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. The opinion says whether public work on a road satisfies the three-year "kept up, maintained, or worked" requirement of La. R.S. 48:491(B)(1)(a) must be decided case by case. 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." The opinion gives these examples from the request letter and cases:

• 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 opinion cites Robinson v. Beauregard Parish Police Jury and Mizell v. Willis in a footnote to its discussion of token maintenance and occasional brushing. It does not assign the Police Jury a decision-making power or specify how a court would review its assessment.

On Question 2: Yes, within state law. La. R.S. 48:481 lets parish governing authorities pass ordinances concerning roads, bridges, and ditches. The AG said the Police Jury may set objective criteria for "kept up, maintained, or worked" in Union Parish if the ordinance does not conflict with existing state minimum standards for inclusion of roads in a public road system. The opinion does not prescribe the criteria or say that an ordinance can change the statutory test.

Footnote 6 invokes the maxim qui potest plus, potest minus (he who can do more can do less), reasoning that a parish or municipality that may revoke a dedication may place conditions on acquiring one.

What this means for you

If you are on the Union Parish Police Jury. You may consider an ordinance with objective criteria for the public effort that counts as "kept up, maintained, or worked." Check any proposed criteria against existing state minimum standards; the AG says an ordinance cannot override them. This opinion supplies no model frequency or type of work.

If you own land crossed by a road that the parish works on. The opinion says the amount and duration of public work matter. It cites examples where a single scraping was insufficient and regular grading supported tacit dedication. It gives no advice about notices, stopping work, burdens of proof, or undoing a dedication.

If you want to know whether a road has become public. Review the public entity's work over the statutory three-year period. The opinion treats sufficiency as a factual inquiry and gives examples, but no universal grading schedule or maintenance threshold.

If you advise a parish about a particular road. Compare the work actually performed and its duration with the examples in this opinion. The AG did not decide the status of any particular Union Parish road.

If you are reviewing a property's road status. This opinion identifies the relevant question as whether a public entity kept up, maintained, or worked the road for three years. Its examples help frame the factual inquiry; they do not decide another road's status.

Common questions

Q: What is tacit dedication and why does it matter?
A: This opinion addresses when public work on a road over three years is sufficient for tacit dedication under La. R.S. 48:491(B)(1)(a). It does not decide whether any particular road met that test.

Q: Does "kept up, maintained, or worked" require the parish to have done all three things?
A: The opinion quotes the statutory alternatives and says token maintenance and occasional brushing fall below the standard. It does not supply a separate definition of each term.

Q: Does the Police Jury's view settle whether a road was tacitly dedicated?
A: The AG answers that sufficiency of the public work is a factual question to be decided case by case. This opinion does not describe a process for resolving a disagreement about a particular road.

Q: Does the opinion address revocation of a road dedication?
A: Footnote 6 cites an earlier AG opinion saying that a parish or municipality may revoke a road dedication. Opinion 23-0060 does not decide the effect of later inaction on any particular road.

Q: Does this opinion say a parish can set a higher bar than state law for tacit dedication?
A: It allows objective criteria if they do not conflict with existing state minimum standards. The AG does not endorse a particular grading frequency or authorize a parish to alter the state standard.

Q: What's the practical effect of an ordinance defining the standard?
A: The AG says an ordinance may state objective criteria within state-law limits. The opinion does not decide what legal effect any proposed ordinance would have on a particular road.

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. Listed in the opinion's caption; the body does not analyze it.

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. Cited in footnote 6 alongside a prior AG opinion about revocation of a road dedication. The footnote invokes the qui potest plus maxim to explain the power to place conditions on acquiring a dedication.

La. Const. art. VI, § 9. Cited in footnote 5 to the discussion of parish ordinance authority.

Cases cited. Footnote 1 cites Robinson v. Beauregard Parish Police Jury and Mizell v. Willis in the discussion of token maintenance and occasional brushing. The opinion's quoted examples from the request letter include Rowe v. Harvey, Beard v. Beauregard Parish Police Jury, and Boynton v. Bertrand. A fourth footnote cites Martin v. Cheramie for shelling and grading.

Union Parish factual context. The Police Jury asked what public work suffices and whether it may set specific standards by ordinance. The AG did not evaluate a particular road or ordinance.

Jeff Landry was Attorney General of Louisiana when the opinion issued. The signature line identifies an Assistant Attorney General.

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, 116 (La. 1977) (footnote 1)
• 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

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.

1 Robinson v. Beauregard Parish Police Jury, 351 So.2d. 113, 116 (La. 1977); 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)).

2 Letter from Evelyn I. Breithaupt, Esq. to Jeff Landry, Attorney General, dated May 5, 2023 at 2 (citing La. Atty. Gen. Op. No. 81-942).

3 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)).

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

5 La. Const. art. VI, sec. 9.

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,

Assistant Attorney General

JL/RMS/cw

6 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.