Shreveport Chapter #237 of the United Daughters of the Confederacy v. Caddo Parish Commission et al
Filing
108
MEMORANDUM RULING re 88 MOTION for Summary Judgment filed by Caddo Parish Commission. Signed by Judge Robert G James on 7/25/2018. (crt,Crawford, A)
Case 5:17-cv-01346-RGJ-MLH Document 108 Filed 07/25/18 Page 1 of 20 PageID #: 2560
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
SHREVEPORT CHAPTER #237
OF UNITED DAUGHTERS OF THE
CONFEDERACY
CASE NO. 5:17-CV-01346
VERSUS
JUDGE ROBERT G. JAMES
CADDO PARISH COMMISSION
MAG. JUDGE MARK L. HORNSBY
MEMORANDUM RULING
Pending before the Court is a Motion for Summary Judgment, submitted by Defendant, the
Caddo Parish Commission, whereby Defendant seeks dismissal of all claims asserted by Plaintiff,
Shreveport Chapter #237 of the United Daughters of the Confederacy. [Doc. No. 88]. At its core,
the dispute in this matter is whether the Caddo Parish Commission can remove the Confederate
Monument which sits on the front plat or portion of the Caddo Parish Courthouse Square. 1 The
answer to the question in dispute turns upon what person or entity has the right to control the
property upon which the monument sits. By its motion, Defendant contends Plaintiff “cannot
demonstrate a property interest in the land upon which the Confederate Monument sits and
therefore cannot assert First, Fifth and Fourteenth Amendment Claims.” Id. at 1. Plaintiff opposes
the motion, contending it acquired ownership of the land underneath the monument by acquisitive
prescription. For the reasons that follow, the Court finds the Caddo Parish Commission has the
authority to remove the monument which sits upon property the Parish holds in trust for public
use. Accordingly, Defendant’s motion is GRANTED, and Plaintiff’s claims are DISMISSED
WITH PREJUDICE.
1
On October 19, 2017, the Caddo Parish Commission adopted Resolution No. 69, which “authorizes the
Parish Administrator, assisted by the Parish Legal Staff, to pursue any and all legal means to remove the
monument from the Caddo Parish Courthouse Square.” [Doc. No. 10-1 at 6].
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I.
Historical Background
On July 1, 1835, a Treaty was made with the Caddo Indians whereby the United States
would acquire the lands which today constitute Caddo Parish. [Doc. No. 38 at 2; see also Treaty
With the Caddo, 7 Stat. 470 (1835)]. The second supplemental article of the Treaty “reserved to
Larkin Edwards . . . one section of land to be selected out of the lands ceded to the United States
by the said nation of Indians. . . .” Id. The foregoing “floating reservation” given to Edwards,
which consisted of 640 acres and forms present day downtown Shreveport, included what later
became known as Shreveport Block 23. [Doc. No. 90 at 6]. On January 24, 1836, Larkin Edwards
entered into a promise to sell his floating grant to Angus McNeill for $5,000.00, on the condition
that the Treaty between the United States and the Caddo “be confirmed by the Senate of the United
States. . . .” [Doc. No. 90-1 at 14, 16].2 On January 26, 1836, the Treaty with the Caddo was ratified
by the United States Senate. See U.S. v. Brooks, 51 U.S. 442, 448 (1850).
In May of 1836, Angus McNeil and six other persons formed the Shreve Town Company.
[Doc. No. 90 at 6; Doc. No. 90-1 at 12; see also Pickett v. Brown, 18 La.Ann. 560, 561 (La. 1866);
Akin v. Caddo Parish Police Jury, 234 So.2d 203, 205 (La.App. 2 Cir. 1970)]. On May 27, 1836,
McNeil sold and assigned to each of his partners an equal interest in the Edwards’ reserve. [Doc.
No. 90-1 at 12]. That Act of Sale states the reserve “has been located on Bennett and Cane’s Bluff
on the South Bank of Red River as will more fully appear by reference to a survey made by Grant
A. Alexander, dated on the 16th of May, 1836, which tract or parcel of land has been laid out in
lots for a town to be called SHREVE TOWN.” [Doc. No. 90-1 at 12 (emphasis in original)]; see
also Akin at 205; City of Shreveport v. Walpole, 22 La.Ann. 526, 527 (La. 1870); Cane v. Battle,
3 La.Ann. 642, 643 (La. 1848).
2
See also Doc. No. 90-1 at 16 (noting the document reflecting the agreement was incorrectly dated January
24, 1835).
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On February 4, 1837, Larkin Edwards executed an act under private signature whereby he
nullified the former conveyance of his property to McNeil, acknowledged he had previously
received $5,000.00 for the property, and then conveyed the property to the members of the Shreve
Town Company. 3 The document further states:
It is my intention and it is so understood between me and the purchasers above
named to convey all the right, title, claim and pretensions which I now have by
virtue of the above recited Treaty . . . and I do hereby warrant and will forever
defend the above sold and described tract of land to the said purchasers, their heirs
or assigns, against the claim or claims of all and every person or persons
whomsoever. . . .
