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CINQUE BAMBINI PARTNERSHIP, CARROLL W. ALLEN, LYDIA CARROLL, HAMILTON ALLEN, HARRY B. KELLEHER, SPOONER PETROLEUM COMPANY, AND ENSERCH EXPLORATION, INC. AND PHILLIPS PETROLEUM COMPANY v. STATE OF MISSISSIPPI AND SAGA PETROLEUM U.S.

MAY 14, 1986

CINQUE BAMBINI PARTNERSHIP, CARROLL W. ALLEN, LYDIA CARROLL, HAMILTON ALLEN, HARRY B. KELLEHER, SPOONER PETROLEUM COMPANY, AND ENSERCH EXPLORATION, INC. AND PHILLIPS PETROLEUM COMPANY
v.
STATE OF MISSISSIPPI AND SAGA PETROLEUM U.S., INC.



EN BANC

ROBERTSON, JUSTICE, FOR THE COURT:

I.

Though great public interests and neither insignificant nor illegitimate private interests are present and in conflict, this in the end is a title suit. Plaintiffs, Cinque Bambini Partnership and others (" Cinque Bambini "), have brought an action to confirm title and remove clouds from title to 2400 acres of largely undeveloped property in Hancock County near the Mississippi Gulf Coast. As the lands are arguably tidelands, the State of Mississippi claims title in its capacity as trustee of the federally created public trust, vintage 1817, the year of statehood.

 Accepting the State's view of the geographical contours of the public trust, the Chancery Court of Hancock County

 ruled that the State owns 140.863 of the 2400 acres Cinque Bambini claims. Ninety-eight of the 140 plus acres consist of two lakes that were dredged by the State's general contractor in the mid-1960s to obtain fill material for construction of Interstate Highway I-10. The remaining forty-two plus acres consist of the north branch of Bayou LaCroix and eleven small drainage streams ranging in size from .44 acres to 9.966 acres. The total surface area for six of the streams is less than one acre each.

 The private landowners, Cinque Bambini, et al, claiming under Spanish grants purportedly confirmed by the Congress of the United States, have appealed arguing, inter alia, that the Chancery Court erred in the definition of the geographical contours of the public trust.

 For the reasons explained below, we hold that fee simple title to all lands naturally subject to tidal influence, inland to today's mean high water mark, is held by the State of Mississippi in trust. On the other hand, lands brought within the ebb and flow of the tide by avulsion or by artificial or non-natural means are owned by their private record titleholders. We affirm in part and reverse in part.

 II.

 There are no material disputes in the facts. Cinque Bambini and others are vested with record title, derived from pre-statehood Spanish land grants said to date back to April 15, 1813 and to have been expressly confirmed by Acts of the Congress, and from federal and state patents. This avails Cinque Bambini nothing, however, if the lands in dispute are a part of those held by the State of Mississippi by virtue of a trust created at the time Mississippi was admitted to the Union in 1817. For all practical purposes, the case turns on whether the disputed lands are a part of the public trust.

 The present dispute seems to have its genesis in the Coastal Wetlands Protection Law enacted by the Mississippi Legislature in 1973. Miss. Code Ann. 49-27-1 thru -69 (Supp.1985) This law charged the Mississippi Marine Resources Council (MMRC) with preparing maps identifying the state-owned wetlands. These maps were made by state employees who" eyeballed "aerial photographs to determine the boundaries of the wetland areas. The purpose of these maps was to provide a method whereby the MMRC could determine whether any given event was occurring on land in its jurisdiction - that is, in a wetlands area. These wetland maps were recorded in the office of each chancery clerk in the three coastal counties.

 Notwithstanding these beginnings, the issue of the day, pragmatically speaking, appear to be, who will enjoy the revenues from anticipated oil and gas exploration. Contrary to instructions from the MMRC - who warned that the maps were inaccurate and for jurisdictional purposes only - the Mississippi Mineral Lease Commission used these wetland maps to delineate the state-owned land upon which it would then sell oil and gas leases. In following this practice, the Lease Commission leased 600 acres of land - record title to which resided in Cinque Bambini, et al - to Saga Petroleum U.S., Inc. in 1977. These leases were recorded in the Office of the Chancery Clerk for Hancock County, Mississippi.

 When Cinque Bambini, et al, learned of these oil leases, they brought suit to confirm and remove clouds from their title. The State of Mississippi answered and counterclaimed. From an adverse ruling regarding the geographical contours of the public trust, Cinque Bambini and the other private landowners appeal.

 III.

