Gerald Wayne Mizell and Pamela Mizell Helton v. Bobby Joe Willis and James E. Willis

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2020 CA 0915

GERALD WAYNE MIZELL AND PAMELA MIZELL HELTON
VERSUS

BOBBY JOE WILLIS AND JAMES E. WILLIS

JUL 2 9 2021
Judgment Rendered:

Appealed from the
Twenty -Second Judicial District Court
In and for the Parish of Washington
State of Louisiana
Docket Number 110744, Division " I"

Honorable Reginald T. Badeaux, III, Judge Presiding

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Bryan A. Harris Counsel for Plaintiffs/Appellees,
Bogalusa, LA Gerald Wayne Mizell and
Pamela Mizell Helton

Richard W. Watts Counsel for Defendants/Appellants,
Franklinton, LA Bobby Joe Willis and
James E. Willis

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BEFORE: WHIPPLE, C.J., McDONALD, McCLENDON,
CH, AND CHUTZ, JJ.

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WHIPPLE, C.J.

This matter is before us on appeal by defendants, Bobby Joe Willis and
James E. Willis, from a judgment of the trial court dismissing their reconventional
and third -party demands against Gerald Wayne Mizell, Pamela Mizell Helton,

Charles Guy Blackwell, and Lydia D. Blackwell.' For the reasons that follow, we
affirm.

FACTS AND PROCEDURAL HISTORY

Gerald Wayne Mizell and Pamela Mizell Helton ( the Mizells),2 and Bobby
Joe Willis and James E. Willis (the Willis brothers) own adjoining tracts of land in
Washington Parish.
Additionally, the Willis brothers and the Mizells co -owned a

33. 70 acre tract of land, with Charles Blackwell owning a five -acre tract of land in
the northwest corner of the Mizell tract. A gravel road runs in a north/ south

direction near the western edge of the Mizell and Willis tracts of land. The Willis

brothers allege that, for over thirty years, they have used the road to access their
property.
However, a dispute arose between the parties in November 2016, when a
fence was erected across the road and blocked the Willis brothers from using the
road.

On May 16, 2017, the Mizells filed suit against the Willis brothers, seeking a
partition in kind of the property they co -owned with the Willis brothers. The

Willis brothers filed an answer and a reconventional demand against the Mizells,
as well as a third -party demand against Charles Guy Blackwell and Lylia D.
Blackwell ( the Blackwells), 3
seeking restoration of their right of passage along the

The underlying suit, a petition for partition in kind of a tract of land measuring
approximately thirty-three acres, filed by the Mizells, was settled prior to the trial of this matter.
The parties reached an agreement as to a partition of the property, where the Willis brothers were
granted ownership of seven acres of land.

The Mizells' ancestor in title is their father, Billy Ray Mizell, who died in 2016.

3Johnny L. Willis was mistakenly named as a plaintiff in the reconventional demand and
was dismissed from the suit at the commencement of trial.
2

road.
The Willis brothers alleged that they had " consistently maintained" the road
and " used [ it] on a daily basis" until the fence was constructed in November 2016.

They further asserted that the road had been in existence for well over thirty years,
was used by their ancestors in title, and was at one time maintained by the

governing body of Washington Parish.

The matter proceeded to a bench trial on August 16, 2018. At the trial,

various documents were admitted into evidence, and several witnesses testified
regarding the road in question. At the conclusion of the trial, the trial court took
the matter under advisement. On October 24, 2018, the trial court issued written
reasons for judgment,
concluding that the Willis brothers failed to meet their

burden of proof under LSA-R.S. 48: 491 because the work done to the road by the
parish did not rise to the requisite level of maintenance to support a tacit dedication
of the road pursuant to LSA-R.S. 48: 491( B)( 1)( a). On October 24, 2018, the trial

court signed a judgment in accordance with its reasons.
On December 4, 2018,
the Willis brothers appealed the trial court' s
judgment.
This court, ex proprio motu, issued a show cause order on July 24,
2019, on the grounds that the judgment on appeal was ambiguous because this
court was unable to determine what relief was granted to which parties. See Mizell

v. Willis, 2019- 0141 ( La. App. 15t Cir. 11/ 15/ 19), 290 So. 3d 247, 249. After both

sides filed briefs in response to this order, this court found that the judgment lacked
sufficient decretal language; therefore, the judgment was not a final, appealable
judgment. Accordingly, this court dismissed the appeal for lack of appellate

jurisdiction. Mizell, 290 So. 3d at 250.

