BAYVIEW LAND, LTD., A Nevada Corporation, and Imperial Palace of Mississippi, Inc., A Nevada Corporation; Treasure Bay LLC, June S. Mladinich and Mladinich Family Limited Partnership
v.
STATE of Mississippi by and through Eric CLARK in his Official Capacity as Secretary of State as Trustee of Public Tidelands Trust; Tal Flurry, Individually and in his Official Capacity as Tax Assessor of Harrison County, Mississippi; David V. Larosa, Sr., in his Official Capacity as Tax Collector of Harrison County, Mississippi; The Board of Supervisors of Harrison County, Mississippi in their Official Capacity; City of Biloxi, Mississippi, and The Biloxi Municipal Separate School District.
Supreme Court of Mississippi.
*967 Britt R. Singletary, Jackson, Tina Rose Singletary, Samuel L. Begley, Dean Holleman, *968 Gulfport, Michael B. Holleman, W. Joel Blass, attorneys for appellants.
James Lawton Robertson, Jackson, Office of Attorney General by Nancy Morse Parkes, Karen J. Young, Joseph R. Meadows, Gulfport, Gina Bardwell Tompkins, Ronald G. Peresich, Biloxi, attorneys for appellees.
EN BANC.
CARLSON, Justice, for the Court.
¶ 1. This case is best described as a land ownership and boundary dispute between the State of Mississippi and Bayview Land, Ltd., and Imperial Palace of Mississippi, Inc., concerning land upon which the Imperial Palace casino had built a parking garage and a hotel, although tax questions between the State of Mississippi and all of the Appellants are also at issue. The casino had obtained various federal, state, county and city permits to build the hotel and garage before this dispute arose. The case centers around questions of ownership of the land on which the hotel and garage are located. The land, which borders Biloxi Back Bay near the Mississippi Gulf Coast, and which the State asserts is a part of the public trust tidelands, had been extended seaward over many years, undisputedly changing the shoreline. The portion of additional land consists of 3.05 acres of what are known as artificial accretions extending into the water it borders. Artificial accretions occur in various ways, such as from an accumulation of oyster shells, or "wharfing out." Bayview and Imperial Palace argue that such accreted land vests in the State only if the State meets its statutory burden to prove (1) the accretions were not made as statutorily permitted consistent with the Mississippi Constitution and (2) for a higher public purpose a burden the appellants argue the State did not meet. The State argues that the land had been extended seaward by these accretions (the shoreline has undisputedly changed over many years) and that the portion of the land created by artificial accretions, as well as the accompanying littoral rights, should be vested in the State. After a lengthy trial, the chancellor agreed with the State. For the reasons stated, we reverse the final judgment entered by the Chancery Court for the Second Judicial District of Harrison County, and remand this case to the chancellor with directions to enter an appropriate judgment after conducting further proceedings consistent with this opinion.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶ 2. The land in question borders the Back Bay of Biloxi, a body of water connected to the Gulf of Mexico. The Mississippi Sound is directly below Mississippi's southern boundary of beaches and shoreline, and includes filled tidelands or fastlands, being the part of the land that is covered with water and uncovered daily as it lies between high and low tides. Black's Law Dictionary 1482 (6th ed.1990). This is to be distinguished from what are known as submerged lands, which remain under water. The portion of the Imperial Palace of Mississippi (IPM) parcel in question bordering the water on the Biloxi Back Bay is approximately 3.05 acres of land created by artificial accretions which comprise the extension of land into the water. The term accretion is "usually applied to the gradual and imperceptible accumulation of land by natural causes, as out of the sea or a river." Id. at 20. The high tide mark can be changed naturally through accretions or through reliction, when the land is uncovered through a gradual subsidence of water. However, accretions can also be artificial or man-made, for example, through the accumulation of oyster shells over time, or what is known as *969 "wharfing out" into the water, which is establishing or affixing to the land a permanent structure to some point within a navigable body of water. Id. at 1595. IPM facilities on the disputed property include a 32-story hotel and a 12-story, 1300-car parking garage. The disputed land is bordered on the south by Bayview Avenue (which runs in a generally east and west direction), and on the west by Caillavet Street (which runs in a generally north and south direction). Interstate 110 (which connects Interstate I-10, running generally in an east-west direction, with U.S. Highway 90, also running generally in an east-west direction) is located just west of (and parallel with) Caillavet Street. The land is bound on the north and east by a steel bulkhead on the Back Bay. This appeal comes to the Court after the consolidation of three chancery court actions with separate cause numbers, all of which had been filed in the Chancery Court for the Second Judicial District of Harrison County. Bayview Land, Ltd. (Bayview), and Imperial Palace of Mississippi, Inc. (IPM),[1] filed suit in cause number C2402-98-00389 on April 3, 1998, naming as the defendant the State of Mississippi via Secretary of State Eric Clark in his official capacity. Bayview owns land in fee simple in Harrison County and, through a lease agreement, IPM operates a casino and hotel on that property. These two Nevada corporations brought suit to resolve the dispute of the location of the boundary on the Bayview land and for declaratory, injunctive, and equitable relief. The State filed its answer and counterclaim, stating that pursuant to the Public Trust Tidelands Act, Miss.Code Ann. §§ 29-15-1, et seq. (Rev.2005), the accreted land in question belonged to the State of Mississippi and was held in trust, with the Secretary of State as the trustee. The owner of the 3.05-acre accreted land would of course also be the owner of the littoral rights of the land.[2]
¶ 3. IPM filed suit in another case under cause number C2402-01-00251 on March 21, 2001, naming as defendants Tal Flurry, Harrison County Tax Assessor, David V. Larosa, Sr., Harrison County Tax Collector; and the Harrison County Board of Supervisors. IPM claimed that it had paid, or caused to be paid through its lessor, Bayview, taxes levied on its land. The crux of the complaint was that IPM had been subject to double taxation and questionable tax valuation methods and that therefore IPM's constitutional rights were violated, grounding its cause of action in violations of due process, equal protection of the laws, and civil rights. The answer filed denied any of these claims and asserted a counter-complaint that the State owned the lands because of the Public Trust Tidelands Act. On June 4, 2001, Treasure Bay, LLC[3] filed suit in cause number C2401-01-00522, naming as defendants *970 Flurry and Larosa, in their official capacities as Harrison County Tax Assessor and Tax Collector, respectively, and the Harrison County Board of Supervisors. Treasure Bay's complaint prayed for injunctive and other relief due to taxes assessed to Treasure Bay as the lessee of a parcel of land. Treasure Bay's complaint was almost identical to IPM's complaint filed in cause number C2402-01-00251, and stated that Treasure Bay had paid taxes, or caused the taxes to be paid, on its land through its lessor, June S. Mladinich.
