Anderson v. Police Jury of East Feliciana Parish

• Decision Date: 30 May 1984
• Docket Number: No. 83,83
• Parties: Ethel P. ANDERSON v. The POLICE JURY OF the PARISH OF EAST FELICIANA. CA 0733.
• Court: Court of Appeal of Louisiana — District of US

Page 730

452 So.2d 730

Ethel P. ANDERSON v. The POLICE JURY OF the PARISH OF EAST FELICIANA.

No. 83 CA 0733.

Court of Appeal of Louisiana First Circuit.

May 30, 1984.

Richard H. Kilbourne, Clinton, for plaintiff-appellant.

William E. Woodward, Asst. Dist. Atty., Clinton, for defendant-appellee.

Before SHORTESS, LANIER and CRAIN, JJ.

CRAIN, Judge.

This is an appeal from a judgment of the trial court in a petitory action, finding that the Police Jury of East Feliciana Parish (Police Jury) had good title to a servitude for the establishment and maintenance of a public road on plaintiff's property.

FACTS

On October 5, 1971, James Anderson granted, in an authentic act filed in East Feliciana Parish, a servitude of passage to the public over part of his property for the establishment of a public road. That grant was conditioned upon the assumption by the Police Jury of the maintenance and policing of the road. The Police Jury assumed those obligations and accepted the servitude in the same act.

The Police Jury constructed a gravel road on the servitude and maintained the road to some extent over the next few years by gravelling and grading it periodically. The road was used by the public for some undetermined amount of time, until a gate was erected across its entrance. After public complaint, the gate was taken down and public use resumed, although no further work on the road was done by the Parish.

On August 3, 1981, at a meeting of the Police Jury, a motion was made and carried abandoning the parish right-of-way on the Anderson property. Jerry D. Bunch, a member of the Police Jury in 1981, testified at trial that prior to the August 3, 1981, meeting, Mrs. Ethel Anderson, widow of James Anderson, approached him about getting the road closed. Bunch stated that Mrs. Anderson represented to him that she owned all of the property that the road accessed, and based on her representations he suggested to the jury that the servitude be abandoned. Bunch also testified that he might have stated to the Police Jury at that time that the Police Jury had never done any work on the road in an effort to help Mrs. Anderson.

After the road was closed, the Police Jury immediately began to receive complaints from property owners who, due to the road's closing, no longer had access to their property. In response to the numerous complaints, a motion was made and carried at the Police Jury meeting on October 5, 1981, to rescind the abandonment of the right-of-way on the Anderson property.

TRIAL COURT

Mrs. Anderson subsequently filed suit against the Police Jury on September 28, 1982, in the form of a possessory action. The Police Jury answered the suit and filed a reconventional demand rejecting Anderson's demands and seeking to be recognized as the owner of the servitude by virtue of the donation from James Anderson.

Based on the allegations in the Police Jury's reconventional demand, Anderson filed a motion and rule for judgment on the pleadings. On November 23, 1982, judgment was rendered on the face of the pleadings in Mrs. Anderson's favor and against the Police Jury, holding that the Police Jury had converted the possessory action into a petitory action by confessing Anderson's right to possession of the property in its pleadings. The judgment decreed that henceforth the suit would be conducted as a petitory action with the Police Jury as plaintiff and Anderson as the defendant. Anderson subsequently answered the reconventional demand generally denying the same and alleging that the Police Jury had revoked the servitude by an ordinance adopted at a meeting held August 3, 1981, and, in the same month, she had taken possession.

Trial was held, and judgment was rendered on March 30, 1983, in favor of the Police Jury on both the main demand as well as the reconventional demand, recognizing the Police Jury as legal owner of the servitude on Anderson's property. That judgment was based on the trial judge's findings, in his reasons for judgment, that the Police Jury's actions purportedly abandoning the servitude on August 3, 1981, were induced by fraud on Anderson's part and were therefore null and without effect.

Mrs. Anderson appeals the judgment of the trial court in the petitory action, specifying the following assignments of error:

(1) The trial court erred in rendering judgment in the petitory action, in favor of the Police Jury on the main demand (the possessory action), which, in effect, reversed the court's previous judgment on the pleadings in Mrs. Anderson's favor.

(2) The trial court erred in ruling that the Police Jury had "good title" to the servitude without requiring the Police Jury to comply with the title requirements of La.C.C.P. art. 3653 and La.C.C. art. 531.

(3) The trial court erred in basing its judgment in the petitory action entirely on its finding that the Police Jury had not abandoned the servitude.

