STATE OF MISSISSIPPI, BY AND THROUGH MICHAEL WATSON IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE AND TRUSTEE OF THE PUBLIC TIDELANDS TRUST v. RW DEVELOPMENT, LLC, THE CITY OF BILOXI, MISSISSIPPI AND HARRISON COUNTY, MISSISSIPPI
NO. 2021-CA-01134-SCT
IN THE SUPREME COURT OF MISSISSIPPI
03/02/2023
DATE OF JUDGMENT: 10/04/2021. TRIAL JUDGE: HON. JENNIFER T. SCHLOEGEL. COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT. NATURE OF THE CASE: CIVIL - REAL PROPERTY. DISPOSITION: AFFIRMED - 03/02/2023.
TRIAL COURT ATTORNEYS: KARL CRAWFORD HIGHTOWER, JONATHAN PAUL DYAL, MICHAEL E. WHITEHEAD, RODERICK MARK ALEXANDER, JR., MARY JO WOODS, JAMES EVERETT LAMBERT, III, MICHAEL F. CAVANAUGH, PETER C. ABIDE, TIM C. HOLLEMAN, HOLLIS TAYLOR HOLLEMAN
ATTORNEYS FOR APPELLANT: RODERICK MARK ALEXANDER, JR., BEN HARRY STONE, DOUGLAS T. MIRACLE, MARY JO WOODS, JONATHAN PAUL DYAL, BRYAN CARL SAWYERS, JAMES EVERETT LAMBERT, III
ATTORNEYS FOR APPELLEES: PETER C. ABIDE, TIM C. HOLLEMAN, MICHAEL F. CAVANAUGH, MICHAEL E. WHITEHEAD
MOTION FOR REHEARING FILED:
EN BANC.
COLEMAN, JUSTICE, FOR
¶1. The present appeal stems from a dispute involving real property located in the City of Biloxi, Harrison County, Mississippi, beginning at the toe of the seawall at the end of Veterans Avenue and extending across the sand beach, waterward, into the Gulf of Mexico and Mississippi Sound. The City and the County adopted a joint resolution that authorized the lease of a piece of property to RW Development, LLC, for the development of a joint public/private pier seaward of Veterans Avenue. As a result, the State initiated the instant action seeking a declaratory judgment that the State is the sole and exclusive authority to lease Public Trust Tidelands, that the City had no authority to lease the subject property to RW, and that preliminary and permanent injunctive relief should issue against the actions of the City and RW. The Chancery Court of Harrison County denied the State‘s requested relief and ultimately determined that the City and County had statutory authority to lease the property to RW for public use.
¶2. Because we agree that Mississippi statutory law grants the City the authority to build the pier, we affirm the judgment of the chancery court.
FACTS AND PROCEDURAL HISTORY
¶3. It is undisputed that the subject property, with the exception of Veterans Avenue, constitutes public trust tidelands. “Tidelands and submerged lands are held by the state in trust for use of all the people, and are so held in their character as the beds and shores of the sea and its tidally affected arms and tributaries for the purposes defined by common law and statutory law.”
¶4. Veterans Avenue is a street located within the borders of the City of Biloxi. The City is the owner of the fee simple land comprising the right-of-way of Veterans Avenue, which extends south of Highway 90 to the Harrison County seawall. Several decades prior to the instant case, the Biloxi Port Commission constructed a pier on the subject property without having
¶5. In 1924, the Mississippi Legislature adopted Mississippi Laws (1924) chapter 319, codified in
¶6. On May 17, 1960, in the United States District Court for the Southern District of Mississippi, the United States filed suit, United States v. Harrison County, Mississippi, Civil Action Number 2262, putting in issue the ownership, control, and public-private status of the sand beach. The federal lawsuit resulted in findings and a final judgment by the district court, which specifically enjoined both the State and Harrison County as its “political subdivision” as follows:
The right to zone, maintain, clean, repair and replenish the sand beach, the right to remove any structures existing in violation of this judgment, and the right to adopt and enforce reasonable regulations with respect to the use of the beach by the general public are all vested in the Board of Supervisors of Harrison County, subject to the rights of the general public set forth in this judgment. . . .
Final Judgment at 5, United States v. Harrison Cnty., Miss. (S.D. Miss. Oct. 8, 1970) (No. 2262) (emphasis added).
