State v. Ward

• Decision Date: 10 April 1975
• Docket Number: No. 4502,4502
• Citation: 314 So.2d 383
• Parties: STATE of Louisiana, Plaintiff-Appellee, v. David S. WARD et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 383

314 So.2d 383

STATE of Louisiana, Plaintiff-Appellee, v. David S. WARD et al., Defendants-Appellants.

No. 4502.

Court of Appeal of Louisiana, Third Circuit.

April 10, 1975.

Rehearing Denied June 18, 1975.

Writ Refused Sept. 25, 1975.

Liskow & Lewis, by William M. Meyers, New Orleans, Broussard, Broussard & Moresi by Marcus A. Broussard, Jr., Abbeville, Jones, Walker, Waechter, Poitevent, Carrere & Denegre by J. Mort Walker, Jr., and Ernest A. Carrere, Jr., New Orleans, for defendants-appellants.

Ernest R. Eldred, Baton Rouge, and J. Nolan Sandoz, Abbeville, and William J. Guste, Jr., Atty. Gen., Robert J. A. Williams, Sp. Asst. Atty. Gen., New Orleans, for plaintiff-appellee.

Before FRUGE , HOOD, and DOMENGEAUX, JJ.

FRUGE , Judge.

This case involves a dispute over ownership of approximately 15,000 acres of land on the coast of Vermilion Bay in Vermilion Parish known as the State Wildlife Refuge. The action was instituted by the State of Louisiana in 1970 as a possessory action against the heirs of Edward Avery McIlhenny and Charles Willis Ward and certain other corporate defendants. ¹ The Ward-McIlhenny heirs converted the action into a petitory action by claiming ownership of the tract. After trial on the merits and after studying the voluminous documentary evidence introduced, as well as numerous briefs filed by each side, the district court held the State to be owner of the land and the mineral interests subject to certain reversionary rights in the heirs of Ward and McIlhenny. We amend and affirm.

The focus of dispute is a Notarial Act of Donation executed by Edward Avery McIlhenny and Charles Willis Ward on November 4, 1911. The State claims ownership through this Act of Donation.

The Ward-McIlhenny Group claims that the Act of Donation did not effect a transfer of ownership or, in the alternative, that they are entitled to a rescission of the donation due to the State's failure to fulfill certain specified conditions of the donation.

The issues which must be decided by this court are as follows:

(1) Whether the State is immune from suit by virtue of the doctrine of sovereign immunity;

(2) Whether the Louisiana Wildlife and Fisheries Commission is an indispensable party;

(3) Whether the State is bound by its allegations that it (the State of Louisiana) was donee (4) If the State is not so bound, whether the State or the Board of Commissioners for the Protection of Birds, Game and Fish was the actual donee;

(5) If the State was the donee, whether it was capable of receiving the donation without legislative acceptance;

(6) Whether the 1911 Act of Donation was a preliminary writing or a final agreement actually transferring ownership;

(7) Whether the donation was subject to a suspensive condition that there be a legislative dedication of the property;

(8) Whether the donation was subject to certain resolutory conditions and whether the State has fulfilled such conditions;

(9) If the State has not fulfilled certain resolutory conditions, whether liberative prescription of 5 years has run which would prevent suit for rescission of the donation;

(10) Whether the owners of the mineral lease are bound by the Act of Donation even though the act was not recorded in the Donation Records of Vermilion Parish;

(11) Whether the State acquired title through 10 and 30-year acquisitive and liberative prescription.

The court notes that this suit is the culmination of many years of dispute between the parties involving several legislative acts and a prior lawsuit, none of which has determined this matter. ²

Furthermore, the Ward-McIlhenny heirs have agreed that in the event they should be successful in this suit they would be willing to give the State a year to accept the donation, reserving unto themselves the minerals.

The trial court noted that here is oil and gas production surrounding the tract though the tract itself has never been developed for minerals. All of the parties believe that these minerals are worth millions of dollars.

THE ACT OF DONATION

The 1911 Act of Donation around which this case centers is made in proper form for a donation; it was made before a notary and two witnesses. Civil Code art. 1536. The donors are Ward (3/4 interest) and McIlhenny (1/4 interest). The recited donee is the Board of Commissioners for the Protection of Birds, Game and Fish which was an incorporated agency of the State of Louisiana. Acceptance was made on behalf of the Board by Frank M. Miller, its president. In the Act the donors stated that they 'give, grant, donate, transfer, set over, assign, abandon and deliver' the land to the Board of Commissioners. The Act then goes on to describe the land being donated.

