The Southern Amusement Co., Inc. v. Pat's of Henderson Seafood & Steak,inc.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

03-767

THE SOUTHERN AMUSEMENT CO., INC.

VERSUS

PAT'S OF HENDERSON SEAFOOD & STEAK, INC.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 98-3846
HONORABLE KENT SAVOIE, DISTRICT JUDGE
**********

GLENN B. GREMILLION
JUDGE

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Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Glenn B. Gremillion,
Judges.

Cooks, J., dissents and assigns written reasons.

AFFIRMED IN PART; REVERSED
IN PART; AND RENDERED.

C. Eston Singletary, Jr.
Scofield, Gerard, Veron, Singletary & Pohorelsky
1114 Ryan Street
Lake Charles, LA 70602
(337) 433-9436
Counsel for Plaintiff/Appellant
The Southern Amusement Co., Inc.

Russell J. Stutes, Jr.
Scofield, Gerard, Veron, Singletary & Pohorelsky
1114 Ryan Street
Lake Charles, LA 70602
(337) 433-9436
Counsel for Plaintiff/Appellant
The Southern Amusement Co., Inc.

Rudie Ray Soileau, Jr.
717 Pujo Street
Lake Charles, LA 70601
(337) 433-0110
Counsel for Defendant/Appellee
Pat's of Henderson Seafood & Steak,Inc.

David Dwight
1400 Ryan Street
Lake Charles, LA 70601
(337) 439-3138
Counsel for Defendant/Appellee
Pat's of Henderson Seafood & Steak, Inc.

Christopher E. John
P.O. Box 900
Lake Charles, LA 70602-0900
(337) 491-1547
Counsel for Intervenor/Appellee
City of Lake Charles

GREMILLION, Judge.

The plaintiff, Southern Amusement Company, Inc., appeals the judgment

of the trial court denying its motion for a new trial on the issue of whether a private

and public servitude exists on property owned by the defendant, Pat’s of Henderson

Seafood and Steaks, Inc. We affirm in part, reverse in part, and render.

FACTS

On September 30, 1977, Joseph and Shirley McIver, Jr. and Robert and

Mary Elam purchased a tract of land containing 28.56 acres, located in Section 3,

Township 10 South, Range 8 West, from the Board of Trustees of State Colleges and

Universities of the State of Louisiana and McNeese State University. The property,

located in Lake Charles, Louisiana, is bordered on the east by the Interstate 210

Bypass, on the south by Avenue “J,” on the west by Kayouche Coulee, and on the

north by private property. Contained within the Cash Deed is the following language:

As a part of the consideration for this sale, Vendor and Vendee hereby
dedicate to the City of Lake Charles, all road rights-of-way shown on
the attached plat of survey dated June 7, 1977, Whitaker & Webb, Civil
Engineers, for Jacox Lane, Von Blond Drive, and over the North 30 feet
and the Easterly 50 feet of the property.

A notation on the attached survey of the property reiterates: “1. Vendor and Vendee

hereby dedicates for public use all Right of Ways for roads and streets as shown

above.” This Cash Deed was filed in the conveyance records of Calcasieu Parish on

October 12, 1977. An Act of Correction of Deed was filed in the conveyance records

by these same parties on October 19, 1981, whereby a correction was made to the

point of commencement of the legal description of the property. Otherwise, the

contents of the Cash Deed remained unchanged.

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This lawsuit stems from the reservation of a servitude for a proposed

road contained in a February 6, 1981 Cash Sale Deed, in which the McIvers and the

Elams conveyed a portion of the above tract to Richard and Nancy Perioux. The

property sold was located in the southeastern corner of the tract and is bounded on the

east by the Interstate 210 Bypass, on the south by Avenue J, and on the north and

west by property owned by the Elams and McIvers, which includes a subdivision to

the north known as “The Hamlet.” The Cash Sale Deed contains the following

language:

Thence North 89E 57’ 30” West 388.25 feet along the South line of Lots
1, 2, and 3 of Block 3 of “The Hamlet” Subdivision to the point of
commencement, containing 97,219 square feet of area and subject to a
50 foot wide easement for a proposed road along the East side and
a drainage easement along the South side.

(Emphasis added).

On April 26, 1982, the Periouxs executed a Cash Deed in favor of Pat’s

of Henderson Seafood and Steaks, Inc., which conveyed the above described property

to them. The Cash Deed contained the same language reserving the fifty-foot

easement for a proposed road.

