Ryals v. Pigott
| Decision Date | 28 November 1990 |
| Docket Number | No. 07-CA-59531,07-CA-59531 |
| Citation | 580 So.2d 1140 |
| Parties | Darrell RYALS, Individually and d/b/a Ryals Rentals, Allen Ryals, Individually, and d/b/a Ryals Rentals, Jimmy Barrett, Individually, and d/b/a Bogue Chitto Choo Choo v. Charles Ray PIGOTT, Glen W. Crawford, Julius O'Quinn, Jr., Otis Ray House, Sheriff Duane Dillon, et al. |
| Court | Mississippi Supreme Court |
Dan R. Wise, J. Douglas Johnson, Hattiesburg, for appellants.
Norman B. Gillis, Jr., Gillis & Gillis, Keith Starrett, McComb, Mike Smith, Magnolia, for appellees.
Charles Ray Pigott, pro se.
En Banc.
I.
This highly localized controversy presents questions of great public importance: whether (and which) freshwater rivers In the case at bar, the Chancery Court held that riparian Landowners in southeastern Pike County held rights in the Bogue Chitto River such that they could of right exclude the public from the surface waters. Finding that the Court erred in its fundamental premises, we reverse and render on this issue. In all other respects the judgment of the Chancery Court is affirmed.
and streams are held by the state for public use and by what criteria we address the question.
II.
Darrell Ryals and Allen Ryals (Ryals) are adult resident citizens of Pike County, Mississippi, who do business as a partnership under the trade name of Ryals Rentals. Jimmy Barrett (Barrett) is an adult resident citizen of Pike County, Mississippi, who does business as a sole proprietorship under the trade name of Bogue Chitto Choo Choo. Ryals Rentals and Bogue Chitto Choo Choo have their principal offices near the banks of the Bogue Chitto River in southeastern Pike County below U.S. Highway 98 and are in the business of renting to members of the public canoes and tubes for floating the River. Darrell Ryals, Allen Ryals and Jimmy Barrett were the Plaintiffs below and are the Appellants here, and are sometimes collectively labeled Plaintiffs.
Charles Ray Pigott and Otis Ray House are adult resident citizens of Pike County, Mississippi. Glen W. Crawford and Julius O'Quinn, Jr. are adult resident citizens of Walthall County, Mississippi. Pigott, House, Crawford and O'Quinn are riparian Landowners through whose property in southeastern Pike County the Bogue Chitto River flows. Pigott, House, Crawford and O'Quinn were among the Defendants below and are among the Appellees here, and are sometimes collectively labeled Landowners.
Duane Dillon was and is an adult resident citizen of Pike County, Mississippi, and is the duly elected and serving Sheriff of that county. Sheriff Dillon was a Defendant below and is one of the Appellees here.
and the Chancery Court so found. Over the years conflicts have arisen between riparian Landowners and those using the River, and those conflicts have escalated of late. One source of strife has been that persons using the River deposit debris and litter. Landowners became particularly concerned when one of their number was sued in a personal injury action. Dumas v. Pike County, Mississippi, 642 F.Supp. 131 (S.D.Miss.1986).
In any event, on June 29, 1987, by reason of real or imagined fears that, just before the commercially lucrative Fourth of July weekend, Landowners and Sheriff Dillon were about to close the River, Ryals and Barrett commenced the present proceedings by filing their complaint in the Chancery Court of Pike County, Mississippi, demanding of and against Landowners and Sheriff Dillon declaratory, injunctive, monetary and other relief.
On July 3, 1987, the Court heard ex parte Plaintiffs' application for temporary relief and, upon finding "that the Bogue Chitto River was a public waterway," temporarily enjoined Defendants from interference with Plaintiffs' enjoyment of the River, subject to Plaintiffs' posting specified security. Plaintiffs failed to post security, and the injunction never issued.
In due course, the matter came on for trial, and, on February 29, 1988, the Court released an opinion finding, inter alia, that the Bogue Chitto River in the area in question was not a public waterway within the meaning and contemplation of Miss.Code On March 24, 1988, the Chancery Court entered final judgment dismissing Ryals' and Barrett's complaint with prejudice. From this order, the Plaintiffs prosecute the present appeal.
