Mecobon, Inc. v. Police Jury of Jefferson Parish, 41468
| Decision Date | 11 January 1954 |
| Docket Number | No. 41468,41468 |
| Citation | 224 La. 793,70 So.2d 687 |
| Parties | MECOBON, Inc. v. POLICE JURY OF JEFFERSON PARISH. |
| Court | Louisiana Supreme Court |
Frank H. Langridge, Gretna, Willis C. McDonald, Metairie, for defendant-appellant.
Dreyfous & Kalinski, Rosen, Kammer, Hopkins, Burke & Lapeyre, New Orleans, for plaintiff-appellee.
In this suit is involved the title to a certain triangular portion of ground located at the entrance to Bonnabel Place, a subdivision, in Metairie, Jefferson Parish, Louisiana.
On December 16, 1952, plaintiff filed this proceeding alleging that it is the owner and in possession of the property in contest; that it acquired said property by act of sale dated September 22, 1952 from one Carlo J. Zummo; that the defendant, the Police Jury of Jefferson Parish, had claimed and was continuing to claim that the above property was dedicated as a public park in 1916 by one Alfred Bonnabel, one of plaintiff's ancestors in title; that no part of the property has ever been used as a public park; that the Sheriff of Jefferson Parish, acting under authority of defendant, on September 17, 1952, stopped said Carlo J. Zummo from doing construction work on said property, and that an actual controversy exists between plaintiff and defendant concerning the ownership of the property.
Plaintiff also alleges that on September 10, 1952, the defendant Police Jury adopted an ordinance claiming that the said property was dedicated as a public park and in the said ordinance instructed the District Attorney of Jefferson Parish to take action to protect its interest and prevent plaintiff from using it or otherwise exercising rights of ownership, and that so far no suit has been filed under said ordinance.
Plaintiff prayed for judgment declaring defendant's claim to the property to be invalid; that plaintiff be decreed to be the owner thereof; and further declaring that neither the above property nor any part of it has ever been dedicated as a public park. In the alternative plaintiff alleged that should the Court hold that there was a dedication of the property as a public park, it then be declared that such dedication was only of a servitude for park purposes and that such servitude is now terminated by abandonment and by non-use through the liberative prescription of more than ten years. It prayed, in the alternative, accordingly.
Defendant in its answer averred that the property has become public property by reason of its dedication on maps or plans filed by Alfred E. Bonnabel, record owner at the time, setting out the subdivision of Bonnabel Place, on the basis of which maps all of the property in Bonnabel Place was sold to various owners. In answering further, defendant averred that sidewalks, sewerage disposal mains, drainage lines, gas mains, electric lines, and water mains have been constructed along and across said property, without protest on the part of the alleged owners, and that if said property is not public property, then it is subject to the numberous servitudes erected thereon, by the prescription of ten years.
Defendant prayed for the dismissal of plaintiff's suit and for all general and equitable relief.
There was trial on the merits after which judgment was rendered in favor of plaintiff declaring it to be the owner of the property in controversy and, as such, entitled to the peaceful possession thereof, and denying defendant's claim thereto. The lower court pointed out in its judgment that the servitudes of the various public utilities referred to in defendant's answer were not at issue in the case and that the same were not being passed upon in the jugment rendered.
Defendant was granted a suspensive and devolutive appeal to this Court and the case is now before us for decision.
We find it necessary to go into the history of the small tract of land that is involved in the suit.
In 1915, Alfred Bonnabel was the owner of a large tract of land, situated in Metarie Ridge, Jefferson Parish, about one mile above the parish line separating the parishes of Orleans and Jefferson. Part of the property was in what was at one time designated as the town of Bath No. 1 and part also in Bath No. 2. The owner, Alfred Bonnabel, then conceived the idea of subdividing a part of the tract of land which he owned. In May, 1915, Alfred E. Bonnabel, the owner's son, who was Parish Surveyor, made a survey and plat of that part of the tract which was then known as Bath No. 1 and labelled it 'Bonnabel Place'. On the plat he laid out Boulevards and Streets, giving these their respective names, and also alleys and a school site. He also designated a portion by signs and symbols and this is what is now contended by defendant represented a public park.