¶ 4. On a joint motion of the parties in the two tax cases, the trial court entered an agreed order on August 1, 2001, consolidating the two cases. On August 14, 2001, the Secretary of State filed a motion for leave to intervene as a party in the IPM tax case under Miss. R. Civ. P. 24, and that motion was granted. The Secretary of State then filed its Answer and Complaint in Intervention on September 4, 2001. After holding a hearing, the trial court granted the motion on September 10, 2001, and ordered that all three cases be consolidated. That same day, the City of Biloxi also filed its answer to the complaint in intervention. The City of Biloxi and the Biloxi Public School District joined in the State's Expert Witness Disclosure on October 1, 2001, as parties in interest in support of the Secretary of State as plaintiff in intervention. On November 14, 2001, Mladinich filed her answer to the Secretary of State's Complaint in Intervention and cross-claim against Treasure Bay, her lessee, praying for indemnification from any taxes assessed against Treasure Bay.[4] On December 3, 2001, this Court appointed Judge Donald Patterson to be the Special Judge to preside over the case. On December 31, 2001, Chancellor Patterson ordered that the trial be bifurcated.
¶ 5. On April 22, 2002, the chancellor entered a very thorough ten-page opinion ("Decision of the Court"), in which the chancellor acknowledged that the ultimate issue at trial would be "the location on the ground of the boundary line between land belonging to IPM (Uplands) and lands held by the State as part of the Public Tidelands Trust (Tidelands)," and that this issue could not be litigated and determined "until the court resolve[d] the threshold controversy of the significance, if any, of the location of the boundary of the Public Trust, as shown on the Secretary's final certified map." In the end, the trial court concluded that at the trial, the Secretary of State would have the burden of proving by a preponderance of the evidence "(1) the exact location on the ground of the boundary line delineated on the final certified map and (2) that some exact portion of [IPM's] property violates the public trust." En route to this decision, the chancellor meticulously analyzed Miss.Code Ann. §§ 29-15-1, et seq. (more specifically, section 29-15-7), and this Court's decision in Secretary of State v. Wiesenberg,
¶ 6. The twenty-five day trial began August 20, 2002, and concluded on November 18, 2002 (with obvious extended recesses).[6] The trial court heard testimony from twenty-one witnesses and received more than four hundred exhibits. At the conclusion of this lengthy trial, the chancellor understandably took this matter under advisement, and on April 9, 2004, the chancellor entered his Findings of Fact and Conclusions of Law. On June 22, 2004, the trial court entered its final judgment consistent with its findings of fact and conclusions of law, denying along the way, motions to reconsider. The practical effect of this judgment was that the State was vested with title to the disputed land. On July 9, 2004, the chancellor entered an amendment to the judgment to correct a clerical error. This appeal ensued.
DISCUSSION
¶ 7. Mladinich, the Mladinich Limited Family Partnership, Bayview, IPM, and Treasure Bay, all timely appealed from the final judgment entered by the chancellor. Bayview and IPM appeal the trial court's findings that title to the accretions and littoral rights were confirmed as belonging to the State, and that the 3.05 acres of the artificial accretion land cut off all littoral rights to Bayview and IPM, whose property originally bordered the Back Bay of Biloxi. Bayview and IPM argue that the State failed in meeting its burden of proving that any accretions were not already vested in the uplands owner by common or statutory law of the public trust. The State argues that the findings of the chancery court are well-supported by substantial credible evidence and that the chancery court correctly found that the fastlands are held by the State as part of the Public Trust Tidelands. Flurry, Larosa, the Board of Supervisors of Harrison County, the City of Biloxi, and the Biloxi Municipal Separate School District all joined the Secretary of State's appellate brief which was submitted to this Court. The issues raised today include constitutional questions of takings of the littoral rights, tax questions, and interpretation of the 1989 Public Trust Tidelands Act. The State argues no questions of first impression exist, but the various appellants argue that the questions of first impression include what constitutes reasonable use of riparian/littoral rights, how those rights are cut off by accretions, and how the 1989 Public Trust Tidelands Act should be construed with regard to a tidelands boundary dispute in developed areas under the Act. We will restate and reorder these various issues in today's discussion.
¶ 8. When we are called upon to review a chancellor's opinion after a plenary trial on the merits of a case, our standard of review is well established. This *972 Court will not reverse the chancellor's findings of fact "unless they are manifestly wrong, not supported by substantial credible evidence, or an erroneous legal standard was applied." Columbia Land Dev., LLC v. Sec'y of State,
I. WHETHER ARTIFICIAL ACCRETIONS RESULTING FROM CERTAIN SPECIFIC CAUSES ARE VESTED IN THE UPLANDS OWNER
¶ 9. Bayview and IPM assert that the State failed to meet its burden of proving by a preponderance of the evidence that any accretions were not already vested in the uplands owner by common or statutory law. The State, as appellee, asserts that: (1) the findings of the chancery court are well-supported by substantial credible evidence; and, (2) the chancery court correctly found that the fastlands are held by the State as part of the Public Trust Tidelands.