Southern Amusement also owned property located in Section 3,

Township 10 South, Range 8 West, located north of the McIver and Elam tract and

bounded north by Broad Street. In 1988, Wal-Mart Properties, Inc. approached

Southern Amusement with the intent of purchasing a portion of its property in order

to construct a Sam’s Club. Southern Amusement was amenable to the proposition,

however, it requested that the deal be structured as an act of exchange for tax

purposes. As part of the exchange, Wal-Mart agreed to purchase a tract of land from

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the McIvers and Elams and transfer it, along with a sum of money, to Southern

Amusement, in exchange for the property fronting Broad Street. Wal-Mart purchased

the property, located just north of “The Hamlet” Subdivision, from the McIvers and

Elams, on April 26, 1988. The Cash Deed contained the following language:

[C]ontaining 8.00 acres more or less, together with a servitude and/or
road right-of-way 50 feet wide running from the Southeast corner of this
property along the West right-of-way line of I-210 By Pass, 440 feet
more or less to the North line of Avenue “J”. Sellers agree to pay the
cost of paving suitable for dedication of that portion of the servitude
affecting Lot 1 of Block 2 and Lot 1 of Block 3 of Hamlet Subdivision.
Sellers convey to purchaser the joint use of the servitude sellers reserved
in that sale recorded in COB 1416, page 488, corrected in COB 1648,
page 596.

The Act of Exchange was executed by Wal-Mart and Southern Amusement on April

25 and 27, 1988, wherein Southern Amusement became the owner of the afore

described eight acres.

In 1997, Southern Amusement became interested in developing its

property and wished to gain access to the southern portion through the servitudes

contained in the above described conveyances. In furtherance of this desire, George

Crosby, the vice-president and secretary of Southern Amusement, contacted Richard

Perioux about executing a document formalizing all of the servitudes listed in the

conveyances. Although Perioux agreed to discuss the matter with Crosby, he refused

to sign the document, on the advice of his attorney, based upon a belief that the

servitude across the easternmost portion of his property had prescribed after ten years

of nonuse.

On July 1, 1998, Southern Amusement filed a Petition for Declaratory

Judgment seeking a declaration that a servitude granted by the Periouxs, and later

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Pat’s, in favor of the Elams and McIvers, and later Southern Amusement, still exists

and has not prescribed through nonuse. In response, Pat’s filed a peremptory

exception of prescription arguing that the predial servitude had prescribed through

nonuse of ten years. Following a hearing, Judge Gregory Lyons sustained Pat’s

exception of liberative prescription and dismissed Southern Amusement’s petition for

declaratory judgment with prejudice. Judgment was rendered in this matter on May

10, 1999.

On May 24, 1999, Southern Amusement filed a motion for a new trial

alleging evidence of the public servitude granted in favor of Lake Charles by the

Elams and McIvers and the Board of Trustees and McNeese in their 1977 Cash Deed

and the 1981 correction. It argued that the newly discovered servitude established a

formal dedication of the property and transferred ownership of the property to Lake

Charles. Thus, it argued that the servitude could not be lost through nonuse. In the

alternative, it argued that an implied dedication was created and that use of the road

had occurred, as found by the trial court.

On April 24, 2000, Lake Charles intervened in this matter seeking a

declaratory judgment that it owned the property over which the public servitude was

dedicated, via the 1977 Cash Deed and the 1981 Act of Correction of Deed, or, in the

alternative, that the dedication established a servitude of public use, which had not

prescribed. Following a hearing on the motion, Judge D. Kent Savoie, sitting for the

then retired Judge Lyons, denied Southern Amusement’s motion for a new trial and,

further, denied Lake Charles’ petition in intervention. This appeal by Southern

Amusement followed.

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ISSUES

On appeal, Southern Amusement raises numerous errors allegedly

committed by the trial court. It argues that the trial court erred in finding that both the

private and public servitudes had prescribed through nonuse and that the construction

of a fence by Pat’s did not suspend the running of prescription. It further argues that

the trial court committed legal error in finding that the sole purpose of the servitudes

was for the construction of a road from Siebarth Drive to Broad Street, in relying on

parol evidence to reach that conclusion, and by not applying the public records

doctrine to defeat an alleged oral agreement between the Elams and McIvers and the

Periouxs. Southern Amusement next argues that the trial court erred in denying its

motion of a new trial, without considering its good grounds, and in finding that the

1977 Cash Deed did not formally dedicate full ownership of the subject strip of land,

or, in the alternative, that it did not formally dedicate a public servitude. Finally, it

argues that the trial court erred in finding that the public servitude had prescribed

through nonuse, even though it found that the servitude had been used, but not for the

supposed purpose of traveling from Siebarth Drive to Broad Street.

