Tom Clement v. City of Lake Charles

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-703

TOM CLEMENT

VERSUS

CITY OF LAKE CHARLES, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2008-5293
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Billy
Howard Ezell, Judges.

Amy, J., concurs.

REVERSED AND RENDERED.

Maurice L. Tynes
4839 Ihles Rd
Lake Charles, LA 70605
Telephone: (337) 479-1173
COUNSEL FOR:
Plaintiff/Appellant - Tom Clement

John Richard Pohorelsky
Scofield, Gerard, Singletary & Pohorelsky
P. O. Drawer 3028
Lake Charles, LA 70602-3028
Telephone: (337) 433-9436
COUNSEL FOR:
Defendant/Appellee - Turnberry Row Homeowner’s Association

Christopher E. John
City of Lake Charles Legal Department
P. O. Box 900
Lake Charles, LA 70602-0900
Telephone: (337) 491-1547
COUNSEL FOR:
Defendant/Appellee - City of Lake Charles

Billy Edward Loftin Jr.
113 Dr. Michael DeBakey Drive
Lake Charles, LA 70601
Telephone: (337) 310-4300
COUNSEL FOR:
Defendant/Appellee - City of Lake Charles

THIBODEAUX, Chief Judge.

Appellant, Tom Clement, asserts that the trial court erred by granting a

summary judgment in favor of Turnberry Row Homeowner’s Association

(“Association”) declaring Association the owner of Muirfield Drive in Lake Charles.

The City of Lake Charles did not take a position in this case. We reverse because we

find that the developer did not specifically reserve ownership of Muirfield Drive

when it statutorily dedicated the right-of-way.

I.

ISSUE

We shall consider whether the ownership of Muirfield Drive was

transferred to the City of Lake Charles where the developer of the subdivision

dedicated the “right-of-way of streets” to the perpetual use of the public pursuant to

La.R.S. 33:5051 but did not expressly reserve ownership.

II.

FACTS

Sometime in 1997, the developer of Turnberry Row Subdivision filed a

plat for the subdivision in the Calcasieu Parish Public Records. The plat depicts

various streets of the subdivision, including what is now Muirfield Drive. The plat

contains the following dedicatory language:

Dedication:

The right-of-way of streets shown hereon, if not previously
dedicated, is hereby dedicated to the perpetual use of the
public. Areas shown as servitudes for the use of utilities or
drainage are granted for the general use of the public. No
building, structure, or fence shall be constructed, nor
shrubbery planted within the limits of any servitude so as
to prevent or unreasonably interfere with any purpose for
which the servitude was granted. The cart and fence

easements are not dedicated to the general use of the public.

To the south of Muirfield Drive, Clement owns a large lot that is not a

part of Turnberry Row Subdivision. Although the dedicated right-of-way is fifty feet

wide, Muirfield Drive is only twenty-five feet wide and occupies the central portion

of the dedicated right-of-way. The developer erected a fence on the southern border

of the right-of-way. This fence blocks Clement’s access to Muirfield Drive.

Clement petitioned for a declaratory judgment on the issue of the right-

of-way’s ownership. Because the above-stated material facts are not in dispute and

because the resolution of this case depends on the meaning of the dedicatory words,

Association filed a motion for summary judgment. The trial court granted the motion

declaring Association the owner of the right-of-way. Relying on this court’s

pronouncements in Southern Amusement Co., Inc. v. Pat’s of Henderson Seafood &

Steak, Inc., 03-767 (La.App. 3 Cir. 3/31/04), 871 So.2d 630, the trial court reasoned

that the phrase “right-of-way” used in the dedication conveyed to the City of Lake

Charles a servitude and not ownership of the right-of-way. Clement appealed.

III.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo. Guilbeaux v.

Times of Acadiana, Inc., 96-360 (La.App. 3 Cir. 3/26/97), 693 So.2d 1183, writ

denied, 97-1840 (La. 10/17/97), 701 So.2d 1327.

IV.