[Doc. No. 90-1 at 16]. Edwards further bound himself, his “heirs, executors, and administrators,
to pass and sign an authentic Act of Sale of the above mentioned tract of land before any Notary
or other public officer duly authorized to receive and record contracts in the said State whenever I
or they shall be legally required so to do.” Id. The instrument is signed by Edwards, McNeill, the
six other members of the Shreve Town Company, and three witnesses. Id.; see also Cane at 643.
On June 27, 1839, Edwards acknowledged the February 4, 1837 conveyance of his land to the
Shreve Town Company before the Judge and Ex officio Notary Public for the Parish, as well as
two witnesses, thereby causing his act under private signature to have “the same credit as an
authentic act.” LA. CIV. CODE art. 2239 (1825); [Doc. 90-1 at 16-17]. 4 On December 14, 1841
(effective May 10, 1843), the Shreve Town Company was dissolved and it divided all remaining
unsold lots by judicial partition. [Doc. No. 90 at 7 (citing Pickett v. Brown, 18 La.Ann. 560, 561
(La. 1866))]. Block 23 had not been sold prior to the partition, and “no former owners of the Shreve
Town Company has ever claimed it.” Id. at 8.
3
Plaintiff interprets this document as Edwards nullifying the sale to the Shreve Town Company. See e.g.
Doc. 90 at 7, 8. Plaintiff’s interpretation is belied by the face of the document.
4
Plaintiff contends Edwards never executed an authentic Act of Sale. See e.g. Doc. 90 at 7, 8. As set forth
above, Plaintiff’s position is belied by the evidence.
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On January 18, 1838, the Parish of Caddo was created out of Natchitoches Parish. Parish
of Caddo v. Bossier Parish, 113 So. 378, 381 (La. 1927); Akin at 205. On March 20, 1839, the
town of Shreveport was created by the Louisiana Legislature. City of Shreveport v. Walpole, 22
La.Ann. 526, 528 (1870); Police Jury of Bossier v. Corporation of Shreveport, 5 La.Ann. 661 (La.
1850). Maps of “Shreve Town or the City of Shreveport show Block 23 dedicated as the Public
Square from the late 1830s forward.” [Doc. No. 90-4 at ¶ 1]. Since at least 1846, Caddo Parish has
used block 23, City of Shreveport, for public purposes. [Doc. Nos. 38 at 2; 90-1 at 22, 24-27, 34,
37; see also Akin at 205]. The Caddo Parish Police Jury appropriated funds for the building of a
Courthouse on Block 23 in 1856. [Doc. No. 90-1 at 27, 34]. The 1857 plat of the City of Shreveport
shows Block 23 as designated for “Court House.” [Doc. No. 12-1 at 4; Doc. No. 12-5]. A
courthouse, maintained by Caddo Parish, has sat on the same property since at least 1860. [Doc.
No. 38 at 2; Doc. No. 90-1 at 34, 37; Doc. No. 51 at 58].
In 1903, the Caddo Parish Police Jury granted permission to Plaintiff to place a Confederate
Monument on the front plat of the Courthouse Square. 5 [Doc. No. 10-5]. The Minutes of the Police
Jury reflecting the agreement read in pertinent part as follows:
Mr. W.H. Wise on behalf of the Daughters of the Confederacy made an earnest
appeal for an appropriating of $1000 for the Confederate monument, at the same
time requesting that the monument association be given the front plat or portion of
court house square as a site for the monument.
Moved by J.S. Young that the $1000.00 be allowed and the front plat of
court house square be reserved for that purpose, which motion was unanimously
adopted.
[Doc. No. 10-5 at 1]. The monument has remained in that place until present day.
5
The Caddo Parish Police Jury was the predecessor in interest of the Caddo Parish Commission.
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II.
Summary Judgment Standard
“A party may move for summary judgment, identifying each claim or defense–or the part
of each claim or defense–on which summary judgment is sought.” Fed. R. Civ. P. 56(a). “The
court shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Id. “A genuine issue of
material fact exists when the evidence is such that a reasonable jury could return a verdict for the
non-moving party.” Quality Infusion Care, Inc. v. Health Care Service Corp., 628 F.3d 725, 728
(5th Cir. 2010). As summarized by the Fifth Circuit:
When seeking summary judgment, the movant bears the initial responsibility of
demonstrating the absence of an issue of material fact with respect to those issues
on which the movant bears the burden of proof at trial. However, where the
nonmovant bears the burden of proof at trial, the movant may merely point to an
absence of evidence, thus shifting to the non-movant the burden of demonstrating
by competent summary judgment proof that there is an issue of material fact
warranting trial.
Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir.1994) (internal citations omitted).
