Dainow, Joseph

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Louisiana Law ReviewVolume 19 | Number 1Legislative Symposium: The 1958 Regular SessionDecember 1958Civil Code and Related Subjects: Part IIJoseph DainowThis Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted forinclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationJoseph Dainow, Civil Code and Related Subjects: Part II, 19 La. L. Rev. (1958)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol19/iss1/19LEGISLATIVE SYMPOSIUMCivil Code and Related Subjects: Part IIJoseph Dainow*PROPERTYPassage over Private Property to and from WaterUnder existing law, a public road servitude is established bytacit dedication when the road has been "kept up, maintained orworked for a period of three years" by the appropriate publicauthority.' Act 463 of 19582 seeks to obtain for the public thevoluntary permission of a landowner to pass over his propertyfor convenient access to and from a recreational site or a bodyof water for boating, by precluding the establishment of a servi-tude even if there is upkeep, maintenance, or work by any publicauthority.Revocation of Dedication of ParksIn 1957, the Louisiana Supreme Court decided the case ofPolice Jury, Parish of Jefferson v. Noble Drilling Corp.8 andheld that once a plot of land had been dedicated for a park therewas no way for the police jury to renounce or disclaim its titledespite the fact that the park was never developed. The lawwhich permits revocation of the dedication of roads, streets, andalleyways 4 did not cover parks. Act 229 of 19585 fills this gap,and it provides that the parish governing authorities and muni-cipal corporations (except Orleans) may revoke the dedicationsof parks, public squares, or plots dedicated to public use whenthese have been abandoned or are no longer needed for publicpurposes. The title then reverts to the person who was the ownerat the time of the dedication.Transfer of Land Adjacent to Abandoned RoadWhen the dedication of an abandoned road, street, or alleyis duly revoked, the land reverts to the then present owners of*Professor of Law, Louisiana State University.1. LA. R.S. 48:491 (1950). Also by ten years' public use after being declareda public highway. LA. CVr. CODE art. 765 (1870).2. LA. R.S. 9:1251 (Supp. 1958).3. 232 La. 981, 95 So.2d 627 (1957); The Work of the Louisiana SupremeCourt for the 1956-1957 Term-Property, 18 LOUISiAxA LAW Rzvmw 31 (1957).4. LA. R.S. 48:701 (1950).5. LA. R.S. 33:4718 (Supp. 1958), added by La. Acts 1958, No. 229.1958]LOUISIANA LAW REVIEWthe contiguous properties.6 If such owner thereafter made a con-veyance or mortgage describing his property as bounded by suchroad, the transfer was limited to this description.7 To givegreater clarity and stability to these land titles, a conclusive pre-sumption has been established that the transfer or mortgage ofland adjacent to an abandoned road includes all the transferor'sinterest in the road unless expressly excluded.8 The new law isretroactive, saving however the transferor's right to preserveand protect his interests within one year.This new statute is a companion to a somewhat similar onewhich was passed in 1956.9 The 1956 law established a conclu-sive presumption that a transaction affecting land described asfronting on a road or canal or other right of way includes all thetransferor's interest in and under the right of way unless ex-pressly excluded.ExpropriationThe sovereign right of expropriation is exercised primarilyby the state and secondarily by other bodies under delegatedauthority for specified purposes and under certain conditions.10Generally, compensation is settled before the taking; in someinstances an earlier acquisition is expressly authorized. Act 204of 1958 added a Part IV to Title 19 of the Revised Statutes"providing that in any suit for the expropriation of property, allport commissions and port authorities along with LouisianaState University and the Department of Public Works may ac-quire the property prior to judgment in the trial court. Thenecessary procedures are outlined for both the acquisition andthe determination of compensation; the only basis on which theacquisition can be defeated is by a court finding that the prop-erty was not taken for a public purpose.MINERAL RIGHTSMineral Leases on State LandsAct 353 of 195812 transferred to the State Mineral Board6. LA. R.S. 48:701 (1950).7. Hollingsworth v. Chaffe, 33 La. Ann. 547 (1881).8. LA. R.S. 9:2981-2984 (Supp. 1958), added by La. Acts 1958, No. 528.9. Id. 9:2971-2973, added by La. Acts 1956, No. 555.10. LA. R.S. 19:1-107 (1950), and cross references there cited. See Comment,Bxpropriation -A Survey of Louisiana Law, 18 LOuiSIANA LAW REv3EW 509(1958).11. LA. R.S. 19:141-160 (Supp. 1958), added by La. Acts 1958, No. 204.12. LA. R.S. 30:126, 130, 136 (1950), amended by La. Acts 1958, No. 353.