Blanks v. Rawson, 1190

• Decision Date: 11 July 1988
• Docket Number: No. 1190,1190
• Citation: 296 S.C. 110,370 S.E.2d 890
• Court: South Carolina Court of Appeals
• Parties: Benjamin B. BLANKS and Mary Ann Blanks, Respondents, v. Gary W. RAWSON, Appellant.

Page 890

370 S.E.2d 890

296 S.C. 110

Benjamin B. BLANKS and Mary Ann Blanks, Respondents, v. Gary W. RAWSON, Appellant.

No. 1190.

Court of Appeals of South Carolina.

Submitted May 25, 1988.

Decided July 11, 1988.

Richard H. Willis, of Nelson, Mullins, Riley & Scarborough, Columbia, for appellant.

Robert C. Ashley, of Kneece, Kneece, Ashley, Gibbons & Kneece, Columbia, for respondents.

CURETON, Judge:

This is a dispute between next door neighbors. Benjamin and Mary Ann Blanks claim their neighbor, Gary W. Rawson, has violated certain neighborhood restrictions by the construction of a dog pen, basketball goal, and ten-foot privacy fence. The trial judge ordered Mr. Rawson to remove or relocate the dog pen and basketball goal. He also ordered Rawson to remove or reduce the height of the fence. Rawson appeals. We affirm in part and reverse in part.

The Blanks and Rawson reside in the Indian Fork subdivision on Lake Murray in Lexington County. Both parties bought vacant lots and constructed homes. The subdivision was developed by Indian Fork Development Company. The company filed a "Declaration of Restrictions" which covered the lots in question. Rawson purchased his lot first. He constructed a home substantially identical to his prior home. In purchasing the property Mr. Rawson had discussions with a representative of Indian Fork Development Company. This representative was aware Rawson desired to build a house identical to his current home. The developer approved Rawson's house plans. The developer specifically gave permission to Rawson to vary the minimum set back requirements in the Declaration of Restrictions to accommodate his home on the lot and to locate the dog pen and basketball goal. The basketball goal is near the edge of the driveway close to the property line. The dog pen is on the property line behind the driveway.

Mr. and Mrs. Blanks purchased the lot to the right of Mr. Rawson. The developer advised the Blanks of Mr. Rawson's name because they desired to know who their neighbor would be. The Blanks rode by Rawson's old home to view it. At that time, the dog pen was behind the driveway on the property line. The dog pen in controversy is in the same location behind the driveway. The difference is Rawson has re-oriented the new house so the driveway is on the right side of the house as opposed to the left. This is the side next to the Blanks.

As the homes were being constructed, Mr. Blanks expressed objections personally and through counsel to Rawson about the dog pen and basketball goal because he felt they violated the minimum setback limits. Rawson had already obtained the approval of the developer to vary the setback limits when these objections were raised. Paragraph Seven of the Declaration of Restrictions provides "no building shall be closer to any side boundary than fifteen (15) feet ... provided further that the Declarant [Indian Fork Development Co. Inc.] reserves the right to vary all such setback lines at will."

Shortly after the complaint was served, Rawson constructed a ten foot privacy fence. The fence shields the basketball goal and dog pen from the Blanks. As with the dog pen and goal, Rawson obtained the permission of Indian River Development Company to build the fence. This permission was received in December of 1985 although construction of the fence did not occur until May 1986.

The Blanks complain the dog pen and basketball goal violate the minimum setback limits and are a nuisance. They claim the dog barks and the dog pen is not properly maintained thereby creating a foul odor. They complain Rawson's son plays loud music and his basketball comes into their yard. As to the fence, they complain it is too high and blocks the view of the lake they previously enjoyed across Rawson's property. The trial court found the nearness of the basketball goal to the property line created a nuisance whenever the basketball was thrown toward the goal. The court found that if the ball hits the goal it creates a noise and if it misses the goal, it can go into the Blanks' yard. The court found the nearness of the dog pen to the property line created a nuisance because it was not properly maintained and the sight and smell of dog feces was revolting. As to the fence, the court called it a "hate fence" not in keeping with the intentions of a high level residential neighborhood and not in keeping with what is right as opposed to what is wrong. The court held it was wrong for the fence to obstruct the Blanks' view of the lake across the Rawsons' backyard.

The complaint alleges violation of restrictions and seeks an injunction. As previously noted, Paragraph Seven of the Declaration of Restrictions deals with setback requirements. Paragraph Eight provides "no noxious or offensive activity ... shall be had or done upon any lot in the subdivision and nothing shall be had or done thereon which constitutes or becomes an annoyance or nuisance to the neighborhood or constitutes an unsanitary condition." Paragraph Twelve indicates the restrictions shall run with the land. Paragraph Thirteen gives an owner a right to sue any other owner of real property in the subdivision in order to restrain a violation of the restrictions.

An action for an injunction is equitable. State v. Yelsen Land Co., 257 S.C. 401, 185 S.E.2d 897 (1972). Since this is an action in equity tried by a single judge, this court on appeal may decide whether the evidence supports the factual findings based upon our own view of the preponderance of the evidence. Palmetto Dunes Resort v. Brown, 287 S.C. 1, 336 S.E.2d 15 (Ct.App.1985).

Mr. Rawson did not violate Paragraph Seven of the subdivision restrictions concerning the setback limits. The evidence is undisputed he received express permission from...