When reviewing evidence in connection with a motion for summary judgment, “the court
must disregard all evidence favorable to the moving party that the jury is not required to believe,
and should give credence to the evidence favoring the nonmoving party as well as that evidence
supporting the moving party that is uncontradicted and unimpeached.” Roberts v. Cardinal Servs.,
266 F.3d 368, 373 (5th Cir.2001); see also Feist v. Louisiana, Dept. of Justice, Office of the Atty.
Gen., 730 F.3d 450, 452 (5th Cir. 2013) (court must view all facts and evidence in the light most
favorable to the non-moving party). “Credibility determinations are not part of the summary
judgment analysis.” Quorum Health Resources, L.L.C. v. Maverick County Hosp. Dist., 308 F.3d
451, 458 (5th Cir. 2002). Rule 56 “mandates the entry of summary judgment . . . against a party
who fails to make a showing sufficient to establish the existence of an element essential to that
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party’s case, and on which that party will bear the burden of proof.” Patrick v. Ridge, 394 F.3d
311, 315 (5th Cir. 2004)(alterations in original)(quoting Celotex v. Catrett, 477 U.S. 317, 322
(1986)).
III.
Arguments of the Parties
A.
Defendant’s Arguments
Defendant contends it owns the Courthouse Square by dedication, or alternatively, by
acquisitive prescription, and therefore it has the authority to determine what monuments should be
displayed in that public space. [Doc. No. 88-1 at 3, 8]. In support of its first position, Defendant
submits: (1) “filings in Natchitoches and Caddo Parish,” which Defendant argues show Larkin
Edwards sold his tract to the Shreve Town Company, and therefore “maps of Shreveport showing
this area dedicated to public use and not reserved for private ownership conform to what is
evidenced by the deeds,” Id. at 3; (2) the Minutes of the Caddo Parish Police Jury meeting held
June 3, 1856, which reflect the Police Jury appropriated $10,000.00 “to build a court house and
suitable offices for Caddo Parish” on Block 23, Id. at 4 (citing Doc. No. 88-4 at 10, 20); (3) a 2002
title opinion, which states maps from 1857 display the words “Court House” at Block 23, Id. (citing
Doc. No. 10-6); (4) the Minutes of the Caddo Parish Police Jury meeting held January 3, 1860,
which authorized the “building Court House Committee . . . to make certain changes in the Clerk’s
office in said building, . . . to let out contract for grading the public square and making side walks
around same, and also to have a cistern constructed and gas fixtures put up in said Court House.”
Id. (citing Doc. No. 88-4 at 20); and (5) the testimony of Plaintiff’s expert, Dr. Gary Joiner, who
testified courthouses have sat on the property since the 1850s, and the square has consistently been
maintained by Caddo Parish since that time. Id. (citing Doc. No. 51 at 58-59). Defendant argues
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this evidence shows Block 23 was dedicated to public use by the Shreve Town Company, and
Block 23 has been used for public purposes since at least the 1860s.
In support of its alternative position‒that it acquired Block 23 by acquisitive prescription‒
Defendant argues, “Based on the fact that the public square was platted and publicly dedicated by
Shreve Town Company and that Shreve Town Company bought the reservation from Larkin
Edwards and thus wholly owned it, the Parish had just title and good faith as stated in the 1846
minutes.” [Doc. No. 88-1 at 5]. Accordingly, Defendant contends it acquired the property by
prescription of ten years in 1856. In the further alternative, Defendant contends it acquired Block
23 by prescription of thirty years in 1890. Id. at 5-6.
B.
Plaintiff’s Arguments
Plaintiff contends it acquired the plot of ground upon which the monument sits by
acquisitive prescription, and therefore the Caddo Parish Commission cannot order removal of the
monument (which Plaintiff also contends it owns) from Plaintiff’s private property. While Plaintiff
concedes Block 23 was originally dedicated to public use, it argues Defendant impliedly revoked
the dedication by granting Plaintiff permission to place the monument on the front plat of the
Courthouse Square. [See e.g. Doc. 90-4 at 3]. In support of this argument, Plaintiff submits the
affidavit of its “expert Mr. Wayne Webb, attorney at law,” who “reviewed conveyance records for
Caddo Parish, Louisiana, for the purpose of determining the existence of any document purporting
to convey any sort of an ownership interest of the . . . [plot of land situated within Block 23] into
the Shreveport Chapter 237 of the Daughters of the Confederacy. . . .” [Doc. No. 90 at 16; Doc.
No. 99-5 at 4]. According to Mr. Webb, he found no evidence conveying any type of interest in
the property to Plaintiff in the Caddo Parish conveyance records. Id. However, after reviewing a
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matter “off record,” namely the 1903 Minutes of the Caddo Parish Police Jury, Mr. Webb opined
as follows:
Based upon the foregoing, I am of the opinion that the action of the Caddo
Parish Police Jury in 1903, in reserving a plot of ground for the Daughters of the
Confederacy, may have taken the property out of the purview of use as a public
square as set forth in the original plat filing, because use of the plot of ground was
then for the endeavors of a private entity. Pursuant to R.S. 33:4178, the action of
the police jury may have been tantamount to a revocation of the dedication, which
would have caused the ownership to revert back to those who dedicated the land.
Under those circumstances, the Daughters of the Confederacy would have been
occupying the respective plot without the permission of the true owners, thereby
causing acquisitive prescription to run in favor the [sic] Daughters of the
Confederacy.