After the prior appeal was dismissed, the Willis brothers filed a rule to show
cause why the October 24, 2018, judgment should not be amended. After a

hearing on the matter, the trial court signed an amended judgment on January 16,

3

2020.
The Willis brothers then filed the instant appeal, assigning the following as
error:

1.
The trial court erred in finding the road was not a publicly maintained
road in accordance with LSA-R.S. 48: 491.

2.
Even if the road was not a publicly maintained road, the trial court erred
in failing to find that the Willis brothers and their ancestors in title acquired a
servitude of passage through acquisitive prescription due to their constant,
undisturbed use of the road for over thirty years.

DISCUSSION

Assignment of Error 91

In their first assignment of error, the Willis brothers contend that the trial
court erred in finding that the road was not a publicly maintained road in
accordance with LSA- R.S. 48: 491.

The formation of a public road may occur via tacit dedication under LSA-
R.S. 48: 491( B)( 1)( a),
which provides, in pertinent part:

All roads and streets in this state which have been or hereafter are
kept up, maintained, or worked for a period of three years by the
authority of a parish governing authority within its parish, or by the
authority of a municipal governing authority within its municipality,
shall be public roads or streets, as the case may be, if there is actual or
constructive knowledge
of such work by adjoining landowners
exercising reasonable concern over their property.

Actual or constructive knowledge is presumed if the public body performing
the work notifies the last known adjoining landowners of the maintenance by
written notice sent by certified or registered mail, return receipt requested. LSA-

R.S. 48: 491( B)( 1)( b).
However, actual or constructive knowledge is conclusively
presumed if the total period of the maintenance is for a period of four or more
years,
unless prescription is otherwise interrupted or suspended. LSA-R.S.

48: 491( B)( 1)( c).

21

A two-pronged burden of proof exists under LSA-R.S. 48: 491( B)( 1)(
a).

First, it must be shown that there has been sufficient maintenance; second, it must
be shown that the landowner had knowledge of or acquiesced in the public
maintenance.
Moret v. Williams, 582 So. 2d 975, 977 ( La. App, I" Cir. 1991).

Tacit dedication does not require intent of the landowner to dedicate the property
when there has been sufficient maintenance without protest. Himel v. Bourque,

2014- 1811 ( La. App. I" Cir. 12/ 11/ 15), 185 So. 3d 42, 47.
The underlying

rationale of LSA-R.S. 48:491 is protection of the public fisc, guarding against the
use of public monies for the benefit of private landowners. Moret, 582 So. 2d at
977.
Thus, if landowners accept public maintenance of the road upon which they
live without protest, then they cannot protest the characterization of that road as
public. Himel, 185 So. 3d at 47.

An occasional " brushing up" or " token maintenance"
of private property is

not sufficient to invoke the provisions of LSA-R.S. 48: 491 and establish a tacit
dedication of a servitude of passage. IP Timberlands Operating Co v De Soto

Par. Police Jury, 552 So. 2d 605, 607 ( La. App. 21d
Cir. 1989); Guzzardo v.

Campo, 486 So. 2d 912, 914 ( La. App. 1" Cir.), writ denied, 488 So. 2d 1026 ( La.
1986). The question of sufficient public maintenance is one of degree. The issue

of whether public maintenance is sufficient to support a tacit dedication is an issue

of fact that is squarely within the purview of the trial court. Guzzardo, 486 So. 2d
at 914.
It is well-settled that a court of appeal may not set aside a trial court' s or a
jury' s finding of fact in the absence of " manifest error" or unless it is " clearly

wrong," and where there is conflict in the testimony, reasonable evaluations of

credibility and reasonable inferences of fact should not be disturbed upon review,

even though the appellate court may feel that its own evaluations and inferences

are as reasonable. Rosell v. ESCO, 549 So. 2d 840, 844 ( La. 1989).

5

Under the manifest error standard of review, a reviewing court may not
merely decide if it would have found the facts of the case differently. Hayes Fund

for First United Methodist Church of Welsh LLC v. Kerr-McGee Rock

Mountain, LLC, 2014- 2592 ( La. 12/ 8/ 15), 193 So. 3d 1110, 1115.
Rather, this

court employs a two-part test for the review of a factfznder' s determinations.

