Gast v. Ederer

600 So. 2d 204, 1992 Miss. LEXIS 272, 1992 WL 104598
CourtMississippi Supreme Court
DecidedMay 20, 1992
DocketNo. 07-CA-59566
StatusPublished
Cited by2 cases

This text of 600 So. 2d 204 (Gast v. Ederer) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gast v. Ederer, 600 So. 2d 204, 1992 Miss. LEXIS 272, 1992 WL 104598 (Mich. 1992).

Opinion

PITTMAN, Justice,

for the Court:

Robert and Mary Ann Ederer instituted this action in the Chancery Court of Jack[205]*205son County seeking an injunction against the construction of a large boathouse in the Davidson Hills Subdivision. The Ederers alleged that Frederic Gast was breaching the restrictive covenants of the neighborhood by constructing a boathouse on his property. Mr. Gast, in answer to the Eder-ers’ suit, suggested that he was exercising his riparian rights as a waterfront landowner and that the plaintiffs were not entitled to a mandatory injunction. After a trial on the merits, Chancellor Robert Oswald found that the protective covenants of the neighborhood had prevented the construction of a boathouse and that the structure should be removed. Gast appeals the grant of a mandatory injunction. We affirm.

I.

Robert and Mary Ann Ederer had been living in the Davidson Hills Subdivision of Ocean Springs for nearly thirty years at the time of this action. The residential neighborhood consisted of waterfront properties and homes that averaged more than $100,000.00 in value. The owners of property in the subdivision were subject to certain building restrictions designed to maintain the exclusive nature of the residential community. One of these covenants provided that no building could be erected on any lot other than a single-family dwelling and a private car garage.

In the fall of 1982, Frederic Gast purchased Lot 1 in the Davidson Hills Subdivision. In 1985, Gast cleared Lot 1 and began erecting a bulkhead and pier along the water’s edge. He placed several tall pilings in the water in front of the lot but did no other work until 1987. In July of that year, Frederic Gast began building a boathouse on top of the pilings driven into the edge of Fort Bayou. In August of 1987, neighbors began to complain about the boathouse construction and Gast ran into problems with his building permit. Ultimately, suit was filed seeking a mandatory injunction against the building of the structure.

On March 11, 1988, this cause came for trial in the Chancery Court of Jackson County. The Ederers testified that the Gast boathouse deviated from the standard of living in Davidson Hills and that the structure would destroy the exclusive nature of the subdivision. Plaintiffs related that there were no other boathouses in the waterfront neighborhood due to the restrictive covenants permitting only single-family dwellings and a two-car garage.

Frederic Gast testified that he purchased Lot 1 without reading the building restrictions affecting that land. He informed the court that he intended to build a residence on the property as soon as he sold his present home in the Gulf Hills Subdivision.

After the testimony, exhibits, and argument of the parties, Chancellor Robert Oswald determined that Frederic Gast was in violation of the protective covenants of the Davidson Hills Subdivision. Chancellor Oswald ordered that defendant be mandatorily enjoined to remove the construction erected on Lot 1 by July 1, 1988.

II.

The first question on appeal is whether the construction of a boathouse in the area below the mean high water mark is subject to restrictive covenants affecting land above these riparian areas. Frederic Gast suggests that as a waterfront property owner in Mississippi, he has a common law and statutory right to use the riparian waters adjacent to his land to erect structures and improvements to his property. He contends that this alleged right arises from Mississippi’s ability to develop and administer the tide waters within its borders. As the U.S. Supreme Court provided in Phillips Petroleum Company, et al. v. Mississippi, 484 U.S. 469, 108 S.Ct. 791, 98 L.Ed.2d 877 (1988), “there is no universal and uniform law upon the subject; but ... each State has dealt with the lands under the tide waters within its borders according to its own views of justice and policy.” 484 U.S. at 483, 108 S.Ct. at 798-99, 98 L.Ed.2d at 890 (quoting Shively v. Bowlby, 152 U.S. 1, 26, 14 S.Ct. 548, 557, 38 L.Ed. 331, 341 (1894)). The high Court stated that there was no reason “to disturb the ‘general proposition [that] the law of real property is, under our constitution, left to the individual states to develop and administer.’ ” 484 U.S. at 484, 108 S.Ct. at 799, 98 L.Ed.2d at 891 (quoting Hughes v. Wash[206]*206ington, 389 U.S. 290, 295, 88 S.Ct. 438, 441, 19 L.Ed.2d 530, 534 (1967) (Stewart, J., concurring)).

Gast claims that the legislature has determined that riparian areas may be used to erect boathouses, piers and other waterfront structures by its enactment of Mississippi Code Ann. § 49-15-9 (Supp.1991). That statute provides:

The sole right of ... erecting bathhouses and other structures in front of any land bordering on the Gulf of Mexico or Mississippi Sound or waters tributary thereto belongs to the riparian owner.... A riparian owner shall comply with the Coastal Wetlands Protection Act in exercising the use of these riparian rights.... All bathhouses, piers, wharfs, docks and pavilions, or other structures owned by riparian owner are likewise the private property of such owner, who shall be entitled to the exclusive use, occupancy and possession thereof, and may abate any private or public nuisance committed by any person or persons in the area of his riparian ownership and may, for such purposes, resort to any remedial action authorized by law. The governing authorities of any municipality and the board of supervisors of any county are authorized to adopt reasonable rules and regulations to protect riparian owners in the enjoyment of their riparian rights, and for such purposes may regulate the use of beaches, landings, and riparian areas abutting or fronting on roads, streets or highways.

Considering the above, Gast asserts his right to erect a boathouse within the tide waters adjacent to his property. In this riparian area, he suggests that the restrictive covenants of Davidson Hills would not apply.

In reviewing this assignment of error, we note that the weight of credible evidence establishes that the Gast boathouse is not constructed entirely in the riparian zone but is situated, at least to some degree, over Lot 1. Retired marine surveyor Arthur Terry testified that as much as thirty percent (30%) of the boathouse is over dry land. Defense expert Ralph Klein admitted that at least a corner of the Gast boathouse is erected over Lot 1. As a result, we would be correct in finding that the boathouse erected by Frederic Gast was subject to the building restrictions of the Davidson Hills Subdivision because it was constructed on the surface of Lot 1. In our decision today, however, we go further and hold that any structure erected above or within the area below the mean high-water mark is subject to the restrictive covenants of the land above that riparian zone. In our holding we adopt the rationale of the Connecticut Supreme Court decision of Shorefront Park Improvement Association v. King, 157 Conn. 249, 253 A.2d 29 (1968).

In Shorefront Park,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Misita v. Conn
138 So. 3d 174 (Court of Appeals of Mississippi, 2013)
BELAGER-PRICE v. Lingle
28 So. 3d 706 (Court of Appeals of Mississippi, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
600 So. 2d 204, 1992 Miss. LEXIS 272, 1992 WL 104598, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gast-v-ederer-miss-1992.