L. E. C., Inc. v. Collins

• Decision Date: 01 March 1976
• Docket Number: No. 10601,10601
• Citation: 332 So.2d 565
• Parties: L.E.C., INC. v. J. Charles COLLINS, Jr., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 565

332 So.2d 565

L.E.C., INC. v. J. Charles COLLINS, Jr., et al.

No. 10601.

Court of Appeal of Louisiana, First Circuit.

March 1, 1976.

On Denial of Rehearing April 12, 1976.

J. Charles Collins, in pro per.

William Mysing, Covington, for appellees.

Before LANDRY, COVINGTON and PONDER, JJ.

LANDRY, Judge.

Defendant, J. Charles Collins, Jr. (Appellant) appeals a judgment ordering amendment and modification of a notice of lis pendens filed by Appellant against plaintiff herein, L.E.C., Inc., and other parties (Appellee), in a related action by Appellant contesting title to streets in, and the relocation of the entrance to, a residential subdivision in which Appellant purchased a building site from Appellee's predecessor in title. We amend the judgment to revise the modification ordered by the trial court.

The fundamental issue presented herein is whether Appellant's notice of lis pendens applies to property which is not in dispute in Appellant's related action. Resolution of this sole issue must be made in the light of two legal questions, neither of which can be decided herein. The first is whether the developer of a subdivision may change the location of a subdivision entrance after having sold lots therein based on a plan showing a different entrance. Second, whether certain legends on recorded subdivision maps have the effect of dedicating the roads and streets thereon to the public in fee or merely convey a public servitude of right of way.

On June 23, 1966, Appellant purchased from Louis C. Chenel Lot 7, Block 4, Addition 1, Merrywood Estates Subdivision, and Additions 1, 2 and 3, St. Tammany Parish, as shown on a then unrecorded map of said subdivision by Robert A. Berlin, Surveyor, dated January 17, 1966. Said map was recorded November 8, 1966, in the records of the Clerk and Recorder, St. Tammany Parish, and bears the following unsigned legend:

'Approval is hereby granted for this subdivision with the understanding that the streets shown hereon are to be private ways and shall not be accepted into the St. Tammany Parish Road System until they are formally dedicated to the police jury of said parish and at such time shall meet the minimum parish specifications then in effect. The streets shown hereon are private ways to be maintained without public assistance.'

The Berlin plat shows Merrywood Estates to be situated on the south side of La. Highway 40, which runs in a northwesterly-southeasterly direction. Lot 1, as shown thereon, measures 220 feet front along the south side of the highway and is situated at the extreme northwest corner of the subdivision. Lots 2, 3, 4, 5 and 6, successively proceed in a southeasterly direction. Lot 6, measuring 288 feet front, is bounded on its eastern extremity by an unnamed 60 foot entrance street which in turn is bounded on its eastern extremity by Lot 13 which fronts 347 feet along the highway. At the south ends of Lots 6 and 13, the entrance street is shown branching into a 'Y'. As one enters the subdivision from the highway, the unnamed right branch of the 'Y' runs in a southwesterly direction, south of Lots 6, 5, and 4, a distance of approximately 800 feet to about the center of the South line of Lot 4, approximately 500 feet south of the highway, at which point it dead ends at Orleans Street which runs perpendicular to the highway. The left branch of the 'Y' goes in a southeasterly direction behind Lots 13, 14, 15 and 16, which face the highway, and at a point approximately 1,000 feet south of the highway connects directly with Normandy Street which runs perpendicular to the highway. Appellant's property is situated on the west side of Orleans Street approximately 700 feet south of the point where the right 'Y' branch ends. As shown on this map, Orleans Street does not have direct access to the highway.

On December 23, 1971, Appellees recorded in St. Tammany Parish, a map entitled 'Merrywood Estates Subdivisions and Additions 1, 2, 3 and 4 by Jeron R. Fitzmorris, Surveyor, dated April 1, 1969.' This map shows addition 4 to consist of a strip of land lying immediately to the west of Lot 1 shown on the Berlin map. The Fitzmorris map bears the approval of the President of the St. Tammany Parish Police Jury, the Parish Engineer, Secretary of the St. Tammany Parish Planning Commission and Chairman of the Subdivision Regulatory Commission, under date of November 18, 1971, which approval reads as follows:

'Approval is hereby granted for this subdivision with the understanding that streets shown hereon are to be private ways and shall not be accepted into the parish road system until they are formally dedicated to the parish and at such time shall meet the parish minimum requirements then in effect. Until such time that they are so accepted these streets will be maintained without public assistance.'

The Fitzmorris map changes the subdivision entrance, from its former location between Lots 6 and 13, to a point 600 to 700 feet westerly. It shows the new entrance to consist of a 100 foot wide boulevard type entrance situated between Lots 3 and 4, and leading from the highway directly south to Orleans Street, thus connecting Orleans Street with the highway on a straight line.

Although Appellant purchased his lot from Louis E. Chenel, in November, 1972, Appellant received a notice from Appellee requesting payment for certain street improvement work allegedly performed by Appellee corporation in the subdivision. A second notice was received by Appellant in June, 1973.

On June 12, 1974, Appellant instituted action against Chenel, L.E.C., Inc., and others, for injunctive relief to secure Appellant's possession of, and access to, all entrances, roads and streets in the subdivision. Appellant averred his physical possession of Lot 7 since its acquisition and claimed disturbance thereof by defendants in that defendants have moved the subdivision entrance, are claiming title to the streets and roadways in the subdivision and have refused to make formal dedication of the roads and streets as required by La-R.S. 33:5051. Appellant prayed for injunctive relief prohibiting defendants from claiming ownership of the streets, mandating defendants to restore the original entrance and also mandating defendants to formally dedicate the streets as shown on the Berlin map of January 17, 1966, in default of which the court declare the dedication.

Coupled with his action for injunctive relief, Appellant filed a notice of lis pendens giving notice as follows:

'The object of this suit is to obtain judicial confirmation of the ownership of the roads, servitudes and rights of access and ingress to all properties in Merrywood Estates Subdivision which is described generally as follows:

A part of Section 7, 18 and 19, Township 5, South, Range 11 East, St. Tammany Parish, Louisiana.

Particular relief is sought for the reclamation of the closed entranceway to Merrywood Subdivision being a part of Lot 6 and/or 13 of the subdivision facing Louisiana Highway 40.'

In this action, Appellee contends the change in entrance location, both of which sites are owned by Appellee, was made in compliance with the mandate of the Parish Governing Authority based upon recommendation of the Parish Engineer and Parish Subdivision Regulatory Commission, pursuant to regulations of the Parish Governing Authority, all of which authorities have approved the Fitzmorris map. Appellee suggests that Appellant has no privity of contract with Appellee for the...