BRIEF OF THE APPELLANTS

Transcription

1 E-Filed Document Jan :08: CA Pages: 34 IN THE SUPREME COURT OF MISSISSIPPI NO CA DAVID NEIL HARRIS, SR. AND VECIE MICHELE HARRIS APPELLANTS v. STATE OF MISSISSIPPI, ET AL. APPELLEES CONSOLIDATED WITH: NO CA CLYDE H. GUNN, III APPELLANTS v. STATE OF MISSISSIPPI, ET AL. APPELLEES BRIEF OF THE APPELLANTS SUBMITTED BY: David N. Harris, Jr. (MSB#100790) David N. Harris, Jr. Law Firm, PLLC P.O. Box 336, Gulfport, MS Phone: (228) david@davidharrislawfirm.com A.Scott Cumbest (MSB#7944) Cumbest, Cumbest, Hunter and McCormick Post Office Drawer 1287 Pascagoula, MS Phone: scottc@cchmlawyers.com

2 IN THE SUPREME COURT OF MISSISSIPPI NO CA DAVID NEIL HARRIS, SR. AND VECIE MICHELE HARRIS APPELLANTS v. STATE OF MISSISSIPPI, ET AL. APPELLEES CONSOLIDATED WITH: NO CA CLYDE H. GUNN, III APPELLANTS v. STATE OF MISSISSIPPI, ET AL. APPELLEES BRIEF OF THE APPELLANTS CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal. Honorable Hollis McGehee Special Chancellor, Jackson County P.O. Box 1574, Boutte, LA Trial Judge (Currently Inactive) David N. Harris, Jr. (MSB#100790) DAVID N. HARRIS, JR. LAW FIRM, P.L.L.C. P.O. Box 336, Gulfport, MS ii

3 A. Scott Cumbest (MSB#7944) CUMBEST, CUMBEST, HUNTER AND MCCORMICK Post Office Drawer 1287, Pascagoula, MS Attorneys of record for the Appellants David Neil Harris, Sr. and Vecie Michele Harris John G. Corlew (MSB#6526) CORLEW MUNFORD & SMITH PLLC 4450 Old Canton Road, Suite 111 (39211) Post Office Box 16807, Jackson, MS Attorneys of record for the Appellant Clyde H. Gunn, III W. Trey Jones, Esq. Joseph Anthony Sclafani, Esq. BRUNINI GRANTHAM GROWER & HEWES Post Office Drawer 119, Jackson, MS Robert W. Wilkinson, Esq. Amy Lassitter St. Pé, Esq. DOGAN & WILKINSON, PLLC Post Office Box 1618, Pascagoula, MS Lee D. Thames, Jr., Esq. Special Assistant Attorney General Office of Attorney General P.O. Box 220, Jackson, MS Hugh D. Keating, Esq. JéNell B. Blum, Esq. DUKES, DUKES, KEATING & FANECA, P.A. Post Office Drawer W, Gulfport, MS David Crane, Esq Broadmoor Place, Gulfport, MS Attorneys of record for Appellees iii

4 Secretary of State, Appellee Jackson County, Mississippi, Appellee City of Ocean Springs, Mississippi, Appellee D. Neil Harris, Sr. And Vecie Michele Harris, Appellants Clyde H. Gunn, III, Appellants So certified, this the 8 th day of January, By: s/ David N. Harris, Jr. DAVID N. HARRIS, JR. (MSB#100790) iv

5 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS ii-iv TABLE OF CONTENTS...v TABLE OF AUTHORITIES...vi STATEMENT OF ISSUES.....vii STATEMENT OF ASSIGNMENT...viii STATEMENT OF THE CASE STATEMENT OF FACTS 6-10 SUMMARY OF ARGUMENT ARGUMENT I. The Trial Court s findings and conclusions are manifestly erroneous because the Trial Court failed to confirm title..12 II. The Trial Court made manifestly erroneous factual findings based on the testimony of Joan Salvant, a witness that did not know the location of the properties at issue III. The Trial Court made manifestly erroneous factual findings that Plaintiffs did not provide eyewitness testimony from the 1940 s and 1950 s regarding the location of the mean high water line IV. The Trial Court made manifestly erroneous factual findings without considering the testimony of Plaintiff s Expert Donald Rowe and the full report of Defendants' expert, Dr. Claus Meyer-Arendt that demonstrated that the mean high water line has always been in the same location V. The Trial Court committed manifest error by failing to acknowledge that any action taken by Defendants in 1954 to invade the property rights of the Plaintiffs was not authorized CONCLUSION CERTIFICATE OF SERVICE 26 v

6 TABLE OF AUTHORITIES Cases: Secretary of State of the State of Mississippi and City of Ocean Springs, Mississippi v. Clyde H. Gunn III, Neil Harris, Sr. and Vecie Michele Harris, 75 So. 3d 1015 (Miss. 2011) 2, 4, 7 Hosemann v. Harris, 163 So.3d 263 (Miss. 2015).5 Nollan v. Cal. Coastal Com, 483 U.S. 825, 831 (1987) 21 State v. Murphy, 202 So.3d 1243, 1252 (Miss. 2016)...10, 15 Ford v. Ford, 795 So.2d 600, 604 (Miss. 2001)..11 Statutes: Miss. Code Ann , 3, 6, 7 Public Trust Tidelands Act of 1989 (Miss.Code Ann et. seq) , 5-7 Miss. Code Ann Miss. Code Ann Fifth Amendment, United States Constitution..21 Fourteenth Amendment, United States Constitution...21 vi

