Treuting v. Bridge and Park Commission of City of Biloxi, 44711

• Decision Date: 05 June 1967
• Docket Number: No. 44711,44711
• Citation: 199 So.2d 627
• Parties: John TREUTING and the State of Mississippi v. BRIDGE AND PARK COMMISSION OF the CITY OF BILOXI, Mississippi.
• Court: Mississippi Supreme Court

Page 627

199 So.2d 627

John TREUTING and the State of Mississippi v. BRIDGE AND PARK COMMISSION OF the CITY OF BILOXI, Mississippi.

No. 44711.

Supreme Court of Mississippi.

June 5, 1967.

Edward G. Tremmel, Jules Schwan, Biloxi, Joe T. Patterson, Atty. Gen., by Martin R. McLendon, Asst. Atty. Gen., Jackson, for appellants.

Jacob D. Guice, Thomas J. Wiltz, Biloxi, for appellee.

ETHRIDGE, Chief Justice:

This suit, originating in the Chancery Court of Harrison County, was brought by the Bridge and Park Commission of the City of Biloxi (called Park Commission), appellee. It is a suit to confirm the title of the Park Commission to (a) approximately 12.58 acres of land, with accretions, constituting the west end of Deer Island in the Mississippi Sound, and (b) 150 acres of submerged lands in the Mississippi Sound adjacent to this island property. The State of Mississippi (appellant) was the original defendant. John Treuting intervened as an additional defendant, objector, and taxpayer. The trial court confirmed the title in fee of the Park Commission, and we affirm.

The lands in question were conveyed by the State in fee simple to the Park Commission, pursuant to legislative authorization. The principal issue is whether this conveyance was a valid exercise by the State of its duty to the citizens of the State as trustee of the submerged lands.

I.

Deer Island is a small body of land in the Mississippi Sound of the Gulf of Mexico, lying about one-fourth mile south of the City of Biloxi. Biloxi is a densely populated municipality, located on a peninsula bordered on three sides by Biloxi Bay and the Mississippi Sound, and is in urgent need of physical space for expansion. In 1955, by a local and private law, the legislature authorized the Biloxi Park Commission to cooperate with a private corporation, owner of part of the island, in an overall plan for development of the island and adjacent submerged lands. Miss.Laws 1955, Extra. Sess., Ch. 265, amended by Miss.Laws 1958 Ch. 814. In 1959 this Court held that this plan was void because it violated provisions of the state constitution prohibiting a loan of municipal credit to a private corporation, and the granting of state lands of a private corporation by local law. Giles v. City of Biloxi, 237 Miss. 65, 112 So.2d 815, 113 So.2d 544 (1959).

In 1960 the legislature set up a new and different method under a general law for the development of offshore islands in the Mississippi Sound lying within three leagues of the corporate limits of a municipality. Miss.Code 1942 Ann. §§ 5974-01 to 5974-16 (Supp.1966), being Miss.Laws 1960 Ch. 434, as amended, Miss.Laws 1962 Ch. 216, Miss.Laws 1964, First Extra.Sess., Ch. 20, Miss.Laws 1966 Ch. 274. This statute authorized the governing authorities of a municipality to create a bridge and park commission, with the powers of eminent domain and the purchase and sale of land, including the right to purchase an island in whole or in part situated in the Mississippi Sound.

Section 5974-04(b) provides:

Any such commission which has acquired an island or islands, in whole or in part, adjacent to any submerged lands belonging to the State of Mississippi may purchase from the State of Mississippi a sufficient amount of such submerged lands to be reclaimed and added to such island or islands to be used, and developed for the purposes provided in this act. And the State Land Commissioner, with the approval of the Attorney General and the Governor, is hereby authorized and empowered to sell and convey such submerged lands to such commission and to issue the State's patent thereto. Said commission shall have the power to dredge, fill in and reclaim submerged lands adjacent to any such island or islands and to develop and utilize the same for any of the purposes set forth in this act, including the financing of the public improvements herein authorized; provided, however, that no normal or natural channel shall be obstructed so as to interfere with the normal navigation therein, it being the purpose and intention of this act to authorize the use and development of shallow bottoms and shoal waters in the areas herein set out for the purpose of filling and reclaiming same for the purposes herein set forth and where said bottoms are not susceptible to reasonable navigation at all times as a practical matter.