MOTION FOR NEW TRIAL

The Louisiana Code of Civil Procedure provides two instances under

which a motion for new trial will be granted. Louisiana Code of Civil Procedure

Article 1972 provides peremptory grounds under which such a motion will be

granted:

1. When the verdict or judgment appears clearly contrary to
the law and the evidence.

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2. When the party has discovered, since the trial, evidence
important to the cause, which he could not, with due
diligence, have obtained before or during the trial.

3. When the jury was bribed or has behaved improperly so
that impartial justice has not been done.

Louisiana Code of Civil Procedure Article 1973 further provides that a motion for

new trial may also be granted “if there is good ground therefore, except as otherwise

provided by law.” In both instances, the trial court is accorded vast discretion in

deciding whether to grant the motion; its decision whether to do so is reviewed

pursuant to the abuse of discretion standard of review. Davis v. Coregis Ins. Co., 00-

475 (La.App. 3 Cir. 12/27/00), 789 So.2d 7, writ denied, 01-0292 (La. 3/30/01), 788

So.2d 1192.

Southern Amusement based its motion for new trial on two grounds: 1)

its late discovery of the public servitude contained in the 1977 Cash Deed, as

acknowledged in the 1981 Act of Correction of Deed, and 2) for other good grounds.

The trial court denied Southern Amusement’s first ground since its counsel admitted

that he could have discovered the existence of the public servitude prior to the hearing

on the exception had he performed a title search on the property. Southern

Amusement does not appeal this finding. Rather, it argues that the trial court failed

to rule on its argument that the motion for new trial should have been granted for

other good grounds raised by it. After reviewing the record, we find that a private

servitude was never created in favor of the McIvers and Elams, and later Southern

Amusement. Accordingly, we affirm the trial court’s denial of Southern

Amusement’s motion for new trial with regard to the existence of a private servitude

in its favor. However, we do find that a servitude of public use was created through

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a formal dedication in favor of Lake Charles.

Private Servitude

Louisiana Civil Code Article 646 provides that a “predial servitude is a

charge on a servient estate for the benefit of a dominant estate. The two estates must

belong to different owners.” Louisiana Civil Code Article 647 further provides that

there must be a benefit to the dominant estate. Predial servitudes may be established

by title, and if so, their use and extent are regulated by the title creating them.

La.Civ.Code art. 697. They may also be established in any way in which immovables

may be transferred. La.Civ.Code art. 722. In interpreting predial servitudes, “Doubt

as to the existence, extent, or manner of exercise of a predial servitude shall be

resolved in favor of the servient estate.” La.Civ.Code art. 730.

When a predial servitude is created by title, the intention of the
parties to place a charge on one estate for the benefit of another estate,
and the extent of the charge, must be expressed on the face of the title
document and cannot be inferred or implied from vague or ambiguous
language. The title document must also reasonably identify the
dominant estate and the servient estate.

Mardis v. Brantly, 30,773, pp. 2-3 (La.App. 2 Cir. 8/25/98), 717 So.2d 702, 704, writ

denied, 98-2488 (La. 11/20/98), 729 So.2d 563 (citations omitted); see also Dautreuil

v. Degeyter, 436 So.2d 614 (La.App. 3 Cir. 1983). Moreover, in Palomeque v.

Prudhomme, 95-0725, p. 7 (La. 11/27/95), 664 So.2d 88, 93, the supreme court stated:

Predial servitudes are in derogation of public policy because they
form restraints on the free disposal and use of property. Therefore,
servitudes are not entitled to be viewed with favor by the law and can
never be sustained by implication. Buras Ice Factory Inc. v. Dept. of
Hwys. of La., 235 La. 158, 103 So.2d 74, 80 (1958); Gravolet v. Bd. of
Commissioners, 598 So.2d 1231, 1234 (La.App. 4th Cir.1992); see also,
1 DOMAT, THE CIVIL LAW IN ITS NATURAL ORDER, tit. XII, sec.
1, at 435 (Strahan, trans., Cushing ed., 2d ed. 1861). Any doubt as to the
existence, extent or manner of exercise of a predial servitude must be

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resolved in favor of the servient estate. La.Civ.Code art. 730; McGuffy
v. Weil, 240 La. 758, 125 So.2d 154, 158 (1960).

