Forest Land Co. v. Black
| Decision Date | 13 January 1950 |
| Docket Number | 16309. |
| Citation | 57 S.E.2d 420,216 S.C. 255 |
| Parties | FOREST LAND CO. v. BLACK et al. |
| Court | South Carolina Supreme Court |
[Copyrighted Material Omitted]
E. W. Mullins, Columbia, Harold C. Seigler, Columbia for appellants.
John Gress McMaster, Columbia, for respondent.
The defendants, E O. Black, Jr., and Mrs. Lillian Black, appeal from a decree of the circuit court of Richland County permanently enjoining them from the use or operation of a motorboat on Forest Lake, which lake covers 152 acres of land, and is located about four miles outside the city limits of the city of Columbia.
Forest Lake and a large surrounding and contiguous acreage are owned by Forest Land Company, the respondent. The land bordering on the lake was subdivided into lots. Practically all of this lake front property has been sold, and dwellings have been erected thereon by the owners.
Appellants acquired title to two large lots on the lake front, one having been purchased from Forest Land Company and the other through successive conveyances from a grantee of the company. In both of their deeds the respondent granted certain boating rights, which provisions are contained in all of the conveyances held by those who bought property abutting on Forest Lake. All of the deeds, including those of appellants, grant certain rights and privileges in the following language:
'The grantee herein, his heirs and assigns, shall have and is hereby granted the right and privilege as appurtenant to the lot hereby conveyed, of fishing, hunting, boating and swimming in Forest Lake, subject to the following:
'(a) That said purchaser shall have the right and privilege of conveying as a whole, but not in part or separately the rights herein granted along with the conveyance by him of the title to the read estate herein mentioned;
'(b) That the said purchaser shall have the right to construct and maintain a dock, float or raft for swimming and boating purposes, the said dock, float or raft to be placed and constructed so as not to interfere with the reasonable use of the said Forest Lake by the grantor herein or other owner;
'(c) That the use of Forest Lake shall be subject to reasonable rules of the Grantor, which may provide for closed seasons or terms for fishing or hunting and reasonably restrict the use of certain kinds of boats or motors and other kinds of craft.'
Subsequent to the time that appellants acquired title to their lots, the respondent formulated and promulgated rules and regulations governing the use of the lake. The only one with which we are concerned reads as follows: 'No motor boat is to be operated on the lake at any time.'
The grievances complained of by respondent are that appellants, in violation of the foregoing rule, have maintained and operated a large and dangerous motorboat on Forest Lake, and have refused to discontinue its operation. It is charged that the operation of this motorboat constitutes a nuisance in that the noise and the reverberation arising therefrom disturb others who reside on the lake front; that it creates a hazard to persons swimming in the lake; that it generates waves which tend to wash away the beaches built up by others owning lots and dwellings on the lake front; and disturbs the fish beds, thereby destroying or greatly diminishing the reproduction of fish; and that the operation of this boat by appellant denies to respondent peaceful enjoyment of its property.
It is alleged that respondent has suffered irreparable damage, has no adequate remedy at law, and will be forced to a multiplicity of suits to maintain its rights unless the appellants are restrained and enjoined from the operation of their motorboat. And that the act of appellants constitutes a direct violation of the covenants, conditions and restrictions contained in their deeds.
Appellants answered and denied the material allegations of the complaint, after which the cause was referred to the Master. He heard the testimony offered by the parties and made his report to the court, recommending that the restraining order previously granted be dissolved, and that the complaint be dismissed. Upon exceptions being taken to the circuit court, the report was set aside. New findings were made by the court, and a decree entered wherein it was adjudged that the appellants be permanently enjoined from the use or operation of a motorboat on Forest Lake. It was further decreed that the rule promulgated by Forest Land Company, viz. that 'No motor boat is to be operated on the lake at any time is just, reasonable and valid, and is a reasonable and valid exercise of its rule making power.'
