*1 Atty. ex rel. et al. State Rice, Gen., Stewart (Division 24, 1938.) B. Oct.
[184 33292.] 44. No. So. *2 1939.)
(Division B. Jan.
[185 33292.] No. So. 247. *3 appel- Attorney Pierce, General, W. W. Assistant lant. *6 Thompson Gulfport, S. & O.
Mize, Mize, of and J. appellant. Sanders, Jackson, *9 Gulfport, appellees, Backstrom, Gardner & Mrs. Grace Jones Stewart and W. T. Stewart. *11 J. appellees, C. R. Haydon, Gulfport,
Chas. Bonham and Paul Bonham. *12 Mrs. Gulfport, appellees, Backstrom, of
Gardner & Suggestion on Stewart, W. T. Stewart and Jones Grace of Error. *14 Thompson,
Argued orally by Jr., W. R. and W. W. ap- by appellant, Backstrom, Pierce, Oscar for and pellee. opinion J.,
McGehee, of the court. delivered!the chancery áppeal of the finál from a decree This is an gen- sustaining Mississippi, County, a court of Harrison sub-joined appellees a and eral all of the demurrer appellee, by plea adjudicata interposed Mrs. res complaint filed bill to the Grace Stewart, Jones appellant. charged complaint that
Among things, bill of other Mississippi, County, Bayou an in Harrison Bernard navigable body Mississippi is a Sound, inlet of the the time of the been such has at times from water and all Mississippi as a State into the State of admission of subject daily ebb to Union, and has at all been times always bayou been and has tides; flow of the that said artery commerce; as an and used and treated ply to have been accustomed water craft of all kinds and commerce furtherance said stream navigation. Mississippi sovereign the State of That regulate State was all times clothed with at bayou, subject and control use of the waters of said only superior rights United States regulate upon navigation commerce and in, over same; Missouri, but that owns however, the said State of sovereign body par- as ticularly bed of said water deposits mineral and more
all of the therein, particularly deposited. gravel all sand and therein appellees up
That the set on the installed banks *15 Bayou machinery large used, said certain Bernard to be gravel dredging from and which in and was sand used, bayou purposes, that the bed of said for commercial and operations they beginning have ex- since the of said the large quan- bed a removed from the thereof tracted and tity gravel, aggregating 300,000' of about cubic sand and yards approximately That $400,000. the the of of value by appellees or fact, the all times aware of have been at diligence known, have the could exercise of reasonable by gravel being from them the that’the sand and removed property Bayou of the or bottom of was the bed Bernard by Mississippi same that of fact the of reason the State operations, by nav- covered said is and times was, at all igable being dredging water, place was where said and the high navi- within done was was mean and below tide gable Bayou waters Bernard. of said operation charged on bill carried
The further that by appellees com- with constitutes serious interference navigation right fishing
merce and and in free Bayou by Bernard; said that claims asserted de- any fendants sort or therein cast title, interest suspicion doubt, cloud on Mis- or title of State sissippi; prayed personal and the bill for for a decree damages alleged complained trespass account on of the of. challenge general sufficiency
The demurrers equity bill in law and to state a The cause of action. plea adjudicata of res forth that the State of Mis set sissippi by Gully, through had B. and theretofore, J. Collector, State Tax filed suit in said its courts on'identi cally the cause, same of action and cause involved this against chancery the same and that the defendants, court having former and dismissed this its decree in that suit, having Gully Supreme behalf been affirmed Court, v. Stewart, 559, Miss. decree So. such 758, 174 former judgment adjudicata and were res of the involved issues Mississippi, through herein; also that the State of Attorney pendency its been General, had advised charged knowledge suit, thereof, former or with alleged estopped again litigate and was this cause appellees. against action
Considering plea adjudicata, first it will be res Gully, found the case Tax Collector, State Stewart, 758, 174 178.Miss. So. the court without held, qualification, deciding any question, other without authority that: is “The tax collector without sue ’’ unliquidated growing an And, demand out of tort. party subject litigant, since the to all State, as is procedure governing the rules in other of the courts rights cases, all entitled to which and remedies to pro- given are case, individuals entitled in a state of *16 Mississippi vided for under 6002 of the Section Code by appearance 1930, the an in State could not be bound any by court on an official to its behalf unauthorized greater by extent than individual bound an could be
