Banta v. Federal Land Bank of New Orleans, 7059

• Citation: 200 So.2d 107
• Decision Date: 29 May 1967
• Docket Number: No. 7059,7059
• Parties: Lucia B. BANTA et al., v. The FEDERAL LAND BANK OF NEW ORLEANS et al.
• Court: Court of Appeal of Louisiana — District of US

Page 107

200 So.2d 107

Lucia B. BANTA et al., v. The FEDERAL LAND BANK OF NEW ORLEANS et al.

No. 7059.

Court of Appeal of Louisiana, First Circuit.

May 29, 1967.

Rehearing Denied June 30, 1967.

Alex P. Allain, Jeanerette, Ronald Labbe, St. Martinville, for appellants.

Robert M. Fleming, of Bauer, Darnall, Fleming & McNulty, Franklin, for appellees.

Before LANDRY, ELLIS and BAILES, JJ.

ELLIS, Judge.

In 1911, The Adeline Sugar Factory Co., Ltd. caused to be surveyed and platted into tracts, varying from about 40 acres to over 100 acres in size, a large tract of land situated in St. Mary Parish. The plat of survey, which was made by V. E. Smith, and dated February, 1911, was shortly thereafter filed for record. On the face thereof, appears the following inscription:

'This map represents a survey and subdivision of that portion of the property of The Adeline Sugar Factory Co., Ltd., situated in the Parish of St. Mary, Louisiana, indicated on said map and according to which the property is to be sold. The public roads laid out and reserved upon said property as indicated and shown on said map, while reserved for the benefit of the purchasers, ourselves, and the public, shall at all times be subject to the right in The Adeline Sugar Factory Co., Ltd. or its successors and assigns, to use same for building and operating standard or narrow gauge railroads along any or all of said roads, the said dedication being with reservation of the right in The Adeline Sugar Factory Co., Ltd., to build railroads along same as herein provided for, or operate those now constructed.

'The Adeline Sugar Factory Co., Ltd.

'per B. A. Oxnard, President'

Lots 46 and 47 of the said subdivision, which contain 73.55 and 86 .60 acres, respectively, were sold by Adeline, and the ownership descended by various conveyances to The Federal Land Bank of New Orleans, which acquired same in 1929. On October 30, 1935, the Bank sold the said lots, reserving in the deed an undivided one half of the mineral rights to the said property. Subject to that reservation, the property descended by a regular chain of title to plaintiffs herein.

The instant suit, a possessory action, was brought by plaintiffs against the Bank and Kerr-McGee Oil Industries, Inc., assignee of a lease covering the said mineral rights, asking to be quieted in the possession of all of the mineral rights lying South of a certain strip of land which traverses lots 46 and 47. The defendants reconvened, asking to be quieted in the possession of an undivided one half of the minerals lying South of the said strip.

In their petition, plaintiffs contend that the strip is a dedicated public road by virtue of the recordation of the plat hereinabove referred to, and that ownership thereof is vested in the Parish of St. Mary. They further contend that because of this fact, the South portion of the lots is non-contiguous to the North portion thereof; and that there having been no use, development or exploitation of the minerals South of the strip, the reservation of the mineral servitude in 1935 expired by reason of non-use in 1945.

On the trial of the case, virtually all of the facts were stipulated by the parties, and the only dispute is as to whether or not the ownership of the strip of ground traversing lots 46 and 47 is vested in the public or in the plaintiffs. The trial court found that there was no intention on the part of Adeline to dedicate that strip to the public, that ownershp therein was vested in plaintiffs, and that the South portion of the two lots was, therefore, contiguous to the North portion, on which there had been sufficient mineral development to maintain the servitude in existence. From a judgment quieting defendants in their possession of an undivided one half of the minerals in the Southerly portions of the lots, plaintiffs have prosecuted this devolutive appeal.

Both parties concede that, if the strip of land should be found to be a dedicated public road, with title vested in the public, defendants would have no interest in the minerals south of the strip . Goree v. Mid-States Oil Corporation, 205 La. 988, 18 So.2d 591 (1944).

Our courts have held, when dealing with subdivisions created prior to the enactment of Act 134 of 1896, that the sale of lots in accordance with a plat of subdivision constituted an irrevocable dedication to the public of the streets shown thereon. Flournoy v. Breard, 116 La. 224, 40 So. 684 (1906); Town of Vinton v. Lyons, 131 La. 673, 60 So. 54 (1912); Jaenke v. Taylor, 160 La. 109, 106 So. 711 (1926); Faunce v. City of New Orleans, 148 So. 57 (La.App.1933); Kemp v. Town of Independence, 156 So. 56 (La.App. 1 Cir. 1934); Richard et al v. City of New Orleans, 195 La. 898, 197 So. 594 (1940).

