ROBERTSON, Justice, for the Court:
I.
This highly localized controversy presents questions of great public importance: whether (and which) freshwater rivers and streams are held by the state for public use and by what criteria we address the question.
In the case at bar, the Chancery Court held that riparian Landowners in southeastern Pike County held rights in the Bogue Chitto River such that they could of right exclude the public from the surface waters. Finding that the Court erred in its fundamental premises, we reverse and render on this issue. In all other respects the judgment of the Chancery Court is affirmed.
II. A.
Darrell Ryals and Allen Ryals (Ryals) are adult resident citizens of Pike County, Mississippi, who do business as a partnership under the trade name of Ryals Rentals. Jimmy Barrett (Barrett) is an adult resident citizen of Pike County, Mississippi, who does business as a sole proprietorship under the trade name of Bogue Chitto Choo Choo. Ryals Rentals and Bogue Chitto Choo Choo have their principal offices near the banks of the Bogue Chitto River in southeastern Pike County below U.S. Highway 98 and are in the business of renting to members of the public canoes and tubes for floating the River. Darrell Ryals, Allen Ryals and Jimmy Barrett were the Plaintiffs below and are the Appellants here, and are sometimes collectively labeled Plaintiffs.
Charles Ray Pigott and Otis Ray House are adult resident citizens of Pike County, Mississippi. Glen W. Crawford and Julius O'Quinn, Jr. are adult resident citizens of Walthall County, Mississippi. Pigott, House, Crawford and O'Quinn are riparian Landowners through whose property in southeastern Pike County the Bogue Chitto River flows. Pigott, House, Crawford and O'Quinn were among the Defendants below and are among the Appellees here, and are sometimes collectively labeled Landowners.
Duane Dillon was and is an adult resident citizen of Pike County, Mississippi, and is the duly elected and serving Sheriff of that county. Sheriff Dillon was a Defendant below and is one of the Appellees here.
B.
The Bogue Chitto River in southeastern Pike County has for a number of years been
. . . popular with the general public for canoeing, tubing, swimming, camping, fishing and other outdoor recreational activities, . . .,
and the Chancery Court so found. Over the years conflicts have arisen between riparian Landowners and those using the River, and those conflicts have escalated of late. One source of strife has been that persons using the River deposit debris and litter. Landowners became particularly concerned when one of their number was sued in a personal injury action. Dumas v. Pike County, Mississippi, 642 F. Supp. 131 (S.D.Miss. 1986).
In any event, on June 29, 1987, by reason of real or imagined fears that, just before the commercially lucrative Fourth of July weekend, Landowners and Sheriff Dillon were about to close the River, Ryals and Barrett commenced the present proceedings by filing their complaint in the Chancery Court of Pike County, Mississippi, demanding of and against Landowners and Sheriff Dillon declaratory, injunctive, monetary and other relief.
On July 3, 1987, the Court heard ex parte Plaintiffs' application for temporary relief and, upon finding "that the Bogue Chitto River was a public waterway," temporarily enjoined Defendants from interference with Plaintiffs' enjoyment of the River, subject to Plaintiffs' posting specified security. Plaintiffs failed to post security, and the injunction never issued.
In due course, the matter came on for trial, and, on February 29, 1988, the Court released an opinion finding, inter alia, that the Bogue Chitto River in the area in question was not a public waterway within the meaning and contemplation of Miss.Code Ann. §§ 1-3-31 or 51-1-3 (1972), nor within Miss. Code Ann. § 51-1-4 (1972). Even if the River satisfied Section 51-1-4, the Court held that statute, as it then read, a taking of Landowners' property rights in the River. By reason of the private nature of the River, the Court held Landowners' rights in it protected by Miss. Const. Art. 3 §§ 14 and 17 (1890), such that the public could acquire no rights therein without payment of due compensation.
At the time of trial and at this time, Miss. Code Ann. § 1-3-31 (1972) read(s) as follows:
Navigable waters.
All rivers, creeks and bayous in this state, twenty-five miles in length, and having sufficient depth and width of water for thirty consecutive days in the year to float a steamboat with carrying capacity of two hundred bales of cotton, are navigable waters of this state and public highways.
Inexplicably, a near verbatim version of Section 1-3-31 appears as Miss. Code Ann. § 51-1-1 (1972).
At the time of trial, Miss. Code Ann. § 51-1-3 (1972) read:
Navigable waters as public highways.
All bays, inlets, and rivers, and such of the lakes, bayous, and other watercourses as shall have been, or may be, declared to be navigable by act of the legislature or by the board of supervisors of the county in which the same may be, shall be public highways.
After trial, Section 51-1-3 was repealed. See Miss. Laws, ch. 598, § 2 (1988), effective May 25, 1988.
At the time of trial, Miss. Code Ann. § 51-1-4 (Supp. 1987) read as follows:
What constitute public waterways; rights therein.
Such portions of all natural flowing streams in this state having a length of not less than five (5) miles and which have an average depth along the thread of the channel of three (3) feet for ninety (90) consecutive days in the year and which have an average width at low water of not less than thirty (30) feet, shall be public waterways of the state on which the citizens of this state and other states shall have the right of free transport and the right to fish and engage in water sports; provided, however, such person exercising the rights herein granted shall do so at his own risk and such persons shall not be entitled to recover any damages against any person, firm or corporation for any injury to or death of persons or damage to property arising out of the exercise of rights herein granted unless such persons would have been entitled to recover such damages against such person, firm or corporation under the laws of this state prior to the enactment of this act provided that nothing herein contained shall authorize the persons, firms or corporations utilizing said public waterways, under the authority granted hereby, to launch or land any commercial or pleasure craft along or from the shore of such waterways, except as may be otherwise authorized by law. Provided, further, that except as otherwise provided by law nothing herein contained shall authorize any person, form or corporation utilizing said public waterways, under the authority granted hereby, to disturb the banks or beds of such waterways or discharge any object or substance into such waters or upon or across the lands adjacent thereto.
Section 51-1-4 has been substantially amended. See Miss. Laws, ch. 598, § 1 (1988) (effective May 25, 1988).
On March 24, 1988, the Chancery Court entered final judgment dismissing Ryals' and Barrett's complaint with prejudice. From this order, the Plaintiffs prosecute the present appeal.
III.
The River Bogue Chitto flows through at least three counties in South Mississippi. It has its source in Lincoln County just south of Brookhaven, where East Bogue River merges with West Bogue River, and flows southeasterly through Pike and Walthall Counties and into the State of Louisiana where it meanders further to the east and — at least 175 miles below its source — conjoins with the Pearl River, which in turn flows into the Gulf of Mexico. The Bogue Chitto is no "small river." It is certainly not short.
Luke Ward Conerly in his History of Pike County, Mississippi, 1798-1876 (1909), describes "the beautiful Bogue Chitto River" in pre-Civil War days.
This stream takes its rise from a multitude of springs and branches that come out north and west of Brookhaven, in Lincoln County, Bogue Chitto and Johnson stations, and flows in a southeasterly direction through Pike County and Washington Parish and empties into Pearl River in St. Tammany Parish, La. It is one of the most lovable and picturesque streams to be found anywhere in the South. Its waters, coming from pure limpid springs that supply its numerous tributaries, flow softly and sweetly over gravel beds from the northern boundary of the county till it passes away in its meanderings into Louisiana, mirrowing in its bright waters the grand scenery bordering either side of it for over a hundred miles. At intervals, and alternately, it is overlooked by high ridges covered with majestic pine, oak, beech, magnolia and a multitude of other valuable growth, that moan eternally as they are fanned by the ocean's breezes. Its waters, like all other inland streams, were full of fish, and its forests inhabited by wild game in great abundance, and the trapper and the hunter had all the employment desired.
