United States Court of Appeals,

                                 Fifth Circuit.

                                  No. 94-30074.

          MISSOURI PACIFIC RAILROAD CO., et al., Plaintiffs,

 River City Joint Venture, (Substituted as appellant in place of
New Orleans 2000 pursuant to FRAP 43), Plaintiff-Appellant,

                                           and

            New Orleans 2000 Partnership, Cross-Appellee,

                                           v.

    CITY OF NEW ORLEANS, Defendant-Appellee, Cross-Appellant.

                                 March 2, 1995.

Appeal from the United States District Court for the Eastern
District of Louisiana.

Before WISDOM, KING and DUHÉ, Circuit Judges.

     DUHÉ, Circuit Judge:

     A railway company succeeded by Missouri Pacific Railroad

("MoPac") constructed buildings and railroad tracks on a tract of

land in the City of New Orleans including certain strips of land

which were formerly streets.               After ceasing railroad operations,

MoPac agreed to sell the tract to New Orleans 2000 Partnership ("NO

2000").    The City of New Orleans then asserted a claim declaring

itself to be the owner of the former streets within the tract.

MoPac responded by instituting this possessory action against the

City, seeking to be maintained in possession of the land underlying

the former streets.         Since filing suit, the original plaintiff,

MoPac,    sold    the    tract   to   NO    2000,   which   substituted   as   the

Plaintiff.       During the pendency of this appeal, NO 2000 sold the


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tract, except Water Street, to River City Joint Venture ("River

City"), now substituted as the Plaintiff-Appellant.                       NO 2000

remains the Cross-Appellee as to the Water Street property.

     On stipulated facts the district court found that the closed

streets, except Water Street, had been impliedly dedicated to the

City of New Orleans.       We agree.         The court further held that the

implied dedication vested ownership of the land underneath such

streets in the City and that under a city ordinance granting the

railroad the right to close the streets, the railroad's possession

was only precarious and not as owner.                Here we disagree.         Under

Louisiana law, an implied dedication vests a city with only a

servitude   of    public   use,   not    ownership.        After   the   railroad

acquired    the   properties      adjacent      to   the   streets,      the    City

acquiesced in the closing of the streets, and the railroad began

possession of the former streets for itself and not for the City.

The City was not surrendering to the railroad possession of the

land underlying      the   streets      as   owner   because   the    City     never

possessed the land as owner.                 It had only a servitude.            We

therefore reverse in part.         We affirm in part with regard to the

separately disputed Water Street property.

                               I. Background

     In order to succeed in a possessory action, a plaintiff

seeking to be maintained in possession of immovable property must

prove the following elements:

     (1) there was a disturbance of possession in fact or in law;

     (2) plaintiff had possession at the time the disturbance
     occurred;

                                         2
      (3) plaintiff's possession was for itself (that is, under
      color of title or as owner) and not "precarious";

      (4) plaintiff had quiet, uninterrupted possession for more
      than one year before the disturbance;

      (5) plaintiff instituted the possessory action within a year
      of the disturbance.

La.Code      Civ.Proc.Ann.   arts.    3655,     3656,   3658   (West   1961   &

Supp.1994).     The parties dispute only element number three—namely,

whether the railroad's possession was precarious rather than "for

itself" or "as owner."

          River City contends that it and its ancestors in title have

possessed the closed streets as owner.           The City counters that it

had full ownership of the streets and that River City and its

ancestors in title have possessed the streets only by permission of

the City or precariously.1           The City contends that because the

railroad was a precarious possessor for the City, its successors

may   not    bring   a   possessory    action    against   the   City.     See

      1
      Though the City raises its own title in the answer, it has
not thereby converted the action from a possessory action to a
petitory action, because the title is raised only to challenge
the railroad's claim to possession as owner. Compare La.Code
Civ.Proc.Ann. art. 3657 (West 1961) (defendant in a possessory
action asserting title judicially confesses possession of
plaintiff in the possessory action and converts the suit to a
petitory action) and 

