Gilich v. Mississippi State Highway Com'n, 07-CC-59064

• Citation: 574 So.2d 8
• Decision Date: 19 December 1990
• Docket Number: No. 07-CC-59064,07-CC-59064
• Parties: Andrew M. GILICH, Jr. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
• Court: United States State Supreme Court of Mississippi

Page 8

574 So.2d 8

Andrew M. GILICH, Jr. v. MISSISSIPPI STATE HIGHWAY COMMISSION.

No. 07-CC-59064.

Supreme Court of Mississippi.

Dec. 19, 1990.

James K. Wetzel, Wendy L. Allard, James K. Wetzel, P.A., Gulfport, for appellant.

W. Eugene Henry, Biloxi, for appellee.

Before DAN M. LEE, P.J., and PRATHER and PITTMAN, JJ.

PRATHER, Justice, for the court:

In this inverse condemnation action Andrew M. Gilich claims that the Mississippi State Highway Commission's construction of the I-110 Loop extending over the Gulf of Mexico constituted a non-trespassory taking of his property. The Circuit Court of the Second Judicial District of Harrison County granted summary judgment in favor of the Highway Commission. Gilich appeals the grant of summary judgment raising as material issues (1) that the construction of the I-110 Loop constituted a taking of the sand beach area of his property and riparian rights south of Highway 90 and (2) that the construction damaged his property north of Highway 90 by blocking the view of the Gulf of Mexico from the property, thereby decreasing its value.

This Court affirms in part and reverses in part.

I. FACTS

The Mississippi State Highway Commission built a project known as the I-110 Loop, which runs south from the Interstate 10 east and west corridor and loops over the sand beach adjacent to the Gulf of Mexico and intersects Highway 90 near the Buena Vista Hotel in Biloxi.

Gilich brought this inverse condemnation action and alleged in his complaint that the construction of the I-110 Loop constituted a taking of the sand beach area on his property south of Highway 90 in Biloxi; that his concomitant riparian and littoral rights were taken and damaged by the construction; that his remaining property located north of Highway 90 was damaged by the construction of the I-110 Loop in that his property is no longer beach front property; and that the view of the beach from the property has been obstructed. The Highway Commission, given an easement across the property by Gilich's predecessors in title, stated in its answer that Gilich failed to state a cause of action and raised several affirmative defenses.

Following discovery, the Highway Commission filed a motion for summary judgment alleging that there were no disputed facts in the matter and that it was entitled to a judgment as a matter of law. The Highway Commission based its motion on the contention that Gilich was not the owner of the property located south of Highway 90 and that he does not possess riparian or littoral rights to the property. The Highway Commission offered in support of its motion Gilich's warranty deed which described the property conveyed to Gilich as follows:

Lot 21, Gulf View Addition to the City of Biloxi, in accord with the official map or plat thereof on file and of record in the office of the Chancery Clerk of Harrison County, Miss., Second Judicial District, and said property being further described as having a frontage on the North line of U.S. Highway 90 of 82 feet, more or less, and running back North a distance of 285 feet, more or less, and being bounded on the North by now or formerly Parker, East by now or formerly Rosalis, South by U.S. Highway 90, and West by Seal Avenue, and its being the intention of the grantors to convey all property owned by grantors at said location, whether correctly described herein or not. (emphasis added).

Without granting any warranty, the deed by which Gilich acquired title to the property in question conveyed riparian rights, if any, which might be appurtenant to the southern boundary between the east and west lines to Gilich. However, predecessors of Gilich gave a right-of-way easement to the State Highway Commission on October 19, 1953, to all of the southern portion of Gilich's described land "which lies south of the north edge of sidewalk along the north side of West Beach Boulevard or Front Street (Highway 90), and north of the seawall now under construction ..."

On the other hand, Gilich exhibited the plat of Lot 21, Gulf View Addition filed September 15, 1900, which indeed did show that the subdivision owners did claim land to the Gulf of Mexico. The Circuit Court found that although the prior owners of the land in question did own southward of Lot 21 to the Gulf of Mexico, Gilich failed to show ownership of the simple title to the area lying south of Lot 21. Further, the trial court held that since Gilich failed to show title to the property south of Highway 90, the property allegedly taken, he cannot claim diminution of value as damage to the remainder of the property north of Highway 90.

On February 9, 1988, the Circuit Court sustained the Highway Commission's motion for summary judgment and dismissed Gilich's complaint.

From this decision of the trial court Gilich appealed.

II. WAS SUMMARY JUDGMENT APPROPRIATE?

The basis upon which Gilich's suit is premised is in the state and federal constitutions. Amendment V of the U.S. Constitution guarantees that private property shall not be taken for public use without just compensation. The Mississippi Constitution, Art. 3, Sec. 17, provides broader protection of private property rights by the guarantee that "[p]rivate property shall not be taken or damaged for public use, except on due compensation ..." With this underlying premise, this Court addresses the summary judgment procedure in the trial court.

Review of the trial court's decision requires application of Rule 56 of the Mississippi Rules of Civil Procedure, regarding summary judgment. The rule simply states that summary judgment should be granted only where the pleadings, discovery materials and affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Miss.R.Civ.P. 56, Galloway v. Travelers Ins. Co., 515 So.2d 678, 682 (Miss.1987). ¹

This Court reviews the grant of summary judgment by a trial court de novo. Short v. Columbus Rubber and Gasket Co., 535 So.2d 61, 65 (Miss.1988). This Court views the evidentiary matters as if it were a trial court to determine if summary judgment was proper. Careful consideration is given to all evidentiary matters in the light most favorable to the nonmoving party. If in this view, there is no issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment is entered in his favor. Otherwise the motion is denied. Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983).

This Court now considers from the evidentiary matters whether the trial court properly sustained the motion for summary judgment against Gilich.

A. Property South Of Highway 90

The resolution of the first issue turns on the construction of the deed conveying Gilich's interest in the property. It is a well settled rule of construction that a deed must be construed as a whole without separating it into its formal parts, and that the intent of the parties be gathered from the language employed. Manson v. Magee, 534 So.2d 545, 548 (Miss.1988) The intent of the parties must be ascertained from the "four corners" of the instrument and construction is limited to the "four corners" of the instrument unless intent is ambiguous or unascertainable. Pursue Energy Corp. v. Perkins, 558 So.2d 349, 353 (Miss.1990); Sanford v. Jackson Mall Shopping Center, 516 So.2d 227, 230 (Miss.1987).

Gilich alleges that he owns the sand beach lying south of Highway 90 running to the Gulf of Mexico and that previous deeds to the property and deeds to neighboring properties support his position that the intent of the deed was for his property to extend to the Gulf of Mexico. He also cites Duane v. Saltaformaggio, 455 So.2d 753 (Miss.1984) to argue that descriptive information in the plat is to be considered to determine the intent of the deed. These arguments, however, ignore the rule that intent must be construed first from the four corners of the document when it is clear and unambiguous.

The deed is clear and unambiguous in describing Gilich's property. It clearly...