The alleged private servitude stems from the 1981 conveyance from the

Elams and McIvers to the Periouxs. Contained in the property description of the tract

is the language:

Thence North 89E 57’ 30” West 388.25 feet along the South line of Lots
1, 2, and 3 of Block 3 of “The Hamlet” Subdivision to the point of
commencement, containing 97,219 square feet of area and subject to a
50 foot wide easement for a proposed road along the East side and a
drainage easement along the South side.

The language purporting to establish the private servitude is “subject to a 50 foot

wide easement for a proposed road along the East side.” However, after reviewing

all of the documents submitted into evidence, consisting of all conveyances

commencing in 1977 and ending with Wal-Mart’s exchange with Southern

Amusement in 1988, we find that this language did not establish a predial servitude

of right of passage. The language fails to reasonably identify a dominant estate nor

does it indicate the intent of the parties to place a charge on the servient estate in

favor of a dominant estate. Rather, we find that the language merely acknowledges

the previous dedication to Lake Charles, of the fifty-foot right-of-way contained in

and confirmed in the 1977 Cash Deed and the 1981 Act of Correction of Deed,

respectively. Since we find ambiguity in the attempted establishment of a predial

servitude, this issue must be resolved in favor of Pat’s. Accordingly, the trial court’s

denial of Southern Amusement’s motion for a new trial on the issue of a private

servitude is affirmed.

Public Servitude

On the other hand, we find that the trial court abused its discretion in

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denying Southern Amusement’s motion for new trial based on a finding that the

servitude created in the 1977 Cash Deed and 1981 Correction of Cash Deed was an

informal servitude requiring proof of intent to dedicate and acceptance by the public.

A review of the jurisprudence indicates that there are four ways in which

public servitudes may be created. In St. Charles Parish School Board v. P & L

Investment Corp., 95-2571, pp. 4-7 (La. 5/21/96), 674 So.2d 218, 221-22, the supreme

court stated:

Louisiana has never enacted a comprehensive scheme of
dedication to public use. Garrett v. Pioneer Production Corporation,
390 So.2d 851, 854 (La.1980). However, Louisiana courts have
recognized four modes of dedication: formal, statutory, implied, and
tacit. A landowner may make a formal dedication of a road by virtue of
a written act, such as a deed of conveyance to the police jury of the
parish. Frierson v. Police Jury of Caddo Parish, 160 La. 957, 107 So.
709 (1926). The written act may be in notarial form or under private
signature. YIANNOPOULOS, PROPERTY § 95, at 204-205. A formal
dedication transfers ownership of the property to the public unless it is
expressly or impliedly retained. YIANNOPOULOS, PROPERTY § 95,
at 208-209. If the landowner retains ownership of the property, the
public acquires a servitude of public use.

Statutory dedication occurs when a landowner subdivides real
estate in accordance with the requirements of La.R.S. 33:5051. In order
to effect a statutory dedication, complete and detailed compliance with
the statute is not required; substantial compliance will suffice. Garrett,
390 So.2d at 856. La.R.S. 33:5051 provides for the subdivision of real
estate into squares or lots with named streets and for the dedication to
public use of all streets, alleys, and public squares on the map. A
statutory dedication vests ownership in the public unless the subdivider
reserves ownership of streets and public places and grants the public
only a servitude of use. Arkansas-Louisiana Gas Co. v. Parker Oil Co.
Inc., 190 La. 957, 183 So. 229, 238 (1938) (on rehearing).

