96 1411 La.App. 1 Cir. 5/9/97, Cavaness v. Norton

• Decision Date: 09 May 1997
• Citation: 694 So.2d 1174
• Parties: 96 1411 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1174

694 So.2d 1174

96 1411 La.App. 1 Cir. 5/9/97

Daron CAVANESS, et al. v. James NORTON, et al.

No. 96 CA 1411.

Court of Appeal of Louisiana,

First Circuit.

May 9, 1997.

Randall M. Alfred, Houma, for Plaintiffs--Appellees.

Robert B. Butler, III, Houma, for Defendants--Appellants.

Before LOTTINGER, C.J., and FOIL and FOGG, JJ.

[96 1411 La.App. 1 Cir. 2] FOGG, Judge.

The salient issue raised on appeal in this property case is whether a roadway located within a subdivision was statutorily or impliedly dedicated for public use.

On February 8, 1966, the developer of Broadmoor Heights Subdivision, Broadmoor Heights, Inc., caused a plat of that subdivision, which was prepared by Warren and Associates and dated June 10, 1965, to be recorded in the records of the Parish of Terrebonne under Entry No. 293354. That plat shows numerous streets, all of which are named. Block numbers are shown along all of the streets. However, only one street is lined with lots; that street is named Douglas Drive. Each lot on Douglas Drive is 108 feet deep and between 66 and 73.7 feet wide; the width of all streets is shown to be 50 feet. Gwendolyn Drive intersects Douglas Drive between Lot 25, Block 7, which adjoins the subject property to the west, and Lot 1, Block 8, which adjoins the subject property to the east. Both of these lots face Douglas Drive. Gwendolyn Drive does not continue across Douglas Street. The property in dispute consists of 108 feet of Gwendolyn Drive beginning where that street intersects with Douglas Street. There is no street dedication clause on this plat.

On April 1, 1966, Broadmoor Heights, Inc. filed in the conveyance records of the Parish of Terrebonne the Act of Restrictions for Broadmoor Heights Subdivision. Broadmoor Heights, Inc. sold Lots 9 and 10, Block 2 of Broadmoor Heights Subdivision to Sidney and Decroche on June 13, 1966. Then, on June 16 and 17, 1966, it filed two revised plats of the subdivision; on these plats there is clause which, in part, states that Gwendolyn Drive is dedicated to the public as a right of way only.

On March 4, 1994, Ordinance 4071 was filed in the conveyance records. That ordinance was passed by the Terrebonne Parish Consolidated Government on September 28 1987, and purports to [96 1411 La.App. 1 Cir. 3] "de-dedicate and to abandon" the subject property, avering that it had been previously dedicated for use as a street.

The plaintiffs herein purchased the subject tract by a cash sale from Ulysse P. and Edna Henry Fanguy in 1995. The Fanguys acquired title from Central Appraisal Systems, Inc. in March of 1994. Central Appraisal Systems, Inc. acquired title to all of the assets of E.M. Glynn, Inc. by merger dated April 6, 1987, which had previously merged with and acquired the assets of Broadmoor Heights Subdivision on May 10, 1974.

On October 18, 1995, the plaintiffs filed the instant suit seeking a judgment declaring they are the sole owners of the subject property. Therein, the plaintiffs asserted that the subject property was never dedicated as a public road or street. Named as defendants were James and Bonnie Norton who are the owners of Lot 25, Block 7 of Broad-moor Heights Subdivision. Also named as a defendant was Robert Link who owns Lot 1, Block 8 of the Broadmoor Heights Subdivision.

After the issue was joined, the trial judge heard the plaintiffs' motion for summary judgment and rendered judgment in their favor finding that, under the plats filed on June 16 and 17, 1966, the tract was not dedicated as a public road. This appeal followed.

