Ganus v. Cuoco
Decision Date | 12 October 1977 |
Docket Number | No. 8413,8413 |
Citation | 351 So.2d 224 |
Parties | T. W. GANUS v. Russell L. CUOCO and Board of Levee Commissioners of the Orleans Levee District. |
Court | Court of Appeal of Louisiana — District of US |
Reuter & Reuter, Arthur C. Reuter, Jr., New Orleans, for plaintiff-appellant.
Richard J. McGinity and D. A. McGovern, III, New Orleans, for defendants-appellees.
Before SAMUEL, LEMMON and BEER, JJ.
This is an appeal from a trial court dissolution of a temporary restraining order and refusal to preliminarily enjoin Russell L. Cuoco (plaintiff-appellant's sublessor) and the Board of Levee Commissioners of the Orleans Levee District (hereafter, "Levee Board") from obstructing and preventing boating public access to appellant's leasehold where he operates Plantation Fried Chicken. Appellant, Ganus, contends that the sublease which he holds from appellee, Cuoco, grants the boating public the use of docking facilities and, thus, access to his leased property. Specifically, he claims the right to have his property accessible to the boating public passing alongside the property in the waters of the New Basin Canal.
The lease agreements giving rise to this disputed claim are as follows:
1. By a lease dated March 31, 1964, the Louisiana Department of Public Works leased to Russell L. Cuoco a portion of land on the east side of the New Basin Canal, measuring 387 feet by 77 feet. This lease made no mention of fronting on the New Basin Canal. However, the terms of the lease specifically provide for mooring privileges and set forth conditions governing lessee's construction of boathouses and the installation of pilings and "whaling strips" at dockside.
2. By lease dated October 19, 1964, Cuoco subleased to Ganus Realty Company, Inc., property described as follows:
"A certain portion or strip of land on the east side of the New Basin Canal property between Lake Avenue and U. S. Coast Guard reservation, measuring 218 feet width and front on West End Boulevard by a depth of approximately 77 feet, and fronting in the rear on the New Basin Canal, all as more fully shown on the survey annexed hereto and made part hereof." (Emphasis added.)
A survey of the property showing its western boundary as being on the "New Basin Canal (Side)" was attached to the lease.
The lease provided further:
3. By notarial assignment dated August 1, 1967, Ganus Realty Company, Inc. assigned to T. W. Ganus all of its rights, interest and title under its written sublease.
Then, pursuant to the provisions of the sublease, Ganus submitted plans to Cuoco for the construction of a Plantation Fried Chicken restaurant and parking area. These plans included a boat docking area, so designated. The plans were, in turn, submitted by Cuoco to the Orleans Levee Board (which had, by then, acquired the property along the canal from the Department of Public Works and was, by then, the undisputed owner thereof). By letter to Cuoco dated November 14, 1966, the Levee Board, as owner, approved the plans submitted by Cuoco on behalf of his sublessee, Ganus.
The Levee Board letter approving Ganus' plans refers to "the maintenance and operation of two-hundred and eighteen (218) feet Boat Landing along the east side of the New Basin Canal." Furthermore, the approval was subject to the following conditions:
"1. That the improvements shall be installed in strict accordance to the plans, submitted this office, by Mr. T. W. Ganus.
2. That the facilities will be maintained in top condition at all times.
3. That the Parking Area shall be available for the patrons of the restaurant and the boating public.
4. That the facilities for launching boats, now in operation, under your lease, shall be continued in operation by you, or your Sub-lessee, to serve the boat owners of this vicinity.
5. That this approval is granted with the understanding that shall be no claims against the Board by you, or your Sub-lessee, because of the time involved in the approval of these plans. " (Emphasis supplied.)
Upon taking possession of the premises, Ganus made improvements to the dock and bulkhead fronting on the New Basin Canal and maintained it continuously since that time until the commencement of those incidents which provoked this litigation. Signs were posted along the dock indicating it was for the use of customers of Plantation Fried Chicken. Appellant estimates that 20-25% of his customers arrive by boat to patronize his establishment during the summer months.
Upon appellant's alleging that the Orleans Levee Board has approved plans by Cuoco to construct 20 boat slips in the canal in back of Ganus' leasehold, and upon further alleging that on August 27, 1976, persons acting on behalf of Cuoco and/or the Levee Board trespassed on the property for the purpose of laying out the configuration of the boat slips in anticipation of immediately starting construction, a temporary restraining order issued on August 31, 1976. However, this order was dissolved and a preliminary injunction denied on September 10, 1976, leading to this appeal.
