David Neil Harris, Sr. v. State of Mississippi , 256 So. 3d 574 ( 2018 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2016-CA-01057-SCT
DAVID NEIL HARRIS, SR., VECIE MICHELE
HARRIS, AND CLYDE H. GUNN, III
v.
STATE OF MISSISSIPPI, SECRETARY OF
STATE, JACKSON COUNTY, MISSISSIPPI, CITY
OF OCEAN SPRINGS, MISSISSIPPI AND
DELBERT HOSEMANN, JR.
DATE OF JUDGMENT: 07/12/2016
TRIAL JUDGE: HON. HOLLIS McGEHEE
TRIAL COURT ATTORNEYS: JOHN G. CORLEW
VIRGINIA T. MUNFORD
DAVID N. HARRIS, JR.
W. TREY JONES
JOSEPH A. SCLAFANI
HUGH D. KEATING
JE’NELL B. BLUM
ROBERT W. WILKINSON
AMY LASSITTER ST. PE’
DAVID CRANE
LEE D. THAMES, JR.
COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS: DAVID N. HARRIS, JR.
A. SCOTT CUMBEST
JOHN G. CORLEW
ATTORNEYS FOR APPELLEES: JOSEPH ANTHONY SCLAFANI
W. TREY JONES
HUGH D. KEATING
JE’NELL B. BLUM
LEE D. THAMES, JR.
DAVID CRANE
ROBERT W. WILKINSON
NATURE OF THE CASE: CIVIL - REAL PROPERTY
DISPOSITION: AFFIRMED - 11/08/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
CONSOLIDATED WITH
NO. 2016-CA-01116-SCT
CLYDE H. GUNN, III
v.
THE STATE OF MISSISSIPPI, C. DELBERT
HOSEMANN, JR., IN HIS OFFICIAL CAPACITY
AS SECRETARY OF STATE AND AS TRUSTEE
OF THE PUBLIC TIDELANDS TRUST, JACKSON
COUNTY, MISSISSIPPI AND CITY OF OCEAN
SPRINGS, MISSISSIPPI
DATE OF JUDGMENT: 07/12/2016
TRIAL JUDGE: HON. HOLLIS McGEHEE
COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS: DAVID N. HARRIS, JR.
A. SCOTT CUMBEST
JOHN G. CORLEW
ATTORNEYS FOR APPELLEES: JOSEPH ANTHONY SCLAFANI
W. TREY JONES
HUGH D. KEATING
JE’NELL B. BLUM
LEE D. THAMES, JR.
DAVID CRANE
ROBERT W. WILKINSON
NATURE OF THE CASE: CIVIL - REAL PROPERTY
DISPOSITION: AFFIRMED - 11/08/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER, C.J., COLEMAN AND CHAMBERLIN, JJ.
CHAMBERLIN, JUSTICE, FOR THE COURT:
¶1. Landowners David Neil Harris, Sr., Vecie Michelle Harris (“Harris”)1 and Clyde H.
Gunn III filed suits to confirm title to their waterfront properties in Ocean Springs,
1
After entry of final judgment in this matter, the Harrises sold their property and
assigned their rights in this cause of action. For consistency with the record, we will
continue to refer to the Harrises as the landowners.
Mississippi. The State of Mississippi (the “State”), the County of Jackson (the “County”)
and the City of Ocean Springs (the “City”) asserted title to a portion of the same waterfront
properties claimed by the landowners: a strip of sand beach located south of a road and a
seawall. After a full trial on the merits, the chancellor found that the State of Mississippi
held title to the sand beach in front of the Harris and Gunn properties as public-trust
tidelands. The landowners now appeal. After review, we find no error and affirm the
chancellor’s final judgments.
FACTS AND PROCEDURAL HISTORY
¶2. Harris and Gunn both own beachfront property along “East Beach” in Ocean Springs,
Mississippi. Hosemann v. Harris, 163 So. 3d 263, 265 (Miss. 2015). “Starting from the
Mississippi Sound going north, there is marsh grass, a sand beach, a seawall, a road, and the
yards of the Gunn and Harris properties.” Id.
