4 La. App. 232 | La. Ct. App. | 1926
Lead Opinion
Plaintiff alleges that he acquired Lots 15 and 16, in Square No. 18, situated in the city of Baton Rouge; Lot 16 from the Zadock Realty Company on March (25, 1919; and Lot 15 from George R. Carruth on the 5th day of March, 1919. The defendant city admits plaintiff is the owner of Lot 15, but denies that he is the owner of all of Lot 16. These lots were located in the parish of East Baton Rouge up to the year 1898. The city limits of the City of Baton Rouge were, under the Act of the Legislature of that year, extended so as to include these lots within its corporate limits. Plaintiff alleges that the city has dug up a portion of Lot 16, with the view of maintaining it as one of its permanent improved streets, that it has no title thereto, and is a mere trespasser. Plaintiff prays for the ownership and possession of the lot in its entirety, for damages in the sum of $250.00, and for rentals per month from March 25, 1919.
The record shows that prior to the extension of the limits of the city there was a road known as the Perkins Road, a public road of the parish of East Baton Rouge, which ran through this lot, No. 16, prior to the time it was taken within the
Though no particular form is necessary for the dedication of land to public use, the positive assent of the owner must appear, and the fact of its. being used for the public purposes intended by the appropriation. City Council of Lafayette vs. Holland, 18 La. 286; Linton vs. Guillotte, 10 Rob. 360; Leland University vs. City of New Orleans, 47 La. Ann. 104, 16 South. 653; New Orleans & C. R. Co. vs. Town of Carrollton, 3 La. Ann. 282. No one is presumed to give, and proof of dedication is essential. McCearley vs. Lemennier, 40 La. Ann. 253, 3 South. 649. Dedication cannot be inferred from user alone. Beck vs. Fleitas, 37 La. Ann. 497. We say by user alone, as there is no proof whatsoever that this Perkins Road was ever declared ■ a public highway by the police jury of the parish of E'ast Baton Rouge. Act 25 of 1904. The fact that the Perkins Road ran over this lot for a period of fifty, sixty or seventy-five years prior to its incorporation within the corporate limits of the city of Baton Rouge does not make proof of dedication. The proof is that after this lot had been taken into the city limits, the public continued to use it as a street of Baton Rouge. This use by the city was a mere continuation of the use which had been made of it as a public road by the traveling public of the parish of East Baton Rouge. This right of passage so enjoyed by the parish, and thereafter by the city, was a mere discontinuous servitude; C. C. 727; and which could be established only by a title, and could not be acquired by possession; C. C. 766. In admitting the evidence to show that this road had been so used by the parish and city during a period of seventy-five years the court recognized the correctness of the views above expressed, in saying that this proof was admitted as not establishing title either in the parish or city of Baton Rouge to the space of ground taken by the Perkins Road, as neither could acquire ownership thereto by prescription. In its opinion, however, the court said that from the fact that the official map of the city of Baton Rouge, approved in 1910, shows that the Perkins Road extended through this lot, and that it had been used without any evidence of objection or interruption on the part of the owners involved during all this period of time, until the complaint of plaintiff was filed, a dedication of .this strip should be inferred. In support of this conclusion the court cites a number of decisions of the Supreme Court of this state. The rule which declares
C. J. Brown, the representative of the Zodack Realty Company, who sold the lot to plaintiff, testified in the case. He says it was understood when plaintiff bought that the road would be straightened out and that plaintiff would get the ownership of the whole lot, and which appeared as a full lot on the Rose-land Terrace map, although as an actual fact the Perkins Road' took a portion of it. He says it was understood plaintiff was only getting possession of a portion of the lot. This testimony makes it even clearer than did the correction deed, that the company intended to convey title to the -whole lot, with possession only of the portion unoccupied by the road. Plaintiff .says he thought he was buying the whole lot, but thought it was advisable to put the clause in question in the sale. The evidence properly analyzed justifies the conclusion that the Zodack Company intended to sell all of the lot and that plaintiff intended to buy it in its entirety. The trouble was that the vendor and vendee saw this road running across its southwestern portion, and made the reservation in the sale under the apprehension that the city might possibly be entitled thereto by use or dedication. The reservation was therefore made in respect to the city’s rights if it had a dedication to the strip in question. This was the purpose or motive which prompted the parties to insert this clause, but there is nothing in the reservation to indicate that either party was actuated by the least desire to dedicate this space of ground to the city of -Baton Rouge to be used by it as a street, or road for public purposes. .There is no deed, act, plat or survey of either plaintiff, the realty company, or of their authors in title to show that this strip of land was ever dedicated to the parish or city of Baton Rouge to be used as a public road or street. The record is also barren of the existence of any facts or circumstances to sustain such dedication by plaintiff or the Zodack Realty Company or their authors.
