Arkansas-Louisiana Gas Co. v. Parker Oil Co. , 190 La. 957 ( 1938 )

On March 3, 1908, complying with the provisions of Act 134 of 1896, the Rodessa Land Development Company, which owned the Southwest Quarter of Section 23, Township 23, North, Range 16 West, with the exception of an eleven acre tract owned by J.D. Bickham, created a subdivision known as "Parker Addition" to the town of Rodessa, surveyed the subdivision, made a map thereof and formally dedicated to public use the streets and alleys shown thereon. This map with the approval of the parish surveyor endorsed thereon was recorded in the conveyance records of Caddo Parish in Book 50 at page 73.

The Rodessa Land Development Company conveyed the property composing the Parker Addition to the Rodessa Oil Land Company, and on February 7, 1934, the Rodessa Oil Land Company executed in favor of the Arkansas-Louisiana Gas Company an oil and gas lease covering the larger part of the town of Rodessa and also the Parker Addition, which adjoins the town on the North.

The lease contained the following stipulation in reference to both the town of Rodessa and the Parker Addition thereto, viz.: "together with all streets and alleys lying next to and adjoining said blocks and lots, subject to the public's presently existing right of passage over said streets and alleys, comprising the town of Rodessa, Louisiana, situated in Section 23, Township 23 North, Range 16 West, and the Parker Addition thereto situated in Sections 22 and 23, Township 23-N, Range 16-W, Caddo Parish, Louisiana, as per plat of said town and addition as recorded in the records of Caddo Parish, Louisiana, aggregating 520 acres, more or less."

On April 9, 1936, the Rodessa Oil Land Company, the lessor of the Arkansas-Louisiana Gas Company, at the request of its lessee, filed a petition with the Police Jury of Caddo Parish to have the streets and alleys in the Parker Addition closed.

The Rodessa Oil Land Company alleged in its petition to the Police Jury that it was the owner of the Parker Addition to the town of Rodessa, embracing the South Half of the Northwest Quarter of Section 23, with the exception of eleven acres identified as the Stewart property on the map annexed to the petition.

The Police Jury, pursuant to the application of the Rodessa Oil Land Company, passed a resolution abandoning the streets and alleys of the Parker Addition and restoring their ownership to the present owners.

The action of the Police Jury was taken under the authority of Act 151 of 1910, authorizing police juries and municipal corporations (the Parish of Orleans excepted) to revoke and set aside dedications of roads, streets and alleys when they have been abandoned or are no longer needed for public use.

The eleven acre tract designated as the Stewart property on the map annexed to the petition of the Rodessa Oil Land Company addressed to the Police Jury of Caddo Parish was owned by Glenn Fitts at the time the Police Jury adopted its resolution abandoning the streets and alleys in the Parker Addition to the town of Rodessa, Fitts having acquired the eleven acre tract by mesne conveyances from J.D. Bickham, who owned the tract at the time the Parker Addition was created by the Rodessa Land Development Company.

The eleven acre tract owned by Fitts, as shown by the map, is bounded on three sides by the streets, alleys, blocks and lots comprising the Parker Addition. A street designated on the map as Parker Street, on which it has a frontage of 726 feet, forms the Western boundary of the tract.

On April 17, 1936, Glenn Fitts executed an oil and gas lease to R.J. Reinke, covering a strip of land 25 feet in width and 726 feet in length lying along and adjoining the west side of his eleven acre tract. The tract of land covered by this lease is in reality the east half of Parker street adjacent to the eleven acre tract owned by Fitts. On June 29, 1936, this lease was assigned by Reinke to the Parker Oil Company, Inc.

In the latter part of June, 1936, the Parker Oil Company began to drill an oil well on the strip of land covered by the lease from Glenn Fitts. Shortly thereafter, the Arkansas-Louisiana Gas Company, as lessee in possession under its mineral lease from the Rodessa Oil Development Company, brought this suit to enjoin the drilling operations of the Parker Oil Company. Upon the hearing of the rule nisi the temporary injunction was denied by the trial judge. Thereafter, the Parker Oil Company completed the well as a producer of oil in commercial quantities. The Arkansas-Louisiana Gas Company then amended its petition and alleged that the drilling and completion of the oil well was a trespass upon the tract of land of which it was in possession as lessee. The prayer of the amended petition was that the Parker Oil Company be enjoined from operating the oil well; that it be required to remove its equipment and materials from the premises; and that plaintiff be recognized as the owner of the exclusive right to produce oil, gas and other minerals from the property.

The trial on the merits resulted in a judgment in favor of the Arkansas-Louisiana Gas Company and against the Parker Oil Company. The trial judge held that the lease of the Arkansas-Louisiana Gas Company covered the strip of land involved in the suit and that plaintiff was in possession of the strip, but that the operations of the Parker Oil Company thereon were conducted in good faith and therefore it was entitled to the reimbursement of the drilling costs from production before the injunction granted should become operative.

