Leonard v. Lavigne

• Citation: 153 So.2d 544
• Decision Date: 03 May 1963
• Docket Number: No. 5816,5816
• Parties: Herbert J. LEONARD v. Floyd and Margaret LAVIGNE.
• Court: Court of Appeal of Louisiana — District of US

Page 544

153 So.2d 544

Herbert J. LEONARD v. Floyd and Margaret LAVIGNE.

No. 5816.

Court of Appeal of Louisiana, First Circuit.

May 3, 1963.

Rehearing Denied June 3, 1963.

Reid & Macy, by Arthur Macy, Hammond, for appellant.

Ponder & Ponder, by L. B. Ponder, Jr., Amite, for appellee.

Before ELLIS, LOTTINGER, HERGET and LANDRY, JJ.

LANDRY, Judge.

Plaintiff herein, Herbert J. Leonard, lessee of Ellis and Ruth Brown Thibodaux, instituted this action against defendants, Floyd and Margaret Lavigne, assignees of plaintiff's lessor, to enjoin violation of a restrictive covenant contained in plaintiff's lease prohibiting the use of adjoining property for business purposes competitive to those engaged in by plaintiff on the premises leased from Mr. and Mrs. Thibodaux. The trial court dismissed plaintiff's demands and plaintiff has appealed.

The parties hereto are in substantial agreement regarding the facts and circumstances leading to the present suit. The sole issue before the court on this appeal is one of law, namely, whether the covenant in the lease from Mr. and Mrs. Thibodaux to appellant, restricting the use of said lessors' adjoining property is a personal right enforceable only against plaintiff's lessor or whether same is a real right running with the land and consequently binding and obligatory upon appellees as assigns of plaintiff's lessors.

By written instrument dated February 16, 1960, duly recorded February 19, 1960, plaintiff leased from Ellis and Ruth Brown Thibodaux, a certain parcel of land for a period of five years commencing February 16, 1960 and ending February 16, 1965, with the option of renewal for an additional period of five years. The lease in question covered a plot of ground measuring 150 feet front on the north side of U.S. Highway 190 by a depth and front of 75 feet along the west side of Thibodaux Road. Situated on the lot at the time of the lease was a service station which, with its appurtenances, was expressly included in the rental agreement. The terms of the lease provide for rental in the sum of 1 1/2cents per gallon on all gasoline sold on the premises and granted lessee the right and privilege of installing any and all necessary gasoline tanks, pumps and other equipment necessary and incident to the operation of a gas station.

The lease in question contains and includes the following restrictive covenant and provisions:

'The lessors hereby bind and obligate themselves, their heirs and assigns not to sell or lease all or any part of the adjoining premises owned by them to any other person, firm or corporation for the purpose of engaging in a competitive business with this lessee and said lessors further obligate and bind themselves not to enter into any such business during the life of this lease or any extension hereof.

'For the purpose of better identification of the property herein leased, the same is hereby declared to be a portion of a 20 acre tract owned by lessors and located in the Northwest Quarter of Northwest Quarter of Southeast Quarter of Section 13, and in the Northeast corner of the Northeast quarter of Southeast quarter of Section 14, all in Township 7 South, Range 8 East, in Tangipahoa Parish, Louisiana.'

Subsequent to execution and recordation of appellant's lease, namely, on April 21, 1961, the Thibodauxs sold to defendants herein, Floyd and Margaret Lavigne, the following described property:

'A certain tract or parcel of land in the Parish of Tangipahoa, State of Louisiana, more particularly described as 6.66 acres of land in the SE 1/4 Section 14, T 7 S, R 8 E, and being more particularly described as follows, towit: Commencing at a point 20 feet west and 219.7 feet south of the northeast corner of said SE 1/4 and measure South along west margin of Highway 646.7 feet to corner of Church land; thence West 478.4 feet to another corner of same; thence North 586.3 feet to South margin of Paved Highway Right of Way; thence along same in a curve approximately North 82 deg. 45 Min. east 483.3 feet more or less to the point of beginning. All as per survey by C. M. Moore, dated April 13, 1961.'

