Jefferson Parish School Bd. v. Jeff, Inc.

• Decision Date: 04 May 1964
• Docket Number: No. 1449,1449
• Citation: 164 So.2d 71
• Parties: JEFFERSON PARISH SCHOOL BOARD v. JEFF, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 71

164 So.2d 71

JEFFERSON PARISH SCHOOL BOARD v. JEFF, INC., et al.

No. 1449.

Court of Appeal of Louisiana, Fourth Circuit.

May 4, 1964.

Rehearing Denied June 1, 1964.

Frank Langridge, Gretna, and James O. Manning, New Orleans, for Jefferson Parish School Board, appellee.

James S. Quinlivan, Jr., Asst. Parish Atty., for Jefferson Parish Council, appellant.

D. Ross Banister, Philip K. Jones, Norman L. Sisson, William J. Doran, Jr., and Robert J. Jones, Baton Rouge, for Department of Highways, appellant.

Chafee, McCall, Phillips, Burke, Toler & Hopkins, James W. Hopkins and Peter A. Feringa, Jr., and Simon, Wicker & Wiedmann, Warren M. Simon, New Orleans, for Jeff, Inc., appellant.

Harold R. Ainsworth, New Orleans, for Morgan W. Walker, appellant.

R. Richardson King, New Orleans, for Harry P. Moran, Jr., appellant.

Alfred J. Bonomo, Jr., New Orleans, in pro. per. and for Robert R. Richmond, appellants.

J. Folse Roy, in pro. per., for West Orleans Beach Corp., appellant.

Before McBRIDE, YARRUT and CHASEZ, JJ.

McBRIDE, Judge.

By this petitory action plaintiff, Jefferson Parish School Board, created under LSA-R.S. 17:51, seeks to be declared the owner of two squares of ground located in the Parish of Jefferson, of which it alleges three of the defendants 'are in adverse ownership and/or possession'; a moneyed judgment is also sought against three defendants.

It is the contention of plaintiff that said two squares which are designated as Nos. 41 and 42, in Section 'D', of Lake Villas Subdivision, were legally dedicated to the public for park, schools or churches, and whereas no dedication for a church or churches may be inferred in view of the fact that no specific religious denominations or churches were mentioned, and, moreover, as the Jefferson Parish Council has rescinded the dedication of the property for parks or playgrounds, this leaves the two squares of ground in question dedicated solely for the purpose of public schools or public education and that it, as the parish school board in the district in which the squares are situated, would have the exclusive right under statutory law to possess and administer the property for such purposes. In addition to praying for judgment against defendants, Jeff, Inc., Morgan W. Walker, and the Department of Highways of the State of Louisiana decreeing plaintiff's ownership of the two squares and ordering them to deliver possession, it further prays for injunctive relief against the Department of Highways enjoining that defendant from using any part of Square 41 for highway purposes until the payment of just compensation to plaintiff for the land the Department purportedly purchased from Jeff, Inc., Alfred J. Bonomo, Jr., and Harry P. Moran, Jr., or, in the alternative, that plaintiff have judgment against Jeff, Inc., Bonomo, and Moran, for the sum of $6,001.00, which represents the sales price of the portion of Square 41 which it is alleged they illegally sold to the Department of Highways.

For a better understanding of the case and the issues therein involved, at this time a recitation of the facts in connection with the property would be most helpful.

The first reference to 'dedication' is found in the sale of a tract of ground (in which are embraced the two squares in question) dated March 16, 1925, by Liberty Land Company, Inc., to West Orleans Beach Corporation, Inc., by act before Louis G. Lemle, Notary Public, recorded Conveyance Book 67 folio 236, Jefferson Parish, said act containing the proviso:

'It is further agreed and understood that one of the considerations for the purchase of the above described property is that the purchaser will reserve and dedicate two (2) squares of ground, lying just between this property and the property already subdivided and known as Liberty Lots for parks, schools or church purposes.'

Thereafter West Orleans Beach Corporation subdivided the tract as evidenced by an authentic act before Severn T. Darden, Notary Public, on June 5, 1929, registered Conveyance Book 101, folio 651; said subdivision was denominated 'Lake Villas Subdivision,' all in accordance with a plan made by F. B. Grevemberg, Civil Engineer, dated March 1929 and certified as correct as of June 1, 1929, and approved by the engineer of the Parish of Jefferson. The plan is attached to the aforesaid act of Darden. Grevemberg's said plan shows the land involved in this litigation as being Squares 41 and 42, Section 'D', of Lake Villas Subdivision, a facsimile of the pertinent portion of the plan being thus:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In the Darden act in paragraphs numbered 3 and 4 and in paragraphs identified by the letters (a) through (x) West Orleans Beach Corporation specifically set out certain described and designated avenues, streets, parks, and drainage ways which it clearly and unquestionably dedicated to the public use in general and the Parish of Jefferson in particular. Following paragraph 'x', which sets forth the dedication of Utica Street, there appears the following language:

'Also a dedication of two (2) squares of ground known as Numbers 41 and 42, To be dedicated for the purposes outlined in the acquisition of property by the West Orleans Beach Corporation, Incorporated. * * *' (Then follow the dimensions of the squares.) (Italics ours.)

