Alfortish v. Wagner

Decision Date30 March 1942
Docket Number36255.
CourtLouisiana Supreme Court
PartiesALFORTISH et al. v. WAGNER.

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 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 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.

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 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.

It is further shown by the evidence that the building restrictions were not inserted in the original deeds from the New Orleans Housing Corporation to the purchasers of Lots Nos. 4, 5 and 6 of Square 1006 facing on Desire Street (adjacent to defendant's property). These restrictions were, however, contained in the bonds for deed for those lots originally issued by that company.

Lot No. 8, which abuts defendant's lot on the other side and forms the corner of Desire and North Galvez Street, is being occupied as a gasoline service station. The record is silent as to whether, in the original transfer from the New Orleans Housing Corporation, the building restriction was contained in the deed to that lot, but it appears that the restriction was inserted in the bond for deed issued by the company.

The evidence in the case further exhibits that, notwithstanding the omission of the building restrictions respecting the fifteen foot set-back from the property line in the original deeds from the New Orleans Housing Corporation to the purchasers of Lots Nos. 4, 5 and 6, the present owners of those lots have conformed to the restrictions in the erection of their homes. And it is also exhibited that all of the owners of property situated on both sides of Desire Street, in Squares Nos. 1006 and 1007 in the block bounded by North Galvez Street and North Johnson Street, have set back their buildings fifteen feet from the property line in accordance with the original plan of the New Orleans Housing Corporation.

On March 11, 1941, the defendant Wagner, who conducts a business establishment upon his property, applied for and obtained a permit from the Department of Public Property of the City of New Orleans to erect certain additions to his building. These additions contemplated the extension of the front of his building from the fifteen foot set-back to the front property line. As soon as the permit was obtained, the defendant began to erect the addition. The plaintiffs thereupon instituted the present suit against him for an injunction on the ground that the building restriction contained in the original title deed under which his property had been acquired from the New Orleans Housing Corporation was a covenant running with the land and was inserted therein for the benefit of plaintiffs and others similarly situated.

Upon the showing made by plaintiffs in their petition, a rule nisi was issued by the trial court for the defendant to show cause why the relief prayed for should not be granted. On the return day of the rule, the defendant appeared and, in answer to plaintiffs' petition, alleged that the building restriction contained in his title should not be enforced for the following reasons: (1) That the general plan for building restrictions adopted by the New Orleans Housing Corporation was incapable of...

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  • Gwatney v. Miller
    • United States
    • Court of Appeal of Louisiana — District of US
    • May 23, 1979
    ...Marino, 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 l......
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    ... ... See, also, Salerno v. De Lucca, 211 La. 659, 30 So.2d 678; Alfortish v. Wagner, 200 La. 198, 7 So.2d 708 ...         Restrictive covenants are not to be extended by implication to affect lands not specifically ... ...
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    • May 24, 1976
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