Boynton v. BertrandBoynton v. Bertrand
Plaintiffs, Roger C. Edwards, W. P. Edwards, Jr., Roger E. Boynton and Nancy Boynton, filed suit against defendants, Hilda Bertrand and Elda Bertrand, to enjoin them from denying plaintiffs the use of a gravel and shell road in Vermilion Parish which had allegedly become a public road under
The trial court rendered judgment in favor of defendants on the main demand and awarded defendants $100 damages on their reconventional demand against plaintiffs. The trial court found that the road was private rather than public since there was no intent to dedicate it to public use and the major portion of the maintenance on the road was done by defendants. The court also found that repair of the damaged fence would cost approximately $100.
Plaintiffs have appealed from the adverse judgment contending that the trial court erred in finding that the road was not public and also erred in awarding damages to defendants for the fence.
“All roads or streets in this state that are opened, laid out or appointed by virture of any act of the legislature or by virtue of an order of any parish governing authority in any parish, or any municipal governing authority in any municipality, or which have been or are hereafter kept up, maintained or worked for a period of three years by authority of any parish governing authority in its parish or by authority of any municipal governing authority in its municipality shall be public roads or streets as the case may be....”
The road in dispute runs East from Louisiana Highway 82 for approximately 1,050 feet. The record does not indicate who constructed the first half, measuring some 500 feet, but Willis Neveaux, husband of defendant, Elda Bertrand, testified that he constructed the rest of the road.
Various witnesses testified as to the maintenance of the road. Dallas Frederick, an employee of the Vermilion Parish Policy Jury, testified that he had graded the road with the police jury‘s motor patrol about three times a year for twelve years. He also occasionally unstopped a ditch. A. F. “Ben” Frederick, a police juror for nine years, testified that the police jury not only graded the road but once had the ditch along the road cleaned out. Other testimony revealed that Dallas Frederick earned $301.05 per month, and the motor patrol had a list price of $26,050.00. It is undisputed that the work by the police jury‘s employee and equipment was done at the request of the property owners or their spouses. The trial court found that grading of the road was done by the police jury roughly three times a year but stated that it was insufficient to constitute maintenance of the road under the statute in view of the other work done on the road by the property owners. This consisted according
It was stipulated that a United States mail route was established on the road in 1965, and mail was delivered to Roy Bertrand, brother of defendants; Willis Neveaux; Stafford Labry, husband of defendant, Hilda Bertrand; Patricia Gray, an owner of adjoining property; and Cheryl Creswell, who lived with Patricia Gray.
The evidence as to the ownership and damage, if any, to the fence was not conclusive.
Willis Neveaux testified that the fence was originally built by the neighboring landowner, Warren P. Creswell, but was rebuilt by Neveaux. The deeds and plats and Creswell‘s testimony show that Creswell had sold a tract adjacent to the fence to Patricia Gray who in turn sold it to plaintiffs. When the fence was rebuilt, Creswell and Neveaux both contributed material and labor. Neveaux testified that “Mr. Edwards” (presumably one of the plaintiffs) put a gate in the fence and thus loosened up the wire. Neveaux said that the corner posts used with the gate should be replaced by larger posts and he thought it would cost $100 or $110 to do this “... something like that ....” (T.R. 148)
Warren P. Creswell testified that he had originally built the fence, and he contributed wire when it was rebuilt by his son and Neveaux. His son, Tim Creswell, confirmed that he and a friend worked with Neveaux to rebuild the fence. Tim Creswell said that he furnished the corner posts costing eight or ten dollars each and the braces. Tim Creswell also testified that the section of the fence where the gate had been cut was in as good a condition as the rest of the fence; according to this witness, “... the worst part of the fence is where my horse ran into it....” (TR. 109)
The evidence is insufficient to establish that defendants in fact own the fence for which they claim damages; that the fence was damaged; the amount of such damage, if any; and the person or persons responsible. The sole basis for this award of damages to defendants is the testimony of Willis Neveaux and he testified only that it would be a good idea to replace the corner posts and it would be hard to say what this would cost. Therefore, we are of the opinion that the trial court erred in awarding defendants $100 for damages to the fence.
The remaining issue for decision is whether or not the police jury of Vermilion Parish has “... kept up, maintained or worked for a period of three years ....” (
For the foregoing reasons, the judgment of the trial court is reversed and a tacit dedication of the road traversing the property of defendants, Hilda Bertrand and Elda Bertrand to public use under the provisions of
All costs are assessed against defendants-appellees, Hilda Bertrand and Elda Bertrand.
Reversed.