Such a park commission is granted power to construct bridges connecting the island with the mainland. Miss.Code 1942 Ann., § 5974-04(c) (Supp.1966). It can construct public parks, viaducts, harbors, marinas, streets, playgrounds, schools and a multitude of other facilities in developing islands in the sound. § 5974-04(d). It is authorized to lease or sell to private persons or corporations any land, including reclaimed or filled-in lands, when it finds the same is unnecessary for park, recreational, or other public purposes. Section 5974-04(e)(1) states:

Said commission shall have power to lease or sell to private persons or corporations, real estate or any interest therein, acquired hereunder, whether improved or unimproved, and including reclaimed or filled-in lands, whenever it shall find such real estate or interest therein is or has become unnecessary for park or recreational purposes for the benefit of the public, or for other public use, and in the event of sale, to convey to the grantee, fee simple title to such real estate. Prior to the leasing or conveyance of any such real estate, the commission shall, by resolution spread upon its minutes, find, determine and adjudicate that the property, to be so leased or sold and conveyed, is, or has become unnecessary for park and recreational purposes for the benefit of the public, or other public use, and such findings, determination and adjudication shall be final and conclusive and shall not thereafter be questioned in any court; provided, however, that lands acquired by eminent domain under the provisions of this act may not be sold, and may not be leased except for public purposes and continuing public uses, and when such lands cease to be used for public purposes, the title to same shall revert to the former owners, or their successors or assigns.

A park commission is directed, when it has acquired submerged land, to bring a suit to confirm the title against the state and the world. Section 5974-04(e) (2) then directs:

Upon the hearing of such cause, if the court shall find that the reclamation of the said lands does not constitute an obstruction of the navigable waters of the State and does not interfere with the rights of the public generally to use the navigable waters of the State for fishing, boating, and other public uses, and that the reclamation and sale of said lands has or will, in whole or in part, contribute toward the deepening of a channel or channels for boats and improvement of navigation of any of the navigable waters of this State, and that a fair and adequate consideration has been paid or is to be paid for such property, then the court shall confirm the title to the property and forever set at rest any claims by the State of Mississippi in its sovereign capacity as proprietor of said lands.

Finally, a park commission is given the power to sell or lease to private persons or corporations 'real estate other than the submerged lands reclaimed by it,' whenever it finds that it has become unnecessary for park, recreational or harbor development purposes for the benefit of the State, and 'to convey to the grantee the fee simple title to such real estate.' § 5974-04(f).

The Biloxi Port Commission is a separate agency of the City of Biloxi. In 1963 it purchased from Ralph B. Wood two tracts on the west end of Deer Island, of 11.58 acres and one acre. On February 1, 1966, the Biloxi Port Commission conveyed this 12.58 acres to the Park Commission. On February 24, 1966, the State by its land commissioner conveyed to the Park Commission two tracts of land, described by governmental subdivision, aggregating 150 acres, and lying north and south of the 12.58 acres of island property purchased from the Biloxi Port Commission.

In February 1965 the Biloxi Park Commission contracted with a firm of consulting engineers for complete engineering services in planning and constructing the Deer Island project. Deer Island is a spit of land approximately five miles long, varying in width up to 2500 feet and containing approximately 550 acres above sea level. A considerable portion of the island is bordered by mud flats which are covered by water of a mean depth of three to four feet. The plan submitted by the engineering firm contemplates filling in some of these adjacent mud flats to expand the dry land area of the island. The Park Commission plans to acquire the entire island and adjacent submerged lands by purchase or eminent domain proceedings.

The fill material will be taken from the submerged lands to the north of the island, and will be used to raise the north shore of the island to an elevation of fifteen feet. The south shore will be raised to eighteen feet, and the interior of the island will be at five feet above sea level. A levee or embankment will be constructed around the perimeter of the island, and sheet pile walls of eighteen feet on the north side and twenty-one feet on the south side will be constructed. The south side of the island will have a beach 460 feet wide.

The project will significantly increase the land area of Deer Island, but it will not interfere with fishing or navigation. In fact, navigation through Biloxi Bay should be improved due to the fact that much of the fill material to be used on the island will be dredged from the existing Biloxi Channel which connects with the seaway. Once the project is sompleted, Deer Island will contain a large marina and some 46 miles of inland waterways fronted by residential property. The improved channel will give better access to seafood packing plants for fishing boats, and the increased area of the...