City of Covington v. Glockner, s. 85

• Court: Court of Appeal of Louisiana (US)
• Writing for the Court: CARTER
• Citation: 486 So.2d 837
• Parties: CITY OF COVINGTON v. Wilfred J. GLOCKNER. CITY OF COVINGTON v. Weldon POOLE. CITY OF COVINGTON v. Elsie GALATAS. CITY OF COVINGTON v. John BRADLEY. CITY OF COVINGTON v. Harry MACKIE, Jr. CITY OF COVINGTON v. ESTATE OF Clara CARROL. CITY OF COVINGTON v. L.W. PIERCE. CITY OF COVINGTON v. ST. TAMMANY HOMESTEAD. CITY OF COVINGTON v. Mrs. Charlie JENKINS. CITY OF COVINGTON v. ESTATE OF Robert BADON, Viola Badon, Amelia Bascle, and Henrietta Schexnayder. CITY OF COVINGTON v. Doris MONTGOMERY. CITY OF COVINGTON v. Jeron FITZMORRIS. CITY OF COVINGTON v. Philip BURNS. CITY OF COVINGTON v. Gloria DAVID. CITY OF COVINGTON v. Barton HEBERT. CITY OF COVINGTON v. Philip PFEFFER. CITY OF COVINGTON v. Michelle HAIK. CITY OF COVINGTON v. Charles LeBLANC. CITY OF COVINGTON v. H.J. SMITH AND SONS, a Louisiana Corporation and/or Partnership, and J. Louis Smith, Individually. CITY OF COVINGTON v. MARSOLAN FEED & SEED STORE, INC. CITY OF COVINGTON v. Julian CARRUTH. CITY OF COVINGTON v. Archie R. SMITH, Jr. CITY OF COVINGTON v. R.S. BLOSSMAN, Jr. CITY OF COVINGTON v. Philip M. BURNS, Sr., Succession of R.F. Burns through its co-provisional administrator, P.F. Burns, Sr. R.K. Burns, Sr., and F.M. Burns, Sr. CA 0070 through 85 CA 0093.
• Docket Number: Nos. 85,s. 85
• Decision Date: 25 March 1986

Page 837

486 So.2d 837 CITY OF COVINGTON
v.
Wilfred J. GLOCKNER.
CITY OF COVINGTON
v.
Weldon POOLE.
CITY OF COVINGTON
v.
Elsie GALATAS.
CITY OF COVINGTON
v.
John BRADLEY.
CITY OF COVINGTON
v.
Harry MACKIE, Jr.
CITY OF COVINGTON
v.
ESTATE OF Clara CARROL.
CITY OF COVINGTON
v.
L.W. PIERCE.
CITY OF COVINGTON
v.
ST. TAMMANY HOMESTEAD.
CITY OF COVINGTON
v.
Mrs. Charlie JENKINS.
CITY OF COVINGTON
v.
ESTATE OF Robert BADON, Viola Badon, Amelia Bascle, and
Henrietta Schexnayder.
CITY OF COVINGTON
v.
Doris MONTGOMERY.
CITY OF COVINGTON
v.
Jeron FITZMORRIS.
CITY OF COVINGTON
v.
Philip BURNS.
CITY OF COVINGTON
v.
Gloria DAVID.
CITY OF COVINGTON
v.
Barton HEBERT.
CITY OF COVINGTON
v.
Philip PFEFFER.
CITY OF COVINGTON
v.
Michelle HAIK.
CITY OF COVINGTON
v.
Charles LeBLANC.
CITY OF COVINGTON
v.
H.J. SMITH AND SONS, a Louisiana Corporation and/or
Partnership, and J. Louis Smith, Individually.
CITY OF COVINGTON
v.
MARSOLAN FEED & SEED STORE, INC.
CITY OF COVINGTON
v.
Julian CARRUTH.
CITY OF COVINGTON
v.
Archie R. SMITH, Jr.
CITY OF COVINGTON
v.
R.S. BLOSSMAN, Jr.
CITY OF COVINGTON
v.
Philip M. BURNS, Sr., Succession of R.F. Burns through its
co-provisional administrator, P.F. Burns, Sr. R.K.
Burns, Sr., and F.M. Burns, Sr. Nos. 85 CA 0070 through 85 CA 0093. Court of Appeal of Louisiana,
First Circuit. March 25, 1986.

Page 839

F. Pierre Livaudais, Phillip E. Pfeffer, Edward J. Deano, Jr., Covington, for defendants-appellants.

J. Louis Smith, Jr. President, in Pro. Per.

Rykert O. Toledano, Jr., Covington, for plaintiff-appellee.

