Gibbs v. Kimbrell

• Decision Date: 18 January 1993
• Docket Number: No. 1968,1968
• Citation: 311 S.C. 261,428 S.E.2d 725
• Parties: A. Hugh GIBBS and Mary Settle Gibbs, Respondents, v. Wayne T. KIMBRELL and Peggy J. Kimbrell, Appellants. . Heard
• Court: South Carolina Court of Appeals

Page 725

428 S.E.2d 725

311 S.C. 261

A. Hugh GIBBS and Mary Settle Gibbs, Respondents, v. Wayne T. KIMBRELL and Peggy J. Kimbrell, Appellants.

No. 1968.

Court of Appeals of South Carolina.

Heard Jan. 18, 1993.

Decided March 15, 1993.

H. Lloyd Howard, Landrum, for appellants.

Joseph K. Maddox, Jr., Spartanburg, for respondents.

CURETON, Judge:

Wayne T. and Peggy J. Kimbrell appeal from an order requiring them to remove a shed from their property because its location violates their residential subdivision's covenants and restrictions, and enjoining them from future violation of these covenants and restrictions. We affirm as modified.

Diamond Point, a residential subdivision of approximately 45 lots, is subject to covenants and restrictions ("covenants") which were recorded in 1974. In 1976, the respondents, A. Hugh and Mary Settle Gibbs, purchased lots 13, 14, and 15 in the subdivision. These lots are contiguous and form a corner parcel at the intersection of Emerald Drive and Walnut Hill Road. Emerald Drive, the entrance to the subdivision, runs through the center of the subdivision from north to south, and abuts these three lots on their eastern boundary. Walnut Hill Road, which runs from north-east to south-west, abuts lot 13 on its northern boundary. In 1980, the Gibbs' built a house on lot 13.

The Kimbrells purchased lots 11 and 12 from the Reids on May 4, 1989. Lots 11 and 12 are contiguous and form a corner parcel at the entrance to the subdivision. Emerald Drive abuts these two lots on their western boundary. Walnut Hill Road abuts lot 12 on its northern boundary. Lots 11 and 12 are directly across Emerald Drive from lots 13 and 14. An unnamed dirt road, which runs north to south, abuts lots 11 and 12 on their eastern boundaries.

The Reids operated a blueberry farm on lots 11 and 12 for over ten years and in 1987, with the permission of the Gibbs', built a shed on lot 12 to protect their blueberries from the sun. They operated the blueberry farm only on the weekends and as a part-time business.

The shed, which did not have a foundation or walls, was readily movable. The approximate dimensions of the shed are 10 feet by 20 feet. The shed is located approximately 30-40 feet east of Emerald Drive, more than 150 feet south of Walnut Hill Road, and within 25 feet of the boundary of lots 11 and 12. Whether the location of the shed violates the covenants is in part the subject of this litigation.

Shortly after the Kimbrells purchased lots 11 and 12, Mr. Kimbrell told Mr. Gibbs that he was contemplating the construction of a garage and operation of an automobile repair business on the lots. At a meeting of subdivision residents, Kimbrell refused to state his intentions. Subsequently, Kimbrell poured a concrete floor under the shed.

In October 1989, the Gibbs' brought an action to compel the Kimbrells to remove the shed, alleging that its location violated the 150 foot setback from the front of the lot, and the 25 foot setback from the side of the lot, ¹ required by the covenants. They sought to enjoin the Kimbrells from operating a car repair business in violation of these covenants, costs, and a temporary injunction. On June 27, 1990, the action was referred to the master-in-equity for final decision, with direct appeal to the Supreme Court. The order of reference also provided that "no buildings be erected on the [Kimbrells'] property during the pendency of this action."

Subsequent to the Gibbs' filing this action, the Kimbrells added walls, a door, and a window to the shed. The door of the shed faces toward Walnut Hill Road.

The main thrust of the Kimbrells' defenses argued at trial was that the covenants were unenforceable because they had been abandoned by the residents of the subdivision. The master ruled against the Kimbrells on all defenses, finding that the covenants were valid and that Emerald Drive was the "front" of lot 12. He ordered the Kimbrells to remove the shed in accordance with paragraph 2 of the covenants. ² He also ordered the Kimbrells not to operate an automobile repair shop on their lots in accordance with paragraph 7 of the covenants. ³

On appeal, the Kimbrells assert the master erred in finding Emerald Drive is the front of lot 12. They also assert that because the Gibbs' acquiesced or gave express permission for the Reids to build the shed on lot 12 and did not object to the shed's location for more than two years before the property was sold to them, the Gibbs' are barred by "laches, waiver, or estoppel" from enforcing the covenants. Finally, they assert that because they have taken no action to construct or otherwise operate an automobile repair shop, the court prematurely issued the injunction, and that, regardless, the injunction should have been limited in its term. ⁴

I.

