Herzberg v. Harrison

• Decision Date: 21 April 1958
• Docket Number: No. 4571,4571
• Parties: Lee HERZBERG et al., Plaintiffs-Appellants, v. Holt T. HARRISON et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 554

102 So.2d 554

Lee HERZBERG et al., Plaintiffs-Appellants, v. Holt T. HARRISON et al., Defendants-Appellees.

No. 4571.

Court of Appeal of Louisiana, First Circuit.

April 21, 1958.

Rehearing Dened May 26, 1958.

Sanders, Miller, Downing, Rubin & Kean, Baton Rouge, for appellants.

Durrett, Hardin & Hunter, Cadwallader, Dameron & Perkins, Baton Rouge, for appellees.

TATE, Judge.

Plaintiffs appeal from the trial court's refusal to enjoin the defendants from violating certain restrictive covenants allegedly affecting all property situated in a subdivision located in East Baton Rouge Parish.

Codefendant Harrison acquired a 52-acre tract from Paul Broussard on July 8, 1950, and then conveyed a one-half interest in indivision therein to deFrances, another codefendant. The other defendants of plaintiffs are all the present owners of plots or lots located in the northern 29 acres of this tract and sold by the two previously named defendants.

By a plat of survey of July 14, 1950 (hereinafter denoted as the 1950 plat), Harrison and deFrances had proposed dividing the northern 29 acres of the Broussard tract into twelve residential lost (numbered 1 thru 12), each having a front of 200 upon the highway by a depth of 500 and containing 2.26 acres; and one commercial lot (number 13), which latter will play no further part in the ensuing dicussion. At the left-hand corner of this plat was the following notation:

'Deed Restrictions

'No residence shall be constructed on any of the above plots at a cost of less than $10,000. Not more than two residences shall be constructed on any one plot. All plots shall be used for residences only, except plot 13, which may be used for commercial purposes. No plot can be resubdivided at any time during the next twenty-five years, except plot 13.'

This plat has never been recorded. Nevertheless the plaintiffs contend that all lots sold or retained by Harrison and deFrances in this subdivided tract are affected by the above-quoted general restrictions, which are covenants running with the land. This allegedly results from the insertion of such restrictions in some of the sales by Harrison and deFrances, from these subdividers' course of conduct, and from the recordation of a 1954 plat of survey containinig the identical subdivision lots and restrictions.

The District Court, however, agreed with the defendants that any general plan of subdivision had been abandoned and that the building restrictions contained in some of the sales were, at most, merely personal covenants between the grantors and the grantee and, as such, not enforceable by the other grantees. It thus refused on behalf of the grantees-plaintiffs to enjoin the defendant grantors and grantees from violating the alleged building restrictions.

The present legal action, incidentally, was triggered by the inclusion of the land forming certain of the alleged residential lots (namely 1, 11, and 12) of This alleged subdivision, as many smaller commercial lots of the later 'North Sherwood Forest Subdivision', which defendants Harrison and deFrances created by plat and general restrictions recorded in the conveyance records; and by the purchase from them of two of these smaller commercial lots by the Home Oil Company, also a defendant to this action, with the intention of its erecting a gasoline service station thereupon.

The legal pinciples applicable are not disputed. 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. 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; Murphy v. Marino, La.App. 1 Cir., 60 So.2d 128; Munson v. Berdon, La.App. 1 Cir., 51 So.2d 157.

As these cases indicate 'In construing restrictions on the use of property, the intention of the parties, as gathered from the surrounding circumstances and the purpose of the restrictions, must be considered and given effect. Such restrictions are strictly construed against the parties seeking to enforce them. * * *; and all doubts are resolved in favor of the free use of the property', 26 C.J.S. Deeds § 163 a, p. 1094. See also 14 Am.Jur. 'Covenants', etc., § 308, p. 650, § 311, p. 61.

For convenience in discussion, we are setting for the in an appendix to this opinion the ownership and chain of title of each of the purported residential lots of the alleged subdivision.

Applying the pertinent principles, the District Court in our opinion correctly held that the plaintiffs did not satisfy their burden of proving an intention on the part of the grantors and their grantees to establish a 'general plan' of subdivision with general restrictions applicable to the lots therein.