¶7. In September 2009, the Harrison County Board of Supervisors entered into a memorandum of understanding between the Secretary of State, the Board, and the Harrison County Sand Beach Authority. The memorandum of understanding stated that the Secretary of State and the Board agreed that the Harrison County Sand Beach was situated on Public Trust Tidelands that were owned by the State in trust for the people of Mississippi, that the Secretary of State serves as the trustee of the tidelands, that the sand beach would be administered as a public beach, and that the Board should ensure its continued free and open public access and public use. Further, the memorandum of understanding stated that
The [Board] may from time to time prepare master plans or changes to the master plans for modifications to the structure, design, layout or landscaping of the topography or footprint of the Sand Beach, to include but not limited to . . . piers . . . . In preparing any such plans, the [Board] shall seek input from the SOS in his capacity as Trustee of the
Public Trust Tidelands giving due regard to the public policy and interests of the State of Mississippi. Construction of structures in any master plan must be approved as provided in this MOU. . . . .
No structure may be constructed or placed on the Sand Beach without a permit or lease as provided in this agreement.
. . . .
All permanent structures require a lease from the SOS. Application for permanent structures on the Sand Beach shall be made to and approved by the SOS.
¶8. RW, the City, and the County sought to restore the Veterans Avenue Pier and make it a public handicapped-accessible pier bordering the sand beach in Harrison County through a public-private partnership. Consequently, in February 2018, pursuant to
¶9. On July 2, 2019, the City passed a “Resolution Authorizing Agreement with RW Development, LLC for Option to Build and Lease a New Public Municipal Pier; and for Related Purposes.” The resolution stated that the City, as the “statutorily-designated agent of the State of Mississippi acting as trustee and steward of the Public Trust for Tidelands[,]” had the power to construct improvements to public trust tidelands in order to promote and enhance public access to the water and tidelands, in addition to promoting, fostering, and enhancing marine-related public and private development and use of piers. The City cited
The CITY and RW understand and agree that, in addition to the joint public-private use of the Property for access to the water and marine-related recreation, RW shall have the non-exclusive right to use the Property and its improvements as an integral part of RW‘S commercial developments on RW‘S parcels contiguous to the Property; provided, however, no gaming shall be allowed on the Public Municipal Pier nor on any vessels docked or berthed at the pier. RW and patrons of its businesses shall enjoy the use of the Municipal Pier jointly with public use according to rules and regulations approved by the CITY and RW, which approval shall not be withheld unreasonably.
¶10. Consequently, on July 11, 2019, the State of Mississippi, through Delbert Hosemann in his official capacity as Secretary of State and trustee of the public trust tidelands, filed a complaint against RW and the City, claiming that a party must obtain a lease from the Secretary of State before building or developing upon public trust tidelands. “The Secretary of State is a constitutionally created office and is statutorily responsible for the public
¶11. The chancellor entered an agreed order granting the County‘s motion to intervene as an additional defendant. Each defendant filed answers and affirmative defenses to the State‘s complaint.
¶12. In the interim, the Court handed down RW Development, LLC v. Mississippi Gaming Commission, in which it found that the circuit court had correctly affirmed the Mississippi Gaming Commission‘s decision to deny the gaming site application of RW for its failure to meet the governing statutory and regulatory requirements under
¶13. Shortly after RW Development I handed down, the Board terminated the 2009 memorandum of understanding with the Secretary of State.
¶14. On March 12, 2021, the State filed a motion for summary judgment and argued that:
the Secretary of State had the sole authority to lease public trust tidelands; therefore, the State asserted that a party must obtain a tidelands lease from the Secretary of State before developing or building on public trust tidelands.
¶15. On April 5, 2021, the County voted to enter into a joint lease with the City and RW for the construction of a municipal pier. The City then placed a proposed resolution, Resolution No. 218-21, on its city council agenda that authorized the mayor to execute a lease agreement jointly with the County to RW for construction of a pier on the subject property.
¶16. The State filed a motion for temporary restraining order and preliminary injunction, requesting that the chancery court prevent the City from adopting the resolution. Further, the State requested a TRO and preliminary injunction to prevent the City, the County, and RW from entering into or executing any lease agreements pertaining to the property at issue until a
¶17. On April 7, 2021, the City passed Resolution 218-21.
¶18. The chancery court granted, in part, the State‘s motion and ordered that no construction proceed on the property until final adjudication of rights by the chancery court. The chancery court denied the State‘s motion to restrain a vote by the Biloxi City Council but ordered that neither the State nor the City had the ability to convey a leasehold interest in the property to RW until final adjudication by the Court.
