Davey v. Artistic Builders, Inc.

• Decision Date: 14 January 1975
• Docket Number: No. 19942,19942
• Citation: 263 S.C. 431,211 S.E.2d 235
• Parties: Ann S. DAVEY et al., Respondents, v. ARTISTIC BUILDERS, INC., Appellant.
• Court: South Carolina Supreme Court

Page 235

211 S.E.2d 235

263 S.C. 431

Ann S. DAVEY et al., Respondents, v. ARTISTIC BUILDERS, INC., Appellant.

No. 19942.

Supreme Court of South Carolina.

Jan. 14, 1975.

J. D. Todd, Jr., Leatherwood, Walker, Todd & Mann, Greenville, and Felix L. Finley, Jr., Pickens, for appellant.

B. O. Thomason, Jr., Love, Thornton, Arnold & Thomason, and Stuart G. Anderson, Jr., McDonald, Cox & Stilwell, Greenville, for respondents.

BUSSEY, Justice:

In this action the plaintiffs-respondents are the owners of lots in Burdine Springs Subdivision located near Easley, South Carolina in Pickens County, and they sought to enjoin the defendant-appellant from the alleged violation of certain restrictive covenants applicable to the lots in said subdivision. The lower court granted injunctive relief and defendant appeals.

In 1961 a residential subdivision known as Burdine Springs was platted and developed by one John C. Cobb, such subdivision being composed of 102 sequentially numbered lots. Restrictive covenants were imposed by Cobb and these along with a plat of the subdivision were duly recorded in the office of the Clerk of Court of Pickens County. The plat of the subdivision shows it to be located to the west of the Dacusville Highway. The plat reflects that said John C. Cobb owned acreage to the north of the subdivision, not subdivided into lots, and also an area composed of several acres lying between the subdivision and Dacusville Highway, which was not subdivided. To the north and south of this latter acreage the subdivision immediately adjoins the Dacusville Highway. The plat shows acreage lying to the south and southwest of the subdivision as being the property of one Felix Hendricks.

One of the streets shown on the plat of the subdivision is now known as Asbury Circle and at the southwestern portion of the subdivision, near the Felix Hendricks property, the said Asbury Circle runs in front of sequentially numbered lots 35 and 36 on the plat of the subdivision. The lots in the subdivision have frontage of from 100 to 120 feet. The area immediately adjacent to Asbury Circle on the southwest side, for a distance of 350 to 400 feet, between said lots 35 and 36, bears no number or any other mark to show what this particular area was or who it even belonged to. For all the plat shows to the contrary this particular area was the property of Hendricks rather than Cobb, but the evidence other than the plat discloses that Cobb did in fact own a small acreage lying between lots 35 and 36 and between Asbury Circle and the property of Hendricks.

The restrictions relied upon by the plaintiffs were imposed upon the lots in the subdivision by the following language.

'The following building restrictions or protective covenants are hereby imposed by the undersigned who is the owner of all lots in Burdine Springs Subdivision as shown by plat thereof recorded in the RMC office of Pickens County in plat book 12, page 77.'

The defendant, Artistic Builders, Inc., at a later date acquired from the said Cobb all unsold lots in the subdivision and acreage owned by him which he had not subdivided into lots, including the small parcel of acreage lying between Asbury Circle and the Hendricks property which has also been acquired by defendant. The defendant proposed to build a road leading from Asbury Circle across the small acreage southwest thereof acquired from Cobb and connecting with a subdivision of the defendant on the Hendricks property. The plaintiffs contend, and the lower court so held, that this Cobb acreage was a part of Burdine Springs Subdivision and restricted to residential use; the defendant being consequently...