* * * * * *
The river for a long distance in front of Holmesville [just north of the area in dispute today] was deep and unfordable and had to be crossed on flatboats made for the purpose and used as public ferries.
Conerly, at 15.
See Steamboat Magnolia v. Marshall, 39 Miss. 109, 121 (1860); Morgan v. Reading, 11 Miss. (3 S. M.) 366, 401-402 (1844). The Steamboat Magnolia case is particularly revealing for its quotation from De Jure Maris (1667) where Lord Hale itemizes and lists among "public rivers, juris publici" not only the Thames River but also "the rivers Wey [and] Severn." Steamboat Magnolia, 39 Miss. at 121. The Severn River is approximately 180 miles long, about the same as the Bogue Chitto. The Wey River, however, is only 35 miles long, meandering through the Surrey County countryside.
The Steamboat Magnolia incorporated into the law of this state the English rules for deciding whether rivers are public or private. When it accepts that rivers such as the Wey and Severn are public, one who would exclude a 175 mile river such as the Bogue Chitto shoulders a burden Landowners bear not poorly but not at all.
The Bogue Chitto has been with us through the millenia. The Choctaws aptly named it "big creek." The many communities that dot its banks and follow its course stand as eloquent testimony to its centrality in the lives of people, then and now. Within this century it has been enough of a river to have avulsively changed its course at least twice, below the Mississippi-Louisiana state line. See Bickham v. Bankston, 210 So.2d 88, 91 (La. App. 1968).
Charles T. Branch, qualified at trial as an expert on water management, used maps and graphs compiled by the U.S. Geological Survey, and told us that "today" just above the area in dispute the River's average depth is greater than four feet, its average width greater than seventy feet.
Director of the Bureau of Land and Water Resources, Mississippi Department of Natural Resources.
Well, the stage during the time of which the U.S.G.S. cross sections was taken was 6.26 feet. That is a stage which would have been this low level right here which still would have been a depth of some 5 feet at the bridge. The seven-eight-ten-year low flow which is a baseline flow we use in water resource regulation would correspond to a stage of 5.95 feet and a discharge of 188 cubic feet per second.[
] At that stage you still would have a depth of some five feet or near five feet and at the minimal flow of record of a stage of 5.093 feet which is a record low flow of 175 cubic feet per second which occurred October 31, 1963. You still would have a depth in excess of four feet at that bridge at the deepest part of the channel.
Although the study dealt with an area just north of that in question, Branch reminded us of the obvious: that, as you go further south, the River's drainage area and flow increases from tributaries. The channel size of the River will increase to accommodate that flow, becoming larger the closer it gets to the Gulf of Mexico. We note that the U.S.G.S. conducted its study in summer low-water conditions, and the Bogue Chitto still measured in excess of 120 feet across at some points.
For example, the U.S. Geological Survey shows the average discharge for the Pearl River to be 4.084 at Jackson and 7.384 ft/s at Columbia. Water Resource Data at 105, 113.
In its ordinary condition the Bogue Chitto River is capable of supporting navigation and transportation by canoes, outboard motor boats and other small vessels. Without doubt it could support travel by the once familiar flatboats. The feasibility of floating logs down the river may be questionable, but it could be done. The River is popular with the public for canoeing, fishing and other outdoor recreational activities, many of which have a commercial component.
Luke Ward Conerly reports, again in pre-War days that
The beautiful river with his crystal waters flowing past its doors afforded recreation in boating, bathing and fishing.
Conerly, supra, at 115, referring to the River near Holmesville.
Fallen trees, sunken logs, or silt may clog the River at points, but this means only that the state has not pursued its constitutional and political prerogative of purging the channel of obstructions to navigation. See Miss. Const. Art. 4, § 81 (1890); Dycus v. Sillers, 557 So.2d 486, 501 (Miss. 1990). The suggestion below that the River is not navigable, if it invokes Section 1-3-31's 200 bales-of-cotton-steamboat test, is but irrelevant, as we presently explain. The suggestion is otherwise disingenuous, for the very seeds of this suit have been substantial and continuous (and commercially augmented) navigation of the Bogue Chitto River by weekend pleasure boaters, canoers and tubers.
Because the Bogue Chitto is perceived a public river, public recreational facilities abut its banks. These include (a) Summit Water Park northeast of McComb, providing a boat launching ramp, (b) Bogue Chitto Water Park, twelve miles east of McComb and near to the area here in controversy, providing canoe rentals, mapped float trips, and boat launching, and (c) Walker's Bridge Water Park in Walthall County, providing boat launching. Holmes Water Park lies on the bank of Magee's Creek only a few feet above its entry into the Bogue Chitto in Walthall County.
We take comfort in the fact that others, who have considered the matter more thoughtfully than have we here, long regarded the Bogue Chitto River as in the public domain. In October of 1966 the Mississippi Research and Development Center published Outdoor Recreation Plan: Resources and Opportunities in Mississippi, citing the Bogue Chitto as among the rivers "presenting potential opportunities for water-recreation," including fishing, boating and water-skiing, and swimming. Page 3.33. In 1976 the Bureau of Outdoor Recreation, Mississippi Park Commission, updated the State-wide Comprehensive Outdoor Recreation Plan and recommended state maintenance and preservation of a series of free flowing rivers. Among these we find the entry, "Particularly cited is the Pearl River system, including `Bogue Chitto River: U.S. Highway 51, Lincoln Co. to La. Line.'" See page 90.
More recently the Department of Natural Resources has published a partial listing of streams qualifying for public waterway status, including the Bogue Chitto River from the "confluence of Boone Creek, Lincoln County, to the MS-LA state line." See note 7, supra; Part IV(F), infra.
IV. A.
The Chancery Court correctly observed ab initio
A navigable stream is in effect public property, while a non-navigable stream belongs to the owner of the lands through which it flows. If the Bogue Chitto is navigable, then it has always been owned by the state in trust for the public. If it is not navigable it belongs to the landowners of the property through which it ran, prior to 1972.
Whether our River be navigable, and what may be meant by "navigable," are but means to our guess whether the River be public.
Otis Ray House, one of Landowners' number, was close to the mark in this colloquoy with counsel opposite:
Q If somebody floats that river all the way and their foot does not touch the bank on the side or the bottom, is it your position they're trespassing?
A If their foot don't ever touch the bottom, they are not trespassing.
Q That's your view?
A Yes.
Q And that's your understanding of the situation.
A Yes. Yes.
Q All right.
A The state owns the water in my opinion. That's the way I have looked at the thing.
B.
Our federal forebears founded today's law. Under the familiar Equal Footings Doctrine, the sovereign United States conveyed the waters in trust for the people, acceptance by the states being a condition of statehood, and through its law the federal sovereign has identified the waters so conveyed according to the common need. Cinque Bambini Partnership v. State, 491 So.2d 508, 511-12 (Miss. 1986), aff'd sub nom. Phillips Petroleum Company v. Mississippi, 484 U.S. 469, 108 S.Ct. 791, 98 L.Ed.2d 877 (1988); reh. den. 486 U.S. 1018, 108 S.Ct. 1760, 100 L.Ed.2d 221 (1988). Fishing to put food on one's table, directly or through the medium of exchange, for sport or for recreation, has long been prominent among those needs and hence among the federal government's public purposes in withholding waters from private ownership. Phillips Petroleum, 484 U.S. at 476, 482, 484, 108 S.Ct. at 795, 798, 799, 98 L.Ed.2d at 885, 889, 890; Shively v. Bowlby, 152 U.S. 1, 57, 14 S.Ct. 548, 569, 38 L.Ed. 331 (1894); Hardin v. Jordan, 140 U.S. 371, 381, 11 S.Ct. 808, 811, 35 L.Ed. 428 (1891); Smith v. Maryland, 59 U.S. (18 How.) 71, 78, 15 L.Ed. 269 (1855); Martin v. Waddell's Lessee, 41 U.S. (16 Pet.) 367, 412-14, 10 L.Ed. 997, 1013 (1842). Before and after statehood travel was not easy. Rivers were a major means of mobility, often the only means, "the only way to the outside world," and few resorted to 200 bale capacity steamboats, not just because they were not then dreamt of but because they were not necessary. We doubt there was a soul who saw the Bogue Chitto susceptible of private ownership for the first century of our existence.