Stobart v. State through Dept of Transp and Development, 617 So. 2d 880, 882
La. 1993).
To reverse a trial court' s factual conclusions, the appellate court must
satisfy a two-step process based on the record as a whole: there must be no

reasonable factual basis for the trial court' s conclusion, and the finding must be
clearly wrong. Walton v. State Farm Mut. Auto. Ins. Co., 2018- 1510 ( La. App. Is'

Cir. 5/ 31/ 19), 277 So. 3d 1193, 1196.
This test requires a reviewing court to
review the record in its entirety to determine manifest error. Stobart, 617 So. 2d at
882.

In the instant case, the trial court found that the Willis brothers had failed to
carry their burden of proving that the road had been tacitly dedicated pursuant to
LSA-R.S. 48: 491( B)( 1)( a).
In so concluding, the trial court made specific factual

findings that the work done to the road did not rise to the level of maintenance
required under LSA-R.S. 48: 491 and also that the evidence did not support that any
work done was performed by the authority of the municipal governing authority.
It is undisputed that the road is a gravel road that runs from Louisiana

Highway 1074 through the Mizell property, and to the land owned by the Willis
brothers.
Regarding maintenance performed on the road, James Howard Stewart, a

member of the Washington Parish Police Jury from 1976- 1980, responded

affirmatively when asked if, during his four-year tenure on the police jury, he
supervised the maintenance, regular maintenance, of that road[;]" however, his

testimony as to the exact maintenance performed and the frequency thereof was
sparse at best.
Specifically, when asked if he ever did anything besides grading the
m

road, he responded, "
That' s basically all we did at that time was road machine
work.
We didn' t have no [ sic] equipment to do any grass cutting or anything like
that at that time."
Also, when asked his understanding of "maintaining a road,"
Stewart responded generally, " Well, what we done then was grade the road and

gravel and pull ditches if they needed it." However, he offered no testimony as to

how often in his four years as police juror this particular road had been graded.
Moreover, when asked specifically if he ever had cleaned up the ditches or added
rocks, he answered in the negative, explaining " I don' t know if I did" because that

would have been handled by the machine operator and road crew.

In addition to testifying that he did not know if ditch work or adding rocks
had been performed for the road in question, Stewart also acknowledged that there
were no records of maintenance to this particular road, claiming that he had

destroyed them about ten years before. Thus, there were no records to indicate the

extent or frequency of any work on the road.

Finally, while Gerald Mizell testified that he recalled a road machine coming
up and down a portion of the road in the 1970s, and agreed that this had occurred

over a period of more than three years when he was a child, he did not testify as to
how often he had witnessed this occurring. Moreover, he stated that he and his

family had repaired and maintained the road, had run a box over it and later bionic
blades, and had trimmed limbs,
explaining, " We done it all." Mizell further

testified that the previous owner of the property now owned by the Willis brothers
had maintained the portion of the road leading to that property. Thus, while the

testimony is uncontradicted that a road truck had graded at least a portion of the
road in question during the time period of 1976 to 1980, there is simply no

evidence of how often this occurred during that four-year time period or of any
additional maintenance performed.

7

In Rowe v. Haivey, 307 So. 2d 103 ( La. App. 1" Cir. 1974), writ denied, 310
So. 2d 642 ( La. 1975), this court was required to determine if a road was public or

private, where the road was only graded sporadically and the parish did not lay
gravel, trim trees, or perform any other maintenance. This court found that the

maintenance was insufficient to constitute a tacit dedication under LSA-R.S.
48: 491. Rowe, 307 So. 2d at 107. In Rowe, as in the instant case, at the time the

parish performed maintenance,
the parish generally worked private roads and

driveways as well as public ones. Rowe, 307 So. 2d at 105- 06.
Conversely, in
Himel,
185 So. 3d at 47-48, this court found that a road which was built by the
landowners had,
in fact, become a public road because the parish sufficiently
maintained the road for more than three years after a request from the landowners.
In Himel, the parish paved part of the road,
set or moved drainage culverts,

removed a tree along the road, cut a " cross ditch," and installed signage on the

road.
Although the parish only paved and maintained part of the road, the entire
road was found to be a public road. Himel, 185 So. 3d at 47- 48. However, the

maintenance detailed in Himel far exceeds the maintenance that occurred in both
the instant matter and in Rowe. Instead, the amount of public maintenance

performed on the road in this matter is comparable to the maintenance done in
Rowe.
Thus, considering the precepts in Rowe and Himel, as well as the testimony
and evidence submitted herein, and according the appropriate deference to the trial

court' s factual findings, we cannot conclude that the trial court was manifestly
erroneous in finding that the work performed did not constitute sufficient public

maintenance to support a tacit dedication of the road pursuant to LSA-R.S.
48: 491 (13)( 1)( a).

