State, Dept. of Transp. & Development v. Scramuzza

• Citation: 692 So.2d 1024
• Parties: 96-1796 La
• Decision Date: 08 April 1997
• Court: Supreme Court of Louisiana

Page 1024

692 So.2d 1024

96-1796 La. 4/8/97

STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT v. Alfred SCRAMUZZA, et al.

Nos. 96-C-1796, 96-C-1820.

Supreme Court of Louisiana.

April 8, 1997.

Rehearing Denied May 30, 1997.

Thomas Lee, Harahan, Mack E. Barham, Robert Elton Arceneaux, Travis Louis Bourgeois, Jerry B. Jordan, Barham & Arceneaux, New Orleans, for Alfred Scramuzza, et al.

Ronald Joseph Bertrand, Bertrand & Soileau, Rayne, for State of Louisiana, DOTD.

[96-1796 La. 1] VICTORY, Justice. ^*

We granted writs of certiorari in this case to determine whether La.R.S. 48:701 requires a formal revocation of statutorily dedicated streets or whether the streets revert to the adjoining landowners upon mere abandonment by the parish. After review, we find that formal revocation is necessary before the streets revert to the adjoining landowners.

FACTS AND PROCEDURAL HISTORY

In 1988, the State of Louisiana, through the Department of Transportation and Development (the "DOTD"), expropriated eleven parcels of land in St. Charles Parish for construction of a highway interchange at Airline Highway and Interstate 310. The expropriated property consisted of "paper" subdivisions in two platted and recorded business park subdivisions north of Airline Highway which were approved by St. Charles Parish but never developed. The subdivisions contained a network of streets statutorily dedicated to St. Charles Parish. Neither the streets nor the subdivisions were ever constructed. The defendants in these expropriation suits are the property owners of the expropriated land. ¹

[96-1796 La. 2] A jury trial was held to establish values for the land taken and damages and the jury returned a verdict awarding certain severance damages to the landowners, plus $0.38 per square foot to each landowner, except Larsen Motor Lines, Inc., who was awarded $0.86 per square foot. The land values were consistent with the testimony of the DOTD's expert appraiser, Jack Evans.

After the landowners filed Motions for Judgment Notwithstanding the Verdict (JNOV), Alternative New Trial, or Alternative Additur regarding the land values, severance damages and attorney fees, the trial judge increased the compensation for the land taken to $1.75 per square foot for all landowners except Larsen, whose compensation was increased to $2.23 per square feet, and increased the attorney fees to $125,000.00. The trial judge found that the DOTD's expert testimony was legally insufficient to support the jury verdict. Because the trial judge had not ruled on the Alternative New Trial when it granted the JNOV, the court of appeal remanded the DOTD's appeal. State through DOTD v. Scramuzza, 594 So.2d 521 (La.App. 5th Cir.1992). The trial judge then conditionally granted the Motion for New Trial in the event the JNOV was reversed by the court of appeal.

The court of appeal reversed the trial judge's grant of the JNOV and new trial, finding that the evidence at trial was legally sufficient to constitute a preponderance of the evidence and that the trial court erred in passing on the credibility of the witnesses and weighing the evidence in granting the JNOV. State through DOTD v. Scramuzza, 608 So.2d 1069 (La.App. 5th Cir.1992). This Court granted the landowner's writ of certiorari and issued the following order:

The judgment of the court of appeal is reversed insofar as it reverses the district court's judgment granting defendants a conditional new trial. The judgment of the district court granting a new trial is reinstated.

[96-1796 La. 3] Otherwise, the application is denied. Case remanded to the district court for further proceedings.

State through DOTD v. Scramuzza, 610 So.2d 809 (La.1993).

In the second jury trial, the jury again awarded compensation for the land taken in accordance with the testimony of the DOTD's expert appraiser, Jack Evans, including in the compensation the value of the streets taken within each parcel. The jury did not award delay damages or severance damages. Again the trial judge granted the landowners' Motions for New Trial and JNOV, again finding that the DOTD's expert appraiser's testimony was legally insufficient and entitled to no weight. The trial judge increased the compensation awarded to the landowners, and awarded delay damages and attorney fees.

