Wernberg v. State, 1797

• Citation: 516 P.2d 1191
• Decision Date: 10 December 1973
• Docket Number: No. 1797,1797
• Parties: Leslie WERNBERG, Appellant, v. STATE of Alaska and City of Anchorage, Appellees.
• Court: Supreme Court of Alaska (US)

Page 1191

516 P.2d 1191

Leslie WERNBERG, Appellant, v. STATE of Alaska and City of Anchorage, Appellees.

No. 1797.

Supreme Court of Alaska.

Dec. 10, 1973.

Rehearing Denied Feb. 27, 1974.

James K. Tallman, Anchorage, for appellant.

John E. Havelock, Atty. Gen., Juneau, Malcolm L. McCain, Asst. Atty. Gen., John R. Spencer, City Atty., William G. Azar, Asst. City Atty., Anchorage, for appellees.

Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOOCHEVER, JJ.

ERWIN, Justice.

Leslie Wernberg, appellant, for 29 years has been the owner of property which abuts Chester Creek and Cook Inlet tide flats. Chester Creek flows past the property on the north and empties into the inlet which is on the west of the appellant's property. For 20 years Wernberg used both the creek and the tidewaters to navigate his fishing boats between his property and Cook Inlet for commercial fishing. Between high and half tide he navigated the stream and the tidal flow to get to deep water. The navigation included the transportation of supplies, fish, fishing gear, boats, and other transportation activities connected with the appellant's fishing operations in Cook Inlet.

During 1967 and 1968 and State of Alaska constructed the Minnesota By-pass, a federal aid highway, across Chester Creek and the tidelands of Cook Inlet about one-half mile west of appellant's property. The highway obstructed the flow of high tide waters up the creek, thereby destroying its navigability. The road also blocked appellant's access from his property across the abutting tidelands to the deep water of Cook Inlet.

Wernberg's non-water access to his land is by way of Spenard Road which abuts the eastern boundary of his property. Prior to 1968, the landowner used Spenard Road as access for trucks to his land.

Spenard Road is owned by the State of Alaska, having been deeded to the state by the federal government in 1959, upon Alaska's admission to the union. For at least the last six years, the City of Anchorage has maintained Spenard Road pursuant to an agreement with the state.

As part of the Minnesota By-pas project the city, in conjunction with the state,

As part of the Minnesota By-pass project Wernberg's property from a two-way to a one-way thoroughfare in 1968. Appellant contends that the change of the traffic pattern on Spenard Road impaired truck access to his property, since the angle of his driveway makes it difficult for the operator of a long-wheelbase truck to make the sharp left turn from Spenard Road into his driveway.

Appellant further alleges, and appellees admit, a four inch change in the grade of Spenard Road, which was caused by the 1964 earthquake, accumulation of gravel on the sides of the road, and re-surfacing of the road by the city pursuant to its maintenance contract with the state. Three-eighths of an inch change in grade was due to the re-surfacing, and the balance was due to the other two factors.

Wernberg brought suit against the State of Alaska and the City of Anchorage in inverse condemnation in the superior court. He alleged an uncompensated taking and/or damage to his property occasioned by the obstruction of his access from Chester Creek to Cook Inlet and by the impairment of his access to Spenard Road.

At the pre-trial conference the court dismissed the complaint, with leave to amend, for failure to state a valid claim for relief. The court made it clear, however, that it considered its judgment final for the purposes of appeal. Wernberg filed notice of appeal, but also amended his complaint, alleging, in addition to the previous counts, loss of access from his land to Cook Inlet across the tidelands, loss of his rights of appropriation in Chester Creek, and impairment of access to Spenard Road caused by the grade change. The amended complaint was also dismissed for failure to state a claim upon which relief could be granted and for lack of an issue as to a material fact. The order dismissing the complaint was accompanied by an order awarding attorney's fees to the City of Anchorage. Appellant amended his notice of appeal from the dismissal of the original complaint to include appeal from dismissal of the amended complaint and the order assessing attorney's fees.

I

To facilitate understanding of some of the issues presented, it is appropriate to briefly review some of the doctrine of riparian rights. ¹ Simply stated, the rule is that an owner of land abutting a body of water (the riparian proprietor) has an individual right to use the water. ² The precise origin of the doctrine is unknown, but it appeared in early Roman law, was later recognized as part of French law by the Code Napoleon, and emerged in the common law of England and the United States. ³ In the United States the doctrine, initially shaped by the writings of James Kent and the opinions of Justice Story, ⁴ developed different forms in the various states. In the arid western states the rights of riparian proprietors were made subject to those of non-riparian landowners who were prior appropriators of the waters, ⁵ and in the eastern portion of the country there has been a slow movement away from the doctrine of riparian rights. ⁶

The particular rights delineated by the doctrine are, naturally, many and varied. Generally speaking, a riparian proprietor has the right to: (1) use the water for general purposes such as bathing and other domestic activities; (2) have access to navigable waters; (3) build wharves and piers out to deep water if this can be done without interfering with navigation; (4) take title to accretions and alluviums; and (5) make other beneficial use of the water even though the water level is lowered, so long as the use does not unreasonably interfere with similar rights of other riparians. ⁷ These rights are valuable property, and ordinarily cannot be taken for public use by the federal or state governments without payment of just compensation to the landowner. ⁸

It has long been recognized, however, that the rights of riparian owners are not absolute, especially when they confliect with the powers reserved to the deferal and state governments. Under the Commerce Clause of the United States Constitution ⁹ the federal government has the power to regulate all navigable waters in the United States. ¹⁰ This power has given rise to a particular limitation or riparian rights known as the federal 'navigation servitude' under which riparian rights are:

. . . held at all times subordinate to such use of the submerged lands and of the waters flowing over them as may be consistent with or demanded by the public right of navigation. ¹¹

The federal navigation servitude has created an exception to the fifth amendment's prohibition, allowing riparian rights to be taken without compensation if the taking is in aid of navigation. ¹²

The states have derived a similar navigation servitude from their police power.

We think it is a settled principle, growing out of the nature of well ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated, that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property in this commonwealth, as well as that in the interior and that bordering on tide waters, is derived directly or indirectly from the government, and held subject to those general regulations, which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment, as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law, as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient.

This is very different from the right of eminent domain, the right of a government to take and appropriate private property to public use, whenever the public exigency requires it; which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power, the power vested in the legislature by the constitution, to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subject of the same.

It is much easier to perceive and realize the existence and sources of this power, than to mark its boundaries, or prescribe limits to its exercise.

The facts and circumstances of different cases are so various, that it is often difficult to decide whether a particular exercise of legislation is properly attributable to the one or the other of these two acknowledged powers. ¹³

This state servitude is subordinate to the federal one, ¹⁴ but where the federal government has not acted, it allows the state, in aid of navigation, to take private riparian rights without paying the compensation that would otherwise be required by the fourteenth amendment. ¹⁵

One commentator has derived three basic propositions from the state servitude:

(1) a taking in the aid of navigation of riparian property, including a right of access below the high water mark, is a valid exercise of the servitude and no compensation is required; (2) that a taking, even though in the aid of navigation, which encroaches upon the fast lands is a taking of private property in the constitutional sense and compensation is required; (3) that a taking of a riparian landowner's property below the high water mark, when not in the aid of navigation requires just compensation. (footnote omitted) ¹⁶

These propositions have been expanded in many jurisdictions, and the same commentator describes three general...