Pierson v. Coffey
| Decision Date | 27 September 1985 |
| Docket Number | No. 85-CA-218-MR,85-CA-218-MR |
| Citation | 706 S.W.2d 409 |
| Parties | John H. PIERSON, and Gynelle Pierson, husband and wife, Appellants, v. Harold COFFEY, and Jerry Deal, Individually and doing business as C & D Harbor Service; C & D Harbor Service, Inc.; and Kenneth E. Love, Individually and doing business as Marine Service, Jointly and Severally, Appellees. Harold COFFEY; and Jerry Deal, Individually and doing business as C & D Harbor Service; and C & D Harbor Service, Inc., Cross-Appellants, v. John H. PIERSON; and Gynelle Pierson, husband and wife, Cross-Appellees. |
| Court | Kentucky Court of Appeals |
J. William Phillips, Murray, for John H. Pierson and Gynelle Pierson.
Timothy A. Langford, Hickman, for Kenneth E. Love.
Thomas L. Osborne, Paducah, Larry G. Kelley, Wickliffe, for Harold Coffey, Jerry Deal, and C & D Harbor Service, Inc.
Before HAYES, C.J., and GUDGEL and WHITE, JJ.
This is a case of first impression. The principal issue is whether a commercial barge fleeting service company, which conducts its business on the Mississippi River by using boulders and anchor buoys placed on the riverbed without the consent of adjacent riparian property owners, may be adjudged liable for damages for trespass. The trial court adjudged that it could not. We disagree with the court's conclusion on this and another issue, although we agree with several of the court's other rulings. Hence, we affirm in part, and reverse and remand in part.
Appellants claim title to riparian property located on the Mississippi River near Hickman in Fulton County. Appellees Coffey and Deal operate a barge fleeting service company (C & D) on the river adjacent to the shore line of appellants' property. C & D's business consists primarily of providing towing services and overnight storage facilities for barges traveling on the river.
On February 15, 1982, C & D entered into a one year lease agreement with appellants. Under the terms of the lease, C & D acquired a right to utilize appellants' shoreline to "tie off" barges which were placed in its overnight care. However, two months later C & D entered into a separate agreement with appellee Kenneth Love (Love), who had obtained a permit from the Army Corps of Engineers authorizing the placement of anchor buoys. The agreement provided that Love would place several anchor buoys on the riverbed off appellants' shoreline. Further, Love agreed in exchange for a stated consideration that C & D would have the exclusive right to use the buoys for a period of five years. Pursuant to appellees' agreement, Love proceeded to place several twenty- to thirty-ton rock boulders on the riverbed off appellants' shoreline, and attached mooring cables and anchor buoys to them. Appellants did not consent to the placement of the boulders.
C & D commenced utilizing Love's boulders and buoys in the operation of their business. Because of the placement of the boulders, C & D no longer had any need to utilize appellants' shoreline for any purpose. On September 24, 1982, therefore, C & D wrote a letter to appellants which expressly repudiated the parties' lease agreement. This action followed.
Appellants sought compensatory damages for breach of lease and trespass against Coffey and Deal individually, as well as against their corporation, and against Love. They also sought an order requiring appellees to remove the disputed boulders from the riverbed. Appellees defended against the action by claiming that appellants do not have valid title to the portion of the riverbed on which the boulders were placed. The court, however, sustained appellants' subsequent motion to strike this defense, and on March 14, 1984, entered a partial summary judgment against appellees on the issue of liability.
On July 23, 1984, the court entered a final judgment. The court adjudged that Coffey and Deal individually, and their corporation, are jointly liable to appellants for the breach of the 1982 shoreline lease. However, the court reversed its summary judgment of March 14, 1984, and adjudged that although appellants have title to the portion of the riverbed on which Love placed the disputed boulders, their rights as riparian owners are subordinate to appellees' right to utilize the riverbed in aid of navigation. Moreover, because the court concluded there was no evidence that appellees' activities were significantly interfering with appellants' riparian rights, it also adjudged that appellants are not entitled either to recover damages for trespass, or to require appellees to remove the disputed boulders and anchor buoys. This appeal and cross-appeal followed.
As noted earlier, the principal issue presented on direct appeal is whether the trial court erred by failing to find that appellees' activities have trespassed upon appellants' riparian rights. This issue is troublesome, and the relevant authorities from this and other jurisdictions have not had occasion to address it. However, for the reasons stated hereafter, we conclude that the court erred by finding that appellees may not be adjudged liable for trespass.
This jurisdiction adheres to the view that riparian property owners, such as appellants, own to the center of the stream or river. Whitson v. Morris, 304 Ky. 447, 201 S.W.2d 193 (1946). This riparian right is subordinate, however, to the public's right to utilize navigable waters and to make improvements in aid of navigation. Commonwealth, Department of Highways v. Thomas, Ky., 427 S.W.2d 213 (1968). Appellees argue, since it is clear that appellants have title to the riverbed adjacent to the shoreline on which the disputed boulders were placed, that the placement of the boulders, and the subsequent use of them to operate a barge fleeting service business, are activities protected by the public's superior "right of navigation." Appellants argue in response that appellees' activities do not fit within any recognized definition of "the public right of navigation," and hence, amount to nothing more than an impermissible trespass upon their riparian property.
As far as we have been able to ascertain, the issue of whether the particular activities complained of in the instant action are included within the scope of the "public right of navigation" has never been addressed in a reported case. Courts in this and other jurisdictions, however, have utilized several general principles to determine whether a given activity falls within the definition of the right. The "public right of navigation" includes the right to navigate the waterways in the strictest sense, that is, for travel and for transportation. Silver Springs Paradise Co. v. Ray, 50 F.2d 356 (C.A.5th 1931) cert. denied 284 U.S. 649, 52 S.Ct. 29, 76 L.Ed. 551; see also Warner v. Ford Lumber & Manufacturing Co., 123 Ky. 103, 93 S.W. 650 (1906). The right also includes the right to use the public waterways for recreational purposes such as boating, swimming, and fishing. Munninghoff v. Wisconsin Conservation Commission, 255 Wis. 252, 38 N.W.2d 712 (1949); Silver Springs Paradise Co. v. Ray, supra. Moreover, the "public right of navigation," whether for commercial or recreational purposes, necessarily includes the right of temporary anchorage and the right of incidental use of the riverbed. Hall v. Wantz, 336 Mich. 112, 57 N.W.2d 462 (1953); Munninghoff v. Wisconsin Conservation Commission, supra.
Appellees rely on these general principles in arguing that any barges traveling the Mississippi River are entitled to utilize appellants' riverbed, without permission, for temporary anchorage purposes. They urge it follows that their particular activities are also protected by this right of temporary anchorage. We have concluded, however, that appellees' argument is fallacious.
Appellees are not themselves engaged in activities which constitute "navigation," as defined by the relevant authorities. Moreover, it is clear that appellees' activities do not fall within the purview of the public's right to temporarily anchor vessels in a navigable waterway. Here, Love dropped boulders on appellants' riverbed in order to provide a permanent anchorage facility for C & D's offshore fleeting service business, and to enable him to charge and earn rental fees to be paid by C & D. Further, C & D is not utilizing Love's anchor buoys to temporarily anchor their own vessels for recreational or commercial purposes. Rather, they are using them to conduct a commercial business for profit which, in exchange for a fee, makes permanent overnight anchorage facilities available to barges using the river....
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