Bayview Land, Ltd., et al. v. Clark, et al.
| Docket Number: | 2004-CA-01415-SCT Linked Case(s): 2004-CA-01415-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 10-12-2006 Opinion Author: CARLSON, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Real property - Public trust tidelands - Artificial accretions - Validity of land patent - Littoral rights - Authority of Secretary of State - Section 29-1-107(2)(a) - Section 29-15-11 Judge(s) Concurring: SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, EASLEY, GRAVES AND RANDOLPH, JJ. Non Participating Judge(s): DICKINSON, J. Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 06-22-2004 Appealed from: Harrison County Chancery Court Judge: Donald Patterson Disposition: Chancellor found in favor of Appellee Case Number: C2402-98-389 |
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| Party Name: | Attorney Name: | |||
| Appellant: | BAYVIEW LAND, LTD., A NEVADA CORPORATION, AND IMPERIAL PALACE OF MISSISSIPPI, INC., A
NEVADA CORPORATION; TREASURE BAY LLC, JUNE S. MLADINICH AND MLADINICH FAMILY
LIMITED PARTNERSHIP |
BRITT R. SINGLETARY, TINA ROSE SINGLETARY, SAMUEL L. BEGLEY
DEAN HOLLEMAN, MICHAEL B. HOLLEMAN, W. JOEL BLASS |
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| Appellee: | STATE OF MISSISSIPPI BY AND THROUGH ERIC CLARK IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE AS TRUSTEE OF PUBLIC TIDELANDS TRUST; TAL FLURRY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS TAX ASSESSOR OF HARRISON COUNTY, MISSISSIPPI; DAVID V. LAROSA, SR., IN HIS OFFICIAL CAPACITY AS TAX COLLECTOR OF HARRISON COUNTY, MISSISSIPPI; THE BOARD OF SUPERVISORS OF HARRISON COUNTY, MISSISSIPPI IN THEIR OFFICIAL CAPACITY; CITY OF BILOXI, MISSISSIPPI, AND THE BILOXI MUNICIPAL SEPARATE SCHOOL DISTRICT | JAMES LAWTON ROBERTSON, NANCY MORSE PARKES, KAREN J. YOUNG, JOSEPH R. MEADOWS, GINA BARDWELL TOMPKINS, RONALD G. PERESICH, JAMES LAWTON ROBERTSON |
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| Topic: | Real property - Public trust tidelands - Artificial accretions - Validity of land patent - Littoral rights - Authority of Secretary of State - Section 29-1-107(2)(a) - Section 29-15-11 |
| Summary of the Facts: | Imperial Palace of Mississippi, Inc. obtained various federal, state, county and city permits to build a hotel and garage. This case centers around questions of ownership of the land on which the hotel and garage are located. The land, which borders Biloxi Back Bay near the Mississippi Gulf Coast, and which the State asserts is a part of the public trust tidelands, had been extended seaward over many years, undisputedly changing the shoreline. The portion of additional land consists of 3.05 acres of what are known as artificial accretions extending into the water it borders. Bayview Land, Ltd. and Imperial Palace argue that such accreted land vests in the State only if the State meets its statutory burden to prove the accretions were not made as statutorily permitted consistent with the Mississippi Constitution and for a higher public purpose. The State argues that the land had been extended seaward by these accretions (the shoreline has undisputedly changed over many years) and that the portion of the land created by artificial accretions, as well as the accompanying littoral rights, should be vested in the State. The chancellor agreed with the State. Bayview and Imperial Palace appeal. |
| Summary of Opinion Analysis: | Issue 1: Artificial accretions Bayview and Imperial Palace argue that the State failed to meet its burden of proving by a preponderance of the evidence that any accretions were not already vested in the uplands owner by common or statutory law. The State must prove by a preponderance of the evidence that any artificial accretion occurring prior to July 1, 1973, was not done pursuant to a constitutional legislative enactment and for a higher public purpose. For example, if a landowner artificially accreted to his land to provide environmental protection or to allow docking of vessels and make fishing more efficient, this would serve a higher public purpose of the trust. In such cases, such an artificial accretion would be authorized and vest to the uplands title holder. On the other hand, for the land to vest in the trust, the Secretary of State must prove the accretions offend our state constitution and were not made for a higher public purpose. This should ordinarily be done after the preliminary map is drawn using the mean high water line in developed areas as of July 1, 1973. The State went to great lengths through the evidence it presented at trial to show that land composed of artificial accretions lay between the natural land and the shore and to determine the last natural shoreline position between the natural land and this accreted land bordering the water. However, the State failed to meet its burden of proving by a preponderance of the credible evidence that the accretions were not done pursuant to a constitutional legislative enactment and for a