Owens, Steamboats and the Cotton Economy: River Trade in the Yazoo-Mississippi Delta 1 (publication pending, 1990). Prof. Owens carefully documents small steamboat traffic on the Yazoo and Sunflower River Systems, particularly in 1870-90. Of note is the traffic on the Sunflower, Tallahatchie, Yalobusha and Quiver Rivers and into Bogue Philia, all natural flowing streams like unto the Bogue Chitto.
See Conerly, supra, at 15, 114-115.
Quite duplicatively, the Act of Congress authorizing formation of this state provided:
That the River Mississippi, and the navigable rivers and waters leading into the same, or into the Gulf of Mexico, . . ., shall be common highways, and forever free, . . . .
3 Stat. 348, 349 (1817). The Bogue Chitto River was and is a "navigable river and water" leading into the Gulf of Mexico.
The finding that the Bogue Chitto is public waters firmly founded in federal law, we turn to the law of this state.
C.
The United States has historically accorded the several states great latitude in implementing and administering the public trust, and in pursuance thereof, in delineating the waters and tidelands each has held in trust, see Phillips Petroleum, 484 U.S. at 475, 108 S.Ct. at 794, 98 L.Ed.2d at 885, though the question is ultimately one of federal law. This state has not been timid in exercising this privilege.
First, our legislature has been active. At the time of trial at least three state legislative enactments were independently adequate that the Bogue Chitto River in southeastern Pike County be public, only one of which is here challenged under the constitution.
The question what waters are public is one of law and thus one ultimately for the judicial department of government. Still, it is a fact of our political history that our legislature has been a principal expositor, telling us from time to time what waters are public, see Howard and Hutchinson, Miss.Stats., ch. 38, § 55 (1840) through and including Miss. Laws, ch. 598 (1988).
The Chancery Court held unconstitutional Section 51-1-4 as it existed prior to 1988.
Without doubt, our constitutional scheme contemplates the power of judicial review of legislative enactments, Alexander v. State ex rel. Allain, 441 So.2d 1329, 1333 (Miss. 1983); however, that power may be exercised affirmatively only where the legislation under review be found
in palpable conflict with some plain provision of the . . . constitution.
Hart v. State, 87 Miss. 171, 176, 39 So. 523, 524 (1905). Statutes such as (now repealed) Section 51-1-3 come before us clothed with a heavy presumption of constitutional validity. See, e.g., Burrell v. Mississippi State Tax Commission, 536 So.2d 848, 858-59 (Miss. 1988); In Re Estate of Smiley, 530 So.2d 18, 21-22 (Miss. 1988); Jones By Jones v. Harris, 460 So.2d 120, 122 (Miss. 1984); Clark v. State ex rel. Mississippi State Medical Association, 381 So.2d 1046, 1048 (Miss. 1980); Genesco, Inc. v. J.C. Penney Co., Inc., 313 So.2d 20, 24 (Miss. 1975); McCaffrey's Food Market, Inc. v. Mississippi Milk Commission, 227 So.2d 459, 462 (Miss. 1969). It is our duty to sustain it if this may be done without violence to constitutional concepts. To state that there is doubt regarding the constitutionality of an act is per force to declare it constitutionally valid. Ivy v. Robertson, 220 Miss. 364, 370, 70 So.2d 862, 865 (1954); Russell Investment Corp. v. Russell, 182 Miss. 385, 419, 182 So. 102, 107 (1938); The Sandy Bayou Mandamus Case (State ex rel. Greaves v. Henry), 87 Miss. 125, 143, 40 So. 152, 154 (1906). See also Loden v. Mississippi Public Service Commission, 279 So.2d 636, 640 (Miss. 1973); Chassanoil v. City of Greenwood, 166 Miss. 848, 860, 148 So. 781, 783 (1933) aff'd, 291 U.S. 584, 54 S.Ct. 541, 78 L.Ed. 1004 (1934); Hart v. State, 87 Miss. 171, 176-177, 39 So. 523, 524 (1905).
(1) Miss. Laws, ch. 361, § 1 (1972) vested in the public "the right of free transportation . . . to fish and engage in water sports" on
such portions of all natural flowing streams in this state having the length of not less than five miles and which has an average depth along the thread of the channel of three feet for ninety consecutive days in the year and which have an average width at low water of not less than thirty feet. . . .
This enactment was codified as Miss. Code Ann. § 51-1-4 (Supp. 1973-1987).
(2) Miss. Laws, ch. 82, § 12 (1892) provided
All bays, inlets, and rivers, . . ., shall be public highways.
This enactment has been amended so that the test for whether waters are public is now
such portions of all natural flowing streams in this state having a mean annual flow of not less than one hundred cubic feet per second, . . . .
Miss. Laws, ch. 598, § 1 (1988) now codified as Miss. Code Ann. § 51-1-4 (Supp. 1989). See notes 3, 7 and 10, supra.
This statute was codified as Miss. Code Ann. § 51-1-3 (1972).
(3) Miss. Laws, ch. 197, § 2 (1958) declares
that the waterways . . . of the state are among its basic resources . . . and that the preservation, conservation, storage and control of the
waters of the Pearl River
and its tributaries and its overflow waters for domestic, municipal, commercial, industrial, agricultural, and manufacturing purposes,
for recreational uses, for flood control, timber development, irrigation, and pollution abatement are, as a matter of public policy, for the general welfare of the entire people of the state.
This statute was repealed in 1988. See Miss. Laws, ch. 598, § 2 (1988), and replaced by what is now Section 51-1-4. See notes 2 12, supra.
This enactment has been codified as Miss. Code Ann. § 51-9-103 (1972). The Bogue Chitto River is the principal and largest tributary of the Pearl River; hence, this enactment declares those waters public for recreational uses, among others, "for the general welfare of the entire people of the state."
The government of this state administers the federally settled and funded public waters trust. The legislative department of that government has thus declared through its statutes, both as they existed at the time of trial and as they exist today, the Bogue Chitto River is a part of the public waters of the State of Mississippi, open to all of her citizens, and, as well, to citizens of other states.
Of course, small waters and man-made lakes and ponds are susceptible of private ownership and where they are privately owned they cannot be taken without just compensation. U.S. Const. Amends. 5 14; Miss. Const. Art. 3, § 17 (1890); Dycus v. Sillers, 557 So.2d 486, 502-03 (Miss. 1990). Of this there can be no doubt, but the converse premise is equally plain. Waters which are public by virtue of the Constitution and the Equal Footings Doctrine, Phillips Petroleum Co. v. Mississippi, 484 U.S. at 473-74, 108 S.Ct. at 793-94, 98 L.Ed.2d at 884, may not — by legislative enactment or judicial decree — be withdrawn from public use. Our legislature has attempted no such withdrawal, and we should be wary of suggestions for judicial proaction.