Louisiana has long recognized statutory and implied dedication of private property to the public use. Arkansas-Louisiana Gas Company v. Parker Oil Company, Inc., 190 La. 957, 183 So. 229 (1938). The effect of statutory dedication is to divest the original owner irrevocably of title and to remove the property from commerce. Once statutorily dedicated, the property is not susceptible of private or individual ownership. City of Covington v. Glockner, 486 So.2d 837 (La.App. 1 Cir.1986), writ denied, 488 So.2d 693 (La.1986); Becnel v. Citrus Lands of Louisiana, Inc., 429 So.2d 459 (La.App. 4 Cir.), writ denied, 437 So.2d 1147 (La.1983). A street impliedly dedicated is [96 1411 La.App. 1 Cir. 4] subject not to ownership, but to a servitude of use. Hailey v. Panno, 472 So.2d 97 (La.App. 5 Cir.1985); Becnel v. Citrus Lands of Louisiana, Inc., 429 So.2d 459 (La.App. 4 Cir.), writ denied, 437 So.2d 1147 (La.1983).

The pertinent legislation is LSA-R.S. 33:5051 which provides the statutory basis for dedication in Louisiana as follows:

A. Whenever the owner of any real estate desires to lay off the same into squares or lots with streets or alleys between the squares or lots and with the intention of selling or offering for sale any of the squares or lots, he shall, before selling any square or lot or any portion of same:

(1) Cause the real estate to be surveyed and platted or subdivided by a licensed land surveyor into lots or blocks, or both, each designated by number.

(2) Set monuments at all of the corners of every lot and block thereof.

(3) Write the lot designation on the plat or map, and cause it to be made and filed in the office of the keeper of notarial records of the parish wherein the property is situated and copied into the conveyance record book of such parish, and a duplicate thereof filed with the assessor of the parish, a correct map of the real estate so divided.

B. The map referenced in Subsection A of this Section shall contain the following:

(1) The section, township, and range in which such real estate or subdivision thereof lies according to government survey.

(2) The dimensions of each square in feet, feet and inches, or meters.

(3) The designation of each lot or subdivision of a square and its dimensions in feet, feet and inches, or meters.

(4) The name of each street and alley and its length and width in feet, feet and inches, or meters.

(5) The name or number of each square or plat dedicated to public use.

(6) A certificate of the parish surveyor or any other licensed land surveyor of this state approving said map and stating that the same is in accordance with the provisions of this Section and with the laws and ordinances of the parish in which the property is situated.

(7) A formal dedication made by the owner or owners of the property or their duly authorized agent of all the streets, alleys, and public squares or plats shown on the map to public use.

[96 1411 La.App. 1 Cir. 5] C. Formal dedication of property as a road, street, alley, or cul-de-sac shall impose no responsibility on the political subdivision in which the property is located until:

(1) The dedication is formally and specifically accepted by the political subdivision through a written certification that the road, street, alley, or cul-de-sac is in compliance with all standards applicable to construction set forth in ordinances, regulations, and policies of the political subdivision, which certification may be made directly on the map which contains the dedication; or

(2) The road, street, alley, or cul-de-sac is maintained by the political subdivision.

The provisions of LSA-R.S. 33:5051 need not be complied with rigorously, and substantial compliance may effect a statutory dedication. Garrett v. Pioneer Production Corp., 390 So.2d 851 (La.1980); see also Dart v. Ehret, 466 So.2d 1336 (La.App. 5 Cir.), writ denied, 468 So.2d 575 (La.1985); L.E.C., Inc. v. Collins, 332 So.2d 565 (La.App. 1 Cir.1976). There is no set test as to what constitutes substantial compliance. The facts in each case must be considered.

Nevertheless, the intention to dedicate must be clearly established. Banta v. Federal Land Bank of New Orleans, 200 So.2d 107 (La.App. 1 Cir.1967), writ denied, 251 La. 46, 202 So.2d 657 (1967). If the fact of dedication is doubtful, the court must look to the surrounding circumstances to determine whether there was an intent to dedicate. When a rational construction of the record negates an intent of a landowner to dedicate a particular piece of land, the fact that reference to the land appears on a map does not effect a statutory dedication. Pioneer Production Corp. v. Segraves, 340 So.2d 270 (La.1976); Hailey v. Panno, 472 So.2d 97 (La.App. 5 Cir.1985).

An implied dedication results when there has been no substantial compliance with the statute but the property owner has nevertheless sold property by reference to a recorded...