Alfortish v. Wagner, 36255.

CourtSupreme Court of Louisiana
Citation7 So.2d 708,200 La. 198
Decision Date30 March 1942
Docket Number36255.
PartiesALFORTISH et al. v. WAGNER.

7 So.2d 708

200 La. 198

ALFORTISH et al.
v.
WAGNER.

No. 36255.

Supreme Court of Louisiana

March 30, 1942


[7 So.2d 709]

[200 La. 200] McLoughlin & West, of New Orleans, for plaintiffs and appellees.

Casey, Babin & Casey, of New Orleans, for defendant and appellant.

McCALEB, Justice.

This is a suit for an injunction in which the plaintiffs, as owners of property situated in the neighborhood of defendant's property on Desire Street, seek to have him restrained from violating certain building restrictions contained in the title to his land, which were allegedly inserted therein for the benefit of plaintiffs and other proprietors similarly situated. The facts of the case are not seriously disputed and we find them to be as follows:

On September 28, 1921, a concern named New Orleans Housing Corporation (the common ancestor in title of plaintiffs and defendant) purchased seventy lots of ground located in twelve squares or blocks in the same general neighborhood in the City of New Orleans. The outer boundaries [200 La. 201] of these twelve squares are Congress, North Johnson, Piety and North Dorgenois Streets. The squares contain 192 lots of land of which, as we have above stated, the New Orleans Housing Corporation acquired seventy. In some of the squares, particularly Nos. 1306, 1307, 1229, 1230, 1152, 1153 and 1079, which are bounded by North Dorgenois, North Miro, North Galvez, Desire and Congress Streets, the lots acquired by the Housing Corporation were scattered and comprised only a portion of the total number of lots contained in those squares. However, in the Squares Nos. 1005, 1006 and 1007 (with which we are presently concerned), which are bounded by Congress, North Galvez, Elmira, Desire, Piety and North Johnson Streets, the Housing Corporation acquired all of the lots fronting on both sides of Desire and Elmira Streets. And in Square No. 1006, where the defendant's property is situated, the Corporation acquired all of the lots.

The New Orleans Housing Corporation was engaged in the business of developing real estate. Upon its acquisition of the seventy aforementioned lots, it built residences on thirty-two of them and formulated a general plan for the disposal of the property thus improved as well as the vacant property by sale under bonds for deed to the public. In keeping with this scheme, it inserted building restrictions in a vast majority of the bonds for deed issued by it which provided, among other things, that any building or other edifice erected on the lots be set back fifteen feet from the front property line. And, in conformity with this general idea of establishing a set-back for dwellings, the company inserted in the acts [200 La. 202] of conveyance subsequently granted to the purchasers similar clauses restricting the erection of buildings closer than fifteen feet from the front property line.

By stipulation between the litigants in this case, it is admitted that covenants respecting the fifteen foot set-back of buildings from the front property line were inserted in the titles to forty-four and a half (44 1/2) lots, which were sold by the New Orleans Housing Corporation; that, through error or otherwise, these restrictions were left out of the original titles to eleven and five-sixths (11 5/6) lots and that, as to the remainder, it is not known whether the building restrictions are contained in the titles.

The specific property owned by the defendant fronts on Desire Street and is Lot No. 7 in Square No. 1006, which is bounded by Desire, North Galvez, Elmira and North Johnson Streets. In the original transfer of this lot by the New Orleans Housing Corporation, the building restriction providing for a fifteen foot set-back is contained in the deed. Several conveyances were thereafter made of the lot until the property was finally acquired by the defendant. [7 So.2d 710]

The building restriction does not appear in his deed.

The plaintiffs in this suit are seven in number. Six of them, Alfortish, Binder, Hauesser, Maher, Brunig and Croall, own property fronting on Desire Street in Square No. 1007 facing the defendant's property which is on the other side of the street. The other plaintiff, Mason, is the owner of Lot No. 3 in Square No. 1006 fronting on Desire Street--in the same [200 La. 203] block as defendnat--his lot being separated from the property of the defendant by Lots Nos. 4, 5 and 6. The titles of Alfortish, Binder, Hauesser, Maher and Mason contain the building restrictions respecting the fifteen foot set- back from the property line. The titles of Croall and Brunig do not contain these building restrictions, but such restrictions were inserted in the bonds for deed which were originally issued by the New Orleans Housing Corporation.

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20 cases
  • Gwatney v. Miller, 6959
    • United States
    • Court of Appeal of Louisiana (US)
    • May 23, 1979
    ...La.App., 60 So.2d 128; Munson v. Berdon, La.App., 51 So.2d 157; Salerno v. De Lucca, 211 La. 659, 30 So.2d 678; Alfortish v. Wagner, 200 La. 198, 7 So.2d 708; Edwards v. Wiseman, 198 La. 382, 3 So.2d However, where restrictive covenants do not appear in chains of title of half the lots of a......
  • Hargroder v. City of Eunice, 5620
    • United States
    • Court of Appeal of Louisiana (US)
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    ...and faith fully complied with.' See also Bruce v. Simonson Investments, Inc., 251 La. 893, 207 So.2d 360 (1968); Alfortish v. Wagner, 200 La. 198, 7 So.2d 708 (1942); Beyt v. Woodvale Place Apartments, 297 So.2d 448 (La.App.3rd Cir. 1974), writ refused 300 So.2d 840; A. Yiannopoulous, Civil......
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    • United States
    • Court of Appeal of Louisiana (US)
    • April 12, 1961
    ...forming a part of his contract with the subdivider. See, also, Salerno v. De Lucca, 211 La. 659, 30 So.2d 678; Alfortish v. Wagner, 200 La. 198, 7 So.2d Restrictive covenants are not to be extended by implication to affect lands not specifically described or to grant rights to persons in wh......
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    • Court of Appeal of Louisiana (US)
    • May 24, 1976
    ...841 (1938) the evidence was found insufficient to prove that a restriction against commercial use was abandoned. In Alfortish v. Wagner, 200 La. 198, 7 So.2d 708 (1942), the court held that the fact that an area was rezoned for commercial use would not have the effect of nullifying the gene......
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