The district judge to a large extent rested his opinion on the decision reported in Lawson vs. Shreveport Waterworks Co., 111 La. 73, 35 South. 390. In that case it appears that a roadway had for a long time been recognized over a little stream known as Blind Bayou. The Shreveport Waterworks Company obligated itself to maintain a bridge over this bayou which had been used for many years by the general public. The owner in selling a strip of his land to that company stipulated for this road to be kept open and that a bridge thereon be constructed and maintained by the company over Blind Bayou. |The court found that nothing else could have been meant by the owner but that the then existing status should continue. It appeared from the existing status that a road had been established there which had been used by the general public during a long period. This stipulation which provided for the construction and maintenance of this bridge, the court said, was a recognition by the owner of the land of the public character of the road, and was a stipulation pour autrui. In the clause excepting the sale of the strip in dispute in this case there is certainly no stipulation that it should be recognized as a street, road or highway, nor is there any language therein used from which it could be inferred that a reservation was intended to be made pour autrui or for the benefit of the general public.
As the strip of land in this case was excepted from the sale, it is clear that the title remained in the Zodack Realty Company, the vendor of the plaintiff, which had the right to subsequently make a transfer thereof to plaintiff. This the company effected by an act of sale of a date later than that of the original sale wherein the other portion of the lot had been conveyed. No additional price, it is true, was paid by plaintiff for the strip thus transferred. This fact supports the contention that the whole lot was originally intended to be transferred. Be that as it may, the realty company had clearly the right to make a conveyance of this strip by this subsequent act as it had remained the owner thereof. If the defendant city had had any rights to this strip by dedication or other title when it was transferred, it could possibly have interposed objections to its sale, but as it had no ownership therein, it is not concerned in its sale, which is a matter that appeartains to the vendor and the vendee in the transaction.
As to the damages and rentals claimed against the city, we find no proof to sustain this branch of the demand.
It is therefore ordered adjudged and decreed that the judgment appealed from be avoided, annulled and reversed. It is further ordered and decreed» that plaintiff have judgment against defendant decreeing him the owner and entitled to the possession of the space of ground or strip of land of Lot 16 of Square 18 of Roseland Terrace in contest over which the Perkins Road runs as appears from the official map of the city of Baton Rouge made by R. Stewart, civil engineer, approved by the mayor of said city, and recorded on the public records of the parish of East Baton Rouge; that the demand of the plaintiff for damages and rentals be rejected and that the defendant pay all cost of suit.
Rehearing
ON APPLICATION FOR A REHEARING
The strip of ground in contest herein is about 20 feet wide and runs across the southwest corner of lot 16 the property of the plaintiff. Prior to the extension of the territorial limits of the City of Baton Rouge in 1898, the general public of the Parish of East Baton Rouge had for a period of about 75 years exercised the right of passage over this strip which became known as the Perkins Road. As far as. the record shows there is no
If the parish ever had title, of which there is no proof, there is no evidence that it ever made a transfer thereof to the defendant, the City of Baton Rouge. This Perkins Road which ran over this strip of the lot in question was incorporated within the city limits under the extension effected in 1898.
As we said in our original opinion, the City merely continued to exercise the right of passage over this strip of ground. There is no proof, however, of any dedication of this strip to it from any one by grant, deed or otherwise. This right of passage was certainly a discontinuous servitude, C. C., 727; and which could not be acquired even by immemorial possession, a title being essential for such acquisition, C. C., 766.
The City had no title, and its enjoyment of a right of way over this strip could not give it title though exercised, in connection with the prior use of the people of the Parish of East Baton Rouge, during a preiod of 75 years or .more. The fact that this strip had with lot 16 been incorporated within the limits of the City in 1898, or that it appeared on the official map of the City, as the Perkins Road, could not, as we said in our first opinion, have the effect of “changing the status of this property and operate a translation of the title of this space of ground by dedication to the City, otherwise the rights to realty would be very insecure”.
After a re-examination of this case, we find no reason to grant a rehearing.
For the foregoing reasons, and those given in the opinion heretofore rendered, the rehearing is refused.