Munson v. Berdon

• Decision Date: 15 March 1951
• Docket Number: No. 3357,3357
• Citation: 51 So.2d 157
• Parties: MUNSON v. BERDON et al.
• Court: Court of Appeal of Louisiana — District of US

Page 157

51 So.2d 157

MUNSON v. BERDON et al.

No. 3357.

Court of Appeal of Louisiana, First Circuit.

March 15, 1951.

Ashton L. Stewart, Baton Rouge, for appellant.

Scallan E. Walsh, Baton Rouge, for appellees.

ELLIS, Judge.

Plaintiff herein seeks an injunction prohibiting defendants Berdon and his contractor Gregory from erecting on property situated in Ogden Park, belonging to Berdon, a building to be used for commercial purposes on the ground that such a structure is prohibited by restrictions affecting Berdon's land.

Defendants filed exceptions of no cause or right of action and in the alternative a plea of prescription and with full reservation of all rights by virtue of said exceptions and plea, answered the rule nisi.

Evidence was taken on the exception of no right of action and the plea of prescription, and by stipulation of counsel the Court reserved its ruling on the exceptions and plea of prescription and it was agreed that the testimony taken on the exceptions and the plea should be considered on the merits so that any decision rendered therein would be final as to the District Court.

After hearing, the Lower Court with written reasons recalled the rule and dismissed plaintiff's suit at her cost. Writs were sought from the Supreme Court but refused on the ground that plaintiff had a remedy by appeal, and thereafter an appeal was taken to this Court.

The law governing this case is well settled by two late cases decided by our Supreme Court, Salerno v. De Lucca, 211 La. 659, 30 So.2d 678, and Alfortish v. Wagner, 200 La. 198, 7 So.2d 708, 711, and as the latter case is relied upon by both counsel but particularly by counsel for plaintiff, we will quote from that case as follows:

'Before considering the various contentions raised by the defendant, it is apt to observe that the jurisprudence of this State is well settled that stipulations in title deeds providing for building restrictions (such as the one contained in the defendant's title) are valid and enforcible where the restrictions have been inserted in pursuance of a general plan devised by the ancestor in title to maintain certain building standards and uniformity in the improvements. See Queensborough Land Co. v. Cazeaux, 136 La. 724, 67 So. 641, L.R.A.1916B, 1201, Ann.Cas.1916D, 1248; Hill v. Wm. P. Ross, Inc., 166 La. 581, 117 So. 725; Rabouin v. Dutry [Dutrey], 181 La. 725, 160 So. 393; and Ouachita Home Site & Realty Co. v. Collie, 189 La. 521, 179 So. 841. These cases further hold that restrictions of this sort are covenants running with the land; that they are inserted by the original vendor for the benefit of the contiguous landowners whose titles contain similar covenants and that injunction is the proper remedy by which violations of the covenants may be restrained.'

'Counsel for the defendant, while conceding (as they must) the force of the foregoing authorities, maintain that they are inapplicable to the facts of this case. They contend, in substance, that, for building restrictions of this sort to be enforced, it must clearly appear that the original plan of development was feasible--that is, that the lots sold under the plan are located in the same neighborhood and were contiguous to each other and further that the original vendor has actually carried out the general scheme by the insertion of reciprocal restrictive covenants in all the titles to the property sold under it. In addition, counsel declare that, even though the proof is sufficient to warrant the conclusion that the vendor inaugurated a general plan and inserted the covenants in the titles of the purchasers in conformity therewith, relief will nevertheless be denied in equity where it appears that the character of the property subjected to the restrictions has changed to such an extent that the enforcement of the covenants could not maintain the purpose for which the original plan was designed.