Following this description the Act of Donation contains a section concerning a portion of the tract about which there was some question as to the donors' title. The question arose because of a discrepancy between the official survey made by the United States Land Office and a later private one made by the Orange Land Company. Because of the discrepancy there was some question as to whether certain lands bordering the donated tract were dry lands or were under the waters of Vermilion Bay. The donors gave the State whatever interest they might have in these 'doubtful lands,' but specifically refused to warrant title to those sections. In the next sentence they further provided:

'It is, however, to be a consitution of the said donation that the donee shall secure from the State of Louisiana an act of the Legislature dedicating the said lands hereinabove described as a Game Refuge or Reserve, and to form part of the Refuge or Reserve herein to be donated, there being no legal obstacle to the legislative dedication and creation of said Refuge or Reserve.'

After taking care of the doubtful lands, the Act has a set of conditions. These conditions are primarily designed to specify the manner in which the reserve or refuge is to be maintained by the donee. We will discuss them in greater detail later in this opinion .

SOVEREIGN IMMUNITY

The trial court overruled the exception filed by the State based on sovereign immunity. The basis of the holding was that the State Legislature waived this immunity by adopting Resolution 455 of 1971.

The resolution was passed after an aborted attempt to compromise, by legislative act, the differences in this suit. Rejecting the proposed compromise, the Legislature passed the following resolution:

'Therefore, Be It Resolved by the House of Representatives of the Legislature of Louisiana, the Senate thereof concurring herein, that the Legislature hereby expresses its intent that the entire controversy over the Louisiana State Wild Life and Game Refuge in Vermilion Parish, commonly known as the Ward-McIlhenny Refuge, be carried to a conclusion by the final decision of court and that there be no compromise of any issue involved in the controversy.'

This resolution satisfies the requirements of Article 3, Section 35, of the 1921 Constitution and, in our opinion, waived any right of sovereign immunity which the State may have had.

PARTIES

The State contends that the trial court erred in overruling its exception of nonjoinder of an indispensable party. The State contends that the Wildlife and Fisheries Commission is an indispensable party since it is the successor to the Board of Commissioners for the Protection of Birds, Fish and Game which the State contends was donee of the disputed tract. Whether the Board of Commissioners or the State was the donee, we find no merit in the State's exception. Act 127, of 1912 established the Conservation Commission of Louisiana. The Conservation Commission replaced the Board of Commissioners for the protection of Birds, Fish and Game which was, in effect, abolished. Section 6 of that Act provided that all property owned by the Board of Commissioners for the Protection of Birds, Fish and Game 'is hereby declared to be property of the State of Louisiana, and is hereby transferred to the Control of the Conservation Commission of Louisiana . . .' (Emphasis added.) Thus, whether the State or the Board of Commissioners was donee in the 1911 Act of Donation, the State was owner of the property at the time of trial.

Although the tract was at the time of trial managed by the Louisiana Wildlife and Fisheries Commission, that Commission has no claim of ownership to the disputed tract. Indispensable parties are defined in Article 641 of the Code of Civil Procedure as parties

'whose interests in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.'

Since the Louisiana Wildlife and Fisheries Commission has no claim of ownership to the tract, we are of the opinion that a complete and equitable adjudication of ownership can be made without making the Commission a party. We have held that an owner of a servitude is not an indispensable party to an expropriation proceeding, Michigan Wisconsin Pipe Line Company v. Fruge , 210 So.2d 375 (La.App.3d Cir. 1968), and the Supreme Court has held that a servitude owner and a mortgage holder are not even Necessary parties to a petitory action. Jackson v. Gulf Refining Co ., 201 La. 721, 10 So.2d 593 (1943); Fontenot v. Sun Oil Company, 257 La. 642, 243 So.2d 783 (1971). We do not think the interest of the Wildlife and Fisheries Commission, which manages the Refuge, will be affected any more than that of a servitude or mortgage holder. We conclude that the trial court properly overruled the exception.

THE STATE'S JUDICIAL CONFESSION

The trial court held that the State was not bound by its judicial allegations that it was the donee since the allegations are a conclusion of law. The Ward-McIlhenny Group contends that the allegations are conclusions of fact by which the State is bound under Civil Code article 2291. That article provides as follows:

'The...