Barataria Canning Co. v. Ott

84 Miss. 737

• Court: Mississippi Supreme Court
• Decided: March 15, 1904
• Status: Published

Opinion

Truly, J.,

delivered the opinion of the court.

On the 12th day of February, 1885, Peter W. Ott and wife, ancestors of appellees, leased to Simon Gumbel and others, assignors of appellant, certain property, being a lot at Point Cadet, in the town of Biloxi, fronting on Mississippi Sound or Gulf of Mexico, therein described. Said lease contains the following cause: “Said lessors also demise, lease, and to farm let unto said lessees, but also without power to sublet unless by consent of lessors first had, all the exclusive right of the said lessors to the water front on said sound or gulf of all lands owned by said lessors, extending from eastern boundary of said Lugenbuhl property around to the staked point known as Little Cove. Said point being indicated by a stake at the south entrance or beginning of a place called Little Bay in Biloxi Bay: said water front herein demised in its extension into said gulf and with all its privileges and appurtenances of fishing and bedding oysters to be extensive with the rights of said lessors under the laws governing the .same” — the lease of said land, water front, and privileges being for twenty-five years from date. Subsequently, at the March term, 1885, the board of supervisors of the county of Harrison, in which the rented property was situate, adopted an ordinance by which the said Gumbel et al., lessees in the contract from Ott, were granted for a term of twenty-five years the “right to bank, plant, and cultivate oysters in the Mississippi Sound within the limits of the entire front of the land formerly owned by Peter W. Ott and Mary E. Ott, his wife, and by them rented to the above-named parties, with all the water privileges as described in said lease;” and the water in which the right to plant and cultivate oysters was granted is fully described in the ordinance of the board of supervisors as being in front of the lands mentioned in the lease from Ott, and its extent and boundaries clearly defined by channel and county lines. Said ordinance provides further that the said grantees’ “right of property in the oysters so bedded, banked, and planted is hereby established within said limits in said waters in the county of Harrison.” The rights acquired by Gumbel at al., under the lease from Ott, and by virtue of the ordinance of the board of supervisors, were subsequently, with the consent of the lessors, assigned and transferred to the Barataría Canning Company. The said company entered into possession thereof, and thereafter built an extensive canning factory on the lot demised, and bedded, banked, planted, and cultivated oysters over the entire space of water described in the ordinance hereinbefore referred to, planting many barrels of shells annually and building, up a very extensive and valuable oyster bed. For many years after the date of its entry the appellant operated a canning factory upon the lot so leased, taking from the oyster bed which it had planted the necessary supplies to enable it to continue its business of canning oysters. This mode of business continued uninterruptedly until October, 1903, when, after considerable negotiation, a deed was executed by appellees to appellant, in which the following provisions are found: “For and in consideration of six thousand dollars cash paid and the further consideration of the surrender and cancellation of a certain lease heretofore executed by Peter W. Ott and Mary F. Ott, now of record in the chancery clerk’s office in the said county, book 20, on pp. 307, 308, and in further consideration of the mutual and reciprocal covenants concerning the littoral and aquatic rights and privileges appurtenant to the land conveyed and retained or vested by law in the owners of said land by reason of said ownership,” the grantors conveyed a certain lot therein described, being the same on which the canning factory of appellant was situated. After describing the lot, the said deed continues:

“The above described land is hereby granted in fee simple with the following reservations and none other:

“First — Any and all littoral and aquatic rights and privileges, appurtenant and attached to said land or vested in the grantors as the owners of said lands are hereby expressly reserved so far as said rights' and privileges lie to the eastward and northward of that certain line which has its beginning point on the Bay of Biloxi, and running thence in a southwardly direction to the center of the channel of the said Bay of Biloxi, and established in the following'manner:

“Beginning at the northwest corner of lot number 2, of square number 5A, according to the plan of said Summerville, so recorded as aforesaid, and running thence due east 230 feet to the beginning of said line; thence angling right 70 degrees and 23 minutes, bearing south 19 degrees and 37 minutes into the water and toward Deer Island.

“It being the purpose of this instrument to grant to the said Barataría Canning Company all such littoral and aquatic rights and privileges appurtenant and attached to said land or vested in the said grantors as owners of said land as may be exercised wholly to the westward and southward of the said line so established, and this grant is made irrespective of what the actual conformation of the shore line may be or become; and it is expressly understood that the said Barataría Canning Company, by its aceptance of the grant evidenced by this instrument, shall for itself, its legal representatives, and its successors in interest disclaim any right or claim to the exercise of any littoral and aquatic rights and privileges appurtenant and attached to said land or vested in the grantors as the owners of the said land to the northward and eastward of said line so established, no matter what the actual conformation of the shore line may be or shall be or become or be made, and the respective concessions and disclaimer here' made by the parties hereto each in favor of the other shall be held and understood as reciprocal and as furnishing mutual consideration each for the other.”