[Vol. XIXLEGISLATIVE SYMPOSIUMcertain functions and authority which had previously been vestedin the Register of the State Land Office. Hereafter, the Boardwill publish the advertisements for bids, and handle the tenthousand dollar fund set aside for this purpose. The Board willauthorize one of its members or staff to sign documents for thestate; it will also review and approve all payments received.While the Register will still be official custodian of all documentsand records, there will be a duplicate set kept by the Board.A new special authority for the State Mineral Board wasestablished by Act 352 of 195818 to meet the needs of situationswhere a controversy exists as to the ownership of the lands inquestion. With the concurrence of the State Attorney General,the Board is authorized to make agreements respecting theissuance of new leases or the operation under existing leases,and providing for conditional payments or escrow deposits pend-ing final adjudication or settlement of the controversy.Prescription of Mineral Rights and ServitudesR.S. 9:580614 provided that when the federal government orits agencies acquired land subject to existing mineral rights,these rights would be imprescriptible. In 195815 this section wasamended by the addition of a similar provision concerning theacquisition of such land by certain state governmental agencies.To this new provision is attached the proviso that, if the landreverts to private ownership, the ten-year non-user prescription1 6would run against the holder of such rights or servitude, in favorof the person who owned the land at the time of its acquisitionby the state agency. The text is very confused, probably due tothe fact that amendments were proposed, rejected, compromised,and adopted before final passage. The proviso concerning rever-sion may have been intended for inclusion in both parts of thissection but as it appears only in the second part (acquisitions bystate agencies), it would be inapplicable to the federal acquisi-tions under the first part of the section.To clarify a troublesome question, a new statutory definitionwas established to fix the point of time for the beginning of thenon-user prescription of mineral servitudes as the day on whichthe servitude is created. Production or bona fide attempts to do13. LA. R.S. 30:178 (Supp. 1958), added by La. Acts 1958, No. 352.14. Source: La. Acts 1940, No. 315.15. La. Acts 1958, No. 278.16. LA. CIviL CODE arts. 789, 3546 (1870).19581LOUISIANA LAW REVIEWso interrupt the prescription, which resumes, however, when ac-tivity ceases. Prescription is also interrupted by shut-in pay-ments in lieu of production, but resumes after the term of pay-ment. 17 It is expressly provided that the new provision does notaffect the imprescriptibility rule of R.S. 9:5806 (presumably asamended in the same session).SECURITY DEVICESSuretyshipWithout changing the liability of either a person (principal)or his surety as established by the terms of a surety bond, a newstatutory provision' authorizes the principal by agreement withthe surety to deposit for safekeeping any moneys and assets forwhich they might be held responsible. The transaction is subjectto the supervision and instruction of the courts.Vendor's Privilege and Mortgage of Building and LoanAssociationThe building and loan associations have made possible a highpercentage of individual home ownership in Louisiana, and theirdetailed statutory regulation not only protects the individualsbut also incorporates special advantages for the associations.One of these was the sale and resale transaction to provide theadditional security of a vendor's privilege, along with the usualconventional mortgage. One of the special advantages of thevendor's privilege was the leeway of seven days (or fifteen if ina different parish) for recordation while preserving the date ofexecution for ranking purposes under Civil Code Article 3274.Since this has been the customary practice for all these manyyears, there had been intermittent proposals that the trans-action itself be simplified so as to minimize the documents andthe costs while preserving all the security rights. Act 317 of195819 finally achieved this purpose, and became applicable forall building and loan association mortgages executed after twelveo'clock noon, August 1, 1958. The duration of effectiveness ofthe original recordation is for twenty-five years from date offiling, and reinscription is effective for twenty years.Building Construction PrivilegesIn the construction of housing projects, one general contrac-tor is likely to use the same crew of workmen simultaneously17. LA. R.S. 30:112 (Supp. 1958), added by La. Acts 1958, No. 332.18. Id. 9:3904, added by La. Acts 1958, No. 356.19. Id. 6:796.