Lieber v. Rust
| Decision Date | 18 August 1980 |
| Docket Number | No. 14249,14249 |
| Citation | 388 So.2d 836 |
| Parties | Samuel L. LIEBER, Plaintiff-Appellant, v. Durward RUST, Defendant-Appellee. |
| Court | Court of Appeal of Louisiana — District of US |
Kennedy, Goodman & Donovan by Frank S. Kennedy, Rellis P. Godfrey, Shreveport, for plaintiff-appellant.
Hargrove, Guyton, Ramey & Barlow by Joseph L. Hargrove, Jr., Joseph L. Shea, Jr., Shreveport, for defendant-appellee.
Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
Samuel L. Lieber filed suit to enjoin Durward Rust, an adjoining lot owner in the Willow Ridge Subdivision, Shreveport, Louisiana, from completing construction of a pier and boathouse on Cross Lake and to compel removal of the portion already constructed. From a judgment rejecting his demands for a permanent injunction and a mandatory injunction, plaintiff appealed, contending in substance that the trial court erred in the following respects:
(1) In holding that the subdivision restrictions did not prohibit the construction of defendant's pier and boathouse.
(2) In holding that the proposed location of defendant's pier and boathouse did not violate Ordinance No. 40 of 1964 of the City of Shreveport.
(3) In refusing to hold that plaintiff had a servitude of view which was obstructed by defendant's pier and boathouse.
(4) In refusing to hold that miscellaneous civil code articles prohibited the construction of defendant's pier and boathouse.
We affirm the judgment.
The Willow Ridge Subdivision, Unit 2, was accepted by the City of Shreveport in 1975 and a plat thereof was filed in the conveyance records of Caddo Parish, Louisiana, together with a "Declaration of Covenants, Conditions and Restrictions" affecting all conveyances of lots in the subdivision unit. These lots bordered on Cross Lake, with the lines of each lot extending on the lake side to the 172 foot contour line which is the point at which the City of Shreveport's ownership of the bed of Cross Lake begins.
Lieber acquired Lot 1 of the subdivision unit in 1975. Rust bought Lot 2, lying to the south of and adjoining Lieber's lot, in 1976. Subsequently, Rust purchased a strip south of and adjacent to his lot, described as 35 feet off of Lot 3.
In August 1978 Rust secured a permit from the Cross Lake Patrol of the Shreveport Department of Public Utilities for the construction of a pier and boathouse on the lake. The location of these proposed improvements was staked out by the Patrol Superintendent. Construction began, but was halted when this suit was filed.
In denying plaintiff's demands for injunctive relief, the trial judge concluded that the pertinent subdivision restrictions do not apply because they are too vague to be enforceable; that the section of the city ordinance dealing with the location of piers on Cross Lake is so ambiguous that its interpretation must yield to administrative practice; and that there is no authority for the issuance of an injunction to protect a right to a scenic view.
We now discuss the substantial legal issues raised by this appeal.
Applicability of Subdivision Restrictions
The record shows that Rust's proposed pier and boathouse are located below the 172 foot contour line, in the bed of the city-owned Cross Lake, entirely off the property comprising Willow Ridge, Unit 2.
However, appellant argues that appellee has violated subdivision restrictions1 because he did not first submit his plans to the Architectural Control Committee for approval as to harmony of external design and location in relation to surrounding structures. It is his contention that these are both "building" and "use" restrictions as explained in Smith v. DeVincent, 322 So.2d 257 (La.App. 2d Cir. 1975). He urges that these restrictions prohibit the "use" of one's lot in the subdivision for access to Cross Lake for the "building" therein of a pier and boathouse unless the plans are first approved by the described committee.
In the Smith case the owner of a subdivision lot sought to enjoin other lot owners in the subdivision from placing and maintaining mobile homes on their respective lots. This court found that the restriction in question manifested the subdivider's intent that the residential structure on each lot be something other than a self-contained mobile home, and classified this as a "use" restriction. Obviously, that case is factually distinguishable from this case.
Dealing directly with the question presented to us, it was held in Begnaud v. Hill, 109 So.2d 562 (La.App. 1st Cir. 1959) that the purchasers of lots in a subdivision covered by restrictive covenants could not enforce those covenants against property which their vendor had specifically excluded from the subdivision. Also see Lillard v. Jet Homes, Inc., 129 So.2d 109 (La.App. 2d Cir. 1961).
Consistent with this jurisprudence, we hold that the restrictions imposed on the lots in Willow Ridge Subdivision, Unit 2, do not apply to city-owned property in the bed of Cross Lake. Consequently, Rust did not violate those restrictions by starting the construction of his pier and boathouse without first securing approval from the subdivision Architectural Control Committee.
This holding pretermits the necessity of our considering whether the involved restriction is too vague to be enforceable.2
However, in connection with this question the appellant argues that Rust is estopped to urge the invalidity of the building restrictions pertaining to piers and boathouses since he purchased his property subject to those restrictions, serves as a member of the Architectural Control Committee for the subdivision and abided by those restrictions in constructing his dwelling in the subdivision. The answer to this argument is that Rust is urging the inapplicability of the restrictions and not their invalidity.
In addition, on the question of estoppel, there are three necessary elements before this doctrine becomes applicable: a representation by conduct or words, justifiable reliance and a change in position to one's detriment because of the reliance. See Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975). We find none of those elements present in this case.
For these reasons we find no merit in the plea of estoppel.
Violation of City Ordinance
Ordinance No. 40 of 1964 of the City of Shreveport grants to the City Department of Public Utilities "full supervision and control of all improvements and developments on Cross Lake water reservoir and within the contour line, below the 172 foot mean gulf level," including the authority to issue permits for construction on the lake bed. Pertinent portions of Section 3 of the cited ordinance provide:
The trial judge ascertained that the Lieber and Rust lots bordered on a concave or "inside curve" of the lake. Since it is not possible to determine what is "perpendicular" to a curved water line, he reasoned that this particular language contained in the ordinance is ambiguous. Therefore, he admitted the testimony of former Commissioner of Public Utilities (1962-1970), L. Calhoun Allen, Jr. "to determine the intent of the ordinance." Finding that this did not clear up the ambiguity, the trial judge concluded:
"It is my considered opinion that when the entire area is considered by this aerial photo rather than the single picture of the location of plaintiff's property as judged by the interior lot lines, the solution proposed and put into practice by the City of Shreveport seems reasonable, or at least as reasonable as the plan submitted by plaintiff as P-15."
Interestingly enough, neither appellant nor appellee agreed with the trial judge that the cited section of the ordinance is ambiguous.
Appellant argues that under the quoted city ordinance a subdivision lot owner is granted the exclusive use of that area abutting his lot lying between the 172 foot contour line and the actual water level of Cross Lake, with the side boundaries of the exclusive use area determined by extending side lot lines to the water level; that this exclusive use is limited to the construction of piers and boathouses in accordance with the instructions in the ordinance; that the direction of the pier is to be perpendicular to the 172 foot contour line since the water level follows the surrounding land; that to permit construction of piers in a direction other than perpendicular to the 172 foot contour line would invade the exclusive use area of adjoining property owners; and that the court should accept the testimony of former Commissioner Allen who stated that the intent of the ordinance was to prohibit the building of piers projecting at the angle of appellee's into Cross Lake.
On the other hand, appellee takes the position that the section of the ordinance containing the clause "perpendicular to the water line" simply defines the manner in which the maximum total length of the pier is to be measured and does not purport to fix a direction for pier construction into the lake, since a constantly changing water line would render this...
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