LAW AND DISCUSSION

There are four ways of dedication to public use: formal; statutory;

implied; and, tacit. S. Amusement, 871 So.2d 630. The latter two ways are

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inapplicable in this case. Thus, we shall focus only on the first two, i.e., formal and

statutory.

When one uses either formal or statutory modes of dedication, one may

pass ownership of the property in question. Id. A landowner may formally dedicate

a road by a written act, either notarial or under private signature, such as a deed of

conveyance to the police jury of the parish. Id. (citing Frierson v. Police Jury of

Caddo Parish, 107 So. 709 (La.1926); YIANNOPOULOS, PROPERTY § 95). “A formal

dedication transfers ownership of the property to the public unless it is expressly or

impliedly retained.” Id. at 635 (citing YIANNOPOULOS, PROPERTY § 95).

When a landowner divides real estate according to La.R.S. 33:5051, he

must make a formal dedication to public use “of all the streets, alleys, and public

squares or plats” of the subdivision. La.R.S. 33:5051.1 If the landowner substantially

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The following is the complete language of the statute:

§ 5051. Platting land into squares or lots before sale; filing map of land; limitations on
dedications

A. Whenever the owner of any real estate desires to lay off the same into squares or
lots with streets or alleys between the squares or lots and with the intention of selling or
offering for sale any of the squares or lots, he shall, before selling any square or lot or any
portion of same:

(1) Cause the real estate to be surveyed and platted or subdivided by a licensed land
surveyor into lots or blocks, or both, each designated by number.

(2) Set monuments at all of the corners of every lot and block thereof.

(3) Write the lot designation on the plat or map, and cause it to be made and filed in
the office of the keeper of notarial records of the parish wherein the property is situated and
copied into the conveyance record book of such parish, and a duplicate thereof filed with the
assessor of the parish, a correct map of the real estate so divided.

B. The map referenced in Subsection A of this Section shall contain the following:

(1) The section, township, and range in which such real estate or subdivision thereof
lies according to government survey.

(2) The dimensions of each square in feet, feet and inches, or meters.

(3) The designation of each lot or subdivision of a square and its dimensions in feet,
feet and inches, or meters.

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complies with the requirements of La.R.S. 33:5051, a statutory dedication occurs. S.

Amusement, 871 So.2d 630 (citing Garrett v. Pioneer Prod. Corp., 390 So.2d 851

(La.1980)). There is no dispute in this case that a statutory dedication occurred. The

only question is whether the developer dedicated ownership or a servitude of

Muirfield Drive.

As the court pointed out in Garrett, La.R.S. 33:5051 “only speaks of

dedication ‘to public use.’ It does not explain or define the nature of the right

acquired by the public through dedication.” 390 So.2d at 854. The supreme court

then meticulously examined the history and jurisprudence on dedication to public use,

including Roman, French, Spanish law, and our Civil Code. Id. The court noted that

the Civil Code made a distinction between two different types of roads, highways and

public roads. Id. The public owned the highways while it had only a servitude over

the public roads. Id. The supreme court then mentioned that early jurisprudence

classified rural roads as public roads, but ruled that ownership of urban streets, public

(4) The name of each street and alley and its length and width in feet, feet and inches,
or meters.

(5) The name or number of each square or plat dedicated to public use.

(6) A certificate of the parish surveyor or any other licensed land surveyor of this
state approving said map and stating that the same is in accordance with the provisions of
this Section and with the laws and ordinances of the parish in which the property is situated.

(7) A formal dedication made by the owner or owners of the property or their duly
authorized agent of all the streets, alleys, and public squares or plats shown on the map to
public use.

C. Formal dedication of property as a road, street, alley, or cul-de-sac shall impose
no responsibility on the political subdivision in which the property is located until:

(1) The dedication is formally and specifically accepted by the political subdivision
through a written certification that the road, street, alley, or cul-de-sac is in compliance with
all standards applicable to construction set forth in ordinances, regulations, and policies of
the political subdivision, which certification may be made directly on the map which contains
the dedication; or

(2) The road, street, alley, or cul-de-sac is maintained by the political subdivision.

