107 So. 709 | La. | 1926
Lead Opinion
This is an injunction suit to forbid the use of a road across the plaintiff's plantation as a public highway. He has appealed from a judgment dissolving the injunction and rejecting his demand.
A part of the road described in his petition was dedicated by a deed of conveyance from a former owner of the plantation to the *959 police jury of the parish on the 4th of August, 1904, which deed was of record long before the plaintiff bought the plantation. That part of the road is described in the deed as being 40 feet in width, and extending from Gayle Station, on the Texas Pacific Railway, to the bridge at Bayou Pierre, or to Red Bluff road. There is no dispute that that part of the road is a public road. In fact, it is said in the brief filed by the learned counsel for appellant that that part of the road was not included, or intended to be included, in the description in the petition.
The road that is in dispute, as we understand from the testimony and the maps in the record, commences at a point where the road which we have described, going from Gayle Station to the bridge at Bayou Pierre, turns abruptly to the left, about 170 yards from Gayle Station, and the road in dispute extends thence in a northeastern direction, along the southeast side of Rush Bayou, a distance of approximately 650 yards, to an intersection with the Levee road, about 25 yards east from an old store.
As to the part of the road that was never formally dedicated by an owner of the plantation, the defendant, police jury, urges four pleas or defenses in support of its being a public road, viz.:
First. That the road was used as a public road continuously for 40 years or longer, without protest on the part of any owner of the plantation, before the institution of this suit.
Second. That the public acquired a continuous servitude, or right to use the road as a public highway, by prescription, by the public use and possession of the road for the period of 10 years, according to the provisions of article
Third. That the road became a public road by the prescription of three years, by virtue of the keeping up, maintaining, and working *960 of the road for the period of three years under authority and supervision of the police jury; according to the provisions of section 3368 of the Revised Statutes, as amended by the Act 220 of 1914, p. 417.
Fourth. That the plaintiff is estopped by the fact that he and his author in title for many years before permitted the road to be used as a public road, and that he knew of its use as a public road when he bought the plantation, only two years and four months before he filed this suit.
Our opinion is that the third defense to this suit is well founded. We shall therefore rest our affirmance of the judgment upon the provisions of the Act 220 of 1914, amending and re-enacting section 3368 of the Revised Statutes, viz.:
"All roads in this state that have been opened, laid out, or appointed by virtue of any act of the Legislature heretofore made, or by virtue of an order of any of the police juries in their respective parishes, or which have been, or shall hereafter be kept up, maintained or worked for a period of three years by authority of the police juries in their respective parishes, are hereby declared to be public roads; also all roads made on the front of their respective tracts of land by individuals when the said lands have their front on any of the rivers or bayous within this state. It shall be lawful for any individual through whose land the police jury shall cause a public road to be laid out, to claim a compensation of double the assessed value of the said land."
The road in contest was kept up and maintained as a public road by the police jury, and worked upon from time to time by road gangs employed by the police jury, and at times by prisoners, all under authority of the police jury, during a period exceeding 40 years before this suit was filed.
The only argument that is made against the application of the statute of 1914 is the contention of the learned counsel for appellant that the statute was adjudged unconstitutional in Gibbon v. Police Jury of St. Mary Parish, 74 So. 172,
The judgment is affirmed.
Addendum
The plaintiff contends, in his application for a rehearing, that the defendant did not plead the prescription of 3 years. The defendant pleaded, not that the road had become a public road by prescription, but that it had become a public road by tacit dedication. Perhaps we were wrong in calling section 3368 of the Revised Statutes, as amended by Act 220 of 1914, a statute of prescription. It is more appropriate to say that, by virtue of the statute, the road became a public road by tacit dedication. In support of the argument that the statute is unconstitutional in so far as it purports to authorize the taking of private property for a public use without adequate compensation and without due process of law, the learned counsel for appellant cite Torres v. Falgoust, 37 La. Ann. 497. Perhaps the statute would be unconstitutional if construed to mean that a private road that had been kept up, maintained, or worked under authority of the police jury for 3 years before the statute was enacted was converted into a public road by virtue of the statute. We rest our decision in this case upon the fact that the road was kept up and maintained by authority of the police jury for a period exceeding 3 years subsequent to the enactment of the statute.
The application for rehearing is denied. *963