¶3. Harris and Gunn previously filed for an injunction in Hinds County Chancery Court
to prevent the City from constructing a sidewalk on the beach. Sec’y of State v. Gunn, 75
So. 3d 1015, 1016 (Miss. 2011). As the parties represented that suits to confirm title had
already been filed in the Jackson County Chancery Court, the Hinds County Chancery Court
refrained from confirming title but did issue a permanent injunction preventing the City from
constructing the sidewalk. Id. at 1016–17, 1019. On appeal, this Court vacated the
permanent injunction and left the initial preliminary injunction in place until ownership of
the beach could be determined. Id. at 1017.
¶4. Harris and Gunn then each proceeded to confirm title in the Jackson County actions.
3
Harris, 163 So. 3d at 266. Their suits were consolidated first for discovery and later for all
purposes. Id.
¶5. Eventually, the chancellor granted Harris and Gunn partial summary judgment,
finding that under the Public Trust Tidelands Act (the “Tidelands Act”) the boundary of the
tidelands was the mean high-water line closest in time to July 1, 1973.2 Id. The chancellor
ruled “that the State had failed in its burden to produce admissible evidence showing the
boundary was not this line.” Id.
¶6. A trial was held on the County’s and City’s remaining adverse possession and
prescriptive easement claims. Id. “The chancellor confirmed and quieted title to the sand
beach in Gunn and Harris, subject to prescriptive easements for the County and City. The
court held the State, County, and City failed to prove adverse possession or public
prescriptive easement by clear and convincing evidence.” Id. at 266–67. The chancellor did
find that the County had an easement to maintain the sand beach for seawall protection and
that the City had an easement for road maintenance. Id. at 267.
¶7. The State, County and City appealed the decision. Id. On appeal, this Court reversed
the chancellor’s grant of partial summary judgment to Harris and Gunn, reversed the
remaining aspects of the chancellor’s judgment and remanded the case for a full trial on the
merits. Id. at 274.
¶8. On remand, a five-day trial was held. On June 3, 2016, the chancellor issued an
2
Subject to the common law, the Tidelands Act requires the boundary map of
tidelands in developed areas to use the determinable mean high-water line nearest the
effective date of the Coastal Wetlands Protection Act—July 1, 1973. Miss. Code Ann. § 29-
15-7(1)–(2) (Rev. 2010).
4
opinion letter to counsel, detailing his findings of fact and conclusions of law. The
chancellor also entered final judgments in both cases. The final judgments confirmed title
to Harris and Gunn to their properties up to the southern edge or toe of the seawall, except
for easements awarded to the County where the seawall was located and to the City where
the roadway was located. The judgments also confirmed that the sand beach located south
of the seawall was public-trust tidelands owned by the State. As to the injunction granted
by the Hinds County Chancery Court, the judgments directed the parties to provide the Hinds
County Chancery Court copies of the judgments to resolve the injunction. Last, the final
judgments recognized that the County and City had met their burdens of proof on their claims
of ownership to the sand beach through prescriptive easements and adverse possession. The
judgments noted, though, that the County’s and City’s claims did not and could not defeat
title held by the State.
¶9. Aggrieved, Harris3 and Gunn now appeal. Gunn raises two issues:
[I.] Whether the uncontradicted evidence demonstrates that the mean high
waterline along the South Boundary of the Clyde H. Gunn, III property
is located waterward of the seawall, waterward of the sand beach,
waterward of the marsh grass and waterward of the water’s edge and
pursuant to the Public Trust Tideland Act of 1989, that line is the line
of demarcation between public trust tidelands and private property and
Mr. Gunn is entitled to confirmation of his title to the water’s edge as
described in the continuous chain of title to his property commencing
with the conveyance of that property to Louis Arlan Caillavet by the
United States of America by patent dated February 2, 1837.
[II.] Whether there is clear and convincing evidence to support claims of
adverse possession and prescriptive easement made by Jackson County,
Mississippi and the City of Ocean Springs to the beach front property
3
Harris filed a motion to reconsider that the chancellor denied.
5
of Plaintiffs/Appellants.
We address the tidelands issue first; it is dispositive of Gunn’s appeal.4 Harris raises five
errors all of which concern the chancellor’s factual findings. For clarity, we combine a
number of these alleged errors and address them second.
