Town of Kenner v. Zito

• Decision Date: 12 March 1917
• Docket Number: 22277
• Citation: 74 So. 636,141 La. 76
• Court: Louisiana Supreme Court
• Parties: TOWN OF KENNER v. ZITO. In re ZITO et al

74 So. 636

141 La. 76

TOWN OF KENNER v. ZITO.

In re ZITO et al

No. 22277

Supreme Court of Louisiana

March 12, 1917

SYLLABUS

(Syllabus by the Court.)

An intention to dedicate property to public use must be clearly established, but such an intention may be shown by deed, by words or by acts.

Where a plat representing a proposed subdivision of the site of a town, to be named 'Hanson City,' was filed and recorded in the year 1894, and there appeared thereon a certain square represented as bounded on one side by a railroad track, and on the opposite side by 'Park Street,' and next to said track a railroad depot, and next to Park street a small quadralateral piece of ground bisected by a roadway loading from Park street to the said depot, and marked 'Hanson City Railway Park,' held, that the intention to dedicate the so-called park to the municipality to be created is doubtful on the face of plat, and is repelled by evidence tending to show the intention to dedicate, or reserve said park for the purpose of beautifying the depot grounds.

Johnston Armstrong, of New Orleans, for applicant Zito.

Gustave Lemle, of New Orleans, for applicant Hanson City Land Co., Limited.

F. A. Middleton and Frank J. Clancy, both of New Orleans, for respondent.

SOMMERVILLE, J., concurs.

OPINION

LAND, J.

In 1894, the Hanson City Land Company, Limited, caused to be made and duly recorded a plat of a large tract of land, fronting on the Mississippi river, in the parish of Jefferson, subdivided into blocks, lots, streets, boulevards, places, etc., naming the subdivision 'Hanson City,' now within the corporate limits of the town of Kenner.

This suit was instituted by the town of Kenner to recover, as property dedicated to public use, a certain piece of ground, designated on said plat as 'Hanson City Railway Park.'

The plat shows this part as bisected by a roadway extending from Park street to certain structures, representing the station of the Yazoo & Mississippi Valley Railroad.

The roadway curved in such a manner as to subdivide the park into two irregular shaped pieces of ground, somewhat in the form of triangles.

The defendant denied that the Hanson City Railway Park was ever dedicated to public use, and claimed ownership of the same by purchase from the Hanson City Land Company, Limited, on June 5, 1914, and called his vendor in warranty.

For answer to the petition and call in warranty, the Hanson City Land Company, Limited, denied the alleged dedication, admitted the sale to the defendant, and averred that he had a legal title to the so-called park.

The cause was tried, and judgment was rendered in favor of the defendant.

The town of Kenner appealed to the Court of Appeal for the parish of Orleans, which reversed the judgment below, and rendered judgment in favor of the plaintiff.

The case is before us on a writ of review.

The question was dedication vel non of the park in the year 1894.

The Court of Appeal pointed out that the ground in controversy was styled a 'park,' was laid out as a park, and for nearly 20 years the Hanson City Land Company never exercised, performed, or claimed any right of ownership or possession over the property.

The court held that the word 'park' means primarily a public place, to the same degree that the word 'street' signifies a public thoroughfare -- citing City of New Orleans v. Carrollton Land Co., 131 La. 1094, 60 So. 695, where the designation on the plat was 'Frederick Square.'

The Court of Appeal also cites Town of Vinton v. Lyons, 131 La. 674, 60 So. 54, where it was held that the recording of a plat with a vacant block marked 'Park,' and the sale of lots according to the plat, is an irrevocable dedication of the park to public use.

The Court of Appeal continues as follows:

'The destination of the space as a park is emphasized by the adjacent street being 'Park street,' and the testimony, in this connection, to the effect that the company designated the street 'park' in honor of an employe of that name, is immaterial, as the ordinary meaning of the word is to be considered, and not the peculiar or special sense in which it was used by the company. Livaudais v. Municipality No. 2, 16 La. 509.

'And, moreover, the use of 'Hanson City' in the title of the square clearly suggests a municipal or public, and not a private, ownership, interest, or use.

'But it is claimed that the presence of the word 'Ry.' or 'Railway' materially affected the meaning of the title and clearly manifested an intention on the part of the warrantor to reserve to itself this property in order that it might thereafter sell or donate it to the Yazoo & Mississippi Valley Railway Company as a private park adjacent to its station.

'But as we have heretofore remarked, this title must be considered as a whole and its interpretation governed by the ordinary meaning its language conveys, and not by the latent intention of the warrantor. And thus considered it manifestly evidences a purpose to dedicate and not to reserve, and the sole significance that would readily attach to the word 'Ry.' would be that this particular park derived its...