Rebecca Baxter Comeaux v. Larry Freeman
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CA-00010-COA
REBECCA BAXTER COMEAUX
APPELLANT
v.
LARRY FREEMAN, DONALD WELLS, WILLIAM
AMACKER, JR. AND SHARON DEDEAUX
APPELLEES
Consolidated with:
2004-CA-00523-COA
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
12/10/2003
HON. JAMES H. C. THOMAS, JR.
MARION COUNTY CHANCERY COURT
ROBIN L. ROBERTS
WILLIAM H. JONES
LEIGH KENNINGTON BERRY
CIVIL - REAL PROPERTY
HELD THAT WHEN RIPARIAN RIGHTS ARE
CONCERNED, THE INTENT OF THE GRANTOR
DETERMINES WHAT LAND IS CONVEYED.
DEFENDANT IS FURTHER GRANTED A
UTILITY EASEMENT ACROSS PLAINTIFF’S
PROPERTY.
AFFIRMED - 05/17/2005
BEFORE LEE, P.J., GRIFFIS AND ISHEE, JJ.
LEE, P.J., FOR THE COURT:
¶1.
This case arises from a dispute over ownership of riparian rights for certain land along the Pearl
River in Marion County, Mississippi. Each of the parties owns land on and near the Pearl River. Rebecca
Baxter Comeaux owns land along the river and seeks to open a camping and tubing business. Comeaux
claims that the adjoining landowners have interfered with her use of her land by launching boats from the
land in dispute. The adjoining landowners argue that while Comeaux does own land along the river,
Comeaux does not have the exclusive right to use the river and sand bars, which adjoin the property of the
appellees. Comeaux filed suit in the Marion County Chancery Court, alleging that the defendants
trespassed upon her property, and that such trespass constituted a cloud upon the title to her lands.
Comeaux further alleged that one of the defendants, William Amacker, slandered the title to her land, and
Comeaux sought damages for the slander.
¶2.
The parties submitted the action to Chancellor James Thomas for a determination on the merits.
The chancellor found that the defendants’s property rights extended to the thalweg of the Pearl River, and
that the defendants had not trespassed on the river bed which was adjacent to their and Comeaux’s
respective properties. The chancellor further found that the defendants were entitled to a utility easement
on, over, under and across an existing roadway easement.
¶3.
It is from this ruling which Comeaux now appeals, arguing the following issues which we quote
verbatim: (1) does the Appellant’s property extend to the thalweg of the Pearl River; (2) whether the court
erred in basing its findings on the perceived intent of the grantor; (3) if the Appellant is the owner of riparian
rights to the river, whether she may exclude the neighboring property owners whose property is specifically
described by metes and bounds descriptions from accessing the river via her property.
¶4.
Finding no error, we affirm.
STANDARD OF REVIEW
¶5.
In boundary disputes, a determination of the legal boundary between properties is a question of fact
for the chancellor. The same standard applies to questions involving the accuracy of a survey. The
chancellor's decision in this regard will not be disturbed on appeal unless we find that the chancellor
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committed manifest error. City of Waynesboro v. McMichael, 856 So. 2d 474, 477 (¶5) (Miss. Ct. App.
2003 ) (citing Kleyle v. Mitchell, 736 So. 2d 456 (¶8) (Miss. Ct. App. 1999)).
I.
DOES THE APPELLANT’S PROPERTY EXTEND TO THE THALWEG OF THE
PEARL RIVER?
¶6.
Comeaux argues that her property extends to the thalweg of the Pearl River. In support of this
argument, Comeaux cites the case of Archer v. Southern Railway Co. in Mississippi, 132 Miss. 894,
95 So. 680, 682 (1923). Comeaux is mistaken. Archer, in fact, more accurately summarizes the
arguments of the appellees.
¶7.