higher public purpose. The State did present substantial credible evidence that went to prove the location of the last natural shoreline, but that substantial credible evidence did not show that the accretions to the land were not done pursuant to a constitutional legislative enactment or for a higher public purpose. The argument of the Secretary of State depends on using something other than the July 1, 1973, mean high water line as the beginning boundary delineation point to prevail. Nowhere in the statute or in the applicable case law does the last natural shoreline position determine the rights of the State or the private landowner in such a dispute. The Secretary of State should have begun with a preliminary map based on the July 1, 1973, mean high water line. This he did not do. The Secretary of State uses as his beginning point the date Mississippi entered the Union in 1817. Since the correct standard to use was the mean high water line nearest to July, 1 1973, the State was required to prove by a preponderance of the credible evidence that the artificial accretions above this mean high water line were not done pursuant to a constitutional legislative enactment and for a higher public purpose. Inasmuch as the State wholly failed to meet its mandated burden of proof in this case, the case is remanded to the trial court, for the limited purpose of conducting a further evidentiary hearing in order to determine the mean high water line nearest the effective date of the Coastal Wetlands Protection Act. Once the chancellor has made this determination, the chancellor shall then declare that all land lying north and east of this line shall be vested in the State as part of the public trust tidelands, and that all land lying south and west of this line as determined by the chancellor shall vest in Bayview and Imperial Palace. Issue 2: Validity of land patent The trial court held that the land patent from the State presumedly conveying the land in question to one of Imperial Palace’s supposed predecessors in interest, was null and void for want of authority. The predecessor’s 1928 public land patent from the State was at a time when his property (and the subject property in today’s case) was being utilized, albeit by a private company, to promote the State’s booming oyster industry. The predecessor, in concert with the State, and indeed as required by statute, was storing oyster shells on its property subject to disposition at the direction of the State, with a portion of the shells being used, inter alia, for paving roads and replanting in the natural oyster reefs of the tidelands. This public land patent was certainly wholly consistent with the public purposes of the public trust tidelands. Thus, the chancellor erred in finding that this conveyance was null and void for want of authority. The chancellor also erred in determining that there were no existing conveyances divesting the predecessor and his heirs of title to the subject property. The substantial credible evidence in the record reveals that the 1943 deed conveyed title to the predecessor’s uplands, including the patented area, as substantiated by the deraignment of title submitted by Bayview and Imperial Palace. Issue 3: Littoral rights The trial court found that because the 3.05-acre of land made up of accretions was vested in the State, Imperial Palace had no land touching the water, except for small slivers of land on either side of the accreted parcel in question, and therefore no littoral rights to the water touching any of the land except its own, those small slivers flanking the accretions. Littoral and riparian property owners have common law and statutory rights under the Coastal Wetlands Protection Law which extend into the waters and beyond the low tide line, and the state’s responsibilities as trustee extends to such owners as well as to the other members of the public. These rights are rights to reasonable use, subject to the State’s interest in the lands. Operating gaming facilities and a hotel would constitute reasonable use and encourage commerce on the water. Imperial Palace does enjoy certain littoral rights to be determined by the chancellor upon conducting further proceedings. Issue 4: Authority of Secretary of State The trial court held that Mississippi has authorized the Secretary of State to require leases and collect rents on submerged tidelands belonging to the State and held in trust. The appellants argue that authorizing the State to do this constitutes judicial approval of a taking, offending the Constitutions of both Mississippi and the United States. However, section 29-1-107(2)(a) unequivocally affords the Secretary of State the discretion to enter into a lease of the public tidelands. With regard to levying taxes, section 29-15-11 allows the State and its political subdivisions to assess and collect ad valorem taxes from persons or firms occupying land held by the State in the Public Tidelands Trust. |
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