Gwatney v. Miller

• Decision Date: 23 May 1979
• Docket Number: No. 6959,6959
• Citation: 371 So.2d 1355
• Parties: George W. GWATNEY, Raywood Baudoin, Walter Broussard, Cecil Chatman, Jr., Emile Choplin, Jr., Archie Cobb III, Jeanette Francez, Karl Girouard, Lawrence Harry, Terry Hayes, Charles E. Humbird, James M. Jacques, Raymond Jeoffroy, William S. Menard, Steve Pearson, Alton Pitre, Charles Robinson, Kenneth Short, John Tufts, Jr., Plaintiffs-Appellees, v. Joseph Edward MILLER, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1355

371 So.2d 1355

George W. GWATNEY, Raywood Baudoin, Walter Broussard, Cecil

Chatman, Jr., Emile Choplin, Jr., Archie Cobb III, Jeanette

Francez, Karl Girouard, Lawrence Harry, Terry Hayes, Charles

E. Humbird, James M. Jacques, Raymond Jeoffroy, William S.

Menard, Steve Pearson, Alton Pitre, Charles Robinson, Kenneth Short, John Tufts, Jr., Plaintiffs-Appellees, v. Joseph Edward MILLER, Defendant-Appellant.

No. 6959.

Court of Appeal of Louisiana, Third Circuit.

May 23, 1979.

Rehearing Denied July 11, 1979.

Seidel & Bailey, Fred K. Bailey, Lafayette, for defendant-appellant.

DeBaillon & Miller, Roderick L. Miller, Lafayette, for plaintiffs-appellees.

Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.

GUIDRY, Judge.

Plaintiffs instituted this action against the defendant, Joseph Miller, seeking to enjoin him from using a 2.935 arpent tract of land owned by him for storage of various pieces of "street fair" equipment. The 2.935 arpent tract owned by defendant forms part of a larger tract of land known as the "Oakcrest Plantation Subdivision" and is hereafter referred to as lot 26.

Plaintiffs allege that defendant's use of lot 26 for the purpose of storing this equipment is violative of a restrictive covenant which was placed on the land by the plaintiffs' and defendant's ancestors in title. Following a hearing on a rule to show cause why a preliminary injunction should not issue enjoining defendant's use of his land in said manner, the trial court determined that Mr. Miller's actions constituted a violation of the restrictive covenants to which the property was subject, and issued a preliminary injunction against him. Trial was subsequently held to determine if the preliminary injunction should be made permanent and if plaintiffs were entitled to the damages and attorney's fees prayed for. Following trial on the merits, the court issued a permanent injunction enjoining defendant from storing his street fair equipment on lot 26 and rejecting plaintiffs' demands for damages and attorney's fees. Defendant has appealed, urging that the trial court erred in its issuance of the permanent injunction. Plaintiffs have neither appealed nor answered the appeal. The substantial issues on appeal are:

I. DO THE PLAINTIFFS HAVE A RIGHT OF ACTION TO ENFORCE THE RESTRICTIVE COVENANTS SET FORTH IN THE DEED WHEREBY DEFENDANT ACQUIRED LOT 26?

II. DID JOSEPH MILLER VIOLATE THE RESTRICTIVE COVENANT PRECLUDING NON-RESIDENTIAL USE OF LOT 26?

III. HAS THE RESTRICTIVE COVENANT PRECLUDING NON-RESIDENTIAL USE ON LOT 26 BEEN ABANDONED?

I. DO THE PLAINTIFFS HAVE A RIGHT OF ACTION TO ENFORCE THE RESTRICTIVE COVENANTS SET FORTH IN THE DEED WHEREBY DEFENDANT ACQUIRED LOT 26?

The record reveals that lot 26, along with each of the lots owned by plaintiffs, originally formed part of an 82.15 acre tract of land owned by Lucien Hulin, Jr., Lewis C. Picard and Raywood J. Meyers. All the plaintiffs (with the exception of George Gwatney) purchased their lots directly from Messrs. Hulin, Picard and Meyers. Mr. Gwatney and the defendant acquired their lots from Elmer Brown, who had purchased them from the original owners. Nine restrictive covenants, identical in form and content, were incorporated into each act of sale for the lots purchased by plaintiffs. These restrictive covenants were likewise incorporated into defendant's act of sale for lot 26. Restrictive covenant number 6 which appears in each such deed reads as follows:

"The purchaser named in the Act of Sale to which this Exhibit is attached, hereby binds and obligates himself, his heirs, successors or assigns not to use or permit to be used any house or houses erected or to be erected on the property described in the said Act of Sale either directly or indirectly, for trade or business of any form or for any purpose other than that of a residential purpose."

