City of New Orleans v. Carrollton Land Co., Limited

• Decision Date: 20 January 1913
• Docket Number: 19,242
• Citation: 60 So. 695,131 La. 1092
• Court: Louisiana Supreme Court
• Parties: CITY OF NEW ORLEANS v. CARROLLTON LAND CO., Limited

60 So. 695

131 La. 1092

CITY OF NEW ORLEANS v. CARROLLTON LAND CO., Limited

No. 19,242

Supreme Court of Louisiana

January 20, 1913

SYLLABUS

(Syllabus by the Court.)

'Things which are for the common use of a city or other place, as streets and public squares, are public things.' ev. Civ Code, art. 454.

Such property is out of commerce; and it is dedicated to public use, and held as a public trust, for public uses. It is inalienable by corporations. City of Shreveport v. Walpole, 22 La.Ann. 526.

'The word 'park,' written on a block at the instance of the owner in a plat subdividing a tract of land into lots and blocks for the purpose of founding a town, is as significant of the dedication of such tract to the public for a park, as the word 'street' on such plat is for the dedication of a public street. There can be no doubt that under our jurisprudence the word 'street' written by the owner on a strip of ground running through such plat, where sales are made from it, effectively dedicates said strip to the public as a street. Flournoy v. Breard, 116 La. 224 . This same doctrine relative to the dedication of streets is similar to, and is applicable to, the dedication of public parks. 9 Am. & Eng. Enc. of Law (2d Ed.) p. 25.' Town of Vinton v. Raymond C. Lyons, 131 La. 673, 60 So. 54; Archer v. Salinas City, 93 Cal. 43, 28 P. 839, 16 L. . A. 145.

No deed or act of conveyance is necessary to dedicate land or rights in immovable property to the public. ev. Civ. Code, art. 767; City of Shreveport v. Walpole, 22 La.Ann. 526; Pickett v. Brown, 18 La.Ann. 560; Baton Rouge v. Bird, 21 La.Ann. 244; Sheen v. Stothart, 29 La.Ann. 630; Burthe v. Fortier, 15 La.Ann. 9; Burthe v. Blake and Town of Carrollton, 9 La.Ann. 244; Lafitte v. City of New Orleans, 52 La.Ann. 2099, 28 So. 327; Land v. Smith, 44 La.Ann. 931, 11 So. 577; Calhoun v. Town of Colfax, 105 La. 146, 29 So. 887; Conrad v. Land Co., 126 N.C. 776, 36 S.E. 282; San Leandro v. Le Breton, 72 Cal. 170, 13 P. 405; Dillon on Municipal Corporation, ss 1083, 1089, 1095, 1096; 13 Cyc. p. 455.

A formal acceptance on the part of the public of property dedicated to the public use is not necessary, or even practicable. Dillon, ss 1083, 1089; 13 Cyc. p. 455; and the Louisiana authorities above cited.

The city and town authorities having carried 'Frederick Square' on their official maps, and also carried it on their assessment rolls as the property of the 'city of New Orleans' and free from taxation, and the refusal of the authorities, state and city, to assess said square, although requested so to do by defendant, are sufficient evidences of an acceptance of said 'Frederick Square,' if any formal acceptance were necessary.

I. D. Moore, City Atty., and Andrew M. Buchmann, Asst. City Atty., both of New Orleans, for appellee.

James J. McLoughlin, of New Orleans, for appellant.

OPINION

SOMMERVILLE, J.

The city of New Orleans alleges itself to be the owner, for the use of the public, of Frederick Square, bounded by Laurel Grove, Hamilton, Olive, or Fifteenth, and Edinburg streets, in the seventh district of that city; that defendant company has illegally taken possession thereof; and it asks that the defendant be condemned to deliver said property to it; and for all costs, and for general relief.

The defendant filed an exception of no cause of action, which was properly overruled. It answers making general denial of all the allegations in plaintiff's petition contained, specially denying any dedication of the property therein described for public use; and further specially denies that any one had accepted the property for the use of the public. It then sets up title in itself.

There was judgment in favor of plaintiff, and defendant has appealed.

Defendant has filed in this court a plea of prescription of one, three, five, ten, and thirty years.

'Things which are for the common use of a city or other place, as streets and public squares, are likewise public things.' Civil Code, art. 454.

Such property is out of commerce. It is dedicated to public use, and held as a public trust, for public uses. It is inalienable by corporations. City of Shreveport v. Walpole, 22 La.Ann. 526. If the position of the city in this suit be sustained, to the effect that the property in question is a public square, defendant cannot have acquired title thereto by prescription or otherwise. Municipality No. 2 v. Orleans Cotton Press, 18 La. 272, 36 Am. Dec. 624; Mayor, etc., of Thibodeaux v. Maggioli, 4 La.Ann. 73; City of Shreveport v. Frank C. Walpole, 22 La.Ann. 526; Town of Vinton v. Lyons, 131 La. 673, 60 So. 54; 3 McQuillin, Municipal Corporations, § 1158.