The Kimbrells assert that because neither the subdivision's covenants nor plat define or designate which lot boundary is the front of their lots, they should have the option of choosing whether Emerald Drive or Walnut Hill Road is the front of their lot. ⁵ We disagree.

Although the Kimbrells have not built on lots 11 or 12, Mrs. Kimbrell testified at trial that they intend to build a house on lot 12 which will face north toward Walnut Hill Road. The Kimbrells argue that because the front entrance of their shed faces toward Walnut Hill Road, they have chosen Walnut Hill Road as the front of their lot. They also argue that "front of the lot" should be given its ordinary meaning, which is the direction the house "faces," or in the absence of a house, the direction which the Kimbrells have chosen for their house to face.

The Kimbrells assert that the trial judge erred because covenants restricting the free use of land are disfavored and unenforceable unless clear and reasonable in their terms. Archambault v. Sprouse, 218 S.C. 500, 507, 63 S.E.2d 459, 462 (1951). They assert that any ambiguity regarding which lot boundary is the front of lot 12 should be resolved against the Gibbs'. See Vickery v. Powell, 267 S.C. 23, 28, 225 S.E.2d 856, 858 (1976). They also argue that although no South Carolina cases are on point, courts in other jurisdictions have held that where covenants require a setback from the front of a corner lot, this setback only applies to the lot boundary toward which the building faces. Maher v. Park Homes, Inc., 258 Iowa 1291, 142 N.W.2d 430, 434 (1966); Rhinehart v. Leitch, 107 Conn. 400, 140 A. 763, 763 (1928); see Staley v. Mears, 13 Ill.App.2d 451, 142 N.E.2d 835, 837 (1957). Finally, if the developer intends to treat a setback as applicable to the several streets which bound a corner lot, he should express his intent in unambiguous language. Broeder v. Sucher Brothers, 331 Mich. 323, 49 N.W.2d 314, 316 (1951).

When faced with the question of determining which side of a corner lot is its front, courts have scrutinized the general development scheme of the neighborhood in question. Rhinehart, 140 A. at 764; see Staley, 142 N.E.2d at 837 ("It might be logically argued that the lot faces or fronts on the principal street.").

We consider Sprouse v. Winston, 212 S.C. 176, 46 S.E.2d 874 (1948), to be instructive. In Sprouse, our Supreme Court reviewed a plat and restrictive covenants to determine which lot boundary was the "inside lot line." The trial court had found that because the plat and covenants were ambiguous, there were two inside lot lines. The Supreme Court determined that there was no ambiguity. It stated: "where a common grantor ... inaugurates a general scheme of improvement [for a tract of land] ... and each lot ... is made subject to such scheme of improvement, there is created and annexed to the entire tract ... a negative equitable easement, in which the several purchasers of lots have an interest...." (citation omitted). Id. 212 S.C. at 184, 46 S.E.2d at 878. In granting relief to the appellant, it considered the subdivision's "general scheme of improvement" and determined that the purpose of the allegedly ambiguous restriction was to prevent the respondent's garage from blocking the light, view, and air of the appellant's house. See Hamilton v. CCM, Inc., 274 S.C. 152, 160, 263 S.E.2d 378, 382 (1980); Circle Square Co. v. Atlantis Development Co., 267 S.C. 618, 626, 230 S.E.2d 704, 707 (1976); Vickery, 267 S.C. at 27, 225 S.E.2d at 858.

Our review of the plat and the record establishes that the Kimbrells' lots are bounded by Emerald Drive which is within the subdivision and Walnut Hill Road which is outside the subdivision; there are three streets within the subdivision (Emerald Drive, Pearl Lane, and Walker Road); and the majority of lots within the subdivision border one of the three streets within the subdivision. ⁶

Although we agree with the Kimbrells that the Diamond Point covenants, if considered alone do not define the front of lot 12, we resolve this uncertainty by consideration of the general scheme of development of the subdivision and of what we conclude is the purpose of paragraph 2 of the covenants, to prevent construction of "outbuildings" or sheds within 150 feet of roads that are within the subdivision. Accordingly, we sustain the master's holding that Emerald Drive, which is within the subdivision, and not Walnut Hill Road, which is outside the subdivision, is the front boundary of lot 12. ⁷

An action to enforce restrictive covenants by injunction is in equity. Holling v. Margiotta, 231 S.C. 676, 679, 100 S.E.2d 397, 398 (1957). On appeal, in an equitable action tried by a master alone, this court is able to find facts in accordance with its own view of the evidence. Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976). The master's conclusions of law and findings of fact are supported by the preponderance of the evidence.

II.

The Kimbrells next assert that because the Gibbs' did not object to the Reids' operation of the blueberry farm, and gave their express permission to build a shed on lot...