Implied dedication is a common law doctrine recognized by the
courts of this state. Ford v. City of Shreveport, 204 La. 618, 16 So.2d
127, 128 (1943). A dedication by implication consists of the assent of
the owner, use by the public, and maintenance by the municipality.
Wyatt v. Hagler, 238 La. 234, 114 So.2d 876, 878 (1959). Because
implied dedication lacks the formalities and safeguards of formal or

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statutory dedication, courts have required “a plain and positive intention
to give and one equally plain to accept.” Carrollton Rail Road Co. v.
Municipality No. Two, 19 La. 62, 71 (1841). Courts have also found an
implied dedication when the owner of a tract of land subdivides it into
lots, designates streets or roads on a map, and then sells the property or
any portion of it with reference to the map. James v. Delery, 211 La.
306, 29 So.2d 858, 859 (1947). An implied dedication establishes a
servitude of public use. Arkansas-Louisiana Gas Co. Inc., 183 So. at
240; Becnel v. Citrus Lands of Louisiana, Inc., 429 So.2d 459 (La.App.
4th Cir.), writ denied, 437 So.2d 1147 (La.1983). See, Missouri Pacific
Railroad Co. v. City of New Orleans, 46 F.3d 487 (5th Cir.1995).

A tacit dedication of a strip of land for use as a
public road occurs when the requirements of La.R.S.
48:491 are met. La.R.S. 48:491 provides, in pertinent part,

B. (1)(a) 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.

If a road is maintained for a period of three years by authority of
the parish governing authority, the public acquires a servitude of passage
by tacit dedication. Robinson v. Beauregard Parish Police Jury, 351
So.2d 113, 115 (La.1977). Token maintenance or an occasional
brushing up of a road is insufficient to establish a tacit dedication for
public use. Robinson, 351 So.2d at 115.

Judge Savoie held that the servitude contained in the 1977 Cash Deed

was created by an informal dedication, presumably an implied dedication. He further

found that the implied dedication by the parties created a servitude of public use,

which was never formally accepted by Lake Charles and was lost through prescription

of ten years of nonuse. However, we find that the dedication created was a formal

dedication, rather than an implied dedication, thus, formal acceptance was not

required.

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With regard to formal dedications, Professor Yiannopoulos stated:

In a strict sense, a formal dedication is a donation of a thing or of
its use to the public for designated public purposes. As a donation, a
formal dedication ought to conform with the requirements of substance
and form governing gratuitous dispositions. For example, the act of
dedication ought to be made in authentic form and it ought to be
accepted by the public. Examples of this form of dedication are found
in Louisiana jurisprudence.

However, strict compliance with the requirements governing
donations would be cumbersome. It would discourage or even defeat
dedication in may cases. For these reasons Louisiana courts have taken
a much broader view of formal dedication that has no foundation in
legislative texts. According to the jurisprudence, a formal dedication
is a donation to the public that may be made by a written juridical act.
Accordingly, neither authentic form nor acceptance of the donation by
the public is required. There must be, however, a clear intent to
dedicate.

A.N. YIANNOPOULOS, PROPERTY § 97, at 211-12 (2 Louisiana Civil Law Treatise

2001) (footnotes omitted) (emphasis added).

Here, the servitude is contained in a written juridical act, the 1977 Cash

Deed, and confirmed in a notarial act, the 1981 Act of Correction of Deed. These acts

clearly reveal an intent to dedicate the road right-of-ways, including the fifty-foot

right-of-way, to Lake Charles. Although we agree with the trial court’s finding that

the parties intended to retain ownership of the underlying property, a formal servitude

of public use still exists, for which acceptance was not required.

Accordingly, we find that the trial court abused its discretion in finding

that the servitude at issue was an implied dedication which required acceptance by

Lake Charles. However, we shall not remand this matter for a new trial since the

record is complete on this issue. We shall conduct a de novo review and render

judgment on whether the public servitude in favor of Lake Charles has prescribed.

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Graves v. Lou Ana Foods Inc., 604 So.2d 150 (La.App. 3 Cir. 1992).

PUBLIC SERVITUDE

Initially, we must determine whether there was a formal dedication of a

servitude of public use or a transfer of title to the property. Upon review, we find that

the 1977 Cash Sale Deed established a servitude of public use in favor of Lake

Charles, via a fifty-foot right-of-way along the eastern edge of the property conveyed.

As noted by Professor Yiannopoulos, there must be a clear intent to dedicate and, to

that end, there must be a clear dedication of title to the dedicated property in order to

transfer ownership. A right of way is defined in Blacks Law Dictionary, 1326 (6th

Ed.1990), as a “[t]erm used to describe a right belonging to a party to pass over land

of another.” Further, “As used with reference to right to pass over another’s land, it

is only an easement; and grantee acquires only right to a reasonable and ususal

enjoyment thereof with owner of soil retaining rights and benefits of ownership

consistent with the easement.” Id. Accordingly, we find that the dedication contained

in the 1977 Cash Sale Deed was the dedication of a servitude of public use over the

property rather than a formal dedication transferring ownership of the underlying

property.