The Arkansas-Louisiana Gas Company appealed from the judgment. The Parker Oil Company answered the appeal and asked that the judgment be reversed and plaintiff's demands be rejected; and, in the alternative, that, if plaintiff's title should be upheld, the judgment be affirmed so far as it allowed defendant the right to be reimbursed for the cost of drilling, equipping and operating the oil well.

After hearing the case on appeal, this court affirmed the judgment decreeing plaintiff to be the owner of the product of the oil well drilled by the defendant, enjoining defendant from drilling or operating any well upon the property and ordering defendant to remove all its equipment and material therefrom.

This court reversed the judgment decreeing that plaintiff's ownership of the product of the well was subject to the right of the defendant to be reimbursed the expenses of drilling, equipping and operating the well.

On the application of the defendant Parker Oil Company a rehearing was granted and the case has been heard for the second time by this court.

The primary question to be determined is the nature and effect of the dedication of the streets and alleys in the Parker Addition by the Rodessa Land Development Company and the revocation of that dedication by the Police Jury on the application of the Rodessa Oil Land Company.

Plaintiff contends that there never was any effective dedication because it never was expressly accepted by the proper authorities on behalf of the public and the streets and alleys never were used by the public for the purposes intended by the appropriation.

Defendant, on the other hand, contends that the streets and alleys in the Parker Addition were formally dedicated to public use and that the dedication has been recognized by the present owner, the Rodessa Oil Land Company, its lessee, the Arkansas-Louisiana Gas Company, and the Police Jury of Caddo Parish.

The plan of the Parker Addition to the town of Rodessa filed in the Clerk's office of the Parish of Caddo by the Rodessa Land Development Company was prepared by S.S. Robertson, Civil Engineer, at the request of J.D. Lee, President of the Rodessa Land Development Company, acting under a resolution of the Board of Directors of the corporation. In addition to filing the plan for record, the Rodessa Land Development Company, through its president J.D. Lee, specifically declared that the streets and alleys as set out on the plan were dedicated to the public. This appears from the following declaration endorsed on the plan prior to its recordation, viz.:

"We hereby dedicate to public use all streets and alleys in the above subdivision."

"[Signed] Rodessa Land Development Company, "J.D. Lee, President."

The plan was approved for the public and for the Parish of Caddo by L.Z. Crawford, parish surveyor, in the following statement appearing on the plan, viz.:

"I hereby approve map as being correct as to acreage and as to being in compliance with provisions of Act 134 of 1896."

"[Signed] L.Z. Crawford, "Parish Surveyor."

Act No. 134 of 1896, to which reference is made in the certificate of the parish surveyor, requires all real estate owners who desire to subdivide their property into squares or town lots for the purpose of sale, to cause to be made and filed in the conveyance records of the parish a correct map of the property so divided, which map shall contain, among other things, the following:

"4. The name of each street and alley its length and width in feet and inches."

"6. A certificate of the Parish Surveyor of the parish wherein the property is situated in the correctness of the map."

"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."

The record shows that the Rodessa Land Development Company in creating the Parker Addition to the town of Rodessa and in platting the subdivision into blocks, lots, streets and alleys, carefully tracked the requirements set forth in Act 134 of 1896.

The record further shows that the Rodessa Oil Land Company, the successor to the Rodessa Land Development Company, and the Arkansas-Louisiana Gas Company, the successor to the Arkansas Pipeline Company, specifically recognized the existence of the Parker Addition to the town of Rodessa and the right of the public to the streets and alleys thereof in the oil and gas lease which the Rodessa Oil Land Company executed on February 7, 1934, in favor of the Arkansas-Louisiana Pipeline Company, from which company the lease was acquired by the Arkansas-Louisiana Gas Company.

The Rodessa Oil Land Company and the Arkansas-Louisiana Gas Company also recognized the existence of the Parker Addition and the dedication to the public of the streets and alleys thereof in the petition which on April 9, 1936, the Rodessa Oil Land Company, at the request of the Arkansas-Louisiana Gas Company, addressed to the Police Jury of the Parish of Caddo, in which it prayed that the Police Jury by appropriate resolution abandon to petitioner all rights and claims it may have to the streets and alleys shown on the attached map of the Parker Addition to the town of Rodessa.

The petition alleges that the Rodessa Land Development Company, the predecessor of the petitioner, dedicated what is commonly known as the Parker Addition to the town of Rodessa and caused a plat of the Parker Addition to be made and filed in the conveyance records of Caddo Parish on March 3, 1908, where it is recorded in plat book 50, page 73. That all the property in the Parker Addition has been cultivated as farm property; that not a single lot in the subdivision has been sold nor a single street or alley opened to use, with the exception of the main highway lying west of the Kansas City Southern right-of-way; and that there is no need for the streets and alleys remaining open, with the exception of the highway lying west of the railroad right-of-way.