The beds of navigable freshwater rivers, lakes and streams are susceptible of private ownership. Dycus v. Sillers, 557 So.2d 486, 498 (Miss. 1990); Cinque Bambini, 491 So.2d 508, 517 (Miss. 1986); State Game Fish Commission v. Louis Fritz Co., 187 Miss. 539, 563, 193 So. 9, 11 (1940); Morgan v. Reading, 11 Miss. (3 S. M.) 366, 399 (1844). Mississippi's view of the private property rights of riparian landowners has become firmly established and widely recognized, Archer v. Greenville Sand Gravel Co., 233 U.S. 60, 67-69, 34 S.Ct. 567, 569, 58 L.Ed. 850, 853 (1914); Hardin v. Jordan, 140 U.S. 371, 381, 11 S.Ct. 808, 811, 35 L.Ed. 428, 433-34 (1891), despite public ownership of the tidelands. Cinque Bambini, 491 So.2d at 517; State ex rel. Rice v. Stewart, 184 Miss. 202, 223-28, 184 So. 44, 47-49 (1938). Equally well settled, record owners of the beds and bottoms of navigable freshwaters have no right to exclude others from the waters' surface.
For example, if oil, gas or other minerals are discovered beneath the beds of the Bogue Chitto River or any other navigable stream, they would belong to the record titleholders as their interest may appear, and this notwithstanding that the waters may be regarded as navigable or otherwise public.
D.
The Chancery Court found that the Bogue Chitto was not navigable in fact, and it is important to understand how the Court missed the boat. The question is whether the Bogue Chitto in southeastern Pike County is public waters. Historically such questions have been answered by the shorthand reference to whether the waters be navigable or, as it is sometimes put, "navigable in fact." But "navigable in fact" is and always has been a function of the source and (potential) natural capacities of the waters and the public need therefor, and these have been no more static than life itself.
Construing the act of statehood, Morgan v. Reading, 11 Miss. (3 S. M.) 366 (1844), perceptively recognized that
Congress has given no new capacities or incidents to these rivers, but has merely declared that the facilities afforded by the natural capacities of the rivers to the public, shall remain without interruption.
11 Miss. at 406. Navigation like politics is the art of the possible and much other than 200-bales-of-cotton commercial steamboat navigation is and always has been within "the natural capacities" of our River.
Treuting v. Bridge and Park Commission of City of Biloxi, 199 So.2d 627, 633 (Miss. 1967) recognized that the capacities of the waters to serve the public have played a major role in defining the waters which are public. We have recently reaffirmed the view.
Suffice it to say that the purposes of the trust have evolved with the needs and sensitivities of the people — and the capacity of trust properties through proper stewardship to serve those needs.
Cinque Bambini, 491 So.2d at 512.
The "navigable in fact" test has been read and enforced as including much more than traditional commercial navigation in the sense of carriage of goods for hire by water. We recognize the point in Dycus.
Over the years the legislature has provided an evolving definition of navigability, though the legal touchstone has been and remains navigability in fact.
Culley v. Pearl River Industrial Commission, 234 Miss. 788, 812,
108 So.2d 390, 398 (1959). And when that definition is fleshed out to mean "capable of being navigated by substantial commercial traffic,"
Downes [v. Crosby Chemicals, Inc.] 234 So.2d [916] at 919 [(Miss. 1970)] surely no one will suggest exclusion of the navigation of commercial fishermen because their craft are customarily (though not always) smaller than the vessels of common and private carriers of cargo and passengers.
See Smith Hambrick v. Fonda,
64 Miss. 551, 554,
1 So. 757, 758 (1887), considering whether Red Creek was a "navigable or floatable stream" for purposes of "transportation of logs."
See also State v. McIlroy, 268 Ark. 227, 234-38,
595 S.W.2d 659, 663-65 (1980);
State ex Rel. [Brown] v. Newport Concrete Co., 44 Ohio App.2d 121, 127,
336 N.E.2d 453, 457 (1975).
Dycus, 557 So.2d at 498-99.
"Navigable in fact" has never meant exclusively "navigable in fact by large commercial vessels." A more perceptive statement appears in Rouse v. Saucier's Heirs, 166 Miss. 704, 146 So. 291 (1933):
This title of the state being held for public purposes,
chief among which purposes is that of commerce and navigation, . . . .
166 Miss. at 713, 146 So. at 292 [Emphasis supplied]. Rouse makes it clear that commerce and navigation are not the only purposes of the trust, for in the next paragraph "fisheries" are included.
The most common of what the Morgan Court in 1844 called "the facilities afforded by the natural capacities of the rivers to the public" is fishing. Since Morgan this state has followed the federal lead and has regularly identified fishing as among the uses to which public waters have been and shall forever remain dedicated. Dycus v. Sillers, 557 So.2d at 498; Cinque Bambini, 491 So.2d at 512, 515; Treuting v. Bridge and Park Commission of City of Biloxi, 199 So.2d at 632; State ex rel. Rice v. Stewart, 184 Miss. 202, 231, 184 So. 44, 50 (1938); Rouse v. Saucier's Heirs, 166 Miss. at 713, 146 So. at 292; see also Miss. Laws ch. 361 § 1 (1972).
In the case of public waters, of course, the state has authority to regulate fishing. That authority has never been thought limited only to those rivers of commercially navigable capacity but extends to "all running streams, large lakes [and] small lakes with outlets into other waters." Ex Parte Fritz, 86 Miss. 210, 217, 38 So. 722, 723 (1905).
We find it easy that the public may fish the waters of the Bogue Chitto, and whether fish are biting or are even there in abundance is legally irrelevant. Likewise, the governments of this state and of the United States may regulate use of the waters of the Bogue Chitto, United States v. Appalachian Power Co., 311 U.S. 377, 404-10, 61 S.Ct. 291, 297-300, 85 L.Ed. 243, 250-54 (1940); Shively v. Bowlby 152 U.S. at 33-34, 14 S.Ct. at 560, 38 L.Ed. at 344; Withers v. Buckley, 61 U.S. (20 How.) 84, 92-93, 15 L.Ed. 816, 820 (1857) affirming Commissioners of Homochitto River v. Withers, 29 Miss. 21, 37-40 (1855); Culley v. Pearl River Industrial Commission, 234 Miss. 788, 811-12, 108 So.2d 390, 398 (1959), and we inquire not into the current desirability or necessity of doing so. If the River is public for these purposes, it is public for all, for we know of no waters "a little bit public."
Transportation was an important public purpose our waters served in days gone by. For decades they were our "only way to the outside world."
At the time the constitution was adopted commerce by navigable waters, such as rivers, lakes, bayous and canals was much more common than now . . . There were many bayous, lakes and small rivers in the great delta section that were of great use in carrying on local commerce.
See note 11, supra. This suggests a powerful analogy still extant in our law. One may not be landlocked or isolated on his homestead. Where a person conveys an interior lot to another, the purchaser by implication acquires a "way of necessity" from his lands to the public roads. Quin v. Sabine, 183 Miss. 375, 382-83, 183 So. 701 (1938); Board of Supervisors of Lamar County v. Elliott, 107 Miss. 841, 846, 66 So. 203, 204 (1914). Pleas v. Thomas, 75 Miss. 495, 500, 22 So. 820, 821 (1897), notes that the reasons for this rule "need not be sought afar, for they are obvious at a glance." As the owner of such property has the right to use, occupy and enjoy it, he must necessarily have a right of ingress and egress. In years gone by, rivers such as the Bogue Chitto were our only means of ingress and egress to much of Mississippi. The public waters trust at its birth was in the nature of a way by necessity.
Ethridge, Mississippi Constitutions 196 (1928). Another of the more out of date capacities which in law give waters their public character is logging. Smith Hambrick v. Fonda, 64 Miss. 551, 554, 1 So. 757, 758 (1887). Indeed, "safe passage of . . . logs" is protected in our Constitution. Miss. Const. Art. 4, § 81 (1890). Beyond fishing, transportation and logging, this Court has recognized in today's legal context
The overall public interest and purpose in accommodating and expanding population, commerce, tourism and recreation.