Archer is the second in a series of suits between Archer and the Southern Railway in an attempt
to establish ownership of land along the Mississippi River. The first case is not germane to the case sub
judice; however, the second case, to which Comeaux cites, addresses determining the boundary of land
bordered by navigable rivers. In Archer, the land in question was bounded on the west by the Mississippi
River. In fact, the southern starting point of the western boundary line of land began at the river. The
boundary line terminated north of its origin at a point which also intersected the river. Testimony showed
that there was no land between this western boundary and the river. The language of the deed provided
in pertinent part as follows: "[t]hence north 64 1/4 degrees 950 feet to the Mississippi River, thence up the
bank of said river to its intersection with a line 160 feet south of and parallel to the north side of Walthall
street." Archer, 95 So. at 681. The Mississippi Supreme Court determined that the river was the
boundary line of the property, and that riparian rights passed to the grantee under the deed in question.
In support of this conclusion, the supreme court opined as follows:
In Farnham on Water Rights, vol. 2, p. 1475, the rule is thus stated:
“If the grant is bounded by a well-marked line on the bank which is not coincident with the
water, the title will extend only so far as the line, and the grantee will acquire no riparian
rights. So, if the line along the river is described as a direct line, the line, and not the river,
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is the true boundary. In order to have this rule apply, however, the line must be described
so distinctly as to indicate an intention that the stream shall not be the boundary.”
Again in Washburn on Real Property (6th Ed.) vol. 3, p. 392, § 2334, this rule is thus laid
down:
“In respect to streams and rivers which are not navigable, the rule seems to be universal
that describing land as running to the stream or the bank, and by it or along the stream or
the bank, extends to the middle or thread of the stream, the filum aquæ, unless there is
something in the description clearly excluding the intermediate space between the edge or
bank of the stream and its thread.”
Archer, 95 So. at 682. The court determined that “[i]n this case, instead of there being anything to indicate
an intention that riparian rights should not pass, the testimony, the deed, and the map indicate that the
intention of both parties was for the grantee to acquire these riparian rights.” Id.
¶8.
Citing Cox v. F-S Prestress, Inc., 797 So. 2d 839 (Miss. 2001) and Archer, the chancellor in
the case sub judice determined that regardless of the size or navigability of a river, landowners of abutting
land own to the thalweg of the stream. Indeed, “[t]he law in Mississippi, as to boundaries on freshwater
streams above the ebb and flow of the tides, is that regardless of the size or navigability the owners of
abutting land own to the thread or thalweg of the stream.” Cox, 797 So. 2d at 843 (¶15) (citing Wilson
v. St. Regis Pulp & Paper Corp., 240 So. 2d 137, 139 (Miss. 1970)).
¶9.
In the case sub judice, Comeaux purchased “[a]ll of Fraction Section 30, Township 1 North,
Range 17 West of St. Stephens Meridian, Marion County, Mississippi” less and except nineteen parcels
of land and four easements, all clearly described in metes and bounds in Comeaux’s warranty deed.
Comeaux argues that only two of the some thirty-six deeds included in the record convey property to the
thalweg of the river. Comeaux further argues that “of the remaining deeds, almost half make no mention
of the river, but are specific metes and bounds descriptions, and of the deeds with descriptions which
mention the bank of the river, the metes and bounds descriptions are to a specific line.” Comeaux
concludes that under Archer, no riparian rights were transferred by the metes and bounds description,
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therefore rights to the river and sand bar passed to Comeaux when she purchased “all of the fractional
section.”
¶10.
We note that twenty-two parties were joined as parties in interest to the original claim, resulting in
a total number of twenty-six defendants. However, in her notice of appeal, Comeaux only names four of
the litigants as against whom her appeal is taken, specifically, WilliamAmacker, Jr., Larry Freeman, Donald
Wells, and Sharon Dedeaux. Rule 3 (c) of the Mississippi Rules of Appellant Procedure requires that the
notice of appeal specify the party taking the appeal and the party or parties against whom the appeal is
taken. 1 Although Comeaux argues in generalities regarding all of the deeds contained in the record, under
MRAP 3, we shall limit our review to the chancellor’s decision regarding the parties who are actually
named as appellants and appellees in Comeaux’s notice of appeal.
¶11.