The record shows that the appellants purchased a Chris Craft sixty horse power inboard motorboat during the latter part of May, 1948, and had operated it from time to time for two or three weeks when the temporary restraining order was issued, enjoining them from using such boat on the lake.
By their briefs and in oral argument, the first inquiry of counsel was directed to the nature and import of the covenants and restrictions contained in appellants' deeds. Respondent contends that under the provisions contained in the deeds, it had a right to adopt a rule not only reasonably resricting the use of boats and motors on the lake, but also to completely prohibit the operation of motorboats thereon, including that of appellants. Appellants argue that under the covenants and restrictions contained in their deeds, the respondent has authority only to reasonably restrict the use of a motorboat and not to completely prohibit and prevent such use.
The initial inquiry then is whether or not the Land Company under the rights reserved in its deeds, may absolutely prohibit the use by appellants of a motorboat on Forest Lake.
Appellants' rights are derived from their deeds which are couched in language of respondent's own selection. The intention of the parties with reference to the property conveyed and the rights granted must be ascertained only from a fair construction of the words used in the deeds.
By its deeds, the respondent granted to appellants, their heirs and assigns, the right and privilege as appurtenant to the lots conveyed, to fishing, hunting, boating and swimming in Forest Lake subject to the following: '(c) That the use of Forest Lake shall be subject to reasonable rules of the Grantor, which may provide for closed seasons or terms for fishing or hunting and reasonably restrict the use of certain kinds of boats or motors and other kinds of craft.'
We find no ambiguity in the foregoing quoted provision. It creats an easement by express grant which gives to appellants the right and privilege of operating a motor boat on Forest Lake, subject only to respondent's reserved right to reasonably restrict such use. This easement is appurrtenant to the lots and constitutes an appropriate and useful adjunct to the land conveyed. An affirmative right such as we have here is one which entitles the owner of the dominant tenement (the appellants) to use the servient tenement, or clothes him with authority to do some act on the servient tenement which would otherwise be unlawful.
The generally approved definition of an easement is that it is a liberty, privilege or advantage without profit, which the owner of one parcel of land may have in the lands of another; or to state it from the opposite point of view, it is a service which one estate owes to another, or a right or privilege in one man's estate for the advantage or convenience of the owner of another estate. Brasington v. Williams, 143 S.C. 223, 141 S.E. 375; 28 C.J.S., Easements, § 1, Page 619.
The crucial issue presented here is whether the phrase 'reasonably restrict,' with reference to the use of certain kinds of boats or motors, may be construed to mean 'prohibit.'
The words 'prohibit' and 'restrict' are not synonymous. They are not alike in their meaning in their ordinary use; nor may it be gathered from a consideration of the context of the covenant or restriction under consideration, that when the expression 'reasonably restrict' was used it meant prohibit or reasonably prohibit. As found in Vol. 37, Words and Phrases, Perm.Ed. Page 465, 'To 'restrict' is to restrain within bounds; to limit; to confine, and does not mean to destroy or prohibit.'
We find this same definition in Webster's New International Dictionary and in 54 C.J., Page 735.
Appellants were given the privilege and right, expressly granted, of boating on Forest Lake, subject to reasonable rules to be adopted by the grantor (respondent), and subject to the reserved right of the grantor to 'reasonably restrict the use of certain kinds of boats and motors and other kinds of craft.' If the intention of the grantor had been to utterly prevent the use of any kind of motorboard on Forest Lake, such intention could have been expressed in very clear and simple terms. But this was not done. Nor can such intention be deduced from the expression 'reasonably restrict.' As was well said in 26 C.J.S., Deeds, § 163, Page 517: '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.'
The fundamental rule in construing covenants and restrictive agreements is that the intention of the parties as shown by the agreement, governs. The intention is determined by a fair interpretation of the grant or reserve creating the easement. 14 Am.Jur., Sec. 211, Page 620.
In our opinion, the easement existing in favor of ap...
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