
    No. 280-63.
    October 29, 1965
    Tennessee Gas Transmission Company
   Eminent domain; taking. — Plaintiff sued to recover just compensation for the alleged taking of its property for public use in that, as the direct result of the construction and operation by the Government of the Greenup Lock and Dam in Kentucky, some 2.21 acres of plaintiff’s land on the bank of the Ohio River downstream from the dam was eroded during 1961 and 1962 and its submerged pipeline crossing the Ohio River at this point was threatened with the possibility of a washout until plaintiff took certain protective measures. The case came before the court originally on defendant’s motion to dismiss or for summary judgment and plaintiff’s cross-motion for summary judgment or for a pretrial order. Upon consideration thereof and after oral argument, the court concluded that plaintiff had failed to allege that the Government activity complained of had raised the -water level of the Ohio River above ordinary high water mark so that it eroded plaintiff’s land above that point; that in view of the fact that the exercise of the Government’s power of eminent domain in aid of navigation extends to the entire bed of the stream below ordinary high water mark, plaintiff is not entitled to recover unless it could establish that a taking occurred as the result of defendant’s raising the water level above ordinary high water mark. On May 3, 1965, the court granted plaintiff 30 days to amend its petition. On May 24, 1965, plaintiff filed its first amended petition and the case came before the court again on defendant’s motion to dismiss-such first amended petition. Defendant pointed out that the allegations of the amended petition did not state that the dam had raised the level of the Ohio River above ordinary high-water mark so that it eroded plaintiff’s land above that point but rather that the velocity of the river eroded the bank of the stream. Upon consideration of defendant’s motion and without oral argument the court concluded that the- first amended petition failed to comply with the Order of May 3, 1965, and failed to state a claim upon which relief might be granted. On October 29, 1965, the court ordered that the petition be dismissed. Plaintiff’s petition for a writ of certiorari was denied, 383 U.S. 943 (1966).  