A. The origin of Mississippi's tidelands in trust
¶ 10. Before beginning our analysis, we provide an overview of the history of this body of law. Before Mississippi entered statehood in 1817, title to the tidelands and navigable waters within its boundaries had been held by the United States. Wiesenberg,
¶ 11. Actually, two great public trusts were created and conveyed to each new state, sixteenth section school lands and "the tidelands and navigable waters of the state together with the beds and lands underneath same." Cinque Bambini P'ship v. State,
¶ 12. Naturally, and as has been recognized by this Court, the line where the land actually borders the water is "wildly meandering" and constantly moving and changing. Id. at 515. Thus, determining where the privately-owned lands ended and where the state-owned tidelands began was seemingly impossible. At the time of Cinque Bambini, we recognized that the mean high water mark was found as a more constant boundary of necessity, and as a line that is ascertainable through established and accepted scientific methods. Id. "That mark is not a line observable on the ground, although it may be plotted by surveyors trained in the field. When plotted we confront the geographical reality of a continuous, unbroken line wildly meandering, to be sure, but reaching from Alabama on the east in uninterrupted sequence to Louisiana on the west." Id. at 515. The line separating the water from the land, which also separates private land from that land held in trust, changes over time in part due to accretions to the land, which can be natural deposits or artificial fill. Accretions include the gradual deposits of alluvial soil upon the margin of the water (gradual recession of the water can, of course, also change the line), or deposits of silt or sand over tidewaters adjacent to the shoreline due to artificial causes. Harrison County v. Guice,
¶ 13. In Guice, this Court had to determine what the legal effect of these accretions would be. At the time of Guice, we recognized that the rule was generally that the uplands owner is entitled to the title to accretions to his land, protecting the riparian or littoral owner's access to the water. Id. We found it irrelevant whether the accretions were the result of natural causes or artificial ones, attempting to ensure that a landowner's littoral rights would not be cut off. Id. "This reason is just as valid when the area adjacent to the upland owner is filled in or pumped up by acts of strangers to the upland title, as it is when the gradual deposit of alluvial soil raises the land adjacent to the upland owner. In either event, the upland owner should be given title in fee to the new land so that he may have continued access to the water." Id. at 842-43. This rule was eventually modified when we overruled Guice in part in Miss. State Highway Comm'n v. Gilich,
¶ 14. In its enactment of the Public Trust Tidelands Act, the legislature made unquestionably clear its intent and purpose. Section 29-15-3 provides:
Declaration of public policy and purpose
(1) It is declared to be the public policy of this state to favor the preservation of the natural state of the public trust tidelands and their ecosystems and to prevent the despoliation and destruction of them, except where a specific alteration of specific public trust tidelands would serve a higher public interest in compliance with the public purposes of the public trust in which such tidelands are held.
(2) It is hereby declared to be a higher public purpose of this state and the public tidelands trust to resolve the uncertainty and disputes which have arisen as to the location of the boundary between the state's public trust tidelands and the upland property and to confirm the mean high water boundary line as determined by the Mississippi Supreme Court, the laws of this state and this chapter.
In Wiesenberg, we set out legislative findings of fact relating to the enactment of the Public Trust Tidelands Act, as provided in the Editor's Note Laws, 1989, ch. 495, § 1, effective from and after March 31, 1989:
SECTION 1. The Legislature finds that certainty and stability of the land titles of riparian and littoral property owners along the banks of the navigable rivers and waterways on the borders and in the interior of the state and along the shores of the tidally affected waters of the state are essential to the economic welfare of the state and to the peace, tranquility and financial security of the many thousands of citizens who own such lands; that a dispute has developed with respect to such lands bordering on tidally affected waters, calling into question titles and legal issues believed secure and determined from the date of statehood; that this dispute has cast a doubt and cloud over the titles to all littoral lands and all riparian lands along the rivers and shorelines of the coastal area to such a degree that land sales are being prevented, business and home purchasing has been made difficult or impossible, industrial financing based on such titles has become unavailable, and homeowners and other owners have been rendered apprehensive as to their security in their ownership. Economic growth and development in the coastal counties are at a virtual standstill, creating a constantly increasing and incalculable loss of dollars to the area as well as the loss of countless new jobs for the average citizens of this state. The Legislature finds that this dispute has already caused extensive *975 harm, is intolerable, and immediate resolution is required and would serve the higher public purpose, in order that public trust tidelands and submerged lands may be utilized through their normal interface with the fast lands in furtherance of all the usual purposes of the trust.
The Legislature recognizes that it serves the interests of all the citizens of the state as well as the interests of each individual area and that when controversies and problems arise between divergent interests it becomes the duty and responsibility of the Legislature to balance these interests and reach equitable solutions which will create the least amount of harm to the individual citizens and the state as a whole. The Legislature finds, in accordance with justice and sound policy, that resolving the problems in the manner herein set out would create far less harm and be of greater benefit to the state and its citizens in terms of preventing economic loss, loss of jobs, loss of development, use and enjoyment of the tidelands and submerged lands, loss of industry and loss of revenue to the state than any benefits which would be derived from any attempt to completely rectify unregulated wetlands use which has occurred in the past, that the amount of damage, harm or loss that has occurred to the lands held in public trust since statehood is negligible compared to the benefit of resolving the problem, that the cost of any other solution is far in excess of the amount of public gain.