The minutes of the Police Jury of Caddo Parish show that the following resolution was adopted, viz.:

"On motion of Mr. Fuller, seconded by Mr. Williamson, the streets and alleys in the Parker Addition to the town of Rodessa, dedicated for public use as recorded in the office of Clerk of Court of Caddo Parish, March 3rd, 1908, be abandoned, and ownership restored to present owners, with the exception that it shall not affect the main highway lying to the west of the Kansas City Southern Right-of-way designated as State Highway No. 8, and that proper recording be made in the office of Clerk of Court of Caddo Parish."

After the adoption of the foregoing resolution on April 9, 1936, the Rodessa Oil Land Company caused the proceedings to be recorded in the conveyance records of Caddo Parish, Book 349,

The action of the Police Jury was taken under and by virtue of Act 151 of 1910, authorizing police juries and municipal corporations (the Parish of Orleans excepted) to revoke and set aside dedications of roads, streets and alley-ways, when they have been abandoned or are no longer needed for public use.

A dedication may be either statutory or according to the common-law. 18 C.J. sec. 1, p. 18. A distinguishing difference between a statutory dedication and a common-law dedication is that the former operates by way of a grant and the latter by way of an estoppel in pais. A further distinction may exist as regards the extent of the right conferred by the dedication. The right conferred by common-law dedication is an easement only, while in most jurisdictions a statutory dedication vests the fee of the property in the public authority to which the dedication is made. 18 C.J. sec. 6, p. 41.

While in a common-law dedication there must be an acceptance by use or otherwise on the part of the public, this is not necessarily so in the case of a statutory dedication. 18 C.J. sec. 68, p. 73. The effect of a statutory dedication is generally indicated by the statute itself.

We are of the opinion in view of the language contained in Act 134 of 1936, the dedication under review was complete without a formal acceptance by the public authorities. We are also of the opinion that the irrevocable character of the dedication was not affected by the fact that the property dedicated was not at once subjected to the uses designed. This view is sustained by the case of Sowadzki v. Salt Lake County, 36 Utah 127, 104 P. 111, and the authorities therein cited.

In commenting upon the authorities cited in the opinion in that case, the Supreme Court of Utah said (page 113):

"In all of the foregoing cases it is held that, in case the statute has substantially been complied with, dedication is complete, and no formal acceptance by the public is necessary, and that the streets so dedicated may be opened at any time after such dedication when necessary for public use, and that a failure to open them until such time will not be deemed an abandonment thereof. In some of the cases the distinction with respect to the rights of the purchasers of lots abutting upon the highway and the duty and liability of the public with regard to such a highway is clearly pointed out. No doubt a street or highway may exist, but may not be opened for travel, and, until it is so opened, the traveler may not hold the municipality responsible in case he sustains an injury or damage in using such a street or highway."

The cases of David Livaudais v. Municipality No. 2, 14 La.Ann. 872, and Jaenke v. Taylor, 160 La. 109, 106 So. 711, are not applicable to this case. The dedications involved in those cases were common-law dedications made long prior to the adoption of Act 134 of 1896.

The case of Jouett v. Keeney, 17 La.App. 323, 136 So. 175, decided by the Court of Appeal for the Second Circuit, is equally inapplicable here. The dedication in that case was also a common-law dedication which required the express acceptance of the municipality or the implied acceptance of the user of the property to become effective.

The case before us involves a statutory dedication. It is a regularly executed and formal dedication, signed, acknowledged and approved in due form, recorded in the proper office — a public record. In these circumstances no subsequent user or acceptance of the dedication was necessary to prove or establish it. Hedge v. Cavender, 217 Ky. 524, 290 S.W. 342.

And as we have hereinabove pointed out the dedication has been recognized by the Rodessa Oil Land Company, the present owner of the Parker Addition, its lessee, the Arkansas-Louisiana Gas Company, plaintiff herein, and the Police Jury of the Parish of Caddo.

When the Rodessa Land Development Company dedicated to the public the streets and alleys as set out on the original map of the Parker Addition, without any reservation or restriction indicating an intention to retain the ownership of the land covered by the streets and alleys, it divested itself of the fee as completely as if it had made a sale of the said streets and alleys to the public. Jaenke v. Taylor, 160 La. 109, 106 So. 711; Wilkie v. Walmsley, 173 La. 141, 136 So. 296.

The only action the Police Jury could take on the application of the Rodessa Oil Land Company that the Police Jury by proper resolution abandon to the applicant all rights and claims it might have to the streets and alleys on the Parker Addition was the action it took under the authority of Act 151 of 1910. That legislative act authorizes Police Juries to revoke and set aside the dedication of roads, streets and alleys when they have been abandoned or are no longer needed for public use.

