## Facts

- David and Ilonka Band owned a residence adjacent to Audubon Park in New Orleans.
- Audubon Park was created and acquired through 19th-century legislative acts for the purpose of establishing and maintaining a public park; ownership ultimately vested in the City of New Orleans, administered through the Audubon Park Commission.
- In 1981, when the Bands purchased their property, the sale documents stated they recognized visible encroachments extending onto park land.
- The encroachments consisted of a brick patio and a light metal fence occupying approximately a 10′ by 30′ area on park property; no substantial buildings were located on the encroached area.
- In 2003, Audubon notified adjacent owners of encroachments and offered either a lease or removal of improvements; the Bands refused both options.
- The Bands sued, asserting they had acquired the encroached strip by acquisitive prescription.
- The trial court granted summary judgment for Audubon, concluding the park land was a public thing not subject to acquisitive prescription; the Bands appealed.

## Issues

1. Whether the encroached portion of Audubon Park was a public thing owned by the City of New Orleans for public use and therefore not susceptible to acquisitive prescription.
2. Whether, given that classification, Audubon was entitled to summary judgment as a matter of law on the Bands’ prescriptive-ownership claim.

## Decision

- The court affirmed summary judgment for the Audubon Park Commission.
- It held Audubon Park is a public thing owned by the City of New Orleans in its public capacity and held for public use.
- Because the property was a public thing, it could not be acquired by acquisitive prescription, and the Bands’ claim failed as a matter of law.
- The court found no genuine issue of material fact on the park’s public status; the dispute turned on a legal consequence of undisputed historical and ownership facts.

## Legal Principles

- Property owned by the state or a political subdivision in its capacity as a public person and held for public use is a public thing and is inalienable and not susceptible to acquisitive prescription while so held.
- Acquisitive prescription cannot run against public things, regardless of the openness, duration, or good/bad faith of private possession or encroachment.
- Summary judgment is proper when the material facts are undisputed and the legal classification of the property defeats the claim as a matter of law.

## Conclusion

The court held that municipal park land dedicated to public use is a public thing immune from acquisitive prescription, so the Bands could not obtain ownership of the encroached park strip and the park commission was entitled to summary judgment.


Band v. Audubon Park Comm’n, 936 So. 2d 841 (La. Ct. App. 4th Cir. 2006)