Summary
In Money v. Wood, 152 Miss. 17, 118 So. 357 (1928), this Court voided an attempted sale of public state land to a private party under what was then Section 2919 Miss. Code of 1906 (currently Miss. Code Ann. § 29-1-65).
Summary of this case from Bayview Land, Ltd. v. StateOpinion
No. 27001.
October 8, 1928.
1. CONSTITUTIONAL LAW. Statutes. True purpose in construing statute is to ascertain intention of legislature; statute, if reasonably possible, must be construed to harmonize with public policy indicated by Constitution; court will limit and restrain language of statute which is unduly broad to conform to policy indicated by Constitution.
In construing a statute, the true purpose is to get at the intention of the legislature; and the statute must be construed with the provisions of the Constitution indicating the public policy of the state; and, if reasonably possible, must harmonize with the public policy indicated by the Constitution; and, if the general language of the statute is unduly broad, and is capable of more than one construction, the court will limit and restrain the language used in the statute to conform to the policy indicated by the Constitution.
2. NAVIGABLE WATERS. Constitutional provision relating to obstruction of navigable waters applies to waters of Mississippi Sound ( Const. 1890, section 81).
Section 81 of the Constitution of 1890, providing that "the legislature shall never authorize the permanent obstruction of any of the navigable waters of the state, but may provide for the removal of such obstructions as now exist, whenever the public welfare demands," applies to the navigable waters of the Mississippi Sound, which are public highways.
3. NAVIGABLE WATERS. At common law, lands lying between high and low tide were held by king as trustee in sovereign capacity; ownership and dominion over lands covered by tidewaters subject to control of Congress passed to states on their admission to Union; constitutional provision adopting theory that state tidewater lands are held by state as trustee prohibits their permanent alienation ( Constitution 1890, section 81).
At common law, lands lying between high and low tide were lands of the king, held by him as trustee in his sovereign capacity for all of the people, and not by him in a proprietary capacity. When the several states were admitted into the Union, the ownership and dominion over lands covered by tidewaters within the respective states, subject to the right of Congress to control navigation and for the regulation of commerce, passed to the states; and section 81 of the Constitution of 1890 has, in effect, adopted the theory that state lands are held by the state, as trustee, for the public, and prohibits their permanent alienation.
4. NAVIGABLE WATERS. Land commissioner has no authority to convey submerged lands lying below high tide in Mississippi Sound; "land" ( Hemingway's Code 1917, section 5254; Hemingway's Code 1927, section 8347).
The word "land," in section 2919, Code 1906 (section 5254, Hemingway's Code 1917), means the solid part of the earth's surface as distinguished from water, constituting a part of such surface, and the land commissioner has no authority to convey, under such section, the submerged lands lying below the high tide in the Mississippi Sound.
5. DEEDS. Void deed may be attacked collaterally; person whose enjoyment of property is interfered with by reason of void deed may enjoin erection of structures impairing property rights by grantee therein.
Where a deed is void, because of having been made by an officer with no authority to do so, such deed may be attacked collaterally; and a person whose enjoyment of his property is interfered with may attack the same and prevent, by injunction, the erection of structures impairing his property rights, by the grantee, in such void deed.
APPEAL from chancery court of Harrison county, HON. V.A. GRIFFITH, Chancellor.
Gardner, Brown Morse and May, Sanders McLaurin, for appellants.
The record presents for decision, as we see it, the following questions: 1st. The character of the land and of the state's title thereto. 2nd. The power of the state to dispose of the land. 3rd. The power of the land commissioner to make the conveyance under section 5254, Hemingway's Code 1917. 4th. The right of the complainant to assail the validity of the patents in any view of the case. 5th. The right of the complainant to maintain this proceeding under the facts in this particular case.