Additionally, with regard to the trial court' s finding that the Willis brothers

had not met their burden of proving that any work done was perfonned by the
authority of the municipal governing authority, while Stewart testified that he

E

supervised the grading of this road, as well as other private roads, during his four-
year tenure and that the Parish never told him to stop, he was not asked and did not
state that he did so on the authority of the parish governing authority. And while

Stewart claimed that he himself had had records of maintenance performed but that
he had destroyed them, notably, the testimony of Donnell Merritt, transportation
manager for Washington Parish Government, indicates that the Parish had no such
records.
Rather, when a list of roads maintained by the Parish was first compiled
in 1985, this particular road was not included on the list.
Based on this testimony,
the trial court found that the Willis brothers had failed to meet their burden of
proving that any work performed had been done by the authority of the municipal
governing authority, finding instead that Meiritt' s testimony "
suggests that any

work done was not by the authority of the parish or its municipalities." A police

jury can act only as a body and not individually. Wes -T -Erre Development
Corporation v. Parish
of Terrebonne, 416 So. 2d 209, 217 ( La. App. 1st Cir.), writ

denied, 421 So. 2d 251 ( La. 1982). Thus, an individual member or members of a

police jury cannot bind the
police jury as the governing body. See Starnes v.

Police Jury of Rapides Parish, 27 So. 2d 134, 136 ( La. App. 2" Cir. 1946).

Moreover, where there are two permissible views of the evidence, the fact
finder' s choice between them cannot be manifestly erroneous.
Jones v. Bravata,

2018- 0837 ( La. App. lst Cir. 5/ 9/ 19),
280 So. 3d 226, 233, writ denied, 2019-
01850 ( La. 2/ 26/ 20),
294 So. 3d 477. Based on our review of the record, we

likewise cannot conclude that the trial court' s view of the evidence in finding a
lack of proof that any work was performed on the authority of the municipal
governing body is manifestly erroneous.

Louisiana Revised Statutes 48: 491( B)( 1)( a) provides that a tacit dedication

results when a road has been " kept up, maintained, or worked for a period of three
years by the authority of a parish governing authority." The evidence presented

9

herein supports the trial court' s factual determinations
and ultimate conclusion that

the road was not maintained sufficiently to cause a tacit dedication as the work that
was done was very minimal, " token maintenance" and that the Willis brothers had

not established that any work that may have been performed was performed by the
authority of the municipal governing authority. See Guzzardo, 486 So. 2d at 915.

As such, we find no manifest error by the trial court.
Accordingly, this assignment of error lacks merit.

Assignment of Error #2

In their second assignment of error, the Willis brothers contend that the trial
court erred in failing to find ( or even consider) that they acquired a servitude of
passage through acquisitive prescription due to their constant, undisturbed use of
the road for over thirty years.

Louisiana Civil Code article 740 provides that "[
a] pparent servitudes may be
acquired by title, by destination of the owner, or by acquisitive prescription." The

laws governing acquisitive prescription of immovable property apply to apparent
servitudes.
An apparent servitude may be acquired by peaceable and uninterrupted
possession of the right for ten years in good faith and by just title; it may also be
acquired by uninterrupted possession for thirty years without title or good faith.
LSA- C. C. art. 742.
Moreover, doubt as to the existence, extent, or manner of
exercise of a predial servitude shall be resolved in favor of the servient estate.
LSA-C. C. art. 730.

4A support, the Willis brothers note that the trial court did not mention this aspect of the
case in its reasons for judgment. However, appeals are taken from the actual judgment itself, not
the reasons for judgment.
not the reasons.
Thus, as an appellate court, we review the judgment on appeal, and
5/ 19/ 11),
Dawson v. Terrebonne General Medical Center, 2010- 2130 ( La. App. Pt Cir.
69 So. 3d 622, 630. Moreover, we note that the Willis brothers raised the issue of their
purported acquisition of a servitude by undisturbed use for years in their reconventional an third
party demand, which clearly was rejected, as the judgment on appeal in this matter specifically
dismissed the entirety of their reconventional and third party demand against the Mizells and the
Blackwells.

