Sharp Curves Ahead: Analyzing Dedications to Public Use in Louisiana after Webb v. Franks Investment Co.

• Author: Ben Jumonville
• Position: J.D./D.C.L., 2015, Paul M. Hebert Law Center, Louisiana State University.
• Pages: 905-932

Sharp Curves Ahead: Analyzing Dedications to Public Use in Louisiana after Webb v. Franks Investment Co. INTRODUCTION One hundred years ago, your ancestor-in-title granted to the parish government a narrow strip of land that bisected his property so that a public highway could be constructed. To this end, he executed a simple yet ambiguous document, which stated: “I hereby dedicate this land to the public use for a public road. This property is to be used for public road purposes only.” Years later, after acquiring the property from your ancestor-in-title, you decide to sell the land but retain the mineral rights. Mineral production has been continuous on the land since you retained the mineral rights but only on one side of the highway. After ten years, the surface owner of the land challenges your rights to the minerals on the dormant side of the highway, claiming that part of your mineral servitude has prescribed through non-use. He argues that your ancestor-in-title’s century-old document transferred ownership of the narrow strip of land to the government, creating two separate estates and therefore two separate servitudes separated by the highway. 1 As such, the mineral operations on one side of the highway would not interrupt prescription on the other side. These were the facts considered by the Louisiana Second Circuit Court of Appeal in Webb v. Franks Investment Co . 2 Unfortunately, the existing law is rather unclear with respect to these types of transfers of property, known as “formal” dedications to public use, and the Second Circuit did little to clarify the law. The court ultimately decided that the dedication conveyed a servitude, but the three conflicting opinions from the panel reveal the state of confusion that plagues the law of dedication. 3 Dedication to public use has been defined as “the act of appropriating private land to the public for any general or public use.” 4 After land has been dedicated, the “dedicator” cannot Copyright 2015, by BEN JUMONVILLE. 1. See LA. REV. STAT. ANN. § 31:73 (2000) (“A single mineral servitude may not be created on two or more noncontiguous tracts of land.”). 2. See Webb v. Franks Inv. Co., 105 So. 3d 764 (La. Ct. App. 2012). 3. Id. at 771. 4. William G. Bredthauer & Shawna Snellgrove Rinehart, Ownership and Leasing of Minerals Under Highways and Right-of-Ways , 16 TEX. WESLEYAN L. REV. 3, 6 (2009) (quoting Scott v. Cannon, 959 S.W.2d 712, 718 (Tex. Ct. App. 1998)). 906 LOUISIANA LAW REVIEW [Vol. 75 interfere with the public’s right to full enjoyment of the land. 5 Because dedications are typically gratuitous transactions, they are often analogized to gifts or donations. 6 In Louisiana, dedication to public use is not identified by the Civil Code as a method by which landowners may transfer an interest in their properties. 7 In fact, there is relatively little legislative guidance on dedications to public use. 8 Nevertheless, over the course of almost two centuries, Louisiana courts have developed a substantial body of jurisprudence on the subject. 9 In this jurisprudence, the courts have identified different methods or “modes” by which a dedication may be executed, with each mode having unique requirements and effects. 10 Currently, Louisiana recognizes four distinct modes of dedication: statutory, tacit, implied, and formal. 11 Formal dedication is the most unsettled of the four modes of dedication. Recognized by Louisiana courts only 30 years ago, formal dedication is defined as a dedication executed by a written act. 12 In particular, one critical question regarding the law on formal dedications remains unanswered: What type of property right is transferred to the public 13 Whereas some courts have strongly adhered to the principle that formal dedications vest ownership in the public absent express intent to the contrary, 14 other courts have expressly stated and implied the opposite principle—that a statement of dedication must specifically contain an intent to convey ownership in order to actually convey ownership to the public. 15 Because dedication disputes affect the ownership of valuable real estate, Louisiana courts need to agree 5. Id. 6. See Note, Public Ownership of Land Through Dedication , 75 HARV. L. REV. 1406, 1406 (1962). 7. See A.N. YIANNOPOULOS, PROPERTY § 95, in 2 LOUISIANA CIVIL LAW TREATISE 208 (4th ed. 2001). 8. See St. Charles Parish Sch. Bd. v. P & L Inv. Corp., 674 So. 2d 218, 221 (La. 1996) (citing Garrett v. Pioneer Prod. Corp., 390 So. 2d 851, 854 (La. 1980)). 9. See infra Part I. 10. St. Charles , 674 So. 2d at 221. 11. Id. 12. The first case to explicitly recognize formal dedication was Anderson v. Police Jury of E. Feliciana Parish , 452 So. 2d 730 (La. Ct. App. 1984). 13. See infra Part I. 14. See, e.g. , Anderson , 452 So. 2d at 730; Schmit v. St. Bernard Parish Police Jury, 504 So. 2d 619, 622 (La. Ct. App. 1987) (citing Anderson , 452 So. 2d 730). 