Guyton v. Yancey

• Decision Date: 12 December 1960
• Docket Number: No. 44980,44980
• Citation: 240 La. 794,125 So.2d 365
• Parties: John T. GUYTON v. James H. YANCEY.
• Court: Louisiana Supreme Court

Page 365

125 So.2d 365

240 La. 794

John T. GUYTON v. James H. YANCEY.

No. 44980.

Supreme Court of Louisiana.

Dec. 12, 1960.

Rehearing Denied Jan. 9, 1961.

Charles M. Peters, Roy B. Tuck, Jr., Hugh T. Ward, Shreveport, for relator.

Hargrove, Guyton & Van Hook, Shreveport, for plaintiff-respondent.

HAMITER, Justice.

Herein, on the demand of John T. Guyton who is a home owner in Eastridge Subdivision of the City of Shreveport, the district court issued a permanent injunction against James H. Yancey prohibiting him from committing a threatened violation of an alleged building restriction affecting his parcel of ground located in the mentioned subdivision. The judgment was affirmed by the Court of Appeal (115 So.2d 622, 623), and the question of its correctness is now before us on a writ of certiorari.

Eastridge Subdivision, containing approximately eighty acres, is bisected by Gilbert Avenue which is a main thoroughfare running north and south, this resulting in a seemingly dividing thereof into two parts more or less equal. According to the original subdivision olat filed of record in 1926 the forty acres on the west of such street contained thirty-four lots having areas of from approximately one-half acre to one and one-half acres, while the forty acres to the east had but twelve lots which varied from about two to five acres.

Shortly after the recordation of such plat the subdividers (the owners) entered into an agreement respecting the use of the property which contained, among other things, the following stipulations: All lots must be used exclusively for residential purposes; none could be sold to any person of the Negro, Mexican or Mongolian races; the construction of any home costing less than $10,000 was prohibited; and no main residential building could be erected nearer than thirty feet to either side property line or within eighty feet from the front property line of any lot.

Plaintiff and defendant became the respective owners of nearby lots located in the western portion of the forty acres lying west of Gilbert Avenue. That of the defendant is the only undeveloped parcel in such area.

The instant suit was instituted after plaintiff discovered that the defendant had commenced the erection of a main residential building which would violate the eighty foot front setback restriction by some twenty-five to thirty feet.

The defendant concedes that originally the mentioned restrictive stipulations were real rights that ran with the land and were valid and enforceable. Further, he admits that the building he plans to construct will, if he is not enjoined, substantially violate the front setback restriction. However, he pleads and insists that the right to enforce any of the covenants stipulated in 1926 has since been lost by waiver or relinquishment through failure of the landowners within the subdivision to protest and object to general and continuous violations of the imposed restrictions.

Defendant, in other words, does not contend that violations of the front setback provision have resulted only in a waiver of that particular restriction. Rather, he takes the position that the front line deviations which he points out, considered along with other infractions and changes throughout the subdivision, constituted a complete subversion of the original scheme of development; and that, consequently, all imposed restrictions must be considered as having been abandoned and relinquished. In this connection his counsel, to quote from their brief to this court, say: 'The record herein will reveal that defendant-relator contended initially and has insisted throughout this litigation that not just the eighty (80) foot setback requirement contained in the restrictive clauses, one small component of the comprehensive plan of development devised for Eastridge Subdivision, has been abandoned, but that the Entire scheme of development as conceived and established by the subdividers has been abandoned and discarded by those owning land in Eastridge Subdivision, and that an entirely new and different scheme had emerged in its stead. * * *'

With reference to the defense thus urged the following is said in Thompson on Real Property (Permanent Edition), Section 3640: '* * * When violations of restrictive covenants in deeds are permitted to such an extent as to indicate that the entire restrictive plan has been abandoned, objections to further violations is barred, * * *.'

Again, in determining whether violations amount to an abandonment, Thompson (in the mentioned volume, Section 3650) approvingly quotes as the general rule the language of the court in Ocean City Land Company v. Weber, 83 N.J.Eq. 476, 91 A. 600 reading: '* * * If there is a general scheme for the benefit of a great number of persons, and then, either by permission or acquiescence, or by a long chain of things, the property has been either entirely or so substantially changed as that the whole character of the place or neighborhood has been altered so that the whole object for which the covenant was originally entered into must be considered to be at an end, then the covenantee is not allowed to come into the court for the purpose merely of harassing and annoying some particular man where the court could see he was not doing it bona fide for the purpose of effecting the object for which the covenant was originally entered into. * * *'

That this is the universally accepted rule is recognized in 14 American Jurisprudence, Sections 295--298 wherein it is stated: 'Whether there has been such acquiescence as to defeat the enforcement of a restrictive covenant depends upon the circumstances of each case, and the character and materiality of the permitted breach. It has been asserted as a general principle that as long as the restrictive agreements are of any value to the party possessing rights thereunder, he may enforce them. This would seem to be subject to the condition that there has not been an entire change in the neighborhood.

'Nonobjection to trivial breaches of the covenant does not result in loss of the right to enforce the covenant by injunction. Generally, acquiescence in violations of a restrictive covenant which are immaterial and do not affect or injure one will not preclude him from restraining violations thereof which would so operate as to cause him to be damaged.

'The minor character of the violations has been emphasized in cases sustaining the right to enforce the covenant. * * *

'It is sometimes made a condition of the nonenforcement of a restrictive covenant that the acquiescence or waiver result in an abrogation of the purpose of the restriction and an alteration of the general scheme, or, as sometimes said, a change in the neighborhood. * * * Notwithstanding acquiescence in other violations of a building line restriction, an owner of property will not be denied equitable relief to enforce it if the restriction can be shown to be of value to him and such breaches have not resulted in a subversion of the original scheme of development resulting in a substantial, if not an entire, change in the neighborhood.'

Further, in 26 C.J.S. verbo Deeds § 169, p. 1164 it is said: 'The character, as well as the number, of claimed violations must be considered in determining whether the complaining property owners have waived or forfeited the benefit of a restriction. Where an owner has permitted or acquiesced in so many violations of the restriction, or such violation, without objecting thereto that the plan may fairly be said to have been abandoned, he cannot thereafter object to a subsequent violation; waiver has been held not to result unless there have been general and multiple violations without protest. On the other hand, if violations have not been permitted to such an extent as to evidence an abandonment of the plan, a party will not be prevented from objecting to further violations by the fact that he has not objected to previous violations by others, particularly where such violations did not immediately affect the enjoyment of his own premises, or where they were trivial, or minor, in character as compared with those complained of; and the fact that plaintiff has acquiesced in, or has not objected to, a violation committed by defendant does not estop him to prevent an additional or enlarged violation. * * *'

Therefore, the primary question presented herein is: Have the restrictive covenants contained in the 1926 agreement been so disregarded and abandoned as to constitute a subversion of the original scheme of the Eastridge Subdivision and to result in a substantial, if not an entire, change in the neighborhood?

In the district court, in support of his position, the defendant offered evidence to show alleged infractions throughout the entire subdivision. However, on objection of plaintiff, he was not permitted to prove any which occurred on the east side of Gilbert Avenue, the judge having concluded that even if some existed there they were too remote to have affected the property of plaintiff and consequently the latter's failure to object to them could not be considered in determining the question of waiver. The court, in other words, ruled that such proof was irrelevant and...