[Doc. No. 99-5 at 6]. 6
Plaintiff notes it “has possessed” the property underneath the monument since 1903, when
the Caddo Parish Police Jury “donated $1,000.00 for the construction of the Confederate
Monument and gave a plot of land ‘in perpetuity’ to [Plaintiff].” 7 [Doc. No. 90 at 3]. According to
Plaintiff, although it “treated the Caddo Parish Police Jury’s actions as an oral donation,” it now
concedes “the minutes are not an actual written conveyance,” but argues they constitute “evidence
that the Defendant had relinquished the dedication of said site for the public use for the Caddo
Parish Courthouse for the Plaintiff’s private use.” Id. at 4. From the forgoing, Plaintiff concludes,
“[t]here is no evidence that Caddo Parish owns Shreveport Block 23 in its entirety,” and Plaintiff
6
La. R.S. 33:4718 provides that “parish governing authorities . . . may revoke and set aside the dedication
of all parks, public squares or plots dedicated to public use . . . , when such parks, public squares or plots
have been abandoned or are no longer needed for public purposes.” Id. at § 4718(A). The statute further
provides, “Upon such revocation, the title to the land covered by and embraced in said parks, public squares
or plots, shall revert to the person or persons who were the owners of such land at the time of the dedication,
their heirs, successors or assigns.” Id. at § 4718(B). The Court notes La. R.S. 33:4718 was not passed until
1958, subsequent to the action of the Police Jury allowing Plaintiff to place the monument on the front plat
of the Courthouse.
7
The words “in perpetuity” appear nowhere in the 1903 Minutes.
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“acquired ownership of the land underneath the Confederate Monument via acquisitive
prescription. . . .” [Doc. No. 90 at 2, 11].
Plaintiff additionally attacks Defendant’s title, arguing Defendant did not acquire Block 23
by acquisitive prescription. According to Plaintiff, although Larkin Edwards “sold his reservation
to Angus McNeil and seven other men who later formed the Shreve Town Company in 1836,” on
March 14, 1840, Larkin Edwards signed a document which declared that sale to be null and void.”
Id. at 11-12. According to Plaintiff, Edwards died in 1841 “without signing an authentic Act of
Sale” for the property, “and therefore, he never conveyed Shreveport Block 23 to the [sic] Angus
McNeil and the other owners of the Shreve Town Company.” 8 Id. at 12. Based upon the forgoing
characterization of the historical background, Plaintiff contends Defendant could not have
acquired Block 23 by prescription of ten years, because it “does not possess a just title (i.e. legal
and transferable title),” nor was Defendant’s possession in good faith. Id.
Plaintiff further contends Defendant did not acquire Block 23 by prescription of thirty
years, because “[t]he possession on which this prescription is founded must be continuous and
uninterrupted during all the time; it must be public and unequivocal, and under the title of owner.” 9
8
As previously noted, this is not a reasonable interpretation of the document cited by Plaintiff. Rather, that
document shows on February 4, 1837, Edwards nullified his sale to McNeil, and then conveyed the property
to the members of the Shreve Town Company by act under private signature. On June 27, 1839, he
acknowledged his signature by notarial act. [Doc. No. 90-1 at 16-17].
9
Plaintiff then states, “And since the Caddo Parish Police Jury is a parochial corporation, it must appoint a
natural person to accept possession of Shreveport Block 23.” Id. at 13. Plaintiff cites LA. CIV. CODE art.
439 (1870) for this position. However, article 439 does not support Plaintiff’s argument. At oral argument,
counsel cited the Court to LA. CIV. CODE art. 437 (1825) for this argument. This article likewise does not
support Plaintiff’s argument, as it applies to “[c]orporations unauthorized by law or by an act of the
legislature.” Id. Plaintiff has provided no evidence that the Caddo Parish Police Jury was an unlawful
corporation or was not authorized by the legislature. Further, this argument does not appear to comport with
the jurisprudence of Louisiana. See e.g. City of New Orleans v. Carrollton Land Co., 60 So.2d 695, 698
(La. 1913) (formal dedication or formal acceptance by town authorities is neither necessary nor practicable);
Walpole, 22 La.Ann. at 529 (“The objection of the defendant that no acceptance of the dedication is shown,
and that it is incumbent upon the plaintiff to show such acceptance, is without merit. It is well settled, by
repeated decisions, that a formal acceptance is not necessary.”)
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[Doc. No. 90 at 12-13 (quoting LA. CIV. CODE art. 3500 (1870))]. According to this argument,
Defendant did not have “continuous and uninterrupted” possession, because “not one version of
the Caddo Parish Police Juries had been in existence for the thirty (30) years needed for acquisitive
prescription.” Id. at 13. As argued by Plaintiff, the enactment of various versions of the Louisiana
State Constitution resulted in the dissolution of the prior governing authorities of Caddo Parish
and the creation of new governing bodies, and therefore, “there was an interruption of precarious
possession and no tacking.” [Doc. No. 90 at 14]. Plaintiff concludes, “Thus, without neither
possession nor evidence that it did not have permission of the actual owner of Shreveport Block
23 prescription had never commenced.” Id. at 13. In support of this argument, Plaintiff cites one
case having no relevance to this issue10, as well as various articles of various versions of the
Louisiana State Constitution, none of which support this position and will not be addressed further.