On February 2, 1916, the Police Jury of Jefferson Parish met in special session for the purpose of considering the adoption of an ordinance revoking and setting aside the dedication of certain streets laid out within the limits of Bath No. 1, as shown on a map of Louis Bringier dated December 13, 1838. The revocation was petitioned for by Alfred Bonnabel, owner of the land. In lieu of the streets that had been dedicated by the prior owner in 1838, which streets had never been used, or if used, had been abandoned, Alfred Bonnabel offered to dedicate certain streets in the same tract of land, laid out on a map made by Henry L. Zander, Parish Engineer, which he presented with his petition. The plan by Zander was made on June 17, 1915. It referred to an original subdivision of Bath No. 1 () and showed that it represented a 're-subdivision' of the Bonnabel Place. It was, for the most part, the same as the Bonnabel plan of May 1915, although it did not show the alleys, which appeared on that plan nor did it show the triangular portion of ground in controversy. The triangular portion was not shown, evidently for the reason that it formed no part of Bath No. 1, but was part of adjacent Bath No. 2 also owned by Alfred Bonnabel. It is on the symbols appearing on the Bonnabel map with respect to the triangular tract of land that the defendant's claim of dedication as a park is primarily based.
The Police Jury having given favorable consideration to the proposal of Alfred Bonnabel adopted an ordinance declaring that the proposed streets designated on the map by Louis Bringier in 1838 be closed, abandoned and no longer needed for public use, and in the same ordinance, approved the map of Henry L. Zander which accompanied Bonnabel's petition, and accepted the streets therein designated and set aside for public use in lieu of the old streets which were closed under the same ordinance.
On June 9, 1916, Alfred Bonnabel, appeared before a Notary Public and, by authentic act, stated that as owner of Bonnabel Place, and acting with the concurrence of the Police Jury under the ordinance of February 2, 1916, he had made a subdivision of said property and caused a map thereof, duly approved by Alfred E. Bonnabel, Parish Surveyor, to be filed in the office of the Clerk of Court of said Parish, which map defines, names and delineates the boulevards and streets which he has dedicated to public use, and that in order to confirm this dedication by public authentic act, he does dedicate the boulevards and streets delineated on said map by Alfred E. Bonnabel, Parish Surveyor. This confirmation differed somewhat from the dedication accepted in the ordinance in that it made no reference to the Zander plan, but rather referred to the Bonnabel plan of May, 1915, an original of which was attached to the petition; also it provided for an extention of Codifer Boulevard into Metarie Road as per sketch of Alfred E. Bonnabel, of date June 7, 1916, also attached to the act. Codifer is a large boulevard immediately south of Bonnabel Place. This extension differed somewhat from that shown on the Bonnabel plan of May, 1915. The sketch showed the triangular portion of ground in controversy, as it would be after Codifer Boulevard was extended, but did not show any sign or symbols thereon that would indicate in any way that it was to be public property. On June 15, 1917, Alfred Bonnabel sold to Alfred E. Bonnabel, his son, a portion of ground in Bath No. 2 designated as Plot No. 1 on an annexed plan by A. C. Duval, civil engineer and surveyor, dated June 5, 1917. Although it was not included in the title, the Duval survey includes the triangular portion of land and it appears on his plan but it bears no marks or symbols of any kind.
On April 30, 1921, Alfred Bonnabel died. His Succession was duly opened and there was judgment recognizing his heirs and decreeing them as such, to be the owners of certain described property left by the decedent including the triangular property in controversy.
On May 18, 1922, Alfred E. Bonnabel surveyed and plotted the land he acquired from his father and although it was not included in his title, again on this map he showed the triangular portion of land marking it with symbols similar to those appearing on the former map he had made.
At this point we break from the chronological order of events in order to refer to a matter which is of considerable importance. It is in connection with a statement that is found in the opinion in the case of Bonnabel v. Police Jury of Jefferson Parish, 216 La. 798, 44 So.2d 872, to the effect that in January 1915, Alfred Bonnabel conveyed to Johnson & Company, Inc., a right of way thirty feet in width, parallel and adjacent to Metarie Road, over and across the triangular tract of land in controversy in this suit. The right of way was later used by New Orleans Public Service, Inc. to lay its tracks and operate its railway over them. The railway service was discontinued in November 1939 and the New Orleans Public Service, Inc. transferred its rights in the property to the Police Jury. The object of the suit was to have the Succession of Bonnabel declared...
To continue reading
Request your trial