7 STATEMENT OF ISSUES I. Whether the Trial Court s findings and conclusions are manifestly erroneous because the Trial Court failed to confirm title. II. Whether the Trial Court made manifestly erroneous factual findings based on the testimony of Joan Salvant, a witness that did not know the location of the properties at issue. III. Whether the Trial Court made manifestly erroneous factual findings that Plaintiffs did not provide eyewitness testimony from the 1940 s and 1950 s regarding the location of the mean high water. IV. Whether the Trial Court made manifestly erroneous factual findings without considering the testimony of Plaintiff s Expert Donald Rowe and the full report of Defendants' expert, Dr. Claus Meyer-Arendt that demonstrated that the mean high water line has always been in the same location. V. Whether the Trial Court committed manifest error by failing to acknowledge that any action taken by Defendants in 1954 to invade the property rights of the Plaintiffs was not authorized. vii

8 STATEMENT OF ASSIGNMENT ORAL ARGUMENT REQUESTED The Supreme Court should retain this matter so to finally determine the appropriate applicable and authority of the Public Trust Tidelands Act of This is the third time these parties have been before this Court regarding the Mississippi Secretary of State, Jackson County, Mississippi, and City of Ocean Springs refusal to comply with the statutory law of this State. A decision from this Court confirming the legal descriptions to the property of Appellants with regard to all boundaries, and confirming the title of property as required by the laws of this State would clarify the body of law regarding public trust tidelands, title confirmation, uncompensated taking of private property, and bring clarity to the trial courts regarding constitutional law in these types of cases. Further, Appellants believe that oral argument will facilitate the understanding of the issues involved in this matter, and will serve the Court s consideration of this appeal. viii

9 STATEMENT OF THE CASE Incorporation of Brief of Appellant, Clyde H. Gunn, III. In an effort to promote judicial economy and to eliminate duplicative briefing, these Appellants incorporate the separate brief filed on behalf of Appellant Clyde H. Gunn, III as it set forth herein in full words and figures. The Second Trial of the Harris/Gunn Title Confirmation Suits This case is about whether the Secretary of State and other governmental entities are required to comply with the public trust boundary line determined and drawn pursuant to the Public Trust Tidelands Act of 1989, Miss. Ann et. seq.; or whether the government can change the boundary line to fit their individual agendas. The Public Trust Tidelands Map [Tr. Ex. G-20; RE 149] designates the solid blue line south of the beach as the public trust tidelands boundary. The relevant portion of Tr. Ex. G-20 appears as follows: 1

10 The rulings of the Trial Court during the second trial of this matter constitute manifest error contrary to law and contrary to the overwhelming weight of the evidence. This Court should reverse and render the rulings of the Trial Court. The Trial Court relied almost exclusively on testimony evidence that by law is insufficient for the State to prevail on its claims of public trust tidelands. The Trial Court abused its discretion and failed to comply with the statutory and common laws of Mississippi regarding public trust tidelands. The Trial Court made manifestly erroneous findings regarding the evidence presented at the trial of this matter. Each of the Trial Court manifestly erroneous findings and conclusions constitute solid grounds for this Court to reverse and render the Trial Court s judgment. The ultimate question to be resolved by this Court is whether the Public Trust Tidelands Act of 1989 will be enforced as legislatively intended to resolve the uncertainty and disputes which have arisen as to the location of the boundary between the state s public trust tidelands and the upland property and to confirm the mean high water boundary line.... Miss. Code Ann (2). Prior to the second trial of this matter, these parties had been before this court in Secretary of State of the State of Mississippi and City of Ocean Springs, Mississippi v. Clyde H. Gunn III, Neil Harris, Sr. and Vecie Michele Harris, 75 So. 3d 1015 (Miss. 2011). This Court succinctly set forth the facts and procedural history pertinent to that case in its 2011 opinion. The facts as stated by the Court, 2

