ELKA FREEMAN DIEFENTHAL, ANNA BETH GOODMAN WIFE OF/AND JOHN GOODMAN, PAUL J. LEAMAN, JR., MARGARET CAROLYN OTT WIFE OF/AND DR. PHILLIP R. LORIA, MAX NATHAN, JR., AND CAROLE CROWELL PETTIT WIFE OF/AND ROBERT L. PETTIT, JR. Vs. LONGUE VUE FOUNDATION AND LONGUE VUE HOUSE AND GARDENS CORPORATION
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ELKA FREEMAN DIEFENTHAL, ANNA BETH GOODMAN WIFE OF/AND JOHN GOODMAN, PAUL J. LEAMAN, JR., MARGARET CAROLYN OTT WIFE OF/AND DR. PHILLIP R. LORIA, MAX NATHAN, JR., AND CAROLE CROWELL PETTIT WIFE OF/AND ROBERT L. PETTIT, JR. * NO. 2002-CA-1470 * COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA * * ******* VERSUS LONGUE VUE FOUNDATION AND LONGUE VUE HOUSE AND GARDENS CORPORATION MCKAY, J. CONCURS IN THE RESULT I concur with the majority’s decision to affirm the judgment of the trial court. However, I am not in agreement with the majority’s reasoning regarding building restrictions vis-à-vis servitudes. First of all, I do not believe it was necessary that the majority address the issue of whether the 1931 agreement constitutes building restrictions or servitudes. The issue was not addressed in Judge Magee’s judgment, nor did the Supreme Court address it in Diefenthal v. Longue Vue Management Corp., 561 So.2d 44 (La. 1990). That being said, in my opinion, the 1931 agreement creates a servitude and not merely building restrictions. The 1931 agreement clearly states that “this agreement shall constitute a servitude upon each and every parcel of property hereinabove described in favor of each and every other piece or portion thereof and shall be a servitude running with the land, binding upon each and every present and future owner thereof.” There are three basic requirements for servitudes. First, there must be two estates involved. Second, the estates must be owned by separate owners. Finally, there must be a charge on one estate for the benefit of the other. See La. C.C. art. 646. The covenants in the 1931 agreement meet all of the requirements for servitudes.
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