Archambault v. Sprouse, 16463

Decision Date07 February 1951
Docket NumberNo. 16463,16463
Citation63 S.E.2d 459,218 S.C. 500
CourtSouth Carolina Supreme Court

M. Martin Davis, I. H. Jacobson, Charleston, for appellant.

Sinkler, Gibbs & Simons, Charleston, for respondent.

OXNER, Justice.

This is a suit in equity to enjoin appellant, defendant below, from proceeding with the erection of what is termed a two story garage apartment upon the rear of his lot, it being contended that said structure violates certain restrictive covenants applicable to a subdivision known as Palmetto Gardens located in North Charleston, South Carolina, and to require appellant to remove so much of said building as violates said restrictions. The cause was referred to the Master for Charleston County, who after holding a number of references and taking a vast amount of testimony, recommended that the relief sought in the complaint be granted. His report was confirmed by the Circuit Court and this appeal followed.

During 1940 and 1941, the Defense Homes Corporation, a Federal housing agency, erected in said subdivision approximately 250 houses which were rented to war workers. At the conclusion of the was emergency, said corporation proceeded to sell said houses and by 1946, the entire subdivision was owned by individuals. The Master, who visited the premises, found that 'all of these homes are of permanent and substantial character and the subdivision may properly be called a high class residential section, being one of the finest in the Charleston area.' All of said lots were sold subject to the following conditions and restrictions which were duly recorded in the R. M. C. Office for Charleston County on June 25, 1941:

'A. All lots in the tract shall be known and described as residential lots. No structures shall be erected, altered, placed, or permitted to remain on any residential building plot other than one detached single-family dwelling not to exceed two and one-half stories in height and a private garage for not more than two cars and storage. Buildings incidental to residential use may be erected.

'B. No building shall be located nearer to the front lot line or nearer to the side street line than the building setback lines shown on the recorded plat. In any event, no building shall be located on any residential building lot nearer than 20 feet to the front lot line, nor nearer than 10 feet to any side street line. No building, except a detached garage or other outbuilding located on rear 1/4 of lot, shall be located nearer than 5 feet to any side lot line. On corner lots garage shall be placed against inside lot line.

'C. No residential structure shall be erected or placed on any building plot, which has an area of less than 5000 square feet or a width of less than 50 feet at the front building setback line.

'D. No noxious or offensive trade or activity shall be carried on upon any lot nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.

'E. No trailer, basement, tent, shack, garage, barn or other outbuilding erected in the tract shall at any time be used as a residence temporarily or permanently, nor shall any structure of a temporary character be used as a residence.

'F. No dwelling costing less than $3000.00 shall be permitted on any lot in the tract. The ground floor area of the main structure, exclusive of one-story open porches and garages, shall be not less than 650 square feet in the case of a one-story structure, nor less than 500 square feet in the case of a one and one-half, two or two and one-half story structure.

'G. A five foot (5') easement on the back line of each lot and a two foot six inch (2'6"') easement on each side line of each lot is reserved for use of poles, wires, sewers, and other public utilities.

'H. No persons of any race other than the Caucasian race shall use or occupy any building of any lot except that this covenant shall not prevent occupancy by domestic servants of a different race domiciled with owner or tenant.'

Appellant and respondents are property owners in said subdivision. Appellant purchased his home in 1946, at a cost of $4450.00. There are five rooms, including two bedrooms, and a bath in his house, which is occupied by himself, his wife and mother-in-law. During the fall of 1948, he commenced construction of a two story combined dwelling and garage upon the rear of his lot. The plans called for a two car garage, a large utility room and a stairwell on the first floor, and for a kitchen, bathroom, two bedrooms with closets, a living room and an enclosed porch on the second floor. The Master found that this structure was 'clearly intended to be an entirely independent and self-sufficient living unit complete with all facilities and not in any way dependent on the original building at the front of the lot.' Appellant testified that the house in which he lived was inadequate for his needs; that he desired additional space to accommodate relatives who visited him; and that he had no present intention of using the second floor of the new structure for servants' quarters or of renting it to strangers. However, there was other testimony to the effect that appellant had stated that he 'intended to live in it himself and rent his house.' Appellant says that he has expended approximately $4200.00 on this building, which he contends is now 85% complete, and that it would require about $750.00 additional to finish it.

Respondents commenced this action on March 1, 1949. They alleged that the structure being erected violated restrictions A, E, and F heretofore set out. Appellant denied the material allegations of the complaint, alleged that the restrictions permitted the construction of a garage apartment, and set up the following affirmative defenses: (1) That at a meeting of the Palmetto Gardens Civic Club held on February 8, 1949, attended by respondents, a resolution was passed waiving all current violations of the restrictive covenants and that respondents were bound by this resolution. (2) That numerous property owners in Palmetto Gardens, including respondents or some of them, had heretofore and were now violating certain of these restrictions and by reason thereof were estopped to assert the infractions set forth in the complaint. (3) That a building permit for this garage apartment was issued in October, 1948 and that the respondents were guilty of laches in taking no action to prevent the erection of this structure until after appellant had expended large sums of money.

Within due time respondents moved to strike the affirmative defenses from the answer upon the ground that none of them constituted a defense to the cause of action set forth in the complaint. The Circuit Court granted this motion. On appeal we held that they were improperly stricken and the order of the Circuit Court was reversed. Archambault v. Sprouse, 215 S.C. 336, 55 S.E.2d 70, 72. It was there stated: 'All of the issues presented by the appeal involve the defenses of waiver, laches, estoppel and acquiescence under various and diverse circumstances, which it seems to us can best be determined by a trial on the merits. It might be that a strict construction of defendant's affirmative defenses, under the applicable rules of law, would be adverse to him, but we are not disposed at this stage of the case to define and determine the rights of the parties merely on the pleadings.'

We shall first determine whether there has been a violation of any of the restrictive covenants. The Master held that the structure now being erected violated restrictions A and E. Having reached this conclusion, he considered it unnecessary to determine whether there was a violation of restriction F. We are in accord with this view. The structures permitted on a lot in this subdivision are clearly limited by restriction A to 'one detached single family dwelling', not exceeding a certain height, 'a private garage for not more than two cars and storage', and 'buildings incidental' to the use of such residence. Appellant contends that the structure in controversy may be properly classified as one 'incidental to residential use'. We do not think so. The word 'incidental' is defined in Black's Law Dictionary, Third Edition, as follows: 'Depending upon or appertaining to something else as primary; something necessary, appertaining to, or depending upon another which is termed the principal; something incidental to the main purpose.' Undoubtedly this was the meaning contemplated in the restriction under consideration. Clearly the apartment on the second floor of this structure, a complete living unit having substantially the same accommodations as the main structure, cannot be said to be incidental to the use of appellant's residence. It was manifestly intended that only one dwelling house should be placed on each lot. This conclusion is fortified by restriction E which provides that no garage or other outbuilding erected on the lot 'shall at any time be used as a residence temporarily or permanently, nor shall any structure of a temporary character be used as a residence.'

Appellant argued that the meanings of restrictions A and E are rendered doubtful by restriction H and that such doubt should be resolved in favor of the free use of the property and against restriction. We do not think restriction H has that effect. It relates solely to...

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