B. An overview of the Public Trust Tidelands Act
¶ 15. An overview of the Public Trust Tidelands Act is equally important as we consider today's case.[10] Miss.Code Ann. § 29-15-7 and this Court's decision in Wiesenberg,
¶ 16. On the other hand, we will generally discuss the mapping procedure here, focusing on section 29-15-7 and Wiesenberg. The Secretary of State is to file a preliminary map depicting "the boundary as the current mean high water line where shoreline is undeveloped and in developed areas or where there have been encroachments, such maps shall depict the boundary as the determinable mean high water line nearest the effective date of the Coastal Wetlands Protection Act." Miss.Code Ann. § 29-15-7(1); Wiesenberg,
¶ 17. Turning to today's case, and keeping in mind the facts and circumstances peculiar to this particular case, we emphasize that how the mean high water line is to be determined for the preliminary map depends on whether shorelines of the mapped areas are developed or undeveloped. In developed lands, as in today's case, the preliminary map "shall depict the boundary as the determinable mean high water line nearest the effective date of the Coastal Wetlands Protection Act,"[13] which *977 is July 1, 1973. Miss.Code Ann. § 29-15-7(1). The Secretary of State, in exercising discretion vested under the statute, may revise the preliminary map based on comments and additional documentation received during the statutory 60-day period, and prepare the final map accordingly. "Any comments indicating the presence of any unauthorized artificial filling on developed properties prior to July 1, 1973, should be reflected on the final map." Wiesenberg,
¶ 18. Once the certified final map is filed, the Secretary of State is to determine which landowners are in violation of the public trust, meaning they occupy land that, because of the trust boundary, is actually the property of the State, and then notify those landowners by certified mail. Miss.Code Ann. § 29-15-7(4). Pursuant to the Act, after the notice is received by the landowners, the affected landowners are allowed a six-month period in which "to negotiate and settle differences with the Secretary of State" arising from the final map, also allowing for any extensions granted by the Secretary of State, in the exercise of discretion. Id. The notice delivered by certified mail is to include an explanation of the procedures available to the affected landowners to resolve these disputes. Id. § 29-15-7(5). See also id. §§ 11-17-1, et seq. (Rev.2004). The Secretary of State and the affected landowner may execute a boundary determination in a written agreement which would be final and binding to its parties after it is recorded in the proper chancery clerk's office where the property is located (in either Hancock, Harrison or Jackson Counties). Id. § 29-15-7(4). The affected landowners who are unable to resolve their disputes via this statutory avenue may then seek judicial relief by filing suit within three years following receipt of the notice described above. Id. §§ 29-15-7(5), (6). If no action is taken by any adversely affected landowner within that time period, the boundary on the certified map is to become final. Id. § 29-15-7(6). The Act clearly provides that "[i]n any such action, the state shall have the burden of proof by a preponderance of evidence that any such land is subject to the trust." Id. § 29-15-7(5). The State carries this statutorily required burden of proof regardless of whether the judicial proceedings are commenced by the State or by the individual landowner. This Court has stated, "[a]fter the preliminary map is drawn using the mean high water line in developed areas as of July 1, 1973, the burden of proof is on the Secretary of State to show that any artificial accretion occurring prior to July 1, 1973, was not done pursuant to a constitutional legislative enactment and for a higher public purpose." Wiesenberg,
C. How the boundary was determined in this case
¶ 19. We now turn to the facts of today's case. The State filed its preliminary map in September of 1994. On November 14, 1994, Bayview and IPM submitted their comments and objections to the preliminary map. The State filed its final *978 certified Map of Public Trust Tidelands on December 15, 1994. This final map had no changes incorporated into it based on the comments and objections that Bayview and IPM had submitted, but was instead identical to the preliminary map with regard to the Bayview property. On April 4, 1995, the Secretary of State sent out the notices required under the Act to three of IPM's predecessors in title. On June 7, 1995, Bayview and IPM filed their Notice of Protest and Dispute. Bayview and IPM filed their complaint on April 3, 1998, within the statutorily allowed three-year limitations period.
¶ 20. The trial court heard testimony from various witnesses, including engineers from Thompson Engineering, geologists from the Mississippi Office of Geology, experts in geography, experts in coastal surveying, as well as archeologists and land surveyors. The trial court also received into evidence various documents prepared by the experts. Based on the evidence presented at trial, the chancellor found that relevant, credible evidence appeared in the record to show where the last natural shoreline position existed. Specifically, the chancellor found:
Based upon the totality of the credible, relevant evidence in this record, the Court finds by a preponderance of the evidence that (1) the 1851 coastal survey map (B-1) depicts the natural mean high water line, circa 1851, at the IPM site; (2) there is no credible evidence that the LNSP (Last Natural Shoreline Position) at the IPM site has been masked or placed beyond reasonable discovery by hurricanes or dredging; (3) that between the 1880's and early 1900's there were massive unnatural, manmade alterations of the natural shoreline at the IPM site; (4) that such manmade alterations consisted of oyster shells and fill placed by IPM's canning company predecessors in interest; (5) that the highest probability LNSP at the IPM site is the TELNSP (Thompson Engineering Last Natural Shoreline [Meander] Position) as shown on Exhibit S-26; (6) that the TELNSP at the IPM site is credibly surveyed and depicted by reference to existing and known landmarks and the land lying north and east of the TELNSP is credibly surveyed, depicted, described and quantified. (Exhibits S161 and S179).
The chancellor thus found that the 1851 natural mean high water line was reliably ascertainable; that the last natural shoreline position was not beyond reasonable discovery; and, that manmade, artificial accretions occurred at the IPM site between the 1880's and early 1900's which changed the shoreline. The chancellor concluded:
Having found by a preponderance of the evidence that the line which corresponds with the mean high water line at its last natural position at the IPM site at the moment of human intervention is the TELNSP and that all land lying bayward, i.e. north and east of said TELNSP is the result of artificial filling it follows as a matter of law that the boundary line separating State owned public trust tidelands and uplands owned by IPM is the TELNSP as surveyed and placed on the ground by [professional land surveyor] Michael Cassady. Title to all land lying north and east of said boundary line is confirmed in the State. Title to all lands claimed by IPM lying south and west of said line is confirmed in IPM.
