John G. W. Wong, Jonathan Wong and Christopher Michael Wong VS Alley Square I, LLC and Darryl D. Smith
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT K/i/ NLJMBER 2013 CA 1958 JOHN G. W. WONG, JONATHAN WONG AND CHRISTOPHER WONG VERSUS ALLEY SQUARE I, L.L.C., DARRYL D. SMITH AND DARRYL D. SMITH MANAGEMENT, INC. Judgment Rendered: AY 0 2 2014 Appealed from the 215t Judicial District Court In and for the Parish of Tangipahoa, Louisiana Trial Court Number 2007- 0004072 Honarable Robert H. Morrison, III, Judge Douglas T. Curet Attorneys for Appellants Hammond, LA Plaintiffs John G. W. Wong, et al. Nita J. R. Gorrell Attorney for Appellees Defendants Alley Square I, L.L.C., Hammond, LA Darryl Smith, and Danyl D. Smith Management, Inc. BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, JJ. l e- f0' l WELCH, J. In this property dispute, the plaintiffs, Jolui G. W. Wong, Jonathan Wong, and Christopher Michael Wong, appeal a trial court judgment in favor of the Alley defendants, I, L.L. C., Square Darryl D. Smith, and Darryl D. Smith Management, Inc., that dismissed the plaintiffs' petition for removal of wrongful encroachments on their property, for trespass, for damages and for injunctive and other relie£ We affirm the judgment and issue this opinion in accordance with Uniform Rules Courts of Appeal, Rule 2- 16. 2( A)( 5), ( 6), ( 7), and ( 8). The plaintiffs' property and the defendants' property are adjacent to each other and were previously owned by a common ancestor- in-title, Preservation Properties, L.L.G The trial court' s judgment on appeal herein was rendered following its factual determinarion that an apparent servitude on the plainriffs' property was created by destination of the owner, i.e., the common ancestor-in-title of the plaintiffs' property and the defendants' property, in accordance with La. C. C. arts. 735, 740, and 741. The trial court issued extensive reasons for judgment, which we attach hereto as Appendix A and make a part hereof, that adequately explain the decision.' After a thorough review of the record, we find no manifest error in the trial court' s factual findings and conclusions of law. The recard fully supports its determination that the plaintiffs' property and the defendants' property were owned by a common ancestar- in-title when the encroachments affecting the plaintiffs' property were constructed and that those encroachments were constructed for benefit of the property now owned by the defendants. Thus, the common ancestor in-title established a relationship between the two properties by which a portion of the property now owned by the plaintiffs became a servient 1 We note that on the second page of the Reasons for Judgment, the first sentence of the second full paragraph contains a typographical enor. Specifically, the sentence reads in part " after the collapsed building was removed from what is not Plaintiffs' lot" (undexlining added), when it should actually read, " from what is now plaintiffs' lot." 2 estate to the property now owned by the defendants. See La. C. C. art. 741. When the two properties ceased to beiong to the sa ne owner ( d. e., plaintiffs' and Yhe defendants' common ance tor-in-titlej and since there was rzo express provision to the contrary, an apparent servitude by destination of the owner came into existence. See La. C. C, art. 741, Since an apparent servitude was acquired for the benefit of the defendants' property on the property now owned by the plaintiffs, the trial court properly dismissed the plaintiffs' action, which sought the removal of the encroachments from the servitude and damages for the encroachments. Therefare, we affirm the trial court' s 7uly 16, 2013 judgment. All cost of this appeal are assessed to the plaintiffs/appellants, John G.W. Wong, Jonathan Wong, and Christopher Michael Wong. AFFIRMED. 3 JOHN G. W. VJQNG, ET ALS NUMBER 2007- 044072, DIVISION" C" 21 ST JLiDICIAL DISTRICT COURT VERSUS PARISH OF TANGIPAHOA ALLEY S UARE I, L.L.G., ET AL STATE OUISIAN W n r v"'' D FIL CLERK: r,. r.. a : m ro gE A 50NS FOR JUDGMENT cn This acrion arises as a property dispute, with related claim for damages. The priSfiary questiQnis whether the prior owner ofboth Plainriffs' property and DefendanYs property, which abut each other, effectively created a servitude by destination undar Article 741 of the Civil Code, and, if not, the rights and damages Plaintiffs are entitled to claim. An additional issue raised just at trial by Defendant is whether Plainti£fs' claims have prescribed. Plaintiffs' properiy is now essentially a vacant lot in the old portion ofdowntown Hammond. A building formerly erected on this property had collapsed long prior to Plaintiffs' acquisition, and only portions of the slab of this building remained. DefendanYs property lies just to the South of Plaintiffs' lot, and is improved with a building which was converted to commercial use, also many years ago. DefendanY s property was conveyed from the common ancestor