It is the settled law that the title and right of control in tide lands is in the state and the right and title of riparian proprietors on navigable waters of the United States extend only to ordinary or mean high tide, and that the shore between high and low water marks, as well as the soil under the tidewater, belongs to the state, subject only to the rights surrendered to the national government by the Constitution of the United States. Upon the American Revolution all the proprietary rights of the Crown and Parliament in, and all their dominion over, lands under tidewater vested in the several states. This rule applies, not only to tidewater, but to all navigable water, including the Mississippi River, Great Lakes, and other like or similar bodies of water. Shively v. Bowlby, 152 U.S. 2; 38 Law Ed. 331; Appleby v. City of New York, 271 U.S. 364; 70 Law Ed. 992.
We believe it will not be controverted that at the time of the conveyance to the appellants the state of Mississippi owned the title to the tide lands conveyed by the patents.
Since the state owned the land our contention is that the state had the power to dispose of it. The rule is established by a long line of decisions that the state, owning the land under navigable waters within its boundaries, may convey the land and vest in the grantee fee-simple title thereto. The only limitations upon this right are that the conveyance is subject to the paramount right of navigation over the waters so far as such navigation might be required for the necessities of commerce with foreign nations, or among the several states, the regulation of which is vested in the Federal Government. Under such deeds the grantees have the right to reclaim the submerged land conveyed thereby. Appleby v. City of New York, 271 U.S. 364-399; Port of Seattle v. Ore. W.R. Co., 255 U.S. 56-63; Mobile Transp. Co. v. Mobile, 187 U.S. 479; United States v. Mission Rock Co., 189 U.S. 391-407; Shively v. Bowlby, 152 U.S. 1, 9, 52, 54; Illinois Central R.R. Co. v. Illinois, 146 U.S. 387, 453; Hoboken v. Penn. R.R., 124 U.S. 656; Mission Rock Co. v. United States, 109 Fed. 763-769; Martin v. O'Brien, 34 Miss. 21-36; Commissioners of Lincoln Park v. Fahrney, 250 Ill. 256, 267; Cobb v. Lincoln Park Commissioners, 202 Ill. 427; Gordon v. Winston, 181 Ill. 338; Revell v. People, 177 Ill. 468; People v. Kirk, 162 Ill. 138; People v. Steeplechase Park Co., 113 N.E. 521-525, 218 N.Y. 459; Morris E.R. Co. v. Mayor, etc., of Jersey City, 51 Atl. (N.Y.) 387-389; Burkhard v. Heinz Co., 60 Atl. (N.J.) 191; Nedtweg v. Wallace, 208 N.W. (Mich.) 51-54; Sage v. Mayor, etc., of City of N.Y., 47 N.E. (N.Y.) 1096-1098; State v. Ala. Power Co., 58 So. (Ala.) 462; McCarter v. Lehigh Valley Railroad, 79 Atl. (N.J.) 93.
If the legislature had enumerated the kind and character of land of the state subject to disposal by the land commissioner and had stopped with such enumeration, of course, the land commissioner would have no power to convey any land not embraced within the enumerated lands, but the legislature did not so restrict the power of the land commissioner, but, on the contrary, after providing in different ways for the sale of forfeited tax lands, swamp and overflow, and other lands, they then proceed in the language above quoted to include within the power of the land commissioner the right to convey all lands of whatever character, belonging to the state. And when making this grant of power, the legislature was not unmindful of the fact that the state owned the tide lands in question. They had actually taken note of the state's ownership and control by the affirmative legislation conferring certain exclusive rights upon riparian owners. Section 5254 of Hemingway's Code of 1917; Port of Seattle v. Ore. W.R. Co., 255 U.S. 56; Shively v. Bowlby, 152 U.S. 1.
The well-settled rule is that the patent to public lands issued by the state can be set aside only in judicial proceedings instituted on behalf of the state. 22 R.C.L. 342.
The rule is well settled that mere apprehension of injury and damage is not sufficient to maintain an injunction. There must be a threatened injury accompanied by an act in execution of the intention before a court of equity will lend its aid by injunction. Thompson v. Kreuster, 103 Miss. 388. See, also, Quintini v. Board of Aldermen, 64 Miss. 483; Canning Co. v. Hart, 84 Miss. 737.