Defendant contends that plaintiffs do not have a right of action to enforce the restrictive covenants on his property. He contends that insofar as the restrictions were not originally devised for the purpose of pursuing a general building plan or scheme for the area, they are purely personal obligations which can be enforced by the vendor-developer alone. ¹ Without specifically addressing defendant's exception of no right of action, the trial court apparently found no merit to defendant's contentions. We agree.

In support of his position, appellant relies upon the following jurisprudence: Murphy v. Marino, 60 So.2d 128 (La.App. 1st Cir. 1952); Lamana-Panno-Fallo, Inc. v. Heebe, 352 So.2d 1303 (La.App. 4th Cir. 1977) and In re Congregation of St. Rita Roman Catholic Church, 130 So.2d 425 (La.App. 4th Cir. 1961). In Murphy, supra, the court stated:

"It is our understanding of the law that in order to create a binding covenant running with the land in a subdivision, and enforceable by any purchaser of property therein, there should be a uniform plan of restriction applicable to the subdivision as a whole, or to a particular part of the subdivision, known to each purchaser and thereby, by reference or implication, forming a part of his contract with the subdivider. As stated before, that situation did not exist in the case of the Steele Place Subdivision.

26 Corpus Juris Secundum, Deeds, § 167, pages 552 and 553, covers the above point as follows:

'A general building scheme may be defined as one under which a tract of land is divided into building lots, to be sold to purchasers by deeds containing uniform restrictions. * * * In determining whether land is included in a building scheme, doubts are to be resolved in favor of the free use and enjoyment of the property and against restrictions. * * * The right to enforce restrictions imposed pursuant to a general scheme must be universal or reciprocal, that is, the same restrictions must apply substantially to all lots of like character or similarly situated, and the scheme must be incorporated in all the deeds.' " at pg. 130.

In Murphy the court concluded that the restrictive covenants sought to be enforced had not been created pursuant to a general building plan or scheme, noting at the outset that the restrictions had not been uniformly imposed on the lots in the subdivision and had, in many instances, been amended or changed completely. In the instant case, however, appellant failed to produce any evidence at trial to indicate that the restrictive covenants imposed on the lots within Oakcrest Plantation Subdivision had not been uniformly imposed, or had been amended or changed by the subdivider. On the contrary, defendant's act of sale, as well as each of the plaintiffs' acts of sale reveal that the restrictive covenants for all these lots are identical.

In the case of Lamana-Panno-Fallo, Inc. v. Heebe, supra, the court found that the restrictive covenants sought to be enforced were unenforceable because they had been abandoned. In dicta, the court did state that the restrictions had not been made pursuant to a general subdivision plan, however it did not discuss the facts which formed the basis for this conclusion. Therein the court stated:

"The restrictive covenants in the title did not come into being as one overall or general plan of restrictions imposed upon the entire subdivision, but instead, restrictive stipulations were inserted in the initial title deeds from the owner and developer . . . To purchasers . . ." at pg. 1304

The fact alone that restrictive covenants are inserted into individual acts of sale does not establish that they were not intended to pursue a general plan of development for the subdivision. Rather the uniformity or consistency of the restrictions must be examined in order to determine the original intentions of the subdivider. See Yiannopoulos, Real Rights: Limits of Contractual and Testamentary Freedom, 30 La.Law Rev. 44 (1969) at p. 64.

In the case of In re Congregation of St. Rita Roman Catholic Church, supra, the court found that the covenant sought to be enforced was a purely personal obligation, stating:

"Building restrictions, such as those in question, are valid and enforceable where inserted in deeds in pursuance of a general plan devised by the ancestor in title to maintain certain building standards; such restrictions inure to the benefit of all other grantees under a general plan of development, and are real rights running with the land, which the grantees or their successors in title may enforce by injunction. Murphy v. 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 661.

However, where restrictive covenants do not appear in chains of title of half the lots of a subdivision, for which no general plan of subdivision or restrictions had been recorded, as obtains here, such restrictions will not be enforced as covenants running with the land against any of the grantees of original subdivider or their successors. Herzberg v. Harrison, La.App., 102 So.2d 554. The cited case, from our First Circuit Court of Appeal (1958) contains an exhaustive and clear review of our jurisprudence establishing this principle.

Where the restriction is not a covenant running with the land, it is personal to the creator of the restriction, in this case Interstate Land Co., whose existence is unknown or unaccounted for herein. Murphy v. Marino, La.App., 60 So.2d 128." at pg. 428

In St. Rita Roman Catholic Church, the subdivider included the building and use restrictions in dispute into only 60% Of his acts of sale. In the instant case, defendant has failed to produce any evidence to establish that a similar factual situation exists. We find, therefore, that the jurisprudence relied upon by appellant on this issue is not supportive of his position, and that he has failed to produce any evidence to refute the plaintiffs' contention that the area has been developed pursuant to a general building plan...