We think the following evidence to be significant in this regard:

(1) Six of the twelve lots contained no indication in their chain of title of restrictions affecting them. ¹ Alfortish v. Wagner, 200 La. 198, 7 So.2d 708, relied upon by appellants as authority that the absence of such restrictions in some of the lots does not disprove a general plan, is readily distinguishable, for there the 'vast majority' of the deeds therein contained the restriction sought to be enforced, 7 So.2d 709, whereas in the present instance one-half of the lots allegedly affected failed to do so.

(2) The testimony of the subdividers that they had abandoned the general plan of subdivision when the parish authorities refused to approve the 1950 plat for lack of dedication of sufficient public servitudes; and the admitted fact that, indeed, the 1950 plat was never recorded or filed. (Some of the conveyances from the subdividers contained references to the 1950 plat or the alleged restrictions, they testified, since the 1950 plat had been passed around to the Baton Rouge real estate agents for purposes of identification of the property only.) We do not necessarily hold that the lack of recordation of a general plan of subdivision is fatal to proof of same; but such lack under the present circumstances is certainly an indication that the proposed general plan had been abandoned.

(3) The clear reflection in the chains of title of two of the plaintiffs (see Appendix, Lots 7 and 10) that by correction deeds executed in 1952 and 1953, any reference whatsoever in the original conveyances by the subdividers in 1951 to the unrecorded 1950 plat and/or the alleged restrictions was specifically deleted.

(4) The equally clear indication in the acquisition by another plaintiff (see Appendix, Lot 3) of a specific intention not to sell or purchase under any general plan of subdivision, in the description being by metes and bounds and by a special plat of survey of the land sold only, without any reference whatsoever to any restrictions or any general plan of subdivision or development.

(5) Where, under a 'restrictions' clause, restrictions similar to those found in the 1950 plat are contained in some of the conveyances by the subdividers (see Appendix, Lots 4, 5, 6, 8, 9, 11), such restrictions do not indicate them to be applicable to the purchaser's heirs, successors, or assigns (cf. the clause in Tucker v. Woodside, La.App. 1 Cir., 53 So.2d 503, at page 504), nor is there any reference whatsoever to them or to the land in question as forming part of a general plan of development affecting any other lot. (Again, this circumstance is cited as an indication of the absence of intention to sell and purchase lots under a general plan of development, rather than as conclusive evidence of a lack of such intention.)

In urging that the trial court erred, plaintiffs-appellants point out that the chain of title to the lots of three of the defendants (see Appendix, Lots 6, 9, 11) show the building restrictions to be applicable thereto, and that Harrison and deFrances, the other two defendants (see Appendix, Lots 1, 2, 11, 12), being the original subdividers, should not be heard to complain of restrictions represented by them by circulation of the 1950 plat among the Baton Rouge real estate agents to be applicable as general subdivision restrictions to all the lots purchased in the subdivision. Thus, it is forcefully urged, it is of no moment that the lots of three of the five plaintiffs (insofar as owning Lots 3, 7, and 10, see Appendix) contained no restrictions in their chain of title, since by instituting this suit these plaintiffs all agreed to be bound equally with the defendants by the general restrictions in question.

We think this argument overlooks, as stated under somewhat similar circumstances in Munson v. Berdon, La.App. 1 Cir., 51 So.2d 157, at page 161 that, 'In order to arrive at the plan of subdivision, we must take what we find on the date of the sale as contained in each act of sale.' From the absence of restrictions in the chains of title of half of the lots of the subdivision, and from the absence of recordation of any general plan of subdivision or restrictions, the purchasers of any of the lots affected would be entitled to assume that their acquisition was free of any general plan importing covenants running with the land; and that if any restrictions were contained in their own conveyance, such were merely personal as between themselves and their grantors, and waivable by the latter.

For this same reason, we are unable to attach significance to the filing of a subdivision plat in 1954 after all the sales by the subdividers had been made except that to defendant Home Oil (see Appendix, Lot 11.) Further, we think the evidence shows that this plat, an exact duplicate (but differently dated, i.e., as of 1954, and with additional restrictions as to...