Treuting v. Bridge and Park Commission of City of Biloxi, 199 So.2d at 633;
see also Cinque Bambini, 491 So.2d at 512.
Our attention is called to Utah v. United States, 403 U.S. 9, 91 S.Ct. 1775, 29 L.Ed.2d 279 (1971), wherein the Court recited the familiar explication:
Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and/or travel are or may be conducted in the customary modes of trade and travel on water. . . .
403 U.S. at 10, 91 S.Ct. at 1776, 29 L.Ed.2d at 279.
The ordinary condition of waters evolves with time, albeit often imperceptibly. The customary modes of commerce and trade and travel on waters change as well. The record before us reflects that the customary mode of travel on the Bogue Chitto River in southeastern Pike County is through small outboard motor boats, fishing boats, canoes, tubes and other pleasure craft. The customary mode of commerce and trade is providing facilities for hire where persons can rent such vessels. Moreover, the Bogue Chitto is surely capable in its ordinary condition today of supporting commercial fishing. Taking the navigable-in-fact definition at face value and accepting the dynamic quality inescapably embedded in its language, the Bogue Chitto River passes the test; it is public!
Our founding and still central point is that at statehood the United States vested in all of the people in Mississippi access to those waters which by their natural capabilities could serve public interests and needs. Our legislature early on declared all rivers public highways, and, as nothing in the Constitution of 1890 altered its authority to do so, continued this declaration through and including 1988 when, for the first time, it limited waters that are public to such portions thereof as have "a mean annual flow of not less than 100 cubic feet per second." No doubt the traditional functions of commercial navigation import notions of larger bodies of water. Flat boat traders and travelers and even some cotton bearing steamboats of a century ago did not require that much of a river. These other valuable capacities — fishing, logging, and more recently recreation and pleasure boating — require waters of modest size and capacity. It is in this context that we understand the truism that navigable waters are those waters which are navigable in fact. Those waters are navigable in fact which are navigable by loggers, fishermen and pleasure boaters.
Obviously, any naturally flowing stream so small that it has a mean annual flow of less than 100 cubic feet per second has no business masquerading under the label "river," although quite obviously every river in this state at its source is of such small size, and we today pretermit the question whether such portions of otherwise public rivers are private.
E.
The Chancery Court invoked the Constitution of 1890 to declare the Bogue Chitto private, and in doing so, relied heavily on Sections 14 and 17. This approach begs the question, for until Landowners show they hold property rights in the River, Sections 14 and 17 are of no force. We think the Court should have begun with a fair reading of Section 81 for that is the only section in our constitution that employs the phrase navigable waters, albeit without defining the phrase.
Miss. Const. Art. 3, § 14 (1890) reads:
No person shall be deprived of life, liberty, or property except by due process of law.
Miss. Const. Art. 3, § 17 (1890) reads, in relevant part:
Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law; . . . .
Our constitution must govern circumstances and times beyond the prescience of its draftsmen, see, e.g., Alexander v. State ex rel. Allain, 441 So.2d 1329, 1334 (Miss. 1983). This hardly provides license to ignore the history and understanding of the times. Before the Constitution the federal and common law recognized that certain waters were public and could never be appropriated to private use. The Constitution of 1890 reflects this premise:
Our Constitutions of 1817, 1832 and 1869 were silent on the subject of public navigable waterways.
The legislature shall never authorize the permanent obstruction of any of the navigable waters of the state, but may provide for the removal of such obstructions as now exist, whenever the public welfare demands. . . .
Section 81 goes on to recognize that one of the purposes for which waters are dedicated to the public is "the safe passage of vessels or logs under regulations to be provided by law." The word "vessels" is open textured, and nothing in the Constitution precludes treating a pole operated flatboat or a modern day pleasure boat as a "vessel."
The historical prominence of our statutory expressions bear emphasis. By 1857 the legislature had declared, "All rivers . . . shall be public highways," and this proviso was brought forward verbatim in 1871 [Miss.Code Art. VII, § 2371 (1871)] and in 1880 [Miss.Code Ch. 23, § 865 (1880)]. This was the only public waters statute on the books at the time of the Convention of 1890, and the late Justice George H. Ethridge has offered that "this section should be considered in construing Section 81 as navigable streams are not defined in the section." Ethridge, Mississippi Constitutions 197 (1928). Another important part of Section 81's political history is Smith Hambrick v. Fonda, 64 Miss. 551, 554, 1 So. 757, 758 (1887), which recognized as public waters capable of floating logs, presaging the constitution's reference to "safe passage of . . . logs." Smith said whether Red Creek was "navigable" and thus public turned on whether in fact it was capable of "transportation of logs." This the Court declared is a question of fact to be determined according to the general criteria
The original version of this statute is Howard and Hutchinson, Miss.Stats. ch. 38, § 55 (1840).
If, for a considerable period of the year, its usual and habitual condition is such that the public may rely upon it as a safe and convenient means of transporting over it the logs which are cut from the forest on its banks; if this condition recurs with the season of our usual rains, and continues through it, even though occasionally interrupted by a decline of its waters, — it is a navigable stream. On the other hand, even though at irregular and uncertain intervals throughout the year, regardless of seasons, it is so swollen by rains that it is temporarily used for purposes of transportation, it is not a navigable or floatable stream in such sense as to entitle the public to an easement over its waters.
Smith, 64 Miss. at 554, 1 So. at 758. Because of its temporal proximity to the Constitution,
Smith further informs the meaning of "navigable waters" within Section 81.
See note 15, supra.
Valuable post-1890 expressions provide further insight. In 1892, the legislature modified the "all rivers" act but with no change in effect on today's issue.
All bays, inlets, and
rivers, and such of the lakes, bayous, and other watercourses as shall have been, or may be, declared to be navigable by act of the legislature or by the board of supervisors of the county in which the same may be,
shall be public highways. [Emphasis supplied].
See Miss. Laws, ch. 82, § 12 (1892), codified as Miss.Code § 3898 (1892). This enactment, like Constitution Section 81, contained no definition of navigability, but it did not need one, for it declared that "All" rivers shall be public highways. It seems sensible that
this language should be read as implementing Section 81's mandate, for statutes enacted in temporal proximity to
constitutional utterances inform the meaning of the latter, and vice versa.
See, e.g., State Teachers' College v. Morris, 165 Miss. 758, 766-67, 144 So. 374, 378 (1932);
State ex rel. Hairston v. Baggett, 145 Miss. 142, 160-62, 110 So. 240, 242 (1926);
Cooper Manufacturing Co. v. Ferguson, 113 U.S. 727, 732-33, 5 S.Ct. 739, 740-41, 28 L.Ed. 1137, 1138 (1885);
Fairbank v. United States, 181 U.S. 283, 308, 21 S.Ct. 648, 658, 45 L.Ed. 862, 873 (1901); and even
Culley v. Pearl River Industrial Commission, 234 Miss. 788, 811-12, 108 So.2d 390, 398 (1959).
It is in this setting that we consider Culley, the case relied upon heavily by the Landowners here and the Court below. Culley declares that "the phrase `navigable waters' . . ." draws its meaning from "the time the constitution was adopted," Culley, 234 Miss. at 811-12, 108 So.2d at 398, and in part this is so, as we have just seen. But Culley erroneously (and inexplicably) ignored the important "all rivers" act, not to mention the Smith Hambrick "transportation of logs" test. The Culley principle of constitutional interpretation requires first resort to that act closest in time to the adoption of the constitutional language, and this means the "all rivers" act of 1892 and not that of 1896, with its 200-bales-of-cotton steamboat test.