STANDARD OF REVIEW
¶10. “This 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.’” Bayview Land, Ltd. v. State ex rel. Clark, 950 So. 2d 966, 971–72
(Miss. 2006) (quoting Columbia Land Dev., LLC v. Sec’y of State, 868 So. 2d 1006, 1011
(Miss. 2004)). “On the other hand, when we review questions of law, a de novo standard of
review is applied.” Id. at 972 (citing Tucker v. Prisock, 791 So. 2d 190, 192 (Miss. 2001)).
ANALYSIS
I. Tidelands Common Law and the Tidelands Act
¶11. The parties disagree on what law controls. Harris and Gunn argue that the boundary
line drawn by the Secretary of State, pursuant to the Public Trust Tidelands Act, governs.
It is undisputed that the Secretary of State drew this line seaward of East Beach in the waters
of the Mississippi Sound. Harris and Gunn support their argument by citing their deeds,
which describe their property as reaching “to the water’s edge.” The State, County and City
respond that the line drawn by the Secretary of State is not determinative of the boundary of
4
We refrain from addressing whether or not the County and City met their burden of
proof on their adverse-possession and prescriptive-easement claims. As discussed in detail,
the disputed beach is public-trust tidelands held in trust by the State. Neither the County nor
the City argue that it can defeat title held by the State.
6
the tidelands. Instead, they argue that the line functions as a starting point to determine the
boundary of the tidelands and does not control because they claim that the County
constructed East Beach. Thus, the State, County and City argue that the artificial beach is
tidelands, held in trust by the State. In order to resolve the controlling law, we begin our
analysis with a brief summary of the body of law as it is relevant to this appeal.5
A. A Brief Summary of Tidelands Law
¶12. “When admitted into the Union, the State of Mississippi was granted title to lands
subject to the ebb and flow of the tide and up to the mean high water level, without regard
to navigability.” Harris, 163 So. 3d at 268. The Mississippi Constitution provides that
“[l]ands belonging to, or under the control of the State, shall never be donated directly or
indirectly, to private corporations or individuals. . . .” Miss. Const. art. 4, § 95.
¶13. Despite article 4, section 95, this Court, in Harrison County v. Guice, held that the
upland landowner acquires fee simple title to additional lands created by filling tidelands
where the landowner had no part in creating the additional land. Harrison Cty. v. Guice, 140
So. 2d 838, 841–42 (Miss. 1962), overruled by Miss. State Highway Comm’n v. Gilich, 609
So. 2d 367 (Miss. 1992). The United States Court of Appeals for the Fifth Circuit declined
to follow Guice, recognizing article 4, section 95: “The common law doctrine of artificial
accretion must yield to the command of the Mississippi Constitution as to the disposition of
state owned lands.” United States v. Harrison Cty., Miss., 399 F.2d 485, 491 (5th Cir. 1968)
(citing Miss. Const. art. 4, § 95).
5
This Court has surveyed this body of law in depth multiple times. See Sec’y of State
v. Wiesenberg, 633 So. 2d 983, 988–89 (Miss. 1994); Bayview, 950 So. 2d at 972–77.
7
¶14. In 1989, the Legislature passed the Public Trust Tidelands Act “to resolve the
uncertainty and disputes . . . as to the location of the boundary between the state’s public trust
tidelands and the upland property.” Miss. Code Ann. § 29-15-3(2) (Rev. 2010). Also, the
Legislature confirmed “the mean high water boundary line as determined by the Mississippi
Supreme Court, the laws of this state and this chapter.” Id. It further recognized that tidelands
are held in trust for the public and that upland landowners have litoral and riparian common-
law rights. Miss. Code Ann. § 29-15-5(1) (Rev. 2010).
¶15. The Tidelands Act required the Secretary of State to map the boundary of the public-
trust tidelands. Miss. Code Ann. § 29-15-7(1) (Rev. 2010). In developed areas, the mapped
boundary was to be “the determinable mean high water line nearest the effective date of the
Coastal Wetlands Protection Act”—July 1, 1973. Id. Providing guidance for the mapping
process, the Legislature, though, recognized the ambulatory nature of the boundary of
tidelands, reaffirmed the doctrines of accretion and reliction and declared that “the common
law doctrine as it pertains to such tidelands, submerged lands and riparian and littoral rights
. . . [is] the law of this state.” Miss. Code Ann. § 29-15-7(2) (Rev. 2010).