The city of New Orleans traces its chain of title to Act No. 71 of 1874, p. 119, which act annexes the city of Carrollton to the city of New Orleans, and transfers all the property of the former to the latter. The city of Carrollton was incorporated by Act No. 277 of 1859, p. 219; and it was the successor of the town of Carrollton which was incorporated by Act No. 91 of 1845, p. 47, as amended by Act No. 247 of 1854, p. 182.

The evidence in the record shows that Carrollton was originally the McCarthy plantation, owned by the New Orleans Canal & Banking Company, Samuel Cohn, Laurent Millaudon, and John Slidell; that Charles F. Zimpel, surveyor, made a plan of the McCarthy plantation, and laid it out for the owners as the town of Carrollton, subdividing it into lots, 'squares,' etc., bounded by designated streets; that on the Zimpel plan the 'square' in question bears no number, and is designated simply as 'Frederick Square,' and that Hamilton (now Palmer) and Green squares were similarly designated and without lot numbers; that the subdivisions were 316 in number, most of which measured about 600 feet square, with two numbers to each subdivision; that these 316 subdivisions excluded the 'squares'; that many lots and parts of lots were sold by the above-named owners and their vendees by reference to the Zimpel plan or map; that Frederick Square was not assessed for taxation; that the tax research certificates show it to have been marked as the property of the city of New Orleans, and free from taxation; that defendant bought said Frederick Square, together with other property, in 1909, and that its vendors had acquired same from the heirs of John Slidell on December 7, 1894; and that the heirs of John Slidell had no ownership in Frederick Square when they sold it 'as square No. 255 A, bounded by Fifteenth, Edinburg, Hamilton, and Laurel Grove streets.'

The statement of the evidence disposes of the case on the merits.

In the case of City of Shreveport v. Frank C. Walpole, 22 La.Ann. 526, where the defendant was in possession of an 'open space' belonging to the corporation of Shreveport for public uses, and wherein the defendant urged the same defenses as are now presented in this case, we discuss and apply the law with great care; and we refer to our decision in that case as our reasons for judgment in this one.

The syllabus to that case reads:

'No deed or act of conveyance is necessary to dedicate land or rights in immovable property to the public. Nor is any particular form necessary to the dedication of land to the public use. All that is required is the assent of the owner of the land, and the fact that it is being used for the purposes intended. 18 La.Ann. 560; 21 La.Ann. 244. A third party occupying lands that have been dedicated to the public use is without the capacity to acquire title thereto, because such lands are from the moment of the dedication out of commerce, and are not subject to individual or private ownership. 21 La.Ann. 244.'

Defendant objected to the offer in evidence of tracings from the plan or sketch of a --

'topographic map of New Orleans and its vicinity, embracing a distance of 12 miles up and 8 3/4 miles down the Mississippi river, and part of Lake Pontchartrain, representing all public improvements existing, etc., * * * compiled from actual survey and the best authority by Charles F. Zimpel, deputy city surveyor of New Orleans, chief engineer of the New Orleans and Carrollton Railroad Company, * * * New Orleans, March, 1834. Copyright entered in the clerk's office of the District Court of the United States for the Eastern District of Louisiana under date 4th September, 1833.'

This map embraces a map of Carrollton, or a copy of that map, by the same surveyor, Charles F. Zimpel, made in 1832. This map of New Orleans and its vicinity was not offered in evidence; but it has been brought into court by consent of all parties, and it is now before us. The objection to the map and the tracings made therefrom were on the ground that there is no evidence going to show that the Zimpel map of 1832 was the official map of the town of Carrollton, and that the present Zimpel map is only a copy. That there was a map of the town of Carrollton by Charles F. Zimpel in 1832 is made clear by the recognition of that map by the Legislature in the act incorporating the town of Carrollton, No. 91 of 1845, and again in the charter of the New Orleans & Carrollton Railroad Company, Acts of 1833, p. 8. We had that map before us in April, 1854, in the case of Burthe v. Blake and Town of Carrollton, 9 La.Ann. 244, where we refer to --

'the original plan of Carrollton, drawn by Charles F. Zimpel, engineer and surveyor, dated the 16th day of March, 1832, deposited for reference in the office of E. R. Stringer, notary, in this city, and of whom Theodore Guyol is the successor in office.'

And:

'It is admitted [in this record] that all the records of E. R Stringer, notary public, together with the original Zimpel plan of Carrollton referred to in his acts as being annexed to his acts of 1833, are not extant; the...