Richard v. Broussard

• Decision Date: 10 October 1979
• Docket Number: No. 7133,7133
• Citation: 378 So.2d 959
• Parties: Patrick F. RICHARD, Plaintiff-Appellant, v. Robert Joseph BROUSSARD, Jr., Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 959

378 So.2d 959

Patrick F. RICHARD, Plaintiff-Appellant, v. Robert Joseph BROUSSARD, Jr., Defendant-Appellee.

No. 7133.

Court of Appeal of Louisiana, Third Circuit.

Oct. 10, 1979.

Rehearing Denied Nov. 21, 1979.

J. Barry Mouton, Lafayette, for plaintiff-appellant.

J. Lee Wimberly, Jr., Church Point, for defendant-appellee.

Before SWIFT, STOKER and DOUCET, JJ.

STOKER, Judge.

This is an action for declaratory judgment. Plaintiff, Patrick F. Richard, seeks a decree declaring that certain property purchased from John Elmer Jagneaux is free from any restrictive covenants. The restrictive covenant in question was purportedly placed upon the land in 1968 by insertion in a deed by plaintiff's ancestor in title, Robert Joseph Broussard, Jr., who sold to Jagneaux. Robert Joseph Broussard, Jr. is the sole defendant in this case. ¹

The issue presented by this appeal is whether the trial judge erred in his determination that there was a valid building restriction in effect on plaintiff's property which prohibited the use of that land for commercial purposes. The issue to be resolved presented the following questions:

(1) Whether there was ever a valid restrictive covenant imposed upon plaintiff's land in accordance with a "general plan governing building standards, specified uses and improvements," I. e., in the sense provided by LSA-C.C. art. 775?

(2) If there was ever such a restrictive covenant affecting plaintiff's lot, has it been abandoned by general usage of other residential lots in the area for commercial purposes?

(3) If no restrictive covenant was ever imposed upon plaintiff's lot of the nature referred to in paragraph (1) above, is plaintiff under an obligation to defendant not to use the lots for other than residential purposes grounded upon some other legal basis, particularly rights and obligations in the nature of a predial servitude?

As we understand the trial court's reasons for judgment it did not decide question (1) above, but it evidently did find obligations of the nature referred to in question (3) above. The trial court found "that there exists on said property a building restriction, restricting it to residential use only, the same being valid and enforceable against plaintiff."

FACTS

The defendant was the owner of a large tract of property located in the town of Church Point, Louisiana. The facts in this case are somewhat limited. However, the parties entered into a stipulation of facts. Admitted through the stipulation is a sketch of a long, rectangular piece of property located between four streets which allegedly contains properties which defendant began to subdivide in 1954. This sketch was introduced and appears in the record as exhibit "A". For the sake of clarity we have inserted below a sketch abstracting the pertinent information shown on exhibit "A". As will be seen, an alley runs the length of, and parallel to, two of the streets for approximately three-quarters of the length of the block. A series of lots of varying widths front on the streets shown as David Street and the unmarked street which we take to be Main Street. Most of these lots appear to be approximately 200 feet in depth between parallel lines running from either David or Main Street back to the alley. The alley ceases to run through the block when it reaches the unsold land retained by Broussard.

No overall or general plan of subdivision restrictions was imposed on the entire subdivision, if such it can be called. Restrictive covenants were inserted in the instruments conveying lots to individual purchasers of certain lots; however, this was not done in all cases.

(See following illustration.)

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Under the stipulation, it appears to be agreed that a prohibition against any use other than residential was included in all sales subsequent to 1954.

The deed transferring title from the defendant to John Elmer Jagneaux contained the following language:

"It is understood and agreed by and between the parties to this sale that the . . . property shall be and remain residential property; that this stipulation shall be valid and binding upon the executors, administrators, heirs, successors and (word indistinct) of purchaser, and shall be enforced by the proper legal action."

The description in the deed from Broussard to Jagneaux reads as follows:

A certain lot or parcel of land together with all buildings and improvements thereon and thereon belonging, if any, situated in the town of Church Point, Acadia Parish, Louisiana, having a width of 125.2 feet fronting on South Main Street, and measuring 188.7 feet on its Southern boundary, and running along a 55 foot street right-of-way not yet opened, and measuring 126.2 feet on its rear and/or Eastern boundary and measuring 188.5 feet on its Northern boundary, bounded now or formerly on the North by Wade Leger; on the East by South Main Street; on the South by 55 foot unopened street right-of-way; and on the West by Mrs. Robert Broussard, et al., as per plat of survey made for John Elmer Jagneaux by W. H. Jarrell, Jr., dated July 2, 1968, which is attached hereto and made a part hereof.

