#### WAYNE COUNTY, KENTUCKY, v. THE UNITED STATES.

[No. 32713.

Decided April 22, 1918.]

*On the Proofs.*

*Constitutional law; Public property, when it is private.*— While the property rights in a public highway- held by a county in Kentucky is an easement, held in trust for the benefit of the public, and is within most of the definitions of *public*and not *private*property, yet for purposes of compensation, as for a taking under the Constitution, it is to be regarded as *private*property.

*418*The Reporter’s*statement of the .case:

*Mr. George W. Eott*for the plaintiff.

*Mr. George T.*Stormont, with whom was *Mr. Assistant Attorney General Huston*Thompson, for the defendants.

It seems clear from the record that the destruction of this road was caused, not by the maintenance of water at pool level, but by the frequent floods and rises occurring after the construction of the dam. As this is not a taking in the view of the court in the recent opinion in the *Marion County case,*it follows that the petition herein should be dismissed. ' Although such a contingency is not looked for, possibly the court may hold that there is a taking within the decision in the *Marion Cownty case.*In that event the defendants still submit that no liability attaches to the Government by reason of that condition.

In *Stockton*v. *B.*efe *N. T. R.*R. *et al., 32*Fed. R. 9, a case frequently cited with approval by the Supreme Court of the United States, it appears that Congress authorized one of the defendant railroad companies to construct and maintain a bridge across the sound between Staten Island and New Jersey. The attorney general of New Jersey sought to enjoin the construction of the bridge, chiefly on the ground that the ownership of the shore and land under water of all navigable streams and arms of the sea within the State was formerly a part of the *jura regalia*of the King of Great Britain, by virtue of which he was seized of an estate in fee simple in said lands; that after the revolution the State of New Jersey succeeded to the rights of the crown, that this right of supreme dominion had never been ceded or surrendered to the United States and that without such cession the- United States could not take possession of said lands or authorize other parties to do so, except by making compensation therefor, as provided in the Fifth Amendment, etc. The court disposes of the question of the power of Congress to appropriate the land in question and then considers the question whether compensation must be paid:

“ It is insisted that the property of the State in lands under its navigable waters is private property, and comes strictly *419within the constitutional provision. It is significantly asked, can the United States take the statehouse at Trenton, and the surrounding grounds belonging to the State, and appropriate them to the purposes of a railroad depot, or to any other use of the General Government, without compensation ? We do not apprehend that the decision of the present case involves or requires a serious answer to this question. The cases are clearly not parallel. The character of the title or ownership by which the State holds the statehouse i^quite different from that by which it holds the land under the navigable waters in and around its territory.

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“ Such being the character of the State’s ownership of the land under water — an ownership held, not for the purpose of emolument, but for public use, especially the public use of navigation and commerce — the question arises whether it is a kind of property susceptible of pecuniary compensation, within the meaning of the Constitution. The Fifth Amendment provides only that *private property*shall not be taken without compensation; making no reference to public property. But, if the phrase may have an application broad enough to include all property and ownership, the question would still arise whether the appropriation of a few square feet of the river bottom to the foundation of a bridge which is to be used for the transportation of an extensive commerce in aid and relief of that afforded by the waterway, is at all a diversion of the property from its original public use. It is not so considered when sea walls, piers, wing-dams, and other structures are erected for the purpose of aiding commerce by improving and preserving the navigation. Why should it be deemed such when (without injury to the navigation) erections are made for the purpose of aiding and enlarging commerce beyond the capacity of the navigable stream itself, and of all the navigable waters of the country? It is commerce, and not navigation, which is the great object of constitutional care.

*“*The power to regulate commerce is the basis of the power to regulate navigation, and navigable waters and streams, and these are so completely subject to the control of Congress, as subsidary to commerce, that it has become usual to call the entire navigable waters of the country the navigable waters of the United States. It matters little whether the United States had or has not the theoretical ownership and dominion in the waters, or the land under them; it has, what is more, the regulation and contfol of them for the purposes of commerce.”

