Opinion
No. 30293.
February 27, 1933.
1. NAVIGABLE WATERS.
United States, in respect to confirmed land grants in Mississippi lying below high tide meander lines of navigable tidewater streams, retains no control except in navigation and commerce.
2. NAVIGABLE WATERS.
State of Mississippi holds as trustee for public all lands under tidewater, including spaces between ordinary high and low water marks.
3. NAVIGABLE WATERS.
Neither state nor federal government can validly convey to private owners, for private purposes, lands under tidewater in Mississippi.
4. NAVIGABLE WATERS.
Heirs of original settler and patentee of tidewater lands could maintain bill to cancel claims asserted thereto.
APPEAL from Chancery Court of Harrison County.
Graham Lindsey, of Gulfport, for appellant.
The United States patent under which appellant claims settles the law and the facts, and precludes any judicial inquiry of the nature advocated by opposing parties.
A patent justifies a presumption that all the previous legal requisites of the law have been complied with.
Polk v. Wendell, 5 L.Ed. 92.
Defects in preliminary steps which are required by law are cured by issue of the patent.
Hoofnagle v. Anderson, 5 L.Ed. 437; Mackay v. Easton, 22 L.Ed. 211; Newsome v. Lessee, 5 L.Ed. 382.
The decisions of the land department upon matters of fact — e.g., as to what lands are swamp and overflowed, within its jurisdiction, are, in the absence of fraud or imposition (to be availed of only by the land department) — cross defendants' parenthesis, conclusive and binding upon the courts.
Heath v. Wallace, 34 L.Ed. 1063.
The learned chancellor erred in finding, as a matter of fact, that the land involved herein is not land, but is submerged area, not susceptible of private ownership.
"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."
Money v. Wood, 118 So. 357.
The primary meaning of the word "land," at common law, is any ground, soil or earth whatsoever, as meadows, pastures, woods, waters, marshes, furzes and heath.
Kemp v. Goodnight, 80 N.E. 160.
The case of Horne v. Smith, 159 U.S. 40, 40 L.Ed. 68 held:
"Where the meander line of a government survey was really a mile or more from the main waters of a river, and the water line of a bayou opening into the river, was evidently intended as the real boundary, the patent, describing the land by the numbers of the sections and its quantity as one hundred seventy acres, will not convey a strip of unsurveyed land of a mile or more in width containing six hundred acres between the bayou and the river, although the official plat names the river as the boundary of the survey."
Niles v. Cedar Point Club, 175 U.S. 300, 44 L.Ed. 171; French-Glenn Live Stock Co. v. Springer, 185 U.S. 47, 46 L.Ed. 800; Wilson v. U.S., 245 U.S. 24, 62 L.Ed. 128.
Broom, Bilbo Shipman, of Jackson, for appellant.
The courts have always invested a United States Government patent with the highest presumptions and it is held in many of the cases that any defects or omissions relative to the necessary steps for obtaining such a patent are cured by the issuance of the patent.
Hoofnagle v. Anderson, 5 U.S. 437; Mackay v. Easton, 22 U.S. 211; Newsome v. Pryor's Lessee, 5 U.S. 382.
Every presumption is in favor of the validity of the homestead patent of Boykin, which is shown by the evidence to have been based on an actual governmental survey, by which the ownership of the United States was asserted, thereby asserting the nature and character of the locus in quo as part of the National Domain, subject to disposal by the general government.
In the absence of fraud, the decisions of the officers of the land department of the government as to matters within their jurisdiction is final and conclusive; hence, their decision that the land in dispute is of one kind, and not of another, determines the character of the land.
German Insurance Co. v. Hayden, 21 Colo. 127, 52 A.S.R. 206; Lamprey v. Mead, 54 Minn. 290, 40 A.S.R. 328; Gale v. Best, 78 Cal. 235, 12 A.S.R. 44.
It has been held in numerous instances that when public land has been surveyed by authority of the United States, and patented with reference to the boundaries as fixed by such surveys, the corners and lines so established, whether correct or not, are conclusive and cannot be altered or controlled by other surveys.
Billingsby v. Bates, 30 Ala. 376; Climer v. Wallace, 28 Mo. 556; Mayor, etc. v. Burns, 114 Mo. 426; Granby Mining Co. v. Davis, 156 Mo. 422; Arneson v. Spawn, 2 S. Dak. 269, 39 A.S.R. 783; Gardman v. Myrick, 5 Or. 65; Jones v. Kimball, 19 Wis. 429; Trinwith v. Smith, 42 Or. 239, 70 P. 816; Craigan v. Powell, 128 U.S. 691, 32 L.Ed. 566; Heath v. Wallace, 138 U.S. 573.
Riparian land must be in actual contact with the water, proximity without contact is insufficient.
