Opposition Brief — Coffey v. Pierson

(Dr

. Supreme Court, U.S.

i ! FILED

JUL 14 1986

JOSEPH F. SPANIOL, JR.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

NO.

HAROLD COFFEY, and JERRY DEAL,

Individually and d/b/a C & D

HARBOR SERVICE; and C &D

HARBOR SERVICE, INC.,

Petitioners,

VS.

JOHN H. PIERSON and his

wife, GYNELLE PIERSON,

Respondents

ON WRIT OF CERTIORARI

TO THE COMMONWEALTH

OF KENTUCKY COURT OF APPEALS

RESPONDENTS’ BRIEF

104 North 5th Str

i Murray, Kentucky 42071

(502) 753-8900

Counsel for Respondents

QUESTIONS PRESENTED

|. Does the Public Right of Navigation Allow:

A Private Individual, Claiming No Title to

Land, to Establish a Permanent Installation in

the Submerged Land of a Non-Consenting

Riparian Owner for the Private Purpose of

Operating a Commercial Barge Storage

Business for Profit.

li. May the Corps of Engineers, Having No Title to Such

Land, Grant a Right to a Private Individual, Also Claiming

No Title to Such Land, to Place Boulders or Other

Permanent Anchoring Installations, on the Submerged

Land of a Non-Consenting Riparian Owner for the

Purpose of Constructing and Establishing a Barge

Storage Business Thereon, Especially in View of the

Disclaimer Placed by the Corps of Engineers in the

“Permit” Which Expressly Denies that Such Permit

Conveys Any Property Rights in Real Estate or

Authorizes Any Injury to Property or Invasion of Rights.

PARTIES TO THE

PROCEEDING IN THE STATE COURTS

The following is a list of all parties to the proceeding in

the state court whose judgement is sought to be reviewed:

3

2.

Harold Coffey and Jerry Deal, Individually and

d/b/a C & D Harbor Service; and C & D Harbor

Service, Inc. (Petitioners herein);

John H. Pierson and Gynelle Pierson, husband and

wife (Respondents herein);

Kenneth E. Love, Individually and d/b/a Marine

Service (Mr. Love was a co-defendant with

Petitioners in the state court proceeding; Mr. Love

was held liable as a trespasser in the State Courts.

The Corps of Engineers permit granted to him on

May 22, 1980 (a copy of which is set out in the

Petition at pages F1-F12) was determined by the

Kentucky Court of Appeals to NOT convey any

property rights nor authorize Mr. Love to place the

disputed boulders on Respondents’ riparian

property without their consent (Petition at page

A10). Kenneth E. Love has chosen NOT to apply to

this Court for review of that decision).

ra

TABLE OF CONTENTS

Questions Presented ....................2..

Parties to the Proceeding in the State Courts

ss cc ccercsvoccecsees

Reasons Why This Petition Should Be Denied:

1. The Petition for a Writ of Certiorari is

Premature Since the Trial on Damages has

oo ee

2. The Holder of the Corps of Engineers

Permit, Kenneth Love, has Elected not to

Appeal the State Court Decision That this

Permit Does Not Grant Him Any Property

Rights in Submerged Land, and Petitioners

Should Not be Allowed to Raise Such

Defense in Love’s Behalf ................

3. The Decision That a Private Individual

Claiming No Title to Land Has No Right to

Establish Permanent Commercia!

Installations in the Submerged Land of a

Riparian Owner for the Private Purpose of

Operating a Barge Storage Business for

Profit Is Consistent With All Reported

Federal and State Decisions .............

