What counts as 'kept up, maintained, or worked' in Louisiana's tacit road dedication statute, and can a parish set its own rule by ordinance?

Plain-English summary

The Union Parish Police Jury asked the AG two questions about tacit road dedication under La. R.S. 48:491(B)(1)(a):

1. What activities count as "kept up, maintained, or worked," and does the Police Jury have discretion to decide if a road meets the three-year requirement?
2. Can the Police Jury pass an ordinance setting specific standards for what counts as sufficient public effort?

On Question 1: The answer is fact-specific. Louisiana's tacit dedication statute (La. R.S. 48:491(B)(1)(a)) treats a road as publicly dedicated when the public entity has "kept up, maintained, or worked" the road for three years. The AG explained, consistent with its prior opinion La. Atty. Gen. Op. No. 14-0104, that "what exact activity satisfies this standard is not delineated in Louisiana Jurisprudence." Louisiana courts have given guideposts but no bright line:

• A single act of scraping a grader to smooth ruts is not enough (Rowe v. Harvey, 307 So.2d 103 (La.App. 1 Cir. 1974))
• Regular grading IS more than token maintenance and can establish dedication (Beard v. Beauregard Parish Police Jury, 78 So.2d 625 (La. App. 3 Cir. 1979))
• Grading three times a year plus occasional ditch cleaning IS enough (Boynton v. Bertrand, 309 So.2d 769 (La. App. 3 Cir. 1975))
• Shelling and grading IS enough (Martin v. Cheramie, 264 So.2d 285 (La.App. 4 Cir. 1972))

The recent decision in Mizell v. Willis (La.App. 1 Cir. 7/29/21) confirmed that the standard is still case-by-case. The Police Jury does not have unilateral discretion to declare a road public; it has discretion to evaluate the facts of each road on a case-by-case basis. Courts can override that evaluation if litigated.

On Question 2: Yes, with limits. La. R.S. 48:481 gives parish governing authorities broad authority to pass "all ordinances which they think necessary relative to roads, bridges, and ditches." La. Const. art. VI, § 9 confirms the power of parishes to act on roads. The AG already opined in La. Atty. Gen. Op. No. 08-0334 that some minimum standards for inclusion of roads in a public road system must be respected, but beyond those minimums, the Police Jury can promulgate an ordinance giving objective criteria for what counts as "kept up, maintained, or worked." The ordinance must not "traverse" state law. Within that boundary, the Police Jury can set its own rule.

The qui potest plus, potest minus maxim (he who can do more can do less) supports the answer: a parish that can revoke a road dedication entirely (La. Atty. Gen. Op. No. 83-181, citing La. R.S. 48:701) can also place conditions on what counts as a dedication-creating act.

What this means for you

If you are a parish police jury considering an ordinance on road maintenance standards. This opinion clears the path. Draft an ordinance with objective criteria (frequency of grading, ditch cleaning intervals, surface treatment) that calibrate the parish's tacit-dedication exposure to its actual road maintenance plan. Reference La. R.S. 48:491(B)(1)(a) directly. Avoid criteria that would exclude roads that state law would treat as obviously dedicated; that would conflict with state minimum standards. La. Atty. Gen. Op. No. 08-0334 is the key prior authority on the state-law floor.

If you are a rural landowner whose road the parish has been touching up. You should know that a regular pattern of grading and ditch cleaning over three years can convert your private road into a publicly dedicated one under La. R.S. 48:491(B)(1)(a). If you want to keep it private, push back early: send a written request to the parish to stop the work, post No-Trespassing notices, and document any continued maintenance. Once the three-year threshold is met, the burden flips and you have to litigate to undo the dedication.

If you are a landowner who wants the parish to take over a road. The flip side: get the parish to start a regular maintenance pattern (graded multiple times per year, not just brushing up once in a while), and the road can become public. The opinion's case citations help: regular grading is the threshold; sporadic brushing is not.

If you are a parish attorney litigating a tacit-dedication dispute. The Mizell v. Willis (2021) case is the most recent appellate guidance and confirms that the standard remains case-by-case. The IP Timberlands and Guzzardo v. Campo cases give the doctrinal frame. Plan to put on evidence of (a) the frequency of maintenance activities, (b) the type of activities (grading vs. brushing), (c) whether the parish included the road in its budget or work-plan, and (d) the length of the activity pattern relative to the three-year statutory window.