¶19. On April 20, 2021, the City, the County, and RW1 filed a motion to amend their answers to the complaint and to add a counterclaim. RW sought to add a counterclaim for a declaratory judgment finding that the County had sole and absolute authority over the sand beach and that the City and County had the specific statutory authority to lease to RW a nonexclusive leasehold interest in the sand beach and submerged lands portions of the property at issue for the purpose of building and maintaining a municipal pier for public and private use.
¶20. The trial court denied the State‘s motion for summary judgment and granted in part RW‘s motion to amend. The trial court found that the Public Trust Tidelands Act did not clearly grant sole authority and exclusive rights to the Secretary of State to act on behalf of the State and other governing authorities to lease all purported Public Trust Tidelands without exception. Further, the trial court found that insufficient evidence had been presented regarding the location of the mean high tide line to conclusively establish the rights of the parties. The trial court also dissolved the temporary restraining order, stating that the parties may comply with the procedures set out in
¶21. Thereafter, RW filed a motion for summary judgment and requested a declaratory judgment that the Legislature had delegated authority to the City and County to lease property to private parties without having to obtain a tidelands lease from the Secretary of State. The State renewed its motion for summary judgment and again sought a declaratory judgment that the parties must first obtain a tidelands lease from the Secretary of State before constructing a pier on or subleasing the property at issue.
¶22. The trial court denied the State‘s motion for summary judgment and granted RW‘s motion for summary judgment. The trial court found that the “construction and lease of a pier at the foot of Veterans Avenue is in furtherance of the higher public purposes set forth in the Ports and Harbors statutes[.]”2 It additionally found that the City and County had statutory authority under the Ports and Harbors statutes and the Seawall Act to lease the property to RW for public use.
¶23. The State raises two issues on appeal: 1) whether RW is statutorily required to obtain a tidelands lease; and 2) whether the Secretary of State is estopped from requiring a tidelands lease.
STANDARD OF REVIEW
¶24. “Th[e] Court employs a de novo standard of review when considering
DISCUSSION
¶25. After de novo review, we reach the same conclusion as the chancellor—no tidelands lease is required from the Secretary of State in order for the City and County to cause the pier to be constructed.
I. Whether RW Development is statutorily required to obtain a tidelands lease.
¶26. As previously discussed, the chancellor found that the City and County have the specific statutory authority under the Ports and Harbors statutes, namely
¶27. On appeal, the State argues that the Ports and Harbors statutes do not grant the City authority to independently lease the subject property without a tidelands lease. Rather, the State argues that any grant of authority by the legislature to municipalities to reclaim tidelands within their borders, and to lease the same, is subservient to the Secretary of State‘s leasing authority. We disagree.
¶28. The sand beach, roads, and seawalls that run parallel with the Gulf of Mexico in southern Harrison County are possessed of a long history of construction, erosion, and destruction by hurricanes. See generally United States v. Harrison Cnty., Miss., 399 F.2d 485, 486-90 (5th Cir. 1968). What matters today is that, following a hurricane in 1947, Harrison County worked in agreement with the federal government to rebuild seventeen miles of sand beach that had been destroyed in that storm. Id. at 488-90. The effort led to the December 22, 1950 act of the Harrison County Board of Supervisors, noted by the trial judge in her opinion, assuming ownership of the beach construction and its administration for public use.
¶29. We begin our analysis of the issue by discussing the relevant statutes.
The authorities of any city in this state which has a population of ten thousand or more, according to the last official government census, and the authorities of any municipality bordering on the Mississippi Sound or Gulf of Mexico are hereby given the authority to acquire by purchase, deed, donation, gift, grant, reclamation, lease, dedication, or otherwise, land, harbor sites or water frontage for the purpose of establishing, developing, promoting, maintaining, and operating harbors for small water crafts and recreational parks connected therewith within its territorial limits, or both, and shall have the power to acquire, purchase, install, rent, lease, mortgage, incumber, construct, own, hold, maintain, equip, use, control and operate recreational
parks and harbors for small water craft.