Defendants' deed, recorded April 28, 1961, (subsequent to recordation of plaintiff's lease) makes no mention of the hereinabove quoted restrictive covenant contained in the lease granted appellant by the Thibodauxs. It is conceded defendants commenced construction of a service station upon the site purchased from the Thibodauxs and plaintiff's suit seeks the issuance of an injunction to prohibit said construction and the use of said premises as a service station on the ground such use is violative of appellant's rights under his lease.

It appears the majority of jurisdictions recognize and enforce, under certain circumstances, restrictive covenants affecting other properties of a lessor. In this connection we quote with approval the following applicable language appearing in 51 C.J.S. Landlord and Tenant § 238, pages 865--867, to-wit:

's 238.--Restrictive Covenant Affecting Other Property of Lessor and Grant of Exclusive Privilege

'A restrictive covenant as to property retained by the lessor may be created by a clearly expressed intention to that effect in the lease. Such a covenant should be strictly construed. The covenant may be enforced by the original lessee or his assignee, and is binding on a subsequent lessee or his assignee with notice.

'In order to create a restrictive covenant by the lessor as to property retained by him, the intention so to restrict must be clearly expressed, and ordinarily cannot be implied or inferred. A covenant or agreement by the lessor not to lease the retained property for the purpose of conducting a business in competition with the lessee is legal and valid, but it must be positively expressed and, being in restraint of trade, must be strictly construed. Such a restrictive covenant, even though it is a personal covenant, should not be given a construction which extends it beyond the literal meaning of the terms; if such terms are capable of two constructions, the one that limits the covenant should be adopted, and if the right to enforce the covenant as to other property is doubtful such right will be denied. In construing a lessor's restrictive covenant the court may consider the surrounding circumstances at the time the lease was entered into; and, where the covenant provides that the lessor shall not lease the property retained by him for the purpose of conducting a business in competition with that of the lessee, the court may also consider the business which the lessee and covenantee was to carry on.

'Persons bound or entitled to enforce. It has been held that the lessor's covenant not to engage in a competitive business does not run with the land; but a covenant which restricts the lessor from leasing other parts of his premises for certain purposes runs with the land, and is not personal to the contracting parties, particularly where the lease further provides that it shall be binding on the parties' successors. Such a covenant may be enforced by the lessee or his assignee, and is binding on a subsequent lessee or grantee of the retained property or his assignee with notice or on a subsequent lessee who has expressly covenanted so to limit the use of the premises leased to him as not to violate the rights of the prior lessee and covenantee.'

Our own appellate courts have endorsed the principle that a covenant runs with land and is characterized as a real right enforceable against the heirs, assigns and transferees of an owner or lessor, as distinguished from a personal right binding upon the vendor or lessor only, when, by the terms of the covenant, it is binding upon successive owners of the land who are entitled to the benefits thereof or who take subject to the obligation imposed. The rule in our own jurisdiction is clearly set forth in LeBlanc et al. v. Palmisano et al., 43 So.2d 263, wherein we note the following:

"The law is clear that building restriction clauses constitute real rights, not personal to the vendor, and inure to the benefit of all other grantees under a general plan of development, and are real rights running with the lands; and that the remedy of the other grantees to prevent a violation of the restrictions by another is by injunction. Queensborough Land Company v. Cazeaux et al., 136 La. 724, 67 So. 641, L.R.A.1916B, 1201, Ann.Cas.1916 D, 1248; Hill v. Wm. P. Ross, Inc., 166 La. 581, 117 So. 725, and Ouachita Home Site & Realty Co. v. Collie et al., 189 La. 521, 179 So. 841.' Edwards v. Wiseman, 198 La. 382, 3 So.2d 661, 663.

'In our opinion, however, a casual reading of this restriction indicates that it is not a covenant running with the land, but is a personal covenant between the vendor, Claiborne Avenue Extension Realty Company, Inc., and Henry M. Rahders, the...