[Doc. No. 90 at 13-14].
IV.
Pertinent Jurisprudence
One of the earlier cases addressing the formation of the town of Shreveport is Pickett v.
Brown, 18 La.Ann. 560 (La. 1866). There, plaintiffs sued the City of Shreveport to recover three
town lots they contended the city was illegally possessing. The lots were located between the river
and the nearest street running along the river, in an area “constituting what is commonly called an
‘open space.’” Id. at 561. The city contended the property belonged to it for public uses since
incorporation of the city on March 20, 1839, having been dedicated to the city at that time by the
company formed by Angus McNeil and others who laid out the town. Id. at 561. The plaintiffs
contended the city had no title to the property, the particular lots sued upon were not necessary for
10
See New York Belting and Packing Company v. T.W. Jones, 22 La.Ann. 530 (La. 1866).
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public use, and the city had never appropriated the lots. Id. The Supreme Court set forth the law
of dedication as follows:
That the dedication of property for public uses may be inferred from facts
and circumstances, which leave no reasonable doubt upon the mind of the intention
of the owner to make such a disposition, we think there can be no question.
....
. . . [T]here is no particular form necessary to a dedication of land to public
use. All that is required is the assent of the owner of the land, and the fact of its
being used for the purposes intended.
. . . [N]either a deed nor a grantee is necessary in the matter of dedication
of property to public uses.
Id. at 562, 563 (internal quotation marks omitted) (citing City of Cincinnati v. The Lessee of White,
31 U.S. 431, 432 (1832); Municipality No. 2 v. Orleans Cotton Press, 18 La. 122 (La. 1841)). 11
In examining title to the disputed property, the Supreme Court noted when the Shreve
Town Company was dissolved in 1843, all remaining unsold lots were divided by judicial partition
among each of the co-proprietors. Id. at 561. The Court noted the partition was “made with great
care and exactness,” and “much care had been taken to ascertain all the unsold property belonging
to the company within the incorporated limits of the city. . . .” Id. at 561, 562. The Court found no
disposition was made of the property at issue in the partition, the company had never exercised
any act of ownership over the disputed property, and no evidence showed the company had ever
intended to assert a claim over the property. Id. at 562. The court ultimately concluded the Shreve
Town Company “intended to dedicate the public place in that town lying between Commerce street
and the river, to public uses,” as “[a]ll conditions required by the authorities we have noticed, to
11
The requirements of an implied dedication are the same under current law. Such a 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.” Cenac v. Public Access Water Rights Ass’n, 851 So.2d 1006, 1011 (La. 2003).
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render a dedication complete, seem to us to be fulfilled in this case.” Id. at 563. Accordingly, it
decreed the property in dispute belonged to the city for public uses. Id. 12
In Akin v. Caddo Parish Police Jury, 234 So.2d 203 (La.App. 2 Cir. 1970), residents of the
City of Shreveport and the Parish of Caddo sought to enjoin the Caddo Parish Policy Jury from
proceeding with plans to enlarge the parish courthouse and removing certain live oak trees
encircling same. The court found the following historical facts were established at the trial of the
case: In 1836, the Shreve Town Company had a map or plat recorded of present day downtown
Shreveport. Id. at 205. The property was divided into sixty or more blocks, each of which was
subdivided into lots “except Block 23, designated on the plat as a ‘public square,’ which was left
intact.” Id. At that time, the area was a part of Natchitoches Parish, out of which Caddo Parish was
created in 1838. The town of Shreveport was created in 1839, and its boundaries were “coextensive
with the boundaries shown on the plat of 1836.” Id. In 1846, a jail was erected by the Caddo Parish
Police Jury on the southwest corner of Block 23, and “[s]ince that time the square has been
continuously under the administration of the Caddo Parish Police Jury. . . .” Id. A courthouse was
erected by the parish upon the square in 1860, and there has been a courthouse on that block since
that time. “In addition to serving as a site for a courthouse, the ‘square’ is frequently and
incidentally used, and has been so used for many years, for public meetings of various kinds‒
12
See also Walpole, 22 La.Ann. 526 (finding Block 70, lying in the open space between Commerce Street
and the river, was dedicated to the city for public use by the founders of the city, and the fact that no
acceptance of the dedication was shown was irrelevant, as formal acceptance is not required; property
dedicated to public use is inalienable); McNeil, 34 La.Ann. 1090 (finding lots within the “open space” of
the City of Shreveport had been dedicated to public use by the Shreve Town Company by virtue of the fact
it was not divided among the owners of the corporation by the judicial partition, and “title thereto was
vested in the municipal corporation for such purposes, [which] ought not lightly to be disturbed, even if
they were erroneous. . . .”).
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political, patriotic, and otherwise, such as sports pep rallies, art shows, concerts, et cetera. These
used [sic] have not interfered with the use of the square or the courthouse.” Id. at 205.
