Garrett v. Pioneer Production Corp.
| Decision Date | 23 May 1979 |
| Docket Number | No. 6996,6996 |
| Citation | 378 So.2d 945 |
| Parties | DeEtte Barber GARRETT et al., Plaintiffs-Appellants, v. PIONEER PRODUCTION CORPORATION et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Seidel & Bailey, Fred K. Bailey, Lafayette, for plaintiffs-appellants.
Liskow & Lewis, Lawrence P. Simon, Jr., Lafayette, Cassidy & Millican by F. Jefferson Millican, Jennings, for defendants-appellees.
Before WATSON, STOKER and DOUCET, JJ.
Plaintiffs, the heirs of Austin M. and Amanda E. Barber, to-wit, DeEtte Barber Garrett, Maggie Johnson, Alma King, Marjorie Deloras Bivens Peterson, Robert James Bivens and Gloria Jean Bivens Landry, and the heirs' lessees-assignees, Jory Lynn Bernard and Irwin Hebert, brought this petitory action to claim the ownership of certain streets. Plaintiffs admit that the streets, primarily located in Barber's Subdivision and Barber's Addition, City of Jennings, are subject to a servitude of public use but claim the ownership. Named as defendants are the City of Jennings and its lessees and assignees, Pioneer Production Corporation, C. F. Braun & Company, Petro-Lewis Corporation and Terra Resources, Inc. The root of the controversy is the mineral rights to the property in dispute, which is delineated in yellow on the "Litigation Map". (TR. 189). Plaintiffs seek recognition of their ownership, an accounting of the proceeds from mineral production, and restitution, as well as damages and attorney's fees.
The trial court dismissed plaintiffs' suit with prejudice, concluding that the streets in Barber's Subdivision and Addition had been dedicated to the City both by substantial compliance with the requirements of Act 134 of 1896 and by formal, non-statutory dedication and that the other streets involved in the litigation had been dedicated by formal, non-statutory dedication. Plaintiffs have appealed, contending that their ancestors in title did not dedicate the streets to the public and, in the alternative, if they were dedicated, it was by informal non-statutory dedication which did not convey ownership. The defendant lessees have answered the appeal asking: that the judgment be affirmed; in the alternative, that the judgment be modified to hold that ownership of the portion of South Main Street fronting the William Booth Tract lies with the successors in interest of William Booth rather than plaintiffs; and that appellants pay all costs of trial and appeal.
I. The primary issue on appeal is whether there was a formal dedication of the streets in question, statutory, non-statutory, or both, which vested ownership in the public. If the dedication was informal, either implied or tacit, there is merely a servitude in favor of the public, and plaintiffs remain the owners and entitled, as such, to royalties from oil production. LSA-C.C. art. 658. 1
Act 134 of 1896 reads in pertinent part as follows:
"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 notorial (sic) 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 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."
The above act is virtually identical with the present statute, LSA-R.S. 33:5051. Statutory dedication does not require proof of intention to dedicate which is inferred from the filing of a plat or map by the owner in the public records. Only substantial compliance with the statute is required. Parish of Jefferson v. Doody, 247 La. 839, 174 So.2d 798 (1965). Acceptance by the public is not necessary. Arkansas-Louisiana Gas Co. v. Parker Oil Co., 190 La. 957, 183 So. 229 (1938).
Plats were filed by unknown parties on April 8, 1905, for both Barber's Subdivision and Barber's Addition. Sixteen lots had been sold in each subdivision prior to the filing of the two plats. At least two corrective deeds were filed after the plats were recorded. Some lots were later sold by the Barbers with reference to the recorded plats. Other lots were sold after 1905 without reference to the plats being recorded. The trial court concluded that the two plats substantially complied with the requirements of the statute, even though filed by an unknown person after lots were sold. The plats identify the section, township and range of the real estate. The lots are numbered and their dimensions given, although the numbering system used for Barber's Subdivision is not completely clear. However, the plats do not name all the areas which appear to be streets or even denominate them as streets. Only two interior passages are named and identified as streets on the two plats: West Street, Barber's Addition; and Levi Street, Barber's Subdivision. There are also two exterior or bordering streets shown on the plats: South Main Street, Barber's Addition; and Cedar Street, Barber's Subdivision. 2 These four named streets alone can be regarded as meeting the test of compliance with subsection 4 of Act 134 of 1896, quoted above, which requires street names. There is also no compliance with subsections 5, 6 and 7, although subsection 5 relates to those lots dedicated to public use and may be inapplicable.
Conrad v. Reine, 240 So.2d 915 (La.App. 4 Cir. 1970) holds that a plat or map must be filed before lots are sold in order to have a valid statutory dedication. That case is persuasive here where there is also minimal compliance with the other requirements of the statute. It is difficult to infer an intent to dedicate by the Barbers when it is not known that they filed the plats. Examination of the various deeds indicates that the plats might well have been filed by lot owners who wished to clarify their titles.
The most recent expression of the Louisiana Supreme Court on this subject is contained in Pioneer Production Corp. v. Segraves, 340 So.2d 270 (La. 1976). Pioneer dealt with highway 90, which had been dedicated prior to the Segraves subdivision of Jennings and was an exterior or bordering street. Pioneer points out that the public policy in favor of an orderly and systematic flow of traffic over properly planned streets is implemented by a servitude of use and does not require naked ownership of the underlying ground. Implicit in the Pioneer decision is the necessity of finding an intent to dedicate from the instrument filed by the subdivider. Pioneer concluded that the Segraves plat did not suffice to dedicate the naked ownership of the preexisting highway to the public. Here, South Main Street, shown as an exterior or bordering street of Barber's Addition, existed as a street long before the plats were filed. A sale to Octavia Barkus in 1899 describes the property sold as fronting on South Main Street and bounded by other owners. Another sale, to Daniel Bobino in 1910, also describes the property as fronting on South Main Street. The same is true of a 1902 sale to Charles Madon, a 1903 sale to George Christian and a 1904 sale to Joseph H. Moultrie. Since South Main Street, an exterior street, was a preexisting street, no intention to dedicate its naked ownership to the public can be inferred from its appearance on the plat of Barber's Addition in 1905.
Cited with approval in Pioneer, supra, was Winningham v. Hill, 164 So.2d 384 (La.App. 2 Cir. 1964). Winningham decided that a 20' by 378' unidentified area on a plat was not statutorily dedicated to the public, when nothing on the space showed an intention to dedicate the property. In the instant situation, the only streets which could have been statutorily dedicated were West and Levi Streets. They are the only interior streets of the two subdivisions which are named or identified as streets. Both Levi and West were in existence before the plats were filed. A sale to Robinson Coleman in 1904 describes the property sold in terms of Main and West Streets, and a sale to John Folse in 1903 describes his lot as Lot Three (3) in Block Two (2) of Barber's Subdivision to Jennings, being South of Levi Street facing Cutting Avenue on the East. 3 A servitude for street purposes existed prior to the plats being filed.
The fact that lots were sold as early as 1899 and the plats were not recorded until 1905 prevents the recordation from manifesting an intent to dedicate by the Barbers. Conrad v. Reine, supra....
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