This premise coexists with the equally powerful legal reality that the meaning of the phrase "navigable waters" is and always has been dynamic on at least three fronts: (1) through the forces of nature, through accretion, reliction, flood or avulsion; (2) the definition of public waters has changed "as human needs have evolved and as the public welfare has demanded" and (3) the legal language has evolved, as explained above. See Dycus v. Sillers, 557 So.2d at 498-99. Culley gives us nothing explaining how or why in the days immediately succeeding the Constitution of 1890, the phrase "navigable waters" was not understood as including rivers like the Bogue Chitto in the area here in dispute.
Even so nothing in the 1896 act seen in context aids the cause of the privateers. Where two statutes relate to the same subject matter, common sense would suggest that they be harmonized and read together. Mississippi Public Service Commission v. Municipal Energy Agency of Mississippi, 463 So.2d 1056, 1058-59 (Miss. 1985). This may be done here. The 1892 statute — which became Section 51-1-3 — declares public "all bays, inlets and rivers." The statute goes on to say that, in addition, "such of the lakes, bayous and other watercourses as shall have been, or may be, declared to be navigable by act of the legislature . . . shall be public highways." Then, in 1896 the legislature enacted what has become Sections 1-3-31 and 51-1-1 — the proverbial 200 bales of cotton steamboat test — covering "rivers, creeks and bayous" of a certain navigational capacity. The 1896 act may be sensibly read as the sort of legislative declaration of other "lakes, bayous and other watercourses" as contemplated by the 1892 act. The fact that the 1896 act did not repeal or purport to amend the 1892 act supports this reading. The 1896 act covers "watercourses" the 1892 act did not expressly make public. "Creeks and bayous" of the requisite navigational capacity are not made public by the 1892 act, but these are declared public in 1896, if they can handle steamboats with a carrying capacity of 200 bales of cotton. In this view, we find untenable the suggestion that the 1896 act provides the only criteria for identifying the public waters of the State of Mississippi.
See Miss. Laws, ch. 64, § 1 (1896). This 1896 declaration has been twice codified, first in Chapter 3 on "Construction of Statutes," Miss. Code Ann. § 1-3-31 (1972), and, second, in Chapter 51 on "Water, Water Resources, Water Districts, Drainage and Flood Control," Miss. Code Ann. § 51-1-1 (1972). In the former codification the words "and public highways" have been added at the end. These words were effectively appended to Section 51-1-1 by the next succeeding section, Miss. Code Ann. § 51-1-4 (1972), until 1988 when, as noted, that statute was repealed. Though aptly labeled "rather quaint" some thirty years ago, Culley v. Pearl River Industrial Commission, 234 Miss. at 811, 108 So.2d at 398, the Section 1-3-31 declaration persists, but it has never been the exclusive statutory definition of navigable waters.
The Chancery Court relied heavily on demonstrably erroneous dicta in Culley and in Downes v. Crosby Chemicals, Inc., 234 So.2d 916 (Miss. 1970), though each of those cases, in the end, turns on the fact that the parties with the burden of proving the waterway was navigable in fact failed to offer sufficient evidence to carry that burden. Culley, 234 Miss. at 812, 108 So.2d at 398; Downes, 234 So.2d at 920. The testimony of Charles T. Branch of the Department of Natural Resources, coupled with the U.S. Geological Survey data, are more than adequate to show factually that the Bogue Chitto passes muster under today's one hundred cubic feet per second standard embodied in the 1988 amendment to Section 51-1-4, all of which we have explained above.
Culley must be read against the backdrop of what everyone now well knows: that a team of wild horses could not have prevented the Barnett Reservoir coming into being, and the law be damned; hence, the clue to the Chancery Court's fundamental error in reading Culley: that the public imperative required the Pearl be held non-navigable, that it be placed in public domain. The overpowering impulse in Culley was that constitutionally permissible petty larceny of the police power trampling very real rights of private property as opposed to the ephemeral ones invoked here. Anomaly attends citing Culley to protect private property.
When you think about it, the suggestion that the Pearl River was not navigable just above Jackson in the late 1950s borders on the ludicrous. Recall that the reason the U.S. Army Corps of Engineers had authority to construct dams and reservoirs at Arkabutla, Sardis, Enid and Grenada was that the Coldwater, Tallahatchie, Yocona and Yalobusha Rivers are/were navigable. See United States v. Appalachian Power Co., 311 U.S. 377, 404-10, 61 S.Ct. 291, 297-300, 85 L.Ed. 243, 250-54 (1940).
Had the question whether the Bogue Chitto be open to the public been litigated in — say — 1894, there appears no viable basis upon which a court may have denied the claim. Nothing in today's record suggests evolution has altered the River's capacities since that time, so that we ought reach another result.
F.
A further word of today. Pending this appeal the legislature has substantially amended Section 51-1-4's test for what constitutes public waterways and has repealed the "all rivers" act altogether, see Miss. Laws, ch. 598 (1988), and the question is whether the ordinary strictures of private law adjudication mandate that we decide this case under substantially repealed law and say no more. To be sure, were there no public interest involved, such may well be our proper course, but because our decision substantially impacts upon the public interest, precedent suggests we address the intervening legislative action. See State Tax Commission v. Fondren, 387 So.2d 712, 721-22, 724 (Miss. 1980).
In 1988, the legislature enacted a new test for what constitutes public waterways and delegated to administrative competence much of the day-to-day task of determining what waterways meet the test. What is now Section 51-1-4 provides that
Such portions of all natural flowing streams in this state having a mean annual flow of not less than 100 cubic feet per second, as determined and designated on appropriate maps by the Mississippi Department of Natural Resources shall be public waterways of the state. . . .
The question whether waters be public may ultimately be a judicial question and certainly has a federal foundation. The legislature's 1988 enactment lies within a political tradition dating back at least to 1840, see Howard and Hutchinson, Miss. Stats., ch. 38, § 55 (1840), the original version of the all rivers act. Though the legislature has never sought to preempt the field and provide for all waters whether they be public, see, e.g., Dycus v. Sillers, 557 So.2d 486 (Miss. 1990), we respect and defer to the role it has played.
Applying the new "one hundred cubic feet per second" test to today's case, we find the U.S. Geological Survey introduced into evidence showing a "low water" discharge just above the area in dispute of 188 cubic feet per second, easily exceeding the statutory minimum. Beyond this, we find that on October 19, 1988, the Department of Natural Resources declared the Bogue Chitto River a public waterway from the confluence of Boone Creek in Lincoln County, well above the area here in dispute, south and southeasterly to the Mississippi-Louisiana State Line. We accept the legislatively decreed role given the Department of Natural Resources and see no reason to question its finding that the Bogue Chitto River is a public waterway in the area in question. See, e.g., Melody Manor Convalescent Center v. Mississippi State Department of Health, 546 So.2d 972, 974 (Miss. 1989); Grant Center Hospital of Mississippi, Inc. v. Health Group of Jackson, Mississippi, Inc., 528 So.2d 804, 808 (Miss. 1988); Mississippi Air Water Pollution Control Permit Board v. Pets Such Foods, Inc., 394 So.2d 1353, 1355 (Miss. 1981); see also Young v. Community Nutrition Institute, 476 U.S. 974, 980-84, 106 S.Ct. 2360, 2364-66, 90 L.Ed.2d 959, 966-68 (1986); J.W. Hampton, Jr., Co. v. United States, 276 U.S. 394, 406-09, 48 S.Ct. 348, 351-52, 72 L.Ed. 624, 629-30 (1928).
Beyond this, nothing present in Section 51-1-4's one hundred cubic feet per second standard offends Section 81 of our Constitution, or any federal standard for what constitutes public waters, emanating from the Equal Footings Doctrine or otherwise, nor does it offend any rights Sections 14 and 17 may secure to riparian landowners.