The court then found the exceptions of no right of action and no cause of action should
have been sustained, absent any allegation or showing that plaintiffs had any interest different from
that of the public generally. However, because the matter involved “an action affecting a public
interest, that is, the orderly administration of an important local governmental function,” the court
addressed the merits of the issues presented as follows:
The courthouse square, known as Block 23, constitutes public property. A
primary issue, therefore, relates to a question of its control, administration, and
management. Obviously, public property, to serve the purposes intended for it, must
be under the jurisdiction of some authority. When the plat for the townsite was
prepared and filed for record, the police jury governing the area was the only local
governing authority in existence. . . .
....
The Caddo Parish Police Jury has, as a fact, exercised jurisdiction and
control over and has administered the ‘public square’ for 124 years as a location for
public buildings. . . .
The title of the property having been dedicated to the public, the governing
authority, which, at the time, was the police jury representing the parish, continues
in the public represented by the parish and not in a lesser segment of the public. . .
. To hold otherwise would be to deprive a larger segment of the public of the use
and enjoyment of the property and to place it in only a smaller segment of the public
represented by the municipality.
....
Thus, it must be concluded . . . that the police jury has jurisdiction and
control over and has actual possession and administration of the property; that such
administration and control are exercised in the interest of and for the service and
benefit of the public in compliance with its obligation to provide and maintain a
courthouse for the parish [under La. R.S. 33:4713].
Id. at 208-09 (citations omitted).
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In Police Jury of Plaquemines v. Foulhouze, 30 La.Ann. 64 (La. 1878), certain judgment
creditors of the Parish of Plaquemines issued execution, seized and advertised for sale a tract of
land held by the parish. Id. at 65. The property had previously been donated “to the inhabitants of
the parish of Plaquemines” by an inter vivos act of donation in 1846, and it was accepted on behalf
of the citizens by the Plaquemines Police Jury. Id. The donation was made “on the express
condition that said inhabitants shall build and erect the Court House of the aforesaid parish” on the
property. Id. Thereafter, a courthouse and jail were erected on a portion of the tract fronting the
Mississippi river. In 1875, the parish leased the rear portion of the tract to a rice farmer. It was this
rear portion which was seized by the judgment creditors. Id. The parish obtained an injunction
against the sale “on the ground that the same had been dedicated to public use and was ‘hors de
commerce.’” Id. at 66.
On appeal, the Louisiana Supreme Court found the property was dedicated to public use,
and therefore could “not be the subject of private ownership.” Id. Such property “is out of
commerce, and not liable to seizure.” Id. Such property is held by a governmental body in trust for
the public use, and the governing body has no authority “to dispose of property of a public nature,
in violation of the trusts upon which it is held, nor of the public squares, streets or commons.” Id.
The court then found:
We see no significance whatever in the fact that the whole of the donated
tract is not in actual public use. It suffices that the public has a right to use. Nor
does the fact that the part seized was cultivated in rice in 1875, under lease from
the parish, operate to deprive the public of its rights of use. We have just seen that
the parish can not directly or indirectly divest the property of its public character.
How much of said property is or is not needed for the use of the public, is not, in
its nature, a judicial question. It suffices for us to know that the public has a right
to the use of the whole, and, for aught we can know, may have some day necessity
for its use. Fifty years hence the Court House and jail may be, by encroachments of
the river, driven to what is now the rear arpent of the tract. But these are
considerations with which this Court has nothing to do. We must ascertain and
enforce the rights of parties–which are governed by the law and not by the river.
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Id. at 67 (emphasis in original); see also Cook v. City of Opelousas, 4 La.App. 300, 303-04
(La.App. 1 Cir. 1925) (open public use of greater part of length of dedicated street, “like corporeal
possession of a part of a tract of land, under title calling for an entire tract, constitutes acceptance
for its entire length as indicated on the plan by which it was created.”)
IV.
Analysis
A.
As property dedicated to public use, the Caddo Parish Commission has the
right to control, administer and manage Block 23
The parties and this Court agree Block 23 was impliedly dedicated to public use when the
town of Shreveport was first laid out by the Shreve Town Company, thereby resulting in a
servitude of public use. [Doc. No. 90-4 at 1, 3; Doc. No. 90 at 2; see also Pickett, 18 La.Ann. at
562; Walpole, 22 La.Ann. at 527-28; Cane, 3 La.Ann. at 643]. At that time, the only governing
authority in the area was the parish police jury. Akin at 205, 208. Accordingly, the Court finds
Block 23 was to be held by the governing body of Caddo Parish in trust for public use.