221 without assuming behalf on Ms person to sue act of a authority. 249; 84 So. 342, Miss. 122 Vowell, Weems v. 888; County 90 So. Humphreys 236, 128 Miss. v. Cashin, Company Kennington, 155 Miss. & v. Brothers Hirsch Ency. Pleading and 2 1; L. R. 88 124 A. 344, So. 242, legally become a page not The 690. State did Practice, party appearance was therein suit, and its former anyone by to do. The State authorized so not entered and suit, court the former aid of the did not invoke the by having is court not bound not the aid invoked words, court In other therein decree rendered. jurisdiction sovereign acquired over have could not by its of one of act state reason of unauthorized Henry appear assuming v. on its behalf. officials is 39 tax collector 87 So. 856. The state State, 1, Miss. represent its benefit and authorized to the State sue 6987, 6986, on in Sections of action causes mentioned enact 6994 other 6993, of the Code 6988, 1930', judg by authority may A ments which such conferred. be any resting appearance ment on his unauthorized nullity rights other of the State case is a insofar are concerned. disposed
Moreover,
former
since the
suit was
on
ground purely technical, where
merits
did not come
question
adjudication
point
into
is limited
actually
subsequent
preclude a
and cannot
decided,
action
brought
way
objection
proved
in a
to avoid
which
Agnew McElroy,
fatal in
10
the first.
v.
M.
Smedes
&
Mosby
81,
48 Am. Dec.
et
552,
772;
Wall,
al.
Miss.
Also, there no motion made hear the adjudicata preliminarily, res and the former sMt not being by complaint the bill of herein to be disclosed plea barred, so as to be demurrers, reached was properly not before the court below when the demurrers Chan- were cery bill dismissed: Griffith’s sustained 325. Practice, Sections *17 222 estoppel plead opin-
The of matters not, would in our though proven, preclude- ion, even the State from assert- ing any rights may arising that it have out facts alleged present in the suit.
Regarding appellees the contention of the state attorney general, land commissioner, and not is- the vested statutory authority bring with the of a this suit nothing conferring character, we find in the statutes jurisdiction They such officer on over tide-water lands. jurisdiction meaning are not within his within the of Sections 6011, 6021 and 6022 of Code of 1930. the On general attorney the other hand, the is with both vested statutory authority represent and common law to- the sovereign protection in the of enforcement its laws and public rights. Capitol Stages, Inc., et ex al. State Attorney, rel. Hewitt, District Miss. 576, 128 759; So. 2 R. C. L. 915. questions foregoing
A decision of each of the been has necessary expedient either or in rendered view of our complaint conclusion that the bill of with- is sufficient to general stand the and that the demurrer cause must be for trial on reversed merits. the admitting In that the tide-water flows at ebbs and the place Bayou dredging in Bernard where the of the sand gravel alleged by complaint, occurred, as the bill of virtually proposition demurrers confess that the sovereign capacity, in State, its owns title to the bed bayou people, charged of as trustee for with the duty safeguarding purpose insuring it for its public navigation, free use commerce free fishing, subject only paramount to the of the United navigation States However, thereover for and commerce. question the decision of not, and, this need because of importance people Mississippi precedent its to the as a declaring rights public in tinguished relative dis- as private persons
from those the mineral deposits, as well in soil beneath waters in our tide upon great it not rest mere ad- area, coastal should pleadings particular With- mission in the case. changing on out the result of the decision to he rendered presented by pleadings, order here issue applied determining may that the correct rule be rights respective litigants on merits, in a trial *18 beyond appear may been have we shall now look what to by the and extent of determine the admitted demurrers premises, con- and the State’s title in as established the judicial by of law trend firmed both common and the the decisions, state and federal. relying upon prin
