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 CIV IL 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).