Monroe Lehman and Stevens Heidelburg, for appellee.
The title which the state holds to land under navigable waters is different from that which holds in lands intended for sale and occupation. I.C.R. Co. v. Illinois, 146 U.S. 387, 36 L.Ed. 1018. This state recognizes the right of the state to dispose parcels of land under the water, for purposes of wharves, piers, docks and other structures in aid of commerce, but this is upon the theory that where the state parts with its title for these purposes it is a thing done for the benefit of the people as a whole and in no way is a breach of the trust under which the state holds title to the land. See Longsault v. Call, 61 L.Ed. 394; Shively v. Bowlby, 152 U.S. 2, 38 L.Ed. 331; Appleby v. New York, 271 U.S. 364, 70 L.Ed. 992.
There is nothing whatsoever in the decision of the Appleby case, supra, which in any way conflicts with the position taken by us. See In re New York, 168 N.Y. 134, 56 L.R.A. 500; Broward v. Mabry, 50 So. 826.
In State ex rel. Cates v. West Tenn. Land Co., 127 Tenn. 575, 158 S.W. 746, Ann. Cas. 1914-B, 1043, the Tennessee court not only held that the lands under navigable waters are owned by the state in trust for all the people but further held that the state cannot grant such lands away and that such lands are not susceptible to private ownership at all. See Home v. Richards (Va.), 2 Am. Dec. 574; Priewe v. Improvement Co., 103 Wis. 537, 74 Am. St. Rep. 904; Steel Co. v. Bilot, 109 Wis. 418, 85 N.W. 402, 83 Am. St. Rep. 905; Bradshaw v. Duluth Imperial Mill Co., 52 Minn. 59, 53 N.W. 1066; Martin v. O'Brien, 35 Miss. 21; Steamboat Magnolia v. Marshall, 39 Miss. 109.
It is fundamental that an officer appointed to sell state lands can dispose of only such lands as are contemplated by the statute providing for such sale, and that his patent is void unless he had authority to issue it. 32 Cyc. 1088-1090; Polk's Lessee v. Wendal, 3 L.Ed. 665; Huber v. Freret, 138 Miss. 238, 103 So. 3.
The first patents issued in the present controversy showed upon their face according to the testimony that they were issued under the swamp land act. However appellants do not contend that these patents were valid. They admit that after the filing of this suit they went back to the land commissioner and procured corrected patents claiming to purchase tidewater lands. These corrected patents were filed with their answer and show upon their face that they were issued under the authority of section 2919 of the Code of 1906. Counsel in their brief contend that the authority for the issuance of these patents was this same section, which is carried forward as section 5254 of Hemingway's Code of 1917, section 6087 of Hemingway's Code of 1927. It will be noted that the statute in question uses the word "lands" only.
In no case have we found any holding that a land commissioner or other officer vested simply with the general authority to sell or dispose of public lands had the right or authority to sell property of this character.
We contend that this state has adopted a public policy which prevents the disposal of this property. Section 81 of the Constitution of 1890 of the state of Mississippi.
Counsel for appellants contend that the validity of a patent to public lands can never be called in question except in judicial proceedings instituted in behalf of the state, and cite certain authorities, which, we submit, do not bear out their contention. Counsel overlooked the distinction between a patent which is void on its face and one which is merely voidable. The distinction is clearly demonstrated by every authority relied upon by them in support of this contention. See Huber v. Freret, 103 Miss. 3.
It should be borne in mind that when the suit was filed this contract was in full force and effect; that the parties were making every effort to carry out the contract; that they had applied to the War Department for permission to construct this project. See Roberts v. City of Louisville, 13 L.R.A. 844; Telegraph Co. v. Bridge Co. (Kans.), 12 P. 560; Patterson v. Paving Co. (Minn.), 101 N.W. 1064; United States v. Improvement Co., 70 L.Ed. 340; Boward v. Mabry, 50 So. 826; Whitfield v. Rogers, 26 Miss. 84; Boom Co. v. Dixon, 77 Miss. 587; Board of Supervisors v. Carriers Lumber Mfg. Co., 60 So. 326; Leflore County v. Cannon, 81 Miss. 334; Wilder v. Decon, 26 Minn. 10, 1 N.W. 48.