ES

9-18

18

TABLE OF AUTHORITIES

Cases PAGE

Anderson v. Reames, 204 Ark. 216, 161 S.W.2d

SE CUE niin ao wide Canin gC Nel en elle WAN eww oe 17

Barr v. Spalding, 46 F.2d 798, 799 (1928) ............. 10

Berry v. Snyder, 3 Busch 266, 66 Ky. 266 (1867)......... 10

Brusco Towboat Co. v. Oregon, 589 P.2d 712

SE CEU e a Tear kins Deane de ERTS DEAR S SO bGd eA oO 12

County of Marin v. Roberts, 84 Cai. Rptr. 425

PUREE kaon Rp sien eh ae ee eee amuAle 64s we be eens 13

Driesbach v. Lynch, 234 P.2d 446 (1951) .............. 14

1 Fornhon, Water and Water Rights, Sec. 46

“5, RR RRR eeepc peice 9 ae UIE i af ieee pe ene Ce 18

Fruin-Colnon Corp. v. Vogt, 500 F. Supp. 606

CPE cu ide awk dy ewe ee eens eee wee ee hia oe eke's 13

Georgia Railway Co. v. Decatur, 262 U.S. 432,

437, 43 S.Ct. 613, G7 1..BG. TORS (1GEe) 2... cece scene 7

Hall v. Wantz, 57 N.W.2d 462 (1953) .................. 17

Hough v. Ohio Rivers Sand Company, 288

ee Se PE A 6 Kd teehee oboe eta nee esses ay 10

Kuramoto v. Hanoda, 30 Haw. 841 (1929) ............. 17

Munninghoff v. Wisconsin Conservation

Commission, 38 N.W.2d 712, 255 Wis. 252

SEE Sake s sb 00 069 648 4SbNS ooo ee eater tah he Kena oe 14

Natcher v. City of Bowling Green, 95 S.W.2d

OS eT ere rere 11

Paducah Sand & Gravel Co. v. Central Home

Telephone & Telegraph Co., 273 S.W. 481,

482, 209 Ky. 756 (1925) ..... apa peel ree 11

Patterson v. Dust, 190 Mich. 679, 157 N.W. 353

RO 5c gc da suede ee as ee a eae oes kb da 17

People v. Kraemer, 164 N.Y.S. 423, 429 (1957)......... 18

IV

Republic Natural Gas Co. v. Oklahoma, 334

U.S. 62, 67, 92 L.Ed 1712, 68 S. Ct. 972 (1948) ....... 7

St. Anthony Falls Water Power Company v. St.

Paul Water Commissioners, 168 U.S. 349, 364

PO Nie ete use urea betel uve axts is ude vekecee 15

State v. Graham, 26 P.2d 46 (1933) ................... 13

Steel Creek Development Corporation v.

SE, Te I PEED 6b do hoe dmae ccbsndsccss 12

United States v. Chandler-Dunbar Water Power

Co., 229 U.S. 53, 62, 57 L.Ed 1063, 1075, 33

SE Be koe cas cak se vaweucs 10

West v. Smith, 95 Idaho 550, 511 P.2d 1326

DO ata ad cade SE Ce os aa ee ty eee ocx 18

Whitson v. Morris, 201 S.W.2d 193 (1946) ............. 10

Wilson v. Watson, 132 S.W. 563, 141 Ky. 324

cit N aera Te es a ed Se 10

Wisconsin v. Bleck, 388 N.W.2d 492 (1983) ........... 16

Yates v. Milwaukee, 10 Wall. 497 ..................... 11

Vv

STATEMENT OF THE CASE

Petitioners are conducting a permanent commercial

barge fleeting/storage business along the shoreline of the

Mississippi River in the State of Kentucky.

Respondents are the adjacent riparian owners and own

the submerged iand to the thread of the River, under

Kentucky law; such ownership, however, is subordinate to

the public right of navigation and subject to the absolute

power of Congress over the improvement of navigable

rivers.

Respondents’ position, sustained by the State Apellate

Courts of Kentucky, is that the permanent anchorage

installations in the riverbed necessary to conduct the

equivalent of a floating parking lot, is an activity which is not

protected by the public right of navigation.

The Kentucky Court of Appeals’ decision from which

this application is based (Petition for Writ of Certiorari,

hereinafter Petition, Appendix A, pages A8 to AQ) adopted

the reasoning by the Michigan Supreme Court in Hall v.

Wantz, 57 N.W.2d 462 (Mich. 1953):

“ (A) riparian owner's property rights to

subaqueous lands are subject to an easement

in the public for navigation purposes and are

subject to the right to anchor as an incident to

the right of navigation, nevertheless the right

of navigation does not include, as an incident

thereto, the right to anchor indefinitely off the

riparian owner's premises...

‘Defendant, in the instant case, is not

confining himself to the exercise of the rights

of the public generally to navigation, but goes

beyond that to engage in a practice not

incident to or part of the right of navigation,

namely in permanent or indefinite anchoring

of his “ark” to plaintiff's subaqueous lands and

keeping the same in waters over such lands

for the purpose of conducting business there.

Id. at 464, 465.’

“Consistent with these statements, we hold that the

activities of appellees Love and C & D are not

activities which can reasonably be construed to be

within the definition of the ‘public right of navigation,’

as defined in the reported cases.”