11 including footnotes, are repeated verbatim here since those facts and footnoted citations to Mississippi statutory law clearly state the nature of this case: Clyde H. Gunn and D. Neil Harris, Sr., each own property in an area of Ocean Springs known as East Beach. A roadway, a seawall, and the beach run adjacent to the Gulf of Mexico ( Gulf ), separating home sites from the beach and Gulf. 3 3 The location of Gunn s and Harris s properties is more accurately described as being on the Mississippi Sound. See National Oceanic and Atmospheric Administration Gulf nautical charts, ml (last visited September 6, 2011). The beach runs from the edge of the seawall to the shoreline, or water s edge. Tidelands lands that are subject to the ebb and flow of the tides span the area from the beach south into the Gulf. 4 4 Tidelands are those lands which are daily covered and uncovered by water by the action of the tides, up to the mean line of the ordinary high tides. Miss. Code Ann (h) (Rev. 2010). The State holds such tidelands in public trust. 5 5 Miss. Code Ann (Rev. 2010) ( Tidelands and submerged lands are held by the state in trust for use of all the people.... Littoral and riparian property owners have common law and statutory rights under the Coastal Wetlands Protection Law which extend into the waters and beyond the low tide line, and the state s responsibilities as trustee extends to such owners as well as to the other members of the public. ). The mean high-water line marks the boundary between public-trust tidelands and private property. 6 6 See Miss. Code Ann (2) (Rev. 2010) (declaring the Legislature s aim to resolve the uncertainty and disputes which have arisen as to the location of the boundary between the state s public trust tidelands and the upland property and to confirm the mean high water boundary line.... ). The mean high-water line is the intersection of the tidal datum plane of mean high water with the shore. Miss. Code Ann (d) (Rev. 2010). Mean high water is the arithmetic mean of all the high waters occurring in a particular nineteen-year tidal epoch 3

12 period; or for a shorter period of time after corrections are applied to the short term observations to reduce these values to the equivalent nineteen-year value. Id. at (c). A mapping procedure determines the boundary between the state s public-trust tidelands and the upland property. Miss. Code Ann (Rev. 2010). The Secretary of State submits a map to the chancery clerks of affected counties depicting the boundary as the current mean high water line where shoreline is undeveloped and in developed areas or where there have been encroachments, such maps shall depict the boundary as the determinable mean high water line nearest the effective date of the Coastal Wetlands Protection Act. Id. After a sixty-day notice-and-comment period, the Secretary of State certifies adoption of the final map and records it with the appropriate chancery clerks. Id. Within 120 days of certifying the final map, the Secretary of State must identify and notify all property owners whose lands are subject to the public trust and are in violation of the public trust. Id. [A]fter three (3)years the boundary as set forth in the certified map shall become final unless the occupant has submitted a contrary claim to the office of the Secretary of State. Id. Land owners have six (6) months to negotiate and settle differences with the Secretary of State. Id. A boundary determination shall be final upon agreement of the Secretary of State and the owner and an instrument setting forth the boundary agreement shall be duly executed and recorded in the chancery court where the property is located. Any such boundary agreement shall be binding on the state and other parties thereto. Id. Secretary of State v. Gunn, 75 So. 3d at Each of these Jackson County confirmation suits deraigned title to the Gunn and Harris properties out of the sovereign and for in excess of 60 years. All deeds in the Gunn/Harris deraignment described their property as bounded on the south by the water s edge. The Secretary of State opposed confirmation, claiming that the Harris property south of the edge of the seawall (or in the phrase coined by the Secretary of State, south of the toe of the seawall ) and to the water s edge constitutes tidelands. Ocean Springs also opposed confirmation, alleging that planning, zoning 4

13 and municipal ordinances had resulted in adverse possession of the Harris property. Jackson County opposed confirmation, alleging that its statutorily mandated obligation to protect the seawall and roadway along East Beach resulted in its adverse possession of the Harris property. Course of Proceedings. This case was tried for a second time between May 9 and 13, The second trial was the result of this Court remand of the previous grant of partial summary judgment in favor of Harris and Gunn as set forth in this Court s opinion in Hosemann v. Harris, 163 So.3d 263 (Miss. 2015). The issues for trial were whether southern boundary of the subject was the water s edge as depicted by the deraignment of all deeds and the Public Trust Tideland Map or the toe of the seawall as claimed by the Secretary of State; and the adverse possession and/or prescriptive easement claims of Jackson County and Ocean Springs. Disposition in Court Below. On June 3, 2016, the Trial Judge issued a letter opinion that held that no natural sand beach was located south of the seawall on the property of Harris and Gunn. (R 776, 25). However, the Trial Judge s letter opinion did not make any finding regarding where the actual location of the property line boundary was to be set for the subject property. (R ). On July 5, 2016, Final Judgment regarding the Gunn property was entered in favor of the State of Mississippi. (R 803). On July 12, 2016, Final Judgment in favor of the State of Mississippi was entered. (R 757). After the entry of the Final Judgment, the Harris s sold their property to Melissa and Dr. Gary Sinopili and granted the Sinopili s an Assignment of this cause of action and the right to pursue this appeal 5

14 pursuant to Miss. Code Ann [Supp. App., Vol 2, 210]. Pursuant to the provisions of the assignment and Mississippi law, this appeal is being pursued in the name of the Harris for sake of simplicity and correlation to the Record in this matter. STATEMENT OF FACTS The Public Trust Tidelands Act of 1989 The Mississippi Secretary of State drew and designated the Public Trust Tidelands boundary line pursuant to the Public Trust Tidelands Act of Miss. Code , et seq. The public trust boundary line designated by the Secretary of State regarding the subject properties is south of the sand beach where the water and the land meet. [Tr. Ex. G-20; RE 149]. The Mississippi Legislature adopted the Public Trust Tidelands Act of This legislation was passed for the specific purpose of ending title disputes between public bodies and private parties with respect to the line of demarcation between tidelands and fast lands above the mean high water line. The Legislature stated: The Legislature finds that this dispute has already caused extensive harm, is intolerable, an immediate resolution is required and would serve the higher public purpose, in order that public trust tidelands and submerged lands may be utilized through their normal interface with the fast lands in furtherance of all the usual purposes of the trust. Laws 1989, Ch. 495, 1 (Historical and Statutory notes to Miss. Code Ann ). Legislature dictated that the Secretary of State prepare a map of the Mississippi coastal shoreline to depict the boundary [between tidelands and 6

