Secretary of State v. Wiesenberg, 90-CA-0692

• Citation: 633 So.2d 983
• Decision Date: 27 January 1994
• Docket Number: No. 90-CA-0692,90-CA-0692
• Parties: SECRETARY OF STATE of the State of Mississippi, Dick Molpus v. Karl WIESENBERG and/or Martha Ann Reed, Co-Executrix of the Estate of Karl Wiesenberg, Deceased, and Denis Wiesenberg, Co-Executor of the Estate of Karl Wiesenberg, Deceased, William D. Byrd, City of Biloxi, Harrison County Board of Supervisors, Peoples Bank of Biloxi, and the State of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 983

633 So.2d 983

SECRETARY OF STATE of the State of Mississippi, Dick Molpus v. Karl WIESENBERG and/or Martha Ann Reed, Co-Executrix of the

Estate of Karl Wiesenberg, Deceased, and Denis Wiesenberg,

Co-Executor of the Estate of Karl Wiesenberg, Deceased,

William D. Byrd, City of Biloxi, Harrison County Board of

Supervisors, Peoples Bank of Biloxi, and the State of Mississippi.

No. 90-CA-0692.

Supreme Court of Mississippi.

Jan. 27, 1994.

Rehearing Denied March 31, 1994.

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

PITTMAN, Justice, for the Court:

This is an appeal from the chancery court of Harrison County wherein the appellee William Byrd brought suit to confirm title on waterfront property located south of Highway 90 in the City of Biloxi. The State of Mississippi, Harrison County, City of Biloxi, Peoples Bank of Biloxi, and all other interested parties were made defendants to the suit. Secretary of State Dick Molpus subsequently filed a suit for declaratory relief in Hinds County, seeking to have the Public Trust Tidelands Legislation of 1989 declared unconstitutional. Byrd, through his attorneys, amended his complaint to include a prayer for declaratory relief seeking to have the 1989 Tidelands Legislation declared constitutional.

The Secretary of State filed a motion to stay the Byrd proceedings, but this motion was overruled. However, the chancellor did allow the Secretary of State to intervene in Byrd's suit. One week prior to the scheduled hearing concerning the constitutionality of the 1989 Tidelands Legislation, Carl Wiesenberg, a Pascagoula attorney and interested party, filed a motion to intervene with the court. The chancellor allowed Wiesenberg to file his brief with the court, but he did not allow Wiesenberg to participate in the arguments the following week. The chancellor dismissed Wiesenberg's intervention sua sponte on the same day that he found the 1989 Tidelands Legislation constitutional. Both the Secretary of State and Wiesenberg appeal this ruling. ¹

After considering the complex legal issues at hand, we find the Public Trust Tidelands Legislation of 1989 constitutional, and affirm the use of the July 1, 1973, date as a starting point for the determination of the mean high tide line in developed areas. However, the 1973 point of beginning continues to be subject to the common law of this State pertaining to tidelands, submerged lands, and riparian and littoral rights.

I.

This appeal deals with both individual property rights and the common law doctrine of public trust. At issue is not only the extent of Byrd's parcel of property, but all property on the Mississippi Coast touching the Gulf of Mexico, its inlets, swamps, bayous and streams, which are subject to changing tides. This Court's decision is of great magnitude and the effects long-lasting. Many local practices will be changed and some claimed ownership will be denied. We affirm that the public trust lands have been constant, save for nature's changes. We acknowledge that local custom and practice has changed and that the degree of enforcement and protection of the public trust has varied. It is hoped that the legislative act and this decision will once again announce the public trust so that local practice and custom may accommodate the law and the trust.

In order to fully understand this litigation, the parties need to be identified and their positions outlined. The initial plaintiff, William Byrd, owns a Honda automobile dealership located on property south of Highway 90, bordering the Mississippi Sound. Byrd filed suit in an attempt to confirm title to the property, which would clear the way for his business to be sold. Following the Secretary of State's intervention in this case, Byrd amended his complaint to include the determination of the constitutionality of the 1989 Tidelands Act. Both Byrd and the Secretary of State stipulated that Byrd's title suit would be delayed until the constitutional issue was settled.

This Court now has the task of determining the constitutionality of the Tidelands Act. We must balance the State's interest in protecting the public trust with that of the area landowners' and need of resolving boundary disputes. This continuing uncertainty has long stymied property development and use and financial transactions. Buyers do not want to purchase land with unknown boundaries, but known potential for lawsuits. Likewise, sellers are having trouble listing their property on the market because they are unsure what they could sell.

