Judges: RICHARD P. IEYOUB
Filed Date: 8/23/2001
Status: Precedential
Modified Date: 7/5/2016
Dear Mayor Roach:
This office is in receipt of your opinion request wherein you advise that in 1999, the City of Lake Charles annexed an area that includes Prien Oaks Subdivision, a "gated community." The subdivision has a single street that is presently maintained as a private drive. You indicate that residents of the subdivision desire to have the private drive dedicated to the public and in return, the City of Lake Charles would be asked to accept the drive and provide maintenance. The residents do not want to remove the gate that controls access to the drive and "gated community."
Subsequent to your opinion request, this office received additional factual information from Calcasieu Parish District Attorney Rick Bryant, advising that the gate at the entrance to the subdivision was in existence at the time the subdivision was incorporated into the City of Lake Charles. The subdivision pays city property taxes and sales taxes. It receives city water, sewage, and garbage services as well as city police and fire protection. The residents agree to keep the gate open during daylight hours and that the gate code will be provided to all who seek it. These same residents feel strongly that the small, one-way road running through the subdivision should be maintained by the City, as are all of the above described services. This private drive services approximately fifteen to twenty private residences.
At the outset, your inquiry must be examined in light of La.Const. Art.
This same issue has been examined in prior opinions of this office. Among them, Attorney General's Opinion No. 76-649 determined that the Bienville Parish Police Jury could not use parish equipment or materials to blacktop driveways located on private property. Attorney General's Opinion No. 77-1594 concluded that a Police Jury could not perform road work on private driveways and roads if the benefits of said work would inure only to the owner of the properties enhanced thereby and no substantial public purpose was served. More pertinent to this inquiry, Attorney General's Opinion No. 78-1643 concluded that the Catahoula Parish Police Jury could not expend public labor, materials, or funds on the maintenance and repair of a road leading to one or even several residences, but not used by the public at large.
In view of the above, we are of the opinion that any expenditure of public funds, labor, or materials on the maintenance, repair, or improvement of a private drive located within a "gated community" is proscribed by La. Const. Art.
More specifically, you have asked whether the City of Lake Charles can accept a private drive for public use and maintenance. This private drive is located within a "gated community" and the residents of said community wish to retain a measure of control over the ingress and egress by the public.
A road is either public or private in nature. La.Civ. Code Art.
Louisiana courts have recognized four modes of dedication: formal, statutory, implied, and tacit. Of the four, only formal dedication is applicable under the facts at issue. Therefore, we limit our discussion to this single mode of acquisition.
A landowner may make a formal dedication of a road by virtue of a written act, such as a deed of conveyance to the police jury of the parish or, as the case may be, a municipality. Frierson v.Police Jury of Caddo Parish,
We are unable to discern whether the residents of Prien Oaks intend to convey unencumbered ownership of the private drive or simply a servitude of passage. If it is ownership of both the surface and soil beneath the drive that is the object of dedication, we are of the opinion that the subdivision residents would have no legal right to obstruct a public road, be it by means of a controlled access gate or otherwise, as the property would be publicly held, affording Prien Oaks residents no right to prevent ingress or egress. A public road is a way open to all the people, without distinction, for passage and repassage at their pleasure. Galloway v. Wyatt Metal Boiler Works,
Under the alternative scenario of dedicating only a servitude of public use, like results occur. The public is entitled to full, unhindered and unobstructed use of a servitude of public passage.Melancon v. Giglio, 96-2507 (La.App. 1 Cir. 3/13/98),
In summary, any expenditure of public funds, services, or materials on private roadways, such as is the present case, violates the dictates of La. Const, Art.
Trusting this adequately responds to your request, I am
Very truly yours, RICHARD P. IEYOUB ATTORNEY GENERAL
BY: _________________________ KEVIN L. HANCHEY Assistant Attorney General
DATE RELEASED: August 23, 2001