author: REDMANN, Judge. SCHOTT, Judge. REDMANN, Judge,

text:
    Mr. and Mrs. Jesse Dale JORDAN v. Douglas E. WEBER and Weber Construction Company of Louisiana.
    No. 10419.
    Court' of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    On Rehearing Sept. 9, 1980.

      Richard T. Regan, Francipane, Regan & St. Peé, Metairie, for plaintiffs.
    Steven K. Faulkner, Jr., Morphy, Faulkner, Simpson & Dimaria, Metairie, for defendants.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   REDMANN, Judge.

The parties to this litigation used a printed form, drafted for use in sales of land (including existing buildings), to embody an agreement relative to a house in the process of being constructed on the builder’s land.

The builder-seller now appeals from a judgment which imposed upon him the printed form’s penalties for noncompliance by awarding the buyers the return of their deposit plus an equal amount' “as penalty” plus attorney’s fees (as well as the cost of light fixtures and a stove hood the buyers had supplied to the builder). We eliminate the penalty and attorney’s fees but otherwise affirm.

We agree that the builder did breach the contract. The house was “to be completed ready to move into for above price” and “Possession and occupancy [was to be given to] purchaser at passing of act of sale.” The trial judge interpreted these two provisions together to require the house to be completed for the time of the act of sale and we agree that that is their intent. The house was not completed for the February l, 1978 date provided by the contract. The parish building inspector noted several matters incomplete at that time. The parties agreed to an extension to February 13 and the act of sale was set for 4 p. m. At 10 a. m. February 13 the buyers found the house still incomplete. The builder said it would be completed by 3 p. m. At 3 p. m. they again met (with the buyers’ attorney and the parish building inspector) and the house was still incomplete, and could not be moved into, in that lack of “fire blocking” around the return duct to the central heater plenum constituted a fire hazard, and prevented final connection of utilities and thus prevented their moving in. (Improper roof bracing had also not been corrected.) The buyers refused to take title or allow further time for performance.

The building was so nearly complete that, if this were a simple building contract for a building to be completed on plaintiffs’ land, the doctrine of substantial performance would have allowed the builder to recover the contract price less the minor cost of completion. The radical difference is that here the builder owned the land and therefore his building upon his own land did not unjustly enrich plaintiffs, as the building upon another’s land enriches that other. The parties here made a contract providing that the builders were to have the house ready to move into at the time of the act of sale, and despite an extension of time after the first inspection by the parish building inspector and two more inspections by the buyers on the last day for the act of sale, the builder did not have the house ready.

Even Douglas Weber’s testimony that he had been informed by Fred Weber at the 4 p. m. time set for the act of sale that the fire blocking and roof bracing (and other defects) had been corrected is contradicted by Fred Weber’s testimony that he finished at 5 or 6 p. m. Moreover, by 6 p. m. on a February 13 in Jefferson parish sunset has occurred, and thus defendants cannot say they did not breach even on the theory that C.C. 2057 allows until sunset to perform; see Ducote v. Katz, La.App. 4 Cir. 1978, 361 So.2d 1320.

Ducote is similar to our case in that there the seller’s nonfulfillment of a minor obligation (to afford an inspection) occasioned the buyer’s refusal to perform at the time set for the act of sale. Ducote held the buyer justified in refusing to perform, but denied penalty and attorney’s fees because there remained some hours before sunset during which the seller could have performed (although he did not in fact do so). We conclude that our buyers, too, were entitled to refuse to take title at 4 p. m., but because the sellers had until sunset for completion and act of sale, our buyers were not entitled at 4 p. m. to demand return of their deposit, much less penalty and attorney’s fees. On the other hand, as also in Ducote, the seller is not entitled to keep the deposit because he did not perform timely and his 4 p. m. tender of title was not a tender in compliance with the contract. We add that it is doubtful, in any case, that the parties intended that the penalty for the builder-seller’s refusal to sell should apply to his lateness by an hour in being prepared to sell The usual 10% deposit plus an agent’s usual commission of 6% would mean a 16% penalty plus substantial attorney’s fees, and the magnitude of the overall cost suggests the unreasonableness of ascribing to a builder the intent to pay that penalty for mere delay.

Amended to eliminate penalty and attorney’s fees; each party to bear his own costs.

ON REHEARING

SCHOTT, Judge.

We granted a rehearing on the application of plaintiffs-buyers, in order to reconsider their entitlement to penalty and attorney’s fees and our assessment of court costs against both parties.

We reaffirm our original opinion to the extent that defendants failed to complete the house by sun down on February 13 and thereby breached their contract with plaintiffs, entitling plaintiffs to the return of their deposit.

The contract contains a reciprocal right to the same penalty of $2,000 and attorney’s fees in the event of a breach by either party. In this case, the penalty and attorney’s fees were demanded not only by plaintiffs in their main demand but also by defendants in their reconventional demand. Thus, both parties recognized that these provisions of their contract were subject to enforcement by the court. This position is consistent with LSA C.C. Art. 1945’s provisions:

“Legal agreements having the effects of Law upon the parties, none but the parties can abrogate or modify them. Upon this principle are established the following rules:
* % H< * sfc #
Second-That courts are bound to give legal effect to all such contracts according to the true intent of all the parties;
Third-That the intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences; Fourth-That it is the common intent of the parties-that is, the intention of all— that is to be sought for; if there was a difference in this intent, there was no common consent and, consequently, no contract.”

We repudiate the suggestion that the penalty is unreasonable in this case. Aside from the law which binds parties to their contract, the penalty in this case amounts to liquidated damages which were agreed to in order to save the parties from the difficult task of proving actual damages. Since their intention was clear, the contract should be enforced. C.C. Art. 1963.

We distinguish this case from Ducote v. Katz, 361 So.2d 1320 (La.App. 4th Cir. 1978) on the facts. In the Ducote case the court did not award penalties and attorney’s fees because the purchasers had indicated that they were unwilling to proceed with the sale even if the inspection took place on the last day by the agreement. The court noted that the seller had until sunset on June 28, 1976, to meet the inspection condition. In the instant case, there is evidence that the seller had not completed the work before sunset on the last day provided for the sale so that the seller alone was at fault in failing to comply with the agreement.

Accordingly, the judgment appealed from is affirmed and defendants are to pay all costs, including the cost of the appeal.

AFFIRMED.

REDMANN, J., dissents in part.

REDMANN, Judge,

dissenting in part.

One problem with the majority’s literal-mindedness about the penal clause is that it would entitle the seller to forfeit the deposit and collect attorney’s fees because, quite expressly, the seller can forfeit the deposit “without formality beyond tender of title” to be so entitled, and our seller did tender title. (This is a piece of nonsense, of course, arising from the questionable use of a standard buy-sell form instead of an appropriate contract.)

The correct result is that neither party should pay penalty and attorney fees. A party who invokes a penalty clause bears the burden of proving facts entitling that party to the penalty, and neither party here bore that burden of proof.

The seller cannot collect from the buyers because the seller did not prove that its 4 p. m. tender of performance was that impliedly required by the contract (“ready to move into for above price”), and the seller did not make a later tender before sunset that day when the fire blocking had been completed.

The buyers equally cannot collect penalties from the seller because the buyers admittedly did not “offer to receive the performance at the time and place stipulated in the contract . .., and he cannot avail himself of any demand at any other time ...” La. C.C. 1914. The time for perform-anee is “until sunset of the last day . . . La. C.C. 2057, which was 5:47 p. m. on February 13,1978, in the New Orleans area, and a demand for performance by 3 p. m. (or even by the 4 p. m. act) does not avail the buyers.

One who reads this record will know that this is not a case of buyers who wanted to buy against a seller who did not vfant to sell. Quite the contrary. The buyers did not want to buy the house because the builder (rightly or wrongly) would not rebuild an interior wall that was not geometrically true. The buyers seized upon the missing fire blocking (and other trifles) as an easy escape from their obligation, rather than accept the house and then fight over the tolerances within which a less-than-ideal wall must be accepted by a buyer.

Thus the first-and most difficult-question in this case is whether the buyers succeed at all in escaping their obligation to buy (under penalty of forfeiture of their deposit). The factual and legal issues are both close, but a court of appeal can permit to stand the trial judge’s factual conclusion that fire blocking was not completed as of the 4 p. m. act of sale (see note 1), and we have reached the important legal conclusion that the doctrine of substantial performance does not apply to the obligation to build contained within a buy-sell contract for a house being built on the builder’s land.

But it is absurd to treat the buyers as if they were ready and willing to perform, and the seller as if it were the villain in this piece. It is the buyers who were unwilling to perform; they refused title at 4 p. m. on a flimsy but (we find) justifiable pretext, and they refused to allow completion or even to verify completion of the fire blocking after their 3 p. m. inspection. The builder was somewhat dilatory in not having the fire blocking completed by the 3 p. m. inspection he agreed to: but 3 p. m. was not the last time for performance of his obligation under the contract which provided the penalties here imposed.

Our original decree should be reinstated.

