Edwards v. Wiseman

• Decision Date: 30 June 1941
• Docket Number: 36171.
• Citation: 3 So.2d 661,198 La. 382
• Court: Louisiana Supreme Court
• Parties: EDWARDS et al. v. WISEMAN et al.

3 So.2d 661

198 La. 382

EDWARDS et al. v. WISEMAN et al.

No. 36171.

Supreme Court of Louisiana

June 30, 1941

Whitmeyer & Richardson and C. J. Bolin, all of Shreveport, for applicant.

Blanchard Goldstein, Walker & O'Quin, of Shreveport, for respondents.

HIGGINS Justice.

The plaintiffs, as home owners in Unit No. 1 of Broadmoor Subdivision, City of Shreveport, Parish of Caddo, Louisiana seek to enforce certain building restriction clauses against the defendants, the owners of Plot 186 of the said subdivision (which adjoins Plot 185 on which the residence of the plaintiff Edwards is located) by asking the Court for an injunction to restrain the defendants from violating those restrictions.

The defenses are: First, that by contemporaneous construction the plaintiffs and other landowners in the subdivision have construed the building restrictions in such a manner as to give the owners of lots forming the corners of Atlantic Avenue and the intersecting streets the right to face houses built thereon either on Atlantic Avenue or the side streets second, that since the opening of the subdivision in 1924, the plaintiffs and other home owners therein have acquiesced in the re-subdivision of various plots of land by the owners, and especially, the plots cornering on Atlantic Avenue and the intersecting streets, so that, in each instance, the buildings erected thereon front on side or improved streets and not on Atlantic Avenue, an unimproved street which serves the subdivision only as a drainage canal, and, therefore, by permitting these property owners to face their buildings on the side streets and not on Atlantic Avenue, without objection or protest, there has been a waiver and relinquishment of the building restrictions, in so far as they affect these corner sites; third, that the plaintiffs, and particularly Edwards, are estopped from enforcing the restrictions so as to compel the defendants to front their building on Atlantic Avenue because they purchased Plot 186, which adjoins the Edwards property or Plot 185, on January 14, 1938, after observing that all of the other corner lots similarly situated on Atlantic Avenue had been developed by facing the buildings on the side or improved streets and not on Atlantic Avenue, the unimproved street, contrary to the restrictions, thereby causing the defendants to believe that they might lawfully do the same thing; that the plaintiffs stood by and also failed to protest or object when the defendants, in 1938, re-subdivided Plot 186 in such a manner as to front two lots on Albany Avenue, and thereafter, erected a building on the inside lot facing Albany Avenue, and that, therefore, it is now too late for the plaintiffs to complain after the defendants have actually laid the foundation and erected a substantial part of the building on the corner of Atlantic Avenue facing Albany Avenue.

The trial judge overruled all of the defenses and entered judgment in favor of the plaintiffs on the merits and granted a permanent injunction restraining the defendants from proceeding further with the erection of the building fronting on Albany Avenue.

The defendants appealed and the Court of Appeal of the Second Circuit held there had been such a universal disregard of the building restrictions in so far as plots which cornered on Atlantic Avenue were concerned, by facing buildings on the side streets, that by common consent and acquiescence the restrictions had been released or waived, particularly as the plaintiff Edwards had failed to protest against the erection, by the defendants, of the building facing Albany Avenue. 3 So.2d 655.

The plaintiffs applied to this Court for a writ of certiorari which we granted and the case is now before us for review.

The plaintiffs claim that the defendants are in the process of building and constructing, on the corner of Atlantic and Albany Avenues, a residence, in violation of the restrictions contained in the original deed of Plot 186, dated April 7, 1924, in the following respects: (1) That the foundation for the building, as laid out, fronts on Albany Avenue instead of Atlantic Avenue and is within 6 feet of the latter street, whereas is should be 40 feet from the front property line or Atlantic Avenue; (2) that the foundation rests upon parts of Lots 'C' and 'D' of Plot 186 in a cross-wise manner, whereas it should be entirely located on one of the lots and should face Atlantic Avenue; and (3) that the building will cost less than $4,000.

