ELR Citation: ELR 21310
No(s). 93-43 (E.D. Ky. Mar 24, 1994)

The court holds that an action by property owners in federal court alleging that a city's withdrawal of water from an artificial lake on their property constitutes an unconstitutional taking is not ripe for review. The previous owner of the land had granted the state an easement for construction of the dam that created the lake. The city obtained a permit to withdraw 1.5 million gallons per day and proposed an expansion of the lake's water treatment facility that would double that amount. The court holds that the landowners' taking claim is unripe until they have invoked state procedures and been refused just compensation. The court next dismisses the landowners' claim that the city violated their property rights under state law. Even if the easement did not grant the city permission to use the additional water, the city obtained the necessary permit to withdraw the water and the property owners do not contend that the city has violated this permit. The court holds that the Kentucky Supreme Court would adopt the majority rule that a dam owner has the right at any time to take down its dam or cease to impound the water for any reason that seems sufficient to it. Since the city could reduce the water level by abandoning the dam, it follows that the property owners do not have a property right in preventing the city from reducing the water level to a lesser degree and, therefore, do not have a cause of action.

Counsel for Plaintiffs
Steven L. Beshear, Lynn C. Stidham
Stites & Harbison
2300 Lexington Financial Ctr.
Lexington KY 40507
(606) 254-2300

Counsel for Defendant
David A. Nunery
105 E. Main St., Campbellsville KY 42718
(502) 789-2466