Appellees, reasoning the from and Morgan Reading, ciples in of al. v. the et announced cases Magnolia 3 & The 366, Smedes M. and Steamboat involving high- Marshall, 39 title land below 109, Miss. to Mississippi water mark a fresh-water River, on the law in followed as local stream, and which cases were Company, 567, 233 Archer v. U. S. 34 S. Ct. 60, Gravel Commissioners, L. Levee 850; 58 Ed. and Archer v. they, contention that 57, Miss. 130 So. now make the 55, riparian Bayou of on the Bernard, as owners own the title body a as if it of of the same were water, bed such right sand and stream, fresh water with the remove to purposes, gravel not commercial, or other therefrom navigable waters for with the free of the inconsistent use navigation. to hold referred The above commerce or cases Mississippi riparian where Biver, on that owner the a bed title of the the flow, not ebb and owns the tide does subject only to the stream, center the of the river to the navigation; public commerce easement in favor of and riparian that such was held two latter cases it and in the and value of sand the recover owner entitled to was aof tres gravel commission therefrom in removed Mississippi argued pass. inasmuch as it that is Hence, ebbs tide navigable where above is a Biver stream susceptible to more as and is below, flows as well and many of the sea navigation arms or inlets than flows, ebbs there is no reasonable wherein tide and recognizes a for the the title of basis distinction which riparian navigable to bed owner freshwater river to stream, the center and at the same denies time him arm such or title the bed a smaller stream sea, shall where tide ebbs flows. We not argue attempt to the reasonableness or unreasonableness only shall distinction, but concern with ourselves determining whether or not such in distinction does fact exist. upon question
It is well that settled involved here- Mississippi 'adopted' prevails in, the common law it as England. The in substance, rule is in 3 Kent’s announced, principle English Comm. as law, a settled sea, soil of owners land bounded navigable on waters, other where the tide ebbs and only high-water flows, extends mark; that the shore ordinary high-water belongs below State, to the trustee public; England for the that in crown, and country people, proprietary this have the absolute *19 sovereign in interest the same; that the trustee for is people, navigable the of the use inalienable, waters is navigable but that the of waters, shores and the soil belong they under them, to the state in which are sovereign; sovereignty situated, as that the of in public rivers of above the flow the is the same as in tide they belong public, except tide waters; that to the that proprietors adjoining (referring the such rivers to fresh- rivers) water own the soil. Morgan, Reading, supra,
In et Mr. al. v. Justice Sharkey recognizes and common discusses the law dis rights riparian tinction between the a owner on fresh water streams and on bodies water where the tide ebbs quotes by and flows. He the rule as laid down Chancellor Blent in grants his commentaries to the of land effect that belong proprietor on rivers, water, above tide to the the bank, and Then, extends to>the center of the stream. among other reviewing stated, he authorities, the after ‘ a material difference There is that: reached, conclusions navigable, are which and those are rivers which between meaning according navigable, Law to Common the not riparian pro navigable, the not On rivers of the term. to owns prietor, by Law, Common the construction ’’ grant. the restricted stream, unless the thread of the t opinion The already tha the elsewhere in He stated had meaning ‘navigable phrase in the a technical river,’ has navigable sense, in technical A the Law. river is Common Angelí high up oh flows. the from its mouth as tide may common that it a 205. Above be Watercourses, 204, navigation public highway, subject use of to the acceptation according term, of the the common law technically navigable The soil under river. but it not a is navigable sense, technical does a in the river which is public.” riparian belong owners, but to the not Applying to the that, in holds decision, effect, rule, this although providing of Mis for the admission the act Mississippi sissippi into the Union declared leading navigable into and waters rivers River, com should remain Mexico, or into the Gulf of same, highways, citizens of the forever free mon 'and to' adjacent riparian etc., United owner States, Mississippi soil River owned thread navigable notwithstanding was that such river stream, opinion court in In other it was the words, fact. navigable point at was not that since this river meaning question within the sense, within a technical adopted by the title of State, the common-law high-water riparian stop mark. not at owner did Magnolia case The Steamboat Likewise, recognition supra, Harris, Mr. Justice Marshall, recognized by “long learned *20 declared and distinction by judges them of much so law deemed writers, and and beyond regarded importance be as as to excellence and quoted question,” from common law distinction all by Lord Chief Justice Hale iu his De Jure treatise, made navigable (that not is, follows: rivers as “That Maris, soever) what kind common do, freshwater rivers adjacent. belong