¶16. Throughout the Tidelands Act, the Legislature provided a number of grievance
processes for upland landowners. Miss. Code Ann. § 29-15-7(4)–(6) (Rev. 2010). The
Tidelands Act required the Secretary of State to allow public comment on the preliminary
map for sixty days. Miss. Code Ann. § 29-15-7(4). Also, the Secretary of State had to notice
any landowners who were determined to be in violation of the final map, informing them that
they had three years to submit a contrary claim. Id. Further, if the dispute could not be settled
8
between the Secretary of State and the landowner, either party could petition the chancery
court to resolve the disagreement. Miss. Code Ann. § 29-15-7(5). Last, these grievance
processes were in addition to the right to quiet title, subject to a three-year statute of
limitations. Miss. Code Ann. § 29-15-7(6).
¶17. Without mention of the Tidelands Act (and before the Secretary of State finalized the
boundary map), this Court decided Mississippi State Highway Commission v. Gilich in
1992. Gilich, 609 So. 2d at 372–375. The Gilich Court overruled Guice and held that unless
the landowners could prove that a natural beach existed prior to the creation of an artificial
beach in the tidelands, the artificial beach was still tidelands held in trust by the State. Id.
at 374. The Court recognized that, “[o]nce held by the state in trust, properties are committed
to the public purpose and may be alienated from the state only upon the authority of
legislative enactment and then only consistent with the public purposes of the trust.” Id.
¶18. Two years after Gilich (and still before the finalized boundary map), this Court held
that the Tidelands Act was constitutional pursuant to a challenge from the Secretary of State.
Wiesenberg, 633 So. 2d at 989–94. This Court determined that the Tidelands Act did not
result in an unconstitutional donation of trust land and that any incidental loss of trust land
to an upward landowner was for the higher public purpose of determining the boundary of
the tidelands. Id. at 991–992. In reaching this conclusion, the Wiesenberg Court noted the
amount of discretion the Tidelands Act vested in the Secretary of State to consider “the
common law of this State pertaining to tidelands, submerged lands, and riparian and littoral
rights.” Id.; see also Stewart v. Hoover, 815 So. 2d 1157, 1161–62 (Miss. 2002)
9
(recognizing the common law’s application to the Tidelands Act); Bayview, 950 So. 2d at
981, 988 (same).
B. Hosemann v. Harris
¶19. With this law in mind, this Court remanded the dispute to the chancery court for a full
trial on the merits. Harris, 163 So. 3d at 274. The chancery court had granted partial
summary judgment to Harris and Gunn, finding that the State had failed in its burden to
produce admissible evidence that the boundary of the tidelands was not the mean high-water
line closest in time to July 1, 1973. Id. at 266. After the partial grant of summary judgment,
the case was tried and the chancery court held that the State, City and County had failed to
prove their claim of title to the beach either by adverse possession or by prescriptive
easement. Id. at 266–67. The chancery court quieted title in Harris and Gunn subject to the
County’s prescriptive easement for seawall maintenance and protection and the City’s
easement for road maintenance. Id.
¶20. In remanding, the Court noted that “the use of the 1973 starting point is subject to
state common law regarding tidelands, submerged lands, and riparian and littoral lands.” Id.
at 273. The Harris Court reasoned,
It is undisputed that the mean high water mark closest to July 1, 1973, is
seaward of the sand beach. However, this Court’s holding in Gilich . . .
show[s] that the 1973 water line is not controlling with regard to sand beaches
created by filling in tidelands. The State created genuine factual issues by
producing evidence supporting the conclusion that East Beach was constructed
by filling in tidelands.
Id. In essence, the Court applied common-law principles to the Tidelands Act and
recognized that the property owners would not hold title to East Beach if the beach was
10
artificial. Id. The Harris Court reversed the partial grant of summary judgment and “the
remaining aspects of the chancellor’s judgment as well.” Id. at 274.
C. The Application of Tidelands Law to the Dispute
¶21. The Secretary of State’s final boundary map reflects the intent of the Legislature by
applying common-law principles to the boundary of the tidelands. It is determinative of the
boundary of the tidelands. In December 1994, the Secretary of State finalized the Ocean
Springs Quadrangle of the map. The map includes a solid line drawn along the coast,
seaward of East Beach.
