(dissenting).
I respectfully, but vigorously dissent from the majority opinion for reasons enumerated in the dissent.
*310I agree that the enactment of the Kentucky Wild Rivers Act1 by the General Assembly at its 1972 session served a laudable purpose. The legislative scheme of preserving the unique primitive character of the Wild Rivers area for all the citizens of the Commonwealth is commendable. It is pleasant,
“To him who in the love of Nature holds
Communion with her visible Forms, she speaks
A various language.”2
It refreshes one’s spirit to tread the forest primeval; to see and hear the murmuring pines and the hemlocks bearded with moss, and in garments green. To hear and see the cascading waters of Cumberland Falls in its picturesque setting is an experience that lingers long in memory.
The legislative scheme to preserve the beauty in the designated areas was never intended to be accomplished by imposing the burden of the cost and a restriction of use on the owners of property within the designated area. A comprehensive study of provisions of the act reveals no ambiguities. The purpose, intent, regulation and enforcement of the provisions are detailed in clear, concise and simple language.
It would be repetitious to detail every procedure — every step taken in this continuing controversy of two years’ duration. The Kentucky Wild Rivers Act became effective over four years ago. Almost two years have passed since the trial court issued a restraining order prohibiting Morris Stephens from “. . . cutting timber, road building, and any other land uses allowed by KRS 146.290 within the exterior boundaries designated by KRS Ch. 146 as a wild river, that section being the Cumberland and River from Summer Shoals to the backwater of Lake Cumberland, and the defendant’s [Stephens] activities being within the section approximately 300 feet upstream from Cumberland Falls on the west bank of the Cumberland River in McCreary County, Kentucky. . . . ” Subsequently, the Commonwealth was granted a temporary injunction with the same effect as the restraining order. Since December 10,1974, that injunction has been in full force and effect. Out of the “tangled morass” of legal procedure has emerged a scheme by the Commonwealth to take private property for public use without just compensation. That concept violates both the United States Constitution3 and the Kentucky Constitution.4
The majority construes the Wild Rivers Act as enabling legislation. My view is to the contrary. I am convinced that on June 16, 1972, when the act became effective, Morris Stephens and other property owners within the designated area were restricted in the use of their property. There was a taking. There was, “an interference with the legally protected use to which the land has been dedicated, which destroys that use or places a substantial and additional burden on the landowner to maintain that use is a ‘taking’ of his property.”5 Since the act became effective more than four years ago, Morris Stephens cannot pluck a wild flower, cut a “riding switch,” lift a stone, or construct a passway on his property. There has been such substantial interference by the Commonwealth so as to destroy his right to the use and enjoyment of his property. A portion of the act designated that:
“. . . [establishment of these boundaries shall be accomplished in such a way that it includes at least the visual horizon from the stream, but not more than two thousand five hundred (2,500) *311feet from the center of the stream. The boundary shall further include access points, at the upstream and downstream boundary of the area.”
The fact that the Commonwealth has failed to comply with the legislative intent is irrelevant. A dereliction of duty is not sufficient to erase the restriction — -the taking of private property without just compensation.
I am convinced that in order to conform to the purpose and legislative intent of the Wild Rivers Act, the protection embodied in the act was to be extended to all streams designated from the moment that the act became effective. When the legislature designated that portion of the Cumberland River which is in dispute here, as part of the Wild Rivers System, all development not in accord with KRS 146.290 was then prohibited.
I am buttressed in my view by that portion of the majority opinion that holds:
“The landowners’ motion to dismiss called to the trial court’s attention the fact that no boundary designation had been made, but to no avail. We are of the opinion that the motion was well taken; it should have been granted and the complaint should have been dismissed.”
Had the complaint been dismissed there would have been nothing to prevent a multiplicity of actions seeking a solution to the questions before the trial court in this action.
However, since the majority takes the position that it is not the purpose of injunctions to determine substantive rights as regards a landowner, but is alright for the Commonwealth, that concept is difficult to swallow. What is “sauce for the goose is sauce for the gander.” If the Commonwealth could restrict the landowner’s use of his property, why should it not have been required to pay for the taking?
I am not impressed with the majority’s view that the Commonwealth was in good faith pursuing anything. All the Commonwealth desires is relief from the order adjudging it in contempt. The Commonwealth has flagrantly, openly and notoriously violated the trial court’s order. Then, it asserts:
“To penalize this party [the Commonwealth] from what is clearly, at worst, excusable error would contradict the clear intent of our judicial system to provide justice tempered by fairness. . . ”
For the Commonwealth to state that Morris Stephens has suffered no real harm as a result of the Commonwealth’s actions is absurd. In fairness it should not have been so asserted.
As we celebrate this bicentennial year, may we follow the precepts of good faith and integrity established by the founding fathers. Let us remember that no one, including the sovereign, is above the law. It is the duty of a governmental department to obey an injunction.6 A court’s order would be an exercise in futility if this were not so.
The trial court held that, “. when an injunctive procedure which will deprive the land owner of any rights to his property, is instituted the Commonwealth should forthwith initiate proceedings to compensate therefore either by negotiation or condemnation.” In substance, the trial court told the Commonwealth to “fish” or “cut bait.” Yet, it has done nothing to comply with the trial court’s judgment and order.
The trial court properly resolved the issues in accordance with the provisions of the act. He made proper findings that in my view are not clearly erroneous. CR 52.01.
For the reasons set out in this dissent, I would affirm the judgment of the trial court.
. The Kentucky Wild Rivers Act referred to is KRS 146.200 through 146.990.
. Bryant, Thanatopsis.
. The fifth amendment provides, “. . nor shall private property be taken for public use without just compensation.”
. Section 242 of the Kentucky Constitution provides that any person or corporation who has, “the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by them; which compensation shall be paid before such taking." (Emphasis added)
.Commonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695 (1951)
. Wallace v. Sowards, Judge, 313 Ky. 360, 231 S.W.2d 10 (1951).