United States Court of Appeals,
Fifth Circuit.
No. 94-30074.
MISSOURI PACIFIC RAILROAD CO., et al., Plaintiffs,
River City Joint Venture, (Substituted as appellant in place of
New Orleans 2000 pursuant to FRAP 43), Plaintiff-Appellant,
and
New Orleans 2000 Partnership, Cross-Appellee,
v.
CITY OF NEW ORLEANS, Defendant-Appellee, Cross-Appellant.
March 2, 1995.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before WISDOM, KING and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
A railway company succeeded by Missouri Pacific Railroad
("MoPac") constructed buildings and railroad tracks on a tract of
land in the City of New Orleans including certain strips of land
which were formerly streets. After ceasing railroad operations,
MoPac agreed to sell the tract to New Orleans 2000 Partnership ("NO
2000"). The City of New Orleans then asserted a claim declaring
itself to be the owner of the former streets within the tract.
MoPac responded by instituting this possessory action against the
City, seeking to be maintained in possession of the land underlying
the former streets. Since filing suit, the original plaintiff,
MoPac, sold the tract to NO 2000, which substituted as the
Plaintiff. During the pendency of this appeal, NO 2000 sold the
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tract, except Water Street, to River City Joint Venture ("River
City"), now substituted as the Plaintiff-Appellant. NO 2000
remains the Cross-Appellee as to the Water Street property.
On stipulated facts the district court found that the closed
streets, except Water Street, had been impliedly dedicated to the
City of New Orleans. We agree. The court further held that the
implied dedication vested ownership of the land underneath such
streets in the City and that under a city ordinance granting the
railroad the right to close the streets, the railroad's possession
was only precarious and not as owner. Here we disagree. Under
Louisiana law, an implied dedication vests a city with only a
servitude of public use, not ownership. After the railroad
acquired the properties adjacent to the streets, the City
acquiesced in the closing of the streets, and the railroad began
possession of the former streets for itself and not for the City.
The City was not surrendering to the railroad possession of the
land underlying the streets as owner because the City never
possessed the land as owner. It had only a servitude. We
therefore reverse in part. We affirm in part with regard to the
separately disputed Water Street property.
I. Background
In order to succeed in a possessory action, a plaintiff
seeking to be maintained in possession of immovable property must
prove the following elements:
(1) there was a disturbance of possession in fact or in law;
(2) plaintiff had possession at the time the disturbance
occurred;
2
(3) plaintiff's possession was for itself (that is, under
color of title or as owner) and not "precarious";
(4) plaintiff had quiet, uninterrupted possession for more
than one year before the disturbance;
(5) plaintiff instituted the possessory action within a year
of the disturbance.
La.Code Civ.Proc.Ann. arts. 3655, 3656, 3658 (West 1961 &
Supp.1994). The parties dispute only element number three—namely,
whether the railroad's possession was precarious rather than "for
itself" or "as owner."
River City contends that it and its ancestors in title have
possessed the closed streets as owner. The City counters that it
had full ownership of the streets and that River City and its
ancestors in title have possessed the streets only by permission of
the City or precariously.1 The City contends that because the
railroad was a precarious possessor for the City, its successors
may not bring a possessory action against the City. See
1
Though the City raises its own title in the answer, it has
not thereby converted the action from a possessory action to a
petitory action, because the title is raised only to challenge
the railroad's claim to possession as owner. Compare La.Code
Civ.Proc.Ann. art. 3657 (West 1961) (defendant in a possessory
action asserting title judicially confesses possession of
plaintiff in the possessory action and converts the suit to a
petitory action) and id. art. 3661 (West Supp.1994) (evidence of
ownership is admissible in possessory action to show possession
of a party as owner) with Rudd v. Land Co., 188 La. 490, 495, 177
So. 583, 585 (1937) (if issue of title is not set up in the
prayer of the defendant's answer and the prayer is only that
plaintiff's demands be rejected, the defendant does not convert
the action to a petitory action). Despite the City's request for
such a judgment in its appellate brief, the City did not pray for
a judgment recognizing its ownership in the district court. See
Answer, 2 R. 381-83. The City denies that the railroad ever
possessed as owner and contends that the railroad possesses
precariously for the City which owns the land. See id.; see
also City's trial br., 3 R. 726-37.
3
La.Civ.Code Ann. art. 3440 (West 1994) (precarious possessor may
bring possessory action "against anyone except the person for whom
he possesses").
River City replies that the City never owned the land
underneath the closed streets. Rather, the City merely held a
servitude of passage, and the railroad and its ancestors always
possessed as owner.
II. Possession as Owner or for the City?
We begin with a presumption that the railroad began to possess
for itself or as owner, "unless [the railroad] began to possess in
the name of and for another." La.Civ.Code Ann. art. 3427 (West
1994). A person acquires possession for himself when he takes
corporeal possession of a thing with the intent to have it as his
own. Id. art. 3424. Corporeal possession is the exercise of
physical acts of use, detention, or enjoyment over a thing. Id.
art. 3425. Exercise of physical acts of use, detention or
enjoyment of an immovable without the intent to possess as owner,
however, constitutes mere precarious possession. See id.; see
also id. art 3437 (exercise of possession with the permission of or
on behalf of the owner or possessor is precarious possession).