¶22. To be clear, the 1994 map is the culmination and expression of the Legislature’s intent
to determine the boundary of public-trust tidelands through the Tidelands Act. While the
Tidelands Act required the July 1, 1973, determinable high-water line to be used as a starting
point to determine the tidelands boundary, the 1994 map finalized the boundary of the
tidelands. In other words, the 1994 map is the finalized expression of the boundary of the
tidelands. The Secretary of State is bound to the map that he has drawn. Under the common
law, the 1994 map is only the starting point now in the sense that the Court must determine
what if any effect accretion and reliction has had on the boundary of tidelands subsequent
to the 1994 map’s finalization.
¶23. Here, though, the 1994 map’s legend reflects Gilich’s holding that artificially created
tidelands do not accrete to the upward landowner. The legend provides that the solid line
“[d]enotes approximate location of mean high water in areas where the current location of
said line (or the toe of the seawall in areas where beach renourishments has occurred) is the
11
boundary of public trust lands.” As this Court recognized in Wiesenberg, an “integral cog”
of the Tidelands Act was “the amount of discretion which the Secretary of State was granted
in finalizing the map.” The map’s legend is the result of this discretion—the Secretary of
State’s application of the common law to the boundary line of the tidelands. This Court has
repeatedly held that the July 1, 1973 “starting point is subject to state common law regarding
tidelands, submerged lands, and riparian and littoral lands.” Harris, 163 So. 3d at 273 (citing
Wiesenberg, 633 So. 2d at 986; Stewart, 815 So. 2d at 1162). Likewise, the 1994 map is
now the starting point subject to state common law regarding tidelands, submerged lands and
riparian and littoral lands.
¶24. The chancellor understood the controlling tidelands law and limited his opinion to
whether or not East Beach was a natural beach or a man-made beach. The chancellor wrote,
“the first line of inquiry must be to ascertain whether the disputed strip of sand is natural or
man made. The resolution of the natural versus man-made question will substantially control
the outcome of this matter.” We agree. The dispositive issue is whether or not East Beach
was a natural beach or whether it was an artificial beach created along a shoreline without
any prior natural beach. Given the legend on the 1994 map, East Beach is public-trust
tidelands because the chancellor found that East Beach was artificial and that there had not
been any natural beach along the prior shoreline.
II. Findings of Fact
¶25. At trial, the dispositive issue was whether or not East Beach was originally a natural
beach or man-made beach. The chancellor determined that the beach was man-made. On
12
appeal (after the resolution of Issue I), the question becomes whether the chancellor’s
judgment is manifestly wrong or unsupported by credible evidence. Harris raises several
alleged errors on the part of the chancellor.
A. Confirmation of Title
¶26. Harris first argues that the chancellor manifestly erred by failing to confirm title. He
contends that the chancellor failed to make “any specific findings regarding the location of
the southern boundary of the Harris and Gunn property.”
¶27. This argument—which the chancellor addressed in his denial of
reconsideration—ignores the plain language of the chancellor’s final orders. The
chancellor’s description confirmed the southern boundary of the Harris property:
. . . thence run South along the property formerly of Striegel a distance of 925
feet, more or less, to a concrete monument which monument is 120 feet West
of the point of beginning, thence continue South 87 feet, more or less to the
toe/south face of the current seawall, thence run East 120 feet along the
toe/south face of the current seawall . . . .
The description also described an easement in favor of the County “where the current seawall
is now located” and an easement in favor the City “where the current East Beach roadway
is now located.” Likewise, the chancellor described Gunn’s southern boundary:
. . . run thence South along the West line of the property of Striegel and along
a line parallel to and 222 feet East of the East line of said Ashley Place
Subdivision a distance of 1,015 feet, more or less, to a point on the North face
of the seawall, continue thence South to the tow of the seawall, run thence
West along the toe of the seawall 222 feet, more or less, to a point South of the
Point of Beginning. . . . Said property being bounded . . . South by the toe of
the seawall.
The Gunn description also awarded prescriptive easements in favor of the County “where the
13
seawall is located” and a prescriptive easement to the City “where the East Beach roadway
is located.” Harris’s argument that the chancellor erred by not confirming title is without
merit.