15 private property] as the determinable mean high water line nearest the effective date of the Coastal Wetlands Protection Act [July 1, 1973]. Miss. Code (1) (emphasis added). It is a fact that, as to the Gunn and Harris property, the Secretary of State has knowingly ignored the legislative mandate and takes the position that the boundary line is at some other location other than where it is designated on the official map as required by law. The Secretary of State used aerial photography to establish the mean high water line. The aerial photograph depicting the mean high water line was a part of the tideland mapping and filed with Chancery Clerks on the Gulf Coast for inspection. [R. 131]. The mean high water line is shown south of the sand beach in front of the Gunn/Harris property and into the waters of Davis Bayou. Instead of the boundary line clearly designated on the map, as mandated by the Legislature, the Secretary of State proclaims that where beach renourishment has occurred, the toe of the sea wall is the demarcation line between private property and tidelands. See Legend on Appellees R.E. 3. It is a fact that the Public Trust Tidelands Act of 1989 in no place makes reference to renourishment nor to the toe of the sea wall. See Miss. Code Ann , et seq. The Gunn/Harris Deeds It is a fact that the Gunn/Harris property was included within property patented by the United States of America into private ownership in 1837 [Tr. Ex. H- 1; RE Tr. Ex. G-1; RE ]. 7

16 Harris and Gunn deraigned their title for a period in excess of 60 years as required by Miss. Code , and every deed in that deraignment of title refers to a monument as the south boundary of the respective properties. Thus, the 1916 deed in the Harris chain refers to thence south parallel with the Newton M. Jones line to the waters of the Mississippi Sound. [Tr. Ex. H-2; RE Tr. Ex. G-12; RE ] (emphasis added). 1 The 1957 deed refers to thence continuing further south to the water s edge of the Bay of Biloxi. [Tr. Ex. H-4; RE ] (emphasis added). The 1986 deed refers to thence continue south to the water s edge of the Bay of Biloxi. [Tr. Ex. H-6; RE ] (emphasis added). The 1992 deed, and vesting deed to Mr. and Mrs. Harris, refers to thence continue south to the water s edge of the Bay of Biloxi. [Tr. Ex. H-7; RE ] (emphasis added). The deeds in the Gunn chain of title are the same. 2 Thus, the 1925 deed relates said land being bounded on the south by the seashore of the Gulf of Mexico. [Tr. Ex. G-2; RE ] (emphasis added). The 1974 deed refers to said land being bounded on the south by the seashore of the Gulf of Mexico. [Tr. Ex. G- 6; RE ] (emphasis added). The 1974 deed adopts by reference the 1925 deed description (notarized in 1926). [Tr. Ex. G-7; RE ]. The 1982 deed refers to thence continue south a distance of 220 feet, more or less, to the water s edge of 1 The deeds refer to the Mississippi Gulf, Bay of Biloxi, Gulf of Mexico and Davis Bayou. This Court correctly refers to this body of water as the Mississippi Sound. Secretary of State v. Gunn, 75 So. 3d at 1017 n feet in width. 2 There are two chains of title for the Gunn property, one for a tract 200 feet in width and one for a tract 8

17 Davis Bayou. [Tr. Ex. G-9; RE ] (emphasis added). The 1989 deed refers to thence continue south a distance of 220 feet, more or less, to the water s edge of Davis Bayou. [Tr. Ex. G-10; RE ] (emphasis added). The 2007 deed refers to thence continue south a distance of 220 feet, more or less, to the water s edge of Davis Bayou. [Tr. Ex. G-11; RE ] (emphasis added). The 1916 deed in the Gunn chain is the same as referenced above in the Harris chain of title. The 1957 deed in the Gunn chain of title recites thence continuing south to the water s edge of the Bay of Biloxi. [Tr. Ex. G-14; RE ] (emphasis added). A 1985 deed refers to thence continue south to the water s edge of the Bay of Biloxi. [Tr. Ex. G-15; RE ] (emphasis added). The 2007 deed is the same deed referenced in the Gunn chain above, and includes the entirety of the 222 foot frontage of the Gunn s waterfront property. The fact that the Gunn and Harris properties extend to the water s edge is confirmed by the taxing authority for the county and city. [Tr. Ex. H-9; RE ] from the Jackson County Tax Assessor s office refers to a description of the Harris property as to water edge. Attached are maps to these assessor information sheets which show the Harris property extending to the water s edge [Tr. Ex. H-9, p. 2; RE 323] and the Gunn property extending to the water s edge [Tr. Ex. G-18, p. 3; RE 327. Tr. 156, ; RE 328, Tr ; RE ]. It is a fact that both Harris and Gunn pay taxes for the benefit of the county and city on the property which they own south of the seawall to the water s edge. 9