Mobile Dry Docks Co. v. Mobile, 146 Ala. 198, 40 So. 205; Crawford Co. v. Hathaway, 67 Neb. 325, 93 N.W. 781; McEvoy v. Taylor, 56 Wn. 357, 105 P. 851; Priewe v. Wisconsin State Land Co., 93 Wis. 534, 67 N.W. 918; Merritt v. Toronto, 48 Canada Sup. Ct. 1; Ann. Cas. 1913E, 707; Benton v. Johncox, 17 Wn. 277, 49 P. 495; Notes: 11 L.R.A. (N.S.) 1063; 9 Ann. Cas. 1235; Watkins Land Co. v. Clements, 98 Tex. 578, 86 S.W. 733; Notes: 27 R.C.L. 1076; Sanborn v. Peoples Ice Co., 82 Minn. 43, 84 N.W. 641; Wineman v. Withers, 143 Miss. 537, 108 So. 708; Axline v. Shaw, 35 Fla. 305, 17 So. 411.
If a meander line, run by government surveyors in surveying the public lands, leaves between such line and the bank of the stream a considerable body of land which is above the average stage of water in the stream, and is covered with vegetation or timber, the patent of the surveyed land is limited by the meander line, and the patentee is not a riparian proprietor.
Gould on Waters, section 1496, page 296; Lammers v. Nissen, 4 Neb. 250, 452.
It is respectfully submitted that the evidence in this case fails utterly to show that either Wolf River or Bayou DuPland is of the nature and character of such a watercourse, or that it is within the meaning of the term "watercourse" as judicially defined, to which riparian or littoral rights may attach, for the reason that there is no current in either Wolf River or Bayou DuPland, that generally flows in one definite direction. The water contained in Wolf River and that in Bayou DuPland is tidal salt water; therefore, each is a mere arm of the Bay or Mexican Gulf.
Chamberlain v. Hemingway, 63 Conn. 1, 27 A. 239; S.O. C. Co. v. Ansonia Water Co., 78 A. 432; Thompson v. Water Co., 86 A. 585; German Ditch and Reservoir Co. case, 139 P. 2; East Bay Sporting Club v. Miller, 161 N.E. 12; Stephens v. State, 194 S.W. 400.
The attention of the court is respectfully called to the fact that the testimony in this case fails utterly to show that any of the meanders of the boundary of the Phillip Saucier claim is in touch with the water of Wolf River, or of Bayou DuPland, or that the meanders of said boundary is in touch with the ordinary high-water mark of Wolf River. At common law, in the case of tide waters, ownership of the land above and adjoining the edge of the water at ordinary high-water mark, is necessary, and there must be contact in order that riparian rights should attach to the so called dominant estate. If they do not attach or contact, however near they may come, no riparian right will vest in the owner of the higher land.
J.K. Saucier, of Gulfport, for appellee.
This case turns entirely upon a question of fact as to whether or not the territory involved in this suit was subject to the flow of the ordinary tides from the Gulf of Mexico, at their usual stages.
The court has found that the entire tract was inundated by the average tides of the Gulf of Mexico. This establishes that neither the United States Government nor the state land office of Mississippi could convey a valid title to private individuals as was attempted here.
J.F. Galloway, of Gulfport, amicus curiae.
The rights of the parties who own property situated such as here, and the true status thereof is most clearly set out in the following cases:
Jacob Mann v. Tacoma Land Co., 153 U.S. 38 L.Ed. 714; Baer v. Moran Bros. Co., 153 U.S. 38 L.Ed. 718; Shively v. Bowlby, 153 U.S. 38 L.Ed. 331; Mobile Transportation Co. v. Mobile, 47 L.Ed. 266 (U.S.); Harding v. Jordan, 140 U.S. 371, 35 L.Ed. 428; Coburn v. San Mateo County, 75 Fed. 520; U.S. v. Pacheco, 2 Wall. 587, 17 L.Ed. 865; Martin v. Obrien, 34 Miss. 21; Steamboat Magnolia v. Marshall, 39 Miss. 109; Richardson v. Simms, 80 So. 5, 118 Miss. 728; Money v. Woods, 118 So. 357, 152 Miss. 357; Applachecola Land Co. v. McRae, 98 So. 505; State v. City of Tampa, 102 So. 336; Fields v. Miami Beach, 112 So. 840.
In Mann v. Tacoma Land Co., supra, the Supreme Court of the United States had under consideration the status of tide lands almost exactly as here. It appears there that the "lands over which the tide ebbs and flows to a distance of eighty chains, and are what are designated on the plats and surveys of the United States as 'mud flats' bare, at low water, and are overflowed at high water at a uniform depth of from two to four feet by the waters of Commencement Bay at the head of Puget Sound."
It is settled that the general legislation of Congress in respect to public lands does not extend to tide lands.
The court thus held that the Congress of the United States itself did not have the authority to authorize the General Land Office or any of its sub-agencies to transfer "tide lands." That such lands were not subject to sale or disposal, under general laws.
It would thus seem that the United States Government was wholly without authority to issue any patents affecting the tide lands here involved.