The moment the railway company (Mopac's predecessor) took
corporeal possession is important, because once one begins
possessing precariously, he is presumed to continue possessing in
that capacity. See La.Civ.Code art. 3489 (1870) (in force until
Jan. 1, 1983) ("When a person's possession commenced for another,
it is supposed to continue always under the same title, unless
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there be proof to the contrary."); La.Civ.Code Ann. art. 3438
(West 1994) (eff. Jan. 1, 1983) (precarious possessor is presumed
to possess for another); id. art. 3439 (precarious possessor
commences to possess for himself only when he gives actual notice
of this intent to the person on whose behalf he is possessing).
A. Did the Railroad Begin to Possess for the City?
The City essentially argues that upon taking corporeal
possession, the railroad was merely maintaining the City's
possession. The basis for the City's argument that River City
possesses the former streets only by permission of the City is City
Ordinance No. 8952, passed in 1912, in which the City granted
MoPac's predecessor the right to build a railroad and related
buildings, closing those city streets. The City contends that, as
owner of the roadbeds, by this Ordinance it granted the railroad a
franchise to occupy the streets for only so long as railroad
operations continued.2
2
The Ordinance granted the railroad certain "rights and
privileges," including the right
to enter the City of New Orleans and to construct,
maintain and operate ... its lines of railway tracks
in, along, across and over the streets, highways and
public places in the City of New Orleans, herein
mentioned, and to acquire in its name or through
another corporation, for railroad purposes, by
expropriation or otherwise, all necessary property in
the City of New Orleans and particularly [the adjacent
property] and thereon to erect, maintain and use such
[railroad related structures necessary or convenient to
such purposes].
The City agreed to close the specified streets so that the
railroad could build on the streets and the contiguous
property it acquired. In return for these rights, the
railroad agreed to build a depot, pave some nearby streets,
5
According to stipulations, the railroad closed the streets and
had begun to exercise physical control over the property by late
1916. At that time the railroad had satisfied the requirement in
the 1912 ordinance that it acquire the property fronting the
streets. When the railroad commenced corporeal possession of the
streets, it did so with title to the land abutting the streets.
The stipulations do not show that the railroad began
possession of the streets or underlying land precariously in the
name of or for the City at that time. The City possessed only a
servitude of public use over the streets, as discussed next, and
the railroad's possession began only after the City consented to
closing the streets to public use.
B. The City Possessed Only a Servitude.
According to stipulations, the streets were originally
dedicated to the City by means of the sale of lots with reference
to an original city plan or subdivision plan depicting the now
closed streets. We agree with the district court that, by selling
off the land in this manner, the owner impliedly dedicated the
streets referenced in the plan to public use. See generally, 2
A.N. Yiannopoulos, Louisiana Civil Law Treatise, § 98 (3d ed.
1991).
Such an implied dedication conferred a servitude of public
use over the streets only; title to the land underneath the
and pay $5,000 annually to the City.
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streets was not transferred to the City.3 James v. Delery, 211 La.
306, 29 So.2d 858, 859 (1947) (holding that the sale of lots with
reference to a map designating streets is a dedication creating
only a servitude of passage over the streets shown); Arkansas-
Louisiana Gas Co. v. Parker Oil Co., 190 La. 957, 183 So. 229, 240
(1938) (comparing statutory dedication, which vests fee simple to
the grantee, with implied dedication, which confers an easement or
a servitude only4); City of Baton Rouge v. State Nat'l Life Ins.
Co., 271 So.2d 571, 573 (La.Ct.App.1972) (same), writ denied, 274
So.2d 709 (La.1973). The district court's holding that the implied
dedication granted the City full ownership of the land underneath
the streets was based exclusively on Garrett v. Pioneer Production
Corp., 390 So.2d 851 (La.1980). Addressing the effect of the 1896
enactment of "statutory dedication," Garrett concluded that such
dedication was intended to grant the same rights as "formal"
dedication, i.e., fee simple ownership transferred to the
municipality.5 In noting the "prevailing view" that ownership of
3
In this possessory action we need not determine who
retained title to the underlying land.
4
Parker Oil discusses "common law" dedication, another
phrase for implied dedication. See Parish of Jefferson v. Doody,
247 La. 839, 174 So.2d 798, 801 (1965); Baton Rouge, 271 So.2d
at 573; see also Yiannopoulos, supra § 98.
5
La.Acts. 1896, No. 134, now appears as re-enacted in
La.Rev.Stat.Ann. § 33:5051 (West Supp.1994). Because the parties
in this case agree that the dedication of the streets occurred in
or before 1837, statutory dedication was not possible.
The City argues alternatively that the property was
"formally" dedicated. Because this theory was not advanced
to the district court, we will not consider it for the first
time on appeal. See Trial br. of City at 5-9, 3 R. 730-34;
7
municipal streets "would ordinarily vest in the public body," 390
So.2d at 855 (dicta), Garrett only recognizes the fact that,
because most dedications of land to municipalities have been
formal, the municipality ordinarily receives land ownership.