¶30. There appears to be no dispute that the City meets the requirements of the above-quoted statute as a city authorized to acquire land, harbor sites, or water frontage. The crux of today‘s matter is whether the City acquired the subject property. The trial judge found that the City had acquired it because the above-quoted statute, as well as other statutes, confer a statutory right of reclamation. Indeed,
¶31. The chancellor defined reclamation as “the process of bringing economically unusable land to a higher dollar value by physically changing it; e.g., draining a swamp, irrigating desert, replanting a forest.” Reclamation, Black‘s Law Dictionary (6th ed. 1991). The dictionary definition relied upon by the chancellor comports with the Court‘s usage of the term in past cases. See, e.g., Carter v. Chuquatonchee Consol. Drainage Dist., 218 So. 2d 30, 32 (Miss. 1969); Treuting v. Bridge & Park Comm‘n of Biloxi, 199 So. 2d 627, 630 (Miss. 1967). Two facts from the history of the pier and sand beach support the chancellor‘s finding that the County had acquired at area of the pier by reclamation. First, as described above, the County, with federal assistance, reclaimed the sand beach following the 1947 hurricane. Second, the Biloxi Port Commission, prior to its dissolution and conveying the pier to the city, built and maintained a pier at the site for decades without a lease from the Secretary of State‘s office. By maintaining the pier and rebuilding the sand beach, the City and the County, respectively, reclaimed value from the land. As the chancellor found, although no entity may acquire title to state-owned lands, the State may, through the Legislature, authorize the use of the lands. It has done so here.
¶32. The chancellor also relied on
The governing authorities of any municipality in which there is situated and located, in whole or in part, a port or harbor through which commerce flows, and having not less than eight (8) industries engaged in the seafood industry, which maintains a channel and/or harbor to a depth of not less than eight (8) feet, may engage in, either directly or through the commission hereinafter provided and designated, and such other agencies as hereafter may be provided by law, works of internal improvement, or promoting, developing, constructing, maintaining and operating harbors or seaports within the state and its jurisdiction, and either directly or through the commission hereinafter provided for, with the power and authority to acquire, purchase, install, rent, lease, mortgage and/or otherwise encumber, to construct, own, hold, maintain, equip, use, control and operate at seaports or harbors, wharves, piers, docks, warehouses, cold storage facilities, water and rail terminals, airplane landing fields and strips, and other structures and facilities, needful for the convenient use of the same in the aid of commerce and navigation, and including the dredging of channels and approaches to the facilities, and being authorized to fill in and reclaim bottomlands where incidental and necessary to the foregoing development.
¶33. The State contends that the City‘s statutorily delegated authority must yield to
The Secretary of State shall have charge of the swamp and the overflowed lands and indemnity lands in lieu thereof, the internal improvement lands, the lands forfeited to the state for nonpayment of taxes after the time allowed by law for redemption shall have expired, and of all other public lands belonging to or under the control of the state. The regulation, sale and disposition of all such lands shall be made through the secretary of state‘s office.
The secretary of state shall sign all conveyances and leases of any and all state-owned lands and shall record same in a book kept in his office for such purposes.
¶34.
¶35. We hold that
II. Estoppel
¶36. The chancellor further found that the State is estopped from now requiring a lease. The chancellor wrote as follows:
The Court further finds that municipal piers and harbors have been constructed within the City for many decades without the requirement of a tidelands lease from the Secretary. Pursuant to specific statutory grants, cited herein, of the right to reclaim and use Tidelands, these
piers and harbors have been constructed in furtherance of the higher public purposes of the Public Trust for Tidelands. The State has acquiesced for many decades in the use of these Tidelands for these higher public purposes without having or requiring a tidelands lease from the Secretary, and, accordingly, the State is estopped from asserting that a tidelands lease is now necessary to act in furtherance of the higher public purposes of the Trust. See Bayview Land Ltd. v. State, 950 So. 2d 966 (Miss. 2007).
¶37. As RW properly asserts, the State may be equitably estopped under the proper circumstances. Bd. of Trs. of Monroe Cnty. Bd. of Educ. v. Rye, 521 So. 2d 900, 908-09 (Miss. 1988) (“The State, its counties, subdivisions and municipalities may be equitably estopped under the proper circumstances.” (citing Suggs v. Town of Caledonia, 470 So. 2d 1055 (Miss. 1985); Covington Cnty. v. Page, 456 So. 2d 739 (Miss. 1984); State v. Stockett, 249 So. 2d 388 (Miss. 1971))).
¶38. The three elements of equitable estoppel are as follows: “(1) Belief and reliance on some representation; (2) Change of position, as a result thereof; (3) Detriment or prejudice caused by the change of position.” Miss. Div. of Medicaid v. Yalobusha Cnty. Nursing Home, 346 So. 3d 413, 426 (¶ 47) (Miss. 2022) (internal quotation marks omitted) (quoting Suggs, 470 So. 2d at 1057).
