
    No. 6740.
    TOWN OF KENNER vs. FRANK ZITO.
    Syllabus.
    On Motion To Dismiss.
    Under Act 173 of 1902, p. 327, the Town of Kenner, as a municipal corporation, is not required to furnish any bond of appeal in any judicial proceeding instituted by it.
    Appeal from the 28th Judicial District Court, Parish of Jefferson, No. 1944. Honorable Prentice E. Edrington, Judge. ~
    F. A. Middleton, for plaintiff and appellant.
    Johnston Armstrong, for defendant and appellee.
    P. E. Edrington, Jr., for warrantor.
   His Honor, 'CHARLES F. CLAIBORNE,

rendered the opinion and decree of the Court, as follows:

Plaintiff claims that the portion of ground within Maryland Avenue and Louisiana Boulevard, has been dedicated to public use and is public property under the administration of the plaintiff, and that Frank Zito has taken possession of the same and refuses to deliver possession thereof to plaintiff. Plaintiff prays for judgment recognizing said portion of ground to be public property and condemning the defendant to surrender the possession of it to plaintiff.

There was judgment dismissing plaintiff’s suit and condemning plaintiff to pay defendant and the Hanson City Land Company $300 damages.

In due time plaintiff obtained the following order of appeal :

“It is ordered that a suspensive appeal be granted to plaintiff, Town of Kenner, * * * upon furnishing bond in the sum of fifty dollars conditioned as the law directs.”

Plaintiff furnished the bond required by the order of appeal.

Defendant and his warrantor moved to dismiss the appeal on the ground that the .bond is insufficient in amount, as it is not for an amount equal to one-half over and above the amount of damages allowed and does not include a devolutive appeal. The answer of the appellant to the motion to dismiss is that plaintiff is not required under the law to furnish any -bond.

The plaintiff was organized under Act 136 of 1898, p. 224, providing for the creation and government of municipal corporations throughout the State, etc.

Section 1 divides municipal corporations into three classes, viz: those having 5000 inhabitants or more are cities; those having less than 5000 and more than 1000 inhabitants are towns; and those having less than 1000 inhabitants are villages.

Section 19, p. 235, designates the officers of every municipality as mayor, aldermen or board of aldermen, etc. See also Sections 22, 23, 33, 34 and 36.

Act 173 of 1902, p. 327, provides that State, Parish, and Municipal Boards exercising public powers or administering public functions shall not be required to furnish any bond whether of appeal or otherwise in any judicial proceeding instituted either by or against said board.

Opinion and decree, May 8th, 1916.

Syllabus.

On The Merits.

1. The word “Park” appearing upon the recorded plat of a sub-division means' primarily a public and not a private .park to the same degree that the word street under like circumstances signifies a public thoroughfare and not a private way.

In the case of Martin vs. Board of Fire Commissioners of City of New Orleans, 132 La., 188 (191) the Supreme Court said:

‘ ‘ The first proposition for decision is that the act creating the Board of Fire 'Commissioners did not exempt it from giving bond for an appeal, that, as it did not give bond, the appeal should be dismissed. It is sufficient to state in regard to the appeal bond that under Act 1731 of 1902, p. 327, all municipal boards or commissioners exercising public functions or performing administrative acts are exempt from furnishing bonds of appeal. The Board of Fire Commissioners of the City of New Orleans is a public functionary, and, therefore, exempt, and can appeal without giving bond.”

We entertain no doubt that the Mayor and Board of Aldermen administering the affairs of the Town of Kenner are public functionaries within the letter and spirit of the above statute and as such are not required to furnish any bond .of appeal in any judicial proceeding instituted by them.

The motion to dismiss the appeal is therefore denied.

2. In determining whether or not an intention to dedicate to the public is manifested by the owner of the property, the words, phrases and titles appearing upon a plat of a subdivision are to be considered as a whole and in their ordinary meaning and not in the latent, peculiar or special sense in which the owner says he employed them.

3. The acts of an owner in making and recording a plat of his property sub-dividing it into lots, squares and what are apparently public streets and parks and in thereafter selling the lots to the public on the basis of said plat, constitute in themselves an immediate and irrevocable'dedication of such streets and parks to the public, no act of acceptance of the dedication, formal or otherwise, by or on behalf of the public or municipality, being required.

4. An appellate Court cannot review the judgment as between co-appellees. , •

Iiis Honor, EMILE GODCHADX,

rendered the opinion and decree of the Court, as follows:

■ Plaintiff, the Town of Kenner, seeks to establish- that a portion of ground situated in what was formerly known as Hanson City but now comprised within the corporate limits of the town of Kenner, was dedicated to public use as .a park by the Hanson City Land Company, Ltd., the founder of Hanson 'City. This company has been called in warranty by defendant, who is in possession claiming title by purchase from said -company.

