84 Miss. 737 | Miss. | 1904
delivered the opinion of the court.
On the 12th day of February, 1885, Peter W. Ott and wife, ancestors of appellees, leased to Simon Gumbel and others, assignors of appellant, certain property, being a lot at Point Cadet, in the town of Biloxi, fronting on Mississippi Sound or Gulf of Mexico, therein described. Said lease contains the following cause: “Said lessors also demise, lease, and to farm let unto said lessees, but also without power to sublet unless by consent of lessors first had, all the exclusive right of the said lessors to the water front on said sound or gulf of all lands owned by said lessors, extending from eastern boundary of said Lugenbuhl property around to the staked point known as Little Cove. Said point being indicated by a stake at the south entrance or beginning of a place called Little Bay in Biloxi Bay: said water front herein demised in its extension into said gulf and with all its privileges and appurtenances of fishing and bedding oysters to be extensive with the rights of said lessors under the laws governing the .same” — the lease of said land, water front, and privileges being for twenty-five years from date. Subsequently, at the March term, 1885, the board of supervisors of the county of Harrison, in which the rented property was situate, adopted an ordinance by which the said Gumbel et al., lessees in the contract from Ott, were granted for a term of twenty-five years the “right to bank, plant, and cultivate oysters in the Mississippi Sound within the limits of the entire front of the land formerly owned by Peter W. Ott and Mary E. Ott, his wife, and by them rented to the above-named parties, with all the water privileges as described in said lease;” and the water in which the right to plant and cultivate oysters was granted is fully described in the ordinance of the board of supervisors as being in front of the lands mentioned in the lease from Ott, and its extent and boundaries clearly defined by channel and county lines. Said ordinance provides further that the said grantees’ “right of property in the oysters so bedded, banked, and planted is hereby established within said limits in
“The above described land is hereby granted in fee simple with the following reservations and none other:
“First — Any and all littoral and aquatic rights and privileges, appurtenant and attached to said land or vested in the grantors as the owners of said lands are hereby expressly reserved so far as said rights' and privileges lie to the eastward and northward
“Beginning at the northwest corner of lot number 2, of square number 5A, according to the plan of said Summerville, so recorded as aforesaid, and running thence due east 230 feet to the beginning of said line; thence angling right 70 degrees and 23 minutes, bearing south 19 degrees and 37 minutes into the water and toward Deer Island.
“It being the purpose of this instrument to grant to the said Barataría Canning Company all such littoral and aquatic rights and privileges appurtenant and attached to said land or vested in the said grantors as owners of said land as may be exercised wholly to the westward and southward of the said line so established, and this grant is made irrespective of what the actual conformation of the shore line may be or become; and it is expressly understood that the said Barataría Canning Company, by its aceptance of the grant evidenced by this instrument, shall for itself, its legal representatives, and its successors in interest disclaim any right or claim to the exercise of any littoral and aquatic rights and privileges appurtenant and attached to said land or vested in the grantors as the owners of the said land to the northward and eastward of said line so established, no matter what the actual conformation of the shore line may be or shall be or become or be made, and the respective concessions and disclaimer here' made by the parties hereto each in favor of the other shall be held and understood as reciprocal and as furnishing mutual consideration each for the other.”
After the execution and delivery of this deed, the appellees, claiming that, by virtue of the stipulations and reservations contained therein, they had acquired the right to gather oysters in all the waters lying to the east and north of the line described in said deed, entered upon the said waters, sent schooners fully equipped with crews and necessary dredges and tongs used in
Several questions are presented by this record which must
The first inquiry arising is what rights the assignors of appellant acquired by their lease from the Otts in February, 1885. In addition to the lot of land demised by the contract, the lessee acquired "all the exclusive rights of said lessors to the water front on said sound or gulf of all lands owned by said lessors,” and, further, "said water front herein demised in its extension into said gulf, with all its privileges and appurtenances of fishing and bedding oysters, to be extensive with the rights of said lessors under the law governing the same.” It will be noted that this lease was executed on the 12th day of February, 1885, and the query naturally suggested is what right owners of land fronting on the Mississippi Sound had at this date in the land under the water beyond low water mark. The lessees in this case were granted the privilege of fishing and bedding oysters coextensive with the rights of said lessors, whatever those rights may have been, however great or small their extent. In the absence of express statute, the general rule that the owners of land bounded by the sea possess no exclusive right to the soil under the water beyond high water mark is so firmly established, so universally recognized, as to be almost axiomatic. 3 Kent’s Com., sec. 427. At the date when this lease was executed the abutting landowner possessed simply the right which was enjoyed by the public generally of fishing in the waters in front of his property and of gathering oysters from natural beds, but this ownership carried with it no exclusive right to the water itself or to the fish and oysters therein. The waters were public domain, free to the common use of all citizens of the state. The abutting landowner was vested with certain rights of use and control over his water front. These rights consisted chiefly of the privilege of
This brings us, then, to the consideration of the relations and attitude occupied by the parties, respectively, prior to and at the date of the execution of the deed of October 14, 1903. They were as follows: The Otts, as lessors, were entitled to the annual rent for the demised premises, as stipulated in their indenture of lease. They had the right to use the beach and water front of their property in any manner which would not interfere with the business of their lessee carried on upon the leased premises. The Barataría Canning Company was entitled to the possession of the rented lot upon which its canning factory was located, to the use of the water front of the other portion of the property owned by its lessors which fronted on the gulf or sound. This much it acquired as lessee of the Otts. It was also vested with the absolute ownership, by virtue of the grant of the 'board of supervisors, of all the oysters which it had banked, planted, and cultivated in the waters described in the ordinance. This it acquired, not by reason of the lease from the Otts, for the Otts themselves possessed no such right of ownership at the date of their lease. The exclusive privilege of
Wherefore it follows that the action of the court in dissolving the injunction was erroneous, and the decree is reversed, and the injunction reinstated and made perpetual, and the cause remanded.