in title by deed dated Mazch 2, 2002. Plaintiff's lot was conueyed by act dated October 10 2002, from a third entity which hxd pucchased the lot from the common ancestor on Mazch 2, 2002. None of these deeds contain any xeference to the creation or reservation ofany servitude ofpassage, view or light( nor any prohibition of view or light as per Civil Code Articles 702 or 704). An " act of wrrecfion" was executed by Plaintiffs' vendor on dctober 9, 2007, declaring that the property was intended to be conveyed to Plaintiffs " without the imposition of any type of apparent servitude, servitude by destination of owners or acquisitive prescription; or, without any type of servitude or right-of-way of any nature or kind on the property". While possibly involving some ofthe same principals, it is noted that the corporate vendors to Defendant and to Plaintiffs were different entities, however. At some paint, dvring a period ofcommon ownership ofboth Plaintiffs' lot and DefendanYs building, the parties' common ancestor in title caused or permitted several doors and windows to be placed into the wall on the North side of Defendant' s building. Two of these windows were" bay" C V windows which protrttde beyond the wall of the building onto Plaintiffs' lot. In addition, some type of tanding had been installed in concrete outside the doors, and a walkway along the side of the building, also on what is now Plaintiffs' lot, had been installed and utilized to provide access from the street to the side doors in the building. A further issue is as to a balcony on a second building owned by Defendant, to the East ofPlaintiffs' lot, which allegedly overhangs from the second floor of that buildin$, creating an encroachment above Plaintiffs' lot. John Gewalt was the former owner of all of the lots in question. These lots had been conveyed at various times to corporate entities of which he was a principal, but IvIr. Gewalt had remained involved wAth the properties for some time. Over the course of time, Gewalt had done renovations to the building on DefendanYs lot, and it had housed at various times commercial enterprises including a bar and restaurant, and office and apartment space. According to the testimony of several witnesses, after the collapsed building was removed from what is not Plainriffs' lot, Gewalt relocated a door accessing a stair case to the second floor of the buikding, moving the-entrance from the street side to the Northwest comer, facing Plaintiffs' lot, and construcYing a landing which encroached on that lot. Also, at some point vaziously placed between 1998 and 2000, he had a contractor open holes in the North side of the building, in which the bay windows and exterior doors were plaaed. Triangulaz shaped concrete landings were poured outside the dt ors, again on Plaintiffs' present lot, which were connected with a walkway of gravel and/ or brick, whieh allowed access from the street over the South portion of the vacant lot, to the doors on the North side of the building. Defendant, afrer acquiring the building, had poured a paved sidewalk in its place. After purchasing this lot, Plaintiffs formulated plans to construct a three story building on the lot. The plans called for a commercial space on the ground floor, with upscale apartments on the top two floors. Plaintiffs' witriesses testified that this plan was not feasible if provisions were made to continue access along the.South side of the properiy and the North side ofDefendant' s building. The testimony included statements that to allow such access would require a ten foot setback from DefendanPs building. The vacant lot is only 25 feet wide, and a net width of 15 feet would make the ground floor of the proposed building unworkable. Plaintiffs presented a damage claim for the incomelostthroughtheinabilitytoconstructthisbuilding. TheCourtnotesthatevenprovidingsuch a setback on the first floor would not address potential issues of view and light from the windows on Defendant' s building. l Defendant had knoum Mr. Gewalt for some time, and had formerly been employed by him in kris commercial ventures. He generally stated that the windows and access had been provided for the building for yeazs, and that his understanding when he purchased the building that his property would continue to enjoy these advantages. On the other hand, Plaintiffs testified that at the time of their acquisition, they were assured by Mr. Gewalt that they would have the use of the entire 25 foot width of the lot. One plaintiff testified specifically that as to the landing giving access to the side door on the sueet, he was assured that Mr. Gewalt would nof keep any claim to this. Mr. Gewalt wes deposed on two occasions, first for trial and then again for the exception. His testimony seemed to d'averge in the two depositions. He stated that when he owned all of the lots, his plan was for a development that would incorporate the vacant lot into the overall layout. The sidewalk". . . was