right, But to the owners of the soil that belong flows, and to State rivers, where tide ebbs public.” further “In obedience to or He said therefore comity early nations, it at an became, the period and laws history, in common law, its the doctrine bordering by sovereign power, grants land, that only high mark.” He water, on tide extended to water proceeds say a that: then to “On the other doc- hand, wholly opposite upon this, trine to and founded reasons equally satisfactory, clear in relation and was established having capacity streams, whether for navi- to freshwater gation intra-territorial, or which were and over not, government domin- which exclusive and had meaning say thereby ion,” that to such freshwater as riparian stop streams, the title not at owner did high-water mark but extended to the thread of the stream. perfect regulation He then that “a declared more could reasoning jus privatum not riparian devised,” be that the charged always subject owner is with, to, jus publicum regard navigation. in to commerce and argument opinion strenuously in Since the made is so urged ground appellees counsel for for the court holding, rights riparian now that the doctrine as to the of a navigable owner in bed of a fresh-water stream should applied soil in be extended and beneath tide water point we further out that State, this are constrained Magnolia cog- in took Case, The Steamboat the court quoted extensively opinion from, an of, nizance Tilghman Blazer, Chief Justice case of Carson v. (Pa.), 4 Am. 1810, Dec. decided in 477, 463, Bin. questioned (wherein the correctness of the com- he had law between tide-water and fresh-water mon distinction any States, case the United streams, for the first time prevails, argued law common elsewhere, or where the
227 in applied to the difference here due not be that it should navigation com- when larger to in America as rivers the pared England, he contended in which the streams to navigable of usually flow the the ebb and above not were strongly tide), of Justice condemned the view then and many reviewing regard, citing Tilghman and in that as law distinction show that the common authorities to preserved in tide-waters had been to fresh-waters and pro- jurisdictions country. many of He then of the this apply at the to the case hand. ceeded distinction Tilgh opinion logic of the of Justice The reason and supra, applied man in of Carson v. was Blazer, the case Supreme the of the United the case Court States Propeller Pitzhugh, of The 53 Genesee Chief v. U. S. (12 How.) 13 over 443, 1058, court, L. Ed. when the ruling admiralty decisions, its earlier held that the and jurisdiction maritime of the of the United courts States public navigable although extended to all waters, above . ground flow the of from sea, the tide on navigability not the ebb and flow the tide should sovereign rights Taney, taking control Justice —Chief argument supra, line of same used the Carson Cáse, England, navigable and held that in where there are no beyond descrip streams tide, flow ebb and of the admiralty jurisdiction tion of the tide confined waters was a one, reasonable and convenient and was equivalent saying public that it was confined to nav igable description waters; but that, when the same was country description public navigable used in this aof place thing water was in the substituted intended to be described; and, under the natural influence precedents originally forms, established a definition correct was adhered to and acted it on, after had ceased, change descrip from a in circumstances, to be the true public tion of But, waters. Bird, it was said Packer v. 137 U. 661, S. 11 S. Ct. 210, L. Ed. that: “As an ownership, riparian incident of such the waters are above influence
owner, where
according
law
will be limited
to the
tide,
high
or will
low
water
extend
mark,
either to
or
state,
’’
principle
com-
the stream. This
to middle
mon law as to fresh-water streams had the influence
tw;o
jurisdiction
generations
excluding
admiralty
great
inland
seas;
from our
rivers
and laid
*22
regard
ownership
for
with
foundation
the
to the
doctrine
navigable
of the soil in
waters
the tide-water at
above
opinion many
may
what,
variance
in
courts,
with
the
principles
public policy.
be considered sound
repeatedly
by
Nevertheless,
it
since
has been
held
the
Supreme Court of the
the
States that
title
a
United
riparian
navigable
owner to the soil beneath
waters is
question
by
a
to be
the
determined
local law of
state
the
in which the same are
our own court
con
situated,
has
recognize
tinued to
common law
the
distinction herein-
before referred to, whether a
basis
reasonable
for the.
country
by holding
same
in
exists
not,
this
or
in the cases
Morgan
Reading,
et al. v.
3
M.
Smedes & 366; The
Magnolia
Steamboat
v.
39
Marshall,
109;
v.
