United States v. HARRISON COUNTY, MISSISSIPPI, Civ. A. No. 2262.

• Decision Date: 08 March 1967
• Docket Number: Civ. A. No. 2262.
• Citation: 265 F. Supp. 76
• Parties: UNITED STATES of America, Plaintiff, v. HARRISON COUNTY, MISSISSIPPI et al., Defendants.
• Court: U.S. District Court — Southern District of Mississippi

265 F. Supp. 76

UNITED STATES of America, Plaintiff, v. HARRISON COUNTY, MISSISSIPPI et al., Defendants.

Civ. A. No. 2262.

United States District Court S. D. Mississippi, S. D.

March 8, 1967.

Irvin N. Tranen, St. John Barrett, Edward Lazowska, Dept. of Justice, Washington, D. C., Robert E. Hauberg, Jackson, Miss., for the United States.

G. E. Estes, Jr., Owen T. Palmer, Jr., Gulfport, Miss., Jacob Guice, Biloxi, Miss., S. E., Jr., & George Morse, George R. Smith, Neil White, Gulfport, Miss., C. Randall Jones, Jr., Pass Christian, Miss., Joe T. Patterson, Atty. Gen., Jackson, Miss., Webb Mize, Boyce Holleman, Charles Galloway, Gulfport, Miss., Edward Tremmel, Biloxi, Miss., for defendants.

WILLIAM HAROLD COX, Chief Judge.

This suit was instituted by the United States to compel specific performance of a contract with Harrison County, Mississippi with respect to the use of the twenty-six mile long artificially made sand beach abutting the north line of Mississippi Sound along the south line of Harrison County, Mississippi; and for injunctive relief against peace officers who allegedly discriminated against negroes in the use of the sand beach. Between July 1925 and March 1928, Harrison County constructed a seawall on the south most fifteen feet of a fifty foot easement along the south right-of-way line of US Highway 90, a distance of approximately twenty-six miles from the Biloxi Lighthouse westerly to Henderson Point along the Mississippi Sound, to protect that interstate highway and the residential and commercial properties abutting said highway on the north. This area for many years had taken a terrific beating by the sea from several hurricanes which did extensive damage to the highway and nearby properties resulting in the expenditure of millions of dollars for repairs. Harrison County constructed that seawall at an out-of-pocket expenditure of approximately three million four hundred thousand dollars. The highway right-of-way and the seawall easement were both acquired for public use off the south end of lots of private owners who had residences or businesses on the north end of such lots abutting the north right-of-way line of said highway. Those lots extended southerly past the seawall for distances of two or three hundred feet. After the construction of the seawall, the greater part of these lots extending south of the seawall were caused by the seawall to be washed into the sea thereby endangering the seawall and this interstate highway. Harrison County determined that it was unable to shoulder the expense of any such venture alone and sought government financial assistance. The United States had a policy of advancing public funds as a contribution toward necessary expenditures used for the protection of public property, such as the seawall and the interstate US Highway 90.¹