■ It appears that in 1894 the Hanson City Land Co., Ltd., caused to be made and placed of record a plat of a large tract of land which it owned, naming the sub-division “Hanson City.” The property was divided into streets, boulevards and squares and the squares sub-divided into lots, each square and lot being duly numbered and each street or boulevard named, and the dimensions of the lots, streets or boulevards being specified.

Not so, however, with regard to the property in controversy, for it is not numbered at all, nor divided into lots as are the other squares, nor is there any specification of dimension. It is designated upon the map “Hanson City Ry. Park,” and independently of this, the general treatment of the space, with a gradually widening way or walk cut through it, dividing it into two triangular plots, conveys to the eye at once the impression of a park. Upon one side it is bounded by “Park Street,” and another boundary is Louisiana Boulevard, upon which latter street there existed and still exist the tracks and-station of the Yazoo & Mississippi Yalley Railroad Company.

The Hanson City Land Company by private sale as well as at public auction then proceeded to sell the lots with particular and specific reference to the plat and its recordation, and has succeeded in disposing of nearly all of its holdings by this method.

Meanwhile, however, it apparently neither exercised, performed nor claimed any right or act of ownership or possession with respect to “Hanson ‘City Ry. Park,” until 1914 when,'after a lapse of nearly 20 years, it executed an act of sale of this property to defendant herein.

The word “Park” appearing upon the recorded plat of the sub-division, means primarily a public and not private park to the same degree that the word “street” under like circumstances signifies a public thoroughfare and not a private way.-

City of New Orleans vs. Carrollton Land Co., 131 La., 1094.

Town of Winton vs. Lyons. 131 La., 674.

The destination of the space as a park is emphasized by the adjacent street being “Park Street,” and the testimony, in this connection, to the effect that the Company designated the street “Park” in honor of an employee of that name is immaterial, as the ordinary meaning of the word is to be considered and not the peculiar or special sense in which it was used by the company.

Livaudais vs. Municipality No. 2, 16 La., 509.

And moreover the use of “ Hanson-'City” in the title of the square clearly suggests a municipal or public and not-a private ownership, interest or use.

But-it is claimed that the presence of the word “By.” or “Bailway” materially affected the meaning of the title and clearly manifested an intention on the part of the warrantor to reserve to itself this property in order that it might thereafter sell or dónate it to the Yazoo & Mississippi Valley Railroad as a private park adjacent to its station.

But, as we have heretofore remarked, the title must be considered as a whole and its interpretation governed by the ordinary meaning its language conveys and not by the latent intention of the warrantor. And thus considered it manifestly evidences a purpose to dedicate and not to reserve, and the sole significance that would readily attach to the word “By.” would be that this particular- park derived its distinguishing title from its proximity to'the railroad.

Flournoy vs. Breard, 116 La., 224.

The remaining defense is that there has been no valid dedication because it is neither averred nor proved that that dedication has been accepted by or on behalf of the public -or the municipality.

Upon the question of the necessity of such acceptance, it has for some time been the settled jurisprudence that, with respect to streets, the recordation of a plat of a subdivision upon which such streets are shown, followed by sales of lots in said sub-division according to the plat, constitutes in itself an immediate and irrevocable dedication of the streets to the public, no act of acceptance, formal or otherwise, being required.

Burthe vs. Fortier, 15 A., 9.

Sheen vs. Slothart, 29 A., 630.

Land vs. Smith, 44 A., 932.

Lefitte vs. City of N. O., 52 A., 2099.

Calhoun vs. Town of Colfax, 105 La., 416.

Flournoy vs. Breard, 116 La., 224,

And this doctrine, so well established as to streets, has recently been held applicable to parks under like circumstances.

Town of Vinton vs. Lyons, 131 La., 674.

City of N. O. vs. Carrollton Land Co., 131 La., 1094.

The judgment of the trial Court was against plaintiff and it must be set aside. As to the demand in warranty, the defendant and the warrantor are coappellees and we are consequently unable to adjudicate upon their rights. Moreover, since the sale to defendant comprised several parcels of ground, for a lump price, the extent of the warrantor’s liability with respect to the property in question cannot presently be determined.

The judgment is accordingly set aside and reversed and it is now decreed that that certain portion of ground located in what is or was formerly known .as Hanson City, now part of the Town of Kenner, and bounded by Park Street, Farrar Avenue, Maryland Avenue, and Louisiana Boulevard,. according to the recorded plat of Hanson City, be and is hereby recognized and declared public property with the right of custody and administration vested in the Town of Kenner; and it is further decreed that defendant, Frank Zito, deliver up said property to the public and vacate same and that be pay the costs of both Courts.

Opinion and decree, June 12th, 1916. .

Application for rehearing made and pending, June 26th, 1916.

Reversed.  