      . In accordance with our internal rules this case was submitted to the court en banc at the request of the dissenting judge because of his view that the case was in conflict with Ducote v. Katz. A majority of the court en banc were of the opinion that no conflict existed between the cases because they were factually distinguishable.
      1. Douglas Weber testified that he was informed by telephone by Fred Weber that the fire blocking was completed while the parties were at the act of sale: “At the act of sale I assured the Jordans that it had been done right then and there and if they would like to go out and inspect it I would be happy to wait to let them go back and inspect and let them be sure the fire blocking was done.... Their counsel advised them that that wasn’t necessary. They had been there for the inspection as agreed upon and that they didn’t need to go back and inspect. We did have all that completed by 4 o’clock.”
      Fred Weber also testified that he was doing the fire blocking as the buyers left the site after their 3 p. m. inspection and that he completed it right away. However, he also testified that he “[went] home that night .. . [about] 5 or 6 o’clock. Q. That is when you finished up? A. Pretty much.” The trial judge could have concluded that, notwithstanding the other testimony to the contrary, the seller did not prove that the fire blocking was finished before 5 or 6 p. m., much less before the 4 p. m. time set (set that day) for the act of sale. (One could even conclude it was not proven that the blocking was finished before sunset-5:47 p. m. in New Orleans that day-but that is immaterial because neither party attempted to put the other in default except at the 4 p. m. act of sale.
      Accordingly (unless the substantial performance doctrine applies to the building contract aspect of a buy-sell contract on a building being built) the buyers had the right to refuse the 4 p. m. tender. But at 4 p. m. they had no right to demand penalty and attorney fees because the seller had until 5:47 p. m. (sunset) to perform, and, rather than demand performance by 5:47 p. m., they refused to accept any performance after their 3 p. m. inspection. Our original opinion therefore correctly followed Ducote v. Katz, La.App. 4 Cir. 1978, 361 So.2d 1320.


source: Caselaw Access Project

author: REDMANN, Judge. REDMANN, Judge.

license: Public Domain

text:
    Mrs. Verlie Holton, wife of Fred B. CURTIS v. Fred B. CURTIS.
    No. 11097.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    On Rehearing Oct. 9, 1980.

      Frederick R. Bott, Patricia Maureen Joyce, Deutsch, Kerrigan & Stiles, New Orleans, for plaintiff.
    Edward J. Lassus, Jr., New Orleans, for defendant.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   REDMANN, Judge.

If a wife buys a $60,000 house with only $28,500 of her separate funds, intending (with the husband’s consent) to pay the credit balance with community funds, the financial positions of both wife and husband remain the same in a post-divorce property accounting-:/ the house is still worth $60,-000 -irrespective of whether the house is held to belong to the community or to the wife’s separate estate. In either case-whether the wife is held to own the $60,000 house and repays the community $31,500 or whether the community owns the house and repays the wife $28,500-the wife’s separate estate nets $28,500 and the community nets $31,500.

Suppose, however, that monetary inflation has made the house worth $150,000. Then if the wife is held to own the $150,000 house and repays the community only $31,-500, she nets $118,500 for her separate estate, instead of only $28,500; but if the community owns the $150,000 house and repays the wife only $28,500, it nets $121,-500 rather than $31,500. Whichever estate is held to be the owner gets 100% of the $90,000 “increase in value” resulting from inflation, notwithstanding that from the outset the wife’s separate estate (at 47.5%) and the community (at 52.5%) were committed almost equally to the price of the property.

We conclude that the fair treatment of the house, the treatment provided by the principles of the Civil Code, is to hold it owned 28,500/60,000 (or 47.5%) by the wife’s separate estate and 31,500/60,000 (or 52.5%) by the community. If inflation has made the house worth $150,000 the wife’s separate estate would net 47.5% of $150,000, or $71,250, and the community would net $73,750. By this treatment the “increase” from (or protection against) inflation is shared by both the separate estate and the community in the proportion that each’s original commitment bore to the original price.

The facts before us are that (a) the wife and husband both signed the act of purchase although (b) the wife alone was named purchaser, and (c) the husband “acknowledged” in the act that the house was being bought with the wife’s separate funds and was her separate property. In truth, however, only the $28,500 cash portion of the $60,000 price was paid with the wife’s separate funds: it was always the intention of both wife and husband that funds the law declares community funds (rental income from the house) would pay the bal-anee of the price, by monthly payments during the next 15 years.

The now-divorced wife appeals from a judgment decreeing the community the owner of the house and the wife merely a creditor of the community for the $28,500 her separate funds provided. We amend the judgment to limit the community’s ownership to an undivided 52.5% interest and to recognize the wife’s separate estate as the owner of the other 47.5% interest.

La.C.C. 2402 establishes the basic law that the community includes all property which the spouses “may acquire during the marriage ... by purchase, ... even although the purchase be only in the name of one of the two and not of both . . . C.C. 2334 makes separate any property either spouse “acquires during the marriage with separate funds ...,” but the presumption of community character remains: one who claims separateness bears the burden of proof, and this burden is not met by the mere declaration by both spouses in a deed that one is acquiring the property as separate property with separate funds separately administered; Houghton v. Hall, 1933, 177 La. 237, 148 So. 37. The “acknowledgment” in the present matter appears to have been simply an erroneous legal conclusion and, in any case, “estoppel, of course, could not extend beyond an acknowledgment of [the wife’s] ownership of the [cash] funds paid under the deed.” Barnes v. Thompson, 1923, 154 La. 1034, 98 So. 657. See also Succession of Bellande, 1889, 41 La.Ann. 491, 6 So. 505. Estoppel by deed applies only to existent facts that are recited in the deed, and not to future factual expectations or to matters of legal interpretation. (Indeed, one may question whether a spouse is ever estopped by a recital of separateness-a conclusion at least partly of law rather than purely of fact.)

Barnes itself weakened the precedential authority of the quoted reasoning by alternatively reasoning that a later sale-and-resale for security purposes with a building and loan association had, as a matter of statutory law, to be construed not to be a security device but, ultimately, a sale by the association to the husband and wife, making the property thereafter community if it was not already. That statutory construction of sale-resale in Barnes is disapproved by Mayre v. Pierson, 1931, 171 La. 1077, 133 So. 163. Capillon v. Chambliss, 1946, 211 La. 1, 29 So.2d 171, also disapproving Barnes’ sale-resale view, opined that Barnes was nonetheless correct, because the wife never had any separate property. Although the present wife would distinguish Barnes on this fact, we view Capillon as necessarily rejecting in its entirety the theory that the husband is estopped by deed recitals of separateness of funds. If estop-pel were applicable, no evidence would be admissible in favor of the husband to contradict his recital by deed that the cash portion of the price was separate, and thus it could never be established that the wife had not had any separate funds. We conclude that our husband is not estopped to contest his recital that the credit portion of the price was to be paid with his wife’s separate funds.

One may .also note that the three opinions in Houghton discussed at length the legal question of whether the wife’s earnings in her own business were separate or community. One explanation of the acknowledgment in Houghton, and here, is that each husband believed, although incorrectly, that under the law the income with which the wife was purchasing was her separate property. Whatever estoppel might otherwise exist is prevented by a proper showing of error; Bellande, above.

Finally, we note that undivided interests can be purchased by a community or by a spouse: a husband who was “head and master” could have expressly purchased a 47.5% undivided interest in a house for his separate estate, with the other 52.5% being purchased for the community. The wife should not be denied the same power to buy an undivided interest when the husband by signing her act of purchase agreed that she was (at least!) to that extent purchasing for her separate estate, and agreed that the credit portion of the price was to be paid with the rentals which by law belonged to the community. Certainly it was the wife’s expressed intent to make an investment for her separate estate, and it was only her lack of funds that prevented her purchasing the entire property for her separate estate.

Notwithstanding that Jordy v. Muir, 1898, 51 La.Ann. 55, 25 So. 550, lends superficial support to a conclusion that the house in our case is treatable as 100% community, Jordy did not face the problem of severe inflation: there a house bought for $2500 sold for $2300 net. (The wife’s claim to the whole $2300 was rejected and she was allowed only the $716 cash her separate estate had supplied.) Jordy is thus but an example of this opinion’s first premise: it makes no economic difference which estate owns the property subject to a debt owed to the other, if the property’s value is constant. Jordy does not answer our question. We have had to provide our own answer, and we have done so as fairly as we can.

The judgment is amended to limit the community's ownership to an undivided 52.5% and to recognize the wife’s separate estate as owner of the other undivided 47.5% of 2501-03 St. Charles Avenue, New Orleans. All costs are to be divided equally between the ex-wife and the ex-husband’s representative.

Before REDMANN, SCHOTT and SAR-TAIN, JJ.

ON REHEARING

REDMANN, Judge.

Our original opinion’s statement that the “intent” of both spouses was that rentals from the property would pay the credit portion of the price was a conclusion from, first, a stipulation that all credit installments were so paid and, second, the wife’s interrogatory answers reciting no other available source and creating the impression that no other source existed at the time of the purchase for payment of the credit portion of the price.

The wife (who alone sought rehearing) now argues that our “intent” conclusion was the basis for our decision and that that conclusion is invalid. That conclusion, valid or not, was not our basis for decision. Our basis is set forth in the opinion’s sixth paragraph: the presumption of community places the burden of proving separateness upon the wife and she does not carry that burden merely by establishing the husband’s acknowledgement (here, “that all payments and installments due hereunder shall be paid by his said wife with her separate funds . . . ”).

The wife’s principal original argument was that the husband’s “acknowledgement” estopped him from denying separateness and we therefore thought unnecessary the particularization of the wife’s burden of proof. But we now supplement our original opinion to explain that the wife’s burden can only be met by proving not only that she had under her separate administration sufficient separate funds for the cash portion of the price but also, “by clear, positive, and convincing evidence, . . . that her para-phernal property and revenues are ample to enable her to make the purchase with reasonable expectation of meeting the deferred payments.” Montgomery v. Bouanchaud, 1934, 179 La. 312, 154 So. 8, 9; Fortier v. Barry, 1904, 111 La. 776, 35 So. 900.