B. Witness Testimony
¶28. Next, Harris raises a number of issues that he maintains are manifest error in the
chancellor’s assessment of witness testimony. “This Court will not reverse a Chancery
Court’s findings of fact where they are supported by substantial credible evidence in the
record.” Mullins v. Ratcliff, 515 So. 2d 1183, 1189 (Miss. 1987). “Where there is
conflicting testimony, the chancellor, as the trier of fact, is the judge of ‘the credibility of the
witnesses and the weight of their testimony, as well as the interpretation of evidence where
it is capable of more than one reasonable interpretation.’” Sproles v. Sproles, 782 So. 2d
742, 747 (Miss. 2001) (quoting McKee v. Flynt, 630 So. 2d 44, 47 (Miss. 1993)).
¶29. After review of the chancellor’s judgments, opinion and the record, we find no
error—and certainly no manifest error. Ample evidence in the record supports each of the
chancellor’s final judgments in this matter. Many of Harris’s alleged errors on appeal are
simply disagreements with the factual determinations made by the chancellor.
1. Eyewitnesses
¶30. Harris contends that the chancellor manifestly erred concerning two eyewitnesses:
Joan Salvant and Larry Corban. Harris maintains that the chancellor erred in relying on
Salvant’s testimony, since she admitted that she was not familiar with the location of the
boundary lines of the Harris and Gunn properties. Regarding Corban, Harris argues that the
14
chancellor manifestly erred in finding that Harris and Gunn had not produced any
eyewitnesses of the East Beach area during the relevant time frame. Harris contends that
Corban provided eyewitness testimony about the East Beach area.
Joan Salvant 6
¶31. Salvant’s recorded deposition testimony was entered at trial by the State. Salvant
testified that she spent every summer in the 1930s, the 1940s and into the 1950s at her
family’s property on the shoreline that is now referred to as East Beach. Salvant explained
that Week’s Bayou was at the western end of the shoreline; her family’s property was further
east; and the Marine Research Lab area was the furthest east at the end of the shoreline.
Further, Salvant testified with familiarity to the whole coastline and had personally observed
both low and high tides along the coast.
¶32. Relevant to the Harris and Gunn properties, Salvant testified that prior to the late
1940s no dry sand—from Week’s Bayou east to the Marine Research Lab—would have been
left uncovered at high tide. On the east end of the shoreline, Salvant recalled that the water
nearly came up to the road with just enough room for her father to pull two wheels of their
family car off the road to park. Also, Salvant maintained that the current sand at the beach
along the shoreline was pumped up from the sound after World War II. She maintained that
this happened two different times during two different years. In 2004 for her fiftieth
6
As an unrelated aside, Joan Usner Salvant is a nationally recognized artist. Her
paintings and drawings are found in the art collections of two United States Presidents
(George H. W. Bush and Jimmy Carter), various United States Congressmen, a number of
state governors and various first ladies. Her artwork is on display in the National Museum
of Women in the Arts in Washington D.C. and at the University of Texas Visitors Center.
15
wedding anniversary, Salvant again visited East Beach. She observed East Beach from
Week’s Bayou to the Marine Research Lab. Salvant testified that the current East Beach was
not there prior to the end of World War II.
¶33. Harris now argues that the chancellor erred in relying on Salvant’s testimony because
Salvant had admitted she did not know the locations of the Harris and Gunn properties. Also,
Harris highlights the fact that Salvant did not know whether the sand that was pumped up
from the sound was pumped up in front of the Harris or Gunn properties.
¶34. The chancellor, however, did not abuse his discretion by relying on Salvant’s
testimony. Salvant testified that no dry sand was present at high tide the length of the
shoreline from Week’s Bayou (undisputedly west of the Harris and Gunn properties) to the
point of the shoreline where the Marine Research Lab was built (undisputedly east of the
Harris and Gunn properties). She also testified that sand was pumped from the sound along
this same section of shoreline.7
¶35. Further, substantial evidence corroborated Salvant’s testimony. Jane Beaugez, an
Ocean Springs resident since the late 1940s, testified to the changes in the shoreline
throughout the years. Beaugez was familiar with the location of the Harris and Gunn
properties and testified that from her earliest memory no uncovered sand was visible at high
7
As the chancellor noted in denying reconsideration,
It is axiomatic to say the ‘Plaintiffs’ property’ was not known to Mrs. Salvant,
the Plaintiffs had no property and were likely not yet even born when Mrs.
