Cenac v. Pub. Access Water Rights Ass'n - 2002-2660 ( La. 06/27/03), 851 So. 2d 1006

Rule:

Implied dedication is a common law doctrine, but it has been recognized by Louisiana courts since the 19th century. No particular formalities are required to effectuate an implied dedication. Traditionally, because implied dedication lacks the formalities and safeguards of the other modes of dedication, the two indispensable elements of implied dedication required by the courts are a plain and positive intention to give and one equally plain to accept. Thus, implied dedication requires an unequivocally manifested intent to dedicate on the part of the owner and an equally clear intent to accept on the part of the public.

Facts:

Appellee Arlen B. Cenac, Jr. ("Cenac") owned a large tract of land which included a portion of a canal, called Company Canal, and an adjacent boat launch and parking area. Appellee filed a petition for injunction against appellant community association that sought to have the launch and canal declared public property. After a bench trial, the trial court entered judgment declaring appellee the owner of the property in dispute. Furthermore, the trial court issued a permanent injunction barring appellant from launching, parking, or otherwise using the boat launch. However, the trial court declared that appellee’s ownership of the canal was burdened by a servitude of use in favor of the public at large by virtue of implied dedication. The appellate court reversed the trial court's judgment declaring that the canal was dedicated to the public use by implied dedication.

Issue:

Were the appellee’s properties dedicated to the public use by implied dedication?

Answer:

No.

Conclusion:

The Court noted that implied dedication required an unequivocally manifested intent to dedicate on the part of the owner and an equally clear intent to accept on the part of the public. The Supreme Court of Louisiana agreed with the trial court that La. Rev. Stat. Ann. § 9:1251 applied to the boat launch, but not to the canal. However, the Supreme Court concluded that the evidence established only that the property was used for a long period of time by the public with the permission of the owners. That evidence was insufficient to establish the requisite intent required for an implied dedication. Inter alia, the original owners took pains to ensure the property remained private and not subject to any rights in favor of the public. While maintenance by the public was a factor in determining whether there had been an implied dedication, the amount of maintenance provided by the public was somewhat "sketchy" considering the long period of time over which the property was used by the public. Accordingly, the  judgment of the court of appeal, which affirmed the judgment of the trial court granting a permanent injunction as to the boat launch and reversed the judgment of the trial court declaring the canal to be dedicated to the public use by implied dedication, was affirmed.