If you are a title lawyer reviewing a rural property. Tacit dedication is a recurring title issue in rural Louisiana. Look for: parish road-maintenance records, work orders, parish road maps, and any AG opinion or judicial decision specific to that road. If there's any pattern of parish maintenance over three years, raise it.

Common questions

Q: What is tacit dedication and why does it matter?
A: Tacit dedication is the Louisiana doctrine that a privately owned strip of land used as a road becomes a public road by operation of law if the public entity (police jury, municipality) has maintained it for three years. La. R.S. 48:491(B)(1)(a) codifies the rule. Once tacit dedication is complete, the public has the right to use the road, and the parish has the duty to maintain it.

Q: Does "kept up, maintained, or worked" require the parish to have done all three things?
A: No. The statute uses "or," which is disjunctive. Any one of the three categories of activity can suffice, if the level is more than token. Most cases focus on "maintained" or "worked" rather than "kept up," but the activities overlap.

Q: Can a property owner sue to revoke a tacit dedication that was based on insufficient maintenance?
A: Yes. The owner can file a possessory or declaratory action seeking a judicial determination that the maintenance was insufficient to dedicate. The court applies the fact-specific test from the case law. Mizell v. Willis (2021) is a recent example of such litigation reaching the appellate court.

Q: What if the parish maintained the road for three years and then stopped?
A: Once tacit dedication is established, the parish's later inaction does not undo it. The road remains a public road. The parish could formally revoke the dedication under La. R.S. 48:701, but absent formal revocation, the dedication persists.

Q: Does this opinion say a parish can set a higher bar than state law for tacit dedication?
A: The opinion lets the parish set objective criteria for what counts as "kept up, maintained, or worked." A reasonable ordinance might require a defined level of maintenance (e.g., grading at least four times per year) before the parish treats a road as dedicated. The ordinance cannot set a bar so high that it conflicts with state law. La. Atty. Gen. Op. No. 08-0334 is the AG's prior view on state minimum standards.

Q: What's the practical effect of an ordinance defining the standard?
A: It clarifies expectations for landowners and the parish road department. Landowners know what level of parish maintenance will (or will not) trigger dedication. The parish road department can budget and plan with that boundary in mind. Disputes that arise will still be litigated on the facts, but the ordinance gives the parties and the court a framework to apply.

Background and statutory framework

La. R.S. 48:491(B)(1)(a) (tacit dedication). This is the operative statute. A road becomes a public road by tacit dedication if the public entity "kept up, maintained, or worked" the road for three years. The statute does not define those terms; the case law fills in.

La. R.S. 48:431 (police jury road authority). Cited in the opinion's caption, this statute establishes the police jury's general authority over parish roads.

La. R.S. 48:481 (parish road ordinances). "Parish governing authorities may pass all ordinances which they think necessary relative to roads, bridges, and ditches, and may impose such penalties to enforce them as they think proper." Broad grant of ordinance-making authority.

La. R.S. 48:701 (revocation of road dedication). Permits parishes to revoke prior road dedications. La. Atty. Gen. Op. No. 83-181 confirmed this authority. The AG opinion here invokes the qui potest plus maxim to argue that the power to revoke implies the lesser power to set conditions on what counts as a dedication.

La. Const. art. VI, § 9 (parish home rule). Confirms the broad authority of parishes to act on local matters, including roads, subject to state law constraints.

Case-law landmarks. Robinson v. Beauregard Parish Police Jury, 351 So.2d 113 (La. 1977), is the foundational case on tacit dedication's case-by-case nature. Mizell v. Willis (2021) is the most recent appellate case. IP Timberlands (1989) and Guzzardo v. Campo (1986) are the next most-cited authorities. Rowe v. Harvey (1974), Beard v. Beauregard (1979), and Boynton v. Bertrand (1975) supply the "what counts" examples. Martin v. Cheramie (1972) is the shelling-and-grading benchmark.

Union Parish factual context. Union Parish is in northern Louisiana. The Union Parish Police Jury asked the AG to clarify the standard before drafting any ordinance on the topic.

Jeff Landry was the Attorney General of Louisiana at the time of the opinion. The opinion was signed by an Assistant Attorney General identified in the PDF with the initials "JL/RMS/cw" and the typed signature appears as "S[ergio?] Seid mat[?][Ph.D.]". The handwritten signature in the original is partly garbled in the OCR.