After the execution and delivery of this deed, the appellees, claiming that, by virtue of the stipulations and reservations contained therein, they had acquired the right to gather oysters in all the waters lying to the east and north of the line described in said deed, entered upon the said waters, sent schooners fully equipped with crews and necessary dredges and tongs used in the gathering of oysters, and caught, took, and carried away, disposed of, and converted to their own use, large quantities of oysters from the beds so banked and planted by the appellant in thewaters described and granted bythe ordinance of the board of supervisors. Several suits were filed by the appellant, and the appellees warned to keep away, and not break or enter the close of the appellant as therein described; but appellees failed to heed the warning, refused to cease their operations, and openly announced their intention of continuing to gather oysters in the manner and from the beds as they then were, whereupon the appellant filed its bill of complaint, asking that the appellees be enjoined and restrained from further trespass upon the premises and waters described, and from gathering oysters from the beds so banked and planted by the appellant. Appellees filed an answer to the bill of complaint, admitting the fact of the lease and occupancy by appellant, but denying that it acquired any exclusive right by virtue of the ordinance adopted by the board of supervisors. Making their answer a cross-bill, appellees averred that they were entitled, under the terms of the deed which they had executed to the Barataria Canning Company in October, 1903, and the cancellation of the lease made by that deed, to the exclusive right of gathering oysters from all that part of the Bay of Biloxi which lies to the northward and eastward of the line agreed upon by the parties as stated in the deed; that the effect of the stipulations and reservations in the deed was to vest in appellees all rights to the oysters which were bedded, planted, or growing in the water described, and that the Barataria Canning Company, by accepting the deed in question, expressly “abdicated and abandoned all its littoral and aquatic rights in and to the waters lying to the northward and eastward of said line agreed upon;” that one of the “main inducements and primary considerations” which moved them to enter into the deed in question was that they might thereby acquire the valuable and extensive beds containing “large quantities of oysters of the best and most marketable and valuable quality” lying in the waters in question. The cross-bill' further averred that prior to the granting of the lease in 1885 the said Otts had themselves planted oysters in various parts of the waters described, and that they were entitled to the right to gather oysters from these waters at the date of the lease, and that by cancellation of the lease by the stipulations of the deed these rights revested in appellees, and gave them the exclusive right to plant, cultivate, and gather oysters in the waters of the gulf in front of their property. Wherefore appellees (cross-complainants) prayed that the bill of complaint be dismissed, that an accounting be had of all oysters removed by complainant subsequent to date of cancellation of its lease, and that the Barataría Canning Company be perpetually enjoined from gathering oysters from said waters or otherwise interfering with appellees in conducting their business therein. A demurrer to their cross-bill having been overruled, appellees filed a motion to dissolve the injunction which had been granted upon the filing of the original bill of complaint. Testimony was taken upon that motion by which the state of facts hereinbefore set out was proven. In addition appellees were permitted to introduce parol testimony tending to prove that, while they had no conversation or agreement with an officer of appellant company, it was their understanding that the legal effect of said deed of October 14, 1903, was to vest in them the exclusive right to gather oysters northward and eastward of the line located by the deed, and that it was their intention, in executing the deed, and the moving consideration therefor, that the Barataría Canning Company was to surrender to them all its rights in the oysters planted and bedded in the waters described and lying in front of their property and northward and eastward of the line indicated. At the conclusion of the hearing the motion to dissolve the injunction was sustained, and an appeal granted the Barataría Canning Company, “in order to settle the principle of law in this case, and to avoid unnecessary expense and delay.”

Several questions are presented by this record which must necessarily be considered in arriving at a proper decision of the controversy. Several others are urged upon us by the arguments and briefs of counsel, which are not involved directly herein, and which are therefore neither considered nor decided. Our consideration is limited to questions vital to the determination of the instant case.