(4) The trial court erred in ruling ex proprio motu in the petitory action that Mrs. Anderson acted fraudulently when no such issue had been raised in the pleadings.

Before the merits of appellant's assignments of error can be discussed, we find it necessary to classify the type of dedication involved in this case--something which neither party nor the trial judge attempted to do.

CLASSIFICATION OF DEDICATION

In the case of Arkansas-Louisiana Gas Co. v. Parker Oil Co., 190 La. 957, 183 So. 229 (1938), the Louisiana Supreme Court concluded that there were only two types of dedication in Louisiana--statutory and common-law (informal) dedication. That there might be a third category of dedication, which has been referred to as formal non-statutory dedication, was raised in the case of Banta v. Federal Land Bank of New Orleans, 200 So.2d 107 (La.App. 1st Cir.1967), application denied, 251 La. 46, 202 So.2d 657 (1967). The court in Banta was concerned with the implication in Parker that a dedication not in substantial compliance with Act 134 of 1896 (the basis for statutory dedication in Louisiana, now La.R.S. 33:5051) ¹ amounted to a common- law dedication conveying only a servitude, not ownership, to the public, where the intent of the grantor was not clearly expressed. The court concluded that the fact that a dedication is not of the type contemplated by Act 134 of 1896 does not preclude other forms of dedication, such as that established by the filing of a plat, which would convey title in the dedicated land to the public. As was pointed out in Banta, this third category of dedication has been applied to dedications occurring prior to Act 134 of 1896, when there was no provision for statutory dedication. Richard v. City of New Orleans, 195 La. 898, 197 So. 594 (1940); Jaenke v. Taylor, 160 La. 109, 106 So. 711 (1926); Flournoy v. Breard, 116 La. 224, 40 So. 684 (1906).

Since the Banta case, the jurisprudence has generally ignored the category of formal non-statutory dedication, preferring to cite Parker for the proposition that a dedication is either statutory (conveying ownership) or common-law (conveying only a servitude to the public). Becnel v. Citrus Lands of Louisiana, Inc., 429 So.2d 459 (La.App. 4th Cir.1983), writ denied, 437 So.2d 1147 (La.1983); Ross v. City of Covington, 271 So.2d 618 (La.App. 1st Cir.1973), writ denied, 273 So.2d 844 (La.1973); Village of Folsom v. Alford, 204 So.2d 100 (La.App. 1st Cir.1967). The Third Circuit case of Garrett v. Pioneer Production Corporation, 378 So.2d 945 (La.App. 3rd Cir.1979) is an exception. In that case, the trial court found an implied dedication which did not divest ownership; however, in reaching that decision the court took the opportunity to discuss the alternative categories of dedication--statutory dedication and formal nonstatutory dedication. On writ of certiorari in Garrett, the Louisiana Supreme Court reversed the Third Circuit, holding that there was indeed substantial compliance with La.R.S. 33:5051 resulting in a statutory dedication divesting ownership. The Court did not reach the issue of non-statutory dedication, but mentioned in a footnote defendants' argument that there was, in effect, a " 'formal', non-statutory dedication." Garrett v. Pioneer Production Corporation, 390 So.2d 851, 857-858 n. 6 (La.1980). The question surrounding the third category of dedication was left unanswered.

After extensive review of the jurisprudence and legal commentary on the subject [See, in particular, Comment, The Third Dimension of Dedication in Louisiana, 30 La.L.Rev. 583 (1970) ] we find that there are properly three distinct categories of dedication:

(1) statutory, which is accomplished when La.R.S. 33:5051 is substantially complied with. It conveys ownership to the public. Parker, 183 So. at 240.

(2) formal non-statutory, which is created whenever there exists some formal, express act by the owner which clearly shows an intent to dedicate. We hold that, absent a clear expression to the contrary, this dedication also conveys ownership and applies to the situation in which La.R.S. 33:5051 is not substantially complied with. See Banta, 200 So.2d at 112-3; cf. Parker, 183 So. at 240.

(3) informal, which would include those forms of dedication in which the law deems it necessary to infer an intent to dedicate from the owner's actions. This creates only a servitude and acceptance by the public is necessary. ²

Clearly, the dedication involved in this case falls into the second category. It is unnecessary for us, however, to classify the dedication as being one which transfers ownership or only a servitude since for our purposes it is necessary only to determine that the dedication is a formal dedication for us to establish the proper procedural framework.

BURDEN IN PROVING OWNERSHIP OF PUBLIC THINGS

Mrs. Anderson at some point in time erected a fence across the road in question. She later instituted a possessory action against the Police Jury alleging that she had fulfilled the requirements of La.C.C.P. art. 3658. The Police...