Daily Development for
Friday, November 15, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

EASEMENTS; CREATION; DEDICATION; IMPLIED DEDICATION: Public may acquire interest in land on which road is built through "tacit dedication," where landowner is aware that public is making permanent improvements in roadway and public uses the roadway for three years. St. Charles Parish School Board v. P & L Investment Corporation, 674 So.2d 218 (La. 1996).

Landowner owned a fifty foot wide strip separating a local high school's parking lot from a road parallel to the strip. Landowner intended to dedicate the strip at some time to the high school, but never in fact did so, and had no legal obligation to do so. The public authorities knew that the land was not public land and had not been dedicated. Nevertheless, the public authorities paved the strip and used it regularly to provide access to the high school parking lot.

Subsequently, the landowner apparently changed its mind regarding the strip, perhaps because the public authorities were resistant to its scheme to run underground pipes through it. A dispute arose, resulting in this action for declaratory relief:

Held: Although there was never any express dedication, no platting, and certainly no sufficient running of an adverse possession period, the strip was dedicated to public use by "tacit dedication" when the landowner permitted the public to make such investments in the strip in the belief that the strip would later be dedicated and then tolerated use of the strip for three years.

Comment: The result seems understandable, but the theory is a bit murky. We don't quite have classic laches here, since there was no mistake on the part of the public agencies about the true ownership of the land. But the result is similar to promissory estoppel. There was an implied or express representation that the landowner indeed intended at some future time to make a dedication of the strip, and in reliance upon that the public agencies made extensive investments in improving it.

But the theory is a bit shaky. It seems very easy for this case to become authority for public agency exploitation of ambiguous situations. Further, if the basis for the theory is as described in the preceding paragraph, why should the court emphasize (as it does) the three years of actual use? Wouldn't the investment be enough?

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