Home/Louisiana Court of Appeal/City of New Iberia v. Romero

City of New Iberia v. Romero

391 So. 2d 548, 1980 La. App. LEXIS 4669
Louisiana Court of Appeal·Decided November 12, 1980·No. No. 7906·Published·Cited by 4 cases

Opinion

LABORDE, Judge.

This appeal involves an eviction action filed by the City of New Iberia against Exalta Romero, Sr.1 based on a lease from the City to Romero. The lease covers a strip of land located in the City of New Iberia. The trial court, after sustaining Romero’s exception of thirty (30) years acquisitive prescription, ordered dismissal of the City’s eviction action. The City appeals. We affirm. We find no error in the trial court’s ruling.

On January 14, 1980, the City of New Iberia filed a motion to evict Exalta Romero, Sr. from a strip of land located in New Iberia pursuant to a lease dated May 23, 1972.2 The City alleged that the lease was for a period of one (1) year and continued from year to year after the primary term.

Romero filed peremptory exceptions of 10 years liberative prescription, 30 years acquisitive prescription, and no right of action. He alleged that the property in question, Wana Alley, acquired by the City on April 3, 1903, was not being used for any public purpose, and had been abandoned by nonuse for a period in excess of ten (10) years. Romero further alleged that on April 26, 1940, he acquired a certain town lot bounded by Wana Alley and since that time had been in uninterrupted possession of that portion of Wana Alley described as “A” on the plat of survey of Alvin C. Ba-deaux, City Engineer, dated March 1972 and attached to the lease.

[549] The City of New Iberia contends that since Romero executed a lease on May 23, 1972, he is a precarious possessor and may not acquire his lessor’s property by prescription. Romero contends that the City has no standing to bring an eviction proceeding since he acquired ownership of the strip of land by 30 year acquisitive prescription pri- or to executing the lease on May 23, 1972.

In his reasons for judgment the trial court concluded that:

“The exception of thirty year acquisitive prescription is sustained, and the City’s eviction action will be dismissed.”

In reaching the conclusion that Romero’s plea of thirty years prescription was well founded, the trial court discussed two basic concepts which must be considered when acquisitive prescription arises involving a public body. We take the liberty of quoting in part from the trial judge’s well-written opinion.

First the state and its political subdivisions have a dual personality. They act as sovereign, and in a private capacity. (LSA-C.C. art. 450 Comments)
Secondly, things under the civil law have been traditionally divided into three categories: Common, public and private. (LSA-C.C. art. 448)
Common things may not be owned by anyone (LSA-C.C. art. 449). Public things are those things which are owned by the state or its political subdivisions in their capacity as public persons. They include such things as streets and squares. (LSA-C.C. art. 450) Private things are things owned by private persons, or by the state or its political subdivisions in their capacity as private persons. (LSA-C.C. art. 453).
Two recent Court of Appeal (Third Circuit) cases recognized these distinctions and hold that acquisitive prescription may run against a public body as to private things it owns, but not as to public things. In the case of Town of Broussard v. Broussard Volunteer Fire Dept., 357 So.2d 25 (1978) the Court held that acquisitive prescription as to the things in question ran against the municipality in favor of the Volunteer Fire Department, as they were private things owned by the City in the capacity of a private person. According to the Court in Broussard, public property to which all inhabitants of a City are entitled in common, such as public streets and walks, is not subject to acquisitive prescription. Public property not used by the people in common, which is used for their benefit by the administrators of the City, is subject to acquisitive prescription.
An immediate precursor to the Brous-sard case was that of Prothro v. City of Natchitoches, 265 So.2d 242, (C. of A.-3, 1972), which was cited by defendant in an attempt to show that prescription does run against a city.
A careful reading of Prothro reveals that the Court impliedly followed the same logic later specifically endorsed in Broussard. The property involved was originally acquired by the City for use in drilling water wells. Such a use falls into the category of administrative use defined in Broussard. As such, the property could not be considered “hors de commerce”, and insusceptible of prescription, and the Court decided that the prescription did run against the City.

Free access — add to your briefcase to read the full text and ask questions with AI

City of New Iberia v. Romero, 391 So. 2d 548, 1980 La. App. LEXIS 4669 (La. Ct. App. 1980).

391 So. 2d 548 (City of New Iberia v. Romero) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

City of DeRidder v. Administrators of Vacant Succ. of Celestine
140 So. 3d 836 (Louisiana Court of Appeal, 2014)
City of Deridder, Louisiana v. Administrators of Vacant Succ. of Isaac J. Celestine, Etc.
Louisiana Court of Appeal, 2014
Adolph v. Parish of Jefferson
636 So. 2d 1087 (Louisiana Court of Appeal, 1994)
City of Covington v. Glockner
486 So. 2d 837 (Louisiana Court of Appeal, 1986)