Garrett v. Pioneer Production Corp., s. 66968

• Decision Date: 10 November 1980
• Docket Number: 66970,Nos. 66968,s. 66968
• Parties: DeEtte Barber GARRETT et al. v. PIONEER PRODUCTION CORPORATION et al.
• Court: Louisiana Supreme Court

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390 So.2d 851 DeEtte Barber GARRETT et al.
v.
PIONEER PRODUCTION CORPORATION et al. Nos. 66968, 66970. Supreme Court of Louisiana. Nov. 10, 1980.

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Cassidy & Millican, F. Jefferson Millican, Jennings, Liskow & Lewis, Robert T. Jorden, Lawrence P. Simon, Jr., and Kerry M. Massari, Lafayette, for defendants-applicants in 66968; for defendants-respondents in 66970.

A. N. Yiannopoulos, Baton Rouge, Seidel & Bailey, George W. Hardy, Fred K. Bailey, Lafayette, for plaintiffs-respondents in 66968 and for plaintiffs-applicants in 66970.

DIXON, Chief Justice ^*

This petitory action was brought to determine the various parties' ownership and mineral rights in property underlying certain streets in the City of Jennings, Louisiana. The plaintiffs include claimants to title and their lessees; the defendants are the City of Jennings and its lessees. Both

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groups claim to hold a valid interest in the mineral rights. Essentially, the controversy involves two disputes: whether the streets were dedicated to public use by the plaintiffs' ancestors in title so that full ownership is in the city and, if not, whether the leases held by the defendants-lessees should be dissolved. All parties applied for review of the decision of the Court of Appeal. Garrett v. Pioneer Production Corp., 378 So.2d 945 (La.App.3d Cir. 1979).

The plaintiffs' ancestors in title, Amanda and Austin Barber, acquired title to two tracts of land known as Barber's Addition and Barber's Subdivision in 1891 and 1901. Their titles can be traced to the sovereign. Beginning in 1901, the Barbers sold parcels of land in the addition and subdivision, regularly designating the lot and block number in the act of sale. In 1905, plats were recorded for both Barber's Addition and Barber's Subdivision. No signatures appear on these plats, and it is not known who filed them. Subsequent to the recordation, some lots were sold by the Barbers with reference to the plats, while other lots were sold without any such reference. In 1910, the Calcasieu Parish Courthouse was destroyed by fire; ¹ many of the records relevant to this case are taken from the files of a Lake Charles abstractor.

It is the defendants' contention that the filing of the plats, pursuant to Act 134 of 1896, ² effected a statutory dedication of the streets to public use, vesting full ownership in the city of all streets appearing on the plats. Alternatively, the defendants argue that a formal, nonstatutory dedication occurred, again vesting full ownership in the city. The plaintiffs' position is that the filing of the plats was not proved to have been performed by the owners of the land, and that the plats themselves are not in substantial compliance with the statute. While plaintiffs concede that some form of dedication occurred, they argue that a nonstatutory, implied dedication merely gives the public a servitude on the property, not ownership.

Act 134 of 1896 (basically the same as R.S. 33:5051) stated:

"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 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.

3. The number of each lot or subdivision of a square and its dimensions in feet and inches.

4. The name of each street and alley its length and width in feet and inches.

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

6. A certificate of the Parish Surveyor of the parish wherein the property is situated in the correctness of the map.

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.

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Sec. 2. Be it further enacted, etc., That any person or persons, agent or attorney in fact who shall violate any of the provisions of this act shall be deemed guilty of a misdemeanor and upon conviction before the District Court shall be fined not less than ten dollars nor more than five hundred for each offense.

Sec. 3. Be it further enacted, etc., That it shall be the duty of all clerks and exofficio recorders and notaries public in all the parishes of this State, the parish of Orleans excepted, to refuse to place on record any deeds of sale of property coming under the provisions of this act, until the provisions of this act shall have been complied with; and to report to the District Attorney all violations of this act."

