If a party is deprived of the entire use of his property, it is a taking, within the scope of the Fifth Amendment, although the mere title is not disturbed; but by an inspection neither the title nor the general use is taken, and all that can be said is that there is a temporary and limited interruption of the exclusive use.
The property owners possessed land on which caves were situated. The judge of the lower court entered an order that surveyors were permitted to enter upon the land to survey a cave for the purpose of securing evidence on an issue as to whether or not a part of the cave was being exploited under the lands of another party. The property owners claimed that the lower court was without jurisdiction or authority to order the inspection and sought a writ of prohibition against the judge. Upon review, the court denied the writ of prohibition. The case was elevated to the Court of Appeals of Kentucky.
Can the Court permit inspection of a cave in one's property to secure evidence for a different case?
The court held that there was no difference in principle between the invasion of a mine on adjoining property to ascertain whether or not the minerals were being extracted from under the applicant's property and an inspection of the property owner's land through his cave to ascertain whether or not he was trespassing under another person's property. The court found that the lower court judge reviewed surveys of the surface of both parties, but the conflicting opinions were of no assistance to the judge. The judge concluded that the only viable option to ending the controversy was an accurate survey of the cave by an uninterested party.