In response to this uncertainty, as well as the Cinque Bambini Partnership v. State, 491 So.2d 508 (Miss.1986) and the Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 108 S.Ct. 791, 98 L.Ed.2d 877, reh. den., 486 U.S. 1018, 108 S.Ct. 1760, 100 L.Ed.2d 221 (1988) decisions, the Legislature enacted legislation establishing a procedure for determining the line of demarcation between the public trust lands and that of private property owners. This legislation, Senate Bill No. 2780, was thereafter codified as Sec. 29-15-1 through Sec. 29-15-23 of Miss. Code Annotated (1990).

II.

Often when attempting to look forward, we must first look backward. The present tidelands issue is one of these instances. Although public trust law can be traced back to Roman times, it first made its appearance in this country with the formation of the original thirteen colonies. When the original colonies decided to unite to form the United States, each state was granted the right to control its waterways. With each new state's addition to the Union, it was extended this same right under what is known as the Equal Footing Doctrine, thereby affording that each new state "be admitted into the Union upon the same footing with the original states in all respects whatever." 3. Stat. 472, 473 (1817). Therefore, when Mississippi entered the Union in 1817, title to the tidelands and navigable waters which had been held by the United States prior to statehood was conveyed to Mississippi in trust and became immediately vested, subject to that trust. Oregon ex rel. State Land Board v. Corvallis Sand and Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977); Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018 (1892).

Since that time, the common law of this State has adhered to the doctrine of public trust, applying it in both sixteenth section lands as well as tidelands. See Turney v. Marion County Board of Education, 481 So.2d 770 (Miss.1985); see also State ex rel. Rice v. Stewart, 184 Miss. 202, 184 So. 44 (1938). The only way public trust lands can be disposed of is if it is done pursuant to "a higher public purpose," while at the same time not being detrimental to the general public. Once land is held by the state in trust, properties are committed to the public (purpose) trust and may be alienated from the State only upon the authority of legislative enactment and then only consistent with the public purposes of the trust. Cinque Bambini Partnership v. State, 491 So.2d at 519; State of Mississippi v. Hanson Properties, Inc., 371 So.2d 871, 873 (Miss.1979); International Paper Co. v. Mississippi State Highway Dept., 271 So.2d 395, 398-99 (Miss.1973); Treuting v. Bridge and Park Commission of City of Biloxi, 199 So.2d 627 (Miss.1967).

The question in need of being answered in the present case is whether the 1989 tidelands legislation constitutes "a higher purpose" and whether it even needs to be assessed under such standard. The Secretary of State contends that the Legislature's attempt to define the boundary lines between public trust lands and private lands does not constitute a "higher purpose." On the other hand, Byrd and the State of Mississippi claim that resolving the tidelands uncertainty and its economic effects clearly constitutes a "higher purpose." In an effort to designate this legislation as a "higher purpose," the Legislature included a preamble to the tidelands legislation which can be found in the Editor's Note following Miss.Code Ann. Sec. 29-15-1. These legislative findings of fact are as follows:

SECTION 1. The Legislature finds that certainty and stability of the land titles of riparian and littoral property owners along the banks of the navigable rivers and waterways on the borders and in the interior of the state and along the shores of the tidally affected waters of the state are essential to the economic welfare of the state and to the peace, tranquility and financial security of the many thousands of citizens who own such lands; that a dispute has developed with respect to such lands bordering on tidally affected waters, calling into question titles and legal issues believed secure and determined from the date of statehood; that this dispute has cast a doubt and cloud over the titles to all littoral lands and all riparian lands along the rivers and shorelines of the coastal area to such a degree that land sales are being prevented, business and home purchasing has been made difficult or impossible, industrial financing based on such titles has become unavailable, and homeowners and other owners have been rendered apprehensive as to their security in their ownership. Economic growth and development in the coastal counties are at a virtual standstill, creating a constantly increasing and incalculable loss of dollars to the area as well as the loss of countless new jobs for the average citizens of this state. The Legislature finds that this dispute has already caused extensive harm, is intolerable, and immediate resolution is required and would serve the higher public purpose, in order that public trust tidelands and submerged lands may be utilized through their normal interface with the fast lands in furtherance of all the usual purposes of the trust.

The Legislature recognizes that it serves the interests of all the citizens of the state as well as the interests of each individual area and that when...