Ganus v. Cuoco , 1978 La. App. LEXIS 3088 ( 1978 )

PER CURIAM.

The trial court has issued a preliminary injunction dated January 27, 1978, which provides as follows:

“It is ordered by the court that upon plaintiff’s giving bond with good and solvent surety conditioned as the law directs in the sum of Twenty-five Hundred Dollars ($2500.00) that Russell L. Cuoco and the Board of Levee Commissioners of the Orleans Levee District, their agents, employees, assigns and any and all persons, firms or corporations acting or claiming to act in their behalf are hereby temporarily restrained, enjoined and prohibited from trespassing on plaintiff’s property or from constructing and maintaining boat slips, or any other type of facility which would deny plaintiff the right of frontage and public access to the New Basin Canal from that portion of ground more fully described as follows:

‘A certain portion or strip of land on the east side of the New Basin Canal property between Lake Avenue and U. S. Coast Guard reservation, measuring 218 ft. width and front on West End Blvd. by depth of approximately 77 ft., in fronting and the rear of the New Basin Canal, all as more fully shown on the survey annexed hereto and made part hereof.’

“Being the same property leased by Russell L. Cuoco to Ganus Realty Company, Inc.

“New Orleans, Louisiana, this 27th day of January, 1978.

(signed) Judge Oliver P. Carriere”

Cuoco devolutively appealed from that judgment, and, on July 26, 1978, we affirmed. Meanwhile, on May 10, 1978, the trial court, in response to a rule for contempt, had rendered a judgment which includes the following language:

“It is further ordered that the defendant Russell L. Cuoco be restrained, enjoined and . prohibited from constructing and maintaining boat slips or any other type of facility which would deny plaintiff the right of frontage and public access to the New Basin Canal from that portion of the ground more fully described as follows:

‘A certain portion or strip of land on the east side of the New Basin Canal property between Lake Avenue and U. S. Coast Guard reservation, measuring 218 ft. width and front on West End Blvd. by depth of approximately 77 ft., in fronting and the rear of the New Basin Canal, all as more fully shown on the survey annexed hereto and made part hereof.’

“It is further ordered that Russell L. Cuo-co on or before noon, Tuesday, June 27, 1978, remove all pilings, boat slips, or any other type of facility which would deny plaintiff the right to frontage and public access to the New Basin Canal from that portion of ground more fully described above.

“Judgment read, rendered and signed in Open Court on May 10, 1978.

(signed) Judge Oliver P. Carriere”

Cuoco suspensively appealed from the above judgment on May 10, 1978, and the appeal was lodged here on November 13, 1978.

Ganus has now moved to dismiss the appeal and has filed a separate application for supervisory writs, essentially seeking the same relief.

In our view, the judgment and order of May 10, 1978 does nothing more nor less than confirm the mandate set forth in the trial court’s order of January 27, 1978 (which was affirmed by us on July 26,1978) and set a deadline for compliance therewith, while dismissing the rule for contempt for previous failure to comply. In order, however, to remove any doubt, and to extend the deadline for compliance, we exercise our supervisory jurisdiction as follows:

ORDER

1. The trial court’s order of May 10, 1978, is deemed to be, in all respects, responsive to and confirmative of its earlier judgment of January 27, 1978, affirmed by us on July 26, 1978.

2. The order requiring Russell L. Cuoco to remove all — pilings, boat slips or any other type of facility which would deny plaintiff Ganus the right to frontage and public access to the New Basin Canal from that portion of ground more particularly described in the footnote below¹ is extended from noon, Tuesday, June 27, 1978 to noon, Monday, February 5, 1979.

3. The appeal is dismissed; each party is to bear his own costs.

MOTION CONSIDERED, ORDER ISSUED

1 . A certain portion or strip of land on the east side of the New Basin Canal property between Lake Avenue and U. S. Coast Guard reserva-ion, measuring 218 ft. width and front on West End Blvd. by depth of approximately 77 ft., in fronting and the rear of the New Basin Canal.