The law is clear that building restriction clauses constitute real rights, not personal to the vendor, and inure to the benefit of all other grantees under a general plan of development, and are real rights running with the land; and that the remedy of the other grantees to prevent a violation of the restrictions by another is by injunction. Queensborough Land Company v. Cazeaux et al., 136 La. 724, 67 So. 641, L.R.A.1916B, 1201, Ann. Cas.1916D, 1248; Hill v. Wm. P. Ross, Inc., 166 La. 581, 117 So. 725, and Ouachita Home Site & Realty Co. v. Collie et al., 189 La. 521, 179 So. 841.

The defendants first contend that the Court should give a practical or common sense interpretation to the building restriction clauses and not a technical one, because even the original developer of the property re-subdivided corner plots so as to face them on side streets and that this practice was followed by other property owners in the subdivision for several years prior to 1938.

This argument is not sound because it is contrary to the unambiguous and express provisions contained in the deed, as follows: 'If plots herein purchased are shown on the map as subdivided into four lots purchaser and assigns shall have the privilege of selling off any lot or lots that they so desire. It is provided, however, that not more than one dwelling shall be built on any one lot. It is further understood that all dwellings which shall be built on said lots and plots shall face streets according to map of this subdivision and that such plots as are not shown as subdivided on map shall remain intact in all future transfers, unless special permission is secured from the Council of the Town of South Highlands.'

The original plan above referred to clearly shows that Plot 186 contains four lots--'A and B' which front on Ockley Drive (where the defendants previously built two houses which they sold) and Lots 'C and D' which front on Atlantic Avenue; and that Lot 'C' forms the corner of Albany and Atlantic Avenues.

The construction of the restrictive clauses as contended for by the defendants is, therefore, erroneous.

With reference to the defense of relinquishment or waiver of the restrictive clauses through acquiescence by failure of the landowners to object to violations thereof, the district court took into consideration all of the instances where there were buildings erected in the entire subdivision contrary to the building restrictions, and compared the total number of violations with the total number of lots in the entire subdivision (including the inside ones) and arrived at the conclusion that the violations were negligible in comparison with the number of lots in the subdivision, and, therefore, it could not be said that there was acquiescence or waiver of the building restrictions. The Court of Appeal differed with the district court in considering the question from this viewpoint and took the position that the comparison should be made of the violations of the restrictions in Unit No. 1 of Broadmoor Subdivision, where the plaintiffs have their residences, and particularly the violations of the restrictions in re-subdividing the plots that cornered on Atlantic Avenue and the side streets or avenues, in order to show that the restrictions have been more honored in their breach than their observance. The Court of Appeal pointed out that there was reason for the uniform disregard of the restrictions in not facing the buildings on Atlantic Avenue because it was an unimproved street which served only for drainage purposes and was adjacent to a cotton field and formed the southern boundary line of the City of Shreveport, thereby making it extremely unlikely that it would ever be improved as the City was without authority to make assessments against the landowners fronting on the opposite side of Atlantic Avenue, because their property was outside of the City limits.

As the issue before the court was whether or not these particular building restrictions had been relinquished or waived by acquiescence in so far as plots cornering on Atlantic Avenue were concerned, it appears to us that the Court of Appeal adopted the correct reasoning in considering the great proportionate number of violations of the building restrictions in Unit No. 1 of Broadmoor Subdivision and especially those with reference to the corner plots on Atlantic Avenue.

When Unit No 1 of Broadmoor Subdivision was originally laid out there were certain building restrictions imposed which were in line with the semi-rural development thereof. Subsequent demand for building sites showed the property had become urban and almost from the beginning of the development of the subdivision in 1924 there were continuous re-subdivisions made of various plots changing the manner in which the buildings were to be faced. The developer himself, without the proper authorization from the City, as required by the restrictions, also indulged in this practice. While Atlantic Avenue was intended to be of equal importance with other streets and avenues, it was never actually opened as a street. Consequently, no houses were built fronting on it. The corner plots which are shown on the map as facing on Atlantic Avenue have been developed, with the exception of the plot owned by the defendants...