Hut

Louisiana Civil Code article 3437 defines precarious possession as "[ t] he

exercise of possession over a thing with the permission of or on behalf of the
owner or possessor." "
Acquisitive prescription does not run in favor of a
precarious possessor or his universal successor." LSA-C. C. art. 3477.
Excluding a

co-owner, any precarious possessor or his universal successor may commence to
prescribe when he gives actual notice to the person on whose behalf he is
possessing that he intends to possess for himself LSA-C.C. art. 3478.

To acquire possession, the possessor must intend to possess as owner and
must take corporeal possession of the thing. LSA-C. C. art. 3424. The possession
must be uninterrupted and free of vices, i.e., continuous, public, peaceable, and

unequivocal. LSA-C. C. arts. 3435 and 3476. The possession must be adverse;

thus, it must be an unauthorized use that infringes on the ownership of the servient
estate.
Boudreaux v. Cummings, 2014- 1499 ( La. 5/ 5/ 15), 167 So. 3d 559, 563- 64.

As noted by the Supreme Court, as it relates to precarious possession, the
concept of implied permission to use one' s property is still a viable theory of our
civilian law.
Even in the absence of express permission, tacit permission can be
presumed under the limited circumstances where " indulgence" and acts of " good

neighborhood" are present.
Accordingly, a neighborly act of tolerance will not

serve as the foundation of adverse possession needed for purposes of acquisitive
prescription. Boudreaux, 167 So. 3d at 563. Moreover, what constitutes

possession in any case depends on the nature of the property and is a question of
fact, with each case depending upon its own facts. Alford v. Jarrell, 471 So. 2d

970, 973 ( La. App. I" Cir. 1985).

In their reconventional demand, the Willis brothers aver that they and their
lessees have used the road to access their property since their purchase of the
property in 1977. Accordingly, they contend they should be restored to possession
of their right of passage along the road. On appeal, the Willis brothers aver that

11

the record in its entirety presents such a compelling picture of adverse possession
of an apparent servitude that no other legal conclusion can be drawn other than
ownership by the [ Willis brothers]." They contend that their use of the road was
not merely " neighborly accommodation," and that their acts of possession " are the

acts of open and notorious possession requiring affirmative action by the owner of
the servient estate to defeat prescription." We disagree.

The record reflects that the Willis brothers asked the Mizells' father, Billy

Ray Mizell, who owned the property before his death in 2016, for permission "
to

do things such as cut tree limbs"
if they were growing in the way. Additionally,

the Willis brothers constructed an alternate path to the road sometime around 2013,
after Billy Ray Mizell requested that they take action to remedy an issue that was
arising due to their use of the road.
James Willis testified that although Billy Ray
Mizell placed a cord across the road in 1996 to stop people from using the road,
after they had a discussion with him, Billy Ray did not place a lock on it and
allowed the Willis brothers to use the road. However, Gerald Mizell testified that

he recalled his dad always giving other people permission to use the road as well,
if they requested such use.

In sum, the record reflects that the Mizells, through their ancestor in title,
Billy Ray Mizell, gave tacit permission for the Willis brothers and others to use the
road.
As recognized by the Louisiana Supreme Court in Boudreaux, in order for
prescription to accrue,
the possessors must possess for themselves, and such

possession must be adverse and must be an unauthorized use that infringes on the
ownership of the servient estate. Boudreaux, 167 So. 3d at 563- 64. Mere, the

testimony clearly reflects that the use of the road by the Willis brothers was not
unauthorized" or " notorious" adverse possession.
Accordingly, they were

precarious possessors for purposes of acquisitive prescription.

12

Thus, unless the Willis brothers ever gave actual notice to the Mizells of
their intent to possess the road for themselves, they remained precarious possessors
and acquisitive prescription could not run. See LSA- C. C. art. 3478. Apart from

the continued use and shared maintenance of the road,
there is nothing in the

record that indicates actual notice was ever given to the Mizells, or their father,
that the Willis brothers intended to change their permissive, neighborly use of the
property to open, adverse possession.
Moreover, as set forth in LSA-C. C. art. 730,
any "
doubt as to the existence, extent, or manner of exercise of a predial servitude
shall be resolved in favor of the servient estate."
As recognized by the Louisiana
Supreme Court,
servitudes are not viewed favorably by the law, because they
constitute restraints on the free disposal and use of property. See Boudreaux, 167

So. 3d at 564-65, citing Continental Group Inc v Allison, 404 So. 2d 428 ( La.
1981).
Accordingly, we are unable to find support in the record for the claim of
the Willis brothers that their precarious possession was such that ' acquisitive
prescription commenced to run.

