United States v. Harrison County, Mississippi, 24853.

• Decision Date: 15 August 1968
• Docket Number: No. 24853.,24853.
• Citation: 399 F.2d 485
• Parties: UNITED STATES of America, Appellant, v. HARRISON COUNTY, MISSISSIPPI, et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

399 F.2d 485 (1968)

UNITED STATES of America, Appellant, v. HARRISON COUNTY, MISSISSIPPI, et al., Appellees.

No. 24853.

United States Court of Appeals Fifth Circuit.

August 15, 1968.

Robert E. Hauberg, U. S. Atty., Jackson, Miss., Joseph M. F. Ryan, Jr., Edwin L. Weisl, Jr., Asst. Attys. Gen., Dept. of Justice, Alec P. Bouxsein, Edmund B. Clark, St. John Barrett, Irvin N. Tranen, Edward Lazowska, Roger P. Marquis, Attys., Dept. of Justice, Washington, D. C., John Doar, Stephen J. Pollak, Asst. Attys. Gen., Civil Rights Division, Clyde O. Martz, Asst. Atty. Gen., J. Edward Williams, Acting Asst. Atty. Gen., Land and Natural Resources Division, for appellant.

Joe T. Patterson, Atty. Gen., Dugas Shands, Asst. Atty. Gen., John A. Welsch, Jr., Jackson, Miss., James S. Eaton, Charles R. Galloway, George E. Morse, Gulfport, Miss., Jacob D. Guice, Biloxi, Miss., Owen T. Palmer, Jr., Gulfport, Miss., Garner W. Green, Jackson, Miss., Gaston H. Hewes, George R. Smith, Sr., Gulfport, Miss., Edward G. Tremmel, Biloxi, Miss., Boyce Holleman, George Estes, Jr., D. Knox White, Gulfport, Miss., Arnaud Lopez, Biloxi, Miss., Eaton, Cottrell, Galloway & Lang, Gulfport, Miss., McDonnell & Lopez, Rushing & Guice, W. L. Guice, Biloxi, Miss., Morse & Morse, Rice P. York, Green, Green & Cheney, Jackson, Miss., for appellees.

Before GEWIN and COLEMAN, Circuit Judges, and HUGHES, District Judge.

COLEMAN, Circuit Judge:

The United States brought suit for the enforcement of its contract with Harrison County, Mississippi, dated January 23, 1951. Pursuant to this agreement the federal government contributed $1,133,000 to the construction of a sand beach in the waters of the Mississippi Sound. The County dedicated the beach to the public use. The District Court dismissed the complaint. We reverse and remand, with directions.

The lawsuit began May 17, 1960. The United States, as sole plaintiff, filed a complaint against Harrison County, its supervisors and sheriff, and against the City of Biloxi, Mississippi, its mayor, and chief of police. The case was ultimately tried on a second amended complaint, which had been filed February 20, 1963. In the meantime, by order of the Court sua sponte, about 1800 individuals owning land fronting the beaches were brought in as necessary parties defendant. The case came to final decision March 7, 1967, on a record of 2628 pages, including approximately 375 exhibits.

Harrison County is bounded on its entire south side by the waters of the Mississippi Sound, an arm of the Gulf of Mexico. It was formerly a part of the District of Mobile, Spanish West Florida, but was annexed to the Mississippi Territory on May 14, 1812. The Territory became a State on December 10, 1817, and Harrison County, named for the hero of Tippecanoe, was organized February 5, 1841. Since this is a resort area, outstandingly attractive to tourists, this has been the controlling factor in the history, the government, and the economy of the region.

The origins of this litigation go a long way back. For decades, a public road extended east and west along the south side of Harrison County, parallel to and along the sand beaches of Mississippi Sound. In September, 1909, a severe tropical hurricane caused long sections of this beach road to be washed away. It was rebuilt, but only six years later another hurricane inflicted similar damages. It became clear that some form of protection would have to be devised if the road was to be maintained. The result was that in 1924 the Mississippi Legislature passed an Act, Chapter 319, Laws of 1924, approved April 9, 1924, the pertinent parts of which, including the title, are now copied as follows:

"AN ACT to authorize any county of the state where any part of the land of such county touches or joins any body of tidewater, to erect sea walls or other structures or devices for the protection of public highways extending along the beach or shore of any such body of tidewater and to issue the bonds of the county therefor and to apply a portion of the gasoline tax collected in such county towards the payment of the interest and principal of such bonds.

"Certain counties may erect sea walls.