V.
In their complaint Ryals and Barrett charged that Landowners and Sheriff Dillon had engaged in a civil conspiracy to interfere with Plaintiffs' business enterprises. The parties extensively litigated the issue at trial and in the end, the Chancery Court found that
There was no evidence of Defendants combining for an unlawful purpose or a lawful purpose unlawfully which is required in conspiracy cases. The gravamen of this ultimate finding is the Court's view that no one asked Sheriff Dillon to do anything other than "enforce the law" and that there was no evidence of anyone "blocking . . . the river or [of an] arrest being made as a result."
Upon reviewing the record, we may only find that there was before the Chancery Court substantial credible evidence which supported its rejection of Plaintiffs' conspiracy claim. Put otherwise, the Court acted well within the evidence when it held Plaintiffs had failed to meet their burden of proving the elements of a civil conspiracy. In such a circumstance, our scope of review is quite limited. Suffice it to say that we perceive no grounds for reversal on this issue. See, e.g., Williams v. Evans, 547 So.2d 54, 58 (Miss. 1989); In re Estate of Harris, 539 So.2d 1040, 1043 (Miss. 1989); Anderson v. Burt, 507 So.2d 32, 36 (Miss. 1987).
VI.
These things said, we hold that Ryals and Barrett are entitled to a declaratory judgment with respect to the status of the Bogue Chitto River in southeastern Pike County. See Rule 57, Miss.R.Civ.P.; UHS-Qualicare, Inc. v. Gulf Coast Community Hospital, 525 So.2d 746, 753, 758 (Miss. 1987); In re Validation Of $7,800,000.00 Combined Utility System Revenue Bond, 465 So.2d 1003, 1014-15 (Miss. 1985); Alexander v. State ex rel. Allain, 441 So.2d 1329, 1346-47 (Miss. 1983). We hold and declare that in the area in dispute in southeastern Pike County the Bogue Chitto River is a public waterway, such that riparian landowners may acquire no rights in the surface or waters other than those they enjoy as members of the general public,
(1) because, as a matter of law, the River at this point is navigable in fact or with reasonable channel maintenance and dredging;
and
(2) because, at this point, the River has a mean annual flow of 188 cubic feet per second and has been designated a public waterway by the Mississippi Department of Natural Resources, thus
conforming to the standards of the 1988 amendments to Section 51-1-4.
To the end that we may quiet the controversy that has raged below, we further declare that Section 51-1-4, as amended in 1988, was within the legislative competence and suffers no constitutional or other infirmity when scrutinized under Sections 14, 17 or 81 of the Mississippi Constitution of 1890 or otherwise, or under federal law, including but not limited to the Equal Footings Doctrine and the congressional enactment of 1817 creating the State of Mississippi.
Nothing said here should be taken to disparage Landowners' concerns of trash and debris, for these offend the interests and sensibilities of us all, only we have other less drastic law adequate to the day. Miss. Code Ann. § 97-15-29 (Supp. 1989). The legislature has addressed the civil liability problem. Miss. Code Ann. § 51-1-4 (Supp. 1989).
Except as herein expressly provided to the contrary, the judgment of the Chancery Court of Pike County shall be, and the same hereby, is affirmed.
REVERSED IN PART AND RENDERED; AFFIRMED IN PART.
PRATHER, SULLIVAN, ANDERSON and PITTMAN, JJ., concur.
ROY NOBLE LEE, C.J., dissents by separate written opinion joined by HAWKINS and DAN M. LEE, P.JJ., and BLASS, J.
HAWKINS, P.J., dissents with separate written opinion joined by ROY NOBLE LEE, C.J., DAN M. LEE, P.J., and BLASS, J.
BLASS, J., dissents with separate written opinion joined by ROY NOBLE LEE, C.J., HAWKINS, P.J., and DAN M. LEE, P.J.
PRATHER, Justice, for the Court:
I. INTRODUCTION
On November 28, 1990, this Court held in favor of the appellants that: (1) the Bogue Chitto River in southeastern Pike County is a public waterway; and (2) riparian landowners, including the appellees, "may acquire no rights in the surface or waters other than those they enjoy as members of the general public." See 580 So.2d at 1149. The appellees subsequently filed a "PETITION FOR REHEARING" and presented two issues for disposition:
1.
Whether Justice Edwin L. Pittman should have recused himself from the decision-making of this case?
2.
Whether the Bogue Chitto River is a private waterway and, if so, whether riparian landowners may acquire rights in this waterway?
II. ANALYSIS A. Issue # 1
This case originated in the Pike County Chancery Court at the time when Justice Pittman served as Mississippi's Attorney General. The appellees contend that, because the Office of Attorney General submitted a brief as amicus curiae "to assist" the chancery court in the disposition of the case, Justice Pittman should be disqualified from participating in this appeal. The appellants counter that the issue is waived for failure to raise it in a timely manner and, alternatively, the issue is devoid of merit.
This Court has perused the record and briefs and finds that the appellees wholly failed to raise this issue until now. The appellees explain the untimeliness:
This appeal was perfected on April 8, 1988. The brief of appellant was mailed for filing on January 6, 1989, approximately three days after Judge Pittman took his seat on the Supreme Court. Appellant's certificate of interested parties did not mention the state attorney general as an interested party. The appellee's certificate of interested parties was filed on March 3, 1989 and named Hon. Mike Moore, then serving as Attorney General of Mississippi, as the interested party. On March 3, 1989 appellees were frankly unaware that Judge Pittman had so recently been elevated to the Supreme Court bench. Moreover, appellees then thought that naming the attorney general who was then in office was the correct procedure to follow in light of the circumstances then known to appellees.
This Court simply does not accept this explanation. At the very least, parties are expected to know the Court's composition and reveal any information which might warrant a justice's recusal from the case. A party who fails, through wilful ignorance or otherwise, to timely apprise itself of such critical information waives the right to have the issue addressed on the merits. This principle of well-entrenched law is designed particularly to nullify the "rewards" of "sandbagging" through employment of dilatory tactics. See, e.g., Keppel v. BaRoss Builders, Inc., 7 Conn. App. 435, 509 A.2d 51, 55-56 (1986) ("Counsel for the defendant did not voice the issue of disqualification until it became clear that his most important witness . . . would not testify. This is the very `sandbagging' technique that [this] court [has] discountenanced."); Crawford v. State, 617 S.W.2d 925, 938 (Tex.Crim. App. 1980) ("The waiver leg rests on the theories that defendants should not be allowed to `sandbag' trial judges and that counsel may deliberately choose, for tactical reasons, to waiver certain rights.") (Roberts, J., dissenting); Boulware v. State, 542 S.W.2d 677, 681 (Tex.Crim. App. 1976) ("The issue with which we are faced here can only be resolved against appellant's contention. To do otherwise would allow counsel two, if not more opportunities to obtain an acquittal. It would allow defense counsel to purposely `sandbag' the trial judge into error if he received an adverse verdict.").
This waiver principle will not be applied inflexibly to all cases regardless of circumstances. Whether a party's action or inaction constitutes a waiver of the right to request recusal — is an issue which must be resolved on an ad hoc basis. That is, the totality of circumstances attendant each case must be perused and determinations must be made. For example: (1) Did the party know, but fail to timely reveal, purported facts which might lead to a judge's recusal? (2) Assuming the party did not actually know the facts, should the party have known? (3) Does good cause exist for the party's failure to timely reveal the facts, or (4) Are the facts indicative of some other reason — an unacceptable reason — for the untimely revelation ( e.g., untimely revelation due to employment of dilatory tactics)? Finally, criminal cases may require closer scrutiny than civil cases. See, e.g., Moore v. State, 573 So.2d 688, 688-89 (Miss. 1990) (rare occasion when recusal issue never actually raised but, in view of the totality of circumstances, merits of issue addressed under "plain-error doctrine").
