Landry v. Council of Par. of E. Baton Rouge - 220 So. 2d 795 (La. Ct. App. 1969)

Rule:

The Civil Code draws a distinction between public things, the property of which is vested in the state, but the use of which is common to all the inhabitants thereof, 'and even strangers, such as the seashore, river beds, highways, streets, and public parks, and public property, which is not for the common use of the inhabitants, but may be employed for their benefit, such as, for instance, the public offices, police and fire stations, markets, school houses, etc. The latter class of public property belongs absolutely to the municipality by which it has been acquired and may be dealt with as the municipality sees fit, subject only to the restrictions imposed by the deed of acquisition or by special laws. The former class of public things belongs to the people, i.e., to the state, and the municipalities have only the administration thereof, unless otherwise authorized by special laws. And to this class belongs the property in controversy herein.

Facts:

Pursuant to call by the Police Jury of East Baton Route Parish (Police Jury), the then governing authority of the Parish of East Baton Rouge, an election was held August 20, 1929, approving a proposed property tax authorization to levy a 3/10ths of one mill assessment for the purpose of acquiring, building, constructing, equipping and maintaining an airport comprised of 200 acres of land from a portion of Goodwood Plantation. Title to subject property was acquired by the Police Jury pursuant to act of cash sale dated February 14, 1930. No mention is made in the deed proper of the use to which the property may be put. Since the purchase of the airport site, the property has been continuously utilized as an airport to accommodate small, privately owned airplanes. Due to the accelerated growth and expansion of the city and parish in recent years, the airport is presently situated within the city limits. 

By resolution adopted May 24, 1967, the Council declared its intention to close the airport as of December 1, 1968, with the understanding that steps be immediately taken to provide for an equal or better facility. In justification thereof, the Council maintains the stipulated facts show the airport is no longer situated on the outskirts of a small community. Rather, it appears the facility is now situated in the center of a highly congested commercial and residential area of the present metropolis. On this premise defendant urges continuous use of the site as an airport entails considerable risk and peril to adjoining business establishments and residences as well as the traveling public. Defendant further maintains the undesirable conditions thus produced can be relieved only by discontinuing use of the airport at its present site, converting the property to other public use and transferring the airport to a locality removed from the developed areas of the present city. The citizens opposed the closing and brought an action to enjoin the proposed closure of subject airfield and the diversion of the property to other uses. Alternatively, the citizens prayed for a declaratory judgment decreeing the council without authority to effectuate its declared intent to cease operation of the airport as of an announced date. The trial court granted the declaratory judgment and held that the council was without authority to discontinue use of the property in question as a public airport and permanently enjoined defendant from closing the airport or converting the property to some other public purpose.

Issue:

Did the trial court err in ruling that the council was without authority to close the airport and/or use said airport property for any other purpose other tan that of an aviation facility?

Answer:

Yes.

Conclusion:

Considering the applicable codal provisions and pertinent jurisprudence, it would appear that public property in the public domain envisions such publicly owned property and facilities as are open to the use of all peoples indiscriminately and without charge and which serve no quasi-commercial or proprietary purpose. Included in this classification are streets, public parks, public walks, libraries, public squares and museums. On the other hand, publicly owned property or facilities which by their nature are not open to use by the general public but are employed for the common good, such as public offices, police and fire stations, auditoriums and schoolhouses, would appear to fall within the classification of public property in the private domain. In this same order would be included publicly owned property of a quasi-proprietary or quasi-commercial nature such as public markets, airports and port facilities open to that segment of the public having need therefor and for whose use a fee or charge is levied.

The appellate court public airport is not common property to the use of which all are entitled and therefore such facilities do not fall within the classification of public property in the public domain. On the contrary, such facilities are by their very nature restricted in use. Obviously such an installation may be availed of only by those who own, rent or travel by small private airplanes. Moreover, an airport is commercial in nature or at least quasi-commercial in that those who use its facilities are charged for the privilege. It is of importance that defendant is not seeking to dispose of the airport site or convert the property to private use. Defendant is seeking merely to close an airport which it deems no longer suitable for the purpose originally intended. The appellate court finds the property in question falls within that classification which according to Anderson v. Thomas "belongs absolutely to the municipality by which it has been acquired and may be dealt with as the municipality sees fit, subject only to the restrictions imposed by the deed of acquisition or by special laws." 

In this case, no limitation, restriction or prohibition against closure of the airport appears in the deed of its acquisition. Neither was there any special law prohibiting defendant from closing the facility in question. Thus, a determination of this character lies within the sound discretion of the governing authority concerned whose decision will not be interfered with by the courts in the absence of an abuse thereof. No such abuse in the case at hand was found. On the contrary, the action taken by defendant herein appears fully justified by the attending circumstances.