(West Supp.1994) (evidence of
ownership is admissible in possessory action to show possession
of a party as owner) with Rudd v. Land Co., 

, 495, 

, 585 (1937) (if issue of title is not set up in the
prayer of the defendant's answer and the prayer is only that
plaintiff's demands be rejected, the defendant does not convert
the action to a petitory action). Despite the City's request for
such a judgment in its appellate brief, the City did not pray for
a judgment recognizing its ownership in the district court. See
Answer, 

. The City denies that the railroad ever
possessed as owner and contends that the railroad possesses
precariously for the City which owns the land. See id.; see
also City's trial br., 

.

                                       3
La.Civ.Code Ann. art. 3440 (West 1994) (precarious possessor may

bring possessory action "against anyone except the person for whom

he possesses").

       River   City    replies    that   the    City   never    owned    the   land

underneath the closed streets.               Rather, the City merely held a

servitude of passage, and the railroad and its ancestors always

possessed as owner.

                II. Possession as Owner or for the City?

       We begin with a presumption that the railroad began to possess

for itself or as owner, "unless [the railroad] began to possess in

the name of and for another."            La.Civ.Code Ann. art. 3427 (West

1994).    A person acquires possession for himself when he takes

corporeal possession of a thing with the intent to have it as his

own.     

      Corporeal possession is the exercise of

physical acts of use, detention, or enjoyment over a thing.                       

     Exercise   of    physical     acts   of   use,      detention   or

enjoyment of an immovable without the intent to possess as owner,

however, constitutes mere precarious possession.                   See id.;       see

also 

(exercise of possession with the permission of or

on behalf of the owner or possessor is precarious possession).

       The moment the railway company (Mopac's predecessor) took

corporeal      possession    is   important,      because      once    one   begins

possessing precariously, he is presumed to continue possessing in

that capacity.        See La.Civ.Code art. 3489 (1870) (in force until

Jan. 1, 1983) ("When a person's possession commenced for another,

it is supposed to continue always under the same title, unless


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there be proof to the contrary.");              La.Civ.Code Ann. art. 3438

(West 1994) (eff. Jan. 1, 1983) (precarious possessor is presumed

to possess for another);         

(precarious possessor

commences to possess for himself only when he gives actual notice

of this intent to the person on whose behalf he is possessing).

A. Did the Railroad Begin to Possess for the City?

     The   City    essentially   argues       that    upon   taking    corporeal

possession,     the   railroad   was       merely    maintaining      the   City's

possession.     The basis for the City's argument that River City

possesses the former streets only by permission of the City is City

Ordinance No. 8952, passed in 1912, in which the City granted

MoPac's predecessor the right to build a railroad and related

buildings, closing those city streets.              The City contends that, as

owner of the roadbeds, by this Ordinance it granted the railroad a

franchise to occupy the streets for only so long as railroad

operations continued.2

     2
      The Ordinance granted the railroad certain "rights and
privileges," including the right

           to enter the City of New Orleans and to construct,
           maintain and operate ... its lines of railway tracks
           in, along, across and over the streets, highways and
           public places in the City of New Orleans, herein
           mentioned, and to acquire in its name or through
           another corporation, for railroad purposes, by
           expropriation or otherwise, all necessary property in
           the City of New Orleans and particularly [the adjacent
           property] and thereon to erect, maintain and use such
           [railroad related structures necessary or convenient to
           such purposes].

     The City     agreed to close the specified streets so that the
     railroad     could build on the streets and the contiguous
     property     it acquired. In return for these rights, the
     railroad     agreed to build a depot, pave some nearby streets,

                                       5
     According to stipulations, the railroad closed the streets and

had begun to exercise physical control over the property by late

1916.    At that time the railroad had satisfied the requirement in

the 1912 ordinance that it acquire the property fronting the

streets.    When the railroad commenced corporeal possession of the

streets, it did so with title to the land abutting the streets.

