Mouille v. Henry
| Decision Date | 08 October 1975 |
| Docket Number | No. 5141,5141 |
| Parties | James Lee MOUILLE et al., Plaintiffs-Appellees, v. Percy Joseph HENRY, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Henry A. Bernard, Jr., New Iberia, for defendant appellant.
Armentor & Wattigny by Gerard B. Wattigny, New Iberia, for plaintiffs appellees.
Before HOOD, CULPEPPER and MILLER, JJ.
Defendant Joseph Henry appeals the judgment granting plaintiffs James Lee Mouille, R. F. Dulin, and Sidney Louviere a mandatory injunction requiring Henry to remove his mobile home from property subject to a building restriction. Henry also appeals the dismissal of his third-party claim against his vendor. We affirm.
In March 1974 Henry purchased a lot located in a restricted subdivision. The building restrictions were recorded in 1957 to be effective for a twenty-five year period. The manner in which amendments were to be confected was detailed in the restrictive covenant. Restriction number 7 prohibited living in a 'tent, trailer or shack' on the property, and number 2 prevented erection of a residence of less than $9,000 in value. Tr. 35.
Henry purchased a mobile home for $3,000. In June of 1974 he placed it on the lot and moved in. That same month he received notice from plaintiffs (owners of property in the subdivision) protesting his violation of building restrictions and requesting his compliance within ten days. This suit was filed the following month.
Henry contends 1) the restrictions do not apply to mobile homes; 2) the restrictions had been waived; and 3) the restrictions have been amended to permit mobile homes.
Questions relating to creation of building restrictions and their applicability to specific properties are strictly interpreted. In contrast to this, the nature of restrictions is interpreted to give a reasonable scope to the Intent of the owner creating them. Salerno v. Delucca, 211 La. 659, 30 So.2d 678 (1947). In Salerno, an injunction enforcing a restriction against erecting a 'business establishment' was held to restrict billboards.
Henry argues that mobile or modular home buildings were not contemplated within the 1957 restriction against trailers. The trial court rejected this argument and held this mobile home to be a trailer. Webster's primary definition for 'mobile home' is: 'a trailer that is used as a permanent dwelling.' This mobile home was towed onto Henry's lot and the trailer hitch and wheels remain in place. Henry has failed to establish manifest error in the trial court's holding Henry violated restriction number 7 of the properly recorded building restriction.
The trailer also violated restriction number 2 because it was of less value than the $9000 minimum requirement.
The bulk of the evidence related to defendant's allegation the building restrictions had been waived. Only one other trailer was located on the 75 lot subdivision, and it was on a lot designated commercial as opposed to Henry's lot which was residential. The other alleged violations were seven in number--one instance of exposed piers (which was in the process of extensive renovations at trial), three fence violations on the part of one owner who fenced his three lots under one fence, one instance of a horse which was occasionally seen in the subdivision (but it was established the horse was not maintained on the premises), and two instances of beauty shops being operated within residences in the subdivision's residential district.
To determine whether building restrictions have been waived, there are three areas of consideration. The number of violations, their character, and the adverse reaction of property owners to those violations. The proponent of waiver must establish a preponderance in all three. Fisher v. Smith, 190 So.2d 105 (La.App. 4 Cir. 1966). While the record contains conflicting evidence about the character of violations, Henry did not establish a single instance of another trailer home being located on a residential lot in the...
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