D. The arguments on appeal
¶ 21. Exactly what the State must prove (by a preponderance of the evidence) is "that any artificial accretion occurring prior to July 1, 1973, was not done pursuant *979 to a constitutional legislative enactment and for a higher public purpose." Wiesenberg,
¶ 22. Bayview and IPM first point out that the State holds its tidelands and submerged lands in trust for two beneficiaries, members of the general public and private landowners with littoral and riparian rights under statute and common law. Miss.Code Ann. § 29-15-5. Next, Bayview and IPM, conceding that its land was in fact extended bayward by pre-1973 artificial accretions, contend now that the Secretary of State simply did not meet at trial the burden it carried, in that the State never showed that the artificial accretions were not done pursuant to a constitutional legislative enactment and for a higher public purpose. In fact, Bayview and IPM argue that the evidence the State presented shows that the accretions were consistent with the common law and the statutory law of the public trust. This Court has held the many public purposes of the trust to include "navigation and transportation, commerce, fishing, bathing, swimming, and other recreational activities, development of mineral resources, environmental protection and preservation, the enhancement of aquatic, avarian and marine life, sea agriculture and no doubt others." Cinque Bambini,
¶ 23. The State, on the other hand, argues that land that was once in trust, beginning upon Mississippi's admission to the Union, simply cannot be taken away from the trust. The State directs our attention to our holding that "once the state possesses public trust lands it is deemed to possess such property forever." Gilich,
¶ 24. The history of the IPM parcel of land is a fascinating one. In the early twentieth century, the Biloxi Canning Company, owned by a Croatian immigrant, Bernard Taltavull, occupied the land.[15] Mountains of oyster shells began occupying the land bordering the water of the Back Bay. Evidence presented at trial strongly infers that the enormous amount of shells played a vital role in eventually changing the shoreline. The State went to great lengths through the evidence it presented at trial (1) to show that land composed of artificial accretions lay between the natural land and the shore; and, (2) to determine the last natural shoreline position between the natural land and this accreted land bordering the water. However, the State failed to meet its burden of proving by a preponderance of the credible evidence that the accretions were not done pursuant to a constitutional legislative enactment and for a higher public purpose. The State did present substantial credible evidence that went to prove the location of the last natural shoreline, but that substantial credible evidence did not show that the accretions to the IPM land were not done pursuant to a constitutional legislative enactment or for a higher public purpose. Not unlike part of the Secretary of State's argument in Wiesenberg, the argument of the Secretary of State today depends on using something other than the July 1, 1973, mean high water line as the beginning boundary delineation point to prevail. Nowhere in the statute or in the applicable case law does the last natural shoreline position determine the rights of the State or the private landowner in such a dispute. The Secretary of State should have begun with a preliminary map based on the July 1, 1973, mean high water line. This he did not do. In Wiesenberg, the Secretary of State argued in part that the appropriate date to determine the boundary on the preliminary map was the date on which the property was developed. Today, the Secretary of State uses as his beginning point the date Mississippi entered the Union in 1817. Following the history of the land up to present day, the Secretary of State relies on a map from 1851 to be of great evidentiary value and notes that after the early 1880s, the shape of the land bordering the water began to change because of artificial accretions. His charge is to use the mean high water line nearest July 1, 1973. In doing so, if the Secretary of State is able to present a different water line revealing unlawful accretions, the Secretary may unquestionably *981 use this water line as opposed to the mean high water nearest July 1, 1973.
¶ 25. In settling other claims in similar boundary disputes, the Secretary admits to the agreed use of a 1954 seawall. Indeed the State points us to the time period when the land in question was being developed, beginning in the early 1880s. We have warned against doing so. "If the developed areas were to be surveyed as of the date of development, the cost would be enormous. In addition it would create more lawsuits to determine exactly what constitutes development, what precise time did this development occur, who did it and why, and was it somehow authorized. The more efficient method is to determine the tidelands boundaries as of one point in time, therefore making it applicable to everyone at the same time, in the same manner, and with all having a right to be heard." Wiesenberg,
¶ 26. We have stated that we do not interpret the tidelands legislation to be a donation in violation of Miss. Const. art. 4, § 95 (1890), "but rather as a unified attempt by the Legislature to resolve the discord existing between the State and area landowners," and one we have held to be constitutional. Wiesenberg,
¶ 27. We found in Wiesenberg that there was "`no substantial interference with the original purposes of the trust imposed upon the state in connection with [the lands in question], and the development as authorized by the statutes is consistent with the public trust.'" Id. at 993 (quoting Treuting v. Bridge & Park Comm'n of City of Biloxi,
¶ 28. Indeed, the totality of the record reveals that the artificial accretions (primarily oyster shells) constituted "a specific alteration of specific public trust tidelands" which "serve[d] a higher public interest in compliance with the public purposes of the public trust in which such tidelands are held." Miss.Code Ann. § 29-15-3(1). During the years of existence of the oyster industry on this Back Bay location, the State maintained a program jointly with the oyster canneries to replant the oyster shells on reefs in the trust waters. For example, Miss.Code, 1930, § 6881, provided, inter alia, that twenty-five percent of all oyster shells which were taken from the public reefs were declared to be the non-transferable property of the state and were to be delivered to the sea-food commission by stock-piling the shells at the place of business of the oyster dealer or factory. An oyster dealer's failure to comply with this statutory mandate was a misdemeanor subject to payment of a fine.