Garrett does nothing to alter the long-standing principle of Parker
Oil and Delery that an implied dedication results in a servitude of
passage, not transferred ownership. We therefore reject the
district court's interpretation of Garrett and hold that the
implied dedication granted the City a mere servitude of passage
over the streets.
C. The Railroad Did Not Commence Possession for the City.
Though the City may have possessed its servitude with the
intent to have it as its own,6 it did not possess the immovable
burdened with that right, except as a precarious possessor for the
owner. See La.Code Civ.Proc.Ann. art. 3656 (West 1961) (owner of
a real right in immovable property possesses for himself); Board
of Comm'rs of Caddo Levee District v. S.D. Hunter Found., 354 So.2d
156, 165 (La.1977) (exercise by record-owner's grantee of acts of
see also Order & Reasons at 18 n. 70, 3 R. 683 ("The City
does not assert ... that this plan evidences a formal
dedication. The City's position has been, and continues to
be, that the dedication was made by means of the sale of
lots with reference to plans."); Fine v. GAF Chem. Corp.,
995 F.2d 576, 578 (5th Cir.1993) (declining to express
opinion on issue not presented to district court in the
first instance); Capps v. Humble Oil & Ref. Co., 536 F.2d
80, 82 (5th Cir.1976) (same).
6
Though a possessory action is available to one who enjoys a
real right such as a servitude in an immovable, the Code
denominates the exercise of that real right with the intent to
have it as one's own as "quasi-possession" rather than
possession. La.Civ.Code Ann. art. 3421 (West 1994).
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physical possession pursuant to grant of right of way is possession
attributable to the owner); Faust v. Mitchell Energy Corp., 437
So.2d 339, 342-43 (La.Ct.App.1983) (owner of real right could
maintain possessory action to protect enjoyment of real right but
does not possess the land itself as owner); see also Yiannopoulos,
supra § 311, at 602. Nothing in the ordinance demonstrates that
the railroad commenced possession of the underlying land on behalf
of the City as owner.
Nor does the record demonstrate that the railroad commenced
possessing the servitude of passage on behalf of the City. When
the railroad commenced possession of the land, it closed the
streets and erected constructions, thereby contravening all
recognition of a servitude of passage. Since the day the railroad
closed the streets, it possessed the land for its own operations
and for leasing and related commercial purposes. Having closed the
streets off from further use as thoroughfares, the railroad
possessed the land as though it were free of the burden of the
City's servitude. The railroad's possession of the land therefore
was "necessarily adverse" to any possession or exercise of the real
right the City had enjoyed. Yiannopoulos, supra § 313, at 607
("[W]hen the adverse possessor of the immovable ... erects
constructions that contravene the possession of the real right ...
the ... constructions mark the commencement of an adverse
possession of both the immovable and the real right burdening
it.").
The City lost possession of its servitude by abandoning the
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servitude with its consent to close the streets from further use as
a passageway or by the railroad's possession of the immovable as
though it were free of the servitude.7 See La.Civ.Code Ann. art.
3433 (West 1994) ("Possession is lost when the possessor manifests
his intention to abandon it or when he is evicted by another by
force or usurpation."); see also Aubry & Rau, Droit Civil
Francais, in 2 Civil Law Translations § 179, at 91 (1966)
(possession of apparent servitude is lost by changes made on the
servient estate which make exercise of the servitude impossible or
represent an obstacle to its exercise). Accordingly, we hold that
the railroad did not commence possession on behalf of the City.
The railroad was therefore presumed to possess as owner.
La.Civ.Code Ann. art. 3427. The City has not rebutted this
presumption. River City is entitled to be maintained in possession
of the land.
III. Water Street
The district court held as to one segment of the property
called Water Street that NO 2000 did establish its possessory
rights. The City cross-appeals the court's granting NO 2000
possession of Water Street. Unlike the property underlying other
streets at issue, the property underlying Water Street was not
listed in the 1912 Ordinance as one of the streets to be closed and
was never dedicated to public use via sales of adjacent properties
7
River City also asks that we rule on its contention that
the City's servitude has been terminated due to abandonment or
prescriptive non-use. This question relates to ownership rather
than possession of the servitude and is not at issue in a
possessory action.
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with reference to the street or to a map depicting the street.
The City's appeal is based on the erroneous assumption that it
would have obtained full ownership of the land underlying Water
Street through an implied dedication (if one occurred). We reject
the notion that implied dedication transfers ownership, as
discussed above. Moreover, the City has not shown the district
court's finding of no dedication of Water Street to be clearly
erroneous.
The railroad has possessed the land underlying the former
Water Street as well as the other streets at issue, and the City
has not shown such possession to have been precarious. The
judgment of the district court is affirmed inasmuch as it maintains
NO 2000 in possession of the Water Street property.
IV. Conclusion.
We affirm in part the judgment of the district court with
respect to the ruling maintaining NO 2000 in possession of the
property underlying Water Street. We reverse in part regarding the
land underlying the other closed streets and remand for entry of
judgment maintaining River City in quiet possession of such land.
AFFIRMED in part, REVERSED in part, and REMANDED.
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