STATE, DEPT. OF TRANSP. & DEV. v. Richardson

453 So. 2d 572
CourtLouisiana Court of Appeal
DecidedMay 15, 1984
Docket83-CA-0506, 83-CA-0507
StatusPublished
Cited by5 cases

This text of 453 So. 2d 572 (STATE, DEPT. OF TRANSP. & DEV. v. Richardson) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
STATE, DEPT. OF TRANSP. & DEV. v. Richardson, 453 So. 2d 572 (La. Ct. App. 1984).

Opinion

453 So.2d 572 (1984)

STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT
v.
Catherine D. RICHARDSON.
STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT
v.
Landry W. RICHARDSON.

Nos. 83-CA-0506, 83-CA-0507.

Court of Appeal of Louisiana, First Circuit.

May 15, 1984.

*573 Richard N. Burtt, Asst. Gen. Counsel, Baton Rouge, for plaintiff-appellant, State of La., Dept. of Transp. and Development.

J. Arthur Smith, III, Baton Rouge, for defendants-appellees, Catherine D. Richardson and Landry W. Richardson.

Before LOTTINGER, EDWARDS and WATKINS, JJ.

EDWARDS, Judge.

Under Louisiana's "quick taking" statutes, LSA-R.S. 48:441 et seq., the Department of Transportation and Development (DOTD) filed two expropriation suits, later consolidated for trial, against Catherine D. and Landry W. Richardson to acquire certain highway frontage property necessary for widening Louisiana Highway 67, also known as Plank Road, to a four-lane highway in and around Clinton, Louisiana.

In the first suit (No. A-15,710), filed on April 1, 1980, the DOTD expropriated one parcel of land, parcel No. 5-7, consisting of 131 square feet, in full ownership, reserving in the landowners all rights to any minerals, and another parcel, No. 5-3-C-2-R-2, consisting of 871 square feet, as a temporary construction servitude, and deposited into the court registry $235.00 as compensation for the land taken. In the second suit (No. A-17,422), filed on June 30, 1981, the DOTD took in full ownership, *574 minus the minerals, parcel No. 5-7-E-1, consisting of 1,307 square feet and deposited $690.00 in the court registry.

On January 11, 1981, the landowners filed an answer challenging the value of the land taken and seeking $12,281.00 in compensation and severance damages plus attorney and expert witness fees and costs. On April 1, 1982, they filed an amended answer and reconventional demand alleging that the DOTD had begun construction and had in fact taken on December 1, 1981, an additional 932 square feet of their land, designated at trial as parcel "X", for which it owed them additional compensation under LSA-R.S. 19:14.

The trial court rendered judgment in favor of the landowners and awarded them $2,571.05 for the four parcels of land—5-7, $129.69; 5-3-C-2-R-2, $103.47; 5-7-E-1, $1,359.28; and parcel "X", $978.60—$5,923.24 in severance damages for the remainder of the property, and $2,500.00 in attorney fees.[1]

The DOTD appeals, assigning four errors to the judgment. The first three assignments of error involve the same issues as those at trial—the extent of the taking, the value of the land taken, and the amount of severance damages. The fourth assignment of error relates to the $2,500.00 attorney fee.

THE EXTENT OF THE TAKING

The only issue to be resolved here is whether the State owes any compensation for parcel "X".

At trial, the DOTD argued chiefly that parcel "X" falls within an existing 40-foot right-of-way servitude which the State had acquired by virtue of a right-of-way deed executed by the landowners' ancestor in title in 1931 and filed in the conveyance records of East Feliciana Parish in 1932. Rejecting this argument, the trial court reasoned that because the 1931 document relied on by the State was not in authentic form, it was an invalid donation, absolutely null, and could not operate to pass title to the State.

On appeal, the DOTD's principal argument is that the 1931 right-of-way deed, though invalid as a donation of immovable property, nonetheless serves as a valid implied dedication of the 40-foot servitude which the State accepted in 1931. Because we find merit to this argument, we find it unnecessary to discuss the DOTD's other arguments in connection with this issue.[2]

Since 1938 and the landmark case of Arkansas-Louisiana Gas Co. v. Parker Oil Co., 190 La. 957, 183 So. 229 (1938), Louisiana has consistently recognized two types of dedications, statutory and implied or common law.

A statutory dedication is perfected by substantially complying with the requirements of LSA-R.S. 33:5051, which requires among other things the filing of a map and a formal dedication to public use by the owner of the property. See City of Baton Rouge v. State National Life Ins. Co., 271 So.2d 571 (La.App. 1st Cir.1972). However, failure to file the required map or to include the dedicatory language in the plat will not invalidate the dedication, provided the statute is otherwise substantially complied with. See Garrett v. Pioneer Production Corporation, 390 So.2d 851 (La. 1980).

In a common law dedication, on the otherhand,

there must be shown a definite intent to dedicate on the part of the landowner and an acceptance by the public. Neither element must be formally expressed but both must be sufficiently clear so as to exclude every other reasonable hypothesis *575 except that of dedication. Our courts have held that dedication to the public may be shown by any evidence which shows intent of the owner to so devote his property. Mere use by the public for the purpose intended by the dedicator can constitute a sufficient acceptance. (emphasis added) (citations omitted).

City of Baton Rouge, 271 So.2d at 576.

Joyce v. Brothers Realty Company, 127 So.2d 756, 759-60 (La.App. 3rd Cir.1961), best summarizes the "fundamental principles" of dedication, applicable to the present controversy:

We are in agreement with the fundamental principles of dedications that the most definite form of dedication is by a deed setting forth the exact purposes for which the land is conveyed, and a record thereof, together with a plat of the property. The deed may be made to a designated grantee and convey in trust for the public [either full title or a servitude], or may be for a designated purpose, without any grantee. It is also true that no particular form of deed, or deed at all, is necessary for the dedication of land to the public; it suffices that the owner permits the land to be used by the public with the intention of making the dedication. Dedications to public use, and servitudes in favor of the public, are not governed by the strict rules which apply to private property; the visible signs of dedication and open use of the property by the public supply the place of both title and registry. There is no sacramental form to be followed in dedicating property to public use in order that the dedication be effective. Furthermore, it is not necessary that title be in the public, nor is it necessary that the word "dedicate" be used as it is not decisive of the character of the conveyance of the property .... (emphasis added) (citations omitted).

According to the principles established in City of Baton Rouge and Joyce, the 1931 document relied on by the State is clear and express evidence of a definite intent to dedicate a right-of-way servitude in favor of the State.

On March 6, 1931, Rufus McKnight, the landowners' ancestor in title, signed a document entitled "Right of Way Deed," by which he intended to "dedicate, transfer, assign, set over and deliver unto the State of Louisiana," a right-of-way servitude over a portion of his property forty feet from the centerline of the old Clinton-Baton Rouge State Highway, now known as Louisiana Highway 67.

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Bluebook (online)
453 So. 2d 572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-dept-of-transp-dev-v-richardson-lactapp-1984.