¶ 29. The State of Mississippi thus, not only acquiesced in, but mandated certain actions by the oyster industry resulting at least in large part to the artificial accretions which are the subject of today's litigation. Likewise a portion of these stockpiled oyster shells were used for replanting on reefs in the waters of the trust. Certainly this activity would not only be non-violative of our state constitution, but consistent with its provisions, and certainly would be consistent with our common law and legislative enactments. We recognized such higher public interests and purposes as fishing and the enhancement of aquatic, avarian and marine life and sea agriculture in Wiesenberg,
¶ 30. We now turn to the common law on accretions, which as discussed above, still applies to the Act. In Harrison County v. Guice,
¶ 31. As already noted, Guice was overruled in part by Miss. State Highway Comm'n v. Gilich,
¶ 32. IPM argues that Gilich's overruling of Guice applied only insofar as it implicated Section 95 of the Mississippi Constitution, and thus applied only to the State of Mississippi as a stranger to upland title, and Gilich overturned Guice only in part because the facts supporting Guice were not present in Gilich, i.e., Guice actually owned land south of the seawall that was covered by the county's actions, whereas Gilich did not. IPM emphasizes that the Gilich holding was a limited overruling of Guice because this Court stated that Guice was overruled "insofar as it applies the doctrine of artificial accretions so as to render lands once a part of the public trust, the property of private land owners by the action of the government in artificially recovering such lands." Gilich,
¶ 33. Presented with a substantial question of law in this case, we are to review the issues de novo. In reviewing an opinion issued after a trial on the merits held before a chancellor, we are to overturn the findings of the chancellor only when they are manifestly wrong or when an erroneous legal standard has been applied. Columbia Land Dev.,
II. WHETHER THE 1928 PUBLIC LAND PATENT TO TALTAVULL WAS VALID
¶ 34. The trial court held that the land patent from the State presumedly conveying the land in question to Taltavull, one of IPM's supposed predecessors in interest, was null and void for want of authority. Taltavull had owned the IPM parcel of land in 1928 where he operated his Biloxi Canning and Packing Company and Bay View Crushing Company businesses engaged in oyster canning and crushing and disposing of the byproduct shells. On July 11, 1928, the State of Mississippi issued a Public Land Patent to Taltavull, for consideration of $8.13. The biennial report of the Commissioner of State Lands dating from July 1, 1927, to June 30, 1929, shows the Taltavull Patent to be 6.5 acres of land for a consideration of $8.13, the statutory minimum of $1.25 per acre as fixed by law in the 1906 Mississippi Code. The trial court concluded that "[t]here is no credible evidence that the statutory minimum consideration paid by Taltavull for the patented land is so grossly inadequate that it constitutes a donation prohibited by Section 95 our State Constitution," and we agree.
¶ 35. However, the trial court went further and found there were no later conveyances from Taltavull divesting him, his heirs or devises, of title to the patented land and there were no conveyances vesting IPM or its predecessors in title with any interest in the land. Thus the trial court found the patent null and void for want of authority and violative of section 81 of our state constitution ("Legislature shall never authorize the permanent obstruction of any of the navigable waters of the State").
¶ 36. Bayview and IPM argue that Taltavull conveyed to Roy Rosalis and Virgilio DosSantos the upland and the part of the patent area filled. However, the trial court found that no part of the patented land was included in the conveyance. Bayview and IPM point out that the Chancery Court of Harrison County upheld a similar grant of such tidelands to the Beau Rivage, and argue that there is no material difference between the character of the tidelands, the grantee, or the public purposes of the trust that were served through the grant. In Money v. Wood,
When the project is completed, approximately twenty-seven percent of the land area of Deer Island will be devoted to public uses. Included in this classification is land for two 18-hole golf courses, two nine-hole courses, beaches, parks, green belts, waterways, schools, churches, marinas, and similar facilities. Another twenty percent of the island's surface will be allocated to such uses as street rights of way, utility easements, sewage treatment plants, water wells, and fire stations. The remaining fifty to fifty-three percent of the island will be devoted to residential, commercial and resort development. The completed project will offer 8,700 residential units for sale on the island. A fixed level bridge to the island will be built with a horizontal clearance of 125 feet and a vertical clearance of 50 feet. All of the some 280 vessels which make Biloxi their home port will be able to pass under this bridge.
* * * * * *
The cost of constructing the project is estimated to be some forty million dollars. The project will be financed by revenue bonds, secured by the sale of property on the island. Revenue from the island is expected to produce some forty million dollars.
Id.
¶ 37. In the end, this Court concluded in Treuting that this action by the State was an appropriate exercise of authority and consistent with the overall purposes of the public trust.
[B]ecause the overall purposes of the proposed development of Deer Island promote a large number of public interests and uses, the incidental private ownership of parts of the development is not inconsistent with the public trust in the submerged lands. In essence it is an effectual development and discharge of this trust.
* * * * * *
The proposed development of Deer Island will promote navigation and fishing, and will give some protection to the Biloxi port. Navigation will be assisted by deeper channels. Biloxi fisheries will be better protected from storms and dangerous weather. Necessary additional housing for the geographically restricted City of Biloxi will promote additional manufacturing, and assist in the industrial development of the area.
Id. at 634.
¶ 38. Distinguishing today's case from Treuting, the trial court explicitly found that Taltavull's operating his business on the land in question served no more of a public purpose than the attempted purchaser in Money. Because of this, the trial court found the Taltavull patent to be void for want of authority (of the land commissioner), meaning IPM could not claim to be a successor in interest by deed.
¶ 39. IPM and Bayview point out that certain exceptions to the Money rule exist. IPM also draws our attention to State v. Stockett,
¶ 40. In the end, we find of significant import the trial court's application of Money and Treuting to today's case. The chancellor found this case to be factually aligned with Money and distinguishable from Treuting; however, we find that the case sub judice is factually aligned with Treuting and distinguishable from Money. In Money, a private landowner, Wood, who had a home facing the Mississippi Sound on the beach at Biloxi, and who also had certain property on the west end of Deer Island, brought a suit to prevent private persons from developing property on the west end of Deer Island.
¶ 41. In today's case, Taltavull's 1928 public land patent from the State was at a time when his property (and the subject property in today's case) was being utilized, albeit by a private company, to promote the State's booming oyster industry. Taltavull and Biloxi Canning Company, in concert with the State, and indeed as required by statute, was storing oyster shells on its property subject to disposition at the direction of the State, with a portion of the shells being used, inter alia, for paving roads and replanting in the natural oyster reefs of the tidelands. See also 1926 Miss. Laws, ch. 293; 1928 Miss. Laws, § 6881; 1944 Miss. Laws, ch. 288; 1958 Miss. Laws, ch. 195. Thus, clearly, the facts of today's case are more aligned with the facts of Treuting, as opposed to Money. The 1928 public land patent from the State to Taltavull was not violative of section 81 of our state constitution. This public land patent was certainly wholly consistent with the public purposes of the public trust tidelands. We thus find that the chancellor erred in finding that this conveyance was null and void for want of authority. We are likewise constrained from the record before us to find error in the chancellor's determination that there were no existing conveyances divesting Taltavull and his heirs of title to he subject property. The substantial credible evidence in the record reveals that the 1943 deed from Taltavull to Rosalis and DosSantos conveyed title to Taltavull's uplands, including the patented area, as substantiated by the deraignment of title submitted by Bayview and IPM. Therefore, we find that the *988 chancellor likewise erred in finding that there were no existing conveyances divesting Taltavull and his heirs of title to the patented land and vesting title in Bayview's predecessors in title.