Argued orally by J.O.S. Sanders, for appellant, and R.W. Heidelberg, for appellee.
The appellee, Wood, filed a bill in the chancery court to prevent the appellants from erecting a structure, in the Mississippi Sound, in front of his home, in Biloxi, Miss., and in front of his property on the west end of Deer Island. It appears that the appellants had undertaken to buy lands from the state of Mississippi lying under the waters of the Mississippi Sound for the purpose of constructing and erecting an artificial island, with hotels, boulevards, and residences for the private purposes of the appellants; that the appellants had procured from the land commissioner of the state of Mississippi deeds to certain lands described according to what would have been the sections had the governmental surveys extended into the Mississippi Sound to the point where the said submerged lands lie. The deeds from the land commissioner recited on their face that the above lands are tidewater lands and were sold under section 2919, Code 1906 of the State of Mississippi. The price paid for them was at the rate of one dollar and twenty-five cents an acre.
The defendants, appellants here, had entered into a memorandum agreement with certain parties, in which the lands purchased from the state were described, and same contained, among others, the following stipulation:
"4. Whereas, the said parties of the second part desire to acquire the premises described in paragraphs one and two above for the purpose of improving and developing same, by dredging, filling, and raising of so much of said land as is practicable to a height of at least nine feet above normal high tide, by building a good and sufficient sea wall, together with sidewalk and boulevard construction, around the area filled, in accordance with definite plans and specifications to be submitted, and to beautify the property generally; by constructing a modern fireproof resort type hotel of not less than two hundred and fifty (250) rooms, containing or having in connection therewith an auditorium or a convention hall having a seating capacity of three thousand (3,000) or more persons; to construct a reinforced concrete multiple arched type bridge, equipped with such draw span as may be required by the Federal or state Government, together with ample sidewalk provisions on each side, over the ingress and egress to the property described in paragraph two above, and to subdivide into an allotment in accordance with a plat made by the parties of the second part, with streets properly dedicated as public highways, consisting of a boulevard around the entire property next to the sea wall, having a width of not less than seventy-five to one hundred feet, and all other streets to be from thirty to one hundred feet in width, subject to the terms, conditions, restrictions and prohibitions herein contained."
The stipulations in the said tentative agreement from which we have quoted show the projected improvements are not for any purpose appurtenant to the rights of the public in and to the waters and lands under the waters, such as navigation, etc., but that they were for private enterprise, designed as a scheme of financial advantage to the appellants.
In his bill, the complainant, Wood, challenged the right of the land commissioner to sell the lands involved in this controversy, alleging a want of authority in said land commissioner to make a sale of such lands, and setting up also that he was the owner of certain property situated on the beach at Biloxi, Miss., and certain property on the west end of Deer Island, which is part of an island lying off the shore in the Mississippi Sound, and that said construction would invade his rights as enjoyed under the laws of the state, and that such construction would so interfere with his navigation, fishing, and other legitimate uses of the public waters which he enjoyed, and that it would cause the waters to so flow in time of storm and similar disturbances as to wash away his property on Deer Island, and that such construction would interfere with the enjoyment of his property both on the beach and on Deer Island.
The chancellor on the hearing granted an injunction restraining the construction of the proposed improvement, and held that the land commissioner had no power to make the conveyance of said lands to the appellants, making perpetual the injunction and canceling the appellants' deeds.