*420In *Monong alíela, Navigation Go.*v. *United States,*148 U. S. 312, it is stated that Congress has the same power to regulate commerce upon the land as upon the water.

Applying the principles set forth in the two cases above referred to, if Congress, in the exercise of its right to regulate commerce, has the power to appropriate land belonging to a State under a natural highway without'compensating the State for the taking, and if its control oveiffcrtificial' highways under the commerce clause is of the same degree and as far reaching as its power over natural highways, has it not the power to appropriate this highway in question without compensation when such appropriation is incidental to the improvement of the navigability of the Cumberland Eiver ?

Looking at the question from another angle: Land belonging to a municipal corporation devoted to a public use'may be taken by the State for another and different public use without compensation to the corporation. *Inhabitants of Mülbury*v. *Blackstone Oanal*Go., 25 Mass., 473; *In re Wellington,,*33 Mass., 87; *Prince*v. *Crocker,*166 Mass., 347; *Freeholders of Monmouth Go.*v. *Turnpike Go.,*18 N. J. Eq., 91; *P. R. R. Go.*v. *N. Y. (& L. B. R. R.,*23 N. J. Eq., 157; *Gha-grin Falls, Etc.,*v. *Gane,*2 Ohio St., 419; *Heffner*v. *Gass and Morgan Cos.,*193 Ill., 439; 58 L. R. A., 353; *People*v. *Sanitary Hist.,*210 Ill., 171; *Ind. Gent. R. R.*v. *State,*3 Ind., 421; *Cummins*v. *City of Seymour,*79 Ind., 491; *Gity of Clinton*v. *R. R.,*24 la., 455; *P. & W. V. R. R.*v. *Portland,*14 Or., 188.

In *Gilman*v. *Philadelphia,*3 Wall., 713, 724, it is stated:

“The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the United States.”

If, as stated in the *Monongahela Navigation Company case, supra,*the control by Congress over artificial highways under the commerce clause is of the same degree and as far reaching as its power over natural- highways; then, following *Gilman*v. *Philadelphia,*artificial highways for this purpose (the regulation of commerce) also are the public prop*421erty of the United States, and the United States would therefore appear to have the power to divert them from one public use to another without compensation.

In this connection the attention of the court is directed to the case of *Town of Nahant*v. *United States,*128 Fed. 185; 136 Fed. 273; and 153 Fed. 520. In that case the United States, under proper authorization from Congress, brought.,proceedings to condemn certain lands in Nahant, “together with all the roads, ways, and avenues included in the description of land,” for the purposes of fortifications and coast defenses. The District Court ordered notice to all parties interested, whereupon the town of Nahant filed its answer, in which it claimed interests in the property sought to be condemned, consisting of easements and rights of way, which it had improved at great expense, etc., and prayed for damages by reason of the taking of the land, its easements, and improvements, including streets, sewers, and water pipes, for which compensation was demanded. All the issues involved in the controversy in the District Court are not apparent from the opinion of the court, 128 Fed. 185, but in the opinion of the Circuit Court on appeal the issues are clearly stated, 136 Fed. 273, 275, and it there appeal’s that the town claimed compensation for its streets and other public ways, for certain easements of aqueduct through private land, for its water pipes and sewers, etc., and for certain taxes assessed upon the land condemned. The District Court “ruled that the town was not entitled to damages either on account of taxes or because of the taking of the land in which the water pipes and sewers were laid, and the town excepted.”

From the opinion in volume 136 it is to be gathered that the United States contended that by virtue of the act of the Legislature of the State of Massachusetts it was entitled to stand upon the Massachusetts law as to the rule of damages, which is, as shown above, that where property already devoted to a public use is taken for a second and different public use no compensation is demandable; and would therefore have to pay nothing for any municipal property condemned and taken. The Circuit Court, however, denied the contention *422vigorously, stating that tbe Massachusetts act was merely a recognition of the inherent power of the central Government to exercise its own right of eminent domain, and, further, that there is nothing in the act indicating a purpose to transfer property, municipal or otherwise, to the United States without compensation.