—

2 0 ve eer ngreee

While the question of the liability of C & D as breaching

tenants and Love as a trespasser has been determined by the

Appellate Courts of Kentucky, there has been no trial in the

lower court as to damages. The trial court has continued the

trial of this matter without date, over objection of

Respondents.

As to the specific contractual relations of the parties, the

detail of the occurrences, and the surrounding

q

circumstances, Respondents believe that the introduction

recited in the Kentucky Court of Appeals decision (Petition,

Appendix A, pages A2 through AS) is factually correct and

hereby incorporates such recitation.

Respondents take exception to the misinterpretation

placed upon the decision of the Commonwealth of Kentucky

Court of Appeals on page 7 of the Petition.

Petitioners would have this court believe that a

permanent commercial barge fleeting/storage business

occupying 2.6 miles along Respondents’ shoreline (8 anchor

boulders placed 2,000 feet apart, Petition, Appendix F, page

F11) and using permanent anchor installations on

Respondents’ submerged iand constitutes only”...the

slightest and most insignificant interference with a riparian

landowner’s property rights...”

Petitioners were tenants of Respondents and breached

their agreement by non-payment of rent while continuing to

utilize Respondents’ submerged land and conducting the

same business in the same location.

Petitioners refused to pay further rent to Respondents

on the mistaken belief that if Petitioners used permanent

3

anchor installations for their bus'"ess which were affixed to

submerged land, no consent from the riparian owner would

be required; and they notified Respondents in writing to that

effect. (Clerk’s Record on Appeal below, Vol. |, page 26)

Petitioners continuously refer to the Corps of Engineers

Permit as being issued or assigned to Petitioners (Petition,

page 5 (assigned to Petitioners), 6, 7 (Petitioner is holder of

permit), 8 (permit granted to Petitioners), 9 (permit granted

to Petitioners), 10 (Petitioners obtained permit), 11 (Corps

permitted Petitioners to place anchor buoys) (trial court

weighed Petitioners rights under permit), 12 (Petitioners

had obtained a permit from the Corps to place their

anchors), 13 (Petitioners as holders of a Corps permit), 15

(permit issued to Petitioners) ).

Respondents would note that the Corps of Engineers

Permit, to which Petitioners lay great stress, was granted to

one Kenneth E. Love d/b/a Marine Service a defendant in the

lower court. (See Petition, Appendix F, Pages F1 through

F12)

Mr. Love has decided not to apply to this Court to review

the question of whether his Permit grants him property

4

rights to conduct his private business on the property of

another.

The permittee was Mr. Love as is apparent on the face of

the Permit itself and no evidence of an assignment or

transfer to Petitioners exists.

Petitioners state on page 14 of the Petition that it is a

“...fact that Congress has delegated to the Corps of

Engineers the authority to determine what is and what is not

‘navigation’...”

No authority for usurping such a judicial function was or

could be offered by Petitioners.

Absent an assignment, Petitioners have no standing to

raise the hypothetical issue of what rights, if any, a Corps of

Engineers Permit grants to a permittee or assignee.

Finally, Petitioners claim to be unable to comprehend

how it is possible for the Kentucky Court of Appeals to

conclude that Petitioners’ permanently anchored floating

parking lot is not a use within the “public right of navigation”

and at the same time say that the purpose of a Corps of

Engineers permit is to safeguard the public in exercising

their (the public’s) right of navigation.

5

The conclusion reached by Petitioners is that if their

business activity is not a use permitted under the public right

of navigation, it necessarily follows that the public right of

navigation has disappeared in its entirety.

On amore realistic note, however, as stated succinctly

by the Kentucky Court of Appeals: (Petition, Appendix A,

pages A7 to A8)

“Appellees (C & D, petitioner herein) 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 wat ‘rway.

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 & Dis 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. Thus, the situation in the instant

action is factualiy much different from the typical

situation, in which a vessei traveling the river for

commercial or recreational purposes drops anchor

for some temporary period as an incident of its

journey on the river.”

REASONS WHY THE

PETITION SHOULD NOT

BE GRANTED

1. The Petition for a Writ of Certiorari ls Premature

Since the Trial On Damages Has Yet To Be Held

Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 67,

92 L.Ed. 1712, 68 S.Ct. 972 (1948) is in point as to this issue:

“Thus the requirement of finality has not been met

merely because the major issues in a case have been

decided and only a few loose ends remain to be tied

up—for example, where liability has been determined

and all that needs to be adjudicated is the amount of

damages. Bruce v. Tobin, 245 U.S. 18; Martinez v.

