Schmit v. St. Bernard Parish Police Jury

• Citation: 504 So.2d 619
• Decision Date: 16 March 1987
• Docket Number: No. CA-6160,CA-6160
• Court: Court of Appeal of Louisiana (US)
• Parties: Elliot SCHMIT v. ST. BERNARD PARISH POLICE JURY St. Bernard Parish Planning Commission, Zoning Administrator for the Parish of St. Bernard and the Board of Zoning Adjustments for the Parish of St. Bernard.

Page 619

504 So.2d 619

Elliot SCHMIT v. ST. BERNARD PARISH POLICE JURY St. Bernard Parish Planning Commission, Zoning Administrator for the Parish of St. Bernard and the Board of Zoning Adjustments for the Parish of St. Bernard.

No. CA-6160.

Court of Appeal of Louisiana Fourth Circuit.

March 16, 1987.

Rehearing Denied April 15, 1987.

Writ Denied June 19, 1987.

Regel L. Bisso, Hulse, Nelson & Wanek, New Orleans, for plaintiff.

Jerald N. Andry and Gilbert V. Andry, III, New Orleans, for defendants.

Before GULOTTA, BARRY and WARD, JJ.

BARRY, Judge.

Mr. and Mrs. Gene Jackson appeal a preliminary injunction which enjoins them from obstructing a street. The judgment orders them to remove a fence encroachment and dissolves their temporary restraining order against the St. Bernard Parish Police Jury and the Department of Safety and Permits.

Elliot Schmit, a neighbor of the Jacksons, originally filed a mandamus which alleged zoning violations because of a structure being built by the Jacksons. The Jacksons intervened as owners of the property and holders of the construction permit. Mr. Schmit amended his petition to name Mr. and Mrs. Jackson as defendants, alleged they erected a fence beyond their property line which encroached on the right-of-way of D'Alembert St., and prayed for a preliminary injunction.

The trial court enjoined the Jacksons from encroaching on D'Alembert St. and ordered them to remove their fence. The court found there was substantial compliance with La.R.S. 33:5051 and concluded D'Alembert St. is an unopened, unimproved, but dedicated street owned by the Parish.

The issues in the mandamus action were partially settled. Schmit agreed to dismiss the zoning violation claim in return for the Jacksons to dismiss their claims. The other actions were dismissed with prejudice. Since the petition for injunctive relief was not filed against the Parish or its agencies, those defendants were dismissed from the suit.

The Jacksons own Lot 11, square 149 in Versailles Subdivision; Schmit owns squares 147 and 148 directly across on D'Alembert St.

Mr. Jackson testified that a fence was in place long before he purchased his lot. Jack Stephens (now Sheriff, at the time Director of the St. Bernard Planning Commission) supported that claim. He testified that he remembered checking the area and observed an old fence which was located within D'Alembert St. He did not take measurements, but decided Jackson could replace the fence with a new one in the same location. Steven Price (employed by the Planning Commission) who accompanied Stephens and corroborated his testimony.

Mr. Schmit vehemently denies a fence ever existed on the D'Alembert St. right-of-way until Jackson erected one around 1982. Eugene Estopinal, an expert in civil engineering and land survey, supported Mr Schmit's claim based on surveys he made in 1964 and 1978. His 1964 survey shows a fence on the property line of lot 11 fronting on D'Alembert St. His 1978 survey does not show a fence. He made another survey in 1982 (requested by the Policy Jury) and it shows a fence obstructing the D'Alembert St. right-of-way.