¶39. By allowing multiple piers and harbors to be built over the years without first obtaining a lease, the Secretary of State represented that no lease would be required for the City to rebuild the pier in question here. RW changed its position by undertaking the expense and effort of planning and agreeing to rebuild. The change in position by the Secretary of State in now requiring a lease works to the detriment of RW by adding expense and delaying the process. RW argues in its brief that, because it is not being allowed to proceed, citizens—including handicapped citizens—are being denied the use of the pier, and efforts to promote tourism and economic development are frustrated. As such, all of the elements are satisfied for the application of equitable estoppel.
¶40. The State cites Cinque Bambini Partnership v. State, 491 So. 2d 508 (Miss. 1986), for the proposition that it cannot be equitably estopped from exercising dominion over public lands. In Cinque Bambini, however, a private party brought an action to quiet title and establish actual title and ownership of the state-owned land in question. Id. at 511. In the instant case, RW has not and does not contest State ownership. The issue is not whether the City owns title to the land, but whether it may rebuild a pier. The chancellor‘s application of equitable estoppel was, therefore, proper.
CONCLUSION
¶41. Mississippi statutory law grants Biloxi the authority to rebuild the pier. Also, the State‘s lengthy representation that such construction would be allowed without a lease results in the State‘s being estopped from requiring one here. Accordingly, we affirm the judgment of the chancery court.
¶42. AFFIRMED.
RANDOLPH, C.J., MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. KING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J., AND GRIFFIS, J.
KING, PRESIDING JUSTICE, DISSENTING:
¶43. Because the State maintains its right to demand a tidelands lease before
A. Statutory Interpretation
¶44. Statutes must be applied according to their plain meaning when the terms are not ambiguous. State ex rel. Hood v. Madison Cnty. ex rel. Madison Cnty. Bd. of Supervisors, 873 So. 2d 85, 90 (Miss. 2004). When two statutes deal with the same subject matter, they must be read in pari materia. Id. Thus, “they must be read together in light of legislative intent.” Tunica Cnty. v. Hampton Co. Nat. Sur., LLC, 27 So. 3d 1128, 1133 (Miss. 2009) (internal quotation mark omitted) (quoting Lenoir v. Madison Cnty., 641 So. 2d 1124, 1129 (Miss. 1994)). Such statutes “should if possible be construed in harmony with each other to give effect to each.” Id. at 1134 (internal quotation mark omitted) (quoting Miss. Gaming Comm‘n v. Imperial Palace of Miss., 751 So. 2d 1025, 1029 (Miss. 1999)). Specific statutes control over general statutes, but this rule only applies “when statutes are irreconcilably inconsistent.” Madison Cnty., 873 So. 2d at 91. The majority claims that specific statutes control over allegedly general statutes without any finding that the statutes were inconsistent (and indeed, it finds no conflict between the statutes), and without any attempt to analyze them in harmony with each other. Maj. Op. ¶ 34.
1. RW Development I
¶45. RW Development, LLC v. Miss. Gaming Comm‘n (RW Development I) involved a gaming site that is distinct from the property at issue, but much of the arguments centered on the nature of land adjacent to the gaming site. RW Dev., LLC v. Miss. Gaming Comm‘n (RW Dev. I), 307 So. 3d 404 (Miss. 2020). The State claims that the adjacent land in RW Development I overlaps with the property in question in this case. Namely, the State claims that the tidelands portion of the adjacent land in RW Development I is largely encompassed in the tidelands portion of the property to be leased. The record indicates that the adjacent tidelands referenced in RW Development I significantly overlap with the property to be leased.3
¶46. RW Development I dealt with multiple issues across multiple Gaming Commission cases. Generally, and relevant to this case, the Mississippi Gaming Commission (MGC), found that 1) RW failed to prove that its proposed site was within eight hundred feet of the mean high water line, and 2) RW failed to show that it owned or leased the property to the shore and failed to show how that property would be an integral part of the overall project. RW Dev. I, 307 So. 3d at 407-08.
¶47. RW argued that the sand beach was a public easement, relying on United States v. Harrison County, 399 F.2d 485 (5th Cir. 1968). RW Dev. I, 307 So. 3d at 414. This Court found RW‘s argument unclear, but posited that “[p]erhaps RW labels the sand beach as a ‘public easement’ in an attempt to exclude the beach from being counted” because statutory law exempted easements and rights of way for public streets and highways from being counted for the eight-hundred-feet requirement. Id. The Court noted that ”Harrison County supports the fact that the sand beach is not an easement; rather, it is owned by the state of Mississippi.” RW Dev. I, 307 So. 3d at 414.
