Carolina Land Co., Inc. v. Bland, 20049

• Decision Date: 01 July 1975
• Docket Number: No. 20049,20049
• Citation: 217 S.E.2d 16,265 S.C. 98
• Court: South Carolina Supreme Court
• Parties: CAROLINA LAND COMPANY, INC., et al., Respondents, v. Dr. Maynard W. BLAND and Myra D. Bland, Appellants.

Page 16

217 S.E.2d 16

265 S.C. 98

CAROLINA LAND COMPANY, INC., et al., Respondents, v. Dr. Maynard W. BLAND and Myra D. Bland, Appellants.

No. 20049.

Supreme Court of South Carolina.

July 1, 1975.

Younts, Reese & Cofield, Greenville, for appellants.

Leatherwood, Walker, Todd & Mann, Greenville, for respondents.

MOSS, Chief Justice:

It is admitted that on June 8, 1929, J. L. Locke, the predecessor in title of all of the parties to this action, acquired title to a tract of land lying on both sides of Laurens Road, now U.S. Highway 276, in the City of Mauldin, S.C.

J. L. Locke, in October, 1945, had a survey made showing the property on the westerly side of Laurens Road divided into a tract of 45.62 acres; 36 numbered lots; and a 30 foot street running between the tract and the numbered lots, a distance of 2,465.7 feet. This plat was recorded on December 13, 1951, in the R.M.C. Office for Greenville County, South Carolina, in Plat Book AA, Page 164.

J. L. Locke, by deed dated December 4, 1951, and recorded December 13, 1951, in the R.M.C. Office for Greenville County, conveyed to Blake P. Garrett lots 1, 2, 35 and 36, in the subdivision of the property of J. L. Locke, according to a survey and plat made by Dalton & Neves, October, 1945, and of record in the R.M.C. Office for Greenville County in Plat Book AA, Page 164. Thereafter, Blake P. Garrett conveyed a one-half interest to W. B. Parsons in the four lots above described. On February 14, 1956, a re-survey of the original four lots was made and they were cut into lots 1--8, as shown on plat of property of Blake P. Garrett and W. B. Parsons, which plat was recorded May 7, 1962, in Plat Book WW, Page 267, R.M.C. Office for Greenville County. The re-survey shows lot number 7 at the corner of U.S. Highway 276 and the '30 foot street', and lot number 8 abutting the rear of lot number 7 and fronting solely on the 30 foot street. Lots 7 and 8 were thereafter conveyed to Clarence O. Kittelsen by separate deeds, both of which were recorded May 7, 1962, in the R.M.C. Office for Greenville County. Dr. Maynard W. Bland and Myra D. Bland, the appellants herein, obtained title to lots 7 and 8 by deed recorded March 7, 1969, R.M.C. Office for Greenville County, which referred to the Garrett-Parsons plat, Plat Book WW, Page 267. The metes and bounds description in this deed made specific reference to the '30-foot street.' Also in this deed appeared the following: 'This conveyance is made subject to any right-of-way, or easements that may appear of record on the recorded plat(s) or on the premises.' These appellants have been in continuous possession of lots 7 and 8 from March 7, 1969, up until the time of this action.

It appears that after the death of J. L. Locke, a plat was prepared by Dalton & Neves in June, 1960, showing a tract of 70.68 acres of undeveloped land. The four lots sold to Blake P. Garrett are represented by a trapezoid shown on the southeastern corner of the plat with the notation 'sold.' By deed dated April 1, 1966, recorded in Deed Book 795, Page 461, R.M.C. Office for Greenville County, South Carolina, Carolina Land Company, Inc., acquired title to the tract of land described on the aforesaid plat. The property description in said deed included the area covered by the '30 foot street,' as shown on the J. L. Locke plat which is of record in Plat Book AA, Page 164, R.M.C. Office for Greenville County.

Carolina Land Company, Inc. proceeded to develop a portion of the land so acquired under the name of Knollwood Heights. Lot number 69, the subject of this action, is shown on an addition to Section 3 of Knollwood Heights in Plat Book WWW, Page 6, R.M.C. Office for Greenville County. This lot fronts on Devon Drive and is separated at the rear from lot number 8 of the appellants by a 20 foot alley way. The distance from the 20 foot alley way across lot number 69 to Devon Drive is 164.8 feet. The 30 foot street as shown on the 1945 Locke Plat, hereinabove referred to, extends through what is now lot number 69 to Devon Drive.

