Conrad v. Reine
| Decision Date | 02 November 1970 |
| Docket Number | No. 4049,4049 |
| Parties | Clifton CONRAD v. Mackie E. REINE. |
| Court | Court of Appeal of Louisiana — District of US |
Ralph R. Miller, Norco, for plaintiff-appellant.
Remy F. Gross, II. Laplace, for defendant-appellee.
Before REGAN, CHASEZ and REDMANN, JJ.
The litigation under consideration stems from a dispute between neighboring property owners. Appellant, Clifton J. Conrad (Conrad) owns two lots in Laplace, Louisiana on which his home is located. His lots face, but do not abut, the Airline Highway which runs through Laplace. The property between Conrad's lots and the Airline Highway is allegedly owned by defendant-apppellee, Mackie E. Reine (Reine). Reine also owns the property to the rear and to one side of Conrad's lots. The property on the fourth side of Conrad's lots is owned by a third person, not a party to the suit.
The dispute arose when Reine erected a fence (consisting of iron stakes with a cable passing through the stakes) along the front of Conrad's property. Reine then placed fill on his side of the fence, or between Conrad's front property line and the Airline Highway. On the filled area Reine stationed a mobile home to be used for rental purposes. The mobile home blocked Conrad's driveway as well as his view from the front of his home.
Conrad filed an injunction suit alleging that the particular strip of ground on which the mobile home was placed was a road; this according to acts of sale in his chain of title which indicated a 'farm road' bordered Conrad's lots to the front. If the strip of land is a road, then clearly Reine would have no right to place a trailer home on it.
From a hearing which denied plaintiff's plea for injunctive relief, but which ordered defendant to improve plaintiff's driveway, plaintiff has lodged this appeal.
The main thrust of appellant's argument is that the strip of ground which parallels his front property line was dedicated to the public as a road at some point in the past and as so dedicated it cannot be used by the appellee for private purposes.
Louisiana has recognized two types of dedication, statutory and implied. Statutory dedication originates from Act 51 of 1930 (LSA-R .S. 33: 5051) which sets forth the requisites for a statutory dedication. The courts have held that the dedication becomes complete immediately upon recordation of the plan or map and that substantial compliance with the statute, rather than letter-strict adherence is all that is necessary to create a valid statutory dedication. Arkansas-Louisiana Gas Co. v. Parker Oil Co., 190 La. 957, 183 So. 229, (1938).
The statute provides that whenever the owner of real estate wishes to subdivide his property with the intention of selling any of the lots he must have the land surveyed, set permanent stakes, inscribe the legal description of the property on the map or plat, and file a correct map of the divided estate in the office of the keeper of notarial records of the parish where the property is situated Before selling any square or lot ot any portion of any square or lot in the subdivision.
Although only substantial compliance with R.S. 33:5051 is necessary, it seems paramount that in order to create statutorily dedicated streets or alleys, the plot or map be recorded prior to sale of any lot, which was not done in the instant case.
An examination of the chain of title divulges the following pertinent facts. On November 25, 1948 Guy Reine who owned the entire tract of land, later known as Reine Subdivision, sold to Mackie Reine a portion of the tract of land containing 14.61 acres of ground. In the act of sale Mackie Reine also purchased the title to certain strips of land which bordered his newly acquired property subject to the existing servitudes on them, one of which was a 20 foot right of way for a road (the 'road' now in question).
On December 11, 1948 Mackie Reine by Act of Sale conveyed two lots of his property to Peter J. Conrad (plaintiff's father) which lots were contiguous to the 'road' and fronted the 'road' for a distance of some 105 feet. The lots were designated Numbers 23 and 24 of Plot No. 2. The title to the right of way under the road, however, was not conveyed to Peter J. Conrad.
On January 6, 1949, a map of Reine Subdivision was recorded in M.O .B. 00 folio 84 #9685 in the Parish of St. John the Baptist.1
Relating back to R.S. 33:5051 to the language which says the Owner must cause to be recorded a correct map of the subdivision, it is clearly seen that the recordation of the subdivision had no effect on the property sold to Mackie Reine including the so-called 'road' because this property no longer belonged to the owner of the alleged subdivision, presumably Guy Reine. Therefore there was no statutory dedication of the 'road' in question and, unless there was an implied dedication, the property forming the right of way for the road belongs in complete ownership to Mackie Reine.
When there is an implied dedication of a road, title to the property underlying the road does not vest in the public; only a servitude is granted. Arkansas-Louisiana Gas Co. v. Parker Oil Co. supra. Non-use of the strip of land as a public road for a period of time in excess of ten years will result in termination of the servitude of public use. Parish of Jefferson v. Doody, 247 La. 839, 174 So.2d 798 (1965); Paret v. Louisiana Highway Commission, 178 La. 454, 151 So. 768 (1933); LSA-C.C. arts. 789, 3546; Yiannopolis, Civil Law of Property, § 35.
Mr. Guy Reine testified that although the road was laid out on the map the road never did physically exist.
By Act of Sale on June 27, 1961 Peter J. Conrad sold the two lots to his son Clifton Conrad who...
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...which is over one mile long. At best, these roadways created an interest in the nature of a servitude of passage. See Conrad v. Riene, 240 So.2d 915 (La.App.1970); 1 Civil Law Treatise, supra, Sec. Accordingly, the judgment in favor of the City of New Orleans is reversed, and judgment is re......
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