Before CARTER, SAVOIE and ALFORD, JJ.

CARTER, Judge.

This is an appeal by defendants from a partial summary judgment in favor of the City of Covington.

On March 19, 1814, John Wharton Collins recorded in the conveyance records of St. Tammany Parish the following document:

STATE OF LOUISIANA

PARISH OF ST. TAMMANY

Be it remembered, that on this nineteenth day of March in the year of Our Lord, one Thousand eight Hundred and fourteen John W. Collins deposited in this office, the plan of a portion of Land, laid out under the title, of the division of St. John of Wharton, founded the fourth of July 1813, and Humbly dedicated, to the late President of the United States Thomas Jefferson, and thereby reserving to the purchasers of Lotts, the right in common, of all Streets, Alleys, Water Courses and Timber Trees, that are within the Plan and extent of said portion of Land, and reserving to himself the privilege of extending any Square, and forming new ones according to the said Plan. In Testimony whereof I have hereunto set my hand and Seal the day and date above written

/s/ John W. Collins

Sign'd, Seal'd and acknowledged before me, the date above written.

/s/ James Tate

for St. Tammany

(Recorded 19th March 1814)

The division of St. John forms an extremely old part of the City of Covington. There is an unique aspect to the division of St. John in that each square contains 16 lots, all with footage on the four surrounding streets, but each square is traversed by an alley 20 feet in width. In the center of the square, the alley broadens out and forms a small square, the dimensions of which are 120' X 120', the result being a square within a square. These small squares inside the larger squares have historically been called "ox lots," although

Page 840

they actually are a part of the alley. Defendants are the owners and are in possession of land and improvements in the City of Covington, division of St. John, squares 2, 4, 6, 7, 8, 11, 12, 13, 14, 15, 16, 19, 20, and 23, ¹ all of which contain such configurations.

The City of Covington filed suit against defendants alleging that the defendants owned or constructed buildings, fences, etc. which encroached on property dedicated to the public and requested the immediate removal of works placed and/or located upon public places. Defendants answered plaintiff's petition, denying that the subject properties had been dedicated to the public. Defendants also filed reconventional demands, claiming title by acquisitive prescription of ten and thirty years and, in the alternative, that plaintiff has abandoned the subject property by non-use as a public thing for more than ten years.

Thereafter, the City of Covington moved for partial summary judgment alleging that there is no genuine issue as to material fact and that the city is entitled to a judgment as a matter of law.

The trial judge granted plaintiff's motion for summary judgment, finding that:

(1) The "ox-lots" located within the division of St. John, City of Covington, have been irrevocably dedicated to the public;

(2) The "ox-lots" cannot be acquired by individuals by acquisitive prescription; and

(3) The public's right to the use and enjoyment of the "ox-lots" cannot be lost through liberative prescription.

From this adverse judgment, defendants appeal, contending that the trial judge erred in granting plaintiff's motion for partial summary judgment.

MOTION FOR SUMMARY JUDGMENT

LSA-C.C.P. art. 966 provides that a mover is entitled to summary judgment if the pleadings, depositions, admissions on file, affidavits, and answers to interrogatories show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977); Lytell v. Goodyear Tire & Rubber Co., 439 So.2d 542 (La.App. 1st Cir.1983); and Manzella v. Terrebonne Parish Police Jury, 432 So.2d 414 (La.App. 1st Cir.1983). Summary judgment is not a substitute for a trial on the merits and may not be granted if there exists any real doubt as to the existence of a genuine issue of material fact. American Bk. & Trust v. Sunbelt Environmental, 451 So.2d 1111 (La.App. 1st Cir.1984); and Lytell v. Goodyear Tire & Rubber Co., supra.

The burden of showing that there is no genuine issue of material fact in dispute is upon the mover for summary judgment. Chaisson v. Domingue, 372 So.2d 1225 (La.1979). Further, all doubt concerning a dispute as to a material fact must be resolved against granting a motion for summary

Page 841

judgment. Odom v. Hooper, 273 So.2d 510 (La.1973).

In the case sub judice, defendants contend that the partial summary judgment was improperly granted because the question of whether the "ox-lots" were dedicated to the public can only be answered by interpreting the document executed by John Wharton Collins on March 19, 1814. Defendants reason that the resolution of the issue of dedication requires evidence which should be introduced at trial on the merits.

In support of its motion for partial summary judgment, the City of Covington introduced the record in Ross v. City of Covington, ...