The wife did not carry her burden of proof as to the 52.5% credit portion of the price.

We also respond to the wife’s argument that our decision “impairs, the security of title to thousands of pieces of immovable property.” The wife is not a third person and therefore cannot have relied on her husband’s recorded recitals in her own deed of acquisition for the security of her title. The “security of title” argument is not valid if based on the public records doctrine because that doctrine merely makes unrecorded contracts etc. ineffective against third persons; C.C. 2266. Nor is it valid, as to the wife, if based on the parol evidence exclusory rule, C.C. 2276, for the husband and wife could not at the time of acquisition contract with each other, C.C. 1790, and thus no contract between them is valid at all, much less full proof of all of its recitals. (The husband could contract with the mortgagee, and the mortgagee may be entitled to exclude parol, although it need not: the husband’s consenting in the act to the wife’s mortgage would make it valid even if the property belongs to the community; see C.C. 1787.)

Our original opinion (as here supplemented) and decree are therefore reinstated.

SARTAIN, J., concurs and assigns reasons.

SARTAIN, Judge,

concurring and assigning reasons.

I concur in the result because this litigation does not conflict with the public records doctrine. This is a dispute between husband and wife and the decision herein is limited to its own facts.

      . Because the wife had not recorded the notarial declaration of reservation to her separate estate of “all” of the fruits of her separate property-allowed to female spouses only by La.C.C. 2386-the basic rule of C.C. 2386 retains its applicability: “The fruits of the paraphernal property ... fall into the conjugal partnership .. ..” We therefore pretermit discussion of the obvious equal protection problem, but we note that the male spouse is not allowed to record such a declaration and cannot prevent his separate property’s earnings’ falling into the community.

      . It happened instead that a refinancing occurred five years later. (The husband appeared as a vendor in the security device sale to the building and loan association-perhaps at the association’s insistence-but the resale was to the wife alone and the husband again acknowledged the separateness of the funds and property.) Furthermore, husband and wife separated before the credit balance was paid in full. But the ownership of the property must be determined by the circumstances at the time of its acquisition, because in Louisiana immovable property ownership must at all times be vested. Moreover, (at least at the time of this purchase) the husband and the wife could not buy and sell fractional interests from and to each other, for her separate estate and the community respectively. At the time of the purchase, the wife for her separate estate put up $28,500 and the husband for the community consented to her committing the community rentals to the $31,500 balance, and ownership must be fixed on the basis of those facts.

      . The Civil Code articles are applicable in their form prior to the revision of the marital property laws by La. Acts 1978 No. 627 and 1979 No. 317.

      . The ex-husband died during the pendency of this appeal and his representative was substituted as a party.


author: SCHOTT, Judge. SCHOTT, Judge,

text:
    Robert G. CALOGERO v. The CITY OF NEW ORLEANS.
    No. 11045.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied Sept. 15, 1980.

      Charles A. Kronlage, Jr., Kronlage, Ditt-mann & Caswell, New Orleans, for plaintiff-appellee.
    Delbert G. Talley, Deputy City Atty., Salvador Anzelmo, Acting City Atty., and D. C. Ziegler, Asst. City Atty., New Orleans, for City of New Orleans.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

The City of New Orleans has appealed from a judgment awarding plaintiff benefits for permanent total disability pursuant to LSA-R.S. 23:1221(2).

Plaintiff suffered a knee injury on October 28, 1975, while performing his duties as a policeman. After attempts to resume work proved unsuccessful because of pain he retired from the Police Department on February 5,1977. On July 11,1977, he took a job as assistant administrator to the Orleans Parish coroner where he has continued to work and was earning $1097 per month at the time of the trial in May, 1979.

The trial judge concluded that plaintiff was working in substantial pain and was therefore totally and permanently disabled under the workmen’s compensation statute. The city takes issue with this factual finding and also contends that an employee who is able to work in substantial pain is not totally disabled under the 1975 amendment to the Cornpensation Act embodied in R.S. 23:1221(2).

The trial court’s factual determination is supported by plaintiff’s testimony to the effect that his knee constantly bothers him and is painful; he feels like the leg is “ready to collapse” and he gets “terrific pains on this side of my leg [indicating].” He also spoke of having considerable pain in the evening when he removes a brace which he wears at all times on his job.

However, Dr. Walter Brent, an orthopedic surgeon, testified that while plaintiff does have pain, he can do office or supervisory type work where he can sit down but he cannot do anything that requires lifting, squatting, or climbing. The doctor was of the opinion that plaintiff’s pain would not prevent him from doing “sedentary work.”

Plaintiff’s present position involves desk work for approximately half of his time and walking about the coroner’s office in connection with the supervision of employees, climbing stairs between two floors of the building where the office is located, and walking outside of the office on trips to city hall and other governmental agencies.

In the final analysis, the trial judge accepted plaintiff’s testimony that he is in pain at all times while he performs his duties and was convinced that this pain was “substantial.” There is no basis for us to substitute our judgment for the trial judge’s in this conclusion which was an evaluation of plaintiff’s subjective complaints of pain.

The City argues that Dr. Brent’s statement that plaintiff can perform “sedentary” work without substantial pain makes him ineligible for benefits for total disability but this position is not supported by the decision of the Supreme Court in Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.1980). where the court held that a job-injured worker, able to work, but in substantial pain, is totally disabled under R.S. 23:1221(2). The case does not seem to require such a worker to prove his inability to find and hold a more sedentary job than the one he is performing in order to be eligible for benefits for total disability. Stated in another way, even if plaintiff is not prevented by pain from performing some sort of sedentary work as envisioned by Dr. Brent, he is entitled to compensation benefits for total disability because his work is not that sedentary and he performs it in substantial pain.

Finally, the City contends that plaintiff can relieve his pain by the simple expedient of taking drugs which he refuses to do. By plaintiff’s own testimony he declines to take strong drugs because he fears undesirable results and Dr. Brent classified him as a stoic type who endures pain rather than take medication. Without concluding that plaintiff is justified in refusing to avail himself of simple remedies for his pain, we are not persuaded that the remedies suggested by the City would relieve him of substantial pain while he performs his duties or that his decision to forego medication removes him from eligibility for benefits under the Whitaker case.

The judgment is affirmed.

AFFIRMED.

SCHOTT, Judge,

concurring in the denial of the application for rehearing.

In its application for rehearing the City makes a persuasive argument that this case is distinguishable from Whitaker v. Church’s Fried Chicken, Inc., in that plaintiff did not prove that he was unable to do some other work without substantial pain. It correctly points out that Whitaker proved that he could only work in a “controlled environment in an indoor sedentary type of -occupation” and that he was unfitted for such employment because of his limited education and ability. However, the Supreme Court concluded:

“The evidence that Whitaker works in constant pain greatly preponderates. A finding of substantial pain requires that plaintiff be held disabled.”

One of the cases of which the court specifically approved was Rachal v. Highlands Ins. Co., 355 So.2d 1355 (La. App. 1st Cir. 1978), which contains the following:

“We thus hold that this employee, who suffers substantial pain when engaging in gainful employment, is totally disabled.”

The city considers Justice Marcus’s concurring opinion in Whitaker as lending further support to its position that the Supreme Court did not intend to construe permanent total disability under LSA R.S. 23:1221 as amended by Act 583 of 1975 as broadly as we did in our original opinion, but I construe Justice Marcus’s concurring opinion to mean that he reached the same result as the majority but did not construe total and permanent disability as broadly as the majority did. Had the majority said what Justice Marcus did I would agree with the City’s position. The result we reached in our original opinion is consistent with and is mandated by Whitaker.


author: COLE, Judge.

text:
    Larry RUSSELL et al. v. LAKE SHERWOOD ACRES, INC.
    No. 13480.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.

      Michael W. McKay, Baton Rouge, counsel for plaintiffs-appellants Larry M. Russell and Mary H. Russell.
    Robert A. Hawthorne, Jr., Baton Rouge, counsel for defendant-appellee Lake Sherwood Acres, Inc.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This is a damage suit which seeks compensation for financial losses the plaintiffs’ sustained when their home was damaged due to settling of the lot upon which it was built.

Prior to October 23, 1976, Larry M. Russell and his wife contracted with Gulf South Contractors Corporation for the construction of a home. They chose Lot 89 of Lake Sherwood Acres Subdivision located in East Baton Rouge Parish for that construction and, according to their agreement, Gulf South purchased the lot from the subdivider, Lake Sherwood Acres, Inc.

The home was completed by Gulf South in January 1977 and the plaintiffs then occupied the residence. In the summer of 1977, they began to notice serious defects were appearing in the master bedroom as it was sinking, cracking in places, and settling. In September 1977, the Russells had a soil analysis done by Woodward-Clyde Consultants and, on September 6, they were notified by those consultants the soil would not support the construction.

Thereafter, the Russells and Gulf South arranged between themselves for the repair of the residence and Gulf South then assigned to the plaintiffs any rights that they may have had against the defendant. The Russells then brought this suit for their damages. In response, the defendant filed exceptions of prescription and of no cause of action. The exception of prescription was sustained by the district court after a hearing on that issue and the suit was dismissed.

We affirm.

Paragraph three of plaintiffs’ petition states:

“Defendant did specifically declare and hold out to Gulf South Contractors, Inc. that said lot was suitable for residential construction when in fact defendant and/or its agents or employees knew that said lot was not so suitable without further foundation work due to the fact that a canal, which once traversed said lot, was simply filled in with dirt which could have been expected to shift and settle.”

