffs' evidence showed that there is an unusually valuable combination of gravel and sand, sufficient for concrete work without cleaning or further mixture, and that the proceeds from the sales of gravel have been $900 a year. The effect of the dam has been to submerge the bars 3 feet or more during the lowest tides. The plaintiffs' proof is that not only does this prevent or hinder getting out the gravel, but it has destroyed the value of the deposits because of the change in the current, with consequent diversion of the accretions and the forming of sediment on them. The defendants' proof minimizes the values and damages.

In and on a navigable stream, the title of riparian owners up to the ordinary high-water mark, and particularly of the bed and islands therein, is a qualified one, for it is subject to the dominant rights of the public in the stream. Navigable rivers are and have always been regarded as public highways. If the sovereign in the exercise of its power improves the stream for purposes of navigation, the individual's rights of property recede before the paramount power of improvement and development. 27 R.C.L. 1335, 1338; Terrell v. City of Paducah, 122 Ky. 331, 92 S.W. 310, 28 Ky.Law Rep. 1237, 5 L.R.A. (N.S.) 289; Paducah Sand & Gravel Co. v. Central Home Tel. & Teleg. Co., 209 Ky. 756, 273 S.W. 481; Lewis Blue Point Oyster Cultivation Co. v. Briggs, 229 U.S. 82, 33 S.Ct. 679, 57 L.Ed. 1083, Ann.Cas. 1915A, 232.

The legal conflict has been waged ably and exhaustively around the major point of whether Barren river at and above the city is a navigable stream. Up to what is called the "boat landing," about 12 miles by the river, but only a mile or so from the city by land, due to a big bend in the stream, the United States government has control, and steamers traverse it, or did so until quite recently. Above that point and far beyond Bowling Green to the mouth of Bays fork, where there was once a village called Martinsville, a hundred years or so ago the river was navigated. The Legislature in 1809, 1810, and 1824 empowered certain individuals to raise funds by subscription and remove obstructions to navigation up to that point. 4 Littrells' Laws, p. 116; Acts of 1823, p. 408. In 1834 and 1835 acts were passed providing for the improvement of navigation on this river, and in 1868, the Green and Barren River Navigation Company was chartered. Acts of 1834, p. 497; Acts of 1835, p. 286; Acts of 1868, p. 599. However, there has been no navigation above the boat landing, except perhaps in insignificant proportions by canoes or skiffs, for many many years. The stream is a succession of pools and gravel bars above that point, and the evidence shows it is impossible of convenient navigation even for such small craft. But the city maintains it is historically and potentially a navigable stream. Whether it is to be now deemed a navigable stream under the tests laid down by the authorities is a question which, it seems to us, may be avoided. We will accept the contentions of the city and the judgment of the trial court that it is in law a navigable stream. But it is extremely doubtful. See United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746, reviewing Kentucky and many other cases; Mayor and City Council of City of Havre de Grace v. Harlow, 129 Md. 265, 98 A. 852, 857; Murray v. Preston, 106 Ky. 561, 50 S.W. 1095, 21 Ky.Law Rep. 72, 90 Am.St.Rep. 232.

After the American Revolution all the proprietary rights of the crown and Parliament in and all dominion over navigable waters and the soil under them vested in the several states, subject to the powers surrendered to the federal government by the Constitution of the United States. Scott v. Lattig, 227 U.S. 229, 33 S.C. 242, 57 L.Ed. 490, 44 L.R.A. (N.S.) 107; Appleby v. City of New York, 271 U.S. 364, 46 S.Ct. 569, 70 L.Ed. 992; People v. Welch, 141 N.Y. 266, 36 N.E. 328, 24 L.R.A. 117, 38 Am.St.Rep. 793; Water & Water Rights, Farnham, §§ 10, 11; 45 C.J. 492. A state may exercise plenary control over the navigable waters within its limits up to the ordinary highwater mark in the absence of action by Congress or its agency under the commerce powers of the Federal Constitution (Const. art. 1, § 8, cl. 3). However, when private property is taken, it is in subordination to the constitutional provisions respecting compensation. North Shore Boom & Driving Co. v. Nicomen Boom Co., 212 U.S. 406, 29 S.Ct. 355, 53 L.Ed. 574; United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746; 27 R.C.L. 1325; Green & Barren River Navigation Co. v. Chesapeake, Ohio & Southwestern R. Co., 88 Ky. 1, 10 S.W. 6, 10 Ky.Law Rep. 625, 2 L.R.A. 540.

The United States government has assumed no control of the river at the point involved and is not concerned in this matter.

The state of Kentucky by statute governing the city of Bowling Green and other cities of the third class has delegated its dominion to those cities by granting to their common councils the power "to improve and preserve the navigation of any navigable rivers within or adjoining said city." Section 3290-30, Kentucky Statutes. That is at once a grant and a limitation.

The vital question is whether the city erected this dam under the delegated authority of the state and for the purpose of improving or preserving navigation. When the city was rebuilding its waterworks some time in 1928, the consulting engineers recommended that a dam be built in order to increase the supply. During the unprecedented drought of 1930 there was anxiety on the part of the officials concerning the future water supply, and some thought was then given to erecting a temporary dam. However, in obedience to a proclamation of the mayor asking for economical use and conservation, there was a substantial decrease in the consumption, and it became unnecessary to do anything further. In 1932, the same engineers renewed their recommendation as to the dam. In the spring of 1933, the city foreman, under orders of the board of public works and with labor paid by the national government, laid a dam across the river about 300 feet below the pool and 2,800 feet from the appellants' gravel bars. It is about 6 feet in height and built of loose rocks and boulders obtained at the site. As stated above, the effect was to back up the water and cover the appellants' gravel bars 3 feet or more at the lowest stages of the river. There was no formal action of the city council at the time the dam was constructed. It was not laid in front of the city's property, but permission was obtained from W. A. Francis, who owned both shores and the bed of the stream at the point. Francis owns gravel bars immediately below the dam, and the city and county have been getting out gravel under a co-operative arrangement to the mutual benefit of all three. The Honorable John B. Rodes, who was mayor of Bowling Green at the time, testified that there was a threefold purpose in building the dam: First, to obtain the benefit of Francis' gravel bar; second, to secure the depth and capacity of the pool for the intake of the pumping system of the waterworks; and, third, "the improvement in the navigation of the river." This last-stated purpose must be considered in the light of Mr. Rodes' entire testimony which, on this point, was in effect that the dam created slack water for perhaps two miles, thus affording facilities for skiffs, canoes, and motorboats. Later in his testimony he said that it was for recreation and navigation. It does not appear that there has been any substantial use of the pool by even the small pleasure craft, but it is used as a public bathing resort.

The foreman in charge of the work under the supervision of the mayor testified that it was not built to create a swimming pool or to increase navigability or to enable the city to get gravel below the dam, but that it was for the "benefit of the water works; to raise the pool so as we would...