'We entertain little doubt as to the legal correctness of the contentions made by counsel for the defendant. However, we experience considerable difficulty in discerning that any of these propositions are sustained by the facts of this case. Let us see.'- The first question to be decided is whether a plan was ever adopted or placed in effect by the Ogden Realty Company, which owned the original tract and subdivided it according to maps introduced in evidence. In 1925 the Ogden Realty Company, Inc., laid out Ogden Park, a subdivision in the City of Baton Rouge consisting of ten squares and two half squares, with a total of 321 lots. These twelve squares are bounded by Government Street on the South, North Boulevard on the North, Lovers Lane on the East, and Ogden Drive on the West. Plaintiff's property is located on half of Lot 17 and half of Lot 15 in Square 9, while the defendant is the owner of Lots 5 and 6 of Square 8 which have a frontage of 80 feet on Government Street by approximately 160 feet on Oakwood Drive, and he also owns Lots 8 and 10 of Square 8 which front on Oakwood Drive, bounded on the south by defendant's Lots 5 and 6 and Lot 4 of Square 8. The boundary on the rear of Lots 10 and 8 is Lots 7 and 9 of Square 8. Plaintiff's property is located approximately 180 feet diagonally north across Oakwood Drive from Defendant's lots. Thereafter, in 1936, the half of Square A and half of Square B were subdivided, adding some fourteen lots to each square.

While some of the acts of sale of lots in the Ogden Park Subdivision have eight restrictions, some nine and some eleven, we are only concerned with whether the particular lot was restricted for residential purposes.

It is admitted that no separate instrument or declaration was recorded in East Baton Rouge Parish providing for the restrictions of lots in Ogden Park, and on the maps filed in the plat book there is no reference made to nor any restrictions shown on this map, and the only restrictions, if any, will be found in the individual sales. Accordingly, we must look to the latter to determine whether there was a general plan adopted for this subdivision.

It is also admitted and shown by the record that the Louisiana Realty Company. Inc. acquired by foreclosure sale, without restriction, 117 1/2 lots from the Ogden Realty Company, Inc. It is shown that Louisiana Realty Company, Inc. placed some restrictions on seven of these lots, however, this is immaterial to a decision of the question now before us, because it is not contended that the Louisiana Realty Company, Inc. adopted any plans for the lots they obtained, and they are not a party to this suit. The only material fact is that the record fails to show any plan by the Ogden Realty Company, Inc. as to restrictions insofar as the 117 1/2 lots are concerned. The Louisiana Realty Company, Inc. lots are scattered throughout the entire twelve squares of this subdivision. Therefore, we have these 117 1/2 lots sold by Louisiana Realty Company, Inc. disbursed throughout the entire subdivision with no restrictions, some of them being next to a lot with restrictions.

Let us see what the Ogden Realty Company, Inc. did with respect to the property along Government Street and the lots in Squares 8 and 9 and 3 and 4.

Lot 3 of Square B sold by Ogden Realty Company, Inc. fronting on Government Street specifically allowed no residential or commercial building to be erected thereon at a cost of less than $3500.00. Lot 2, Square B, sold by Louisiana Realty Company, Inc. contains no restrictions. Lot 1 of Square B, sold by Louisiana Realty Company, Inc. contains no restrictions. Lots 28, 26 and 27, Square B contain no restrictions.

Square No. 6, which is bounded on the south by Government Street, is to the East of Square B and Bedford Drive and has five lots fronting on Government Street. Lot No. 1 of this square is semi-commercial, therefore unrestricted. Lots 2 and 7 of this square, while it had eight restrictions, commercial use was specifically granted, sold by Ogden Realty Company, Inc. Lot 3 of Square 6 allows a grocery store, sold by Ogden Realty Company, Inc. therefore no restrictions. Lot 4 of Square 6, sold by Ogden Realty Co., Inc., allowed a meat market or delicatessen shop. Lot 5 of Square 6, sold by Ogden Realty Company, Inc. was restricted to a dwelling. This is the corner lot which fronts on Government street with a depth of approximately 154 feet on Hearthstone Drive. Lot 6, just to the rear of 3, 4 and 5, which has...