When the exception of prescription was urged in the trial court by defendant, the district judge concluded a hearing should be conducted into the merits of that exception rather than defer it to the time of trial. This is clearly within the discretion of the trial judge when it is felt that disposing of the exception in limine might save all involved an unnecessary trial on the merits and is in the best interest of justice. See Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972).

At the hearing, it was stipulated that the lot was purchased on August 23, 1976, the plaintiffs were on notice of the unsuitable condition of the soil on September 6, 1977, and this suit was filed on January 10, 1979, considerably more than a year after either of the previously mentioned events. Additionally, it was recognized by all concerned that, pursuant to paragraph three of their petition, supra, the plaintiffs’ cause of action was based upon fraud.

Evidence was then presented by the defendant to establish that the one year prescriptive period applied. Additionally, over the timely objection of plaintiffs, the defendant offered testimony to prove it had committed no fraud. The plaintiffs were then given an opportunity to prove their case of fraud to which the five year prescriptive period, established by Civil Code article 3542, would apply. Subsequent to the completion of the hearing, the district court held the Russells had failed to satisfactorily prove fraud and the prescriptive period of one year, as provided in Civil Code articles 2534 and 2546, should be applied.

We find no abuse of procedural discretion by the trial court in disposing of the exception in limine nor do we find manifest error in the trial court’s factual determination that fraud was not proven. The trial judge assigned detailed written reasons for judgment which are appended. They are supported by the record and correctly resolve the issues. We expressly approve the trial court’s reasons and incorporate them as part of our opinion.

We note the case of Musser v. Copping, 325 So.2d 681 (La.App. 4th Cir. 1975), cited by plaintiffs, which at first blush, seems to support the proposition that the issue of fraud is one to be determined by the jury upon a trial of the merits and not in limine by the trial judge. Musser is factually in-apposite. No redhibitory defect was alleged in Musser, the only relief sought being recission of the sale. While in the case before us the cause of action is based upon fraud, the petition clearly sets forth a red-hibitory defect in the residential lot sold, to-wit, a canal filled with dirt which could have been expected to shift and settle. We thus distinguish Musser. However, to the extent Musser may be construed to negate the trial court’s discretion in this case to decide in limine the issue of fraud for prescriptive purposes, we reject it as authority.

For these reasons, the judgment of the trial court is affirmed. All costs of this appeal are to be paid by appellee.

AFFIRMED.

APPENDIX

LARRY RUSSELL, ET AL. NUMBER 219,956 DIVISION “G" VERSUS 19TH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE LAKE SHERWOOD ACRES, INC. STATE OF LOUISIANA

WRITTEN REASONS FOR JUDGMENT

Defendant purchased land, filled some of it, subdivided it as Lake Sherwood Acres, and sold lots to various purchasers. Plaintiffs elected to build a home in Lake Sherwood Acres. They selected a lot and instructed their builder, Gulf South Contractors, Inc., to purchase the lot and build a certain home thereon. The lot selected was one of those which had been filled with seven to eight feet of fill. The lot was purchased and the house built. Subsequently, foundation problems arose, and plaintiff then discovered that the house had been built on a “filled” lot. He settled with his builder, obtained an assignment of the builder’s rights, and brought this suit against defendant for damages for the loss of use and the cost of repairs. Defendant filed exceptions of no cause of action and prescription. We first consider the latter exception.

At the trial of the exception, exceptor sought to introduce evidence which would support the plea of prescription. Plaintiff objected, contending that since he had sought trial by jury, admission of evidence and disposition of the case on the exception of prescription would deny him his right to jury trial. The court overruled the exception and permitted evidence on the issue of prescription. It also granted plaintiff a continuance to obtain witnesses and evidence in opposition to the exception.

Since counsel for plaintiff reurged the objection at the close of the hearing, the court feels that an explanation of its authority is in order. There is no constitutional right to trial by jury in this case; the only “right” arises out of CCP Art. 1731, et seq. These articles are contained in the Code of Civil Procedure; that same Code gives a defendant the “right” to have the peremptory exception decided in advance of the trial of the case. Art. 1733 provides that a jury trial shall not be available “[in] all cases where a jury trial is specifically denied by law.” Since the redactors could not have intended that a special jury be convened to dispose of every exception involving factual issues filed prior to answer, the only way in which the two articles can be read together is that Art. 923 specifically denies jury trial on the issues raised by exceptions prior to answer.

Of course, the court would have the discretion to refer the exception to the merits, where, arguably, the jury might decide the issue. See, e. g., comments to Art. 929. In exercising the discretion, the court should be mindful that fairness to the defendant compels pretrial disposition, thus obviating the necessity that defendant prepare needlessly for trial on the merits. This court is of the opinion that a court should refer a peremptory exception to the merits only when trial of the exception will involve trial of so much of the merits that the resulting needless waste of judicial energy outweighs the unfairness to the defendant. Such is not the case in the instant matter. Accordingly, the court adheres to its original decision to dispose of the exception on the merits.

Plaintiff’s claim is against a vendor for a vice in the thing sold, i. e., the foundation of immovable property. It is admitted that suit was filed more than a year after the sale, and more than a year after the discovery of the vice by the buyer. Thus the prescriptive periods provided by CC Arts. 2534 and 2546 have accrued, and the exception appears timely.

Plaintiff properly argues, however, that under CC Art. 2547, if fraud can be established, the prescriptive period is five or, alternatively, ten years, and prescription has not accrued. The court agrees with plaintiff that there are three “tiers” of prescription:

1. If the vendor knows not of the vice, then CC Art. 2534 applies;
2. If the vendor knows of the vice, but fails to declare it, then CC Art. 2546 applies; and
3. If the vendor is guilty of fraud, then CC Art. 2547 applies.

The question becomes one of whether defendant has been guilty of fraud as used in CC Art. 2547. We find from the evidence that defendant filled this property, took several reasonable steps to disclose to potential buyers that the property has been filled, and did not make any effort to conceal the fact from potential buyers. He may not have disclosed the particular vice to this particular buyer, but that “triggers” the prescriptive period under Art. 2546, and does not constitute fraud under Art. 2547.

The court is aware that fraud may be inferred from silence. See, e. g., CC Art. 1832. But that is a general rule as to fraud, applicable only when there is no special rule. In this case, there is clearly a special rule, gleaned from a reading of Arts. 2534, 2546 and 2547. If a seller does not know of the vice, his liability, including the period in which he is liable for suit (prescriptive period), is sharply limited. If he knows but does not declare, then the liability is increased, including the prescriptive period. If he has been guilty of fraud, then the liability is further increased, including, again, extension of the prescriptive period. But this particular fraud cannot consist of mere failure to disclose, for that would render Art. 2546 meaningless.

The court concludes that plaintiff’s claim is prescribed under Arts. 2534 and 2546 by passage of time, and that plaintiff has failed to establish a prima facie case of fraud under CC Art. 2547. Thus his claim is prescribed.

In view of this conclusion, we do not pass upon the exceptor’s objection of failure to state a cause of action.

Judgment will be rendered dismissing plaintiffs’ suit at plaintiffs’ costs.

Judgment will be signed accordingly.

Baton Rouge, Louisiana, this 26th day of October, 1979.

(si Frank L. Maraist JUDGE FRANK L. MARAIST, DIVISION “G”

      . For judicial authority for this court’s ruling on the procedural point, see Babineaux v. Per-nie-Bailey Drilling Co., 262 So.2d 328 (La. 1972) and Hebert v. Armistead, 227 So.2d 636 (3rd Cir. 1969).


author: JASPER E. JONES, Judge.

text:
    BOSSIER CENTER, INC., Plaintiff-Appellee, v. B & B SYSTEMS, INC., Dewitt H. Patten, Intervenor, Defendants-Appellants.
    No. 14234.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.

      Glenn Armstrong, Bossier City, for plaintiff-appellee.
    Michael G. Latimer, Bossier City, for defendant-appellant.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

Defendant, B & B Systems, Inc. (B & B), and intervenor, Dewitt H. Patten (Patten), appeal a judgment enjoining B & B from constructing a sign upon the property leased by it from Patten and rejecting the demands of B & B and Patten for damages which they allegedly sustained by virtue of the issuance of the TRO and permanent injunction prohibiting the erection of the sign. There was never a preliminary injunction granted, but there was a stipulation at an initial hearing in these proceedings between all the parties that the TRO granted when suit was filed would continue in effect until the proceedings were complete. The judgment also dismissed the intervention filed by Patten wherein he sought in addition to damages a judgment declaring that there were no restrictions upon the use of his property which he had purchased from Bossier Center, Inc.

Plaintiff sold Patten a strip of land 20 ft. wide by 176.7 ft. long in Bossier City, Louisiana on August 30, 1978. The deed contained the following provision, to-wit:

“Vendee agrees not to erect any structures without the written consent of the vendor.”

Patten leased a sign location on the west end of the tract to B & B on September 8, 1978. B & B commenced construction of the sign without having obtained approval of Bossier Center. Bossier Center instituted this action against B & B to enjoin the construction of the sign. Patten intervened in the proceeding and along with B & B Systems denied that the property was subject to the restriction upon which plaintiff claimed the right to the injunction and sought damages for the alleged illegal prohibition of the erection of the sign.