This assignment of error also lacks merit.

CONCLUSION

For the above and foregoing reasons, the trial court' s January 16, 2020

judgment in favor of Gerald Wayne Mizell, Pamela Mizell Helton, Charles Guy
Blackwell, and Lydia D. Blackwell, dismissing the claims of Bobby Joe Willis and
James E. Willis against them, is hereby affirmed. Costs of this appeal are assessed
against the defendants, Bobby Joe Willis and James E. Willis.
AFFIRMED.

13

GERALD WAYNE MIZELL NUMBER 2020 CA 0915
AND PAMELA MIZELL HELTON

FIRST CIRCUIT

VERSUS COURT OF APPEAL

STATE OF LOUISIANA

BOBBY JOE WILLIS AND
JAMES E. WILLIS

WELCH, J., concurring in part; dissenting in part.
J
I concur in the majority' s finding that the trial court did not manifestly err in
its finding that no servitude of passage was created through acquisitive prescription.

However, I dissent regarding the majority' s finding that the trial court did not err in

finding that the road at issue was not tacitly dedicated as a public road pursuant to
La. R.S. 48: 491( B)( 1)( a).

Louisiana Revised Statutes 48: 491( B)( 1)( a) is clear that if a public authority

kept up, maintained, or worked" on a road for a period of three years with " actual

or constructive knowledge of such work by adjoining landowners," the road shall be
public.
The trial court found that the work done on the road at issue did not rise to

a level of maintenance required under La. R.S. 48: 491. However, the record

shows—
through the uncontroverted, sworn testimony of James Howard Stewart, a

former Washington Parish police jury member— that Mr. Stewart supervised the
regular maintenance" of the road at issue from 1976 through 1980. Mr. Stewart

testified that the " regular maintenance"
performed by the Parish included grading

the road, laying gravel on the road, and pulling ditches as needed. Mr. Stewart

classified the type of "regular maintenance" the Parish performed on roads as " road

machine work" based on the type of equipment available to the Parish during those
years.

The majority reasons that because Mr. Stewart could not testify with

specificity as to the exact maintenance he performed on the road over forty years

ago, and because he no longer has records of the maintenance performed on this and

other roads during his tenure as a police juror, his testimony must be considered
sparse at best." However, there is no requirement found in La. R.S. 48: 491( B)( 1)( a)

that a public authority must list specific actions it undertook to keep up, maintain, or
work on a road.

The majority further reasons that because neither the Parish nor Mr. Stewart

have any records of the maintenance performed on the road at issue, and that the

Parish graded all roads— both public and private— that the yearly maintenance

performed on this road is insufficient to convert the road to a public road. In fact,

the majority places great emphasis on the fact that the Parish graded all roads in

Washington Parish. However, La. R.S. 48: 491( B)( 1)( a) makes no distinction as to

how many roads a Parish grades, nor whether such roads are classified as public or

private. The pertinent issue under La. R.S. 48: 491( B)( 1)( a) is whether the Parish

kept up, maintained, or worked" on this road.

The uncontroverted testimony of Mr. Stewart was that the Parish graded, laid

gravel, and pulled ditches on this road for four years. Since the period of work done

by the Parish on the road at issue went on for four years, actual or constructive

knowledge of such work by the adjoining landowners is statutorily presumed. See
La. R.S. 48: 491( B)( 1)( c).
Accordingly, the road at issue must be a public road

pursuant to the broad and plain language of La. R. S. 48: 491( B)( 1)( a).

The majority also finds that there was insufficient evidence to prove that the

work performed by Mr. Stewart on the road at issue was actually performed by the

public authority. The majority reasons that because Mr. Stewart was not asked

during trial and did not affirmatively state that he performed regular maintenance on

the road on behalf of the Washington Parish Policy Jury, he must have acted

OA

individually. The record contains no reasonable factual basis to support the

majority' s conclusion.