The first inquiry arising is what rights the assignors of appellant acquired by their lease from the Otts in February, 1885. In addition to the lot of land demised by the contract, the lessee acquired "all the exclusive rights of said lessors to the water front on said sound or gulf of all lands owned by said lessors,” and, further, "said water front herein demised in its extension into said gulf, with all its privileges and appurtenances of fishing and bedding oysters, to be extensive with the rights of said lessors under the law governing the same.” It will be noted that this lease was executed on the 12th day of February, 1885, and the query naturally suggested is what right owners of land fronting on the Mississippi Sound had at this date in the land under the water beyond low water mark. The lessees in this case were granted the privilege of fishing and bedding oysters coextensive with the rights of said lessors, whatever those rights may have been, however great or small their extent. In the absence of express statute, the general rule that the owners of land bounded by the sea possess no exclusive right to the soil under the water beyond high water mark is so firmly established, so universally recognized, as to be almost axiomatic. 3 Kent’s Com., sec. 427. At the date when this lease was executed the abutting landowner possessed simply the right which was enjoyed by the public generally of fishing in the waters in front of his property and of gathering oysters from natural beds, but this ownership carried with it no exclusive right to the water itself or to the fish and oysters therein. The waters were public domain, free to the common use of all citizens of the state. The abutting landowner was vested with certain rights of use and control over his water front. These rights consisted chiefly of the privilege of landing his boats, hauling his nets, the gathering of seaweed and shells, and taking sand from the beach between the high and low water marks; and in some jurisdictions these rights have been held to include the right to erect wharfs and piers and bath houses in the water in front of his property. These privileges he enjoyed by virtue of his ownership of land fronting on the seashore, but at the date of the lease here reviewed he owned as to the water itself, or the fish and oysters in the water, or the soil under the water, no right of use or enjoyment greater than that possessed by every other citizen of the state. So that the lessees by this contract acquired as to the water front simply the right of landing its boats, erecting its wharves, and conducting such other operations to which the seashore might conveniently be devoted, connected with and incidental to its canning business. These were all the rights of said lessors under the laws governing the same, for they had no private or exclusive “rights as to fishing or bedding oysters.” The law regarding the planting and bedding of oysters which controlled in this state at the date of the lease in question is found in § 956, Code 1880, by which the boards of supervisors of the respective counties within the state were granted full power and jurisdiction for the protection and preservation of the oysters growing and being grown within the territorial limits of each county respectively, with the power to secure a private right of property in oysters banked, planted, or cultivated in the waters of the county. And in order to carry these powers into execution the board of supervisors were authorized to pass ordinances in reference thereto, and “such ordinances shall from the date of their adoption have the same force and effect as if enacted by the legislature of this state, and shall remain in force until repealed by said board.” With full knowledge of this law, the lessees, having procured from their lessors a lot on which to erect a canning factory, having obtained the exclusive right to the use of the water front for the purposes incident to the operation of such canning business, next applied to the board of supervisors (the proper tribunal, vested by law with sole and exclusive jurisdiction over the subject-matter), and procured from it a grant for the period and term of twenty-five years of bedding, planting, and cultivating oysters within the waters — the water front to which they had acquired the right of use from the Otts. In our judgment, this was a proper exercise by the board of supervisors of an authority which had been expressly and constitutionally delegated to it by the legislature of the state, and such grant was not void as being ultra vires their powers. - Martin v. O’Brien, 34 Miss., 36. This ordinance vested in the grantees “a right of property in the oysters so bedded, banked, and planted within such limits within said waters within the county of Harrison,” and the ownership thus acquired became vested property rights, which no subsequent legislation could repeal or affect, and, in the instant case, none has been attempted by the legislature or board of supervisors.

