Harrison County v. Guice, 42276
| Decision Date | 07 May 1962 |
| Docket Number | No. 42276,42276 |
| Citation | 244 Miss. 95,140 So.2d 838 |
| Parties | HARRISON COUNTY, Mississippi, et al. v. Mrs. Lee Dicks GUICE. |
| Court | Mississippi Supreme Court |
Eaton, Cottrell, Galloway & Lang, Gulfport, C. Randall Jones, Jr., Pass Christian, Arnaud Lopez, Biloxi, for appellants.
Rushing & Guice, Biloxi, for appellee.
Green, Green & Cheney, Jackson, amicus curiae.
This is an appeal by Harrison County, Mississippi, from a decree of the Chancery Court of Harrison County confirming title to property owned by the late Mrs. Lee Dicks Guice, subject to certain easements hereinafter mentioned.
Mrs. Guice purchased certain lots in Iberville Place Subdivision to the City of Biloxi which extended several hundred feet north of the present U. S. Highway 90, and southward from U. S. Highway 90 to the shores of the Mississippi Sound. Mrs. Guice purchased the property in 1923, and she and her family have made their home thereon since said date. The residence is located north of U. S. Highway 90. At the time of the purchase of this property by Mrs. Guice and for some time prior thereto her lot extended southward from U. S. Highway 90 a distance of from 175 to 250 feet, which was high ground not subject to the ebb and flow of the tide. Beyond this to the south was a sand beach about 40 feet in width. Mrs. Guice and her family used the said high lands south of U. S. Highway 90 as a lawn and playground for the children and as access to the beach and to the waters of the Gulf of Mexico for fishing, crabbing, swimming, and boating.
Beginning in 1925, under Chapter 319, Laws of 1924, authorizing Harrison County to construct a sea wall, a sea wall was constructed across the south part of Harrison County. This sea wall was made of concrete and ran parallel to and approximately 50 feet south of U. S. Highway 90, and such wall was constructed in front of the Guice property, and was completed in 1927. In connection with the construction and maintenance of said sea wall, Harrison County acquired an easement giving it the right to construct and maintain said sea wall and ingress and egress over the Guice property south of U. S. Highway 90. The uplands belonging to Mrs. Guice extended approximately 125 to 200 feet south of the sea wall to mean high tide line, and south of that line was a beach of approximately 40 feet in width. Due to the sea wall and the artificial action of the waves caused by the presence of said sea wall, some of the property south of the sea wall eroded away between 1927 and 1951.
The Legislature enacted Chapter 334, Laws of 1948, authorizing Harrison County to issue certain bonds and to accept certain Federal funds with which to construct certain shore and highway protection improvements. The County was authorized to grant certain requests of the United States Beach Erosion Board of the U. S. Army Engineers in accordance with Public Law No. 727, 79th Congress, Chapter 960, Second Session. Chapter 334, Miss.Laws of 1948, provided that the County would, at its own expense, provide all necessary land, easements, and rights of way.
No additional easement was acquired from Mrs. Guice pursuant to Chapter 334 Laws of 1948. The County already had an easement to repair and maintain the sea wall which it had acquired pursuant to Chapter 319, Laws of 1924. The 1924 law authorized the county 'to erect and maintain all necessary sea walls, breakwaters, bulkheads, sloping beach, or other necessary device to protect and preserve such roads, streets and highways.' As to this right of way wasement, see Henritzy v. Harrison County, 180 Miss. 675, 178 So. 322.
Beginning about 1951, the County undertook to borrow funds in accordance with Chapter 334, Laws of 1948, and therewith made certain sea wall and road protection improvements south of the sea wall. Sand was dredged up from the bottoms and pumped in over the area south of the sea wall for a distance of about 200 feet south of the sea wall. This 'pumped up' area included some of the original uplands of Mrs. Guice and some of the area formerly covered by shallow water. Since these improvements were made the area or beach has been worked by the County with machines so as to keep the beach area sanitary and free from rubbish and grass, and in good repair.
The County did this latest work in accordance with the only easement it ever acquired from Mrs. Guice, which was the original fifty foot easement. The County never claimed any interest, title or right in and to the lands lying between U. S. Highway 90 and the mean high tide line, except the easement to repair, maintain, and protect the sea wall and highway, and the right of ingress and egress for said purposes. Appellant charged and failed to prove that the County was attempting to control the area south of the sea wall as a public park.