The majority cites Wes -T -Erre Dev. Corp. v. Terrebonne Par., Through

Police Jury of Terrebonne Par., 416 So. 2d 209 ( La. App. 1St Cir.), writ denied,

421 So. 2d 251 ( La. 1982) and Starnes v. Police Jury of Rapides Par., 27 So. 2d

134, 135 ( La. App. 2" d Cir. 1946). The Wes -T -Erre Dev. Corp. case involved an

alleged " deal" between the plaintiff and two police jury members. See Wes -T -Erre

Dev. Corp., 416 So. 2d at 211- 14. The plaintiff was a shopping center owner who

wanted to construct a driveway connecting his shopping center to a parish road. Id.
at 211- 12. Two police jury members made " representations" to the plaintiff as to

whether they would vote to support or oppose the construction of the plaintiff' s

requested driveway during police jury meetings. Id. at 217. As to the actions of

the two police jury members, the Wes -T -Erre Dev. Corp. court held that " a police

juror acting alone or in unison with another member or members, without a proper

meeting, cannot obligate a political body to an affirmative or binding course of
action." Id. at 217.

The Starnes case involved the construction of a new road after an old road

became unsafe and the question of one police juror' s authority to abandon the old
road located in his ward. See Starnes, 27 So. 2d at 135. There was no ordinance

authorizing the " change of roads," nor any action by the police jury regarding the
establishment of a new road. Id. at 136. The Starnes court held that the

abandonment could only be effected by a formal act of abandonment or by clear and

well- established proof of an intent on the part of the governing body to abandon. Id.

Neither the Wes -T -Erre Dev. Corp. case nor the Starnes case are applicable

here and are distinguishable from the case before this court. Neither case involved

the tacit dedication of a public road pursuant to La. R. S. 48: 49 1 ( B)( 1)( a)— the Wes -

T -Erre Dev. Corp. case resolved the binding effect of representations by two police

3

jurors to a member of the public regarding the construction of a driveway, and the
Starnes case resolved whether one police juror could unilaterally abandon a public
road. Neither case offers guidance in the instant matter.

Regardless of the existence or non-existence of public road maintenance

records regarding this road, such public records are only required to be retained for

a period of three years. See La. R.S. 44: 36( A) and ( B) ( These records would be

about forty years old.). Mr. Stewart—
a former Washington Parish police jury
member who supervised road maintenance— testified without contradiction that he

kept up, maintained, or worked" on this private road by pulling ditches, laying

gravel as needed, and grading the road from 1976- 1980. Importantly, Mr. Stewart

testified that he maintained the private gravel roads just the same as he maintained

the public gravel roads. Based upon the record before us, it is inconceivable that the

trial court could not find that the work done to this road by the Parish did not rise to

the requisite level of maintenance to trigger La. R.S. 48: 491( B)( 1)( a), when the

public and private gravel roads in Washington Parish in 1976- 1980 were " kept up,

maintained, or worked" the same. This is a public road.

For the foregoing reasons, I believe that the majority erred in finding that the
road at issue was not a public road pursuant to La. R. S. 48: 491( B)( 1)( a). I

respectfully dissent.

0

GERALD WAYNE MIZELL
STATE OF LOUISIANA
AND PAMELA MIZELL HELTON

COURT OF APPEAL
VERSUS

FIRST CIRCUIT

BOBBY JOE WILLIS
AND JAMES E. WILLIS
NUMBER 2020 CA 4915

CHUTZ, J.,
concurring in part and dissenting in part.

For the reasons stated by Judge Welch, I concur in the majority' s conclusion
insofar as the Willis Brothers'
claim of having acquired a servitude of passage

through acquisitive prescription. I also fully agree with Judge Welch on the issue of
whether the road was tacitly dedicated as a public road under La. R.S. 48: 491 B( 1)( a).

I write separately to point out that in the 1960s, construction ofan unimproved
rural gravel road consisted ofpulling the ditches, grading the surface ofthe roadway,
and adding gravel. Logically, it follows that " maintenance"
would have been

something less than that required for the original construction ofthe road. Thus, the
trial court' s conclusion is
manifestly erroneous for failing to consider the
uncontroverted testimony of Washington Parish Police Juror, James Howard

Stewart, as to the regular use of the road machine between 1976 and 1980 on the
subject road as sufficient keeping up, maintaining, or working of the road so as to
constitute a tacit dedication under La. R.S. 48: 491B( 1)( a).