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squares, and quays belonged to the public. Id. The court concluded that even prior

to the existence of the statute on dedication, “there can be no doubt that the prevailing

view was that ownership of municipal streets would ordinarily vest in the public

body.” Garrett, 390 So.2d at 855 (emphasis added).

The public policy behind the transfer of ownership in the dedication was

the concern over

much harm [that] may result from the retention in remote
dedicators of the fee in narrow strips of land, valueless for
many years, because of their public or quasi-public use
which, on the abandonment of such use, become valuable
for private purposes. Certainly such agreements are likely
to be productive of disputes and litigation.

Id. (quoting Richard v. City of New Orleans, 197 So. 594, 603-604 (La.1940)).

The supreme court concluded that the legislative intent advanced by

what now is La.R.S. 33:5051 was “to retain the jurisprudential rule that dedication of

municipal streets vested ownership in the public.” Id. Thus, “a statutory dedication

vests full ownership in the municipality, parish, or State of Louisiana, depending

upon where the street or road is located.” Id. (citations omitted). This is why in

statutory dedication the public acquires title to the property “unless the subdivider

expressly reserves ownership of streets and grants the public only a servitude of use.”

Stonegate Homeowners Civic Ass’n v. City of Baton Rouge/Parish of E. Baton Rouge,

01-2883, p. 4 (La.App. 1 Cir. 12/20/02), 836 So.2d 440, 443, writ denied, 03-786 (La.

5/9/03), 843 So.2d 407 (citing St. Charles Parish Sch. Bd. v. P & L Inv. Corp.,

95-2571 (La. 5/21/96), 674 So.2d 218, abrogated by Cenac v. Pub. Access Water

Rights Ass’n, 02-2660 (La. 6/27/03), 851 So.2d 1006; Ark.-La. Gas Co. v. Parker Oil

Co., 183 So. 229 (La.1938) (on reh’g)) (emphasis added). See also S. Amusement,

871 So.2d 630.

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Here, the trial court and Association relied heavily on this court’s

pronouncements in Southern Amusement, 871 So.2d 630. We find this reliance

misguided for the following reasons. Southern Amusement did not involve statutory,

i.e., La.R.S. 33:5051, dedication. There, a formal dedication was at issue. In

statutory dedication, substantial compliance with La.R.S. 33:5051 transfers ownership

of the land unless it was expressly retained. On the other hand, ownership to the

formally-dedicated land passes “unless it is expressly or impliedly retained.” S.

Amusement, 871 So.2d at 635 (emphasis added).

Statutory dedication and formal dedication are two different modes of

dedication. See YIANNOPOULOS, PROPERTY § 97 (4th ed. 2001). A landowner who

ordinarily sells his land may never formally dedicate anything to the public use. On

the other hand, a landowner who divides his property into lots with streets or alleys

between them and then sells the lots must, in addition to performing other duties,

dedicate to public use all the streets, alleys, and public squares or plats. La.R.S.

33:5051. Because in formal dedication the act of dedication is voluntary, there is a

greater need to guard against a landowner’s inadvertent mistakes. Thus, the

landowner may impliedly retain ownership of the dedicated land without any specific

reservation. S. Amusement, 871 So.2d 630; YIANNOPOULOS, PROPERTY § 97 (4th ed.

2001).

On the other hand, when the landowner dedicates his land under the

compulsion of La.R.S. 33:5051, there is a greater need for the public to acquire

ownership of the land for the reasons expressed previously in this opinion. Thus, if,

after considering all the legal implications of ownership, the owner indeed desires to

retain ownership of the dedicated land, he must not only grant a servitude to the

public, but also expressly reserve the ownership in the act of dedication.

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In this case, Association essentially agues that we should apply the rules

governing formal dedications to statutory dedications. It maintains that because the

language in the act of dedication contains the phrase “right-of-way,” there is an

express reservation of ownership.

Even if we accept, arguendo, that “right-of-way” means servitude,

Association’s argument fails. Grant of a servitude only impliedly reserves ownership.

