Not  Subject   to  Servitude

Lands above or "upland to" the ordinary high water mark of a navigable stream in its natural condition are not subject to a navigational servitude. Stated Justice Pitney, U.S. v. Cress, 243 U.S. 316 (1917):

"In Kentucky, and in other states that have rejected the common-law test of tidal flow and adopted the test of navigability in fact, while recognizing private ownership of the beds of navigable streams, numerous cases have arisen where it has been necessary to draw the line between public and private right in waters alleged to be navigable; and by an unbroken current of authorities it has become well established that the test of navigability in fact is to be applied to the stream in its natural condition, not as artificially raised by dams or similar structures; that the public right is to be measured by the capacity of the stream for valuable public use in its natural condition; that riparian owners have a right to the enjoyment of the natural flow without burden or hindrance imposed by artificial means, and no public easement beyond the natural one can arise without grant or dedication save by condemnation, with appropriate compensation for the private right. Cases exemplifying these propositions are cited in a marginal note. We have found no case to the contrary...."

"Many state courts, including the court of appeals of Kentucky, have held, also, that the legislature cannot, by simple declaration that a stream shall be a public highway, if in fact it be not navigable in its natural state, appropriate to public use the private rights therein without compensation. Morgan v. King, 18 Barb. 277, 284, 35 N. Y. 454, 459, 461, 91 Am. Dec. 58; Chenango Bridge Co. v. Paige, 83 N. Y. 178, 185, 38 Am. Rep. 407; Murray v. Preston, 106 Ky. 561, 563, 90 Am. St. Rep. 232, 50 S. W. 1095; Stuart v. Clark, 2 Swan, 9, 17, 58 Am. Dec. 49; Walker v. Board of Public Works, 16 Ohio, 540, 544; Olive v. State, 86 Ala. 88, 92, 4 L.R.A. 33, 5 So. 653; People ex rel. Ricks Water Co. v. Elk River Mill & Lumber Co. 107 Cal. 221, 224, 48 Am. St. Rep. 125, 40 Pac. 531. And see Thunder Bay River Booming Co. v. Speechly, 31 Mich. 336, 345, 18 Am. Rep. 184; Koopman v. Blodgett, 70 Mich. 610, 616, 14 Am. St. Rep. 527, 38 N. W. 649.

This court has followed the same line of distinction..."

Stated Justice Burton in United States v. Kansas City Ins. Co., 339 U.S. 799 (1950):

"The opinion in the Chicago case also sheds light upon the earlier cases. It limits the decisions in United States v. Lynah, 188 U.S. 445, and United States v. Cress, 243 U.S. 316, so that they do not conflict with the Government's dominant servitude when it is applied to the bed of a navigable stream. In the Kelly case, which is reported with the Cress case, the land in question was on a nonnavigable tributary of the navigable Kentucky River. The Government's dam raised the waters of the river which, in turn, raised those of the tributary across which Kelly had built a mill dam. This Court upheld the judgment requiring the United States to pay Kelly for the loss of his power head at his mill which resulted from this change in the level of the tributary. Similarly, in the Cress case itself, this Court assumed that a tributary of the Cumberland River was not navigable. It then allowed recovery for the destruction of the value of the land and of a ford across the tributary. All of this destruction was caused by the Government's dam on the river but was done at points beyond the bed of that river. In the Chicago case, this Court's view of the Cress decision was expressed as follows:

'What was said in the Cress case must be confined to the facts there disclosed. In that case, the Government's improvement in a navigable stream resulted in the flooding of the plaintiff's land in and adjacent to a non-navigable stream. The owners of the land along and under the bed of the [nonnavigable] stream were held entitled to compensation for the damage to their lands. The question here presented was not discussed in the opinion.' 312 U.S. at p. 597.

"The extent of the Government's paramount power over the bed of navigable streams was further clarified in United States v. Willow River Power Co., supra. The respondent there claimed compensation for the reduction of a power head, which reduction was caused by a Government dam which raised the level of the navigable river into which the respondent dropped the water from its dam built on a nonnavigable tributary. Compensation was denied on the ground that because the loss of power to the respondent occurred within the bed of the navigable river, such loss was covered by the Government's dominant power to change the river's level in the interest of navigation. This Court said:

'We are of opinion that the Cress case does not govern this one and that there is no warrant for applying it, as the claimant asks, or for overruling it, as the Government intimates would be desirable. . . . In the former case the navigation interest was held not to be a dominant one at the property damaged; here dominance of the navigation interest at the St. Croix [the navigable river] is clear." 324 U.S. at p. 506.

"It is not the broad constitutional power to regulate commerce, but rather the servitude derived from that power and narrower in scope, that frees the Government from liability in these cases. When the Government exercises this servitude, it is exercising its paramount power in the interest of navigation, rather than taking the private property of anyone. The owner's use of property riparian to a navigable stream long has been limited by the right of the public to use the stream in the interest of navigation. See Gould on Waters, c. IV, 86-90 (1883); I Farnham, Waters and Water Rights, c. III, 29 (1904). This has applied to the stream and to the land submerged by the stream. There thus has been ample notice over the years that such property is subject to a dominant public interest. This right of the public has crystallized in terms of a servitude over the bed of the stream. The relevance of the high-water level of the navigable stream is that it marks its bed. Accordingly, it is consistent with the history and reason of the rule to deny compensation where the claimant's private title is burdened with this servitude but to award compensation where his title is not so burdened."