18 In the face of these facts, which cannot be reasonably disputed, the Secretary of State contends that the mean high water line does not mark the boundary between public trust tidelands and private property on July 1, The City of Ocean Springs contends that by municipal ordinance, planning and zoning, it has adversely possessed the Gunn/Harris property. Jackson County contends that its maintenance from time to time in front of the Gunn/Harris property has allowed it to adversely possess the entirety of that property. SUMMARY OF ARGUMENT The Trial Judge committed manifest error which requires this Court to reverse and render the Trial Court s Judgment. First, the Trial Judge s findings and conclusions are manifestly erroneous because the Trial Court failed to confirm title. The Trial Court s erroneous and incomplete findings and conclusions fail to comply with this Court s statutory duty to render findings in this matter that are recordable in the land records as a deed. Miss. Code Ann Second, the Trial Judge made manifestly erroneous factual findings regarding the testimony of Joan Salvant. In order to prove artificial beach renourishment, the Secretary of State, Jackson County, and Ocean Springs must produce conclusive evidence that the artificial renourishment occurred on the property in question. State v. Murphy, 202 So.3d 1243, 1252 (Miss. 2016)( 21). The Trial Judge s exclusive reliance on the testimony of Mrs. Salvant is manifestly erroneous and an abuse of discretion. The clear and uncontroverted testimony of Mrs. Salvant is that she did not know the location of the real property of the Harris, nor did she witness 10

19 any artificial creation of sand beach on the property. Mrs. Salvant s testimony is not reliable evidence that can be used to support the claims of the Appellees. Id. Third, the Trial Court made manifestly erroneous factual findings that Harris and Gunn did not provide eyewitness testimony regarding the shoreline from the 1940 s and 1950 s. Harris and Gunn presented the testimony of L.C. Corban, Jr., deceased, which demonstrated that the shoreline had not changed location between 1947 to The Trial Court s erroneous finding that the Plaintiffs failed to present eyewitness testimony was an abuse of discretion and manifestly erroneous. Fourth, the Trial Court made manifestly erroneous factual findings without considering the full report of Defendant s expert, Dr. Claus Meyer-Arendt. Fifth the Trial Court committed manifest error by failing to acknowledge that any action taken by Defendants in 1954 to invade the Property Rights of the Plaintiffs was not authorized. The Trial Court abused its discretion and made manifestly erroneous conclusions of law, that when used by the Trial Court in this matter, created manifestly erroneous factual findings. These manifestly erroneous legal conclusions should be reversed and rendered by this Court. The Trial Court s manifestly erroneous legal conclusions and manifestly erroneous factual findings should be reversed and rendered and confirm title to the real property in Harris and Gunn respectfully. 11

20 ARGUMENT Standard of Review A chancellor's decision will remain undisturbed so long as he commits no manifest error in his fact finding nor abuses his discretion. Ford v. Ford, 795 So.2d 600, 604 (Miss. 2001). The Trial Court s decision should be disturbed, reversed and rendered because the Trial Court committed manifest error in his fact finding, abused his discretion and made erroneous legal conclusions contrary to law. I. The Trial Court s findings and conclusions are manifestly erroneous because the Trial Court failed to confirm title. The Trial Court findings and conclusions are manifestly in error because the Trial Court failed to confirm title. The Trial Court's duty was to determine title to real property sought pursuant to the pleadings in this case. However, the Trial Court failed to do so. The Trial Court failed to reform the legal descriptions to the property of the Plaintiffs and confirm the title of the Plaintiffs property as required by the laws of this State. Particularly, the Trial Court fails to make any specific findings regarding the location of the southern boundary of the Harris and Gunn property. The Trial Court's erroneous and incomplete findings and conclusions fail to comply with this Court's statutory duty to render findings in this matter that are recordable in the land records as a deed. 12

21 II. The Trial Court made manifestly erroneous factual findings based on the testimony of Joan Salvant, a witness that did not know the location of the properties at issue. The Trial Court made manifestly erroneous factual findings that no sand beach existed on the property of Harris and Gunn, prior to it being created in the 1940s and 1950s. [R , P19; RE ]. The Trial Court s reliance on the testimony of Joan Salvant in this title confirmation suit is clearly and manifestly erroneous because Mrs. Salvant failed to provide the Court any evidence regarding boundaries of the Plaintiffs' property. The Trial Court failed to acknowledge that Mrs. Salvant could not testify based upon her 60 year old recollections regarding the condition of the property of Harris and Gunn because she did not and does not know the location of the Harris or Gunn properties. Mrs. Salvant specifically testified: Q. Do you know where the property owned by Clyde H. Gunn, III is? A. No. Q. Okay, do you know where the property owned by David Neil Harris, Sr. or -- and Vecie Michele Harris is? A. No. Q. Okay. Do you know where the eastern boundary of the Gunn property is? A. No. Q. Do you know where the western boundary line of the Gunn property is? A. No. Q. Do you know where the northern boundary line of the Gunn property is? A. No. Q. Do you know where the southern boundary of the Gunn Property is? A. No. Q. Do you know where the eastern boundary of the Harris property is located? 13