It is clear from the opinion of the court that the town was claiming compensation for all its property in the area condemned, including its streets and other public ways, and that the United States was contending that because of the State statute referred to the town was entitled to nothing. The court, however, stated that the United States was proceeding under its own inherent right to condemn and that the State statute referred to was nothing more nor less than the consent of the State to an act which the United States had the right to perform in any event; and decided that the town was entitled to be compensated for physical structures and improvements which it had lawfully placed or acquired on the lands or streets taken for the, use of its inhabitants or the local public, such as water or sewer pipes, curbing and the like.

The court is also cited to the case of *In re Oertain Land in*Lawrence, 119 Fed., 458. In that case the United States condemned a public park in the town of Lawrence as a site for a post office, and it was held that the town was not entitled to compensation for the taking.

The defendants submit that the plaintiff county is not entitled to recover for the alleged taking of its public highway even in the event that the court should conclude that the alleged taking falls within the principles set out in the *Marion County*case.

The following are the facts of the case as found by the court:

I. Plaintiff herein is duly authorized and empowered, under the laws of the State of Kentucky, to institute and maintain this action.

II. Said county, at the time hereinafter complained of, was owner of an easement in a certain public highway running along Fall Creek, a tributary of the Cumberland Kiver, *423in said county and State, which was maintained by said county for general public use and which was the usual route of travel by which the residents in that locality reached the county seat, mill, post office, store, etc. It was unimproved, but suitable for public travel.

III. During and prior to 1911 the defendant, by its proper officers, duly authorized by acts of Congress, and in aid of navigation, constructed and has since maintained and operated, and is maintaining and operating in and across the Cumberland Eiver a certain lock and dam, known as Lock No. 21, the construction of which was completed in October, 1911. The effect of the construction of said lock and daip has been to retard the flow of the waters of said river and to back the waters up into said Fall Creek, to raise the natural level thereof, and to thereby overflow a portion of said road so frequently and continuously as to render it useless as a public highway, and by reason thereof the plaintiff has been compelled to abandon said part of said old road and in lieu thereof to lay out, open, and construct a new road at the reasonable cost to it of $2,043.32.

The new road is a better road than the old one, due to its higher elevation and better location and to the fact of an underlying stone foundation for part of its distance, but it was constructed on the only available site at a reasonable cost and is unimproved except as to grading and draining.

The old road was subject to overflow in times of high waters before the construction of the dam, but was not so frequently overflowed as to seriously affect its utility.

PER CuRiam :

The facts found and the conclusions stated apparently leave no room for discussion except upon one point, and that is whether the taking was a taking of private property within the meaning of the Fifth Amendment to the Constitution.

The fee of the road taken is assumed to have been in the abutting property owner in accordance with the general rule in the State of Kentucky. The county’s property was an easement which it held in trust for the benefit of the public.

*424While such property is within most of the definitions of public and not private property, we are of the opinion that for purposes of compensation as for a taking under the Constitution it is properly to be regarded as private property and upon that theory we have awarded judgment. Authorities directly upon the question are scarcely to be found. In *Coyle*v. *Gray, Atty. Gen.,*Court of Appeals of Delaware, 30 Atl. Rep., 728, discussing municipal property in its relation to the State, it is said:

> “ The municipality may hold property in which all the inhabitants of a State or of a county may be said to have an interest in some respect, but not as owners or proprietors. And it may also hold property in which the inhabitants of the municipality alone may properly be said to have an interest. Both classes of property are public — the one, as to the people of the whole State or county; the other, more particularly, as to the inhabitants of the municipality. It is only in this sense that the words ‘ public ’ and *‘*private ’ can with propriety be applied to such property, when held by a municipality. Although the property held for the municipality is in fact public, as common to all the inhabitants of a city, it nevertheless may justly be said to be private property, as being such property as is exempt from being taken or applied to any other public use by the State, or by authority of the State, without compensation being made.”

Judgment will be accordingly rendered in favor of plaintiff in the sum of $2,043.32.