to be the main entrance to a central plaza in what we call the Alley Square Comple c, the series ofbuildings pinwheeling around an open courtyard." He Further acknowledged the presence ofthe walkway on the vacant lot as an entrance walkway when he sold the properiy to piaintiffs, and said that in diseussions he had with Plaintiffs before the sale, he stated that the windows and entrance" would have to be dealt with". He further stated: we did tallc abont the projection of the bay windows, access to light from the ground level and the entrance to the aparfinents. And I said there were architectural solutions to work around this, but you should have no difFiculty, because the Cheers building( Defendant' s property} can be reconfigured to be non-dependent on the property at 107{ Plaintiffs' property). It is noted that this testimony does not line up with the subsequent" act of correction" Gewalt signed years after Plaintiffs' purchase, as set forth above, wherein he stated his intention was to convey the whole 25 foot width to Plaintiffs free from any encroachments. Testimony from Defendant and other witnesses indicated that, after the additional door had been cut into the North wall af the building now owned by Defendant, further to the East from the street side, that this door had been utilized for access to the building. A former tenant who had operated a restaurant and lounge in the building, stated that the business had used the vacant lot space as a courtyard for their customers, and as a means of access and egress to the business. PRESGRIPTION As above noted, Defendant raised the exception of prescription shortly prior to the commencement of trial. Defendant contends that he has acquired the rights in question by acquisitive prescription. Until the doors and windows were insialled in the North wall of the property, none of these claims existed. As ahove stated, the evidence tends to show that this was done in 1998 oz later. Further, unti12002, there was a common owner of both tracts. A person cannot prescribe against himself. This lawsuit was filed in 2007, and has been pending since that time. Prescription has been interrupted, as the rights sought to be acquired through prescription are at issue. For these reasons, this Court determines that this claim is without merit. SERVITUDE BY DESTINATION Civil Code Article 741 provides in pertinent part: Destination of the owner is a relationship established between two estates owned by the same owner that would be a predial servitude if the estates belonged to diffetent owners. When the two estates cease to belong to the same owner, unless there is express provision to the contrary, an appazent servitude comes into existence of right. .. Our courts have held that where the owner of two estates, between which there exists an apparent servitude by destination, sells one of them without any mention of the servitude in the title, the dominant estate nevertheless continues to enjoy the servitude. Woodcock v. Baldwin, 51 La. Ann. 989, 26 So. 46 ( La. 1899) Gillis v. Nelson, 16 La. Ann. 275, ( La. 1861) A window, even boarded up, is an apparent sign of a servitude and will continue to exist as such even ifthe deed is silent. Tavlor v. Boulware, 35 La. Ann. 469, ( La. 1883) Where the awner of lots on both sides of a division wall makes an opening or window in the wall, it is an act constituting the " destination du pere de famille" and is equivalent to title creating a seruitude as soon as a division of the ownership of the property takes place. Laviilebeuvre v. Cos ove, 13 La. Ann. 323 ( La. 1858) Once a servitude by destination is established, the owner of the servient estate cannot later abolish it. Faunce v. Citv of New Orleans, 148 So. 57, ( Orleans 1933) Applying these principles to the present case, this Court finds that the evidence establishes that Mr. Gewait, while the owner of both Plaintiffs' and Defendant' s lots, placed windows, doors, landings, the latter of which expressed an obvious action to create light, view and passage from the vacant lot, and amounts to a creation ofa servitude by destination. Any atternpt to later abolish these servitudes, either through the act of correction, or his expressions of his intentions ( which were negated byhis first deposition testimony) were legally ineffeetive. As to the overhanging balcony on the other lot on the East end of Plaintiffs' lot, the same principles would apply. In addition, given the deed language as to the conveyance being" less and excepY' a ten foot servitude on this end, it is not apparent to the Court that Plaintiffs can claim any right as to tihis alleged encroachment. For these Yeasons, judgment will be rendered in favor of Defendant and against Plaintiffs, dismissing this suit. Amite, Louisiana, this 16th day of July, 2013. Robert H. Morrison, III Judge, Division " C" Ptease send copies and notice to: Douglas T. Curet Nita Gorrell
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