The rule has also been applied to subdivisions created after 1896, when the provisions of Act 134 of 1896 were either not complied with or not mentioned. Isering-hausen v. Larcade, 147 La. 515, 85 So. 224 (1920); Esposito v. Gaudet et al, 8 So.2d 783 (La.App.1942).

The case of Arkansas-Louisiana Gas Co. v. Parker Oil Co., Inc., 190 La. 957, 183 So. 229 (1938), for the first time declared the doctrine that in Louisiana, 'A dedication may be either statutory or according to the common law', citing 18 C.J., Sec. 1, p. 38. That case is also authority for the proposition that a common law dedication confers only a servitude of use on the public; that such a dedication must be accepted in order to be effective; and that a statutory dedication is complete without the necessity of acceptance or use by the public. It further held that substantial compliance with the provisions of the statute was sufficient to complete a statutory dedication.

The implication in that case, if not the direct holding, is that any dedication not made substantially in compliance with the terms of the statutory provisions is a common law or implied dedication, creating only a servitude in favor of the public over the streets, but conferring no ownership therein. The case of Jaenke v. Taylor, supra, which is authority for the proposition for which it is cited above, is found inapplicable because the dedication involved was a 'common law dedication made long prior to the adoption of Act 134 of 1896.'

The holding in the Arkansas-Louisiana Gas Co. case, supra, was followed to the letter in the case of Parish of Jefferson v. Doody, 167 So.2d 489 (La.App. 4 Cir. 1964) in which the court found no substantial compliance with Act 134 of 1896, and held the dedication to be common law, creating a servitude only. Writs were granted, and in Parish of Jefferson v. Doody, 247 La. 839, 174 So.2d 798 (1965) the Supreme Court reversed the decision. After recognizing the doctrine of the Arkansas-Louisiana case, the Court further found that Act 134 of 1896 carries with it no penalty for failure to comply with its provisions other than the criminal penalties prescribed in the Act, and said the following:

'And this is the realistic and common sense view of the statute. For we can think of no plausible reason for deducing that an owner, who seeks to subdivide and sell his land as a commercial enterprise and has filed a plan in the recorder's office (showing the squares, lots and abutting streets, alleys or walks) under which he proposes to develop the subdivision, has not validly dedicated the streets, alleys and walkways to the public use merely because he has failed to observe detailed requirements which were inserted in the statute solely for the benefit and protection of the land purchasers.'

The Court also said:

'It is true that there is no express statement in the dedication of the streets and alleys contained on the plan. But, aside from the fact that a similar omission was found to be insubstantial in Metairie Park v. Currie, it appears to us that implicit in the act of filing of a plan of subdivision in the map book of the parish, showing squares, lots, streets, alleys and walkways, is the intent on the part of the subdivider of dedicating the streets, walks and alleys to the public use. See Richard v. City of New Orleans, 195 La. 898, 197 So. 594.'

From all of the above, we gather that the Supreme Court, in effect, has returned to the doctrine of the Flournoy case, supra, and the other cases cited therewith. This is in line with what was done in the Isering-hausen and Esposito cases and in the case of Metairie Park Inc. v. Currie, 168 La. 588, 122 So. 859 (1929).

Turning now to the instant case, we find that the statute in question here is Act 134 of 1896, which provides as follows:

'AN ACT

'To require all persons owning real estate in this State who desire to plat the same into squares or town lots to file in the office of the keeper of notarial records of the parish where the property is situated maps of such proposed towns or tracts of land before selling any part of same, and declaring any violation of this act to be a misdemeanor and providing a penalty for the violations hereof.

'SECTION 1. Be it enacted by the general assembly of the State of Louisiana; That whenever the owner or owners of any real estate situated in this State shall desire to lay off the same into squares or lots with streets or alleys between such squares or lots and with the intention of selling or offering for sale any of said squares or lots it shall be the duty of such owner or owners of such real estate, before selling any square or lot or any portion of the same, to cause to be made and filed in the office of the Keeper of Notarial Records of the parish wherein such property is situated and copied into the Conveyance Record Book of such parish, a correct map of the real estate so divided, which said map shall contain the following:

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

'2. The number of squares by numerals from 1 up, and the dimensions of each square in feet and inches.

Manner of making plats of town lots by...