The authority of the United States Government over the Saucier grant and its appurtenances really, therefore, never existed. The attempt by the land office ninety years later to make new plats of the territory and to issue patents thereon was a mere nullity.
Where the court or other body is without jurisdiction of the subject-matter any act taken in regard thereto is absolutely void and may be attacked by any party in interest either directly or collaterally.
Huber v. Ferret, 138 Miss. 238, 103 So. 3; Money v. Woods, 118 So. 357.
There has been considerable discussion about the sanctity of Federal patents to land and actually imputing to them the force of judgments or decrees of courts, and unassailability. The acts of the land department certainly have no greater force or dignity than the acts of our courts. The land department had no jurisdiction of the subject-matter nor of the parties here.
The shores of the sea below high water mark belong to the state as trustee for the public, and may by grant become private property or the subject of the exclusive private right; and the right of the owners of the land bounded by the sea extends no further than to high water mark.
Martin v. Obrien, 34 Miss. 36; Money v. Woods, 118 So. 357, 152 Miss. 17.
Argued orally by W.A. Shipman, for appellant.
On July 6, 1795, an order or permit of settlement was issued under the authority of the proper Spanish officer, to Etienne Perache; the permit providing that the settlement area should be twenty arpents front by forty arpents deep on Wolf river near the Bay of St. Louis. Actual settlement was made, and the claim, afterwards officially designated as claim No 21, was transferred to Philip Saucier. When the territory of which the land here in question became, beyond dispute, a part of the United States, recognition was accorded to this claim, as was required by the terms of the treaty with Spain, and in 1824 the claim was surveyed and segregated by Elihu Carver, United States Surveyor, commissioned for that purpose, and subsequently a proper patent was issued for the land thus surveyed, in pursuance of an act of Congress so authorizing. When the survey aforesaid was made, it was found that between the actual settlement, that is to say, between the cultivable land and the perceptible channel of Wolf river, there was a strip of salt water marsh or tide land covered with water at high tide and partly uncovered at low tide. In accordance with the legal rule and usual custom in such a case, the surveyor meandered the line next to the river, so that the meander followed approximately — but in this case somewhat within — the line of ordinary high tide. There was thus left between this meander line and the channel of the river approximately two hundred acres of tidewater marsh. In 1906 the United States caused an ex parte resurvey to be made of this area, and a new plat to be made, and on April 14, 1912, a homestead entry patent for this so-called land was issued to Alfred Boykin, through whom some of the defendants claim title. On December 23, 1926, the state land commissioner, on the theory that this overflowed land belonged to the state through the Swamp Land Act of Congress of September 28, 1850 (43 U.S.C.A., section 982 et seq.), issued two patents to C.A. and W.B. Lundy through whom the remainder of the defendants claim title. On April 16, 1930, the heirs of Saucier filed their bill to cancel the claims of all the said defendants, and, the bill having been sustained by the chancery court, an appeal has been prosecuted by one of the defendants.
The chancellor delivered an elaborate opinion covering every question in the case. The findings of fact made by him are supported by the evidence. The applicable law so far as necessary to a determination here has been settled by decisions too numerous to cite. It may be that the law governing such cases, which law had its genesis and development in conditions which do not now completely exist, is not at this day entirely satisfactory — this because of the fact that modern machinery and appliances have rendered it possible to make more of these tidewater marshes than in the long ago — but, the law being settled, the courts have only to follow until state and national constitutional changes may otherwise ordain. We therefore simply summarize the case under the following five headings:
(1) Between the high tide meander line and the same line on the opposite side of a navigable tidewater stream, the United States in respect to confirmed land grants had or retained no further right, title, or control except such as is mentioned in the succeeding paragraph.
(2) Upon the admission of the state into the Union, there became invested in the state, as trustee, the title to all the land under tidewater, including the spaces between ordinary high and low water marks; this title of the state being held for public purposes, chief among which purposes is that of commerce and navigation, for which latter purposes the title of the state is subservient to such regulations as may be constitutionally made by the national government, in said matters of navigation and commerce.
(3) Neither the state nor the federal government can validly convey title in fee simple to an area such as above mentioned to private owners for private purposes. To what extent and what title may be conveyed for public purposes, and particularly for the purposes of commerce and navigation and fisheries, is not here before us, and an academic discussion will therefore not be undertaken upon that subject.
(4) The ex parte resurvey by the federal government of the locality and the patent under the homestead entry issued to Alfred Boykin were inoperative and invalid, and likewise the patents issued by the state to the Lundys, so that neither of them nor any of their vendees have any valid interest in the property, and their claims thereto were properly canceled.
(5) Without undertaking to state exactly what right or interest the heirs of Philip Saucier, the original settler and patentee, have in the property as riparian or littoral proprietors, it is enough to say that they had a sufficient interest to enable them to maintain the bill and to cancel the pretended claims of the several defendants. Money v. Wood, 152 Miss. 17, 118 So. 357.
Affirmed.