In July, 1973, the appellants graded and graveled, in preparation for asphalting, a 30 foot street through lot number 69 to Devon Drive, within the bounds of the 30 foot street delineated on the 1945 Locke Plat.

Carolina Land Company, Inc., hereinafter referred to as Carolina, along with the owners of the three lots immediately across Devon Drive from lot number 69, the respondents herein, brought this action seeking to permanently enjoin the appellants from trespassing on the property of Carolina, or claiming any right, title or interest in lot number 69 of Section 3 of Knollwood Heights, and to require them to remove the gravel and restore said lot to its condition prior to the alleged trespass. The appellants admitted that they had graded and opened a 30 foot street across lot number 69, asserting their right so to do as owners of lots 7 and 8, entitling them to the use of the 30 foot street shown on the 1945 Locke Plat. They asked that the respondents be enjoined from interfering with their right to open and use said street. It should be noted that the appellants expressly limited their right to so much of the 30 foot street as crossed lot number 69 to Devon Drive.

This case was referred to the Master in Equity for Greenville County for the purpose of taking the testimony and reporting his findings of fact and conclusions of law. The Master, in obedience to such order, filed his Report on May 1, 1974, holding that the appellants had no right, title or interest in lot number 69 of the addition to Section 3 of [265 S.C. 104] Knollwood Heights. He further concluded that Carolina Land Company, Inc. was the owner in fee simple of lot number 69 of Section 3 of Knollwood Heights and that the appellants should be permanently enjoined from trespassing upon such lot or claiming any right, title or interest therein.

The basis of the Master's finding was that the proposed '30 foot street' was never opened or used and was abandoned by the only persons in interest by their actions and specifically the acts of the recutting and resubdividing by Garrett and Parsons, and the development by Carolina Land Company, Inc., of Knollwood Heights. He further held that the recutting and resubdivision by Garrett and Parsons and the subsequent conveyance by them with reference to this plat destroyed the earlier division and designation of lots shown on the 1945 Locke Plat. The Master also relied on the fact that Carolina Land Company, Inc. acquired title, on April 1, 1966, from the J. L. Locke estate of all of the unsold and undeveloped land according to an unrecorded plat of survey thereof made in June, 1960, and found that since there was no indication on such plat of the 30 foot street as outlined in the original 1945 Locke Plat, such constituted Record notice of the abandonment of the street through Knollwood Heights. The Master further found that the plat by which the appellants obtained title did not show the street extending from their property to Devon Drive. (Emphasis ours.)

The appellants duly excepted to the Master's findings of fact and conclusions of law. These exceptions were argued before the Honorable Francis B. Nicholson, Presiding Judge, who, by his order, overruled such and affirmed the Master's Report. It is from this order that the appellants prosecute this appeal.

The respondents, by their complaint, demand that the appellants be enjoined from trespassing upon the property of Carolina Land Company, Inc. or claiming any right, title, interest or estate in said property. This sets forth an action for equitable relief by way of injunction. Bramlett v. Young, 229 S.C. 519, 93 S.E.2d 873.

We consider the questions raised by the appellants in the light of the well established rule tht in actions in equity, findings of fact by a Master, concurred in by the circuit judge, are not to be disturbed on appeal unless it is shown that such findings are without evidentiary support or against the clear preponderance of the evidence. Bishop v. Tolbert, 249 S.C. 289, 153 S.E.2d 912.

It is uncontroverted that the predecessors in title of the appellants were conveyed lots 1, 2, 35 and 36 as shown on the 1945 recorded Locke plat, on which is delineated a '30 foot street,' running along side of lot 36 and extending into other Locke property a distance of 2,465.7 feet. It is the position of the appellants that, being owners of lots 7 and 8 as shown on the Garrett-Parsons plat, hereinabove referred to, said lots being carved out of lot numbers 35 and 36 as shown on the 1945 Locke plat, hereinabove referred to, they are entitled to an easement in the 30 foot street shown on the plats because their lots abut thereon.

We have held that where a deed describes land as is shown as a certain plat, such becomes a part of the deed. It is generally held that when the owner of land has it subdivided and platted into lots and streets and sells and conveys lots with reference to the plat, he thereby dedicates said streets to the use of such lot owners, their successors in title and the public. Blue Ridge Realty Co. v. Williamson, 247 S.C. 112, 145 S.E.2d 922. We also held in the cited case that the purchaser of lots with reference to the plat of the subdivision acquired every easement, privilege and advantage shown upon said plat,...