Adair v. Chrysler
This text of 212 So. 2d 552 (Adair v. Chrysler) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
This appeal by Robert E. Chrysler and his wife is from a judgment in favor of Bertha Mae P. Adair granting a permanent injunction enjoining appellants from maintaining a cyclone fence and ordering its removal.
The parties in interest herein are neighbors and owners of adjacent lots in Bolinger Hills Subdivision, Unit No. 1 of Caddo Parish. All property in the subdivision is subject to certain “Protective Covenants for Bolinger Hills Subdivision, Caddo Parish”, an instrument recorded in Conveyance Book [553]*553866, page 769.1 The construction of the fence contrary to the expressed provisions of such covenants is not denied, but the action is defended on the ground that such restrictions were no longer legally effective.-
Respondents contend there have been multiple violations of the stated restrictive covenants sufficient to establish the abandonment of the minimum setback restriction complained of by plaintiff. Further, appellants argue that plaintiff did not exercise the remedy at hand within the time provided by the restrictive covenants, and therefore, the action of respondent should not be considered as violating the restrictions.
A statement of the principles of law particularly applicable herein are found in Guyton v. Yancey, 240 La. 794, 125 So.2d 365 (1961) wherein Justice Hamiter was confronted with whether, vel non, the restrictive covenants had been so disregarded and abandoned as to constitute a subversion of the original scheme of the East Ridge Subdivision of Caddo Parish as to result in a substantial change in the neighborhood. Therein he recognized that acquiescence as. to defeat the enforcement of a restrictive covenant depends upon the circumstances, of each case and the character and material-.ity of the permitted breach. The court quoted with approval the following extract from 14 Am.Jur. § 295-298:
“ ‘ * * * Notwithstanding acquiescence in other violations of a building line restriction, an owner of property will not be denied equitable relief to enforce it if the restriction can be shown to be of value to him and such breaches have not resulted in a subversion of the original scheme of development resulting in a substantial, if not an entire, change in the neighborhood.’ ” [125 So.2d 365, 368]
Other violations disclosed by photographs evidence two single upright fence posts, some barb-wire enclosures and a number of small structures housing individual water wells. All property owners of the subdivision are supplied with water from their own water wells and the well covers or well houses necessarily must have the express or tacit consent of the committee charged with architectural control. See Footnote 1, “D-2”, supra. Such small structures afford protection to the owner’s water supply against severe weather. The other violations referred to by appellants appear to be of a minor nature.
We likewise find no merit in the contention of appellants that relief by in[554]*554junction should have been sought while the fence was being constructed. No prescriptive plea has been presented.
Finding no error in the judgment from which defendants have appealed, it is affirmed at appellants’ cost.
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212 So. 2d 552, 1968 La. App. LEXIS 4902, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adair-v-chrysler-lactapp-1968.