We are cognizant of our learned colleague’s concerns in her dissent but,

in our opinion, it is clear that only the right-of-way was dedicated. Had the words

“right-of-way” not been used, then we might have viewed this matter differently.

A servitude of public use created by formal dedication may be terminated

in several manners: by formal revocation, evidence of intent to abandon, relocation

of the road, and through ten years prescription of non-use. State, Dep’t of Transp.

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and Dev. v. Scramuzza, 96-1796, 96-1820 (La. 4/8/97), 692 So.2d 1024; Robinson v.

Beauregard Parish Police Jury, 351 So.2d 113 (La.1977).

In this instance, the right-of-way has not been developed and there has

been no formal revocation by Lake Charles to revoke the dedication. Thus, we must

determine whether the dedication has been lost through prescription of ten years of

nonuse. La.Civ.Code art. 753.

Prescription of nonuse begins to run for an affirmative servitude from
the date of last use. La. C.C. art. 754. An essential element of proof in
an action involving prescription of nonuse for ten years under La.C.C.
Art. 753 is that the servitude was in fact not used for any purpose
consistent with its grant. See, Ashland Oil Company, Inc. v. Palo Alto,
Inc., 615 So.2d 971, 973-974 (La.App. 1st Cir.1993), and cases cited
therein. Prescription of nonuse is subject to the general rules regarding
suspension and interruption of prescription.

Palgrave v. Gros, 02-249, p. 4 (La.App. 5 Cir. 9/30/02) 829 So.2d 579, 582. The

burden of proof is on the owner of the dominant estate to prove that the servitude has

been used. Tilley v. Lowery, 511 So.2d 1245 (La.App. 2 Cir. 1987). Since this is a

servitude of public use, the burden is on Southern Amusement to prove use.

Moreover, if the servitude has never been used, then the prescriptive period

commences to run from the date the servitude was established and its exercise is

possible. A.N. YIANNOPOULOS, PREDIAL SERVITUDES § 164 (4 Louisiana Civil Law

Treatise 1997).

Crosby testified that he inspected the property Southern Amusement

acquired from Wal-Mart on numerous occasions, prior to and subsequent to the 1988

exchange. He stated that he accessed the property on more than one occasion through

Pat’s parking lot, by driving to the eastern boundary of Pat’s parking lot and then onto

the right-of-way, which was a grassy area, and then north towards Southern

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Amusement’s property. He also accessed it from the opposite direction. Crosby

stated that he utilized the servitude after the exchange while having dirt hauled onto

the property during the summer of 1988. He further testified that he traversed the

servitude in 1992, when he visited the property in order to have it appraised.

Sometime there after, he stated that a fence was erected across the servitude by Pat’s.

The parties further stipulated that Roxenne Stodder would have testified

that she accompanied Crosby to the property on more than one occasion in connection

with the dirt work performed therein. However, she could not recall whether she

traversed the servitude with Crosby. In support, Southern Amusement introduced

into evidence checks it remitted to Stodder in 1988, for monitoring the dirt work. The

parties further stipulated that Mack Love would testify that he and his father utilized

the servitude in order to appraise Southern Amusement’s property in 1992.

Allen Singletary, a real estate developer, testified that he accompanied

Crosby numerous times to inspect Southern Amusement’s property prior to and

subsequent to the 1988 exchange. He further stated that he traveled over the

servitude on foot in order to inspect the ditch located at the southeastern corner of

Pat’s property.

Robert Elam testified that he and his wife, along with the McIvers,

conveyed the property owned by Pat’s to the Periouxs, and that he was very familiar

with the area. He stated that he managed The Hamlet Subdivision until

approximately 1991, but he could not recall anyone using the fifty-foot right-of-way

during the time he was there. Although he could not state with assurance that the

servitude was never used, he stated that it would almost be impossible due to

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obstructions located just north of Pat’s, within the fifty-foot public right-of-way.

Elam did, however, recall that Southern Amusement trucked in dirt to its property in

1988.