International Banking Corp. 220 U.S. 214, 223:

Mississippi Central R. Co. v. Smith, 295 U.S. 718.”

(See also Georgia Railway Co. v. Decatur, 262 U.S.

432, 437, 43 S.Ct. 613, 26 L.Ed. 1065 (1923) )

Respondents are unaware of the federal questions that

Petitioners may raise at the trial on damages but with

initiative and imagination, a second climb up the appellate

ladder by Petitioners can be foreseen.

In four years of this landlord-tenant litigation,

Respondents have been denied judgement for rent,

damages, and attorney fees as provided in the lease

agreement. To grant the application for a Writ of Certiorari

prior to a final determination unduly interferes with

concluding this state litigation.

2. The Holder of the Corps of Engineers Permit,

Kenneth Love, Has Elected Not To Appeal the State Court

Decision That His Permit Does Not Grant Him Any Property

Rights in Submerged Land, And Petitioners Should Not Be

Allowed To Raise Such Defense in Love's Behalf.

As the Kentucky Court of Appeals stated in the instant

case:

“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.” (Petition, Appendix A, page A3)

in any event the Kentucky Court of Appeals heid that the

Corps of Engineers Permit did not convey any property

right. As stated by that Appellate Court:

“Love further contends that his placement of the

boulders was lawful because it was authorized by a

permit issued to him by the Army Corps of Engineers.

We disagree. The requirement that a person must

obtain a permit before he or she may place

obstructions in the river does not confer any interest

in riparian property upon the recipient of the permit.

Rather, this requirement merely safeguards the

public right of navigation by ensuring that there will

be proper regulation and placement of any

obstructions submerged in navigable waters. See,

Norfolk Dredging Company v. Radcliff Materials, Inc.

264 F.Supp. 399, 402 (1967). Moreover, the permit

obtained by Love expressly stated on its face that it

did not convey any interest in property. Hence,

contrary to Love’s contention, it is clear that the

permit did not authorize him to place the disputed

boulders on appellants’ riparian property without

their consent.”

Or, as more succinctly stated by trial judge, Willard

Paxton:

“That Corps of Engineers Permit didn’t mean diddly

squat.”

(Transcript of Hearing on December 14, 1982, page

17)

3. The Decision That A Private Individual Claiming No

Title to Land Has No Right to Establish Permanent

Commercial Installations in the Submerged Land of a

Riparian Owner for the Private Purpose of Operating a Barge

Storage Business for Profit is Consistent With All Reported

Federal and State Decisions.

ie)

a. Thetitle to the beds of navigable rivers of the United

States is either in the States in which the rivers are situated,

or in the riparian Owners, depending upon the local law.

United States v. Chandler-Dunbar Water Power Co., 229

U.S. 53, 62, 57 L.Ed 1063, 1075, 33 S.Ct. 667, 672 (1913)

b. in the Commonwealth of Kentucky, a riparian

owner owns the land to the thread of the stream. Whitson v.

Morris, Ky., 201 S.W.2d 193 (1946); Hough v. Ohio Rivers

Sand Company, Ky., 288 S.W.2d 655 (1956); Wilson v.

Watson, Ky., 132 S.W. 563, 141 Ky. 324 (1910); Berry v.

Snyder, Ky., 3 Busch 266, 66 Ky. 266 (1867); Barrv. Spalding,

D.C.W.D. Ky., 46 F.2d 798, 799 (1928); Trial Court Judge

Paxton, Transcript of Hearing on December 14, 1982, pages

15, 39-40; Transcript of Hearing of February 1, 1984, page 14

c. The title of the riparian owner to the bed of a

navigable stream is a qualified one, and subordinate to the

public right of navigation and subject to the absolute power

of Congress over the improvement of navigable rivers.

United States v. Chandler-Dunbar Water Power Co., supra;

Trial Court Judge Paxton, Cierk’s Record on Appeal below,

Vol. Vi, page 824

10

Natcher v. City of Bowling Green, Ky., 95 S.W.2d 255,

257 (1936): “In and on a navigable stream, the title of a

riparian owner...particularly of the bed...is a qualified one,

for it is subject to the dominant rights of the public in the

stream. Navigable rivers are and 2iways have been regarded

as public highways.”

