DNR v. Town of McClellanville

Decision Date23 July 2001
Docket NumberNo. 25324.,25324.
Citation550 S.E.2d 299,345 S.C. 617
CourtSouth Carolina Supreme Court
PartiesSOUTH CAROLINA DEPARTMENT OF NATURAL RESOURCES, Respondent, v. The TOWN OF McCLELLANVILLE, a body politic, Petitioner.

Frances I. Cantwell and Carl W. Stent, of Regan, Cantwell & Stent, of Charleston, for petitioner.

James A. Quinn, of South Carolina Department of Natural Resources, of Charleston; and Buford S. Mabry, Jr., Paul S. League, and Susan S. Quinn, of South Carolina Department of Natural Resources, of Columbia, for respondent.

BURNETT, Justice:

This case involves the interpretation of a restriction contained in a deed of land from the Department of Natural Resources (DNR) to the Town of McClellanville (the town). The Court of Appeals held the town could not charge a permit fee for access to the property. South Carolina Dep't of Natural Resources v. Town of McClellanville, Op. No.2000-UP-165 (Ct.App. filed Mar. 6, 2000). We reverse.

FACTS

In 1991, DNR deeded a 4.27 acre tract of land to the town. This transfer was part of a land swap between the state and federal governments to enable the town to qualify for federal funds to repair the town hall, which was damaged by Hurricane Hugo. The parcel included the town hall, a fire tower, a boat ramp, and a parking area. The deed contained a restriction providing that "the parking area and boat launching ramp shall remain accessible to and remain available for use by the public." At the time of the conveyance, no fee was charged for use of the boat ramp.

The town has a population of about 360 and an annual budget of less than $200,000, $75,000 to $80,000 of which is dedicated to the fire department. During the period after the town took title to the land, use of the boat ramp and parking area increased dramatically. In 1995, Charleston County Public Works, which had previously provided maintenance for the facilities, notified the town it was unable to continue to provide that assistance. The town commissioned a study of the facilities and a committee held public hearings to determine the best way to fund maintenance of the ramp.

In response to the committee's findings, the town enacted an ordinance requiring users of the boat launching ramp to obtain a permit. For $40.00 for town residents and $90 for non-residents, the holder of a permit receives 24-hour, 365day use of the boat launching ramp and parking lot for one year. All revenue from the permits is placed into a restricted account to be used by the town "for the sole purpose of improving, operating and maintaining the boat ramp and related parking area ... and for reasonable administrative costs associated therewith."

DNR sought an injunction to prohibit enforcement of the ordinance, claiming the boat ramp fee violated the restrictive covenant contained in the deed. In the short period of time between the ordinance's enactment and the issuance of a preliminary injunction enjoining its enforcement, the town issued permits to 88 residents and 304 non-residents.

The case was referred to the Master-in-Equity, who refused DNR's request for a permanent injunction. The Master ruled the ordinance did not violate the deed. The Master reasoned the deed did not address how the facilities were to be operated or maintained, but "merely requires that the public have access to these facilities." The Master refused to read restrictions into the deed which "DNR could have effortlessly written in itself." The Circuit Court affirmed, and the Court of Appeals reversed.

ISSUE

Did the Court of Appeals err in holding the town's ordinance establishing a boat launching permit fee violated the covenant in the deed by which the town acquired title?

DISCUSSION

The town argues the Court of Appeals erred in holding the town's ordinance establishing a boat launching permit fee violated the covenant contained in the deed. The town asserts the language of the deed is ambiguous, and, even if unambiguous, the intent attributed to the parties does not comport with the language used. We agree.

An action to enforce restrictive covenants by injunction is in equity. Taylor v. Lindsey, 332 S.C. 1, 3, n. 2, 498 S.E.2d 862, 864, n. 2 (1998). On appeal of an equitable action tried by a Master, the Court can find facts in accordance with its own view of the evidence. Id.; Townes Assoc. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976). However, a Master's findings, concurred with by the circuit court, will not be disturbed on appeal unless without evidentiary support. Townes Assoc., 266 S.C. at 86, 221 S.E.2d at 775-76.

We recently explained the rules for interpreting restrictive covenants in South Carolina:

Restrictive covenants are contractual in nature, so that the paramount rule of construction is to ascertain and give effect to the intent of the parties as determined from the whole document. The court may not limit a restriction in a deed, nor, on the other hand, will a restriction be enlarged or extended by construction or implication beyond the clear meaning of its terms even to accomplish what it may be thought the parties would have desired had a situation which later developed been foreseen by them at the time when the restriction was written. It is still the settled rule in this jurisdiction that restrictions as to the use of real estate should be strictly construed and all doubts resolved in favor of free use of the property, subject, however, to the provision that this rule of strict construction should not be applied so as to defeat the plain and obvious purpose of the instrument. It follows, of course, that where the language of the restrictions is equally capable of two or more different constructions that construction will be adopted which least restricts the use of the property. A restriction on the use of property must be created in express terms or by plain and unmistakable implication, and all such restrictions are to be strictly construed, with all doubts resolved in favor of the free use of property.

Taylor, 332 S.C. at 4-5, 498 S.E.2d at 863-64 (emphasis added) (internal quotations and citations omitted). In Taylor, we refused to enlarge a restrictive covenant beyond its plain language in order to prohibit the erection of mobile homes. The deed at issue in this case contained the restriction that "the parking area and boat launching ramp shall remain accessible to and remain available for use by the public." The Court of Appeals held the word "remain" is unambiguous and means "to continue unchanged." According to the Court of Appeals, "[t]he only reasonable interpretation of the deed[ ] is that the public's access was to continue unchanged and the availability for use by the public was to continue unchanged." Thus, "[a]ny restrictions imposed by the Town on the public's access to the Landing or on the Landing's availability for use by the public are forbidden."

We agree with the Court of Appeals the covenant is unambiguous; however, we think the "only reasonable interpretation of the deed," would not prohibit the town from charging a permit fee. A contract is ambiguous when the terms of the contract are reasonably susceptible of more than one interpretation. Hawkins v. Greenwood Development Corp., 328 S.C. 585, 592, 493 S.E.2d 875, 878 (Ct.App.1997) (citing 17A Am.Jur.2d Contracts § 338, at 345 (1991)). It is a question of law for the court whether the language of a contract is ambiguous. Id. Once the court decides the language is ambiguous, evidence may be admitted to show the intent of the parties. Id. The determination of the parties' intent is then a question of fact. Id. On the other hand, the construction of a clear and unambiguous deed is a question of law for the court. Gardner v. Mozingo, 293 S.C. 23, 25, 358 S.E.2d 390, 392 (1987).

Although the word "remain" read alone might be considered ambiguous, the covenant as a whole is not. Nothing in the plain language of the deed prohibits the town from requiring a permit or charging a fee to use the facilities. Furthermore, even if the covenant is ambiguous, the Court of Appeals' construction does not comport with the rules in Taylor. The Master stated, and we agree,...

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