James Knapp, a registered land surveyor, testified that he surveyed the

property at the request of Pat’s attorney in 1999. He stated that he located the fifty-

foot right of way along the eastern boundary of Pat’s property, as well as along the

eastern edge of The Hamlet Subdivision. He testified that there is no obstruction

along the fifty-foot right-of-way located on Pat’s property. However, he did state that

there are obstructions located just north of the fifty foot right-of-way on Pat’s

property, which either encroach into or are located within the fifty foot right-of-way

located adjacent to and just north of the right-of-way on Pat’s property. These

include the side of a residence, two concrete foundations, and three clothes line poles.

Richard Perioux testified he was aware of the fifty-foot right-of-way at

the time he purchased the property. When they built Pat’s, he stated that he paved the

parking lot of the restaurant up to, but not including, the right-of-way. Perioux

testified that he normally works eighty hours per week at Pat’s, including maintaining

the outside of the property. He testified that he only saw Crosby drive across the

right-of-way once, a few months prior to the March 1998 trial. Prior to that, he stated

that he had never seen anyone drive across it. However, he admitted that there were

substantial time periods during the evenings, on Mondays, and on holidays, when he

was not present at the restaurant. Thus, he could not positively state that Crosby had

never driven on the right-of-way prior during those times. He further testified that

he constructed a fence across the entire northern and western boundary of Pat’s

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property, ion 1994, including the fifty-foot right-of-way.

The parties further stipulated that Nancy Perioux, Perioux’s wife, would

testify that she had no personal knowledge of anyone using the servitude area as a

road.

After reviewing the evidence, we find that Southern Amusement has

failed to prove that the servitude of public use, the fifty-foot right-of-way, has not

prescribed through ten years of nonuse. Although Crosby testified that he drove over

the servitude numerous times in 1988, the public servitude was intended for a road

right-of-way. “A member of the public has the right to use things that are subject to

public use in accordance with their nature or destination.” YIANNOPOULOS,

PROPERTY § 91, at 201; see Worthen v. DeLong, 99-1149 (La.App. 1 Cir. 6/23/00),

763 So.2d 820. However, any doubt as to the manner of exercise of the servitude is

resolved in favor of the servient estate. Here, although the public servitude was

traversed several times by Crosby, and on other occasions by Singletary and Love,

it was never developed as a road. Since the parties intended that the servitude be used

as a public road, which was never developed, we find that the public servitude

established in favor of Lake Charles, in 1977, and confirmed in 1981, has prescribed

through ten years prescription of nonuse. Accordingly, judgment is rendered in favor

of Pat’s of Henderson Seafood and Steaks, Inc. finding that the servitude of public

use across the eastern most portion of its property has prescribed through nonuse.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment denying

Southern Amusement’s motion for new trial on the issue of a private servitude. We

16

reverse the judgment on the issue of a public servitude and we now order, adjudge,

and decree that there be judgment in favor of the defendant-appellee, Pat’s of

Henderson Seafood and Steaks, Inc., finding that a servitude of public use located on

its property has prescribed through ten years of nonuse. The costs of this appeal are

assessed to the plaintiff-appellant, Southern Amusement Company, Inc.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

17

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

03-767

THE SOUTHERN AMUSEMENT CO., INC.

VERSUS

PAT’S OF HENDERSON SEAFOOD & STEAK, INC.

COOKS, J., dissents.

This controversy stems from language in a Cash Deed dated September 30,

1977 in favor of the City of Lake Charles for the construction of a road:

As a part of the consideration for this sale, Vendor and
Vendee hereby dedicate to the City of Lake Charles, all road rights-
of-way shown on the attached plat of survey dated June 7, 1977,
Whitaker & Webb, Civil Engineers, for Jacox Lane, Von Blond Drive,
and over the North 30 feet and the Easterly 50 feet of the property.
(Emphasis added.)

The majority finds this deed does not evidence an intent to dedicate to the

public even though the words used in the document are unambiguous and subject to

only one interpretation. The majority finds the Cash Deed only creates a servitude

in favor of the public which can extinguished by ten years non-use. I respectfully

disagree with the majority’s characterization of the language in the deed. The 1977

Cash Deed clearly provides the Vendor and Vendee “hereby dedicate to the City of

Lake Charles” 50 feet for the construction of a road. A plat of survey was attached

to the Cash Sale and recorded in the Conveyance Records. The City was not required

to accept the dedication and ownership transferred to the City at that point.