Salvant was making her observations of the area in question. Mrs. Salvant’s
observations, which she gave in detail, covered the entire area presently
encompassed by the Gunn and Harris’ properties.
16
tide in front of either property. She further testified that the high tide came up to the seawall
before the beach was built and that government workers built the beach by pumping in and
trucking in sand.
¶36. Expert testimony also corroborated Salvant’s account of the shoreline. The State’s
expert, Dr. Claus Meyer-Arendt (discussed below) concluded that East Beach along the
shoreline was artificial. He also concluded that the current seawall was placed seaward of
the former mean high-tide line—in the tidelands.
¶37. Much of the material that Meyer-Arendt relied on to form his conclusions was entered
into evidence and corroborates Salvant’s testimony. This evidence included newspaper
articles and various documents concerning the construction of East Beach and its seawall.
¶38. Also, a composite of newspaper clippings referencing the construction of the seawall
and East Beach lent credence to Salvant’s testimony. One article, dated August 4, 1949,
states, “Plans call for a sea wall similar to the sea wall at West Beach. The county dredge
will place sand up against the wall forming a nice bathing beach beyond the wall.” Another
article, dated May 26, 1951, states, “The Ocean Springs seawall will be extended
approximately one-half mile from its present terminus to Halstead road, a sand beach pumped
in along the length of the wall and a new 40-foot roadway constructed behind it.”
¶39. Correspondence between the Jackson County Board of Supervisors and the United
States Army Corp of Engineers also supports portions of Salvant’s account. According to
Meyer-Arendt, the Jackson County Board of Supervisors, in their request for permission to
build a beach, attached a map depicting that “the beach would be built to a width of 200 feet
17
along the entire length of the East Beach.” The response letter from the United States Army
Corp of Engineers, dated January 25, 1954, states, “you are hereby authorized by the
Secretary of the Army to construct a sand beach 200 to 300 feet wide by 11,700 feet long,
in [the] Mississippi Sound, fronting Ocean Springs, Mississippi.”
¶40. Also supporting portions of Salvant’s testimony, a number of the minutes from
various meetings of the Jackson County Board of Supervisors concerning the construction
of the seawall were admitted in evidence. The proposal for the seawall was presented at a
July 19, 1949, meeting, and the specifications for the wall were explained to potential bidders
in 1950.
¶41. In light of the evidence, the chancellor did not manifestly err in relying on Salvant’s
recollection. Despite the fact that Salvant was not familiar with the boundary line of the
Harris and Gunn properties or the specific locations of the properties, she clearly testified
about the entire length of the shoreline from Week’s Bayou to the Marine Research Lab.
Further, other evidence corroborates her account.
Larry Corban
¶42. Corban’s testimony from a previous proceeding was introduced; he testified that he
first saw the East Beach area in 1946 or 1947. Corban testified that as far as he could recall
no substantial change in the waterfront on East Beach had occurred in his lifetime. Also,
Corban testified that “It’s my understanding that Jackson County built a seawall and road
while I was in college, would have been in about 1950.” Last, Corban testified that no
substantial change had occurred to the properties from his first recollection in 1947 to the
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depiction of the properties in a 1992 aerial photograph.
¶43. Harris argues that the chancellor erred in finding that Harris and Gunn did not offer
eyewitness testimony about the East Beach area. The actual issue here is that Harris does not
agree with the chancellor’s assessment of the weight and credibility of Corban’s testimony.
It is well settled law that “the chancellor, as the trier of fact, is the judge of ‘the credibility
of the witnesses and the weight of their testimony . . . .’” Sproles, 782 So. 2d at 747 (quoting
McKee, 630 So. 2d at 47). Two out of three of Corban’s answers on direct examination were
not definite: “Not that I recall” and “It’s my understanding . . . while I was in college. . . .”
Corban admitted that he was in college during the critical time period in the early 1950s.
