State Ex Rel. Rice v. Stewart , 184 Miss. 202 ( 1938 )

ON SUGGESTION OF ERROR. Appellees contend that the court was in error in holding that the only question decided in the case of Gully, State Tax Collector, v. Stewart et al., 178 Miss. 758, 174 So. 559, was the want of authority on the part of the State Tax Collector to bring the suit; and they insist that, since the general demurrer sustained by the Chancellor in that case went to the question of whether the bill of complaint filed by the State Tax Collector stated a cause of action on the merits, the affirmance of the decree on appeal is res adjudicata of the suit now brought by the State on relation of its Attorney General for the same cause of action. It is true that the Chancellor based his decree of dismissal of the former suit both on the ground of the alleged insufficiency of the bill of complaint to state a case for relief on the merits and on the want of authority of the State Tax Collector to sue; nevertheless, the court confined its decision on appeal, as it may do in any case in affirming a decree of dismissal, to the single proposition that the complainant in the court below was without authority to invoke the jurisdiction of the court to try the alleged cause of action. The question of whether the bill of complaint was sufficient to state a case on the merits was neither considered nor discussed in the opinion rendered therein.

Neither do we think that the opinion heretofore rendered in the case at bar is an advisory one to the extent of holding the plea of res adjudicata not well taken. Whether such plea was properly before the Chancellor or not at the time he sustained the demurrers and dismissed the bill in this cause, it is shown by his opinion in the record that his action in entering the decree of dismissal was based both on the ground that the Gully Case, supra, was res adjudicata and that the bill of complaint stated no cause of action on the merits. Appellees argued in their original brief that the decree should be affirmed on either or both of the grounds assigned, and hence no error was committed when we took cognizance of the holding of the court below in regard to the plea of res adjudicata. The case was being reversed and remanded for a trial on the merits, and the decree sustaining the plea of res adjudicata was in our opinion an error of law appearing of record, which, if adhered to on a rehearing under the assumption that the question was still an open one, would prevent a trial on the merits.

It is also urged on suggestion of error that the former decision and opinion in this case overrules the cases of Morgan et al. v. Reading, 3 Smedes M. 366; The Steamboat Magnolia v. Marshall, 39 Miss. 109; Archer v. Levee Commissioners, 158 Miss. 57,130 So. 55; Money et al. v. Wood, 152 Miss. 17, 118 So. 357, and Rouse v. Saucier's Heirs, 166 Miss. 704, 146 So. 291; and abrogates the rule of property established under the rule announced in these cases. On the contrary, the opinion in the case at bar reviews the three former decisions, whereby it is held that the riparian owner has title to the bed of a fresh water stream to the center thereof, and recognizes the rule of property resulting therefrom; and also cites the two latter decisions as authority for holding that a different rule prevails as to the bed of the shores, arms and inlets of the sea below high-water mark, wherever the tide ebbs and flows, the title to which is vested in the state as trustee for the people, subject to the paramount right of the United States to control commerce and navigation, with the consequent right on the part of the state "to use or dispose of any portion thereof" as specifically held in Money et al. v. Wood, supra, 118 So. 359, when that can be done without impairment of the interest of the public in the waters, and not inconsistent with Section 81 of our State Constitution; and without the right to unreasonably interfere with the riparian or littoral proprietor's right of access to and from such waters and the reasonable use thereof as well as of the land subject to tide-water as a necessary incident to the reasonable enjoyment of his adjacent land, nor with the right of free fishing by the public generally. Neither riparian nor littoral rights are disturbed by the decision in the case at Bar, as such rights are defined under the authorities hereinbefore referred to, and as expressly declared on behalf of owners of land abutting on tide-waters in the opinion delivered by Judge Truly in the case of Barataria Canning Company v. Ott, 84 Miss. 737, 37 So. 121.

Responding to the suggestion that there is no reasonable basis for a distinction between the rights of a riparian owner on all fresh water streams and those of an abutting owner on the inland tide-water streams and arms of the sea, when the same is made without regard to navigability in fact or capacity for navigation as was done in the cases hereinbefore referred to, it is sufficient to say that since the distinction had already been made and a rule of property established as to the title of riparian owners to the center of fresh water streams, even though navigable, we have no choice except to recognize such distinction in the case at bar, even though we might be of the opinion, if the case had been one of first impression, that navigability in fact or capacity for navigation would furnish a more reasonable basis for determining the title of the state and of the abutting owner in the soil below highwater mark and underneath fresh waters as well as tide-waters.

The case at bar involves only the title to the soil below high-water mark in the bed of the shores, arms and inlets of the sea, where the tide ebbs and flows, and it was expressly held in the case of Money et al. v. Wood, supra, that: "When the several states were recognized as free and independent governments by the English nation after the Revolutionary War, the ownership of, and dominion and sovereignty over, lands covered by tide-waters, and the fresh waters of the Great Lakes, within the limits of the several states, belonged to the respective states within which they were found, with the consequent right to use or dispose of any portion thereof, when that could be done without impairment of the interest of the public in the waters, subject to the right of Congress to control their navigation for the regulation of commerce;" and, further, that these rights were subject to Section 81 of the Constitution of this State. Again, the court held in the case of Rouse v. Saucier's Heirs, supra, that: "Upon the admission of the state into the Union, there became invested in the state, as trustee, the title to all of the land under tidewater, including the spaces between ordinary high and low water marks . . ."

The principles of law announced and the conclusion reached in the former opinion are fully sustained by the foregoing cases and the other authorities therein cited.

Suggestion of error overruled.