Following the trial on the permanent injunction the trial court rendered a judgment enjoining B & B from placing a sign upon the property and rejecting the demands of Patten and B & B. B & B and Patten appeal. We amend the judgment to order that the use limitation constitutes neither a predial servitude nor any other form of covenant running with the land and as amended affirm.

On April 4, 1978 Bossier Center granted Patten an option to purchase a tract of land 176.7 ft. X 268 ft. containing 1.726 acres and located 157 ft. south of the Old Minden Road and approximately 13 ft. east of the 1-20 right-of-way in Bossier City. Following acquisition of the option Patten had a plat prepared for the purpose of seeking a rezoning of the property. The plat reflected approximately 18 small lots on which apparently small offices or commercial structures could be placed and it also showed appropriate parking areas, streets and sidewalks. At the time the 45 day option expired the rezoning application had been rejected. Bossier Center’s officers denied they were aware that it had been rejected. Patten apparently desired to continue with his efforts to develop the tract and sought another option upon it for the same $10.00 consideration he paid for the first one. Bossier Center sought a $2,500.00 consideration for the second option and it was in connection with the negotiation for the second option that Patten acquired the north 20 ft. of the property for a consideration of $5,000.00. The property was described as follows:

“The North twenty (20) feet of vendor’s property immediately adjoining Long John Silver Restaurant, in Section 28, Township 18 North, Range 13 West, Bossier Parish, Louisiana, as outlined in red on attached drawing.”

A copy of the plat is here included to facilitate an understanding of the facts. (See p. 829). The deed included an option for an additional 45 days on the remainder of the tract with the original option price being reduced by $5,000.00 which was the consideration for that portion of the property included in the deed which had been covered by the initial option. There was no consideration recited for the second option.

The drawing referred to in the description was the detailed map which Patten had prepared for the purpose of submitting the zoning application. Patten testified when he was first submitted the deed prepared by Thomas Wilson, president of Bossier Center, Inc., he refused to sign it because it reserved to the vendor a 40 ft. wide right-of-crossing over the conveyed property and because of the language “Vendee agrees not to erect any structure without the written consent of vendor”. The following language was then added to the deed “Crossing as shown on attached sketch satisfies the 40 ft. minimum requirement. Also development plan is acceptable.”

The development plan referred to in the deed was the map prepared for the re-zoning application which reflects 18 lots that were apparently designed for use as building sites. One of these lots shown on the development plan as Lot 19 is 20 ft. wide and 50 ft. long and is located on the west end of the property bought by Patten from Bossier Center and is the lot leased to B & B on which it had commenced the construction of the sign. Patten contends that the added stipulation in the deed to the effect that the development plan is acceptable had the effect of eliminating the clause requiring Bossier Center to consent to the erection of the structure on Lot 19 because Lot 19 was shown on the plat as a place on the property purchased on which structures could be built.

The trial judge in his reasons for judgment found the language of the deed clear and unambiguous and that it required written consent of the vendor for erection of any structure. The trial judge evaluated the evidence concerning the negotiation for this small tract of land as follows:

“Mr. Patten previously had an option on not only the tract purchased but the tract as shown on the attachment to the deed. He paid $10.00 for this option and when it expired he requested another option for the same consideration. Plaintiff refused but offered him one for $2,500.00. Mr. Patten then made an offer to purchase the same portion of the property and received an option extension on the balance. The consideration for this being $5,000.00. An overview of the evidence would indicate that Mr. Patten wanted something for his money and received a small strip of land together with the option on the remainder and that plaintiff, the owner of the property in the rear of the small strip conveyed, desired to have access to such property and approval of any structure thereon as it is evident that they desired for the whole tract to be developed.”

Appellants assign as error (1) the trial court’s interpretation of the deed requiring Bossier Center, Inc. to approve any structure erected upon the property conveyed, (2) appellants contend that if the deed in fact required Bossier Center’s consent to the erection of any structure on the property conveyed that the restriction is invalid because it is against public policy and contrary to Articles 11 and 12 of the Civil Code; intervenor seeks an adjudication that his property is not subject to the restriction, (3) appellants alternatively contend that if the restriction is valid that Bossier Center unreasonably withheld its consent to the erection of the sign, and (4) finally appellants contend the trial court erred in rejecting their demand for damages.

WAS THE TRIAL JUDGE’S INTERPRETATION OF THE DEED CORRECT?

The development plan attached to the deed clearly reflects the property which Patten purchased as being a narrow strip 20 ft. in width across the entire north end of Bossier Center’s property which it hoped to develop in the event Patten did not exercise the second option which Patten was given in the deed.

It becomes apparent from viewing the plat why Bossier Center considered it essential that it have the right to approve structures placed on the narrow strip by Patten because those structures could obstruct the view to the remainder of the property and otherwise depreciate its value. The language contained in the deed to the effect that the development plan was approved indicated only that Bossier Center agreed generally with the location, size and layout of the lots on which offices or small commercial buildings would be placed if and when the plan was approved by the Metropolitan Planning Commission of Bossier City. .This language did not detract from or modify the unambiguous language contained in the clause wherein Patten agreed not to erect any structure without the written consent of the vendor.

We conclude that the trial judge’s interpretation of the deed was correct and that the parties to the instrument intended for the vendor to approve any kind of structure before the vendee placed it upon the property.

WAS THE USE RESTRICTION CONTRARY TO PUBLIC POLICY?

This contention was made in the decision of Ouachita Home Site & Realty Co. v. Collie, 189 La. 521, 179 So. 841 (1938) in an attempt to invalidate a subdivision restriction prohibiting the use of the property for commercial purposes. The court there rejected the contention that the use restriction was comparable to restrictions against inalienability which were held invalid in the decision of Female Orphan Society v. Yound Men’s Christian Ass’n., 119 La. 278, 44 So. 15 (1907). The court stated at 179 So.2d p. 842:

“While a condition of perpetual inalienability of real estate under our law is void as putting property out of commerce and contrary to public policy, there is nothing in our law which forbids contracts for the use or nonuse of real estate, provided the use or nonuse of the property be not contrary to good morals or the public welfare.”

The court relied upon the case of Queensborough Land Company v. Cazeaux, 136 La. 724, 67 So. 641 (1915), and quoted as follows from Queensborough at 179 So.2d p. 842:

“To the second question we answer that, while the public policy of the state opposes the putting of property out of commerce, it at the same time favors the fullest liberty of contract (article 1764, C.C.) and the widest latitude possible in the right to dispose of one’s property as one lists (article 491 C.C.), so long as no disposition is sought to be made contrary to good morals, public order, or express law.”

Our jurisprudence contains many decisions where restrictions upon use of property have been found valid and enforceable. In the decision of 4626 Corporation v. Merriam, 329 So.2d 885 (La.App. 1st Cir. 1976), the court enforced a building restriction which required:

“All exterior signs shall be approved by the Architectural Control Committee.” Id. at 887.

The defendant installed a sign without obtaining prior approval of the committee and the developer of the subdivision sued and obtained an injunction prohibiting the defendant from maintaining the sign which had not been approved by the committee. The appellate court gave the defendant 30 days to readjust the height of his sign to comply with the requirement of the Architectural Control Committee and in lieu of this ordered removal of the sign.

The provision in the deed requiring Patten to secure Bossier Center’s consent to the erection of any structure is not contrary to public policy and for that reason invalid.

DID BOSSIER CENTER UNREASONABLY REFUSE TO CONSENT TO THE SIGN?

The permit for construction of the sign obtained by B & B from the State of Louisiana states that the sign will be 14 ft. X 48 ft. and will be 10 ft. off the ground. There is evidence that the pole on which the sign will be mounted is of such size as to require the digging of a hole 11 ft. X 6 ft. X 15 ft. for the purpose of installing the sign pole. A structure consisting of a sign and pole evidenced by the above specifications necessarily will create some view obstruction to plaintiff’s property from the Old Minden Road and from 1-20, and may well otherwise detract from the small commercial complex contemplated by the present development plan. Under these circumstances the plaintiff was not unreasonable in withholding its consent to the proposed structure.

PATTEN’S DEMAND THAT HIS PROPERTY BE DECLARED FREE OF THE RESTRICTION

The use limitation Bossier Center placed in Patten’s deed to the small strip of property was not pursuant to an overall plan or scheme in connection with the development of the larger tract. It does not fall within the category of a building restriction as approved in Queensborough, supra, and the long line of subsequent jurisprudence and the jurisprudential rules developed which were codified by Act. No. 170 of 1977 and set forth in LSA-C.C. arts. 775-783. Building restrictions are defined in LSA-C.C. art. 775 as follows:

“Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements. The plan must be feasible and capable of being preserved.”

Use limitations which are not created pursuant to a general plan have been construed to be predial servitudes which are enforceable against third persons who acquire the property in a deed subsequent to the deed wherein the servitude was created. In the case of McGuffy v. Weil, 240 La. 758, 125 So.2d 154 (1960), a use restriction applicable to only one lot was construed to be a C.C. art. 776 servitude “or real obligation running with the land which is binding on plaintiff herein”. The deed wherein this plaintiff acquired the property contained no restrictions. The deed to plaintiff’s ancestor in title contained the following language:

“That said property shall only be used for residential purposes and that all dwellings erected * * * must be so erected so as to face Stubbs Place (or Avenue).
It is understood that the foregoing restriction as to the use of the lastly described property shall constitute a covenant running with the land and shall be binding upon appearer and all subsequent owners thereof howsoever they may acquire.” Id. at 156.

