Congregation of St. Rita Roman Catholic Church, In re

• Decision Date: 02 May 1961
• Docket Number: No. 287,287
• Citation: 130 So.2d 425
• Parties: In re CONGREGATION OF ST. RITA ROMAN CATHOLIC CHURCH (Applying for Declaratory Judgment).
• Court: Court of Appeal of Louisiana — District of US

Page 425

130 So.2d 425

In re CONGREGATION OF ST. RITA ROMAN CATHOLIC CHURCH

(Applying for Declaratory Judgment).

No. 287.

Court of Appeal of Louisiana, Fourth Circuit.

May 2, 1961.

Rehearing Denied June 12, 1961.

Gordon B. Hyde, Harry McEnerny, Jr., New Orleans, for St. Rita Roman Catholic Church, appellee.

Lewis R. Graham, Herman J. Schulze, New Orleans, for Jos. W. Reddock and Rudolph Schulze, appellants.

Alvin W. LaCoste, New Orleans, for Frank C. Saporito, appellant.

Before McBRIDE, REGAN, YARRUT, SAMUEL and HALL, JJ.

YARRUT, Judge.

Plaintiff-Appellee is a religious corporation and owns a square of ground (No. 65) in the Sixth District of New Orleans, fronting on Fontainebleau Drive, bounded by Lowerline and Pine Streets, and Broad Place, and will be referred to herein for brevity as 'St. Rita'.

Defendants-Appellants are the owners of lots on Fontainebleau Drive, in Square No. 64, opposite Square No. 65.

St. Rita brings this action for a Declaratory Judgment to have its square of ground freed from a stipulation in its deed of acquisition restricting its use to private residence, in order to erect a school, convent and/or auditorium-gymnasium, and, as the bases for such relief, contends:

(1) That a fair interpretation of the restriction should permit such contemplated use;

(2) That it has complied with the requirements of Act 448 of 1960 (amending LSA-R.S. 9:5622), providing:

'* * * A. Stipulations in deeds and title to land providing for building restrictions which are inserted in pursuance of a general subdivision plan devised by a common ancestor in title to establish certain use and building standards, constituting covenants running with the land, and wherein no provision is made for terminating the effective date of said restrictions, may be terminated in the following manner:

'(1) By agreement of owners of a majority of the square footage of land in said subdivision to terminate and end said restrictive covenants as of a definite date, provided said agreement will not be effective unless said restrictive covenants will have been established a minimum of 15 years prior to the date of termination of said restrictive covenants; and,

'(2) Any agreement purporting to comply with this statute shall be recorded in the conveyance and mortgage records of the Parish in which the land is located. * * *'

Some of Defendants agree with St. Rita, while others filed exceptions of non-joinder and no right or cause of action. The exception of non-joinder was overruled by the District Judge, and the other exceptions referred to the merits.

The exception of non-joinder is based on failure to join as Defendants all owners of lots in the four other squares alleged to be part of the general plan of subdivision; and the exceptions of no right or cause of action were levelled at St. Rita's failure to obtain the consent of 51% Of the square footage in all six squares, instead of 51% Only in Squares Nos, 64 and 65, owned by Defendants and St. Rita, respectively.

Upon disposal of the exceptions as aforesaid,Defendants-Appellants answered generally denying St. Rita's claims, except its ownership of Square No. 65, and specifically attacked the constitutionality of Act 448, on the ground it deprives them of vested rights, in violation of both State and Federal Constitutions.

There was judgment in favor of St. Rita by the District Court, which held Act 448 of 1960 to be constitutional, and that St. Rita had obtained 51% Of the footage in Squares Nos. 64 and 65, all that was necessary under Act 448. From that judgment this appeal was taken.

While there is dispute concerning what squares should be included in the chain of title, to determine the common 'ancestor in title' under Act 448, supra, we hold that the common 'ancestor in title' is the Interstate Land Co., and that the intended plan of subdivision included the six squares, under the following unchallenged documentary and recorded evidence:

The Interstate Land Co. acquired on the same date in 1912, by separate acquisitions, from each of two brothers, Squares Nos. 64 and 65, in one act, and Squares Nos. 61, 62, 63 and 66 in the other. Shortly prior thereto, and in anticipation of its acquisition, Interstate had made a general map of subdivision of all six squares into lots, by a firm of civil engineers and surveyors; which map was designated as 'Fontainebleau Drive No. 1'. Interstate then sold the lots according to the map to various purchasers, some containing and some not containing (though expressed in varying language) the following restriction as to use:

'It is distinctly understood and agreed by the parties hereto that neither the purchaser, his heirs and assigns shall use or permit any house erected on said lot or parcel of ground to be used, directly or indirectly for business of any description, or for any...