As poignantly noted long ago in McCune v. Commercial Pub. Co.:
Courts are not to be trifled with in such matters. Judges do not have any desire to sit in cases where they are disqualified for any reason, and it is only fair that notice be given the judge of any such disqualification before he hears the case so that he may recuse himself. Any other rule might result in an unfair advantage being taken in a case where an attorney, who moves against a judge, might wait until after he could ascertain whether the decision would be for or against him; and, if against him, he would file a motion to recuse, but if for him, he would accept it without complaint.
148 Miss. 164, 172, 114 So. 268, 269 (1927). In a related law review article, the editors of "American Law Reports Annotated" summarized their research accordingly:
Statutory and common-law rules providing for the disqualification of judges for certain causes reflect a desire to insure that litigants have a fair and impartial trial. On the other hand, time and waiver provisions of such rules reflect a desire to dispatch cases swiftly, conveniently, and without undue expense. . . .
. . . .
. . . [I]n a number of cases it was apparent that attorneys made an objection to a judge long after the facts of disqualification became known and then only for the purposes of delay or to avoid an unfavorable ruling or decision. To hold an objection in reserve for ulterior reasons such as those mentioned not only does a disservice to the client in that the objection when made might be too late and the client forced to appear before a partial judge, but also it is a breach of counsel's duty to the court and to the other party in that a late objection often results in delay, inconvenience, and unnecessary expense.
Annotation, Time for Asserting Disqualification of Judge, and Waiver of Disqualification, 73 A.L.R.2d 1238 (1960), updated in LATER CASE SERVICE, 73 A.L.R.2d 187 (1986 1990 Supp.); see also Madsen v. Prudential Federal Savs. Loan Ass'n, 767 P.2d 538, 542 (Utah 1988) ("A party who has a reasonable basis for moving to disqualify a judge may not delay in the hope of first obtaining a favorable ruling and then complain only if the result is unfavorable."); State v. Kohn, 731 S.W.2d 840, 842 (Mo. 1987) ("[A] party who unduly delays the filing of a motion to disqualify . . . waives his right. . . . Such rule is necessary in order to prevent the unnecessary burden upon judicial administration caused by an unreasonable delay and to prevent a party from disqualifying a judge after first determining the judge's inclination on the merits."); Reilly by Reilly v. Southeastern Penn. Transport'n Auth., 507 Pa. 204, 489 A.2d 1291, 1300 (1985) ("Once the trial is completed with the entry of a verdict, a party is deemed to have waived his right to have a judge disqualified, and if he has waived that issue, he cannot be heard to complain following an unfavorable result."); Sebring v. Colver, 649 P.2d 932, 935 (Alaska 1982) ("To allow [a party] to challenge [a judge's qualification] merely because his rulings . . . were not as favorable as [the party] had desired would subvert the purpose of the waiver provision."); In re Estate of Carlton, 378 So.2d 1212, 1218 (Fla. 1979) ("Allowing a party to request disqualification after a decision has been rendered by the Court provides a second opportunity to achieve a favorable result when the first decision is adverse, an opportunity not available to the opposing party."); State v. Cline, 366 P.2d 441, 442 (1961) ("The question of timeliness of filing an affidavit of disqualification has been before the court on numerous occasions, and we have specifically held that a litigant cannot experiment with the judge and, upon encountering an adverse ruling, file an affidavit of prejudice.").
In sum, the appellees knew, or should have known, about Justice Pittman's membership on this Court when they filed their brief. Assuming arguendo that the appellees did not know, then certainly they must have acquired this information sometime after they had filed their brief and prior to the final disposition of this case. The appellees had ample opportunity to show good faith and apprise this Court of information which might have led to Justice Pittman's recusal; instead, they decided to "rest on their oars" until after this Court rendered its judgment. See Pierce v. Tharp, 224 Tenn. 328, 461 S.W.2d 950, 953-54 (1970) ("[P]etitioners preferred to rest on their oars until the Court announced its decision, and then come forward with a belated effort to charge that some of the justices on the Court were disqualified to hear the case. If any member of the Court were disqualified to participate in the hearing, such [issue] was waived by failure of petitioners . . . to make objection.").
Under these facts, the issue is deemed untimely and therefore waived. See City of Biloxi v. Cawley, 332 So.2d 749, 750 (Miss. 1976) ("[A] party desiring to suggest the disqualification of a judge must do so before the trial of the case or as soon as counsel knows [or should have known] of the facts of disqualification."); see also Murray v. Timberlake, 564 So.2d 885, 891 (Ala. 1990) ("Murray's failure to [timely] object to the judge's participation in the case constitutes a waiver of that objection."); In the Matter of the Welfare of M.D.O., 462 N.W.2d 370, 379 (Minn. 1990) ("The failure to raise and preserve [a recusal] issue before the court of appeals constitutes a waiver in a subsequent appeal to this court."); Goode v. State, 574 A.2d 263 (Del. 1990) ("[We agree] that review of this contention is barred since it was . . . raised for the first time on appeal."); Romine v. State, 251 Ga. 208, 305 S.E.2d 93, 96-97 (1983) ("[A] motion to recuse . . . must not only be legally sufficient, but timely, i.e., made `as soon as the facts demonstrating the basis for disqualification become known.'"); Buckholts Independent Sch. Dist. v. Glaser, 632 S.W.2d 146, 148 (Tex. 1982) ("The taxpayers waived any error [for failing] to file a [timely] motion to recuse."); Cameron v. Cameron, 187 Conn. 163, 444 A.2d 915, 918 (1982) ("Even where a proper ground for disqualification exists, it must be asserted seasonably or it will be deemed to have been waived."); Carpenter v. State, 223 Kan. 523, 575 P.2d 26, 29 (1978) ("If a litigant has reason to believe the judge is prejudiced . . . [f]ailure to act on the knowledge becomes a waiver of his right to make the challenge."); Leavitt v. District Court, 172 Mont. 12, 560 P.2d 517, 521 (1977) ("The attempted disqualification [on] the day of trial, came much too late and was properly stricken."); State ex rel. Rathe v. Jefferson Parish Sch. Bd., 206 La. 317, 19 So.2d 153, 172 (1944) ("[I]t was the defendant's duty to file a motion to recuse immediately after the facts were known to him, and the failure to file the motion in time was a waiver of his rights.").
Were this Court to address the merits of the appellees' contention, Turner v. State, 573 So.2d 657, 675-79 (Miss. 1990), would be dispositive.
B. Issue #2
The petitioners also reiterate their contention that the Bogue Chitto River is a private waterway and that riparian landowners should be entitled to certain property rights in this waterway. On the basis of the analysis contained in Ryals, at 1144-1157, this Court reaffirms its holding that the petitioners' contention is devoid of merit.
III. CONCLUSION
For the foregoing reasons, this Court denies the "PETITIONS FOR REHEARING."
PETITIONS FOR REHEARING DENIED AS TO "ISSUE #1": ROY NOBLE LEE, C.J., HAWKINS, P.J., and ROBERTSON, SULLIVAN and PITTMAN, JJ., concur.
DAN M. LEE, P.J., dissents.
BANKS and McRAE, JJ., not participating according to Supreme Court internal rules.
PETITIONS FOR REHEARING DENIED AS TO "ISSUE #2": ROBERTSON, SULLIVAN and PITTMAN, JJ., concur.
HAWKINS, P.J., dissents by separate written opinion, joined by ROY NOBLE LEE, C.J., and DAN M. LEE, P.J.
BANKS and McRAE, JJ., not participating according to Supreme Court internal rules.