Paducah Sand & Gravel Co. v. Central Home Telephone

& Telegraph Co., Ky., 273 S.W. 481, 482, 209 Ky. 756 (1925):

“The use of navigable streams is analogous to that of the use

of public highways, and, concededly, the right of navigation

is paramount to any other rights that may be acquired in the

use of such streams.”

d. This riparian right is a valuable property right and

though it must be enjoyed in due subjection to the rights of

the public, it cannot be arbitrarily or capriciously destroyed

or impaired. It is a right of which, when once vested, the

owner can only be deprived in accordance with established

law; and if necessary that it be taken for the public good,

upon due compensation. Yates v. Milwaukee, 10 Wall. 497.

11

e. Federal and state decisions from other jurisdictions

are consistent with the holding of the Kentucky Court of

Appeals in the instant case:

Boathouses held in floating position by anchors in

submerged land, held to be a trespass on submerged land

owned by riparian owner. Steel Creek Development

Corporation v. James, N.C. App., 294 S.E.2d 23 (1982)

“Owner of the bed of a river is certainly entitled to

prevent permanent structures on the surface of the water

which preclude other uses of the bed, whether or not they

actualiy rest on the bed itself.” Brusco Towbcoat Co. v.

Oregon, Or., 589 P.2d 712 (1978)

In Illinois, a contractor anchored a spud barge on the

bed of the river for the purpose of extended construction

without permission of the riparian owner. The Federal District

Court held that such a use was not within the navigational

servitude and constituted a trespass upon the submerged

land of the riparian owner. The Court stated specifically that

a riparian landowner holds exclusive mooring and wharfing

rights incident to the ownership of title to the middle of the

12

main channel of the Mississippi River. Fruin-Coinon Corp. v.

Vogt, USDC, SD lil., 500 F.Supp. 606 (1980)

In the California case of County of Marin v. Roberts, Ca.

App., 84 Cai. Rptr. 425 (1970) defendant maintained

drydocks on submerged land of a non-consenting owner,

claiming its drydocks were within the public right of

navigation and also that defendant had received a permit

from the Corps of Engineers.

At page 430 the Court stated:

“Wise’s contention overlooks the fact that even if

the Corps of Engineers had issued a permit here,

such a permit would in no way inhibit the rights of the

property owner, the County, from ejecting Wise as a

trespasser. A Corps of Engineer’s permit merely

safeguards the public right of navigation - it does not

confer any interest in property. (Norfolk Dredging

Company v. Radcliff Materials, inc., D.C., 264

F.Supp. 399, 402). Similarly, the anchorage permits

issued by the Coast Guard relate only to promoting

safe navigation and confer no property interest (33

C.F.R. 110.214, pages 347-348).” (emphasis

supplied)

To the same effect is the Oregon case of State v.

Graham, Ore., 26 P.2d 46 (1933) at page 52:

“The license which the United States engineer

issued to Barbey (pursuant to 33 USCA 403; 30 Stat.

1151) authorizing him to proceed with the

construction of the wharf was a mere declaration that

3

the structure would not interfere with or be

detrimental to navigation, and was not a declaration

by authority of Congress that he could erect the

wharf without first obtaining authority from the state

of Oregon (cases).”

In Driesbach v. Lynch, \d., 234 P.2d 446 (1951), the

Idaho Supreme Court held that since the title to the bed of a

navigable lake was not vested in the United States, the

Secretary of War could not grant rights to third parties to

maintain docks and pilings within the littoral boundaries of

another littoral owner, thereby interfering with the rights of

such littoral owner, and the permit issued by the Secretary

was inadmissible as evidence to defend against trespass.

The State of Wisconsin has also expressed its position

with respect to what is and what is not “navigation.”

After stating the rule in Wisconsin that the owner of the

banks of the stream is the owner of the bed, the Court in

Munninghoff v. Wisconsin Conservation Commission, Wis.,

38 N.W.2d 712, 255 Wis. 252 (1949) stated:

“In general, the rights of the public to the

incidents of navigation are boating, bathing, fishing,

hunting and recreation (citations) ...Appellant

asserts that float trapping does not require the use of

the bottom. However, floats for float trapping are

always anchored to the bottom and any method of

anchoring or securing a float would, of necessity,

14

require the use of land on the bottom...To float trap in

navigable water constitutes a trespass upon the

submerged land for which the trespasser may be

prosecuted by the owner of the said land and

enjoined from using public water for that purpose...

“Appellant also asserts that the right of

navigation includes the incidental use of the bottom.

