Olivier v. Berggren, 196

• Decision Date: 02 January 1962
• Docket Number: No. 196,196
• Parties: Blaine P. OLIVIER, A. J. Gumina, Jr., and Harold M. Myers v. Roy J. BERGGREN.
• Court: Court of Appeal of Louisiana — District of US

Page 325

136 So.2d 325

Blaine P. OLIVIER, A. J. Gumina, Jr., and Harold M. Myers v. Roy J. BERGGREN.

No. 196.

Court of Appeal of Louisiana, Fourth Circuit.

Jan. 2, 1962.

Ogden, Woods, Henriques & Rives, Charlton B. Ogden, II, Trial Atty., New Orleans, for defendant-appellant.

Floyd W. Newlin, Metairie, for plaintiffs-appellees.

Before YARRUT, SAMUEL and JOHNSON, JJ.

JOHNSON, Judge.

Plaintiffs and defendant are property owners in Harlem Subdivision in Jefferson Parish. On the suit of plaintiffs, defendant was permanently enjoined from using, as such, a double dwelling owned by him in that subdivision and was ordered to comply with applicable title restrictions by altering the building to a single family dwelling. From that judgment defendant prosecutes this suspensive appeal.

Plaintiffs allege that Harlem Subdivision was created and subdivided under a general and uniform plan of development. In November, 1952, the developer executed and recorded stipulations of restrictive use covenants and each of the plaintiffs acquired a lot and now resides thereon. A copy of the declaration establishing the building restrictions is attached to the petition and we quote the following portion:

'No lots shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single-family dwelling not to exceed two and one-half stories in height and a private garage for not more than three cars.'

The petition further alleges that the defendant acquired by purchase lot N--1 of Square 78 in said subdivision on November 5, 1959, subject to all the title restrictions and covenants; that there was erected on said lot a double residence with two entrances, two municipal street numbers and two utility meters and that defendant intends to use and occupy said building as a double residence, all in violation of that particular title restriction which provides for only single family dwellings.

Defendant's answer admits that he purchased the subject lot on November 5, 1959 but denies that his acquisition was subject to all the building restrictions. The answer admits that there is a double residence on that lot, and alleges further that the building restrictions do not pertain to his property for two reasons: (1) that in excess of two years preceding the institution of this action the property was used as a commercial site in open violation of the restriction and any action in support of the building restriction has been prescribed or preempted, and (2) that petitioners have waived their right to bring this action because of their failure to timely protest about the general and continuous violations of the building restrictions in Harlem Subdivision.

In the alternative, defendant pleads that the plaintiffs should not be granted the relief sought, because they had full knowledge that a double residence was being constructed for the benefit of defendant in November, 1959, and allowed defendant's vendor and his contractors to proceed until completion before bringing this action.

Defendant further pleads that the said subdivision is in a zone of transition and that the Jefferson Parish Planning Department in the exercise of its police power granted the right to defendant's vendor and contractor to construct a two-family dwelling on said lot.

Inasmuch as the defendant has admitted a building was constructed which he intended as a two-family double dwelling, that much of plaintiffs' complaint is not in controversy.

Likewise there is no contention by defendant, in addition to his bare allegation, that there has been general and continuous violations of building restrictions in that subdivision. There is no evidence whatsoever offered to that effect. The evidence presented by defendant is confined strictly to prove only one violation prior to his construction of the two-family dwelling and that one violation, he contends, was by Robert A. Louviere in the alleged use openly for more than two years of Louviere's own residence and of the adjoining lot N--1, before defendant bought it, for commercial purposes. Defendant's counsel argues that the result of such use is to free lot N--1 from all restrictions of whatever kind or nature.

It will be appropriate first to dispose of the argument that the use of defendant's lot N--1, continuously for more than two years for a commercial purpose has had the effect in law to free that lot and the two-family dwelling constructed thereon from any and all restrictions in the subdivision. We grant the fact of such continuous use (without admitting it) for the purpose of argument, in order to explain the law.

The applicable portion of LSA-R.S. 9:5622 reads as follows:

'A. Actions to enjoin or to obtain damages for the commission or continuance of a violation of restrictions contained in the title to land are prescribed by two years, reckoning from the commission of the violation. When this prescription shall have accrued, the particular parcel of land shall be forever ever Free from the restriction which has been violated.' (Emphasis ours.)

In the case of Salerno v. DeLucca, 211 La. 659, 30 So.2d...