     The    stipulations    do   not       show    that   the    railroad   began

possession of the streets or underlying land precariously in the

name of or for the City at that time.              The City possessed only a

servitude of public use over the streets, as discussed next, and

the railroad's possession began only after the City consented to

closing the streets to public use.

B. The City Possessed Only a Servitude.

         According   to   stipulations,      the    streets     were   originally

dedicated to the City by means of the sale of lots with reference

to an original city plan or subdivision plan depicting the now

closed streets.      We agree with the district court that, by selling

off the land in this manner, the owner impliedly dedicated the

streets referenced in the plan to public use.                   See generally, 2

A.N. Yiannopoulos, Louisiana Civil Law Treatise, § 98 (3d ed.

1991).

         Such an implied dedication conferred a servitude of public

use over the streets only;         title to the land underneath the




     and pay $5,000 annually to the City.

                                       6
streets was not transferred to the City.3       James v. Delery, 

, 

, 859 (1947) (holding that the sale of lots with

reference to a map designating streets is a dedication creating

only a servitude of passage over the streets shown);               Arkansas-

Louisiana Gas Co. v. Parker Oil Co., 

, 

, 240

(1938) (comparing statutory dedication, which vests fee simple to

the grantee, with implied dedication, which confers an easement or

a servitude only4);   City of Baton Rouge v. State Nat'l Life Ins.

Co., 

, 573 (La.Ct.App.1972) (same), writ denied, 

(La.1973). The district court's holding that the implied

dedication granted the City full ownership of the land underneath

the streets was based exclusively on Garrett v. Pioneer Production

Corp., 

(La.1980).      Addressing the effect of the 1896

enactment of "statutory dedication," Garrett concluded that such

dedication was intended to grant the same rights as "formal"

dedication,   i.e.,   fee   simple       ownership   transferred    to   the

municipality.5   In noting the "prevailing view" that ownership of

     3
      In this possessory action we need not determine who
retained title to the underlying land.
     4
      Parker Oil discusses "common law" dedication, another
phrase for implied dedication. See Parish of Jefferson v. Doody,

, 

, 801 (1965); Baton 

; see also Yiannopoulos, supra § 98.
     5
      La.Acts. 1896, No. 134, now appears as re-enacted in
La.Rev.Stat.Ann. § 33:5051 (West Supp.1994). Because the parties
in this case agree that the dedication of the streets occurred in
or before 1837, statutory dedication was not possible.

          The City argues alternatively that the property was
     "formally" dedicated. Because this theory was not advanced
     to the district court, we will not consider it for the first
     time on appeal. See Trial br. of City at 5-9, 

;

                                     7
municipal streets "would ordinarily vest in the public 

(dicta), Garrett only recognizes the fact that,

because most dedications of land to municipalities have been

formal,    the   municipality   ordinarily   receives   land   ownership.

Garrett does nothing to alter the long-standing principle of Parker

Oil and Delery that an implied dedication results in a servitude of

passage, not transferred ownership.          We therefore reject the

district court's interpretation of Garrett and hold that the

implied dedication granted the City a mere servitude of passage

over the streets.

C. The Railroad Did Not Commence Possession for the City.

         Though the City may have possessed its servitude with the

intent to have it as its own,6 it did not possess the immovable

burdened with that right, except as a precarious possessor for the

owner.    See La.Code Civ.Proc.Ann. art. 3656 (West 1961) (owner of

a real right in immovable property possesses for himself);         Board

of Comm'rs of Caddo Levee District v. S.D. Hunter Found., 

, 165 (La.1977) (exercise by record-owner's grantee of acts of


     see also Order & Reasons at 18 n. 70, 

("The City
     does not assert ... that this plan evidences a formal
     dedication. The City's position has been, and continues to
     be, that the dedication was made by means of the sale of
     lots with reference to plans."); Fine v. GAF Chem. Corp.,
     

, 578 (5th Cir.1993) (declining to express
     opinion on issue not presented to district court in the
     first instance); Capps v. Humble Oil & Ref. Co., 

, 82 (5th Cir.1976) (same).
     6
      Though a possessory action is available to one who enjoys a
real right such as a servitude in an immovable, the Code
denominates the exercise of that real right with the intent to
have it as one's own as "quasi-possession" rather than
possession. La.Civ.Code Ann. art. 3421 (West 1994).