Once the dedication of Block 23 as a public square was accepted by public use, Block 23
became a public thing. See LA. CIV. CODE art. 450; Coliseum Square Ass’n v. City of New Orleans,
544 So.2d 351, 353 (La. 1989). “Public things, being insusceptible of private ownership, are
inalienable, imprescriptible and exempt from seizure.” Band v. Audubon Park Com’n, 936 So.2d
841, 845 (La.App. 4 Cir. 2006); see also Coliseum Square at 353 (“Such property, held as a public
trust, is inalienable while it is being used by the public”). The fact that the Parish Police Jury
allowed Plaintiff to place a monument in front of the courthouse does not operate to deprive the
public of its rights of use. See e.g. Pickett at 562 (whether certain portion of property dedicated to
public was or was not necessary for public use was irrelevant; “[i]f the original owners had
dedicated the entire open space for public uses, it is not material to inquire to what uses it is
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subjected”); Foulhouze at 67 (finding “no significance whatever in the fact that the whole of the
donated tract is not in actual public use); Coliseum Square at 354 (“A thing may be in use without
being necessary in the sense of being essential or indispensable.”); Cook at 303-04. Accordingly,
the Court finds no part of Block 23 is susceptible of private ownership, absent a revocation of the
dedication. McNeil v. Hicks, 34 La.Ann. 1090, 1093 (La. 1882). 13
Prior to passage of La. R.S. 33:4718 in 1958, municipalities and parish governmental
authorities could not transfer public property for private purposes absent express legislative
authority from the State. See e.g. City of New Orleans v. Louisiana Soc. For Prevention of Cruelty
to Animals, 85 So.2d 503, 507-08 (La. 1955); see also LA. CONST. art. 58 (1858). In other words,
a revocation of a dedication of property to public use required express permission of the sovereign.
McNeil at 1093. Further, an implied dedication was terminable only “by formal revocation,
relocation or abandonment.” Collins v. Zander, 61 So.2d 897, 899 (La.App. Orleans 1952). As
there is no evidence in the record showing the Caddo Parish Police Jury obtained express
legislative permission to transfer the plot of ground to Plaintiff at any time prior to erection of the
monument, and because there is no evidence in the record showing any “formal revocation,
relocation or abandonment” of Block 23 as a public square, the Court finds the actions of
Defendant, in reserving the front plot of ground for placement of a monument, did not constitute
a revocation of the dedication. Because the Court finds the Parish did not revoke the dedication of
Block 23, Plaintiff could not, as a matter of law, acquire the property at issue by acquisitive
13
Because Plaintiff had permission of the Parish of Caddo to place the Confederate Monument on the front
plat of the Courthouse Square, to the extent Plaintiff gained any interest in the plot of ground upon which
the monument was placed, the Court finds Plaintiff gained precarious possession of same. See LA. CIV.
CODE art. 3437 (2018); Id. at comment (a). Precarious possessors cannot acquire property by acquisitive
prescription. LA. CIV. CODE art. 3510 (1870).
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prescription. Accordingly, Plaintiff has no private property interest in the plot of ground upon
which the Confederate Monument sits. 14
B.
Constitutional Claims
Plaintiff asserts its rights under the First, Fifth and Fourteenth Amendments to the United
States Constitution were violated by Defendant’s passage of Resolution No. 69. [Doc. No. 58 at
2]. Defendant contends because the property was dedicated to public use, it holds the property
upon which the Confederate Monument sits in trust for the public, and therefore Plaintiff’s
Constitutional claims fail. [Doc. No. 88-1 at 8].
According to Plaintiff, Resolution No. 69 “constitutes an unconstitutional taking of
Plaintiff’s property in violation of the Fifth Amendment,” because Defendant has not provided
Plaintiff with “just compensation.” [Doc. 90 at 24]. The Fifth Amendment, made applicable to the
states through the Fourteenth Amendment, provides that “private property” shall not “be taken for
public use, without just compensation.” Chicago B. & Q.R. Co. v. Chicago, 166 U.S. 226, 239
(1897); Lingle v. Chevron USA, Inc., 544 U.S. 528, 536 (1995). It is well-settled that the framework
of state law governs “what is a property interest compensable under the Fifth Amendment.” U.S.
v. 131.68 Acres of Land, 695 F.2d 872, 875 (5th Cir. 1983); Fee v. Herndon, 900 F.2d 804, 810 (5th
Cir. 1990); Hatfield v. Scott, 306 F.3d 223, 226 (5th Cir. 2002). Insofar as Plaintiff alleges its Fifth
14
Indeed, the Court finds the 1903 Minutes of the Caddo Parish Police Jury are more indicative of a
dedication of the monument to the Parish in its public capacity, than they are of some type of conveyance
of a property interest to Plaintiff. See e.g. McGraw v. City of New Orleans, 215 So.3d 319, 332 (La.App. 4
Cir. 2017) (“We do not hesitate to conclude that the monuments at issue are public things given that the
undisputed evidence establishes clearly that they were erected on public property, owned by the City in its
public capacity, and subsequently dedicated to the public use.”); State ex rel. Singlemann v. Morrison, 57
So.2d 238, 241 (La.App. Orleans 1952) (“The doctrine is now generally recognized that the reasonable use
of public money for memorial buildings, monuments and other public ornaments, designed to inspire
sentiments of patriotism or of respect for memory of worthy individuals is for a public purpose). While
Defendant briefly raised this argument in its earlier briefing [see Doc. 38 at 15], it has not pursued that
argument in this motion.