Section 2 of the statute provides: "That upon such revocation, the ownership of the soil embraced in such roads, streets and alley-ways up to the center line thereof shall revert to the then present owners of the land contiguous thereto."

Under the terms of its resolution the Police Jury did not abandon its rights and claims to the streets and alleys in the Parker Addition to the Rodessa Oil Land Company, but it abandoned its rights and claims to the said streets and alleys and restored the ownership thereof to the present owners, as provided by Act 151 of 1910.

Among the streets dedicated to the public on the original plat of the Parker Addition is one named "Parker Street," which is fifty feet wide and runs north and south. This street as shown on the plat forms the western boundary of the eleven acre tract owned by Glenn Fitts.

Under the provisions of Act 151 of 1910 and the terms of its resolution based thereon, when the Police Jury revoked the dedication of the Parker Addition, the ownership of Parker Street to its center line reverted to the present owners of the land contiguous thereto. One of the contiguous owners was the Rodessa Oil Land Company and the other contiguous owner was Glenn Fitts. Therefore, under the clear terms of the legislative act and the police jury resolution based thereon the Rodessa Oil Land Company and Glenn Fitts became each the owner of the soil up to the center line of Parker Street.

The plaintiff Arkansas-Louisiana Gas Company has pleaded the unconstitutionality of Act 151 of 1910 on two grounds, viz.:

First — That the statute is invalid as being broader than its title, contrary to the provisions of Section 16, Article 3 of the Constitution of Louisiana.

Second — That if the statute is construed to apply to a case where a tract of land claimed to have been dedicated prior to its enactment was a portion of the property of only one landowner, the statute is invalid in that it would constitute a taking of property without due process, contrary to the provisions of the Fourteenth Amendment to the Federal Constitution U.S.C.A. Const. Amend. 14.

The title of Act 151 of 1910 reads as follows:

"Authorizing police juries and municipal corporations to work (revoke) and set aside dedications of roads, streets and alley-ways, when same has been abandoned, or no longer needed for public use, `Parish of Orleans excepted.'"

With regard to the first ground of alleged unconstitutionality of the statute, plaintiff contends that there is nothing in its title to indicate that upon the abandonment of any street or alley the title would vest in the owners of the adjacent property. Hence, the statute is broader than its title.

Plaintiff's contention is untenable. The general purpose of the statute is to provide a method for restoring to private ownership roads, streets and alleys that have been abandoned or which are no longer needed for public use. The title of the statute sufficiently indicates its purpose. The title of any public property restored to private ownership must necessarily vest in some private owner or owners. The designation of such owner or owners is clearly within the scope of the legislation and is something that any interested person would reasonably expect to find in the statute under its title.

With regard to the second ground of alleged unconstitutionality, plaintiff contends that the public never had anything but a servitude on the streets and alleys of the Parker Addition; that as the dedication of the streets and alleys had been made by the Rodessa Land Development Company prior to the adoption of Act 151 of 1910, the dedicator retained a reversionary interest in the property, which could not be defeated by the subsequent legislation, and that upon the abandonment of the servitude the property subject thereto reverted in full ownership to the dedicator.

Plaintiff's contention is not well founded. As we have hereinabove shown, the dedication in this case was a statutory dedication and not a common-law dedication. When the dedication of the streets and alleys in the Parker Addition was made by the Rodessa Land Development Company in strict conformity to the statute, the dedicator did not grant the public a mere servitude on the property, but it conveyed to the public a fee title to the property. As a result of the dedication, the ownership of the streets and alleys in the Parker Addition was vested in the public and the legislature had the right to designate the person or persons in whom that ownership should vest upon the abandonment of the property by the public.

At the time Act 151 of 1910 was adopted, neither the Rodessa Land Development Company, nor its successor in title, owned any property right in the streets and alley of the Parker Addition, and, therefore, no property right was taken away by the legislative act, in contravention of the Fourteenth Amendment to the Federal Constitution, U.S.C.A.Const. Amend. 14.

The case of Neil v. Independent Realty Company, 317 Mo. 1235,298 S.W. 363, 70 A.L.R. 550, cited by plaintiff, is not applicable to this case. The dedication involved in that case under the law of Missouri did not vest the fee title of the dedicated property in the public, but created only an easement, with the right of reversion in the dedicator.

For the reasons assigned, our original opinion and decree herein are recalled and it is now ordered that the judgment appealed from be annulled and that plaintiff's suit be dismissed at its costs. The right of the parties to apply for a rehearing is expressly reserved.

O'NIELL, C.J., is of the opinion that the judgment appealed from should be affirmed.

ODOM, J., dissents and adheres to his original opinion.