 Prior to Mississippi's statehood, title to all property within what became this state's geographical confines was vested in the federal sovereign, the United States of America, subject to exception to be explained in Section V below. This included all surface waters, as well as the lands and beds of those waters and streams.

 At the time of statehood, the United States created two great public trusts and conveyed to each new state, including the State of Mississippi, lands to be held by the state for the public purpose. The first of these was the familiar school lands trust into which the sixteenth section from each township has been placed. Turney v. Marion County Board of Education, 481 So. 2d 770, 776-77, 783-84 (Miss.1985). The second trust, the one with which we are concerned today, had placed within it the tidelands and navigable waters of the state together with the beds and lands underneath same. See State ex rel. Rice v. Stewart, 184 Miss. 202, 234, 184 So. 44, 51 (1938). In each instance the federal sovereign, in recognition of public concerns which seem to override mere private interests, granted to the state fee simple title in certain properties to be held by the state for the benefit of all of its people. *fn1

 The public purposes to which these lands and waters placed in the public trust may be devoted are not static. Over the years those purposes have come to include navigation and transportation, House v. Saucier's Heirs, 166 Miss. 704,

 146 So. 291 (1933); Martin v. O'Brien, 34 Miss. 21 (1857); commerce, Rouse v. Shaucier's Heirs, 166 Miss. 704, 146 So. 291 (1933); fishing, State ex rel. Rice v. Stewart, 184 Miss. 202, 231, 184 So. 44, 50 (1938); bathing, swimming and other recreational activities, Treuting v. Bridge and Park Commission of City of Biloxi, 199 So. 2d 627, 632-33 (Miss.1967); development of mineral resources, Treuting v. Bridge and Park Commission of City of Biloxi, 199 So. 2d 627, 633 (Miss.1967); environmental protection and preservation, Miss. Code Ann. 49-27-3 and -5 (a) (Supp.1985); the enhancement of acquatic, avarian and marine life, sea agriculture and no doubt others. See Marks v. Whitney, 6 Cal.3d 251, 491 P.2d 374, 98 Cal.Rptr. 790 (1971). Suffice it to say that the purposes of the trust have evolved with the needs and sensitivities of the people - and the capacity of trust properties through proper stewardship to serve those needs.

 All of this came about as an outgrowth of federal implementation of the familiar equal footing doctrine. See e.g., Oregon ex rel. State Land Board v Corvallis Sand and Gravel Co., 429 U.S. 363, 370-78, 97 S. Ct. 582, 50 L.Ed.2d 550, 558-63 (1977); Pollard's Lessee v. Hagan, 44 U.S.(3 How.) 212, 11 L.Ed. 565 (1845). The original states withheld their tidelands and navigable waters from the United States at the time of adoption of the Constitution. Those lands and waters so reserved by the states were held in trust for the public benefit. See, e.g., Arnold v. Mundy, 6 N.J.L. 1 (1821). Thereafter, each new state was admitted to the Union on an equal footing with the original thirteen, viz. as each one of the thirteen held its tidelands and navigable waters in public trust the United States created like trusts in each new state. *fn2 Montana v. United States, 450 U.S. 544, 551, 101 S. Ct. 1245, 67 L.Ed.2d 493, 501 (1981). The point for the moment is that once Mississippi had been admitted to the Union and once the public trust had been created and funded, the role of the equal footing policy ended and title to the lands conveyed in trusts became vested in the state, subject, of course, to the trust. See Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 376, 97 S. Ct. 582, 590, 50 L.Ed.2d 550, 562 (1977); Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 13 S. Ct. 110, 36 L.Ed. 1018 (1892).

 Federal law recognizes state authority over trust properties as plenary; *fn3 once the trust was funded, so to speak, the federal role was spent. Oregon ex rel. State Land Board v. Corvallis Sand and Gravel Co., 429 U.S. 363, 371, 376, 97 S. Ct. 582, 50 L.Ed.2d 550, 558, 562 (1977). State law in turn prohibits disposition or use of trust property except in furtherance of the public purpose. International Paper Co.

 v. Mississippi State Highway Dept., 271 So. 2d 395, 399 (Miss.1972); Treuting v. Bridge and Park Commission of City of Biloxi, 199 So. 2d 627, 633 (Miss.1967); Money v. Wood, 152 Miss. 17, 118 So. 357 (1928). The Attorney General repeatedly and correctly states in his brief that the State may not convey fee simple title to properties so held in trust" unless it is for a higher public purpose and then only by legislative enactment ". (Brief for Appellees and Cross-Appellant, filed April 18, 1984, at pp.8, 16). See Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 452-54, 13 S. Ct. 110, 36 L.Ed. 1018, 1042 (1892); Priewe v. Wisconsin State Land & Improvement Co., 93 Wis. 534, 67 N.W. 918 (1896) aff'd on reh., 103 Wis. 537, 79 N.W. 780 (1899).