III. WHETHER IPM, BAYVIEW LAND, TREASURE BAY, OR THE MLADINICH FAMILY ENJOY ANY LITTORAL RIGHTS
¶ 42. Littoral rights are the rights of landowners whose land is abutting an ocean, sea or lake rather than a river or stream, in which case the rights would be riparian, not littoral. Stewart,
¶ 43. The trial court found that because the 3.05-acre of land made up of accretions was vested in the State, IPM had no land touching the water, except for small slivers of land on either side of the accreted parcel in question, and therefore no littoral rights to the water touching any of the land except its own, those small slivers flanking the accretions. "And the land must not only be contiguous to the water, but in contact with it. Proximity without contact is insufficient." Ill. Cent. RR. v. Illinois,
IV. WHETHER THE STATE POSSESSES THE AUTHORITY TO REQUIRE LEASES AND COLLECT RENTS ON THE LAND
¶ 44. The trial court looked to both Miss.Code Ann. Section 29-1-107(2) and Wiesenberg to hold explicitly that Mississippi has authorized the Secretary of State to require leases and collect rents on submerged tidelands belonging to the State and held in trust. The thrust of the argument of Treasure Bay and the Mladinich Family with regard to this issue is that *989 authorizing the State to do this constitutes judicial approval of a taking, offending the Constitutions of both Mississippi and the United States. To make this argument, Treasure Bay relies on our holding in Guice, where we held that a taking occurs if the State fills tidelands below the mean high water line, cutting off the landowner's littoral rights. "It is a matter of common knowledge that the littoral rights incident to the ownership of beach front property along the Mississippi Gulf Coast is the most valuable attribute of such property. If the State, acting through the County, could `pump up' the submerged bottoms adjacent to privately owned uplands, and thereby cut off direct access to the water, it could effectively destroy the value of much residential property as well as commercial and industrial water front property. Such taking of private property could not be accomplished without first paying just compensation. Mississippi Constitution, Sec. 17." Guice,
¶ 45. Our statutes and our case law provide this authority and leave no room for doubt. "The Secretary of State, with the approval of the Governor, may rent or lease surface lands, tidelands or submerged lands owned or controlled by the State of Mississippi lying in or adjacent to the Mississippi Sound or Gulf of Mexico or streams emptying therein, for a period not exceeding forty (40) years for rental payable to the state annually. However, the term of any lease of state public trust tidelands to a person possessing a license under the Mississippi Gaming Control Act shall be governed by the provisions of subsection (4) of this section." Miss.Code Ann. § 29-1-107(2)(a). We have addressed this issue before. "This statute unequivocally affords the Secretary of State the discretion to enter into a lease of the public tidelands." Columbia Land Dev.,
V. WHETHER THE STATE HAS THE AUTHORITY TO LEVY TAXES UPON THE LAND WHICH THE APPELLANTS LEASE
¶ 46. The trial court looked to Miss. Code Ann. § 29-15-11 to find that the State and its political subdivisions have authority to assess and collect ad valorem taxes from persons or firms occupying land held by the State in the Public Tidelands Trust. The Appellants reiterate and incorporate their earlier arguments to convince this Court otherwise. "Upon the proper authorized leasing of any state public trust tidelands, or submerged lands, the lessee shall be responsible for any county or municipal tax levy upon the leasehold interest." Miss.Code Ann. § 29-15-11. This issue is without merit.
VI. WHETHER ANY STATE ACTION IN THIS CASE AMOUNTS TO AN UNCONSTITUTIONAL TAKING OF THE LAND
¶ 47. On this issue, the Appellants collectively argue that the State's action has *990 constituted a taking of littoral rights, offending the Fifth and Fourteenth Amendments to the U.S. Constitution and Miss. Const. art. 3, § 17 (1890). Because of our disposition of Issue I, above, this issue need not be addressed.
VII. WHETHER THERE IS A DENIAL OF THE APPELLANTS' DUE PROCESS AND EQUAL PROTECTION OF THE LAWS
¶ 48. The arguments put forward by all of the Appellants here rests on the fact that the State granted 8.255 acres of land to the Beau Rivage because of obvious comparisons between the two casinos, or in other words, IPM was the victim of discriminatory action by the State. The trial court found that this occurred in part because the State had a rational basis for its settlements with the Beau Rivage and IPM exercised its statutory right to decline negotiation. The trial court found IPM was adamant that unless the State abandoned its claim completely, it would pursue its remedy in court. The State argues, at least in part, that because IPM did not attempt to reach amicable settlements like the Beau Rivage, it invited different treatment from that which the Beau Rivage received. However, because of our disposition of Issue I, above, addressing this argument becomes unnecessary.
CONCLUSION
¶ 49. The Public Trust Tidelands Act serves a higher public purpose, and one this Court has held to be consistent with our State Constitution. That purpose is to settle age-old boundary disputes between land belonging to private landowners and that belonging to the State in trust. That the boundary line cannot be drawn exactly where it lay when Mississippi entered the Union and acquired its tidelands and submerged lands is naturally central to many disputes; however, the Act has laid out one final way to determine a line and we have upheld this method as one that protects the interests of the public and the affected private landowners as well as one that is designed to "put to rest the chaos that has plagued this subject matter and this geographical area for many years." Wiesenberg,
¶ 50. REVERSED AND REMANDED.
SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, EASLEY, GRAVES AND RANDOLPH, JJ., CONCUR. DICKINSON, J., NOT PARTICIPATING.