In the recent case of Richard v. Broussard, 378 So.2d 959 (La.App.3d Cir. 1979), the following restriction was contained in the deed to plaintiff’s ancestor in title but it was not in plaintiff’s deed of acquisition:

“It is understood and agreed by and between the parties to this sale that the . property shall be and remain residential property; that this stipulation shall be valid and binding upon the executors, administrators, heirs, successors and [word indistinct] of purchaser, and shall be enforced by the proper legal action.” Id. at 963.

This use limitation was construed to create a predial servitude within the provisions of the new code articles on servitudes No. 731, 733, and 650 which were included within Act. No. 154 of 1977. The use restriction was enforced.

The use limitations incorporated in the deeds reviewed in McGuffy and Richard, supra, contained language that clearly expressed the intent that the restriction was upon the property conveyed and was to follow it into the hands of subsequent transferees.

The limitation which we are here called upon to construe is “Vendee agrees not to erect any structure without written consent of Vendor.” This provision expresses the intent that it is an agreement between the parties to the deed and does not indicate that it is to have an effect upon the use of the land after the vendee is divested of ownership.

In Cambais v. Douglas, 167 La. 791, 120 So. 369 (1929), the deed wherein plaintiff’s ancestor in title acquired the property contained the requirement that the purchaser:

“Erect on said premises a single residence.” Id., 120 So. at 370.

The court interpreted the provision to create only a personal obligation applicable only to plaintiff’s ancestor in title who agreed to it:

“An obligation to build a house is a personal one only, and does not bind the subsequent transferees of the property, who are not parties to the agreement.” Id. at 371.

The court in LeBlanc v. Palmisano, 43 So.2d 263 (Orl.App.1949), held provisions in the building restrictions requiring consent of the subdivision creator for commercial use of any of the property not to be a covenant running with the land. The use limitation there construed provided:

“No commercial property shall be permitted to be constructed or occupied as such on this property except by written consent of the Claiborne Avenue Extension Realty Company, Inc.” Id. at 264.

The court stated:

“In our opinion, however, a casual reading of this restriction indicates that it is not a covenant running with the land, but is a personal covenant between the vendor, Claiborne Avenue Extension Realty Company, Inc., and Henry M. Rahders, the predecessor in title of defendants.” Id. at 265.

The court observed:

“Whether or not certain property in this subdivision shall be used for commercial purposes is contingent entirely upon the caprice of the Claiborne Avenue Realty Company, Inc., and, therefore, this covenant did not run with the land for the benefit of the purchasers or grantees of property in this subdivision.” Id. at 266.

The intervenor personally obligated himself to erect no structures upon the premises without the consent of his vendor and he must comply with this use restriction. B & B, the lessee, “Possesses for and in the name of his lessor”, LSA-C.C.P. art. 3656, and acquires its rights subject to the use limitation imposed upon its lessor. See Richard Taylor v. P. C. Mohan, 19 La.Ann. 324 (1867), wherein a lessee of a canal was required to use the canal subject to a foot bridge across it which its lessor had authorized the City of New Orleans to construct before the lease was executed.

See also Leonard v. Lavigne, 245 La. 1004, 162 So.2d 341 (1964); Wolfe v. North Shreveport Development Company, 228 So.2d 148 (La.App.2d Cir. 1969), wherein the concept was recognized that the lessee acquires from the lessor only personal rights. The personal rights acquired by the lessee can be no greater than those of his lessor and are subject to all limitations affecting the lessor.

We conclude that the restriction contained in intervenor’s deed is binding upon him and his lessee but is not a predial servitude or any other form of covenant running with the land. The trial court was correct in rejecting appellants’ demand for damages and enjoining the construction of the sign.

We amend the judgment appealed from by adding the following paragraph:

IT IS FURTHER ORDERED that the following provision “Vendee agrees not to erect any structure without the written consent of the vendor’-’ contained in the deed from Bossier Center, Inc. to Dewitt H. Patten, recorded under Date Registry No. 317064 of the conveyance records of Bossier Parish is not a predial servitude or any other form of covenant running with the land.

As AMENDED the judgment is AFFIRMED at appellants’ cost.

      . LSA-C.C. art. ll-“Individuals can not by their conventions, derogate from the force of laws made for the preservation of public order or good morals.
      But in all cases in which it is not expressly or impliedly prohibited, they can renounce what the law has established in their favor, when the renunciation does not affect the rights of others, and is not contrary to the public good.”

      . LSA-C.C. art. 12-“Whatever is done in contravention of a prohibitory law, is void, although the nullity be not formally directed.”


author: PRICE, Judge.

text:
    Lillie Grant RAMEY, in her Capacity as Tutrix for Minors, etc., Plaintiff-Appellant, v. CITY OF MONROE et al., Defendants-Appellees. Connie VANCE and Belinda Sue Lewis, Plaintiffs-Appellants, v. CITY OF MONROE et al., Defendants-Appellees. Irma WRIGHT, in her Capacity as Tutrix for Minor, Sonja Shevetta Wright, Plaintiff-Appellant, v. CITY OF MONROE et al., Defendants-Appellees.
    Nos. 14245-14247.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.
    En Banc. Rehearing Denied Sept. 29, 1980.
    Guerriero & Placke by Allan L. Placke, Monroe, for Lillie Grant Ramey, Connie Vance and Belinda Sue Lewis, plaintiffs-appellants.
    DeCelle & Hansen by Malcolm DeCelle, Jr, Monroe, for plaintiff-appellant, Irma Wright.

      Thomas V. Gardner, Monroe, for defendants-appellees.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

In these consolidated suits plaintiffs sought damages arising from a one-car accident which occurred while the car was under an emergency escort led by the Monroe City Police. At the close of plaintiffs’ case the trial court granted defendants’ motion for directed verdict. Plaintiffs appeal and we affirm.

At about 11:30 p. m. on the night of the accident, one of the occupants of the vehicle involved, Mildred Hollins, had been stabbed in an altercation at a bar on DeSiard Street in Monroe. She was placed in the vehicle by the other occupants and the driver headed west on DeSiard Street enroute to the hospital.

Officer Mickey Watts of the Monroe Police Department observed plaintiffs’ vehicle traveling down DeSiard Street at a high rate of speed and intercepted it as it stopped at a railroad crossing to allow a train to pass. As Watts approached the vehicle one of the passengers, Stevie Wright, got out and informed the officer that Ms. Hollins had been stabbed and was being transported to the hospital. Watts instructed Wright to follow him, pulled in front of plaintiffs’ vehicle, and continued in a westerly direction on DeSiard with his emergency lights on. Watts contacted Officer Herbert Otwell by radio who pulled his vehicle behind plaintiffs’ vehicle and began following with his emergency lights on.

The procession stopped at the intersection of DeSiard and South Grand Street and turned left, proceeding south on South Grand. South Grand is a two-lane street paralleling the Ouachita River with a posted speed limit of 35 m. p. h. There was little or no traffic on either street as the procession passed.

As the procession was traveling down South Grand, the driver of plaintiffs’ vehicle lost control entering a curve and skidded off the road striking a tree. Mrs. Hollins and Irma Wright, another passenger, were killed. Plaintiffs, Connie Vance and Belinda Sue Lewis, were seriously injured.

Officer Watts’ testified he had maintained a consistent speed of between 45 to 50 m. p. h. as he traveled along South Grand. He contends he slowed slightly as he entered the curve. He noticed the escorted vehicle had lagged behind somewhat and had accelerated rapidly a short distance before reaching the curve in an apparent effort to catch up with the police car. Although the driver of plaintiffs’ vehicle did not testify, Watts’ version of the accident was generally corroborated by the other witnesses.

At the conclusion of plaintiffs’ case, defendants moved for a directed verdict. The motion was granted by the court without explanation.

Plaintiffs appeal contending the court erred in granting defendant’s motion since they had established a prima facie case of negligence on the part of Officer Watts. They contend that one who volunteers to aid another in distress must use reasonable care in providing assistance and that Watts breached this duty by leading plaintiffs’ vehicle into the curve at an unsafe speed.

In LeJeune v. Allstate Ins. Co., 365 So.2d 471 (La.1978), the court found the duty of a police officer in escorting a funeral procession was to provide the escorted vehicles a safe, unobstructed path of travel. Although the present case involves an escort provided in an emergency situation, we find the basic purpose of such an escort is the same-to allow the escorted vehicle to reach its destination quickly by clearing the path of travel.

While it is true that one who provides assistance to another in distress owes that person a duty of reasonable care, Officer Watts did not assume control of plaintiffs’ vehicle, and thereby did not become responsible for the negligence of the driver of the escorted vehicle.

Further, the evidence does not show the speed at which Officer Watts was proceeding was unreasonable or an unsafe •speed under. the emergency circumstances which existed.

Plaintiffs did not call the driver of their automobile as a witness to offer an explanation for his failure to follow the police vehicle at a consistent speed rather than lagging far behind and then accelerating rapidly to catch up, or to explain why he lost control of the automobile. Plaintiffs failed to show by a preponderance of the evidence that excessive speed of the police unit made it impossible for the driver to follow at a consistent interval.

We find no error in the trial court’s apparent conclusion that the negligence of the plaintiffs’ driver was the sole proximate cause of the accident.

The judgments are affirmed at appellants’ costs.


author: FRED W. JONES, Judge. PRICE, Judge,

text:
    Samuel L. LIEBER, Plaintiff-Appellant, v. Durward RUST, Defendant-Appellee.
    No. 14249.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.
    En Banc. Rehearing Denied Sept. 29,1980.