22 A. No. Q. Do you know where the western boundary of the Harris property is located? A. No. Q. Do you know where the northern boundary of the Harris property is located? A. No. Q. Do you know where the southern boundary of the Harris property is located? A. No. [Tr. Ex. SOS-131, pg ; RE ] Emphasis added. Second, the Trial Court further erroneously relies on the testimony of Mrs. Salvant s erroneous and outrageous testimony throughout its opinion when the Trial Court finds that no beach existed at the location of the Plaintiffs' property, prior to its creation by Jackson County. The clear and undisputed testimony of Mrs. Salvant is that she never visited the location of the Plaintiffs' property, and never witnessed any sand pumped in or near the property of the Plaintiffs. In other words, Mrs. Salvant s testimony does not prove artificial renourishment occurred on the property of Harris and Gunn as required by law. Again, Mrs. Salvant testified (and Counsel for the State admitted her lack of knowledge) as follows: Q. Now you testified that after 1945 you witnessed the puming in of sand in the East Beach area. A. Yes. Q. Right? And did you witness the pumping in of any sand near the location of the Gunn property? 14

23 MR. JONES (Counsel for the State): Object; calls for speculation. She s already said she doesn t know where the Gunn property it. MR. HARRIS (Counsel for Harris and Gunn) Trey, she can testify. I m just She can say she doesn t know. A. No. Q. Did you witness the pumping in of any sand in--near the Harris property? MR. JONES (Counsel for the State): Object. She doesn't know where the Harris property is. She said that five, six times. A. I don't know. Q. Did you witness the pumping in of any sand on the east end of East Beach? A. I don't know that.... Q. And I believe you told Mr. Jones when you testified that you never made any measurements about the width of the land that was on the water side of the road. Is that correct? A. No. Q. No, I'm not correct or no, you didn't make any measurements? A. I didn't actually take a ruler and make any measurements, no. [Tr. Ex. SOS-131, pg ; RE ]. Contrary to the findings and conclusions of the Trial Court, Mrs. Salvant IS NOT an eyewitness to any fact relevant to this title confirmation suit. Mrs. Salvant does not know the location of the Harris and Gunn properties; does not know the location of the southern boundary of the Harris or Gunn property and did not witness any type of sand pumped, placed, or artificially renourished on or near the Harris or Gunn property. Even Counsel for the Secretary of State objected to Mrs. Salvant s testimony in this regard as speculation, and admitted that Mrs. Salvant does not even know the location of the Harris or Gunn property. 15

24 To prove artificial renourishment, the State must conclusively prove that the artificial renourishment occurred on the property in question. State v. Murphy, 202 So.3d at 1252 (Miss. 2016)( 21). Artificial renourishment at some other location is not sufficient evidence. Id. Mrs. Salvant s testimony does not rise to the level of credible proof that artificial renourishment actually occurred on the property of Harris and Gunn. The Trial Court s inappropriate reliance on Mrs. Salvant s testimony to support its findings and conclusions is manifest error and an abuse of discretion. Harris and Gunn respectfully request this Court to reverse and render the manifestly erroneous decision of the Trial Court and render and decision in favor of Harris and Gunn and confirm the property to the water s edge as set forth in the deeds, the survey and the Complaint to Confirm Title with regard to all boundaries. III. The Trial Court made manifestly erroneous factual findings that Plaintiffs did not provide eyewitness testimony from the 1940 s and 1950 s regarding the location of the mean high water line. The Trial Court erroneously found, Plaintiffs simply do not have any personal knowledge of the area during the highly relevant time period of the 1940 s and early 1950 s. Likewise, the plaintiffs did not produce any witness who offered personal knowledge regarding this critical time period. [R. 772, P.19; RE 055] The Trial Court completely and erroneously disregarded that Harris and Gunn did present eyewitness testimony of L.C. Corban, Jr. regarding the highly relevant period of the 1940 s and early 1950 s. [Tr. Ex. G-19; RE ]. Mr. Corban had previously testified regarding these matters in a previous 16

25 proceeding. Unfortunately, Mr. Corban died in 2014 after a storied 55 year legal career on the Mississippi Gulf Coast, many of those years spent specializing in real estate matters. Specifically, Mr. Corban testified: Q. Now are you familiar with the East Beach area? A. Yes, Sir. Q. When s the first time you saw the East Beach Area? A. While I was in high school. Probably in 1946, 47. Q. Has there been any substantial changes in the waterfront on East Beach in your lifetime? A. Not that I recall Q. In 1947, when you first saw this property, was there a seawall and a roadway down there? A. Not in this particular area. Q. And that s the East Beach area that encompasses Mr. Gunn s property and Mr. Harris property. A. Yes. Q: And when did any public body ever put a seawall or a roadway down there? A: It s my understanding that Jackson County built the seawall and road while I was in college. Would have been in about Q: And is it fair to say that the only change in the character of that property from your first observation of it in 1947 until that aerial photograph (1958 photograph) that you identified as Exhibit 6 was the addition of that roadway and seawall? A: So far as I can recall 17