The plat made by W. H. Jarrell, Jr. referred to above is not attached to the copy of the deed in evidence. However, we take the language to mean that the survey was of the property conveyed rather than a subdivision of the whole.

On December 28, 1972, plaintiff purchased this same tract of land from Mr. Jagneaux, which was then described within the deed as follows:

"A certain piece, parcel or lot of ground situated in the Corporation of the Town of Church Point, Acadia Parish, Louisiana, on the S/W side of Main Street and measuring 125.2' fronting on Main Street; 188.5' on the N/W Boundary Line: 126.2' on the S/W Boundary Line and 188.7' on the S/E Boundary Line, and is bounded now or formally N/E by Main Street; N/W by Wade Leger; S/W by Alley or property of Shirley Bergeron and S/E by Robert Street."

The stipulation of fact between the parties opens with the following recitation:

We have prepared a map which we will introduce We don't know if it is a survey (,) but it is a scale drawing of the block of land in question(,) and it has been colored in various colors and markings.

After that prefatory statement the parties indicate the character of each parcel of land within the block.

According to the stipulation, the property lying in the southeastern corner of Broussard and David Street, consisting of two lots of 50 and 82 foot frontages on Broussard, and marked through with a "X," were sold by parties other than defendant and his ancestors. The second classification of sales consists of property marked in yellow on the official exhibit and indicated by diagonal lines on our exhibit. These tracts constitute some five parcels of property, two fronting on David Street and three fronting on Main Street, which were sold prior to 1954 with no restrictions on them whatsoever.

A third classification of property within the block consists of property near the northern end of the block fronting both on David Street and Main Street which has never been alienated by the Broussard family. This property has no restrictive covenants on it.

All other individual plots of ground shown on the sketch were sold subsequent to 1954 and each of the acts conveying them contain a restriction to residential use similar to that quoted above which appears in the act of sale transferring title from the defendant to Jagneaux.

The trial evidence indicates that a plot belonging to Joseph Oscar Beaugh fronting approximately 200 feet on Main Street near the southern portion of the property has a tennis court located on it belonging to Mr. Beaugh. Plaintiff contends that Mr. Beaugh rented the use of this tennis court, that this was a commercial venture, and therefore, if viable restrictions ever existed against commercial use of the property in the block, these restrictive covenants have been abandoned.

Trial Court's Reasons For Judgment.

The trial court gave very brief reasons for judgment. They are reproduced here as follows:

This matter comes before the Court on plaintiff's petition for declaratory judgment, his requested relief being a decree that property owned by him is free of any restrictive covenants.

Without deciding the issue as to whether the original vendor, defendant in this suit, has proved a general plan or scheme upon which a building restriction should stand, this Court finds the building restriction found in the sale of this property to John E. Jagneaux, plaintiff's immediate predecessor in title, to have created a building restriction running with the land into the hands of successive buyers. See Comments of La. Revised Civil Code Article 775 to 783, as amended Acts 1977, and cases cited therein.

For the above reasons, the Court denies plaintiff's requested relief. Accordingly, this Court finds that there exists on said property a building restriction, restricting it to residential use only, the same being valid and enforceable against plaintiff. Costs of these proceedings to be paid by plaintiff.

NATURE OF THE ACTION

The plaintiff's petition, the evidence presented by the parties and the arguments made in this appeal, as reflected in the briefs, establish that both parties conceived of their rights being governed by Articles 775 through 783 of the Louisiana Civil Code. Plaintiff specifically states this and quotes each of the articles beginning on page one of his brief. Under these articles, therefore, the parties refer to restrictive covenants which are designated as Building restrictions, LSA-C.C. art. 775, under Louisiana law. Some previous Louisiana jurisprudence refers to such restriction by the common law term of Covenants running with the land. Exposee des Motifs appearing in Book II, Title V, Building Restrictions preceding the text and comments, under Articles 775 through 783 as enacted by Act 170 of the ...