The section relied upon by the appellants to convey the lands, as shown on the face of the patents, is section 2919, Code 1906 (section 5254, Hemingway's 1917 Code), which reads as follows:
"All lands fallen or falling to the state by escheat, or coming to it in any other manner; and all accretions of land not the subject of private ownership, and particularly those accretions near the mouth of the Pascagoula river, heretofore surveyed by the state; and all other lands within the borders of the state, and not belonging to the United States nor owned by another, are the property of the state, and are to be managed and disposed of through the land office; and the land commissioner may sell any of such lands at the same price as the swamp and overflow lands, subject to be fixed in the same manner and under like regulations. He may, in his discretion, rent out any public land which is improved or tillable, in the same manner and under like conditions as he may rent out improved or tillable tax land."
In construing this statute, the true purpose is to get at the intention of the legislature, and the statute must be construed with the provisions of the Constitution indicating the public policy of the state, and, if reasonably possible, must harmonize with the public policy and provisions of the Constitution, and, if the general language of the statute is unduly broad, and is capable of more than one construction, the court will limit and restrain the language used to conform to the manifest purpose of the legislature and the constitutional provisions involved. Section 81 of the Constitution provides:
"The legislature shall never authorize the permanent obstruction of any of the navigable waters of the state, but may provide for the removal of such obstructions as now exist, whenever the public welfare demands. This section shall not prevent the construction, under proper authority, of drawbridges for railroads, or other roads, nor the construction of booms `and chutes' for logs in such manner as to prevent the safe passage of vessels, or logs, under regulations to be provided by law."
Section 8347, Hemingway's 1927 Code (section 4407, Code 1906), provides:
"All bays, inlets, and rivers, and such of the lakes, bayous, and other watercourses as shall have been, or may be, declared to be navigable by act of the legislature or by the board of supervisors of the county in which the same may be, shall be public highways."
At the common law, lands lying between high and low tide were lands of the king, but held by him as trustee in his sovereign capacity for all of the people and not by him in a proprietary capacity. When the several states were recognized as free and independent governments by the English nation after the Revolutionary War, the ownership of, and dominion and sovereignty over, lands covered by tidewaters, and the fresh waters of the Great Lakes, within the limits of the several states, belonged to the respective states within which they were found, with the consequent right to use or dispose of any portion thereof, when that could be done without impairment of the interest of the public in the waters, subject to the right of Congress to control their navigation for the regulation of commerce. In the case of the Illinois Central Railroad Co. v. State of Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018, the United States supreme court discussed the question involved in a long and luminous opinion in which it held that a trust devolved upon the state for the public, and that it could only be discharged by the management and control of property in which the public has an interest, and could not be relinquished by a transfer of the property. It was further held that the legislature of Illinois could not deprive the state of control over the bed and waters of the harbor of Chicago, and place the same in the hands of a private corporation, that the bed or soil of navigable waters is held by the people of the state in their character as sovereign in trust for public uses for which they are adapted, and that there can be no irrepealable contract in a conveyance of property by a grantor in disregard of a public trust, under which he was bound to hold and manage it.
There are two lines of authority with reference to the power of the state to sell lands under the tide and navigable waters of the state which are held in trust by the state for the people — one of which holds that the state, as trustee, has no right or power to dispose of such lands in any manner or extent inconsistent with the purpose for which the trust exists; the other, that the state, being owner of the property, can in its sovereign capacity convey the fee absolutely so as to deprive the people of future control of such lands. The supreme court of the United States holds that this is a question of law for the state to decide, but, in the case of the Illinois Central Railroad Co. v. State of Illinois, supra, this court gave its own ideas, interpretations and construction of such power.