[Vol. XIXLEGISLATIVE SYMPOSIUMon several different buildings just as he would make a singlepurchase of materials for use in several active constructionprojects going on at the same time. When this occurred on ad-jacent tracts belonging to one owner, it was not feasible to iden-tify the exact amount of an individual's work or of a single ship-ment of supplies which went into each building. There werejustifiable reasons to treat the whole operation as one construc-tion project and establish the laborers' and materialmen's privi-lege on all the buildings and land involved.20 However, as housingdevelopments became more extensive, encompassing a muchlarger number of units and extending over a much longer time,it was equally reasonable to re-introduce some limitation uponthe scope of this privilege. Accordingly, Act 448 of 1958 addedthe proviso that such privilege shall not affect any building (orland on which situated) "where all material and services havebeen furnished and all labor has been performed [on that build-ing] ... more than sixty days prior to the filing of said privi-lege."'21 This period coincides with the delay allowed underR.S. 9:4812 for filing claims where there is no recorded contract.It does not follow, nor is it clear, that the Legislature intendedto extend the time for filing claims under R.S. 9:4802 (thirtydays after registry of acceptance or default) where there is arecorded contract and bond. It is expressly provided that thisamendment would have no retroactive effect. 22Privileges on Oil, Gas, and Water WellsPrivileges are a security device which give certain creditorsspecial protection by means of a priority against the proceeds ofspecified property. Just as laborers and materialmen on a con-struction project were given a privilege on the land and improve-ments to which they had contributed, so were they also recog-nized in the first statutes governing oil, gas, and water wells.2 8This original relatively simple social purpose, constituting abalance between conflicting interests in the field, gradually tookon the form of a tug of war. On one side, the privileged claim-ants were getting extensions of the base of their privileges soas to cover not only the well and the equipment but also the lease20. La. Acts 1926, No. 298, § 15%, added by La. Acts 1944, No. 79, now in LA.R.S. 9:4816 (1950).21. LA. R.S. 9:4816 (1950), as amended by La. Acts 1958, No. 448.22. La. Acts 1958, No. 448, § 2.23. La. Acts 1916, No. 232.1958]LOUISIANA LAW REVIEWand every other element of value connected with the enterprise.On the other side, more and more categories of claimants gotthemselves included in the list of privileged claims.2 4 In themiddle, the unlucky debtor-operator was torn to shreds in anycase. Of course, if he struck it rich, everybody was happy.After all these years, the attorney's fees were also finally in-cluded among the privileged claims against oil, gas and waterwells. 25 Considering the intimacy said to exist between lawyersand the law, this tardiness may seem surprising. It will be evenmore surprising then to note that until this time, there have beenonly two privileges in favor of attorneys for their professionalfees: one on "all judgments obtained by them, and on the prop-erty recovered thereby ;-26 and the other on workmen's compen-Sation awards.2 7 Does the 1958 statute represent a late startbut a new trend?Legal MortgagesArticles 2376 and 3319 of the Civil Code provide that the wifehas a legal mortgage on the property of her husband for therestitution of her dowry and for the reinvestment of the dotalproperty sold by her husband. Dowry is the contribution madeby the wife, or by others on her behalf, to support the expensesof the marriage, and a settlement of dowry can only be madebefore the marriage in the so-called "marriage contract" (betterdescribed as an ante-nuptial property agreement) which must bean authentic act in notarial form.28A tradition of sentiment and value in the Parish of WestBaton Rouge is the continuing Julien Poydras legacy of dowriesto indigent brides every year. Act 147 of 1958 provided that thelegal mortgage to secure a wife's dowry shall no longer applyto these Poydras dowries, and that all existing encumbrances ofthis category shall be cancelled.24. La. Acts 1928, Nos. 171, 172; La. Acts 1932, No. 161; La. Acts 1934, No.145; La. Acts 1940, No. 100; La. Acts 1942, No. 68. See DAOGETT, MINERALRIGHTS IN LOUISIANA 851 et seq. (rev. ed. 1949).25. LA. R.S. 9:4861 (1950), as amended by La. Acts 1958, No. 23.26. Id. 9:5001, incorporating LA. R.S. § 2897 (1870) and La. Acts 1906, No.124.27. Id. 23 :1141, first incorporated in the Workmen's Compensation Act withthe amendments in La. Acts 1926, No. 85. Current changes made by La. Acts1958, No. 496, in the permissible amount of attorney's fees is discussed infra page113.28. LA. CivnL CODE arts. 2328-2331, 2337 et seq. (1870).