Comeaux v. Freeman

918 So. 2d 780, 2005 WL 1154375
CourtCourt of Appeals of Mississippi
DecidedMay 17, 2005
Docket2004-CA-00010-COA, 2004-CA-00523-COA
StatusPublished
Cited by1 cases

This text of 918 So. 2d 780 (Comeaux v. Freeman) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Comeaux v. Freeman, 918 So. 2d 780, 2005 WL 1154375 (Mich. Ct. App. 2005).

Opinion

918 So.2d 780 (2005)

Rebecca Baxter COMEAUX, Appellant,
v.
Larry FREEMAN, Donald Wells, William Amacker, Jr. and Sharon Dedeaux, Appellees.

Nos. 2004-CA-00010-COA, 2004-CA-00523-COA.

Court of Appeals of Mississippi.

May 17, 2005.

*782 Robin L. Roberts, Hattiesburg, attorney for appellant.

William H. Jones, Jackson, Leigh Kennington Berry, Columbia, attorneys for appellees.

Before LEE, P.J., GRIFFIS and ISHEE, JJ.

LEE, P.J., for the Court.

¶ 1. This case arises from a dispute over ownership of riparian rights for certain land along the Pearl River in Marion County, Mississippi. Each of the parties owns land on and near the Pearl River. Rebecca Baxter Comeaux owns land along the river and seeks to open a camping and tubing business. Comeaux claims that the adjoining landowners have interfered with her use of her land by launching boats from the land in dispute. The adjoining landowners argue that while Comeaux does own land along the river, Comeaux does not have the exclusive right to use the river and sand bars, which adjoin the property of the appellees. Comeaux filed suit in the Marion County Chancery Court, alleging that the defendants trespassed upon her property, and that such trespass constituted a cloud upon the title to her lands. Comeaux further alleged that one of the defendants, William Amacker, slandered the title to her land, and Comeaux sought damages for the slander.

¶ 2. The parties submitted the action to Chancellor James Thomas for a determination on the merits. The chancellor found that the defendants's property rights extended to the thalweg of the Pearl River, and that the defendants had not trespassed on the river bed which was adjacent to their and Comeaux's respective properties. The chancellor further found that the defendants were entitled to a utility easement on, over, under and across an existing roadway easement.

¶ 3. It is from this ruling which Comeaux now appeals, arguing the following issues which we quote verbatim: (1) does the Appellant's property extend to the thalweg of the Pearl River; (2) whether *783 the court erred in basing its findings on the perceived intent of the grantor; (3) if the Appellant is the owner of riparian rights to the river, whether she may exclude the neighboring property owners whose property is specifically described by metes and bounds descriptions from accessing the river via her property.

¶ 4. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 5. In boundary disputes, a determination of the legal boundary between properties is a question of fact for the chancellor. The same standard applies to questions involving the accuracy of a survey. The chancellor's decision in this regard will not be disturbed on appeal unless we find that the chancellor committed manifest error. City of Waynesboro v. McMichael, 856 So.2d 474, 477(¶ 5) (Miss. Ct.App.2003) (citing Kleyle v. Mitchell, 736 So.2d 456(¶ 8) (Miss.Ct.App.1999)).

I. DOES THE APPELLANT'S PROPERTY EXTEND TO THE THALWEG OF THE PEARL RIVER?

¶ 6. Comeaux argues that her property extends to the thalweg of the Pearl River. In support of this argument, Comeaux cites the case of Archer v. Southern Railway Co. in Mississippi, 132 Miss. 894, 95 So. 680, 682 (1923). Comeaux is mistaken. Archer, in fact, more accurately summarizes the arguments of the appellees.

¶ 7. Archer is the second in a series of suits between Archer and the Southern Railway in an attempt to establish ownership of land along the Mississippi River. The first case is not germane to the case sub judice; however, the second case, to which Comeaux cites, addresses determining the boundary of land bordered by navigable rivers. In Archer, the land in question was bounded on the west by the Mississippi River. In fact, the southern starting point of the western boundary line of land began at the river. The boundary line terminated north of its origin at a point which also intersected the river. Testimony showed that there was no land between this western boundary and the river. The language of the deed provided in pertinent part as follows: "[t]hence north 64 ¼ degrees 950 feet to the Mississippi River, thence up the bank of said river to its intersection with a line 160 feet south of and parallel to the north side of Walthall street." Archer, 95 So. at 681. The Mississippi Supreme Court determined that the river was the boundary line of the property, and that riparian rights passed to the grantee under the deed in question. In support of this conclusion, the supreme court opined as follows:

In Farnham on Water Rights, vol. 2, p. 1475, the rule is thus stated:
"If the grant is bounded by a well-marked line on the bank which is not coincident with the water, the title will extend only so far as the line, and the grantee will acquire no riparian rights. So, if the line along the river is described as a direct line, the line, and not the river, is the true boundary. In order to have this rule apply, however, the line must be described so distinctly as to indicate an intention that the stream shall not be the boundary."
Again in Washburn on Real Property (6th Ed.) vol. 3, p. 392, § 2334, this rule is thus laid down:
"In respect to streams and rivers which are not navigable, the rule seems to be universal that describing land as running to the stream or the bank, and by it or along the stream or the bank, extends to the middle or thread of the stream, the filum aqu, unless there is something in the description clearly excluding the *784 intermediate space between the edge or bank of the stream and its thread."

Archer, 95 So. at 682. The court determined that "[i]n this case, instead of there being anything to indicate an intention that riparian rights should not pass, the testimony, the deed, and the map indicate that the intention of both parties was for the grantee to acquire these riparian rights." Id.

¶ 8. Citing Cox v. F-S Prestress, Inc., 797 So.2d 839 (Miss.2001) and Archer, the chancellor in the case sub judice determined that regardless of the size or navigability of a river, landowners of abutting land own to the thalweg of the stream. Indeed, "[t]he law in Mississippi, as to boundaries on freshwater streams above the ebb and flow of the tides, is that regardless of the size or navigability the owners of abutting land own to the thread or thalweg of the stream." Cox, 797 So.2d at 843(¶ 15) (citing Wilson v. St. Regis Pulp & Paper Corp., 240 So.2d 137, 139 (Miss.1970)).

¶ 9. In the case sub judice, Comeaux purchased "[a]ll of Fraction Section 30, Township 1 North, Range 17 West of St. Stephens Meridian, Marion County, Mississippi" less and except nineteen parcels of land and four easements, all clearly described in metes and bounds in Comeaux's warranty deed. Comeaux argues that only two of the some thirty-six deeds included in the record convey property to the thalweg of the river. Comeaux further argues that "of the remaining deeds, almost half make no mention of the river, but are specific metes and bounds descriptions, and of the deeds with descriptions which mention the bank of the river, the metes and bounds descriptions are to a specific line." Comeaux concludes that under Archer, no riparian rights were transferred by the metes and bounds description, therefore rights to the river and sand bar passed to Comeaux when she purchased "all of the fractional section."

¶ 10.

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