Cane River Needle Art v. Reon, Inc.

335 So. 2d 751, 1976 La. App. LEXIS 4478
CourtLouisiana Court of Appeal
DecidedJuly 7, 1976
Docket5468
StatusPublished
Cited by5 cases

This text of 335 So. 2d 751 (Cane River Needle Art v. Reon, Inc.) 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.

Bluebook
Cane River Needle Art v. Reon, Inc., 335 So. 2d 751, 1976 La. App. LEXIS 4478 (La. Ct. App. 1976).

Opinion

335 So.2d 751 (1976)

CANE RIVER NEEDLE ART et al., Plaintiffs-Appellees,
v.
REON, INC., et al., Defendants-Appellants.

No. 5468.

Court of Appeal of Louisiana, Third Circuit.

July 7, 1976.
Rehearings Denied August 18, 1976.

*752 Kelly & Ware by Richard Ware, Natchitoches, for defendants-appellants.

G. F. Thomas, Jr., Natchitoches, for plaintiffs-appellees.

Before CULPEPPER, PETERS and HOOD, JJ.

PETERS, Judge ad hoc.

This suit arose out of the destruction of a party wall that existed between a building leased by plaintiffs and one owned by defendant Reon, Inc.

Plaintiffs Wilhelmina D. Jolley and Sally P. Griffin, partners in Cane River Needle Art, leased a building from W. D. Carter for operation of a crewel and needlepoint shop. Carter had purchased the property from W. H. Franklin, Jr. in 1969 and the act of sale recited that the "western wall of the Carter Jewelry Store (plaintiffs' premises) shall be and remain a *753 party wall between the parties hereto." At the time of the sale to Carter, Franklin retained the adjacent parcel of land along with the building situated thereon; this building was attached to the Carter building at the party wall. In 1974, Franklin sold the remainder of the property to Reon, Inc., and the act of sale from Franklin to Reon, Inc. recited that the wall between Carter's building and the building being purchased by Reon, Inc. was a party wall.

Reon, Inc. purchased the property for construction of a parking lot to serve an establishment it owned adjacent to the Reon and Carter properties. Reon, Inc. attempted to purchase Carter's property so it could tear down his building, as well as their own, and make one large parking lot. The location of Carter's building threatened to hamper the plans of Reon, Inc. so Reon, Inc. wanted Carter's building removed. Carter declined to sell his property. Reon, Inc. then proceeded to begin demolition of its building in March of 1975. James Rex Fair, president of Reon, Inc. and a defendant in this suit, contracted with Jerry Cook to demolish the building. Several days after demolition began, the workers doing the demolition discovered that the party wall consisted of only a single layer of bricks and the north and south walls of the Reon building were tied in to the party wall. The north and south walls of the Carter building were not connected to the party wall. The roof of the Carter building was attached to the Reon building in only two places. As one witness put it, the Carter building was just "tacked on" to the Reon building. The workers informed Mr. Fair they believed the roof of the Carter building would collapse if demolition of the Reon building continued.

Subsequently, Mr. Fair, Mr. Carter's attorney, and several other people inspected the buildings. Mr. Fair told Carter's attorney he felt the roof of the Carter building might fall. Carter's attorney then advised Carter he should ask his tenants to vacate the premises due to the dangerous condition of the building. Plaintiffs moved out and ceased operating their business. This occurred about the middle of March, 1975, and Fair stopped the demolition.

Nothing further was done until April, when Carter hired a carpenter to build a temporary wooden wall inside his building, about four inches east of the party wall, and plaintiffs moved back into their shop on April 22. At the end of June, demolition of the Reon building was resumed with a bulldozer and truck. At some point during the renewed demolition the party wall was struck by the bulldozer and knocked to the ground. In the course of the renewed demolition it was difficult for plaintiffs to operate their business due to frequent disturbances. The walls of their shop were shaken several times; their electrical outlets were disconnected; large beams from the Reon building were thrown into the parking area in front of plaintiff's shop; after the brick party wall collapsed, the shop became very hot because only the temporary wall remained and water flowed into the shop when it rained. Plaintiffs eventually moved their business to another location.

Plaintiffs filed suit for damages on April 15, 1975. A supplemental petition setting forth additional grounds for damages was filed on July 14, 1975. After trial, the lower court rendered judgment in favor of the partnership for $1500.00. In addition, judgment was rendered in favor of Wilhelmina D. Jolley for $2,000.00 and in favor of Sally P. Griffin for $2,000.00. The court found that James Rex Fair and Reon, Inc. were solidarily liable to all plaintiffs for these damages. Defendants have appealed.

Defendants present three contentions:

(1) That Reon, Inc. did nothing in demolishing its building that it had no legal right to do.

*754 (2) That James Rex Fair at all times acted as an agent for Reon, Inc. and therefore assumed no personal liability, and

(3) That, in any event, the lower court's award of damages is excessive.

I. LIABILITY OF REON, INC.

As the basis for its argument that it acted within its rights, Reon, Inc. relies on Heine v. Merrick, 41 La.Ann. 194, 5 So. 760 (1894). Reon points to language in the Heine opinion indicating that a co-proprietor, if he wishes to raise the height of a common wall, may disturb the enjoyment of the wall by the other co-proprietor and may enter upon the co-proprietor's premises as is necessary for raising the height of the wall. Defendant argues that a coproprietor who wishes to demolish his building which is attached to a party wall has a right to cause such disturbance to his neighbor as is necessary to achieve the demolition of his building. We have no quarrel with this argument, but find that Reon, Inc. went beyond what was allowed by law. After finding that a co-proprietor could with impunity cause inconvenience to his neighbor in rebuilding a party wall, the court in Heine went on to say this:

"But, on the other hand, plaintiffs are responsible for every exaggeration of these necessary damages, which, by any diligence, they could have prevented. They were bound, by every means in their power, to reduce to a minimum the injury and inconvenience occasioned to their neighbor; to occupy his property to the least extent and for the shortest time consistent with the exercise of their right; and to hasten, by all practical means, the completion of the wall and the restoration of the neighbor to the full enjoyment of his property.
"They were, moreover, bound, at their peril, to replace the neighbor, at the end of the work, in a position equal in every respect to that which he occupied in the beginning, and to furnish him a wall fit and adequate to support his building without injury."

We note initially that plaintiffs, although not the owners of the premises damaged, are entitled to damages for unlawful disturbance of their possession of the leased premises. LSA-C.C. 2703; Gettwerth v. Heddon, 30 La.Ann. 30 (1878); Esmile v. Violet Trapping Co., 187 La. 728, 175 So. 471 (1937). The present case is distinguished from the recent case of Desormeaux v. Central Industries, Inc., 333 So.2d 431 (3rd Cir. 1976) in which we applied the general rule that a person who suffers damage only because of his contractual relationship with the victim of a tort has no cause of action against the tort feasor. The present case is distinguished from Desormeaux in that LSA-C.C. 2703 expressly provides that a lessee has a cause of action against a third person tort feasor who disturbs the possession of the lessee.

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