 IV.

 A.

 We are concerned fundamentally with the inland reach of the trust boundaries, with identification, geographically and topographically, of the lands held by the State of Mississippi in trust today. The initial step in that identification process requires that we ascertain exactly what properties were granted to the State in trust in 1817. As the federal settlor held title to all lands prior to statehood and the creation of the trust, and as it was that same federal settlor which determined under the equal footing doctrine which lands it would grant to the State and which it would reserve for patent to private citizens, the question of what lands were given to the State in trust is necessarily a question of federal law. Borax Consolidated v. City of Los Angeles, 296 U.S. 10, 22, 56 S. Ct. 23, 29, 80 L.Ed. 9, 17 (1935); California ex rel State Lands Commission v. United States, 457 U.S. 273, 285 n.14, 102 S. Ct. 2432, 2440 n.14, 73 L.Ed.2d 1, 12 n.14 (1982); Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 373, 97 S. Ct. 582, 588, 50 L.Ed.2d 550, 562 (1977).

 What then are the federal principles by which we may establish on-the-ground surveyable boundaries of the properties granted the State of Mississippi in trust in the year 1817? We regard as settled the proposition that, insofar as federal law is concerned, the identity of properties granted by the United States in trust became fixed at the time of statehood. Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 376, 97 S. Ct. 582, 590, 50 L.Ed.2d 550, 562 (1977); United States v. Utah, 283 U.S. 64, 75, 51 S. Ct. 438, 440-41, 75 L.Ed. 844, 849 (1931); Goodtitle v. Kibbe, 50 U.S. (9 How.) 471, 477, 13 L.Ed. 220, 223 (1850).

 The early federal cases refer to the trust as including all lands within the ebb and flow of the tide. Cinque Bambini argues, nevertheless, that" ebb and flow of the tide should be translated "navigable waters" and cites several admiralty jurisdiction cases beginning with The Genessee Chief, 53 U.S. (12 How.) 443, 13 L.Ed. 1058 (1851). Cinque Bambini's position is that the surveyable boundaries of trust properties were redefined in a series of cases beginning with Martin v. Waddell, 41 U.S. (16 Pet.) 367, 10 L.Ed. 997 (1842) to include only those waters navigable in fact in 1817, tidal influence being essentially irrelevant. The State's position is that, in addition to such navigable waters, the trust also includes all lands subject to the ebb and flow of the tide in 1817 and below the then mean high water mark. Resolution of this issue is outcome determinative of much of this case - and, apparently, is of enormous importance to the Mississippi Gulf Coast. We proceed with some temerity as we find no federal case expressly deciding this point of federal law - whether at the time of statehood tidally influenced non-navigable waters were included in the state owned public trust.

 The evolution of the so-called redefinition of the trust suggests a clue or two. Originally, "tidewaters" , "ebb and flow of the tide" , and similar language dominated discussions of the trust. It soon became apparent, however, that many of the new states had no coastline and hence had no lands within the ebb and flow of the tide. If the equal footing doctrine was to have meaning in those inland states, something had to be done to the theretofore restrictive delineation of the trust lands. Following the comparable expansion of admiralty jurisdiction in The Genessee Chief, the Supreme Court expanded the definition of the trust to include all navigable freshwaters. See, e.g., McGilvra v. Ross, 215 U.S. 70, 30 S. Ct. 27, 54 L.Ed. 95 (1909); Shively v. Bowlby, 152 U.S. 1, 14 S. Ct. 548, 38 L.Ed. 331 (1894), and more recently Montana v. United States, 450 U.S. 544, 551, 101 S. Ct. 1245, 67 L.Ed.2d 493, 501 (1981) and Utah v. United States, 403 U.S. 9, 91 S. Ct. 1775, 29 L.Ed.2d 279 (1971). The question posed by these and many like cases is whether the advent of the navigable waters test is, on the one hand, a complete redefinition of the geographical scope of the trust, or, on the other hand, a mere addition to the tidelands/tidewaters trust applicable only in the case of non-tidally influenced freshwaters. Put another way, did the navigable waters test have the effect of removing from the Mississippi public trust properties once within it?

 It is our view that, as a matter of federal law, the United States granted to this State in 1817 all lands subject to the ebb and flow of ...


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