Miss.
and Archer
Commissioners,
Levee
We are contention of with the unable pellees that of the fact that our local decisions because riparian holding that a have the common law followed title to owner on a stream has soil fresh-water depart com- now from the center we same thereof, should recognized, universally that mon law effect rule, so to the tide-waters, suN beneath the state owns the ject to land title right only to control com- the United to the States navigation, consistent merce both rules are and where adopted principles in our law common as with the though they may far as their be inconsistent so State, practical application concerned. is foregoing we hold conclusions, it follows
From the Mississippi owner of to be the State of the absolute contained, therein of the minerals of the soil, title and' sea, arms and inlets shores, all of its the beds of people for the trustee flows, and the tide ebbs wherever right only subject paramount to the State, navigation, commerce to control United States dispose any portion consequent right or to use with the impairment done without when that can be thereof, subject para public to the waters, interest of with not inconsistent mentioned, mount above R. *24 Central Illinois constitution. state Section 81 Company our Ed. 36 L. 110, Ct. 387, 13 U. S. S. v. 146 Illinois, 357; Money 17, 118 So. Wood, 152 Miss. 1018; et al. v. 231 convey be- the land right the title to without the but simple, high-water in fee mark waters below neath such 291, 146 704, So. 166 Miss. Heirs, v. Saucier’s Rouse sovereign- authority its being to surrender without State purposes in- for the trust ty to administer cease or riparian, unreasonably with to interfere tended, or right waters and proprietor’s and from to such of access subject well of the as thereof as land use reasonable necessary to incident the reasonable aas tide-water, to right adjacent enjoyment land; nor with of his generally. public by fishing Rouse v. Saucier’s free supra. Heirs, present necessary case in the now
Therefore, it becomes en- trustee, such is State, whether the as to determine alleged gravel of the sand and to recover value titled dredged purposes from the commercial have been Bayou flows where ebbs and Bernard the tide bed R. L. 1369 that: The rule is 27 therein. announced C. navigable of a stream is “Where the title to the bed person against it to take State, no has the as appropriate gravel, phosphate, or or the there- sand, like provided by or It from without its consent license.” is Mississippi 6002 of the of 1930 that the State Sec. Code bring all is entitled to all actions remedies have given individuals are in a of case. which entitled state Rest, In the of Law of it is Trusts, declared Sec. “A that: can trustee maintain such actions at law or against equity proceedings person suits in or other third property as he maintain if could he the trust free held (a) person “If Further, trust.” in subsection a third -. to; respect property, commits a tort with the trust trustee can maintain at law such actions could he property ownership maintain reason of his if (c) recog- he held it free of trust.” subsection Likewise, jurisdiction enjoin equity nizes the such or redress torts. People Hyman, Sup.,
In N. Y. which was S. *25 brought an action to restrain the defendant from re- gravel Niagara moving and from bed of sand the the damages gravel River to and recover for and there- sand property tofore which of taken, was claimed to be the theory the State of New on the York, that the state Niagara of River, owned title to the said the the the bed complaint court that the stated sufficient to held facts trespass. constitute a of In cause action for State v. Company, 113 Ark. 854, Southern Sand 167 S. W. a 149, forbidding taking gravel statute of from the of the bed navigable by any corporation except pay- a stream on yard per ment of a stated sum cubic into the state treasury upheld. court was The said: the “Now, delegate trusteeship disposing by state cannot of its navigable Legislature waters or thereof, beds for one might power by a resume which had been surrendered its predecessor; quite say thing but is it another that the Legislature, in of exercise of its control over the beds the grant upon price right, streams., cannot the terms or for a gravel, regula- named, to take call a sale, sand or it a or may please tion, as it one to term it. of The bed being sovereign stream held for of the benefit right may enjoyed way that citizens, be in the that the legislative may government branch of for determine public, the benefit of the and it is not with inconsistent public require actually a use to those who take sand gravel pay may to. it for so that the benefits be dif- among people fused all of . . of the state. It can- disposal gravel, not be that of claimed or sale sand or relinquishment in the bed of the river, a is state’s property, impairs control over the common it or that right enjoyment, common or that it interferes navigation. with . .’’In the v. Akers