Rouse v. Saucier's Heirs

• Decision Date: 27 February 1933
• Docket Number: 30293
• Citation: 146 So. 291,166 Miss. 704
• Parties: ROUSE v. SAUCIER'S HEIRS
• Court: Mississippi Supreme Court

146 So. 291

166 Miss. 704

ROUSE v. SAUCIER'S HEIRS

No. 30293

Supreme Court of Mississippi

February 27, 1933

Division B

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.

HON. D M. RUSSELL, Chancellor.

APPEAL from chancery court of Harrison county HON. D. M. RUSSELL Chancellor.

Suit by the heirs of J. K. Saucier against J. P. Rouse and others. From a decree sustaining the bill, defendant named appeals. Affirmed.

Affirmed.

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 Ore. 65; Jones v. Kimball, 19 Wis. 429; Trinwith v. Smith, 42 Ore. 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 Wash. 357, 105 P. 851; Priewe v. Wisconsin State Land Co., 93 Wis. 534, 67 N.W. 918; Merritt v. Toronto, 48 Canada S.Ct. 1; Ann. Cas. 1913E, 707; Benton v. Johncox, 17 Wash. 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 F. 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...