Thus, if the owner dedicates a servitude of public use, one may infer that the owner

retained the title. This dedication of a servitude, as we held in Southern Amusement,

is enough to retain ownership when we are dealing with voluntary formal dedication.

Here, the dedication was under the compulsion of La.R.S. 33:5051. As

explained previously, to successfully retain title in statutory dedication it is not

enough to impliedly reserve ownership. As this and other courts have held, the

landowner must dedicate the servitude and expressly reserve ownership. Here, the

language in the dedication contains no reservation.

Moreover, the dedicatory language is ambiguous even as to whether a

servitude was dedicated. The resolution of this case does not require this court to

assess the continuing viability of our holding in Southern Amusement, 871 So.2d 630.

Nevertheless, to demonstrate the ambiguity of the phrase “right-of-way,” we note that

during oral arguments the attorney for Association and the attorney for the City of

Lake Charles stated, on at least one occasion, that the issue in the case is who owns

the “right-of-way.” Thus, even the common use of this phrase demonstrates that it

is synonymous with an area that is used or would be used for traffic and does not

necessarily mean “servitude.” We also note that “right-of-way” is defined as owned

land as well as servitude in the City of Lake Charles regulations and in various parish

ordinances throughout Louisiana.

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Furthermore, in this case, the author of the dedicatory language knew

how to grant a servitude of public use. Thus, the dedication states: “[a]reas shown

as servitudes for the use of utilities or drainage are granted for the general use of the

public.”2 The use of “the right-of-way of streets” instead of “the servitude of streets”

in the dedication suggests that something other than a servitude was meant when it

came to streets, particularly in light of the use of the term “servitude” in the very next

sentence of the dedication. Additionally, supporting the distinction just mentioned,

the right-of-way was “dedicated to the perpetual use of the public.” (Emphasis

added). On the other hand, consistent with the less-enduring nature of a servitude,

areas shown as servitudes were “granted for the general use of the public.”

(Emphasis added).

We caution one’s possible inference from this court’s opinion in

Southern Amusement that “right-of-way” is a term of art that signifies “servitude.”

The term of art that means servitude is “servitude.” In Southern Amusement, the cash

deed to the property in question contained the following dedicatory language:

[a]s 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.

871 So.2d at 631. Additionally, there were other transactions involving the property

that included reservations for the proposed road as follows:

[t]hence North 89 57' 30" ' [sic] 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

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While the dedication does not contain an express reservation of ownership of these areas,
they are not streets, alleys, and public squares or plats subject to the compulsory dedication of
La.R.S. 33:5051. Thus, the servitude of these areas is formally, not statutorily, dedicated to public
use. As previously mentioned, in formal dedication ownership need not be expressly reserved.
Thus, the ownership of these areas did not pass to the public even in the absence of an express
reservation.

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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.

Id. at 632.

Thus, in Southern Amusement there were additional circumstances,

distinct from the use of the phrase “right-of-way,” which supported the proposition

that only a servitude was dedicated. This court’s conclusion in Southern Amusement

that the phrase “right-of-way” conveyed only a servitude was reasonable considering

the ambiguity of the phrase, factual circumstances just described, that the landowner

may impliedly retain ownership, and the policy behind voluntary formal dedications.

On the other hand, there are no facts, apart from the use of “right-of-way,” in this case

which would suggest that only a servitude was dedicated. To the contrary, as

mentioned previously, the dedication’s author, unlike the one in Southern

Amusement, knew how to grant a servitude which suggests that something other than

a servitude was dedicated. Thus, the factual circumstances of this case are

distinguishable from the facts in Southern Amusement. Therefore, considering the

different mode of dedication involved in Southern Amusement and the significant

factual distinctions of this case, Association’s and the trial court’s reliance on

Southern Amusement was misplaced.

V.

CONCLUSION

Summary judgment in favor of Turnberry Row Homeowner’s

Association is reversed. Costs of this appeal are assessed to Turnberry Row

Homeowner’s Association.

REVERSED AND RENDERED.

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