State ex rel. Rice v. Stewart

• Citation: 184 Miss. 202,184 So. 44
• Decision Date: 02 January 1939
• Docket Number: 33292
• Court: Mississippi Supreme Court
• Parties: STATE ex rel. RICE, ATTY. GEN., v. STEWART et al

184 So. 44

184 Miss. 202

STATE ex rel. RICE, ATTY. GEN., v. STEWART et al

No. 33292

Supreme Court of Mississippi, Division B

January 2, 1939

October 24, 1938

(Division B.)

1 STATES.

In a suit by the state, on the relation of its Attorney General to recover damages for the removal of sand and gravel from certain tide water lands, decree in a suit by the state through its tax collector on the same cause of action was not res judicata, since the state could not be bound by an appearance in court on its behalf by an unauthorized official (Code 1930, section 6002).

2 STATES.

The state tax collector is authorized to represent the state and sue for its benefit under certain circumstances, but a judgment resting on his unauthorized appearance in any other case is a nullity in so far as the rights of the state are concerned (Code 1930, sections 6986-6988, 6993, 6994).

3 JUDGMENT.

In suit by the state, on the relation of its Attorney General, to recover damages for removal of sand and gravel from certain tide water lands, decree in suit by the state through its tax collector on the same cause of action disposed of on a purely technical ground was not res judicata, since the adjudication would be limited to the point actually decided, and could not preclude a subsequent action brought in a way to avoid the objection which proved fatal in the first action.

4 JUDGMENT.

In suit by the state, on the relation of its Attorney General, to recover damages for removal of sand and gravel from certain tide water lands, where there was no motion made to hear plea of res judicata preliminarily and former suit was not disclosed by bill of complaint so as to subject to demurrer, plea of res judicata was not properly before the court.

5. ATTORNEY GENERAL.

The Attorney General is vested with both statutory and common-law authority to represent the sovereign in the enforcement of its laws and protection of public rights, and he could maintain suit to recover damages for removal of sand and gravel from certain tide water lands, as against contention that state land commissioner was proper party to bring such suit (Code 1930, sections 6011, 6021, 6022).

6. NAVIGABLE WATERS.

The state of Mississippi is the absolute owner of the title of the soil and of the minerals therein contained in the beds of all of its shores, arms and inlets of the sea, wherever the tide ebbs and flows, as trustee for the people of the state and subject only to the paramount right of the United States to control commerce and navigation with the consequent right to use or dispose of any portion thereof, when that can be done without impairment of the interest of the public in the waters, subject to the paramount right and when not inconsistent with Constitution (Constitution, section 81).

7. NAVIGABLE WATERS.

The state of Mississippi, as absolute owner of the title of the soil and of minerals therein contained in the beds of its shores wherever the tide ebbs and flows, as trustee for the people cannot convey the title to the land beneath such waters below highwater mark in fee simple, since the state is without authority to surrender its sovereignty or to cease to administer the trust for the purposes intended, or to unreasonably interfere with the riparian proprietor's right of access to and from such waters and the reasonable use thereof as well as of the land subject to tide water as a necessary incident to the reasonable enjoyment of adjacent land, nor with the right of free fishing by the public generally (Constitution, section 81.)

8. NAVIGABLE WATERS.

Under statute giving state all remedies to which individuals are entitled, state, as absolute owner of the title of the soil and minerals in the beds of all shores wherever the tide ebbs and flows, as trustee for the people was entitled to maintain an action to recover the value of sand and gravel alleged to have been dredged for commercial purposes from the bed of a bayou where the tide ebbs and flows (Code 1930, section 6002).

9. NAVIGABLE WATERS.

In action by the state as trustee for the people to recover value of sand and gravel alleged to have been dredged for commercial purposes from the bed of a bayou where the tide ebbs and flows, state in the event of recovery is entitled to the actual value of the property taken without allowance or deductions for labor or expenses incurred in taking and removing it if the trespass was willful, but if the trespass was the result of an honest mistake, the measure of damages is the value of property at the time and place of its severance and removal, less cost of production.

ON SUGGESTION OF ERROR. (Division B. Jan. 2, 1939.)

1. APPEAL AND ERROR. In affirming decree of dismissal, Supreme Court may confine decision to single proposition that complainant in trial court was without authority to invoke jurisdiction of court to try the alleged cause of action.

2. JUDGMENT. Where decree of dismissal of prior suit was based on ground of insufficiency of bill of complaint to state case for relief on merits and on want of jurisdiction, and Supreme Court on appeal confined its decision to affirmance of decree on ground that complainant was without authority to invoke jurisdiction of court, decree was not res judicata on merits in subsequent action.