et case State al., 92 543, 140 P. Ann. it 637, 1916B, Kan. Cas. was impose power with held that the was state vested royalty upon taking pur a commercial sand for poses from stream, title of bed which the people, for benefit trustee state held as that: declared upholding it was a statute such the state of the facts that well aware court is “The royalties leasing beneath the oil beds is of Oklahoma 137); Mackey, (U. 214 F. Arkansas river S. pros- many the states the and pect products mineral oil and other obtain the public one.” a valuable rivers is bed beneath the *26 cognizance of contention the took the court And, from the enormous revenues the receive of states some copper the beds taken from ore of iron and sale navigable v. of State In case of those the lakes states. Company, Mining 304, La. 183 Inc., Salt Jefferson Island com- of Louisiana sued salt 145, 163 So. pany the State the quantity a from the of of salt taken for the value navigable of of which the court held lake, the title a bed capacity sovereign as trustee vested the its was state Supreme people. of Louisiana affirmed for Court the The judgment damages in in the cause a rendered for said taken, of and sum of value the salt $1,165,419.54,as the by Supreme petition Court a for certiorari was denied the Ed. 80 L. 591, the 56 S. Ct. States, 716, of United 297U. S. petition rehearing 297 denied, also a for was 1001, and gen 1011. In it fact, S. 56 Ct. 80 L. Ed. 729, 667, U. erally recognized S. is gravel taking of ore, that the sand by in of a and other from the bed stream minerals purposes corporations is in commercial dividuals or for compatible as with title of the state therein the absolute public. right for to the The state’s recover trustee upheld deposits value such been wherever of so taken has question except of v. in the case has arisen State 1916C, L. R. A. 617, 1095, 127 Minn. W. Korrer, 60, 148 N. that while the defendants 139, wherein the court held right body of no from the bed of the take ore had injunc question, water in was and the state entitled prevent it tive entitled action, relief to such was not By analogy, however, recover its value. our court has 234 people,
upheld right State, of trustee for as trespass damages a bene on behalf of to recover for following cases: ficiaries of in the Jefferson Davis trust Company, County 49 530, So. v. Sumrall Lumber Miss. Agent Lumber 611; Revenue v. Weston State Robertson, Company, Jeffer 120. In the case of 606, Miss. 87 So. supra, uphold Company, County son Davis Lumber ing county, agency of the State, an pur to recover cut commercial the value timber poses from court said: a Sixteenth land, Section state; title in the “The to sixteenth section land is support but it in trust for the holds same public township is schools of the wherein the same Chapter particular 129 of Code of situated. ly upon section 4701 confers thereof, counties, the several respective through supervisors, their under the boards general supervision jurisdic of the land commissioner, tion land, and control sixteenth section to be exercised, original . course, within . terms of the trust .” by The trust referred to was that created articles agreement Georgia and cession between United when States were lands ceded that state to the *27 United States in trust for the be created, states to and territory after the creation of this state out of the ceded the and of title control sections, therein, these situated vested in the state in trust for the of inhabitants the townships. Company, several In Robertson v. Lumber supra, liability applied, recovery of the same rule was and by cutting was had state trustee, as tim- the for the of worthy ber from Sixteenth Section lands. It is of men- tion that both these Sixteenth lands Section and the soil acquired by beneath in tide-waters the State were the in United States trust for the State, future and there- that Mississippi after the of State of the trustee the became holding one the same itas did of the the in other, title one townships, for instance the benefit of the inhabitants of the people in
and the other for the of the entire State, the that to hold unable therefore areWe state. trespass damages to the trust for can recover trustee, right of re- the and be denied property instance, one in covery in the other. damages would the State to which of
As to measure the recovery, well settled the law is of event in the entitled, be trespass is wilful he a one has committed that where property with- taken, of value the liable the actual expenses any for labor or or deductions out allowance taking removing of it. if act But, the in and incurred trespasser alleged mistake, an of honest is result damages property at is the value of the of measure place the cost removal, of less time and its severance production. trial merits, The cause must reversed for a on the be principles with of law announced. accordance herein Reversed remanded. Suggestion
On or Error. sug- opinion J., Anderson, of the court on delivered the gestion of error.
