(concurring).
The “wildest” aspect of this controversy involving the “Wild Rivers Act” is that a suit was brought to enjoin a violation of the act within a geographic area that has never been defined as required by KRS 146.250. Technically that should end the matter and obviate the rest of the discussion. What the majority opinion does, however, is to provide some future guidance by pointing out these things:
(1) The restrictions contained in KRS 146.290, though probably intended to become effective upon designation of the boundaries pursuant to KRS 146.250, so substantially reduce the owners’ private property rights that they (the restrictions) exceed the traditional scope of the police power and therefore cannot take effect unless and until the owners are paid just compensation for the loss of those rights.
(2) This being so, there can be no injunc-tive relief until the extinction of the owners’ rights is accomplished, either through negotiated conveyance or eminent domain. Since our Constitution, Sec. 13, requires payment in advance of the taking, it is impossible for injunctive relief to be granted either before or simultaneously with the commencement of a condemnation proceeding.
Elaborating on these points, I would add that if the restrictions provided by KRS 146.290 were immediately effective under the police power, there would be nothing for the state to acquire by condemnation unless perhaps it wished to acquire full ownership of the property (erroneously described in KRS 146.280 as “fee title”). That is the real anomaly in the judgment entered by the trial court. It is an example of legal schizophrenia, saying in effect that the restrictions are in force and are protectable by injunction, but the state must nevertheless go on with a condemnation proceeding. As mentioned above, however, if the restrictions are in force, and if that is all the state wants, there is nothing for it to acquire in a condemnation proceeding.
It is a matter of deep regret to me that we cannot uphold the right of the state to “freeze” the use of these wild rivers areas without having to incur the expense of compensating the private owners. Nevertheless, having searched the authorities elsewhere1 to make certain that we are not being unnecessarily conservative in our estimation of the police power, I believe that if we held otherwise the United States Supreme Court would declare the effect of KRS 146.290 to be a taking of property without due process of law. And, after all, if the state can simply extinguish one’s right to mine, cut timber or put buildings on land that has no real value for any other private purpose, what can the due process clause mean? Private ownership of property is fundamental to our system, and if the system is to be changed it should not be changed by the courts.
One last note which may seem trivial: I do not understand why the drafters of statutes persist in using the term “fee simple” or “fee title” to distinguish corporeal from incorporeal rights. “Fee simple” measures title in terms of time, meaning forever. It is equally applicable to corporeal title and to easements, which, being rights to use as distinguished from the right to possess and exercise general dominion over the property in question, are called incorporeal. I simply deplore the continuing bastardization of a great and rich language. Of all people, lawyers should know better.
REED, C. J., and STEPHENSON, J., join in this concurring opinion.
. Various “wetlands” acts prohibiting the dredging and filling of marsh lands provide the closest comparison. There, however, there is nothing much the owner can do with the property in its present state, whereas land that already is rich in timber and minerals and desirable for residential and recreational development has great value “as is” and now.