In its brief written reasons for judgment, the trial court made it quite clear that its decision was based upon the survey attached to and made part of the lease from Cuoco to Ganus. The entire basis for the court's conclusions regarding the configuration and boundaries of the leased premises was, obviously from the written reasons, based upon the testimony of surveyors, called in behalf of Cuoco, who expressed the opinion that the survey designation "New Basin Canal (Side)" was conclusive proof that the west side of the leased property did not abut the New Basin Canal but only that its western side was in the direction of the New Basin Canal. Accordingly, the trial court not only rejected the parol evidence proffered by Ganus but rejected any consideration of it. The parol evidence was proffered for the specific purpose of showing the intention of the parties at the time the lease was confected with regard to access, via the docking facilities, by the boating public. This evidence included the exchanges of correspondence between the leasing parties specifically dealing with the use of the leased premises and the access thereto by the boating public as well as evidence regarding Ganus' actions in maintaining the accessway and the use of same by the boating public for many years preceding the events precipitating this litigation. Appellant contends that the refusal of the trial court to consider the proffered parol evidence was error which was directly causative of the trial court's failure to grant the relief sought.
It is generally correct that where there is a conflict between the description in a deed and that shown by an attached map, the map controls the description. Canal Bank v. Copeland, 6 La. 543; Buras v. United Gas Pipe Line Company, 127 So.2d 271 (La.App. 4th Cir., 1961); Missouri Pacific R. R. Co. v. Littleton, 125 So.2d 37 (La.App. 2nd Cir., 1960); South La. Fair Assn. v. Robert, 3 La.App. 505 (La.App. 1st Cir., 1925). However, this general rule has not been applied to unequivocably preclude a full and fair determination of the true intent of the parties.
This court has previously considered the issue of whether or not parol evidence of the intent of the parties should be admitted to show the extent of property conveyed in spite of the attachment of a survey to the deed. In James v. Buchert, 144 So.2d 435 (La.App. 4th Cir., 1962), the facts were similar to those of the case at bar. Plaintiff and his ancestor in title entered into an agreement purporting to create a servitude of passage 100' in length, running across property to be retained by vendor. A survey attached to the deed showed the servitude as running across both the 100' tract of vendor and the 63' tract purchased by plaintiff. Subsequently, vendor sold the 100' tract to defendant, who claimed that the servitude was in fact 163', as shown by the survey, and not 100' as described in the deed. We disagreed:
Thus, parol evidence was accepted as proof of the intent of the original vendor and vendee to create only a 100' servitude.
The same result was reached by the First Circuit in Burt v. Carrier, 92 So.2d 86 (La.App. 1st Cir., 1957). There, the act of sale contained language specifically excluding from the sale a tract of land containing vendor's home, golf course, and a roadside club, "all of said reservation being accurately and specifically described and delineated on the plat of survey attached hereto and made a part hereof and paraphed 'Ne Varietur' by me, Notary, for identification herewith." However, the survey failed to show the reservation of this tract....
To continue reading
Request your trial-
Lamson Petroleum Corporation v. Hallwood Petroleum Inc.
...between the worded description and the plat," citing Casso Ascension Realty Co., 195 La. 1, 196 So. 1(1940); Ganus v. Cuoco, 351 So.2d 224 (La.App. 4th Cir.1977); Prather v. Valien, 327 So.2d 130 (La.App. 3rd The Louisiana Supreme Court in Casso, supra, held: That the diagram or map attache......
-
Barker v. Quality Builders, Inc.
...the written description in the deed and the attached plat, the plat of survey will control and govern the conveyance. Ganus v. Cuoco, 351 So.2d 224 (La.App. 4th Cir.1977), writ denied, 353 So.2d 1048 (La.1978), appeal after remand, 361 So.2d 968 (La.App. 4th Cir. 1978), and Hayward v. Noel,......
-
Saterlie v. Lineberry, 39491-6-I
...is a conflict between the description in a deed and that shown by an attached map, the map controls the description." Ganus v. Cuoco, 351 So.2d 224, 226 (La.Ct.App.1977); see also Withington v. Derrick, 153 Vt. 598, 572 A.2d 912, 914-15 (1990) (holding that where an ambiguity or error exist......
-
Bouligny v. Delatte
...description between the worded description and the plat. Casso v. Ascension Realty Co., 195 La. 1, 196 So. 1 (1940); Ganus v. Cuoco, 351 So.2d 224 (La.App. 4th Cir.1977), writ denied, 353 So.2d 1048 (La.1978), appeal after remand, 361 So.2d 968 (La.App. 4th Cir.1978); Prather v. Valien, 327......