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Amendment rights were violated by a “taking” of the ground upon which the monument sits, for
the reasons set forth above, the Court finds Plaintiff has not met its burden of showing that it had
any private property interest in the front plat of the courthouse. See e.g. Dorn v. International
Broth. Of Elec. Workers, 211 F.3d 938, 948 (5th Cir. 2000).
Plaintiff further appears to assert an unconstitutional “taking” with regard to the anticipated
removal of the monument itself, when it argues, “Defendants’ Resolution No. 69 does not provide
for any funding to compensate Plaintiff for the cost of removal, damages to the Confederate
Monument, and proper storage of the said monument,” and further argues because the resolution
“does not provide for taxpayers’ monies to pay for the removal,” Plaintiff will be required “to bear
the costs of removal, storage, and damages to the Confederate Monument.” [Doc. No. 90 at 23].
Assuming the Confederate Monument remains Plaintiff’s private property, the Court finds this
claim fails for the same reason provided in its Ruling on Plaintiff’s application for a preliminary
injunction–namely, that Plaintiff has presented no evidence that the Commission intends to compel
it to bear the burden and cost of removal. Accordingly, the Court finds Plaintiff’s claim under the
Fifth Amendment fails.
Plaintiff argues its rights under the Fourteenth Amendment were violated, because “no
procedural safeguards were in place to allow the Plaintiff to contest the removal of the Confederate
Monument.” [Doc. No. 90 at 22]. The Fourteenth Amendment provides that no state shall “deprive
any person of life, liberty, or property, without due process of law.” To have a protected property
interest within the contours of the Fourteenth Amendment, one must have some legitimate claim
of entitlement to it, and “the sufficiency of the claim of entitlement must be decided by reference
to state law.” Blackburn v. Marshall, 42 F.3d 925, 936 (5th Cir. 1995) (quoting Bishop v. Wood,
426 U.S. 341, 344 (1976)). As discussed above, Plaintiff has failed to show it has a legitimate
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property interest sufficient to require Fourteenth Amendment protection. Nevertheless, even
assuming Plaintiff did have a sufficient property interest, the Fourteenth Amendment requires that
states follow fair procedures before depriving citizens of their property. Ordinarily, this requires
that the affected individual be given notice of the anticipated deprivation and a fair opportunity to
challenge its propriety. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313
(1950). In this matter, there was a public hearing held prior to the passage of Resolution 69. [Doc.
No. 12-3]. Further, the president of Shreveport Chapter #237 of the United Daughters of the
Confederacy was a member of the advisory committee which studied this issue for over a year
prior to the passage of the Resolution. [Doc. No. 12-6 at 13-14]. Accordingly, the Court finds
Plaintiff had adequate notice and opportunity to be heard on the issue of removing the monument.
With regard to the First Amendment, Plaintiff asserts: “Defendants restricted the Plaintiff’s
First Amendment rights on the Plaintiff’s privately owned property without providing . . . an
alternative channel for communication of the information” [Doc. No. 90 at 17]; Defendant’s
regulation of Plaintiff’s First Amendment rights from its’ [sic] own private property . . . did not
leave Plaintiff an ample alternative means to communicate its’ [sic] message since there can only
be one location for the spot where the last flag flew from a Confederate capital [sic]” Id. at 18; and
“Defendants’ decision does not provide for any alternative for the Plaintiff to express either its’
[sic] speech or beliefs.” Id. at 19. As previously discussed, the Court finds Plaintiff has no protected
property interest in the plat of ground upon which the monument sits.
To the extent Plaintiff argues its free speech rights have been violated by removal of the
monument on property dedicated to public use, the Court likewise finds Plaintiff’s claim fails.
“[T]he placement of a permanent monument in a public park is best viewed as a form of
government speech and is therefore not subject to scrutiny under the Free Speech Clause.”
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Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 464 (2009). “A government entity has the
right to speak for itself,” and it is “entitled to say what it wishes.” Id. at 467 (internal quotation
marks omitted). As stated in State ex rel. Singelmann v. Morrison:
No individual or private association has the right to erect a memorial on public
property without the consent of the governing authorities. . . .
If any community in Louisiana has too many heroes to honor, or if memorial
plaques should become plagues on its public buildings, the local authority could
require their removal and prohibit their future erection.
57 So.2d 238, 244-45 (La.App. Orleans 1952). Because the placement of permanent monuments
in public parks is not subject to scrutiny under the First Amendment, and because Plaintiff makes
no argument that the Commission has made any effort to abridge any traditional free speech rights
(i.e., the right to speak, distribute leaflets, etc.) that may be exercised by Plaintiff and others in the
Caddo Parish Courthouse Square, the Court finds Plaintiff’s First Amendment claim fails.
V.
Conclusion
For the reasons set forth above, the Court finds Plaintiff has failed to carry its burden and
show there is an issue of material fact warranting trial. Accordingly, Defendant’s Motion for
Summary Judgment [Doc. No. 88] is GRANTED, and Plaintiff’s claims are DISMISSED WITH
PREJUDICE at Plaintiff’s cost.
MONROE, LOUISIANA, this 25th day of July, 2018.
_________________________________
ROBERT G. JAMES
UNITED STATES DISTRICT JUDGE
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