Band v. AUDUBON PARK COM'N

Louisiana Court of Appeal
2006 WL 2088402, 936 So.2d 841 (2006)

ELI5:

Rule of Law:

Property owned by a state's political subdivision in its public capacity, such as a public park, is a 'public thing' and is therefore imprescriptible, meaning it cannot be acquired by a private party through acquisitive prescription (adverse possession).

Facts:

In 1871, pursuant to state legislation, the City of New Orleans acquired property, formerly the Foucher Plantation, for the specific purpose of establishing a public park, which came to be known as Audubon Park.
Ownership and administration of the park were eventually vested in the Audubon Park Commission, acting for the City of New Orleans.
In 1981, David and Ilonka Band purchased residential property at 315 Walnut Street, adjacent to Audubon Park.
The Act of purchase explicitly noted that visible encroachments, consisting of a brick patio and a light metal fence covering a 10' by 30' area, existed from their property onto Audubon Park land.
In 2003, the Audubon Park Commission informed the Bands and other encroaching homeowners of the issue, offering them the choice to lease the land or remove the encroachments.
While all other affected homeowners agreed to one of the alternatives, the Bands refused both options.

Procedural Posture:

David and Ilonka Band filed a petition for declaratory judgment against the Audubon Park Commission in the trial court, alleging ownership of the encroached-upon property.
The Audubon Park Commission filed a motion for summary judgment in response to the Bands' petition.
The trial court granted the Audubon Park Commission's motion for summary judgment, ruling that Audubon Park is a 'public thing' and not susceptible to acquisition by prescription.
The Bands, as appellants, appealed the trial court's judgment to the Court of Appeal of Louisiana, Fourth Circuit. The Audubon Park Commission is the appellee.

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Issue:

Does a private landowner acquire ownership of a portion of a public park through acquisitive prescription by maintaining an encroachment, such as a fence and patio, on the park property for an extended period?

Opinions:

Majority - Judge James F. McKay III

No. A private landowner cannot acquire ownership of a portion of a public park through acquisitive prescription. Under Louisiana law, Audubon Park is a 'public thing' owned by the City of New Orleans in its public capacity and is therefore insusceptible of private ownership and imprescriptible. The court reasoned that Louisiana Civil Code Art. 450 defines public things as those owned by the state or its political subdivisions for public use, including public parks. Citing the Louisiana Supreme Court's decision in City of New Orleans v. State of Louisiana, the court affirmed that Audubon Park is a public thing owned by the City for the benefit of all. As public things are inalienable and imprescriptible, they cannot be acquired through acquisitive prescription, regardless of the duration of possession. The court also rejected the Bands' argument that their fence and patio fell under a statutory exception for buildings that cause 'substantial damage' upon removal (La. C.C. art. 459), finding that a lightweight fence and brick patio did not meet this standard and obstructed public use.

Analysis:

This decision reinforces the strong legal protection afforded to public property in Louisiana, affirming that its status as a 'public thing' creates an absolute bar to claims of acquisitive prescription. The ruling clarifies that the public's right to the full and unfettered use of dedicated parkland is paramount. By narrowly interpreting the 'substantial damage' exception for encroachments, the court signals that only significant structures, not minor additions like patios or fences, might be permitted to remain, thus preventing the gradual privatization of public land through minor encroachments.

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