Money v. Wood

• Court: Mississippi Supreme Court
• Writing for the Court: ETHRIDGE, P.J.
• Citation: Money v. Wood, 152 Miss. 17, 118 So. 357 (Miss. 1928)
• Decision Date: 08 October 1928
• Docket Number: 27001
• Parties: MONEY et al. v. WOOD. [*]

118 So. 357

152 Miss. 17

MONEY et al. v. WOOD. ^[*]

No. 27001

Supreme Court of Mississippi

October 8, 1928

Division B

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 wil 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. NAVIGARLE WATERS. At common law, lands lying between high and low tide were held laing 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.

HON. V. A. GRIFFITH, Chancellor.

APPEAL from chancery court of Harrison county, HON. V. A. GRIFFITH, Chancellor.

Suit by A. B. Wood against H. D. Money and others. Judgment for complainant, and defendants appeal. Affirmed.

Judgment affirmed.

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 F. 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 A. (N. Y.) 387-389; Burkhard v. Heinz Co., 60 A. (N. J.) 191; Nedtweg v. Wallace, 208 N.W. 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. 462; McCarter v. Lehigh Valley Railroad, 79 A. (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...