Additionally, although Sharon Dedeaux is listed as a party to the appeal, after an extensive review
of the record before us, it is unclear to this Court what relationship Sharon Dedeaux has to any of the deeds
contained in the record. In Vinson v. Johnson, 493 So. 2d 947, 949 (Miss. 1986), the supreme court
wrote:
Because attorneys continue to allege in briefs facts on which a record is blank, we are
constrained to once again make the point. If something happens in a trial court about which
a party feels aggrieved, he will not be allowed to complain of it on appeal unless he gets
it in the record.
¶12.
Additionally, the supreme court has determined that an appellate court "may not act upon or
consider matters which do not appear in the record and must confine itself to what actually does appear
in the record." See Burham v. Stevens, 734 So. 2d 256, 266 (¶39) (Miss. Ct. App. 1999); Ditto v.
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“The notice of appeal shall specify the party or parties taking the appeal and the party or
parties against whom the appeal is taken, and shall designate as a whole or in part the judgment or
order appealed from. An appeal shall not be dismissed for informality of form of title of the notice of
appeal.” MRAP 3(c).
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Hinds County, Miss., 665 So. 2d 878, 880 (Miss. 1995). This Court will not speculate as to what
possible interest Sharon Dedeaux has in the conveyances contained in the record; therefore, we affirm the
chancellor’s ruling regarding Sharon Dedeaux’s land.
¶13.
We next look to the language of the deeds in question.
(a)
¶14.
Deed of Larry Freeman
On July 15, 1999, William Amacker, Jr. deeded Larry Freeman and Jerry Cawthorn two parcels
of land, as evidenced in exhibit 28.
¶15.
The first tract provides in pertinent part as follows:
[t]hence run West 208 feet, more or less, to a point on the East bank of [the] Pearl River
for the place of beginning; thence East 208 feet, to a point on the centerline of said road
right of way; thence run North 15 degrees West along the center of said road right of way,
210 feet; thence run West 208 feet more or less, to a point on the East bank of [the] Pearl
River; thence South along East bank of [the] Pearl River 210 feet, more or less, returning
to the place of beginning . . . .
¶16.
The description of the second tract provides in pertinent part as follows:
[b]eing a point on the East bank of [the] Pearl River; the point of beginning; thence South
81 degrees 17 minutes 52 seconds East 208 feet; to the centerline of a road right of way,
thence along said right of way North 15 degrees 00 minutes 00 seconds West 280 feet,
thence West 208 feet, more or less to a point on the East bank of the [P]earl River, thence
with said river bank, South 17 degrees 23 minutes 36 seconds East 250.44 feet more or
less to the point of beginning. . . .
¶17.
Considering the legal description and referencing the maps included in the record as exhibits 38 and
39, this tract of land is clearly on the bank of the Pearl River. Under the rule as enunciated in Cox,
Freeman clearly owns to the thalweg of the river. The chancellor did not err in this determination.
(b)
Deed of Donald Wells
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¶18.
On December 13, 1999, William Amacker, Jr. deeded Donald Wells one parcel of land. The
deed, which is included in the record as exhibit 8, provides in pertinent part as follows:
From the Point of Beginning run North 66 degrees 33 minutes 38 seconds West for
116.47 feet to a 1/2 inch rebar; thence run North 39 degrees 23 minutes 17 seconds East
for 366 feet to 1/2 inch rebar; thence run South 67 degrees 11 minutes 18 seconds East
for 15.86 feet to a 1/2 inch rebar; thence run South 83 degrees 32 minutes 34 seconds
East for 70.86 feet to a 1/2inch rebar; thence run North 82 degrees 06 minutes 16 seconds
East for 55.01 feet to a 1/2inch rebar; thence run South 39 degrees 23 minutes 17 seconds
West for 417.46 feet back to the Point of Beginning.
¶19.
Considering the legal description and referencing the maps included in the record as exhibits 38 and
39, Wells’s land clearly borders the bank of the river. Under Cox, Wells owns to the thalweg of the Pearl
River. The chancellor did not err in this determination.
(c)
¶20.
Deed of Williams Amacker, Jr.