It seems to us that section 81 of the Constitution was adopted by the Constitutional Convention for the purpose of aligning this state with that line of authorities which hold that the state cannot convey in fee such rights to private owners for private purposes. We are satisfied that this section of the Constitution applies to the waters here involved, and to the lands under such waters, and that such waters are regarded as navigable. In Huber v. Freret et al., 138 Miss. 238, 103 So. 3, this court had occasion to construe the statute authorizing the land commissioner to convey lands held and owned by the state, the identical statute here relied upon, and held that no authority was given the land commissioner by such statute to issue patents to urban public lands, surveyed into lots, belonging to the state, for business purposes. In that opinion the court said:
"It must be admitted that the language used in the statute defining what constitutes public lands belonging to the state is broad enough to cover urban business property. But taking its context, and especially construing that section in connection with the other section of the statute mentioned, section 2912, Code of 1906 (section 5247, Hemingway's Code), and also in connection with the entire scheme and purpose of our legislation in reference to public lands, as evidenced by the chapter in the Code on the subject, we are of opinion that it was not the purpose of the legislature to deal with urban business property surveyed and divided into blocks and lots; that it was the purpose of the legislature to deal alone with those public lands which are usually bought and sold by acreage, in other words, property commonly known as rural lands, lands valuable for their timber or pasturage or for agriculture. It is true in order to so hold we must go beyond the strict letter of the statute. But that is justified in a proper case, and we think this is a case of that character.
"This court has often held that, where the meaning of a statute is ambiguous, resort may be had to the real purpose and intention of the legislature in adopting the statute, which when ascertained the court will give effect thereto even though the letter of the statute is violated [citing authorities]."
We think the word "land" used in the statute means lands as distinguished from water. One of the definitions given by Webster is the "solid part of the surface of the earth as distinguished from water, constituting a part of such surface, especially from oceans and seas." It is certain, under this statute, that the legislature did not intend to vest the land commissioner with the discretion of selling any of the lands owned by the state at one dollar and twenty-five cents an acre, or at a price to be fixed by the authorities named in the Code for that purpose. It is unnecessary to decide whether it would be possible for the state to sell such lands in fee independent of a constitutional restriction. It certainly would be a breach of duty for the legislature to do so, and we think in the case before us section 81 of the Constitution prevents the sale of the lands of the character here involved to a person for purely private business, and that the deed from the land commissioner to the appellants is null and void.
We have been cited to numerous cases involving similar questions in the different states, but we deem it unnecessary to go into any elaborate review of these authorities, as we think it clear that the statute relied upon conferred no power upon the land commissioner to make the sales involved in the present case.
It is urged by the appellants that, though the court should reach this conclusion, the complainant in the court below, appellee here, cannot raise the question; that such question can only be raised by the state through its proper officer, the attorney-general. In our opinion the deeds are absolutely void for want of authority on the part of the land commissioner to make the sale, and are not merely voidable for failure to conform to some legal requirement as a condition of making the sale. Whenever a deed is void upon its face, it confers no rights and grants no privileges. It is a mere nullity, and can be attacked collaterally. This point we think was settled in the case of Huber v. Freret et al., supra, where this court said:
"It is true that this is a collateral and not a direct attack on the patent in question, and it is also true that a patent cannot be attacked unless void. Gastrell v. Phillips, 64 Miss. 473, 1 So. 729. Nevertheless, where the land commissioner had no authority of law to execute the patent, the attack may be made collaterally, 22 R.C.L., p. 342, section 89; Dixon v. Doe ex dem. Porter, 23 Miss. 84; Hit-tuk-ho-mi v. Watts, 7 Smedes M. 363, 45 Am. Dec. 308. The patent here involved comes within the latter principle. It is void. The land commissioner had no authority of law to convey the lot in question. He lacked entirely the power."
We think the complainant had the power and the right in this suit to attack the validity of the conveyances; and his rights were so affected by the proposed improvements. He had the right to prevent injury to his enjoyment of his property, and was not merely one of many citizens undertaking to exercise a right on behalf of the state, but he was prosecuting the suit for the protection of the enjoyment of his own rights; consequently he had full authority to institute suit to test the legality of the appellants' rights, under such deeds, which might interfere with and damage, in any way, the enjoyment of his property and property rights. We think the chancellor was warranted in granting the relief afforded.
It is not necessary to discuss the other questions raised in the brief of appellants. The judgment of the court below, therefore, will be affirmed.
Affirmed.