Stewart v. Hoover

815 So. 2d 1157, 2002 WL 595145
CourtMississippi Supreme Court
DecidedApril 18, 2002
Docket2001-CA-00585-SCT
StatusPublished
Cited by14 cases

This text of 815 So. 2d 1157 (Stewart v. Hoover) 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
Stewart v. Hoover, 815 So. 2d 1157, 2002 WL 595145 (Mich. 2002).

Opinion

815 So.2d 1157 (2002)

Lawrence S. STEWART
v.
H. James HOOVER, Sandra G. Hoover and The State of Mississippi.

No. 2001-CA-00585-SCT.

Supreme Court of Mississippi.

April 18, 2002.

*1158 Briley Richmond, attorney for appellant.

Fredrick B. Feeney, Gulfport, Office of the Attorney General by Nancy Morse Parkes, attorneys for appellees.

Before McRAE, P.J., and WALLER and GRAVES, JJ.

WALLER, J., for the Court.

¶ 1. Lawrence S. Stewart and H. James Hoover and Sandra G. Hoover are owners of adjacent property located in Jackson County, Mississippi. Stewart filed suit in Jackson County Chancery Court alleging that a pier constructed by the Hoovers extended onto his property thereby hindering the enjoyment of his property, causing damage to the vegetation, and adversely affecting the rate and intensity of water flow onto his property. The State of Mississippi intervened in the action via the Secretary of State asserting that at least part of the property subject to this lawsuit was Public Trust Tidelands of which ownership was vested in the State. Stewart then amended his complaint to include the State as a defendant. His contention against the State's assertion of ownership was that since the map of Public Trust Tidelands did not contain the property in question it was not subject to the Trust. Both the Hoovers and the State moved for summary judgment. The Chancellor granted the motion stating that the subject property was titled to the State and was, therefore, not subject to private ownership. Stewart then tendered his appeal to this Court asserting the following issues:

I. WHETHER THE STATE IS PRECLUDED FROM CLAIMING OWNERSHIP OF THE LAND SINCE IT WAS NOT SHOWN TO BE PUBLIC TRUST TIDELANDS ON A TIDELANDS MAP PREPARED BY THE SECRETARY OF STATE AND FILED WITH THE CLERK OF THE JACKSON COUNTY CHANCERY COURT.
II. WHETHER STEWART'S RIPARIAN RIGHTS WERE VIOLATED BY THE ACTIONS OF THE SECRETARY OF STATE AND THE HOOVERS.

FACTS AND PROCEDURAL HISTORY

¶ 2. Stewart and the Hoovers are owners of adjacent property situated on Heron Bayou in Ocean Springs, Jackson County, Mississippi. On May 26, 1992, Hoover was granted permits by the Mississippi Department of Wildlife Conservation, Bureau of Marine Resources, and the Mississippi Department of Wildlife, Fisheries and Parks to construct a T-shaped pier extending 110 feet across marshland to Heron Bayou with the top of the "T" portion being 24 feet long. As constructed, the pier extended beyond the call of the Hoovers' deed and onto property the ownership of which is asserted by Stewart. Subsequent to the pier's construction in 1992, on December 14, 1995, Margaret Anne Bretz, a senior attorney with the Secretary of State's Office, wrote Stewart outlining the results of a visual inspection conducted by Bretz and Daryl Thomas of the Department of Marine Resources. Bretz and Thomas opined that "any portion of the Hoover pier which is not located on Mr. Hoover's property extends over tidally affected wetlands which are below the line of mean high tide, and therefore are public trust tidelands."

¶ 3. Stewart commenced suit against the Hoovers on September 16, 1999, seeking injunctive relief for removal of the pier from the property and restoration of the *1159 property to its condition prior to the pier's construction. Stewart also sought damages for trespass and disturbance of his right to peacefully enjoy the property, for damage to vegetation, and for change of the course and flow of the natural drainage of the property. In October of 1999, Hoover requested the Department of Marine Resources to conduct a Tidelands Determination. Stephan Oivanki, Coastal Ecology Director of the Department of Marine Resources, concluded that the "tidal wetlands crossed by your pier are state tidelands, subject to the ebb and flow of the tide below mean high tide level, and as such are the property of the State of Mississippi."

¶ 4. The State filed its Motion to Intervene and Intervenor's Claim to Title to Certain Tidelands Property on December 23, 1999, and was allowed to intervene as a defendant in this action on March 2, 2000. The bases for the State's Motion to Intervene were that part of the subject property was Public Trust Tidelands the ownership of which was vested in the State and that disposition of the case without the State as a party would impair or impede the ability of the State to protect its ownership interest. In the Order Allowing Intervention, the Secretary of State was required to determine if Stewart was in violation of the Public Trust Tidelands Act. The Secretary was ordered to notify Stewart pursuant to Miss.Code Ann. § 29-15-7 (2000) of his determination of whether Stewart was in violation of the Act. Such notification was attempted by mail three times but was returned as unclaimed.

¶ 5. Stewart amended his complaint to include the State in seeking declaratory relief and also that the State had no interest in the land because it was not designated as Public Trust Tidelands on the preliminary map or on the final certified map on record in the Jackson County Chancery Court. Thereafter, both the Hoovers and the State moved for summary judgment. Chancellor Barlow granted both motions and stated that "The area in question clearly falls within the scope and meaning of the cases which leads to the only conclusion that can be reached, that is, this property is not subject to private ownership." From this adverse ruling, Stewart appealed to this Court.

STANDARD OF REVIEW

¶ 6. This Court employs the de novo standard in reviewing a trial court's grant of summary judgment. O'Neal Steel, Inc. v. Millette, 797 So.2d 869, 872 (Miss.2001). In conducting the de novo review, we look at all evidentiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits. Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797 So.2d 845, 847 (Miss.2001) (citing Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss. 1996)). This evidence must be viewed in the light most favorable to the party against whom the motion for summary judgment has been made. Leslie v. City of Biloxi, 758 So.2d 430, 431 (Miss.2000).

DISCUSSION

I. WAS THE STATE OF MISSISSIPPI PRECLUDED FROM CLAIMING OWNERSHIP OF THE LAND SINCE IT WAS NOT SHOWN TO BE PUBLIC TRUST TIDELANDS ON A TIDELANDS MAP PREPARED BY THE SECRETARY OF STATE AND FILED WITH THE CLERK OF THE JACKSON COUNTY CHANCERY COURT?

¶ 7. It is a well-established principle of law that lands covered by tide waters within a state belong to the state in which they are found. Illinois Cent. R.R. *1160 v. Illinois, 146 U.S. 387, 435, 13 S.Ct. 110, 36 L.Ed. 1018 (1892). Titles to such lands were granted to Mississippi in trust upon its admission to the Union in 1817 under the equal footing doctrine and included in what is known as the "public trust." Cinque Bambini Partnership v. State, 491 So.2d 508, 511 (Miss.1986), aff'd sub nom. Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 108 S.Ct. 791, 98 L.Ed.2d 877 (1988). Also included in the public trust are sixteenth section school lands. Id. (citing Turney v. Marion County Bd. of Educ., 481 So.2d 770 (Miss.1985)).

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Cite This Page — Counsel Stack

Bluebook (online)
815 So. 2d 1157, 2002 WL 595145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-hoover-miss-2002.