NOTES
Notes
[1] Bayview and Imperial Palace will sometimes be referred to collectively as "IPM." Likewise, we will on occasion use the term "IPM" to refer collectively to all appellants in these consolidated causes.
[2] Littoral rights are those rights concerning property which abuts an ocean, sea or lake. Columbia Land Dev., LLC v. Sec'y of State,
[3] While this matter has been pending before us on appeal, this Court entered an order granting the joint motion of Treasure Bay Corp. and the Mladinich Family Limited Partnership to have Treasure Bay LLC substituted and designated as the real party in interest, with the Mladinich Family Limited Partnership likewise remaining a party to this appeal. For the sake of clarity, we will refer to Treasure Bay LLC simply as "Treasure Bay." Treasure Bay Casino is located on Highway 90, overlooking the Mississippi Sound and the Gulf of Mexico.
[4] Treasure Bay would later answer the cross-claim on May 3, 2002.
[5] In its findings of fact and conclusions of law entered on April 9, 2004, subsequent to the trial of this cause, the chancellor conceded what he perceived to be error in light of Stewart and withdrew his opinion of April 22, 2002.
[6] The trial covered a span of ninety days, which obviously means that the trial was not conducted over a period of twenty-five consecutive business days.
[7] By way of clarification, while "submerged lands" refers to lands "which remain covered by waters, where the tides ebb and flow, at ordinary low tides," "tidelands" refers to "lands which are daily covered and uncovered by water by the action of the tides, up to the mean line of the ordinary high tides." Miss.Code Ann. § 29-15-1(g), (h). See also Phillips Petroleum,
[8] Miss. Const. art. 4, § 104 (1890) states that "[s]tatutes of limitation in civil causes shall not run against the State, or any subdivision or municipal corporation thereof."
[9] In Gilich, we stated, "[O]n the basis of Section 95 [`no-donation of state-owned or state-controlled lands'] of the Mississippi Constitution we hereby overrule Guice insofar as it applies the doctrine of artificial accretion so as to render lands once a part of the public trust, the property of private land owners by the action of the government in artificially recovering such lands."
[10] In fact, we interject here various definitions which will be helpful to the reader. Miss.Code Ann. § 29-15-1 provides numerous definitions:
(a) "Commission" means the Mississippi Commission on Marine Resources.
(b) "Local tidal datum" means the datum established for a specific tide station through the use of tidal observations made at that station.
(c) "Mean high water" means the arithmetic mean of all the high waters occurring in a particular nineteen-year tidal epoch period; or for a shorter period of time after corrections are applied to the short term observations to reduce these values to the equivalent nineteen-year value.
(d) "Mean high water line" means the intersection of the tidal datum plane of mean high water with the shore.
(e) "Mean high water survey" means a survey of the intersection of the shoreline with the tidal datum plane of mean high water using local tidal datums and surveying methodologies approved by the commission. Methodologies shall include but not be limited to the "staking method," "the topographic method" and "tide coordinated aerial photography."
(f) "National map accuracy standards" means a set of guidelines published by the Office of Management and Budget of the United States to which maps produced by the United States government adhere.
(g) "Submerged lands" means lands which remain covered by waters, where the tides ebb and flow, at ordinary low tides.
(h) "Tidelands" means those lands which are daily covered and uncovered by water by the action of the tides, up to the mean line of the ordinary high tides.
[11] Recognizing that Harrison County has two judicial districts with the county seat of the First Judicial District being Gulfport, and the county seat of the Second Judicial District being Biloxi, there would be filings in both offices. See Miss.Code Ann. § 9-1-39 (Rev. 2002).
[12] Again, this is but a generalized overview of the statutory mapping procedure. Other statutory requirements not discussed here must also be followed. The mapping procedure and boundary challenge procedure are set out in detail in section 29-15-7(1)-(6).
[13] Miss.Code Ann. § 49-27-1. Miss.Code Ann. § 49-27-5(a)(b) (Rev.2003), as it existed and applied to today's case, defined "coastal wetlands" as "all publicly-owned lands subject to the ebb and flow of the tide; which are below the watermark of ordinary high tide; all publicly-owned accretions above the watermark of ordinary high tide and all publicly-owned submerged water-bottoms below the watermark of ordinary high tide" and includes "the flora and fauna on the wetlands and in the wetlands." In 2005, the legislature amended this statute by, inter alia, basically combining subsections (a) and (b) into a new subsection (a). The Coastal Wetlands Protection Act declared the public policy of this state to be "to favor the preservation of the natural state of the coastal wetlands and their ecosystems and to prevent the despoliation and destruction of them, except where a specific alteration of specific coastal wetlands would serve a higher public interest in compliance with the public purposes of the public trust in which coastal wetlands are held." Miss.Code Ann. § 49-27-3.
[14] We held 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." Cinque Bambini P'ship v. State,
[15] Actually, the record reveals that an oyster canning company had occupied this site since 1881.
[16] Miss.Code Ann. Section 49-27-7 allows an owner of riparian rights to construct and maintain piers, boathouses and similar structures if they are constructed on pilings that permit a reasonably unobstructed ebb and flow of the tide. "Riparian" refers to land bordering rivers and streams, and "littoral" refers to lands bordering lakes and oceans; however, the statute clearly refers to lands subject to the ebb and flow of the tide. Id. § 49-27-5(a). Ocean waters and connected bays would obviously be subject to the tide while rivers and streams would not ordinarily be. Therefore we must assume the legislature is loosely using the word "riparian" to mean both riparian and littoral. Also, "[t]he riparian owner may reasonably alter the wetland at the end of his pier in order to allow docking of his vessels." Id. § 49-27-7. "The sole right of planting, cultivating in racks or other structures, and gathering oysters and 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 . . . but no person shall plant in any natural channel so as to interfere with navigation, and such riparian rights shall not include any reef or natural oyster bed and does not extend beyond any channel." Id. § 49-15-9. "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." Id.