      Kennedy, Goodman & Donovan by Frank S. Kennedy, Rellis P. Godfrey, Shreveport, for plaintiff-appellant.
    Hargrove, Guyton, Ramey & Barlow by Joseph L. Hargrove, Jr., Joseph L. Shea, Jr., Shreveport, for defendant-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Judge.

Samuel L. Lieber filed suit to enjoin Dur-ward Rust, an adjoining lot owner in the Willow Ridge Subdivision, Shreveport, Louisiana, from completing construction of a pier and boathouse on Cross Lake and to compel removal of the portion already constructed. From a judgment rejecting his demands for a permanent injunction and a mandatory injunction, plaintiff appealed, contending in substance that the trial court erred in the following respects:

(1) In holding that the subdivision restrictions did not prohibit the construction of defendant’s pier and boathouse.
(2) In holding that the proposed location of defendant’s pier and boathouse did not violate Ordinance No. 40 of 1964 of the City of Shreveport.
(3) In refusing to hold that plaintiff had a servitude of view which was obstructed by defendant’s pier and boathouse.
(4) In refusing to hold that miscellaneous civil code articles prohibited the construction of defendant’s pier and boathouse.

We affirm the judgment.

The Willow Ridge Subdivision, Unit 2, was accepted by the City of Shreveport in 1975 and a plat thereof was filed in the conveyance records of Caddo Parish, Louisiana, together with a “Declaration of Covenants, Conditions and Restrictions” affecting all conveyances of lots in the subdivision unit. These lots bordered on Cross Lake, with the lines of each lot extending on the lake side to the 172 foot contour line which is the point at which the City of Shreveport’s ownership of the bed of Cross Lake begins.

Lieber acquired Lot 1 of the subdivision unit in 1975. Rust bought Lot 2, lying to the south of and adjoining Lieber’s lot, in 1976. Subsequently, Rust purchased a strip south of and adjacent to his lot, described as 35 feet off of Lot 3.

In August 1978 Rust secured a permit from the Cross Lake Patrol of the Shreveport Department of Public Utilities for the construction of a pier and boathouse on the lake. The location of these proposed improvements was staked out by the Patrol Superintendent. Construction began, but was halted when this suit was filed.

In denying plaintiff’s demands for injunc-tive relief, the trial judge concluded that the pertinent subdivision restrictions do not apply because they are too vague to be enforceable; that the section of the city ordinance dealing with the location of piers on Cross Lake is so ambiguous that its interpretation must yield to administrative practice; and that there is no authority for the issuance of an injunction to protect a right to a scenic view.

We now discuss the substantial legal issues raised by this appeal.

Applicability of Subdivision Restrictions

The record shows that Rust’s proposed pier and boathouse are located below the 172 foot contour line, in the bed of the city-owned Cross Lake, entirely off the property comprising Willow Ridge, Unit 2.

However, appellant argues that appellee has violated subdivision restrictions because he did not first submit his plans to the Architectural Control Committee for approval as to harmony of external design and location in relation to surrounding structures. It is his contention that these are both “building” and “use” restrictions as explained in Smith v. DeVincent, 322 So.2d 257 (La.App. 2d Cir. 1975). He urges that these restrictions prohibit the “use” of one’s lot in the subdivision for access to Cross Lake for the “building” therein of a pier and boathouse unless the plans are first approved by the described committee.

In the Smith case the owner of a subdivision lot sought to enjoin other lot owners in the subdivision from placing and maintaining mobile homes on their respective lots. This court found that the restriction in question manifested the subdivider’s intent that the residential structure on each lot be something other than a self-contained mobile home, and classified this as a “use” restriction. Obviously, that case is factually distinguishable from this case.

Dealing directly with the question presented to us, it was held in Begnaud v. Hill, 109 So.2d 562 (La.App. 1st Cir. 1959) that the purchasers of lots in a subdivision covered by restrictive covenants could not enforce those covenants against property which their vendor had specifically excluded from the subdivision. Also see Lillard v. Jet Homes, Inc., 129 So.2d 109 (La.App. 2d Cir. 1961).

Consistent with this jurisprudence, we hold that the restrictions imposed on the lots in Willow Ridge Subdivision, Unit 2, do not apply to city-owned property in the bed of Cross Lake. Consequently, Rust did not violate those restrictions by starting the construction of his pier and boathouse without first securing approval from the subdivision Architectural Control Committee.

This holding pretermits the necessity of our considering whether the involved restriction is too vague to be enforceable.

However, in connection with this question the appellant argues that Rust is estopped to urge the invalidity of the building restrictions pertaining to piers and boathouses since he purchased his property subject to those restrictions, serves as a member of the Architectural Control Committee for the subdivision and abided by those restrictions in constructing his dwelling in the subdivision. The answer to this argument is that Rust is urging the in applicability of the restrictions and not their invalidity.

In addition, on the question of estop-pel, there are three necessary elements before this doctrine becomes applicable: a representation by conduct or words, justifiable reliance and a change in position to one’s detriment because of the reliance. See Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975). We find none of those elements present in this case.

For these reasons we find no merit in the plea of estoppel.

Violation of City Ordinance

Ordinance No. 40 of 1964 of the City of Shreveport grants to the City Department of Public Utilities “full supervision and control of all improvements and developments on Cross Lake water reservoir and within the contour line, below the 172 foot mean gulf level,” including the authority to issue permits for construction on the lake bed. Pertinent portions of Section 3 of the cited ordinance provide:

“The property owners adjacent to Cross Lake shall have the exclusive right to the use of the area which abuts their property and lies between the 172 foot contour line and the water level of Cross Lake, providing that all rules and regulations, restrictions and reservations, including waiver of any claims against the City of Shreveport, Louisiana, for injuries or damages, are agreed to by said property owners.
“Piers, boat houses and docks for the exclusive use of their owners will be authorized within the 172 foot contour line by permit only. These structures will be subject to the approval of the Department of Public Utilities and must be maintained in good repair.
“Piers and wharves, stationary and/or floating, and other facilities extending into Cross Lake reservoir will be limited to a maxium (sic) total length of not more than 300 feet, perpendicular to the water line, from the 172 foot contour line.

The trial judge ascertained that the Lie-ber and Rust lots bordered on a concave or “inside curve” of the lake. Since it is not possible to determine what is “perpendicular” to a curved water line, he reasoned that this particular language contained in the ordinance is ambiguous. Therefore, he admitted the testimony of former Commissioner of Public Utilities (1962-1970), L. Calhoun Allen, Jr. “to determine the intent of the ordinance.” Finding that this did not clear up the ambiguity, the trial judge concluded:

“It is my considered opinion that when the entire area is considered by this aerial photo rather than the single picture of the location of plaintiff’s property as judged by the interior lot lines, the solution proposed and put into practice by the City of Shreveport seems reasonable, or at least as reasonable as the plan submitted by plaintiff as P-15.”

Interestingly enough, neither appellant nor appellee agreed with the trial judge that the cited section of the ordinance is ambiguous.

Appellant argues that under the quoted city ordinance a subdivision lot owner is granted the exclusive use of that area abutting his lot lying between the 172 foot contour line and the actual water level of Cross Lake, with the side boundaries of the exclusive use area determined by extending side lot lines to the water level; that this exclusive use is limited to the construction of piers and boathouses in accordance with the instructions in the ordinance; that the direction of the pier is to be perpendicular to the 172 foot contour line since the water level follows the surrounding land; that to permit construction of piers in a direction other than perpendicular to the 172 foot contour line would invade the exclusive use area of adjoining property owners; and that the court should accept the testimony of former Commissioner Allen who stated that the intent of the ordinance was to prohibit the building of piers projecting at the angle of appellee’s into Cross Lake.

On the other hand, appellee takes the position that the section of the ordinance containing the clause “perpendicular to the water line” simply defines the manner in which the maximum total length of the pier is to be measured and does not purport to fix a direction for pier construction into the lake, since a constantly changing water line would render this impractical; that the established practice of city employees to locate piers in such a manner as to accommodate all interested parties is a reasonable implementation of the ordinance; that the “exclusive use” area is often nonexistent since the water level is frequently up to the 172 foot contour line; that this “exclusive use” area, even when in existence, is subject to the right of the City to grant permits for the construction of piers and boathouses; that since the language of the ordinance is unambiguous, testimony concerning its meaning was inadmissible; and, even if the quoted language is ambiguous, former Commissioner Allen could only relate that which factually transpired at the time of the enactment of the ordinance rather than give an opinion as to its meaning.

First, with reference to appellant’s contention that his “exclusive right” area was transgressed by appellee’s pier construction, it should be noted that under the terms of the subject ordinance the “exclusive right” area is restricted to the land abutting one’s lot and lying between the 172 foot contour line and the water level. In this case appellee’s pier was to extend from his retaining wall out into Cross Lake. The record, including an aerial photograph of the involved lake property, indicated that appellee’s retaining wall also marked the water line or water level. Consequently, there was no evidence that appellee’s proposed construction infringed upon any of appellant’s “exclusive right” area.

Next, we agree with the trial judge that the paragraph of Ordinance No. 40 of 1964 which provides that piers extending into Cross Lake will be limited to a maximum “total length of not more than 300 feet, perpendicular to the water line, from the 172 foot contour line” is ambiguous. It is impossible to determine from this language whether the City of Shreveport is purporting to simply regulate the length of piers or whether it also contemplates specifying the direction of those piers into the lake. If the latter interpretation is accepted, how does one lay out a pier which runs perpendicular or at a right angle from a curved water line, as obtains in this case?