26 Q: Now, I ask you, Mr. Corban, from your first familiarity with this property in 1947, has there been any substantial change in the waterfront and where the waterfront is located from that time until this aerial photograph in 1992? A: No. [Tr. Ex. G-19, pg. 142, ln. 28- pg. 143, ln. 7; pg. 153, ln. 6-26; and pg. 155, ln ; RE , 346, 348]. Contrary to the testimony of Mrs. Salvant, Mr. Corban actually knew where the Plaintiffs property was located; and testified that from 1947 to 1992, there was no substantial change in the waterfront. The Trial Court s erroneous finding that Harris and Gunn failed to present eyewitness testimony regarding the time period of the 1940s and 1950s is contrary to the clear evidence in this Record. The Trial Court s finding the no witness was presented, clearly demonstrates that the Trial Court failed to properly consider, or even acknowledge, this important evidence, and that the Trial Court s findings are manifestly erroneous, contrary to the overwhelming evidence, and are an abuse of discretion. IV. The Trial Court made manifestly erroneous factual findings without considering the testimony of Plaintiff s Expert Donald Rowe and the full report of Defendants' expert, Dr. Claus Meyer-Arendt that demonstrated that the mean high water line has always been in the same location. The Trial Court failed to consider the evidence presented by the Harris and Gunn s expert Donald Rowe, and State s expert witness Dr. Claus Meyer-Ardent. The Trial Court abused its discretion by failing to consider the expert testimony 18

27 regarding the surveyed location of the mean high water line on the Harris and Gunn property presented by Mr. Rowe. The Trial Court does not even acknowledge that Mr. Rowe testified and presented his engineering and land survey regarding the Harris and Gunn properties. [Tr ; RE Tr. Ex. G-24; RE 156]. Such a blatant disregard of admitted expert testimony and evidence is an abuse of discretion and clearly demonstrates that the Trial Court s findings are manifestly erroneous. Mr. Rowe s testimony and survey are important because Mr. Rowe surveyed the mean high water line/public trust boundary regarding the Harris and Gunn property and found that line to be located between 114 feet and 145 feet south of the existing seawall: THE COURT: Is that figure that your were giving the 130 and 114 and so forth, that s the distance between the seawall and that mean high water line? THE WITNESS: Correct. The ones that varied from 114 to 145. [Tr. 254; RE 179]. Mr. Rowe s topographic survey regarding the Harris property shows the location of the mean high water line (drawn with dashed line ) 114 to 117 feet south of the sea wall. [Tr. Ex. G-24; RE 156]. 19

28 HARRIS PROPERTY NO M S DI ::= CO ELI ~. ~. ----~ - - ~ ---~ t "'".s>: J - +$ ,>t _. ~... +< ;:: ~. J ----, )i! : ~ ~~~--- Mr. Rowe s topographic survey of Gunn property shows the location of the mean high water line 111 to 137 feet south of the sea wall. [Tr. G-24, RE 156] 20

29 GUNN PROPERTY RECOV. 4' X 4' 'l1ooo POST 0.31' 'll 5T (f PRCfERTY UNE TB.M. \\ ST SEE DETAIL APPROXIt.lATE NOOTH EDGE Cf PA'v MENT ~ j _ ~. ~ ~ ".. ~ ~ " w" -,--0 O> ~ ", 0 I Z. _..00 " -.1"'- 0 z I ~....J SAND BEACH,li: JI.. ~ ~ 0 " <ci " ~ Importantly, Mr. Rowe s measurement of the distance from the seawall to the boundary line is almost identical to where Defendant s expert, Dr. Claus Meyer- 21

30 Arendt, found the mean high tide line to exist in Dr. Meyer-Arendt s report clearly shows that, the shoreline was 115 to 130 feet from where the seawall was going to be built in the 1950 s [Tr. Ex. SOS-21, pg. 13, 14, 22; RE 224, 225, 233]. Dr. Meyer-Ardent testified: Q. There is no doubt in your mind that the land between the seawall and the high wter shoreline in 1950 was 115 to 130 feet in front of the Gunn Harris properties? A. From the position of the seawall to the high water mark, yes. [Tr. 545; RE 271] Importantly, Dr. Meyer-Arendt s Report was prepared two (2) years after the Secretary of State s 1990 Tidelands Map, and shows that the public trust tidelands boundary was located at the mean high water line (the same shoreline located 110 to 130 feet from seawall location as shown in Dr. Meyer-Arendt s report.) [Tr. Ex. G- 20; RE 149]. A comparison of the finding of these two experts clearly demonstrates that a sand beach existed prior to 1950, and that the sand beach was the same size then as it is now. Mr. Rowe's investigation and survey confirm that the mean high water line/public trust tidelands boundary on the Harris and Gunn properties varies line between 114 feet and 145 feet south of the existing seawall. [Tr. 254, RE 179; Tr. Ex. G-24, RE 156]. Mr. Rowe and Dr. Meyer-Ardent each independently found that the boundary line is more than one hundred feet south of the seawall, whether in 1950 or