The Legislature of the State of Mississippi enacted Chapter 334 and Chapter 335, Laws 1948 to authorize Harrison County to borrow funds and to enter into a contract with the United States government for a contribution of $1,133,000.00 as approximately one-third of the estimated cost of such venture. On January 23, 1951 the county entered into a written contract prepared by government counsel for the construction of a three hundred foot wide sand beach to be pumped in by the county from the shallow waters of Mississippi Sound to abut the south footings of the seawall. All of this work was done by the county with its employed labor and with equipment which it was authorized to and did purchase for that purpose at a cost to the county alone of approximately $2,266,000.00. The contract, among other things, obligated the county: "To provide at its own expense all necessary lands, easements and rights-of-way for the venture." The government contends that this sand beach was designed and intended for public use for recreational purposes, as well as for drainage facilities and footings and support of the seawall against ravages of the sea. The United States contributed one million one hundred thirty-three thousand dollars to that venture. On December 22, 1950 the Board of Supervisors of the county, as its managing agency, adopted a resolution which provided that they "do hereby dedicate perpetually to the public as a public beach that sand beach or fill proposed to be pumped into and/or constructed from the seawall, approximately three hundred feet and extending from Henderson Point on the west to Biloxi Lighthouse on the east." The resolution reserved to the county and to the government the right to control and supervise the beach as public property and to make repairs, extensions or improvements thereto with rights of ingress and egress therefor. The United States drafted its own instruments and made its own desired independent title investigation as to the ownership of the title to this three hundred foot wide sand beach upon completion of construction thereof by the county as a stranger to the title to the abutting lands. There was a difference of opinion among lawyers at the time as to the ownership of such sand beach created by artificial accretion without authority of the owners of abutting lands. The Supreme Court of Mississippi subsequently decided that sand pumped from the shallows of Mississippi Sound to create this fill south of the seawall without participation therein by the owners of the servient estates in these lands belong to these owners as a matter of law under the doctrine of artificial accretion.² The United States Engineers and their advisors were once apparently advised that such lands would belong to the State of Mississippi, but later knew before making the contribution thereto that there was serious doubt as to the validity of such legal views. The property owners in the meantime neither did nor said anything to encourage or discourage such venture and were not consulted and did not participate in any of the negotiations between the county and the government for such contribution. Neither the government nor the county ever actually considered or intended that the county would be obliged under its agreement to obtain an easement for recreational purposes over this sand beach area from anybody.³ After the construction of the sand beach with all of the drainage facilities provided thereby, the county invoked the powers of the Board of Health and its assistance to zone this beach area and prohibit the emptying of raw sewage therein for the protection of bathers using the beach. A large part of the entire beach property is owned and operated by hotels and motels and kindred establishments whose guests use such facilities. The Veterans Administration facilities belonging to the United States government own several hundred feet of this beach property and prohibited recreational use of the beach by the individual public, and limited the use thereof only to its patients and personnel.

Through the intervening years, the county at its expense has regularly and periodically dragged and swept and cleaned the sand beach as required by the contract with the government and has maintained and repaired the seawall, and has kept its drainage facilities over the sand beach operating and has exercised full rights of ingress and egress thereto at all times without objection. The owners of these residences and business establishments in the main have paid little attention to the use of the beach in front of their properties until such use was abused by night time misbehavior and their moral sensibilities were offended by such improper uses. Theretofore, both white people and colored people had made some limited use of the beach for bathing and picnicking without objection, but when such permissive use was abused, these owners ordered people of both races off their property. Police protection of their properties was requested by these owners. The City of Biloxi had no part or participation in the construction of this sand beach, but its officials and the sheriff of the county are made parties to this suit with the claim that they connived or conspired with each other to deny negroes a supposed right as individual members of the public to enjoy public recreational facilities on these privately owned lands; and that they discriminated against negroes in so doing. This is not a civil rights suit as government attorneys so correctly stated at the bar. It is basically and fundamentally and primarily a suit to quiet the title to its supposed recreational easement over this sand beach for individual public use; or in the alternative for specific performance to require Harrison County to acquire such easement for such individual use by the general public; and to enjoin these public officials from arresting and charging persons making unauthorized use thereof with the violation of the trespass laws of Mississippi.

The Court has carefully examined and considered this entire record and has studied the briefs of counsel and has made extensive independent research herein. The Court is of the opinion that this three hundred foot wide (north to south) by twenty-six miles long (east to west) sand beach pumped in from the shallow waters of Mississippi Sound nearby without any participation therein by the owners of the abutting properties thereby inured to the respective abutting owners whose properties front on Mississippi Sound in Harrison County, Mississippi. That is the law in this state as announced in the Guice case. There was never any meeting of the minds of the parties representing the United States and Harrison County that the latter ever assumed any duty or obligation to acquire a recreational surface easement over said sand beach for individual public use.⁴ Neither the State of Mississippi nor Harrison County ever had or acquired any right to burden said sand beach with any such easement for recreational use by the general public.⁵ The private owners of the abutting lots own that part of said sand beach lying between the east...