Appellees that the court was in hold contend error ing only question Gully, that decided the case State Tax Collector, al., v. Stewart et 178 Miss. part authority
So. on 559,was the want of of the State bring they Tax Collector to insist suit; that, general by since demurrer sustained the Chancellor question in that case went to the whether bill of complaint filed the State Tax Collector cause stated on action the merits, the affirmance on of the decree appeal adjudicata brought by is res suit now Attorney State on relation of its General for the same cause of action. It is true the Chancellor his based ground decree of dismissal on former suit both alleged insufficiency complaint of the bill *28 state a case for relief on the of merits and on the want authority of the State Tax Collector to sue; nevertheless,
236 appeal, may do in on as it decision court confined its the any single affirming of dismissal, in a to the decree case complainant proposition in court below was the authority jurisdiction the court of without to invoke question try alleged! cause of action. The complaint a bill was sufficient to state case whether the in the on the merits was considered discussed neither nor opinion rendered therein. opinion ren-
Neither think that the do we heretofore advisory case at bar an one to the extent dered is holding plea adjudicata not well taken. res plea properly Whether was Chancellor or such before the at the not time he sustained the demurrers and dismissed opinion bill in this it shown cause, is his entering record that his action in the decree of dismissal ground Gully supra, was based both on that the Case, adjudicata complaint was res and that the bill of stated Appellees argued cause no of action on merits. original their brief that the decree affirmed on should be grounds assigned, either or both of the no and hence cognizance error was committed when took we holding regard plea of the court below in res adjudicata. being The case was reversed and remanded sustaining trial on merits, and the decree plea adjudicata opinion of res was in an our law error appearing which, if record, to on a adhered rehear- ing open assumption question under the that an was still prevent
one, would a trial on the merits. urged suggestion It is also on of error that the former opinion decision and in this case overrules the cases of Morgan Reading, et al. 3 v. & 366; Smedes M. The Steam Magnolia boat Miss. Marshall, 39 109; Archer v. Levee Money Commissioners, 158 57, Miss. 130 So. et 55; al. v. 152 Wood, Miss. 17, 357, So. and Rouse v. Saucier’s Heirs, 166 abrogates Miss. So. 291; and the rule property established under rule announced in these contrary, opinion cases. On the in the bar case- at
237 whereby is held it decisions, former three the reviews a fresh riparian, the of has title to owner bed that recognizes the thereof, and center to the water stream resulting property cites therefrom; and also of rule holding authority that differ a for latter decisions as two in prevails shores, arms of the and as to the bed ent rule high-water mark, wherever below of the sea lets in the is vested to which the title flows, tide ebbs and subject paramount people, to the for the state as trustee right and navi commerce control of the States to United consequent right part gation, of the state on the with the specifically dispose any portion thereof” as of “to use or supra, Money when 359, Wood, in et al. v. So. held impairment interest of that can be without done public not with Sec waters, in inconsistent and right without the Constitution; tion 81 of our State riparian unreasonably littoral or to interfere with the proprietor’s right waters of to. and from such access subject land well as of the the reasonable use thereof as necessary to enjoyment incident the reasonable tide-water a to as adjacent nor with land, his riparian fishing public by generally. nor free Neither rights at littoral decision in the case are disturbed rights here as such are under the authorities Bar, defined expressly on behalf referred declared to, inbefore and as opinion abutting on in the owners land tide-waters by Judge Truly Can delivered in the case Barataria ning Company 121. 84 Miss. 37 So. Ott,
Besponding suggestion that no to there is reason- ripa- rights a able for basis a distinction between rian of an owner on all water those fresh streams and abutting owner on inland tide-water streams regard is made without sea, arms of the when the same capacity navigation navigability or was to in fact for as it is sufficient to, the cases hereinbefore referred done already say that had been made since the distinction ripa- property to the title of and a established as rule streams, center of fresh water even rian owners except recognize though navigable, have we no choice might though at bar, the case even such distinction we opinion, if the one of first be impression, case had been capacity navigability in fact or for navigation would furnish more reasonable basis abutting determining title of and of the the state highwater underneath owner mark and soil below tide-waters. waters well as fresh *30 only be- The case at involves the title the soil bar to high-water shores, low mark the bed of the arms and it was sea, flows, of the where the tide ebbs and inlets supra, expressly Money Wood, held in the case et al. v. recognized that: “When the states were as free several independent governments by English nation Revolutionary ownership War, of, after the sovereignty over, dominion and lands covered tide- Lakes, of the within waters, and fresh waters Great respective belonged states, limits' the several to consequent they found, states within which were with the right dispose any portion or when that thereof, use impairment be without of the interest of done could public subject Congress waters, regulation navigation commerce;” control their rights subject and, were to Section further, these Again, the court held of this State. Constitution “Up- supra, in the ease Heirs, of Rouse v. Saucier’s that: Union, on into there be- the admission of the state came all state, trustee, invested in the the title to spaces including between tidewater, the land under ordinary high . water marks . .” and low principles
The of law and the conclusion announced opinion fully by reached in the former sustained are foregoing therein cited. and the other authorities cases
Suggestion of overruled. error