31 Simply put, the boundary line is in the same place now that is has always been. The overwhelming scientific and factual evidence shows that the sand beach fast lands located on the Harris and Gunn property, which shoreline is an average 114 feet south of the seawall, existed prior to any activities of the State, Jackson County and/or the City of Ocean Springs. The location of the sand beach is consistent with the Harris and Gunn deeds and property descriptions that Harris and Gunn have been paying taxes on for over 20 years. The Trial Court s manifestly erroneous findings that a beach did not exist on the property of Harris and Gunn prior to being created by Jackson County is not supported by the scientific evidence presented by Harris, Gunn or the Defendants to this matter. The Trial Court abused its discretion by failing to acknowledge the testimony of Mr. Rowe and by failing to properly consider the scientific findings that were made. V. The Trial Court committed manifest error by failing to acknowledge that any action taken by Defendants in 1954 to invade the property rights of the Plaintiffs was not authorized. The Defendants submitted to the Court a 1954 letter from the U.S. Corps of Engineers in support of its claims that it had authority to conduct construction activities on the property of the Plaintiffs. [Tr. Ex. SOS-38, RE ]. The Trial Court seemingly accepted the Defendants theory without considering the contents of this letter. According to the letter, Jackson County was not given any property rights either in real estate or material, or any exclusive privileges, and was not authorized to cause injury to private property or invasion of private rights, or 23

32 any infringement of Federal, State, or local laws or regulations The Trial Court s findings and conclusions are manifestly wrong to the extent that the Trial Court did not consider that any filling or pumping of sand onto the fast lands belonging to the Plaintiffs as shown by Dr. Meyer-Arendt s report and the testimony of Mr. Rowe, cannot then become the property of the State. Fifth and Fourteenth Amendment, United States Constitution. See also Nollan v. Cal Coastal Com, 483 U.S. 825 (1987) (holding that the government cannot obtain permanent physical occupation of property by government or others without just compensation). Any uncompensated conveyance granted by the Trial Court is manifestly erroneous and an abuse of discretion because such action is unconstitutional. CONCLUSION The overwhelming evidence shows that the Trial Court abused its discretion and made manifestly erroneous factual findings that are against the overwhelming weight of the evidence. The Trial Court abused its discretion by failing to consider the evidence which clearly demonstrates that the Harris and Gunn property should be CONFIRMED in all respects as set forth in the deeds, surveys, and Complaints to Confirm Title. The Trial Court s failure to follow the law is manifestly erroneous, an abuse of discretion, and should be reversed and rendered by this Court. The evidence presented further demonstrates that the Trial Court s factual findings are manifestly erroneous because they are against the overwhelming evidence presented by testimony, eyewitness testimony, and expert testimony and reports. 24

33 This Court should reverse and render the manifestly erroneous findings and legal conclusions of the Trial Court, and specifically confirm Harris and Gunn properties in all respects as set forth in the Harris and Gunn deeds, surveys, and Complaints to Confirm Title. DAVID NEIL HARRIS, SR., and VECIE MICHELE HARRIS By: s/ David N. Harris, Jr. DAVID N. HARRIS, JR. (MSB#100790) COUNSEL OF RECORD FOR APPELLANTS David N. Harris, Jr. (MSB#100790) DAVID N. HARRIS, JR. LAW FIRM, P.L.L.C. P.O. Box 336 Gulfport, MS Phone: (228) A. Scott Cumbest (MSB#7944) CUMBEST, CUMBEST, HUNTER AND MCCORMICK Post Office Drawer 1287 Pascagoula, MS Phone: John G. Corlew (MSB#6526) CORLEW MUNFORD & SMITH PLLC 4450 Old Canton Road, Suite 111 (39211) Post Office Box Jackson, MS Phone: Fax:

34 CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the appellate e-filing system, which sent notification of such filing to the following: W. Trey Jones, Esq. Joseph Anthony Sclafani, Esq. Brunini Grantham Grower & Hewes Post Office Drawer 119 Jackson, MS tjones@brunini.com jsclafani@brunini.com Robert W. Wilkinson, Esq. DOGAN & WILKINSON, PLLC Post Office Box 1618 Pascagoula, MS rwilkinson@dwwattorneys.com astpe@dwwattorneys.com Lee D. Thames, Jr., Esq. Special Assistant Attorney General Office of Attorney General P.O. Box 220 Jackson, MS ltham@ago.state.ms.us Hugh D. Keating, Esq. JéNell B. Blum, Esq. Dukes, Dukes, Keating & Faneca, P.A. Post Office Drawer W Gulfport, MS hugh@ddkf.com jenell@ddkf.com David Crane, Esq Broadmoor Place Gulfport, MS dwcrane@att.net Further, I hereby certify that I have mailed the foregoing pleading or other paper to the following interested persons: Honorable Hollis McGehee Special Chancellor, Jackson County P.O. Box 1574, Boutte, LA This, the 8 th day of January, By: s/ David N. Harris, Jr. David N. Harris, Jr. (MSB #100790) 26