William Amacker, Jr. is listed as the grantee on two deeds which were included as exhibits in the
record. The first of these deeds, exhibit 3, is a conveyance of fifty-one acres from Dixie Hall Kilby to
William Amacker, Jr. on August 23, 1990. The second deed, exhibit 27, transfers land from George
Bryan Amacker to William Amacker, Jr. on May 24, 1999. However, this land was deeded from
Amacker to Larry Freeman and Jerry Cawthorn on July 15, 1999, as discussed in Section (a) of this
opinion. After an extensive review of the record in this case, it is unclear to this Court exactly how much,
if any, of the original fifty-one acres are still owned by Amacker. This Court is not inclined to estimate or
speculate as to precisely how much land Amacker owns in Fractional Section 30, and this Court will not
speculate regarding the exact location of that land. “It must be presumed that the rulings of the trial court
were correct, and such presumption will prevail, unless the actual record supports the contrary view.”
Shelton v. Kindred, 279 So. 2d 642, 644 (Miss. 1973). Accordingly, we affirm the chancellor’s judgment
regarding land owned by Amacker.
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¶21.
Reviewing only the land owned by Wells and Freeman, it is clear that when Comeaux purchased
the remaining land in Fractional Section 30, she did not purchase what Wells and Freeman already owned,
namely the rights to the river bordering Wells’s and Freeman’s land. We do not find that the chancellor
erred in his determination that these landowners own to the thalweg of the Pearl River.
II.
DID THE CHANCELLOR ERR IN BASING ITS FINDINGS ON THE PERCEIVED
INTENT OF THE GRANTOR?
¶22.
Comeaux next argues that the chancellor erred in considering the “perceived intent of the grantor.”
We do not agree with this contention. The Freeman deeds clearly indicate that the bank of the river is the
boundary. Under Archer and Cox, Freeman clearly owns to the thread of the river. Comeaux further
argues that the metes and bounds description provides a boundary line so distinct that under Archer it is
clear that the grantor did not intend to use the river as a boundary. We disagree. Freeman’s deed clearly
provides that the western boundary of his property follows the bank of the Pearl River. There is no
indication in the record before this Court that the grantor was referencing a well-marked line other than the
bank of the river in establishing the boundary of the land. For a boundary to be a well-marked line which
is not coincident to the river, therefore limiting the boundary to the line and not the river itself, “the line must
be described so distinctly as to indicate an intention that the stream shall not be the boundary.” Archer,
95 So. 680 at 682 (quoting Farnham on Water Rights, vol. 2, p. 1475). Clearly this rule does not apply
in the case sub judice, for the deed, although providing a metes and bounds description, indicates that the
bank of the river is the boundary.
¶23.
We next consider whether this rule applies to the land deeded to Wells. Although the language in
this deed references a rebar, it also fails to reference a well-marked line to the extent that we could infer
that the grantor only intended to deed the land up to the line and not up to the river. Additionally,
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referencing exhibit 39, the western border of Wells’s land clearly falls on a line delineated as the bank of
the Pearl River. Thus, we cannot find that the chancellor erred in determining that the bank of the Pearl
River is the boundary to Wells’s land. Accordingly, these assignments of error lack merit.
III.
MAY COMEAUX EXCLUDE THE NEIGHBORING PROPERTY OWNERS WHOSE
PROPERTY IS DESCRIBED IN METES AND BOUNDS FROM ACCESSING THE
RIVER?
¶24.
As we affirm the chancellor’s finding that Wells and Freeman own to the bank of the Pearl River
and therefore to the thalweg of the river, we do not agree that Comeaux may exclude these individuals from
their own land. Regarding other landowners whose deeds provide descriptions in metes and bounds, this
appeal is limited by the notice of appeal as discussed in Section I of this opinion; therefore, we decline to
review the chancellor’s findings regarding the rights of the other landowners in this action. This assignment
of error lacks merit.
¶25. THE JUDGMENT OF THE CHANCERY COURT OF MARION COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., BRIDGES, P.J., MYERS, CHANDLER, GRIFFIS, BARNES AND ISHEE,
JJ., CONCUR. IRVING, J., DISSENTS WITHOUT A SEPARATE WRITTEN OPINION.
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