A previous study ("Research Relating to State Highway Laws", reported January 1967) afforded us an opportunity to review a vast array of literature and statutory law pertaining to enabling legislation and administrative authority to construct and maintain highways. It was surprising to find that the statutes are void of guidance on certain subjects: there are great "bodies" of unwritten or non-statutory laws which are referred to as "common law" and "civil law", which are deeply rooted in the past; many are doctrinal or equitable; many are extraordinary and argumentative -- they should not be confused with Civil Procedure. They have been described as the laws of "private rights" and offer redress of grievances when statutory or constitutional laws are not specific.
The right to own and possess land is constitutional; riparian rights attach -- some authorities contend that riparian rights cannot be severed and sold. Formerly, the attitude toward ownership of land was that rights extended from the center of the earth to the sky above and that owners rights were inviolable except through eminent domain and "due process". Modern attitudes superimpose a limited-use or "public interest" condition upon private ownership. Even so, an owner of land may not perpetuate a nuisance or use his land in ways which are injurious or damaging to others. Interestingly enough, a nuisance does not exist until someone is injured by it; priority of occupation does not constitute a prescriptive right.
The Department incurs liabilities when private rights are invaded or usurped. In some jurisdicions the state has been held liable in the same manner as a private owner; where sovereign immunity persists, damage to private property may be described as "nuisance", "trespass", or "negligence". Ultimately, such actions are held as a taking of or adverse possession of private property.
Digital Object Identifier
McLellan, D. W. Jr. and Fox, Victor, "Legal Aspects and Guidelines Pertaining to Drainage of Surface Waters" (1970). Kentucky Transportation Center Research Report. 985.