¶49. Thus, as the land at issue overlaps with the sand beaches mentioned in RW Development I, it, while not directly addressing the issue at hand, is nonetheless persuasive authority that the State has a right to demand a tidelands lease from RW.
2. City Authority to Lease Tidelands to a Private Party
¶50. RW argues that the City has authority over the property via
¶51. But
¶52.
the power and authority to acquire, purchase, install, rent, lease, mortgage and/or otherwise encumber, to construct, own, hold, maintain, equip, use, control and operate at seaports or harbors, wharves, piers, docks, warehouses, cold storage facilities, water and rail terminals, airplane landing fields and strips, and other structures and facilities, needful for the convenient use of the same in the aid of commerce and navigation . . . .
¶53. Based on its plain language, this statute only gives municipalities the authority to construct and own buildings and specific structures surrounding harbors
¶54. The Public Tidelands Act was enacted with the purpose “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 . . . .”
[a]ll public projects of any federal, state or local government entity which serve a higher public purpose of promoting the conservation, reclamation, preservation of the tidelands and submerged lands, public use for fishing, recreation or navigation, or the enhancement of public access to such lands shall be exempt from any use or rental fees.
¶55. RW also filed a Rule 28(k) letter citing this Court‘s recent opinion in State ex rel. Watson v. Long Beach Harbor Resort, LLC, 346 So. 3d 406 (Miss. 2022), but that case is inapposite as it hinged on a tidelands lease between the State and governmental entity that specifically authorized the sublease at issue. Further, RW argues that the phrase in
¶56. Thus, reading all the statutes together, they do not irrevocably conflict, and the rights granted to municipalities do not automatically grant them a leasehold in tideland properties with the full rights to sublease such properties to private parties. The Secretary of State therefore had the authority to demand that RW obtain a tidelands lease in this situation that goes beyond mere pier construction, and the City was without authority to unilaterally lease the State‘s tideland property to RW.
3. County Authority to Lease Tidelands to a Private Party
¶57. The County argues and the majority finds that
¶58. The majority also indicates that the county has an easement over the property by virtue of Harrison County. But Harrison County was a contract dispute between the County and the United States. Harrison Cnty., 399 F.2d at 486, 491. The United States Court of Appeals for the Fifth Circuit repeatedly noted that the State owned the tidelands at issue, and simply noted that the Legislature had made a general grant of authority to Harrison County to complete the project with the federal government and maintain the resulting beaches as public beaches. Id. passim; RW Dev. I, 307 So. 3d at 414-15. Indeed, the Fifth Circuit, in reviewing Harrison County‘s authority to contract and act on the contract regarding the subject property, referred to the legislative act granting Harrison County authority as “a grant directly from the owner of the property.” Harrison Cnty., 399 F.2d at 489. Nothing in federal or state law grants Harrison County an unfettered easement over the entirety of the property at issue. In any event, an easement owner cannot take dominant possession of the land on which the easement exists. Rowell v. Turnage, 618 So. 2d 81, 85 (Miss. 1993). Thus, the County likewise did not possess the authority to lease tidelands to RW absent a lease from the Secretary of State.
B. Estoppel
¶59. The majority claims that the State is estopped from seeking a tidelands lease because it has not required tidelands leases to construct piers in the past. The State‘s delay in asserting dominion over tidelands does not generally give rise to an estoppel. Cinque Bambini P‘ship v. State, 491 So. 2d 508, 521 (Miss. 1986). “The State‘s title may not be lost via adverse possession, limitations or laches. Under no circumstances may title held by the State for the public use or benefit be so lost.” Id. (citations omitted). Regardless, such a finding narrows the issue to one not before this Court. Whether the State has acquiesced to municipalities, counties, and
¶60. The State has held title to tidelands for hundreds of years. None of the grants of specific authorities to municipalities and counties grant those entities a right to lease State property consisting of tidelands to a private entity. The State in this case had a right to demand that RW obtain a tidelands lease. The City and County had no authority to grant a lease to RW for the underlying State-owned tidelands in this case. The judgment of the chancery court should therefore be reversed; consequently, I dissent.
KITCHENS, P.J., AND GRIFFIS, J., JOIN THIS OPINION.