3. APPEAL AND ERROR. Where chancellor dismissed bill on ground that decree in prior case was res judicata and that bill stated no cause of action on the merits, and defendant argued in original brief on appeal that decree should be affirmed on either or both of grounds assigned by chancellor, the Supreme Court committed no error when it took cognizance of holding of trial court in regard to plea of res judicata, whether or not such plea was properly before chancellor when bill was dismissed.

4. APPEAL AND ERROR. Where Supreme Court reversed decree dismissing bill on ground that prior decree was res judicata and that bill stated no cause of action on merits, and remanded case for trial on merits after defendant had argued that decree should be affirmed on either or both of grounds assigned, opinion holding that plea of res judicata was not well taken, was not merely advisory, whether or not plea was properly before chancellor at time he dismissed bill, since decree sustaining plea of res judicata was error of law appearing of record which if adhered to on a rehearing would prevent trial on the merits.

5. COURTS. Where distinction had been recognized between rights of riparian owner on fresh water streams and those of abutting owner on inland tidewater streams and arms of the sea, without regard to navigability in fact, or capacity for navigation and rule of property had been established as to title of riparian owners to center of fresh water streams, even though navigable, Supreme Court was required to recognize distinction, notwithstanding that it might have established different rule as matter of first impression (Constitution 1890, section 81).

HON. D. M. RUSSELL, Chancellor.

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

Proceeding by the State, on the relation of Greek L. Rice, Attorney General, against Mrs. Grace Jones Stewart and others to recover for the removal of sand and gravel from certain tide water lands. From an adverse decree, plaintiff appeals. Reversed and remanded.

On suggestion of error. Suggestion of error overruled. Suggestion of error, filed by J. C. and Paul Bonham, overruled November 21, 1938.

Reversed and remanded. Suggestion of error overruled.

W. W. Pierce, Assistant Attorney General, for appellant.

The State of Mississippi is the owner of the land and mineral therein under the navigable tide-waters of Bayou Bernard, and entitled to maintain a suit to recover for the wrongful taking of same.

Pollard v. Hagan, 3 How. 212, 11 L.Ed. 565; Den, ex dem. Russell v. The Jersey Co., 15 How. 426, 14 L.Ed. 757; Munford v. Wardwell, 6 Wallace 432, 18 L.Ed. 756; Shively v. Bowlby, 152 U.S. 1, 38 L.Ed. 331; Appleby v. New York, 271 U.S. 364, 70 L.Ed. 992; Martin v. Waddell, 16 Peters 367, 10 L.Ed. 997; Weber v. State Harbor Comrs., 18 Wall. 57, 21 L.Ed. 798; Manchester v. Massachusetts, 139 U.S. 240, 35 L.Ed. 159; U.S. v. Bevans, 3 Wheat 336; Bosarge v. State, 43 Ala. App. 18, 21 So. 427, 280 U.S. 368, 74 L.Ed. 621; Goodtitle v. Kibbe, 9 How. 471, 12 L.Ed. 220; Oklahoma v. Texas, 258 U.S. 574, 66 L.Ed. 771; McReady v. Virginia, 94 U.S. 391, 24 L.Ed. 248; Mobile Transportation Co. v. Mobile, 187 U.S. 479, 47 L.Ed. 266; Port of Seattle v. O. & W. R. Co., 255 U.S. 56, 65 L.Ed. 500; Jones v. Maddison County, 72 Miss. 777; Jefferson Davis County v. James Sumrall Lbr. Co., 94 .Miss. 530; Carroll County v. Jones, 71 Miss. 907.

By Section 6002 of Mississippi Code of 1930 the state is entitled to bring all actions and all remedies to which individuals are entitled to a given state of case.

Louisiana v. Jefferson Island Salt Co., 163 So. 164, 297 U.S. 716, 80 L.Ed. 1001.

By Section 3673 of Mississippi Code of 1930, the attorney general is vested with all authority as is conferred upon him at common law. Accordingly, as the chief law officer of the state he may institute, conduct and maintain all suits as he deems necessary for the enforcement of the laws of the state, the preservation of order, and the protection of public rights.

Capital Stages v. State, 157 Miss. 576.

The State of Mississippi as a party litigant is subject to all of the rules of procedure of the courts in other cases and entitled to bring all actions and all remedies to which individuals are entitled in a given state of case, and if an individual joined as a party litigant by an attorney or other person without authority would not be bound by the final decree therein, then the...