¶44. Also, it is clear that the chancellor did consider Corban’s testimony. In the final
opinion letter sent to counsel, the chancellor mentioned that he considered all of the contrary
evidence in coming to his conclusions: “There is contrary evidence, as noted above and as
otherwise reflected in the record, all of which the court has considered. However, when the
evidence supporting the claim of a natural beach is weighed against that supporting a man
made beach the former position is, at best, weak.” We find no error.
2. Expert Testimony
¶45. Harris claims two specific errors concerning the expert testimony admitted at trial.
First, Harris argues that the chancellor blatantly disregarded the testimony of Donald Rowe
who testified about his survey of the current mean high-water line. Second, Harris argues
that consideration of the full expert report of Meyer-Arendt demonstrates that the mean high-
water line has always been in the same location (and, therefore, East Beach is a natural
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beach). Neither argument has merit.
Donald Rowe
¶46. At trial, Rowe testified to his survey of the current mean high-water line on February
22, 2012, for the Harris and Gunn properties. On that day, the mean high-water line for the
Harris property ranged from 114 feet to 117 feet from the seawall. For the Gunn property,
the range was from 137 feet to 145 feet from the seawall to the mean high-water line.
¶47. Rowe’s testimony, though, was not relevant to the dispositive legal issue at trial of
whether or not the beach was natural or man-made. The fact that the mean high-water line
was seaward of the current East Beach was an uncontested issue at trial. The contested issue
at trial was whether or not East Beach was natural (and not tidelands) or man-made (and,
therefore, tidelands). Thus, the chancellor did not manifestly err here.
Dr. Claus Meyer-Arendt
¶48. Next, Harris argues that the chancellor erred by not considering Meyer-Arendt’s
testimony that his 1992 report concluded that a sand beach had existed along the shoreline
in 1950. According to Harris, this fact, combined with Rowe’s survey, demonstrates that
East Beach was a natural beach.
¶49. Nothing in Meyer-Arendt’s report, though, conflicts with the chancellor’s conclusion
that East Beach was man-made. Indeed, the 1992 report supports the position: “Apparently
some sand was placed on East Beach prior to the onset of seawall construction in 1949 . . .
, the modern beach was not completed until a second phase of nourishment in 1954 . . . .”
The report also states, “The 1950 coastal chart . . . reflected the initial disposal of dredge
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spoil at both Front and East Beaches, where the shoreline had been displaced about 200 ft
(60 m) seaward along most of Front Beach and about half of that along East Beach (see
figure 2).” Also, as already mentioned, Salvant testified that sand was pumped in to create
East Beach in two separate years. The chancellor did not manifestly err in his consideration
of the expert report.
C. Invasion of Property Rights
¶50. Last, Harris argues that the chancellor manifestly erred by failing to acknowledge that
any action by Jackson County in creating East Beach was an invasion of private property
rights, constituting a taking without just compensation under the Fifth and Fourteenth
Amendments. To support his argument, Harris again cites the testimony of Rowe and
Meyer-Arendt, arguing that their testimony (discussed above) supports the claim that Jackson
County pumped sand onto the Harris and Gunn properties.
¶51. Harris’s argument requires this Court to accept his interpretation of the evidence
rather than the chancellor’s findings. Harris maintains that Jackson County violated his
property rights by pumping in sand on the East Beach shoreline because the 1954 letter from
the United States Army Corp of Engineers conveyed no property rights to the Jackson County
Board of Supervisors. Harris ignores, though, the earlier statement in the letter that the
Board of Supervisors was authorized to create a sand beach “in [the] Mississippi Sound.”
In denying reconsideration, the chancellor stated, “Thus, because the evidence establishes
that [the] beach was constructed in State-owned tidelands, the construction of the beach did
not invade the property rights of the Plaintiffs.” After review, we find no error here.
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CONCLUSION
¶52. The chancellor correctly determined that the question of whether or not East Beach
was natural or artificial controlled the legal dispute as to the boundary of the tidelands. With
this legal framework established, the chancellor determined that no natural beach existed on
the shoreline prior to the construction of East Beach. Ample evidence in the record supports
this determination. Therefore, we affirm the chancellor’s final judgments.
¶53. AFFIRMED.
WALLER, C.J., KITCHENS, P.J., KING, COLEMAN, MAXWELL, BEAM
AND ISHEE, JJ., CONCUR. RANDOLPH, P.J., NOT PARTICIPATING.
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