Salerno v. De Lucca
| Decision Date | 21 April 1947 |
| Docket Number | 38432. |
| Citation | 30 So.2d 678,211 La. 659 |
| Court | Louisiana Supreme Court |
| Parties | SALERNO et al. v. DE LUCCA. |
Bentley G. Byrnes, of New Orleans, for relator.
A P. Schiro, III, of New Orleans, for respondents.
The relator Joseph De Lucca, having been ordered by judgment of the Civil District Court for the Parish of Orleans (in a contempt proceeding for the alleged violation of a judgment enjoining him from erecting a commercial building or conducting a business establishment on property owned by him in the Fairmont Park Subdivision in the Gentilly section of New Orleans) to remove a certain sign or billboard from the said property within 30 days or, in default thereof, 'be guilty of contempt of * * * Court and sentenced to forty-eight (48) hours in the Parish Prison for the Parish of Orleans,' applied for and was granted a writ of certiorari directed to the trial judge ordering him to transmit the entire record in the matter to this court to the end that the validity thereof might be ascertained, all proceedings, in the meantime and until our final determination in the matter, being stayed and suspended by our order.
It appears that the relator and the five respondents in this case, Dr Emmanuel F. Salerno, D. Thomas Salsiccia, Gustave J. Cucullu, Philip A. Gaudet, and Herman Frank, are owners of property in the Fairmont Park Subdivision, all of which is encumbered with the following restrictions:
'There shall be no front fences permitted and no sheds or garage to be constructed within twenty-five feet of the property line.
'All sites in block A, B, C, D & E facing Fairmont & Clermont Drives shall be restricted to single dwellings and block F and G to single or double dwellings with the exception of those sites for business aforementioned.
'The above conditions and restrictions shall be binding upon the said purchaser, his or her heirs and assigns forever.'
In August of 1944 De Lucca acquired Lots 1 and 2 in Square A of this subdivision and subsequently endeavored to construct thereon a building to be used partly as a post office and partly as a restaurant. The respondents thereupon instituted proceedings against him and secured a judgment therein on May 8, 1945, forever enjoining him from 'erecting a commercial building on the lots owned by him' and forever enjoining him 'from conducting, operating or permitting the operation of a post office, restaurant or any other kind of business establishment on the said lots.' More than a year later, on October 17, 1946, the respondents began the proceedings here under consideration by filing a rule against De Lucca ordering him to show cause why he should not be held in contempt of court for violating the injunction by his maintenance of a sign or billboard on Lots 1 and 2 of Square A, and, in the alternative, to have him enjoined from erecting or permitting the maintenance on his property of any sign or billboard for advertising purposes, it being in violation of the title restrictions in his deed to the property. They prayed that he be ordered to remove the sign or billboard presently located on this property. In response to this rule De Lucca filed exceptions of vagueness and of no cause and no right of action and he then answered generally denying that he had violated either the title restriction in his deed to this property or the judgment of the court. He coupled with his answer a plea of prescription of two years, based on Act 326 of 1938. The exceptions and plea were overruled and, on the merits, the court rendered the judgment complained of.
The relator concedes that if the restrictions in his title provide that Lots 1 and 2 are not to be used for commercial or business purposes, then he would not have the right to maintain the sign or billboard on these lots. But he insists that the restrictions refer to business establishments, which he was enjoined from conducting by the judgment of May 8, 1945, and since signs or...
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