                                    8
physical possession pursuant to grant of right of way is possession

attributable to the owner);            Faust v. Mitchell Energy Corp., 

, 342-43 (La.Ct.App.1983) (owner of real right could

maintain possessory action to protect enjoyment of real right but

does not possess the land itself as owner);                see also Yiannopoulos,

supra § 311, at 602.          Nothing in the ordinance demonstrates that

the railroad commenced possession of the underlying land on behalf

of the City as owner.

      Nor does the record demonstrate that the railroad commenced

possessing the servitude of passage on behalf of the City.                      When

the railroad commenced possession of the land, it closed the

streets     and    erected    constructions,         thereby    contravening      all

recognition of a servitude of passage.               Since the day the railroad

closed the streets, it possessed the land for its own operations

and for leasing and related commercial purposes. Having closed the

streets     off    from   further   use    as    thoroughfares,        the   railroad

possessed the land as though it were free of the burden of the

City's servitude.         The railroad's possession of the land therefore

was "necessarily adverse" to any possession or exercise of the real

right the City had enjoyed.             Yiannopoulos, supra § 313, at 607

("[W]hen     the    adverse    possessor        of   the   immovable    ...    erects

constructions that contravene the possession of the real right ...

the   ...    constructions      mark      the    commencement     of    an    adverse

possession of both the immovable and the real right burdening

it.").

      The City lost possession of its servitude by abandoning the


                                           9
servitude with its consent to close the streets from further use as

a passageway or by the railroad's possession of the immovable as

though it were free of the servitude.7                 See La.Civ.Code Ann. art.

3433 (West 1994) ("Possession is lost when the possessor manifests

his intention to abandon it or when he is evicted by another by

force     or   usurpation.");         see    also   Aubry    &   Rau,   Droit    Civil

Francais,      in   2   Civil   Law    Translations      §   179,   at   91     (1966)

(possession of apparent servitude is lost by changes made on the

servient estate which make exercise of the servitude impossible or

represent an obstacle to its exercise).                Accordingly, we hold that

the railroad did not commence possession on behalf of the City.

The     railroad    was   therefore         presumed    to   possess     as     owner.

La.Civ.Code Ann. art. 3427.                 The City has not rebutted this

presumption. River City is entitled to be maintained in possession

of the land.

                                III. Water Street

      The district court held as to one segment of the property

called Water Street that NO 2000 did establish its possessory

rights.        The City cross-appeals the court's granting NO 2000

possession of Water Street.            Unlike the property underlying other

streets at issue, the property underlying Water Street was not

listed in the 1912 Ordinance as one of the streets to be closed and

was never dedicated to public use via sales of adjacent properties

      7
      River City also asks that we rule on its contention that
the City's servitude has been terminated due to abandonment or
prescriptive non-use. This question relates to ownership rather
than possession of the servitude and is not at issue in a
possessory action.

                                            10
with reference to the street or to a map depicting the street.

      The City's appeal is based on the erroneous assumption that it

would have obtained full ownership of the land underlying Water

Street through an implied dedication (if one occurred).        We reject

the   notion   that   implied   dedication    transfers   ownership,    as

discussed above.      Moreover, the City has not shown the district

court's finding of no dedication of Water Street to be clearly

erroneous.

      The railroad has possessed the land underlying the former

Water Street as well as the other streets at issue, and the City

has not shown such possession to have been precarious.                 The

judgment of the district court is affirmed inasmuch as it maintains

NO 2000 in possession of the Water Street property.

                            IV. Conclusion.

      We affirm in part the judgment of the district court with

respect to the ruling maintaining NO 2000 in possession of the

property underlying Water Street. We reverse in part regarding the

land underlying the other closed streets and remand for entry of

judgment maintaining River City in quiet possession of such land.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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