Hailey v. Panno, 85-CA-68

CourtCourt of Appeal of Louisiana (US)
Citation472 So.2d 97
Docket NumberNo. 85-CA-68,85-CA-68
PartiesAlgie R. HAILEY v. Frank R. PANNO.
Decision Date03 June 1985

Page 97

472 So.2d 97
Algie R. HAILEY
v.
Frank R. PANNO.
No. 85-CA-68.
Court of Appeal of Louisiana,
Fifth Circuit.
June 3, 1985.

Page 98

Arthur G. Kingsmill, Gretna, for plaintiff-appellant.

Arthur C. Reuter, Reuter, Reuter, Reuter & Pizza, New Orleans, for defendant-appellee.

Before BOUTALL, C.J., and CURRAULT and DUFRESNE, JJ.

CURRAULT, Judge.

This is an appeal from a judgment dismissing a petition for preliminary injunction filed by plaintiff, Algie R. Hailey, against defendant, Frank R. Panno.

Both plaintiff and defendant own separate pieces of commercial property located in a row of commercial buildings fronting on Metairie Road in Metairie, Louisiana. An alleyway runs behind the row of buildings which dead-ends at defendant's property. In titles to the property involved, the area is referred to as Ingleside Heights.

Plaintiff, Algie Hailey, acquired Lot C, Square 1, Ingleside Heights, by act of sale before Patrick E. Carr, Notary Public, on September 30, 1955, recorded in COB 389, folio 244 of the records of the clerk of court for the parish of Jefferson. Mr. Hailey operated a barber shop on the premises. Incorporated in that act was the language:

"together with the perpetual right of passage and unrestricted use, for all purposes, of the common alleys and turn around delineated on the aforesaid annexed plan of A.B. Davis, C.E., dated

Page 99

June 25, 1927, which alleys extend, in various measurements shown on said plan, across the rear of lots B, C, D, E, F, G, H, I, J, K, L, M, N, O, and P,...."

The defendant, Frank Panno, acquired the property contiguous to Mr. Hailey's by act before Jack Panno, Notary Public, dated March 3, 1983 (recorded in COB 1043, folio 372 of the real estate records of Jefferson Parish). Mr. Panno operates a restaurant and bar on his property.

Some time after the acquisition of the property by Mr. Panno's father, his ancestor-in-title, defendant paved the alleyway and put up a cage-like building to house excess soft drinks. Defendant thereafter installed a seafood boiler, hot water heater and at odd times stored a fifty-five gallon drum of grease, tables, chairs and building material in the passageway.

Because of these growing activities, plaintiff filed a petition for injunctive relief on October 28, 1983. Defendant filed exceptions and an answer asserting estoppel. The case was heard on March 24, 1984, and judgment was rendered on March 27, 1984, dismissing plaintiff's petition.

Plaintiff, Algie Hailey, thereafter perfected an appeal of that judgment.

The issue is whether the trial court erred in refusing to grant the preliminary injunction on the basis that the alleyway is common and for further reason of plaintiff's consent to defendant's activities.

Appellant herein asserts that he is the owner of a servitude on an alley as evidenced by his act of sale executed on September 30, 1955; and that defendant is trespassing upon and disturbing his peaceful possession of that servitude. Appellee asserts and the trial court found that the six foot wide area is a "common alley". Appellant further agreed to allow the activities complained of now by appellant.

It is well established that an applicant for preliminary injunction need make only a prima facie showing that he will prevail on the merits; thus less proof is required than in an ordinary proceeding for permanent injunction. Federal National Mortgage Association v. O'Donnell, 446 So.2d 395 (La.App. 5th Cir.1984); Hammons v. Parish of East Baton Rouge, etc., 461 So.2d 1225 (La.App. 1st Cir.1984); General Motors Acceptance Corp. v. Daniels, 377 So.2d 346 (La.1979).

A predial servitude is protected by an action for mandatory or prohibitory injunction and may be grounded on LSA-C.C.P. Article 3601, LSA-C.C.P. Article 3663 or on the substantive provisions of the Louisiana Civil Code governing servitudes. 4, A.L. Yiannapolous, Louisiana Civil Law Treatise; Predial Servitudes, Sec. 190 (1983).

An action brought under LSA-C.C.P. 3663 or the substantive provisions of the servitude articles of the Louisiana Civil Code do not require a showing of irreparable injury, loss or damage. Yiannopolous, supra.

A predial servitude is a charge on a servient estate for the benefit of a dominant estate. LSA-C.C. art. 646. Personal servitudes confer upon a person a specified use of an estate less than full enjoyment. LSA-C.C. art. 534; LSA-C.C. art. 639. Insofar as they affect immovables, both are treated alike except that a predial servitude runs with the land and personal servitudes are strictly for...

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24 cases
  • Wechem, Inc. v. Evans, 18-CA-743
    • United States
    • Court of Appeal of Louisiana (US)
    • 30 Mayo 2019
    ...of the Dep't of Health and Human Services v. Atterberry , 95-0391 (La. App. 1 Cir. 11/9/95), 664 So.2d 1216, 1220 ; and Hailey v. Panno , 472 So.2d 97, 99 (La. App. 5th Cir. 1985). Moreover, La. R.S. 23:921 contemplates that the parishes specified in the Agreement must be parishes where the......
  • 96 1411 La.App. 1 Cir. 5/9/97, Cavaness v. Norton
    • United States
    • Court of Appeal of Louisiana (US)
    • 9 Mayo 1997
    ...A street impliedly dedicated is [96 1411 La.App. 1 Cir. 4] subject not to ownership, but to a servitude of use. Hailey v. Panno, 472 So.2d 97 (La.App. 5 Cir.1985); Becnel v. Citrus Lands of Louisiana, Inc., 429 So.2d 459 (La.App. 4 Cir.), writ denied, 437 So.2d 1147 The pertinent legislatio......
  • La. GRANITE YARD INC. v. COUNTERTOPS, 45
    • United States
    • Court of Appeal of Louisiana (US)
    • 16 Septiembre 2010
    ...Monroe Real Estate & Dev't Co. v. Sunshine Equipment Co., 35,555 (La.App.2d Cir.1/23/02), 805 So.2d 1200; 47 So.3d 582 Hailey v. Panno, 472 So.2d 97 (La.App. 5th Cir.1985). [27] [28] For purposes of determining whether preliminary injunction is warranted, “irreparable injury” means that the......
  • Gaumnitz v. Williamson, 36,177-CA.
    • United States
    • Court of Appeal of Louisiana (US)
    • 14 Agosto 2002
    ...that he will prevail on the merits; thus less proof is required than in an ordinary proceeding for permanent injunction. Hailey v. Panno, 472 So.2d 97 (La.App. 5th Cir.1985). However, a preliminary injunction brought pursuant to La. C.C.P. Art. 3663 does not require a showing of irreparable......
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