Ouachita Home Site & Realty Co., Inc. v. Collie

• Decision Date: 07 March 1938
• Docket Number: 34720
• Citation: 179 So. 841,189 La. 521
• Parties: OUACHITA HOME SITE & REALTY CO., Inc., v. COLLIE et al
• Court: Louisiana Supreme Court

179 So. 841

189 La. 521

OUACHITA HOME SITE & REALTY CO., Inc., v. COLLIE et al

No. 34720

Supreme Court of Louisiana

March 7, 1938

Appeal fro Fourth Judicial District Court, Parish of Ouachita; D. I Garrett, Judge.

Suit by the Ouachita Home Site & Realty Company, Inc., against F. U Collie and another for an injunction against violation of building restrictions in plaintiff's deed of certain lots to named defendant's predecessor in title. From a judgment making a preliminary injunction permanent defendants appeal.

Affirmed.

J. Norman Coon, of Monroe, for appellants.

Theus, Grisham, Davis & Leigh, of Monroe, for appellee.

OPINION

ROGERS, Justice.

In August, 1923, Eugene Ford sold to the Ouachita Home Site & Realty Company, Inc., 129 acres of land situated north of Desiard street and east of the Monroe-Sterlington road, in the city of Monroe. Later, the purchaser, Ouachita Home Site & Realty Company, Inc., established a residential subdivision on the property. This subdivision was given the name "Cole Addition to the City of Monroe," and from time to time a number of lots were sold therein. Among the purchasers was Mrs. Nellie S. Williams, who, by deed executed on February 7, 1928, acquired lots 3, 4, 5, and 8 of block 42 of the subdivision. In this deed, the vendor Ouachita Home Site & Realty Company, Inc., inserted the following building restrictions, which were accepted by the vendee, viz.:

"The vendee herein agrees, binds and obligates herself, her heirs and assigns to construct or erect on the above described property nothing other than a residence or residences, together with the usual and necessary appurtenances thereunto belonging and further agrees, binds and obligates herself, her heirs and assigns to erect no residence on said property at a cost of less than Three Thousand ($ 3,000.00) Dollars."

On February 10, 1934, Mrs. Williams sold the property to the Central Company, Inc., and by two deeds dated July 8, 1937, the Central Company, Inc., sold lots 3, 4, and 5 to F. U. Collie. No building restrictions were embodied in the deeds from the Central Company, Inc., to Collie.

On September 13, 1937, F. U. Collie obtained a building permit from the city of Monroe to erect twelve tourist cabins on the property, two of the cabins to cost $ 500 each and the other ten cabins to cost $ 400 each, and pursuant to this permit entered into a contract with J. F. Heard to build the cabins.

When the contractor began to lay out the tourist camp and to break ground for its construction, Mr. Collie, the owner of the property, was notified by the Ouachita Home Site & Realty Company, Inc., through its attorney, that a tourist camp was a commercial enterprise, the operation of which was prohibited by the building restrictions governing the subdivision, and he was called upon to abandon the construction thereof. This Mr. Collie refused to do, and this suit followed.

Plaintiff in its petition set out the facts, alleged the validity of the building restrictions, and prayed for an injunction to prohibit the defendants, Collie, as owner, and Heard, as contractor, from violating them.

The defendants, in their exceptions and answers, set up various grounds of defense to plaintiff's action. They averred that the building restrictions relied on by plaintiff were not valid and were not a covenant running with the land; that the defendant Collie had not agreed to the restrictions, and hence they were not binding on him; and that as the owner of the property he had the right to exercise the full and perfect ownership thereof. Defendants specially alleged that the building restrictions were invalid as being an attempt on plaintiff's part to establish a trust estate, to take property out of commerce perpetually, and to create a tenure of property unknown to our law. Defendants further pleaded that the plaintiff was estopped from enforcing the building restrictions, because it had abandoned its rights therein, and had permitted the character of the subdivision to be changed from a residential district to a commercial and business district.

After a hearing on a rule nisi on the various pleas and exceptions set up by the defendants, plaintiff's right to injunctive relief was recognized and a preliminary injunction was ordered to issue upon plaintiff furnishing the required bond. At the later hearing of the case on its merits the preliminary injunction was made permanent. From that judgment, defendants have appealed.

The case is governed by the decisions of this court in the cases of Queensborough Land Company v. Cazeaux, 136 La. 724, 67 So. 641, 643, L.R.A.1916B, 1201, Ann.Cas.1916D, 1248 and Hill v. Wm. P. Ross, Inc., 166 La. 581, 117 So. 725.

The defenses raised in this case are the same defenses that were raised in the Queensborough Case. In that case, the questions presented were exhaustively considered and the right of an owner to restrict the use of real property was maintained.

In the Queensborough Case, it was expressly held that such restrictions in contracts between individuals are not unlawful in this state; that they are not personal to the vendor, but inure to the benefit of all the other grantees under a general plan of development, are covenants running with the land, and create real, as distinct...