Additionally, the majority opinion does not address the Petition of Intervention

by the City of Lake Charles. The City intervened in the suit asserting its ownership

of the property based on the 1977 Cash Deed. The City’s petition contends: “When

1

property has been formally dedicated, it vests title in the dedicated land to the public

rather than merely a servitude. It cannot be lost by prescription of non-use, only an

express revocation, so actual use of the road by the City or the public is immaterial.”

This is a correct statement of the law. Professor Yiannopoulos, cited in the majority

opinion, provides:

A landowner may make a formal dedication of a road by virtue of a
written act, such as a deed of conveyance to the police jury of the parish.
Frierson v. Police Jury of Caddo Parish, 160 La. 957, 107 So. 709
(1926). The written act may be in notarial form or under private
signature. YIANNOPOULOS, PROPERTY § 95, at 204-205. A formal
dedication transfers ownership of the property to the public unless it is
expressly or impliedly retained. YIANNOPOULOS, PROPERTY § 95,
at 208-209. If the landowner retains ownership of the property, the
public acquires a servitude of public use.

Additionally, as Professor Yiannopoulos points out a formal acceptance by the

public is not required:

According to the jurisprudence, a formal dedication is a donation to the
public that may be made by a written juridical act. Accordingly, neither
authentic form nor acceptance of the donation by the public is required.
There must be, however, a clear intent to dedicate. YIANNOPOULOS,
PROPERTY § 97, at 211-12.

Louisiana jurisprudence has recognized four modes of dedication: formal,

statutory, implied, and tacit. Formal and statutory dedication conveys ownership

while implied or tacit conveys only a servitude. Statutory dedication occurs when a

landowner subdivides real estate in accordance with the requirements of La.R.S.

33:5051. In the case of a formal dedication, contained in a conveyance deed, as in

the present case, acceptance by the public is not necessary. If the deed evidences a

clear intent to dedicate, ownership is conveyed. Schmit v. St. Bernard Parish Police

Jury, 504 So. 2d 619 (La.App. 4 Cir. 1987).

As stated in Anderson v. Police Jury of the Parish of East Feliciana, 452 So.

2d 730 (La.App. 1 Cir. 1984):

2

After extensive review of the jurisprudence and legal commentary
on the subject [See, in particular, Comment, The Third Dimension of
Dedication in Louisiana, 30 La.L.Rev. 583 (1970)] we find that there
are properly three distinct categories of dedication:

(1) statutory, which is accomplished when La.R.S. 33:5051 is
substantially complied with. It conveys ownership to the public.
Parker, 183 So. At 240.

(2) formal non-statutory, which is created whenever there exists
some formal, express act by the owner which clearly shows an intent to
dedicate. We hold that, absent a clear expression to the contrary, this
dedication also conveys ownership and applies to the situation in which
La.R.S. 33:5051 is not substantially complied with. See Banta, 200
So.2d at 112-3; cf. Parker, 183 So. At 240.

(3) informal, which would include those forms of dedication in
which the law deems it necessary to infer an intent to dedicate from the
owner’s actions. This creates only a servitude and acceptance by the
public is necessary. [FN2]

FN2. We note that in A. Yiannopoulos, Property Secs. 61-
66 in 2 Louisiana Civil Law Treatise 186-201 (2nd ed.
1980), Professor Yiannopoulos divides informal dedication
into two separate categories - - tacit dedication and implied
dedication - - resulting in four classifications, instead of
three.

Clearly, the dedication involved in this case falls into the
second category. It is unnecessary for us, however, to classify the
dedication as being one which transfers ownership or only a
servitude since for our purposes it is necessary only to determine
that the dedication is a formal dedication for us to establish the
proper procedural framework. (Emphasis added.)

The language in the 1977 Cash Deed clearly evidences a formal dedication to

the public. The language provides: “ As a part of the consideration for this sale,

Vendor and Vendee hereby dedicate. . .” The use of the word “dedicate” is all that is

required for us to find a formal dedication occurred and for ownership to transfer to

the public. We need not infer an intent or examine whether the actions of the owner

evidenced an intent to relinquish control or whether the property was used for a road.

The law is clear, once a dedication is made to the public, unless the owner expressly

3

reserves ownership, title passes to the public. See also, St. Charles Parish School Bd.

v. P & L Inv. Corp., 95-2571 (La. 5/21/96), 674 So.2d 218. The majority opinion will

create havoc with long established principles of property law.

4