"SECTION 1. Be it enacted by the Legislature of the State of Mississippi, That whenever any public road, street or highway shall extend along the beach or shore of any body of tidewater, and such road, street or highway, or any part thereof, shall be exposed to, subject to, or in danger of, damage by water driven against the shore by storms, and is not protected in any sea wall district, the boards of supervisors shall have the power, and it is hereby made their duty, to erect and maintain all necessary sea walls, breakwaters, bulkheads, sloping beach, emphasis added or other necessary device to protect and preserve such roads, streets and highways, and for that purpose, and for the purpose of constructing or improving such highway, may issue the bonds of the county therefor.

"Boards of supervisors may exercise right of eminent domain.

"Sec. 3. For the purpose of this act, the several boards of supervisors are hereby clothed with the power and authority, and it is made their duty, to exercise the right of eminent domain in order to procure the right of way for such roads, streets, highways, sea walls, breakwaters, bulkheads, sloping beach emphasis added, and such other devices as may be adopted for the protection of such highways, and shall have the power to pass all necessary ordinances for the preservation and protection of any such road, sea wall, sloping beach emphasis added or other device constructed under this act, and the violation of such ordinances shall constitute, and be punished as, a misdemeanor."

Pursuant to this statute, on April 27, 1925, as appears of record in the Minutes of the Board, of which we are entitled to take judicial notice, the Supervisors resolved that an easement to a strip of land running generally parallel with and between the beach road and the waters of the Gulf should be acquired by eminent domain. Omitting unessential details, the notice to the landowners described a strip of land fifty feet in width along the beach between parallel lines of and across all the land between the Biloxi Lighthouse and Henderson Point, "the strip of land lying south of the existing public Beach Road or Public Highway running more or less parallel to the shore line of the Gulf of Mexico, and the north edge of said strip of land being at varying distances from the south line of the said public highway". The improvements to be constructed on said easement were described as "a reinforced concrete step-type wall" extending from the south line of the easement to heights of from eight to eleven feet above mean Gulf Level.

After due publication of notice, no landowner claimed any damages for the taking of the easement.

The Board therefore proceeded with the construction. It was completed in 1928 at a cost of $3,400,000. The people of the entire State helped pay for it. The 1924 Act authorized the application of one-half of the gasoline taxes collected in Harrison County (which otherwise would have gone into the state treasury) to the retirement of the construction bonds, which were not fully paid out until 1952. So, all the people of Mississippi, for twenty-four years, contributed directly to the cost of the seawall.

In Harrison County v. Guice, 244 Miss. 95, 140 So.2d 838 (1962), the Supreme Court of Mississippi held that the 1924 statute authorized the County "to erect and maintain all necessary seawalls, breakwaters, bulkheads, sloping beach emphasis added, or other necessary device to protect and preserve such roads, streets, and highways".

Henritzy v. Harrison County, 180 Miss. 675, 178 So. 322 (1938) held that Chapter 319 of the Laws of 1924 complied with the Mississippi Constitution and that title to this fifty foot seawall right-of-way had vested in Harrison County by virtue of the Mississippi ten year statute of limitation then Code of 1930, Section 2287. This included all the elements of the right-of-way ownership as authorized by the statute, including the right to construct sand beaches at any future time.

It is conceded that after the seawall was completed the incessant action of the waves washed away the sand to the south of these artificial barriers. Such beaches as existed south of the seawall disappeared. The land thus formerly occupied went under the water bottoms of the Mississippi Sound and became the property of the State, in trust for the people.

The legal result may best be described by quoting the language of the Supreme Court of Mississippi in Parks v. Simpson, 242 Miss. 894, 137 So.2d 136 (1962), as follows:

"This Court, by an unbroken line of decisions over 100 years, has declared that the State `is the owner of lands in the beds of all its shores, inlets, and adjacent to the islands, over which the tides of the sea ebb and flow, and that it holds title as trustee for the people of the State\'. Giles v. City of Biloxi, 237 Miss. 65, 112 So.2d 815, 823, 113 So.2d 544; Xidis v. City of Gulfport, 221 Miss. 79, 72 So.2d 153; Crary v. State Highway Commission, 219 Miss. 284, 68 So.2d 468; State ex rel. Rice v. Stewart, 184 Miss. 202, 184 So. 44, 185 So. 247; Rouse v. Saucier\'s Heirs, 166 Miss. 704, 146 So. 291; Money v. Wood, 152 Miss. 17, 118 So. 357; Martin v. O\'Brien, 34 Miss. 21."

We now come to the events which engendered this litigation.

In 1947, there came another hurricane, apparently more damaging than its known predecessors. It did $18,000,000 in damages to the Gulf Coast, most of it in Harrison County. It undermined and destroyed a considerable portion of the pavement on U. S. Highway 90; it destroyed all the piers along the Harrison County shore, numerous homes, tourist cottages, seafood canneries, cafes, bridges, and similar structures. This included the seawall, no longer protected by sand beaches from the buffeting of the waves.

Something had to be...