The statute only speaks of dedication "to public use." It does not explain or define the nature of the right acquired by the public through dedication. In fact, the legislature of this state has never enacted a comprehensive scheme of dedication to public use. For this reason, the subject of dedication has been a controversial one, and the task has fallen to the courts to decide the nature and effect of dedication.

Before Act 134 was enacted, the issues of dedication to public use and the nature of the public's interest in public property were frequently litigated. Consistent with provisions of the Civil Code, and relying upon Roman, French and Spanish law, the earliest reported decisions squarely held that the soil underlying public roads was owned by the public. Morgan v. Livingston, 6 Mart. (O.S.) 19 (1819); Renthorp v. Bourg, 4 Mart. (O.S.) 97 (1816); Mayor, Etc., of New Orleans v. Metzinger, 3 Mart. (O.S.) 296 (1814). However, confusion arose as to what constituted a "public road." Hatch v. Arnault, 3 La.Ann. 482 (1848), discounted the applicability of ancient Roman law on the subject, observing that the roads in the "infant colony" of Louisiana were simply not comparable to Roman highways, "as permanent as the labor of man could make them." 3 La.Ann. at 485. This reasoning took into account the fact that roads in Louisiana were often washed away by inundation and the changing of river courses, and were sometimes abandoned along with the settlements they served. The court believed that the majority of roads in Louisiana could be classified according to the French system as "chemins publics," constructed on land subject to private ownership. The court conceded that a few "grands chemins," or highways, existed in Louisiana, and recognized that these roads were subject to public ownership. This decision obviously limited the principle set forth in earlier cases establishing public ownership of public roads. Note, "The Effect of Dedication to Public Use in Louisiana," 13 Tul.L.Rev. 606 (1939). By its own terms, however, the reasoning employed in the decision is now archaic. Were we to classify the ownership of roads in terms of their relative permanence, the large majority of roads in Louisiana, privately owned or otherwise, could be classified as "grands chemins." We do not believe that the matter of ownership can be determined by the relative stability of road beds; nor do we believe that the obscure distinction between "chemins publics" and "grands chemins" is of continuing vitality.

However, the Civil Code does appear to make some distinction between different types of roads. C.C. 454 and 458 (1870) classify city streets as public property. C.C. 453 and 482 (1870) refer to "roadsteads," "highways," and "high roads," apparently classifying them as public property as well. To the contrary, C.C. 658 (1870) deals with "public roads" that are built on the soil of privately owned estates, declaring that the public is limited to a servitude of use over such property. The indication given in this article that such "public roads" are largely rural is borne out by early jurisprudence. Landry v. Gulf States Utilities Co., 166 La. 1069, 118 So. 142 (1928); Hatch v. Arnault, supra. Different results were obtained in the case of urban areas such as city streets, public squares and quays. City of Shreveport v. Walpole, 22 La.Ann. 526 (1870); City of Baton Rouge v. Bird, 21 La.Ann. 244 (1869); Pickett v. Brown, 18 La.Ann. 560 (1866). In these cases the courts clearly found that the ownership of public places was in the public; the public interest was

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not limited to a servitude. Whatever ambiguities may exist in decisions prior to the passage of Act 134, there can be no doubt that the prevailing view was that ownership of municipal streets would ordinarily vest in the public body. These early decisions are also informative as to the nature of the interest acquired by the public when property was dedicated to public use. In Pickett v. Brown, supra, and City of Shreveport v. Walpole, supra, the area disputed by the parties was a tract of land between Commerce Street and the Red River, in the City of Shreveport. The original incorporators of the city had designated this particular property as "open space" on a map which was filed along with an act of partition. No use was ever made of this property except by the city. Both courts, considering all the circumstances, concluded that the original owners of the tract intended to dedicate the property to public use, and affirmed the city's title to the property. The same result was reached in City of Baton Rouge v. Bird, supra, where the ownership of public squares was in question. Once the intent to dedicate was...