When a law is ambiguous we are mandated by La. Civil Code Art. 18 to consider “the reason and spirit of it, or the cause which induced the Legislature to enact it.”

The jurisprudence of this state recognizes that statutory rules of construction of laws are as applicable to municipal ordinances as to state statutes. Louisiana Television Broadcasting v. Total C.A.T.V., 341 So.2d 1183 (La.App. 1st Cir. 1977); Gautreau v. Board of Electrical Examiners, 167 So.2d 425 (La.App. 1st Cir. 1964).

The following pertinent comments concerning interpretation of an ambiguous statute are found in Authement v. Davidson, 366 So.2d 986 (La.App. 1st Cir. 1978):

“It is not one individual legislator who enacts a statute, but the entire legislative branch which acts as a whole. Thus, it is the duty of the court to ascertain the legislative intent, as a whole, in order to construe a statute, to accomplish the purposes for which it was enacted. .
“. . . It is not the opinion of the witness — legislator as to what the legislature intended that is admissible, but rather the factual evidence considered by the legislature in enacting legislation. . . ”

Also see Ethyl Corp. v. Collector of Revenue, 351 So.2d 1290 (La.App. 1st Cir. 1977).

In view of this jurisprudence the testimony of former Commissioner Allen giving his interpretation of the ambiguous language in the ordinance was inadmissible. However, since the trial judge stated that this testimony failed to resolve the ambiguity, appellee was not prejudiced.

Since we are without the benefit of admissible evidence concerning the legislative history of the ordinance in question, we now turn to another source for statutory interpretation-the construction consistently given to the language by those charged with the duty of the administrative application. Our authority for this approach is the holding of Ouachita Parish School Board v. Ouachita, 362 So.2d 1138 (La.App. 2d Cir. 1978) that:

“The doctrine of contemporaneous construction is a well recognized tool of statutory interpretation. It provides that when an administrative body has over a long period of time placed an interpretation upon a legislative enactment, the interpretation of said body is entitled to great weight in the determination of the meaning of the legislative enactment.”

Illustrative of prior cases recognizing this principle of statutory construction are Smith v. City of Alexandria, 300 So.2d 561 (La.App. 3rd Cir. 1974); Gautreau v. Board of Electrical Examiners, supra; Hester v. Louisiana Tax Commission, 227 La. 1022, 81 So.2d 381 (1955).

As previously explained, Ordinance No. 40 of 1964 vested in the Shreveport Department of Public Utilities supervision over Cross Lake, including control over the location of piers and boathouses. After adoption of the ordinance applications for permits to construct improvements of this nature in the lake were submitted to the Superintendent of the Cross Lake Patrol. Upon his approval the permits were transmitted by him to the Commissioner of Public Utilities for review and either confirmation or rejection.

R. W. Calhoun, Superintendent of the Cross Lake Patrol, testified that he had issued some 50 permits for construction of piers and boathouses in the lake. The principal guideline for location' of these improvements was the administrative goal of attempting to “accommodate everybody on the lake-depending upon the shape of his lot.” As Calhoun pointed out, a number of the lots bordering on the lake had curved boundary lines. Running piers straight out into the lake from these lots would prevent access to the water from other lots. Therefore, the comprehensive scheme considered when locating each pier revolved around the effort to assure equal access to the lake by all lots bordering on the lake bed. Calhoun stated that this established administrative practice was followed when he approved the location of the proposed pier and boathouse for appellee.

Billy J. Guin, who as Commissioner of Public Utilities was Calhoun’s superior, corroborated his employee’s testimony relative to the described administrative practice which was designed to “accommodate all lot owners in the area.” According to Guin:

“The criteria that I used, and the concept of this design, was to try to create equity as between the owners of the adjacent lots around that cove. Each one should have access to the water, whereby he could build a pier.”

Even former Commissioner Allen acknowledged that he had approved a number of permits in which piers were not perpendicular to the water line or contour line because of the shape of the lot lines bordering the lake.

We find, therefore, that those city officials and employees charged with the supervision of Cross Lake under Ordinance No. 40 of 1964 had consistently construed the clause containing the phrase “perpendicular to the water line” to govern the length only of piers and not their direction. It follows, logically, that since the ordinance does not specify the direction in which a pier must extend into Cross Lake, the location of appellee’s pier does not violate the ordinance. Consequently, the conclusion of the trial judge to this effect is correct.

Obstruction of Servitude of View

Appellant contends that his lot enjoys a predial servitude of view under La. Civil Code Article 716 (now La. CC Art. 701) which is or will be obstructed by appel-lee’s pier and boathouse.

We find no authority for holding that the scope of a servitude of view is as expansive as appellant claims, i. e., the right to an entirely unobstructed view. However, assuming that appellant’s position is correct, there is no evidence in the record to show that the claimed servitude was ever created.

Appellant concedes that the servitude of view was not established by title, but argues that it arose by “destination of the owner” under La. CC Art. 767 (now La. CC Art. 741). Yet, the language of the article itself militates against appellant’s position. In this case it is obvious that appellant’s ancestors in title never owned both the property where his lot is situated and the bed of Cross Lake on which appel-lee proposes to locate his pier. Therefore, his predecessors in title had no authority to establish a servitude of view in favor of appellant’s lot across the alleged subservient estate, i. e., Cross Lake.

In a factually similar case, Haynes v. Smith, 85 So.2d 326 (La.App. 2d Cir. 1956), the court rejected plaintiff’s contention that his view over Cross Lake was impaired by defendant’s construction of a commercial boat shed with the observation that this presented “no foundation nor justification for relief either in law or fact.”

For these reasons we hold that appellant has failed to prove that he is entitled to enjoin the construction of appellee’s pier and boathouse because they obstruct a servitude of view.

Applicability of Miscellaneous Civil Code Articles

Appellant asserts that, if for no other reason, he is entitled to injunctive relief under the provisions of one or more civil code articles in addition to the article dealing with a servitude of view.

We find no merit in this argument. First, Article 667 has been limited by the jurisprudence to the conducting of ultrahaz-ardous activities. See Charia v. Stanley, 359 So.2d 291 (La.App. 4th Cir. 1978); Hero Lands v. Texaco, 310 So.2d 93 (La.1975). The article is, therefore, inapplicable to this case.

Next, Article 673 was repealed in 1976, some time before appellee began construction of his pier. It is also obviously inapplicable.

Last, appellee’s pier does not constitute a “projection beyond the boundary of his estate” within the meaning of Article 697. Consequently, this article is also inapplicable.

Conclusion

For the reasons set forth, we affirm the judgment of the trial judge at appellant’s cost.

ON APPLICATION FOR REHEARING

Before PRICE, MARVIN, JASPER E. JONES, and FRED W. JONES, JR., JJ.

PRICE, Judge,

dissenting.

I respectfully dissent from the refusal to grant a rehearing in this matter. The original opinion of this court holds that a developer of lakeside property cannot impose restrictive covenants to control construction of piers and boathouses extending into the publicly owned waters adjacent to the subdivision. This ruling will adversely affect the orderly development of waterfront subdivisions and is not in the best interest of the public.

The Begnaurd and Lillard cases cited as support for this holding are not analogous as they do not concern the use of adjacent public property by subdivision lot owners, but to the contrary were concerned with the power of a subdivider to impose restrictions on other privately owned property which was excluded from the tract being subdivided. The distinguishing factor is that the defendant lot owner in this instance derives whatever right he has to use of the lakefront water belonging to the public solely through his ownership of abutting property.

Section 9 of the subdivision restrictions in question clearly require written approval from the Architectural Control Committee over and above compliance with the appropriate ordinances of the city of Shreveport before any construction of a pier or boathouse is extended from a lot into the lake.

No such approval was sought in this instance. Therefore, this court should grant a rehearing to at least resolve the issue as to whether the restriction is too vague to be enforceable as held by the trial court.

      . No building, fence, wall, or other structure shall be commenced, erected or maintained upon the properties, nor shall any exterior addition to or change or alteration therein be made until the plans and specifications showing the nature, kind, shape, height, materials, and location of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Architectural Control Committee, composed of three (3) or more representatives appointed by “Declarant.”
      Section 9. Boat Houses and Constructions Extending into the Lake: Boat houses, fishing piers and other construction extending into Cross Lake shall be permitted to exist on, from, or connected to any lot with prior written approval of the Architectural Control Committee subject however to full compliance with all ordinances and regulations of the City of Shreveport.

      . See Lake Forest, Inc. et al. v. Drury et al., 352 So.2d 305 (La.App. 4th Cir. 1977) and 4626 Corp. v. Merriam, 329 So.2d 885 (La.App. 1st Cir. 1976).

      . Servitudes of view are of two kinds; one which confers the right of full view with the power of preventing one’s neighbor from raising any buildings which obstruct it, and the other which gives an owner the right of preventing his neighbor from having any view or lights on the side on which their estates unite, or that he exercise these servitudes according to his title.

      . The destination made by the owner is equivalent to title with respect to continuous apparent servitudes.
      By destination is meant the relation established between two immovables by the owner of both, which would constitute a servitude if the two immovables belonged to two different owners.

      .Art. 667. Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.
      Art. 673. He who builds either above or below his soil, adjoining the property of his neighbor, is bound to build in a perpendicular line.
      Art. 697 (now La. CC art. 663). No one shall build galleries, balconies or other projections on the border of an estate, so that they extend beyond the boundary line which separates it from the adjoining estate.