Citations and references

Statutes and constitution:
- La. Const. art. VI, § 9 (parish home rule)
- La. R.S. 48:431 (police jury road authority)
- La. R.S. 48:481 (parish road ordinances)
- La. R.S. 48:491(B)(1)(a) (tacit road dedication after three years of "kept up, maintained, or worked")
- La. R.S. 48:701 (revocation of road dedication)

Cases:
- Robinson v. Beauregard Parish Police Jury, 351 So.2d 113 (La. 1977) (case-by-case tacit-dedication test)
- Mizell v. Willis, 2020-0915 (La.App. 1 Cir. 7/29/21), 329 So.3d 302 (most recent appellate authority)
- IP Timberlands Operating Co. v. DeSoto Par. Police Jury, 552 So.2d 605 (La.App. 2 Cir. 1989) (tacit-dedication doctrine)
- Guzzardo v. Campo, 486 So.2d 912 (La.App. 1 Cir. 1986), writ denied, 488 So. 2d 1026 (La. 1986)
- Rowe v. Harvey, 307 So.2d 103 (La.App. 1 Cir. 1974) (mere scraping insufficient)
- Beard v. Beauregard Parish Police Jury, 78 So.2d 625 (La. App. 3 Cir. 1979) (regular grading sufficient)
- Boynton v. Bertrand, 309 So.2d 769 (La. App. 3 Cir. 1975) (three-times-per-year grading plus ditch cleaning sufficient)
- Martin v. Cheramie, 264 So.2d 285 (La.App. 4 Cir. 1972) (shelling and grading sufficient)

Prior AG opinions referenced:
- La. Atty. Gen. Op. No. 14-0104 (case-by-case standard for tacit dedication)
- La. Atty. Gen. Op. No. 77-1624 (occasional brushing insufficient)
- La. Atty. Gen. Op. No. 81-942 (further examples of insufficient maintenance)
- La. Atty. Gen. Op. No. 83-181 (parish may revoke a road dedication)
- La. Atty. Gen. Op. No. 08-0334 (state minimum standards for inclusion in public road system)
- La. Atty. Gen. Op. No. 16-0145 (related municipal road authority)

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/23-0060

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

State of Louisiana
DEPARTMENT OF JUSTICE
CIVIL DIVISION
P.O. BOX 94005
BATON ROUGE
70804-9005

Jeff Landry
Attorney General

June 28, 2023

OPINION 23-0060

50 HIGHWAYS Roads
90 POLICE JURIES Powers & Functions
La. Const. art. VI, § 9
La. R.S. 48:431
La. R.S. 48:481
La. R.S. 48:701

Evelyn I. Breithaupt, Esq.
Gold, Weems, Bruser, Sues & Rundell
Attorney for Union Parish Police Jury
2001 MacArthur Drive
Post Office Box 6118
Alexandria LA 71307-6118

Whether activity is sufficient to satisfy the requirement of "kept up, maintained, or worked" in La. R.S. 48:491(B)(1)(a) is a question of fact to be determined on a case-by-case basis. Moreover, the Police Jury may pass an ordinance setting forth objective criteria for what constitutes "kept up, maintained, or worked" within the borders of Union Parish so long as that ordinance does not conflict with State law.

Dear Ms. Breithaupt:

On behalf of the Union Parish Police Jury ("the Police Jury"), you have requested an opinion regarding road maintenance and the designation of roads as public. Specifically, you have asked the following two questions:

1. What types of activities are included in the phrase "kept up, maintained, or worked" in La. R.S. 48:491(B)(1)(a) and does the Police Jury have discretion to determine whether a road has been "kept up, maintained, or worked for a period of three years?"

2. Can the Police Jury pass an ordinance setting forth specific standards for what constitutes the public effort to satisfy the "kept up, maintained, or worked" requirement of La. R.S. 48:491(B)(1)(a)?

Your questions are answered in order below.

What types of activities are included in the phrase "kept up, maintained, or worked" in La. R.S. 48:491(B)(1)(a) and does the Police Jury have discretion to determine whether a road has been "kept up, maintained, or worked for a period of three years?"