The issue is whether there was substantial compliance with La.R.S. 33:5051 (its predecessor was Act 134 of 1896), the statutory basis for dedication in Louisiana, which provides:

Whenever the owner of any real estate desires to lay off the same into squares or lots with streets or alleys between the squares or lots and with the intention of selling or offering for sale any of the squares or lots, he shall, before selling any square or lot or any portion of same, cause the real estate to be surveyed and platted or subdivided by a licensed surveyor or civil engineer into lots or blocks, or both, each designated by number, and set stakes, which shall be permanent in nature, at all of the corners of every lot and block thereof, properly marked so as to designate the correct number of each lot and block; write the legal description of the land on the plat or map, and cause to be made and filed in the office of the keeper of notarial records of the parish wherein the property is situated and copied into the conveyance record book of such parish, and a duplicate thereof filed with the assessor of the parish a correct map of the real estate so divided, which map shall contain the following:

(1) The section, township, and range in which such real estate or subdivision thereof lies 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 and 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 or any other licensed surveyor or civil engineer of this state approving said map and stating that the same is in accordance with the provisions of this Section and with the laws and ordinances of the parish in which the property is situated.

(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.

To effect a statutory dedication complete and detailed compliance is not a requisite. Substantial compliance will suffice. Garrett v. Pioneer Production Corporation, 390 So.2d 851 (La.1980); Morris v. Parish of Jefferson, 487 So.2d 647 (La.App. 5th Cir.1986). There is no set test as to what constitutes substantial compliance. The facts in each case must be considered. Formal acceptance or use by the public is not necessary. 2 Yiannopoulos, Civil Law Treatise: Property § 65 (2d Ed.1980) [Yiannopoulos ]. See also Arkansas-Louisiana Gas Company v. Parker Oil Company, 190 La. 957, 183 So. 229 (1938).

The dedication is usually complete upon the recordation of a map or plat containing a description of streets dedicated to public use. Such formal statutory dedication vests ownership in the public. Becnel v. Citrus Lands of Louisiana, Inc., 429 So.2d 459 (La.App. 4th Cir.1983), writ denied 437 So.2d 1147 (La.1983). The effect of formal dedication is to divest the original owner irrevocably of title and to remove the property from commerce. It is not susceptible of private ownership. City of Covington v. David, 486 So.2d 837 (La.App. 1st Cir.1986), writ denied 488 So.2d 693 (La.1986).

If the fact of dedication is doubtful, the conduct of the parties may be considered as corroborative evidence of such intent. Implicit in the act of filing a plan in a map book of the parish is the intent of the subdivider to dedicate the streets to public use. Garrett v. Pioneer Production Corporation, supra.

If substantial compliance is not found, there is a good argument that streets of this subdivision were dedicated to public use by a formal non-statutory dedication by filing a plat indicating the public streets and selling lots with reference to the recorded plat or map. Anderson v. Police Jury of East Feliciana Parish, 452 So.2d 730 (La.App. 1st Cir.1984), writ denied 457 So.2d 13 (La.1984), citing Banta v. Federal Land Bank of New Orleans, 200 So.2d 107 (La.App. 1st Cir.1967), writ denied 251 La. 46, 202 So.2d 657 (1967). See also Yiannopoulos at § 65.

Any formal express act by the owner which shows an intent to dedicate will suffice and ownership is conveyed. Anderson v. Police Jury of the Parish of East Feliciana, supra. See also Comment, The Third Dimension of Dedication in Louisiana, 30 LA.L.REV. 583 (1970). The intent to dedicate must be clearly established by the evidence. Ross v. City of Covington, 271 So.2d 618 (La.App. 1st Cir.), writ refused 273 So.2d 844 (La.1973).

Property owned by the state may not be acquired through prescription. La.Const. Art. XII, § 13; Todd v. State through Department of Natural Resources, 456 So.2d 1340 (La.1983), amended on rehearing 474 So.2d 430 (La.1985).

Mr. Jackson purchased lot 11 as president of Wheel & Rudder Marine, Inc. on April 21, 1975. On December 21, 1982 Wheel & Rudder transferred title to Mr. and Mrs. Jackson and the act of sale described the property as:

A CERTAIN LOT OF GROUND, together with all the buildings and improvements thereon, and all the rights, ways, privileges, servitudes, appurtenances and advantages thereunto belonging or in anywise appertaining, situated in the Parish of St. Bernard, State of Louisiana, in that part thereof known as VERSAILLES, and according to a survey made by Errol E. Kelly, Surveyor, dated ...