The chancellor entered a decree confirming the title in fee simple in Mrs. Guice's heirs (she died after trial and before entry of the decree below), subject to the easement for U. S. Highway 90, and the easement owned by the county for sea wall purposes with the right on the part of Harrison County to maintain and repair the sea wall and sand fill south of the sea wall as a road and sea wall protection structure, and the right on the part of Harrison County to ingress and egress over and across the Guice land for said purposes. The decree provided that Harrison County's right in and to said land shall be limited to the right to replace, repair and maintain the sea wall and road protection structure, and that such rights shall be exercised in a prudent manner and in such a way as to interfere with owner's enjoyment of said land no more than reasonably necessary to safely and properly maintain, replace, and repair said sea wall and road protection structure. The south line of the land, title to which was confirmed in the Guice heirs, was fixed in the decree as the mean high tide line of the Mississippi Sound as it presently exists. The chancellor denied certain injunctive relief prayed for in the original bill.
The questions presented are: (1) Was Harrison County authorized by virtue of the sea wall easement acquired in 1925 under Chapter 319, Laws of 1924, to construct in 1951 a sloping beach road and sea wall protection structure? (2) What estate does Harrison County have in the lands south of U. S. Highway 90? and (3) Who owns the fee to the lands created by filling in the shallow bottoms south of the original mean high tide line?
The Board of Supervisors of Harrison County was clothed with the power of eminent domain to condemn the right of way for the construction of the sea wall, including the protection of the road and sea wall by a sloping beach, such as that constructed in 1951. This authority was contained in Chapter 319, Laws of 1924. Section 1 of the Act gave the sea wall district the power and made it their duty 'to erect and maintain all necessary sea walls, breakwaters, bulkheads, sloping beach, or other necessary device to protect and preserve such roads, streets and highways.' Section 3 of the Act gave the Board of Supervisors power to exercise the right of eminent domain to procure the necessary right of way. The same section gave the Board of Supervisors power to enact necessary ordinances for the preservation and protection of any such road, sea wall, sloping beach or other device constructed under said Act.
In 1925, the Board of Supervisors of Harrison County exercised said right of eminent domain and condemned a 50-foot strip south of present U. S. Highway 90, and thereafter erected the sea wall on the south 15 feet thereof and filled in the north 35 feet of the right of way. The record conclusively shows that Mrs. Guice then owned the fee to mean high tide with all rights of a riparian or littoral owner, the only burden on her fee being the easement for the highway and the sea wall easement.
When the sloping beach was constructed in 1951 for the protection of the highway and sea wall, the legislature had theretofore enacted Chapter 334, Laws of 1948. That Act authorized Harrison County to issue bonds and to accept funds from the Federal Government and the use of such funds in the construction of certain road and sea wall protection structures, as already mentioned. The Act also authorized Harrison County to secure the necessary right of way and to acquire the land so as to assure public ownership and administration of the beach. But the County did not acquire and additional right of way from Mrs. Guice, and never acquired Mrs. Guice's land for public ownership or administration. The 1924 Act gave the County authority to do what it did in constructing the road and sea wall protection devices in 1951, but a considerable portion of what was done in 1951 was outside the 50-foot right of way acquired in 1925. Mrs. Guice could have recovered damages for what the County did in 1951, provided she did in fact sustain any damages. That issue is not before us. The proof shows that the County made the 1951 improvements under claim of the 1925 easement. To the extent that it went beyond its previously acquired right, Mrs. Guice waived damages, if any, therefor. The chancellor stated in his opinion that the right of Harrison County to maintain the sea wall and road protection in the form of a said fill, the improvements constructed in 1951, was based on the doctrine of laches. We hold that laches does not apply to such a situation, but the chancellor reached the correct result. The County claimed the right under the 1925 easement.
Harrison County has an easement to replace, repair, and maintain the sea wall and the road and sea wall protection structure in the form of a sand fill, constructed in 1951, and reasonable rights of ingress and egress over the Guice lands for the purpose of replacing, repairing and maintaining said structures. There are three reasons why the County has no estate in said lands save the aforesaid easement: (1) The...
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