The court of appeal again reversed the JNOV and New Trial Motions for the same reasons it did in the first appeal and reinstated the jury verdict. State through DOTD v. Scramuzza, 95-CA-786-796 (La. 5th Cir. 4/30/96), 673 So.2d 1249. The court of appeal affirmed the jury verdict, including the award to the landowners of compensation for the land represented by the streets. Because the streets were never built, the court of appeal found that the streets never served a public purpose and that under La.R.S. 48:701, even in the absence of a formal revocation, the dedication of the streets was "revoked" and the streets reverted to the contiguous landowners. Id. at 1259. Accordingly, the state owed reimbursement to the contiguous landowners at the same rate as the surrounding land. Id. We granted the DOTD's writ to consider the correctness of this ruling. ² State through DOTD v. Scramuzza, 96-1796, 96-1820 (La.11/1/96), 681 So.2d 1255.

[96-1796 La. 4] DISCUSSION

The streets in this subdivision were statutorily dedicated to St. Charles Parish in the 1960s. ³ The lower courts found that the streets reverted to the landowners' ownership under La.R.S. 48:701 which provides as follows:

The parish governing authorities and municipal corporations of the state, except the parish of Orleans, may revoke and set aside the dedication of all roads, streets, and alleyways laid out and dedicated to public use within the respective limits, when the roads, streets, and alleyways have been abandoned or are no longer needed for public purposes.

[96-1796 La. 5] Upon such revocation, all of the soil covered by and embraced in the roads, streets, or alleyways up to the center line thereof, shall revert to the then present owner or owners of the land contiguous thereto.

Nothing in this Section shall be construed as repealing any of the provisions of special statutes or charters of incorporated municipalities granting the right to close or alter roads or streets.

The court of appeal found that a formal act of revocation is unnecessary under La.R.S. 48:701 and that the dedication of streets in this case was revoked by abandonment because the streets were never needed for public purposes. 673 So.2d at 1259.

We disagree. When this Court first examined this issue, we found that when the Legislature delegated to police juries the power over the revocation of dedicated streets that had been abandoned or no longer needed for public purposes, "it [was] necessarily within the scope of the police power thus delegated to these political bodies by the Legislature to look into and determine whether the street is an abandoned street or is no longer needed for public purposes." Caz-Perk Realty, Inc. v. Police Jury of Parish of East Baton Rouge, 207 La. 796, 22 So.2d 121, 124 (1945). Accordingly, we found, a police jury's determination that a street is abandoned or no longer needed for public purposes would not be disturbed unless such finding was arbitrary or capricious. Id.

Soon thereafter, we held that revocation of a statutorily dedicated street had to be duly recorded to affect third parties. Martin v. Fuller, on rehearing, 214 La. 404, 37 So.2d 851 (1948). We recognized that while neither the recordation of a plat with dedicated streets nor the revocation of the dedication is a sale or contract, "both of these transactions just as effectively transfer title to the property as if the same had been conveyed by a contract of sale, whether executed by a notarial act or an act under private signature." 214 La. at 423, 37 So.2d 851. Accordingly, when the buyer bought the property and the public records showed the property was traversed by a dedicated alleyway, the [96-1796 La. 6] buyer "had the right to assume that until the contrary appeared on the public records, this alleyway was still dedicated to public use." Id.

Thus Caz-Perk and Martin clearly hold that a police jury must look into the issue of whether a street has been abandoned or no longer needed for public purposes before it can revoke a dedication and that any revocation must be recorded to affect third parties. That a revocation must be recorded necessarily implies that the evidence of the revocation is contained in a written document.

However, confusion over whether a formal act of revocation is necessary under La.R.S. 48:701 has arisen in the courts of appeal from our decision in Robinson v. Beauregard Parish Police Jury, 351 So.2d 113 (La.1977). ⁴ In Robinson, the plaintiff was killed on a bridge built by the State and the Beauregard Parish Police Jury. The bridge was found to be public property under La.R.S. 48:491 which provides that "[a]ll roads or streets in this state that are opened, laid, or appointed by virtue of any act of the legislature or by virtue of an order of any parish governing [96-1796 La. 7] authority in any parish ... shall be public roads or streets, as the case may be." La.R.S. 48:491(A). After stating that "[o]nly upon abandonment by the public body could the bridge have lost its character as a public structure," we held:

Abandonment of a public road must be evidenced by (1) a formal act of revocation in accordance with R.S. 48:701, (2) relocation of the public road by the governing body, or (3) clear and well-established proof of intent by the governing body to abandon. Starnes v. Police Jury of Rapides Parish, 27 So.2d 134 (La.App. 2d Cir.1946). Nonuse of a strip of land as a public road or street for a period in excess of ten years may also result in termination of the public use. C.C. 789; Yiannopolis, "Common, Public, and Private Things in Louisiana: Civilian Tradition and Modern Practice," 21 La.L.Rev....