Ann. Secs. 1-3-31 1 or 51-1-3 2 (1972), nor within Miss.Code Ann. Sec. 51-1-4 (1972). 3 Even if the River satisfied Section 51-1-4, the Court held that statute, as it then read, a taking of Landowners' property rights in the River. By reason of the private nature of the River, the Court held Landowners' rights in it protected by Miss. Const. Art. 3 Secs. 14 and 17 (1890), such that the public could acquire no rights therein without payment of due compensation.
III.
The River Bogue Chitto flows through at least three counties in South Mississippi. It has its source in Lincoln County just south of Brookhaven, where East Bogue River merges with West Bogue River, and flows southeasterly through Pike and Walthall Counties and into the State of Louisiana where it meanders further to the east and--at least 175 miles below its source--conjoins with the Pearl River, which in turn flows into the Gulf of Mexico. 4 The Bogue Chitto is no "small The Bogue Chitto has been with us through the millenia. The Choctaws aptly named it "big creek." The many communities that dot its banks and follow its course stand as eloquent testimony to its centrality in the lives of people, then and now. Within this century it has been enough of a river to have avulsively changed its course at least twice, below the Mississippi-Louisiana state line. See Bickham v. Bankston, 210 So.2d 88, 91 (La.App.1968).
river." 5 It is certainly not short.
Charles T. Branch, 6 qualified at trial as an expert on water management, used maps and graphs compiled by the U.S. Geological Survey, and told us that "today" just above the area in dispute the River's average depth is greater than four feet, its average width greater than seventy feet.
Well, the stage during the time of which the U.S.G.S. cross sections was taken was 6.26 feet. That is a stage which would have been this low level right here which still would have been a depth of some 5 feet at the bridge. The seven-eight-ten-year low flow which is a baseline flow we use in water resource regulation would correspond to a stage of 5.95 feet and a discharge of 188 cubic feet per second. 7 At that stage you still would have a depth of some five feet or near five feet and at the minimal flow of record of a stage of 5.093 feet which is a record low flow of 175 cubic feet per second which occurred October 31, 1963. You still would have a depth in excess of four feet at that bridge at the deepest part of the channel.
Although the study dealt with an area just north of that in question, Branch reminded us of the obvious: that, as you go further south, the River's drainage area and flow increases from tributaries. 8 The channel size of the River will increase to accommodate that flow, becoming larger the closer it gets to the Gulf of Mexico. We note that the U.S.G.S. conducted its study in summer low-water conditions, and the Bogue Chitto still measured in excess of 120 feet across at some points.
In its ordinary condition the Bogue Chitto River is capable of supporting navigation and transportation by canoes, outboard motor boats and other small vessels. Without doubt it could support travel by the once familiar flatboats. The feasibility of floating logs down the river may be questionable, but it could be done. The River is popular with the public for canoeing, fishing and other outdoor recreational activities, 9 Fallen trees, sunken logs, or silt may clog the River at points, but this means only that the state has not pursued its constitutional and political prerogative of purging the channel of obstructions to navigation. See Miss. Const. Art. 4, Sec. 81 (1890); Dycus v. Sillers, 557 So.2d 486, 501 (Miss.1990). The suggestion below that the River is not navigable, if it invokes Section 1-3-31's 200 bales-of-cotton-steamboat test, is but irrelevant, as we presently explain. The suggestion is otherwise disingenuous, for the very seeds of this suit have been substantial and continuous (and commercially augmented) navigation of the Bogue Chitto River by weekend pleasure boaters, canoers and tubers.
] many of which have a commercial component.
Because the Bogue Chitto is perceived a public river, public recreational facilities abut its banks. These include (a) Summit Water Park northeast of McComb, providing a boat launching ramp, (b) Bogue Chitto Water Park, twelve miles east of McComb and near to the area here in controversy, providing canoe rentals, mapped float trips, and boat launching, and (c) Walker's Bridge Water Park in Walthall County, providing boat launching. Holmes Water Park lies on the bank of Magee's Creek only a few feet above its entry into the Bogue Chitto in Walthall County. 10
IV.
A.
The Chancery Court correctly observed ab initio
A navigable stream is in effect public property, while a non-navigable stream belongs to the owner of the lands through which it flows. If the Bogue Chitto is navigable, then it has always been owned by the state in trust for the public. If it is not navigable it belongs to the landowners of the property through which it ran, prior to 1972.
Whether our River be navigable, and what may be meant by "navigable," are but means to our guess whether the River be public.
Otis Ray House, one of Landowners' number, was close to the mark in this colloquoy with counsel opposite:
Q If somebody floats that river all the way and their foot does not touch the bank on the...
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