15. See, e.g. , S. Amusement Co., Inc. v. Pat’s of Henderson Seafood & Steak, Inc., 871 So. 2d 630 (La. App. Ct. 2004); Webb v. Franks Inv. Co., 105 So. 3d 764, 769–70 (La. Ct. App. 2012). 2015] NOTE 907 on a framework that will produce a consistent and predictable body of law. Part of this problem is rooted in Louisiana’s history. Prior to the development of the oil and gas industry in Louisiana, the question of public ownership of dedicated lands received far less jurisprudential treatment since courts were only concerned with whether the surface of the property was subject to public use. 16 Another source of this problem is the failure of Louisiana courts to follow a uniform framework for interpreting the language of dedication documents. Although the Louisiana Supreme Court suggested that formal dedications presumptively transfer ownership to the public in the 1996 case of St. Charles Parish School Board v. P & L Investment Corp. , 17 some of the lower courts have since ignored the Supreme Court’s guidance, resulting in a confusing legal landscape. 18 This Note argues that the majority in Webb v. Franks Investment Co. applied an incorrect standard for determining when formal dedications transfer ownership. 19 Part I traces the history of dedication law in Louisiana, highlighting the varying, inconsistent approaches taken by Louisiana courts. Part II discusses the Webb decision and sets forth the arguments in Webb ’s majority, concurring, and dissenting opinions. Part III critiques the Webb majority’s departure from the view of most Louisiana courts that formal dedications, unless stated otherwise, transfer ownership and explores the opinion’s troubling effects on dedication law in Louisiana. Finally, Part IV suggests that courts should stop deviating from the rule laid down by the Louisiana Supreme Court in St. Charles Parish School Board v. P & L Investment Corp. and apply a presumption that formal dedications transfer ownership. By doing so, this approach would be consistent with the principles and rules governing dedication in Louisiana and would reflect the original purpose behind the jurisprudential creation of formal dedication—the recognition of a mode of dedication that transfers ownership. 16. See Garrett v. Pioneer Prod. Corp., 390 So. 2d 851, 855 (La. 1980). 17. St. Charles Parish Sch. Bd. v. P & L Inv. Corp., 674 So. 2d 218, 221 (La. 1996). 18. See infra Part I. 19. See infra Part III. 908 LOUISIANA LAW REVIEW [Vol. 75 I. A WINDING ROAD: THE DEVELOPMENT OF DEDICATION LAW IN LOUISIANA Louisiana’s jurisprudence on dedication to public use dates back 200 years, a period throughout which the courts have approached dedications in a myriad of ways. 20 Although Louisiana courts first applied civil law principles to dedication issues, the courts have taken a decidedly common law approach to dedication over the last century and a half, crafting an intricate body of case law on the subject. The most notable aspect of this progression is how the courts have carved out four distinct methods by which a dedication can operate. This Part examines the development of this area of the law, emphasizing the courts’ erratic treatment of formal dedications over the last 30 years. A. Civil Law Origins The earliest cases concerning dedication in Louisiana consistently held that the public owned the roadbeds and other public property, regardless of how the land was acquired. 21 These decisions were heavily influenced by civilian principles, with cases citing to Roman, French, and Spanish laws as conclusive authority. 22 For instance, the Louisiana Supreme Court’s 1816 decision in Renthorp v. Bourg held that a Roman law providing that the soil of a highway was public property applied in Louisiana. 23 As one scholar noted, two concepts were predominant in the early cases: “(1) public things [were] owned by the public; and (2) one who designate[d] [lands] as ‘public’ [did] by that act of dedication alone create public ownership of the dedicated lands .” 24 This civilian notion of public ownership of public things did not last long in Louisiana, however. In 1848, the Louisiana Supreme Court limited Renthorp ’s application of the ancient Roman law doctrine in Hatch v. Arnault , finding that the roads in the “infant colony” of Louisiana were simply not comparable to the ancient Roman highways that were “as permanent as the labor 20. See Renthorp v. Bourg, 4 Mart. (o.s.) 97 (La. 1816). 21. Garrett , 390 So. 2d at 855. For an extensive history of the development of dedication in Louisiana, see Michael G. Page, Comment, The Third Dimension of Dedication in Louisiana , 30 LA. L. REV. 583 (1970). 22. See Renthorp , 4 Mart. (o.s.) at 97; Mayor of New Orleans v. Gravier, 11 Mart. (o.s.) 620 (La. 1822); Morgan v. Livingston, 6 Mart. (o.s.) 19 (La. 1819); City of New Orleans v. Metzinger, 3 Mart. (o.s.) 296 (La. 1814). 23. Renthorp , 4 Mart. (o.s.) at 138. 24. Page, supra note 21, at 600 (emphasis added). 2015] NOTE 909 of man could make them.” 25 Relying on article 654 of the Louisiana Civil Code...