Prior opinions of this office conclude that what constitutes sufficient work by a public entity on a particular road to meet the requirement of La. R.S. 48:491(B)(1)(a) that the road be "kept up, maintained, or worked for a period of three years" is a fact-based inquiry that should be determined on a case-by-case basis. See e.g., La. Atty. Gen. Op. No. 14-0104. We see no reason to depart from that conclusion in this opinion. What exact activity satisfies this standard is not delineated in Louisiana Jurisprudence. Louisiana courts have indicated certain activities such as token maintenance and the occasional brushing up of a road fall below the standard, but have never articulated a bright-line rule for the standard. In your request letter, you recite the following examples of what courts have found insufficient to constitute "kept up, maintained, or worked":

(i) a road was not tacitly dedicated when the only work done was that the "road was actually just scraped by the grader to smooth any existing ruts," Rowe v. Harvey, 307 So.2d 103 (La.App. 1 Cir. 1974), (ii) that regular grading was "more than token maintenance and thus the road is a public road," Beard v. Beauregard Parish Police Jury, 78 So.2d 625, 628 (La. App. 3 Cir. 1979), and (iii) that a road was tacitly dedicated where the police jury graded the road three times a year and occasionally cleaned the sides of ditches, Boynton v. Bertrand, 309 So.2d 769, 770-71 (La. App. 3 Cir. 1975); see also La. Atty. Gen. Op. No. 77-1624 (noting that "the jurisprudence construing R.S. 48:491 has consistently held that an occasional 'brushing up' or token maintenance of private property does not establish a tacit dedication").

More recent jurisprudence has not illuminated this matter further, and there is still no bright-line rule for determining what is sufficient maintenance under the law to constitute tacit public dedications of roads. Accordingly, it is our continued opinion that whether activity is sufficient to satisfy the requirement of "kept up, maintained, or worked" in La. R.S. 48:491(B)(1)(a) is a question of fact to be determined on a case-by-case basis.

Can the Police Jury pass an ordinance setting forth specific standards for what constitutes the public effort to satisfy the "kept up, maintained, or worked" requirement of La. R.S. 48:491(B)(1)(a)?

Louisiana Revised Statute 48:481 states that, "[p]arish governing authorities may pass all ordinances which they think necessary relative to roads, bridges, and ditches, and may impose such penalties to enforce them as they think proper." Thus, as a basic matter, the Police Jury has broad authority and discretion to pass ordinances relating to tacit road dedications, subject only to the general caveat that ordinances cannot traverse state law.

In La. Atty. Gen. Op. No. 08-0334, we opined that certain minimum standards for the inclusion of roads into a public road system established by law must be followed. These minimum standards would represent state law that cannot be preempted by ordinance. We are aware of no statutory or regulatory definition of what constitutes the public efforts to satisfy the "kept up, maintained, or worked" requirement of La. R.S. 48:491(B)(1)(a). Moreover, as is set forth above, there also appears to be no judicial guidance defining this standard. As long as the Police Jury does not pass an ordinance that traverses any existing state minimum standards, it is our opinion that the Police Jury could promulgate an ordinance setting forth objective criteria for what constitutes "kept up, maintained, or worked" within the borders of Union Parish.

We hope that this opinion has adequately addressed the legal issues you have raised. If our office can be of further assistance, please do not hesitate to contact us.

With best regards, I am,

Very truly yours,

[signature]
Assistant Attorney General

JL/RMS/cw

[Footnote: Mizell v. Willis, 2020-0915 (La.App. 1 Cir. 7/29/21), 329 So.3d 302, 307 (citing IP Timberlands Operating Co. v. DeSoto Par. Police Jury, 552 So.2d 605, 607 (La.App. 2 Cir. 1989); Guzzardo v. Campo, 486 So.2d 912, 914 (La.App. 1 Cir. 1986), writ denied, 488 So. 2d 1026 (La. 1986)).]

[Footnote: Cf., Martin v. Cheramie, 264 So.2d 285 (La.App. 4 Cir. 1972) (shelling and grading was sufficient to satisfy the dedication requirements).]

[Footnote: Accord La. Atty. Gen. Op. No. 83-181 (noting that a parish or municipality may revoke a road dedication). La. R.S. 48:701. Certainly, if a parish or municipality can revoke a road dedication, it may also place conditions on the acquisition of such dedications under the maxim, qui potest plus, potest minus (he who can do more can do less). See also La. Atty. Gen. Op. No. 16-0145.]