This brings us, then, to the consideration of the relations and attitude occupied by the parties, respectively, prior to and at the date of the execution of the deed of October 14, 1903. They were as follows: The Otts, as lessors, were entitled to the annual rent for the demised premises, as stipulated in their indenture of lease. They had the right to use the beach and water front of their property in any manner which would not interfere with the business of their lessee carried on upon the leased premises. The Barataría Canning Company was entitled to the possession of the rented lot upon which its canning factory was located, to the use of the water front of the other portion of the property owned by its lessors which fronted on the gulf or sound. This much it acquired as lessee of the Otts. It was also vested with the absolute ownership, by virtue of the grant of the 'board of supervisors, of all the oysters which it had banked, planted, and cultivated in the waters described in the ordinance. This it acquired, not by reason of the lease from the Otts, for the Otts themselves possessed no such right of ownership at the date of their lease. The exclusive privilege of gathering oysters in,the waters described, with a property right in the oysters planted therein, was granted to it by the ordinance of the board of supervisors; and having entered and acted with the approval and sanction of the lawful authority to which the exclusive jurisdiction had been delegated, the oysters planted by it became its sole property as against the world. With this understanding of the relative rights of the parties, passing to the consideration of the deed of October 14, 1903, we find the following provisions and stipulations: (1) The lease existing between the Otts and the Barataria Canning Company was to be cancelled and surrendered. The effect of this provision was to deprive the Barataria Canning Company of the privileges which it had acquired and enjoyed under the provisions of said lease, and these, so far as the water, and water front are concerned, were simply, as hereinbefore pointed out, the right to use the beach and water front for purposes incidental to the operation of the canning factory. (2) The title to the lots on which the canning factory stood was converted from a leasehold estate to one in fee simple. Appellant thereby acquired an absolute title to the real estate, with such appurtenances as were conveyed by the express provisions or legal effect of the deed. (3) Any and all “littoral and aquatic rights and privileges appurtenant and attached to said land or vested in the grantors as owners of said land” were expressly reserved within certain limits, and it is further stated that the acceptance by the Barataria Canning Company of the deed was to be considered as an express abandonment by it of all “littoral and aquatic rights” which were reserved to the grantors. We find, then, that this was a deed in fee simple conveying certain lands, with a reservation of certain rights, to the grantors, and these rights are stated as being the “littoral and aquatic rights appurtenant to the land or vested in the owners by virtue of their ownership.” It is a fundamental principle of construction of deeds that the reservation must be consistent with the grant of the fee, and also must be of some portion of the granted premises, which, without the reservation, would be conveyed by the deed. Whatever may have been the exact meaning which the scrivener intended to convey by the expression “littoral and aquatic rights,” it appears manifest that these rights, as to a large portion of the water front described, were appurtenant to lands not conveyed nor intended to be conveyed by the deed. “Littoral and aquatic rights” are simply those rights which, in default of special statutory provisions to the contrary, pertain to lands abutting upon tide waters to which the common-law doctrine of riparian ownership does not apply. They have hereinbefore been sufficiently indicated. In the instant case the reservation in the deed as to other lands not conveyed by the terms of the deed simply retained, uselessly and unnecessarily, rights which by law are appurtenant to the land on account of its location as abutting on the seashore. So far, then, as this reservation is concerned, it was, in its legal effect, meaningless and inoperative. It is open to very serious doubt whether one having land to which, on account of its location, certain rights attach by operation of law, can convey the land itself, and yet retain the privilege which pertains by legal effect to the land. It is to be gravely questioned whether one owning land abutting on the tide water, or land situated on the streams to which the doctrine of riparian ownership applies, can in the one instance convey the land and reserve the littoral rights appurtenant thereto, or in the other convey the land and retain any claims to the soil under the water or the riparian right to accretions which, subsequently formed, would attach to the land itself as a legal incident. The view that such rights are adjuncts to the land, attaching thereto by operation of law on account of location, and not subject to separate, divisible ownership, is worthy, of serious consideration. Blakeslee Mfg. Co. v. Blakeslee Iron Works, 59 Hun., 209 (13 N. Y. Supp., 493). However that may be, it is not necessary to the determination of this controversy for us to express a definite conclusion. The attempted reservation in the deed now under review can be given its full legal scope and ef feet, and still in no wise affect the rights of appellant to the oysters which it had bedded and planted, and in which a right of property had been lawfully granted it. A reservation in a deed must not only be, as hereinbefore pointed out, of something which would otherwise, by operation of the terms of the deed, be conveyed, but it must necessarily be of something which belongs to the grantor at and before the execution of the deed. Property cannot be conveyed by reservation, and yet that is what is attempted to be done if the construction contended for by appellees.be sustained; At the date of the deed appellees owned the land and the water front, with all littoral and aquatic rights lawfully appurtenant thereto. Appellant owned the oysters which it had planted and bedded in the waters in front of the land. By deeding a portion of the land and reserving certain rights which are merely incident to the land, appellees claim to have acquired title to the property of appellant. This view cannot he sustained. Appellant, being the owner of the oyster beds which it had planted, cannot be divested of its ownership by implication, and appellees can only acquire those rights by express grant. It is no argument upon either side to say what the intention of the parties was. The deed must speak for itself, and if the reservation be so indefinite as to convey no certain meaning, it will be held to be ineffectual. Moore v. Lord, 50 Miss., 229. “What one party to a contract understands or believes is not to govern its construction, unless such understanding or belief was induced by the conduct or declaration of the other party.” Bank v. Kennedy 84 U. S., 19 (21 L. ed., 555). In this case there was no misrepresentation on either side, as the parties dealt “at arm’s length,” and the deed was placed in escrow until accepted and delivered. It follows, therefore, that appellant is vested with the sole and exclusive ownership of all oyster beds which it has planted, and this ownership appellees should be required to respect. This does not deprive appellees of any “littoral or aquatic” rights which they may possess under the law, for such do not conflict with the rights of appellant, vested in it by the ordinance of the board of supervisors. We expressly decline now to decide as to the respective rights of the parties or the public after the expiration of the twenty-five years’ grant which appellant acquired from the board of supervisors, and we do not intimate any view on this point.

Wherefore it follows that the action of the court in dissolving the injunction was erroneous, and the decree is reversed, and the injunction reinstated and made perpetual, and the cause remanded.