Worthy of particular note is the legend appearing on the Grevemberg plan reading as follows:

'NEW ORLEANS, LA.

JUNE 5TH, 1929

We, the West Orleans Beach Corporation, Inc., owners of the property shown on this map, by virtue of a resolution by our Board of Directors passed at a meeting held on June 4th, 1929, hereby approve of this plan of LAKE VILLAS, a subdivision of our LIBERTY TRACT, and do hereby formally dedicate to and for PUBLIC USE all streets, highways, drives, avenues, drainage canals and etc., as shown hereon.

This plan is shown in four sheets.

WEST ORLEANS BEACH CORP., INC.'

The chain of title of Squares 41 and 42 since the creation of the subdivision known as 'Lake Villas Subdivision' is as follows: October 23, 1956 (Conveyance Book 411 folio 469) West Orleans Beach Corporation sold both squares to Jeff, Inc., without mention of a reservation or dedication thereof; March 3, 1958 (Conveyance Book 443 folio 56) Jeff, Inc., sold certain undivided interests in the squares to Robert R. Richmond and Alfred J. Bonomo, Jr. However, this act of sale recited:

'This sale is made and accepted subject to the restrictive covenant, so far as it may be effective, set forth on the above recited survey, reading 'Whole blocks No. 41 and 42 reserved for park, schools or churches', which restriction is not created or reimposed hereby.'

On November 5, 1959, by Ordinance No. 4317 (Conveyance Book 492 folio 686), the Jefferson Parish Council (successor of Police Jury of the Parish of Jefferson; see Const. 1921, Art. 14, § 3(c)), LSA after reciting that 'Squares 41 and 42, Lake Villas Subdivision, in Section 'D' thereof, as shown on the plan of F. B. Grevemberg, C.E., dated March, 1929, have never been used by the public for the purpose for which they were restricted or dedicated,' accepted and then, 'to the manifest interest of the residents and inhabitants of the Parish of Jefferson,' rescinded and revoked the dedication; the ordinance stated that the Council acted under authority of the provisions of LSA-R.S. 33:4718; the ordinance reads in part as follows:

'WHEREAS, JEFF, INC. is the owner of the following described property and is desirous of dedicating the said property for public use and revoking said dedication in accordance with the provisions of Act 229 of 1958, and

'Section 2. That the dedication of Squares 41 and 42, Section 'D', Lake Villas Subdivision, be and the same is accepted.

'Section 3. That the dedication of Squares 41 and 42, Section 'D', Lake Villas Subdivision, be and the same is hereby rescinded, revoked and set aside and that the ownership thereto shall hereby revert to the present owner of the said property.'

On September 29, 1960 (Conveyance Book 516 folio 525), Jeff, Inc. and Robert R. Richmond sold an undivided interest in the two squares to Harry P. Moran, Jr.; August 11, 1961 (Conveyance Book 536 folio 304) Alfred J. Bonomo, Jr., sold his undivided 4/24ths interest in the squares to Harry P. Moran, Jr., and Jeff, Inc., the act containing the recitation that:

'This sale is made and accepted subject to any restrictions which may bear against the property, none of which are admitted, created or reimposed by reference herein.'

On October 5, 1961, the Jefferson Parish Council for some unexplained reason adopted Ordinance No. 5257, effective October 16, 1961, registered Conveyance Book folio by which it again purported to accept and then revoke the dedication for public purposes of Squares Nos. 41 and 42, Section 'D' of Lake Villas Subdivision. Ordinance No. 5257 is couched in language similar to that used in the previous Ordinance No. 4317. Again Jeff, Inc., is mentioned as the owner and dedicator of the property.

By act (which cannot be found in the record) dated November 8, 1961, Conveyance Book folio Jeff, Inc., Alfred J. Bonomo, Jr., and Harry P. Moran, Jr., conveyed a portion of Square 41 to the State of Louisiana, Department of Highways, for use as part of the Kenner-New Orleans Interstate Highway.

All defendants interposed the exceptions of no right and no cause of action which were overruled by the trial court and are not reurged before us. The exceptions of non-joinder of indispensable parties defendant, which defendants also filed, were maintained, and pursuant to an order of court the Jefferson Parish Council and its individual members were impleaded as parties defendant, plaintiff seeking, as against them, 'the relief originally prayed for.' All defendants then filed answers, the pith of which is that there was never a dedication of the squares for public purposes, but that if there were such a dedication, the same...