This is true where the use of the bottom is connected

with navigation, such as walking as a trout fisherman

does in a navigable stream, boating, standing on the

bottom while bathing, casting an anchor from a boat

in fishing, propelling a duck boat by poling against

the bottom, waiking on the ice if the river is frozen,

etc. These have nothing in common with trapping

because the latter involves the exercise of a property

right in the land or bottom.”

This Court, in an extensive opinion, stated in St. Anthony

Falls Water Power Company v. St. Paul Water

Commissioners, 168 U.S. 349 (1897) at 364:

“In Kaukauna Water Power Company v. Green

Bay & Mississippi Canal Co., 142 U.S. 254 (1891), Mr.

Justice Brown, in delivering the opinion of the court,

said at page 271: ‘It is the settled law of Wisconsin,

announced in repeated decisions of its Supreme

Court, that the ownership of riparian proprietors

extends to the centre or thread of the stream,

subject, if such stream is navigable, to the right

of the public to its use as a public highway for

the passage of vessels (citing cases). In City of

Janesville v. Carpenter, 77 Wisconsin, 288, 300, it is

said of the riparian owner: He may construct docks,

landing places, piers and wharves out to the

navigable waters, if the river is navigable in fact,

... 9ubject to these restrictions, he has the right to use

his land under water the same as above water. It is his

15

private property under the protection of the

Constitution, and it cannot be taken, or its value

lessened or impaired even for public use, “without

compensation,” or “without due process of law,” and

it cannot be taken at all for any one’s private use.’ ”

(emphasis supplied)

A recent Wisconsin case, very similar on its facts to the

instant situation is Wisconsin v. Bleck, Wis., 388 N.W.2d 492

(1983) in which a non-riparian owner claimed the right to

maintain anchors in the bed of a navigabie lake for the

purpose of mooring a water ski jump. The discussion of the

Wisconsin Supreme Court appears on page 498:

“The only use of the water that was regulated in this

case was one dependent upon a structure secured to

the lake bottom. Through the enforcement of sec.

30.12, the state seeks not to preclude the petitioners’

recreational use of Bass Lake but only to control

petitioners’ unauthorized placement of a structure on

the bed of a navigable lake. The fact that the state's

regulation of the use of the lake bed pursuant to its

authority under sec. 30.12 may have an incidental

effect on the petitioners’ recreational use of the lake

does not amount to a violation of the public trust

doctrine.” (emphasis supplied)

The Michigan case of Hall v. Wantz, supra, uses the

analogy of a Vermont case to dispose of the arguments of

the permanently anchoring businessman that since the

16

traveling public is convenienced by his services, he must be

engaged in navigation. The Response appears on page 464:

“In Furlong v. Deringer, Inc., 111 Vt. 220, 13 A.2d

186, 187, the court in a like case granted injunctive

relief and said: ‘That the public is entitled to a proper

viatic use of a highway is too well established to need

argument or citation of authority. However, this fact

does not avail the defendant in this case...It

(defendant) is here claiming right to occupy

plaintiff's land (within the highway boundaries) for

the purpose of conducting a busines for its private

gain and profit. |t makes an attempt to justify its claim

upon the ground that the nature of its business is

such that the travelling public is convenienced

thereby. This same argument may be used with equal

force to one who sets up on another's land within

highway limits a gas station, garage, restaurant and

dozens of other business stands. Here the defendant

is attempting to take another's property for its private

use against the will and without the consent of the

owner. This cannot be done. (Citing authorities)’ ”

(Emphasis supplied)

Authorities are numerous for the proposition that the

public right of navigation includes only a temporary right of

anchorage as an incident necessary to the enjoyment of the

right of navigation.

Anderson v. Reames, 204 Ark. 216, 161 S.W.2d 957 (1942)

Kuramoto v. Hanoda, 30 Haw. 841 (1929)

Hall v. Wantz, 336 Mich. 112, 57 N.W.2d 462 (1953)

Patterson v. Dust, 190 Mich. 679, 157 N.W. 353 (1916)

17

West v. Smith, 95 idaho 550, 511 P.2d 1326 (1973)

1 Fornhon, Water and Water Rights, Sec. 46 (1904)

Peopie v. Kraemer, 164 N.Y.S. 423, 429 (1957):

“The harbor is located in a region in which there

is a substantial amount of commercial traffic of a type

that might utilize the harbor for purposes of

navigation as, for example, to lay up overnight in the

course of a journey through the Sound.”

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

104 North 5th Streét

Murray, Kentucky 42071

(502) 753-8900

Attorney for Respondents

18

'

“ta,