[Vol. XIXLEGISLATIVE SYMPOSIUMIf, by any chance, the Poydras legacy is given to a bride with-out a settlement of dowry in a notarial property agreement be-tween the spouses before their marriage, it is doubtful whetherthis gift to the wife would properly be classified as dowry.In such event, she would still have a legal mortgage to securethe restitution or reimbursement of this as her paraphernal prop-erty.29 However, she would not have the privilege on the hus-band's movable assets which protects only dotal property.8 0 Al-though the 1958 act abolishes the legal mortgage, the privilegestill remains where the Poydras legacy is properly classified asdowry. However, if it is dowry, this property of the wife is nowless protected than her paraphernal property which still has thebenefit of a legal mortgage.In view of the fact that ante-nuptial property agreements("marriage contracts") are hardly ever used in Louisiana, itwould be much simpler to remove the dowry provisions and allreferences to dowry from the Civil Code and the statutes. ThePoydras legacies will continue to be what they have alwaysbeen - a beneficent assistance to marriage for the qualifiedbrides.PRESCRIPTIONEvery statute incorporates a policy objective, and for eachthere is a problem of drafting. Draftsmanship involves not onlythe choice of appropriate words and terms of art but also anunderstanding of where to place them. Despite the reverencealways professed for the Civil Code (and pretermitting issuesof policy) the technique of code article amendment has some-times been used without regard for the internal classificationand coordinated plan of the Code as a whole. This lack of under-standing of the composition of the Civil Code is distressing, tosay the least. The Civil Code chapter on prescription is dividedinto three parts: (1) general provisions, (2) acquisitive pre-scription, and (3) liberative prescription. Act 341 of 1958amended an article in the part on liberative prescription so as tomake a certain provision applicable also to acquisitive prescrip-tion.Over the years, the original principle that prescription issuspended against minors, interdicts, and married women has29. Id. art. 3319(3).30. Id. arts. 2376, 3191.1958]LOUISIANA LAW REVIEWbecome more and more limited so that prescription now doesrun against these persons in several situations. Article 3541 inthe part on liberative prescription was amended by Act 736 of1954 so as to make the thirty-year (liberative) prescriptions runagainst these persons.81 Act 341 of 1958 further amended thissame article so as to make this provision cover both liberativeand acquisitive thirty-year prescriptions. Prior amendments con-cerning the running of the ten-year acquisitive prescriptionagainst minors, interdicts, married women, and absentees, wereduly incorporated in the appropriate article.82 The 1958 amend-ment concerning acquisitive prescription would have had aproper location in Article 3499.An important immediate and transitional feature of this1958 act is not in the express article amendment but in anothersection of the statute. This provides that the amended article"shall operate retrospectively, as well as prospectively"; how-ever, there is the proviso that no prescription of thirty yearsshall accrue before the expiration of 6 months from the effectivedate of the act.88Courts and Civil ProcedureHenry G. McMahon*APPELLATE REVISIONThe most acute problem which has confronted the legal pro-fession in Louisiana during the past few years has been the over-load thrown upon our Supreme Court by its ever-increasing civilappellate docket. To solve this problem the Judicial Council,through a committee of its own, and in cooperation with theChief Justice, the judges of all of the appellate courts, the Ju-dicial Administrator, and committees of the state and local bar31. Hebert & Lazarus, 1954 Legislation Affecting the Civil Code, 15 LOUISIANALAW REvIEw 9, 16-18 (1954), considered the 1954 act as covering both liberativeand acquisitive prescription. Their comments are predicated upon Louisiana de-cisions there cited which fuse Articles 3499 (acquisitive prescription) and 3548(liberative prescription) as one, upon the assumption that the only thirty-yearprescription involves title to immovable property. However, there are also otheractions subject to the thirty-year liberative prescription in LA. CIVIL CODE arts.68, 78, 1030 (1870), and LA. R.S. 9:5701 (1950), which deny the generalizationthat Article 3548 is the counterpart or affirmance of Article 3499.32. LA. CIVIL CODE art. 3478 (1870), as amended by La. Acts 1920, No. 161,and La. Acts 1924, No. 64.33. La. Acts 1958, No. 341, § 2.*Professor of Law, Louisiana State University.[Vol. XIX

Civil Code and Related Subjects: Part II

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