Holling v. Margiotta, 17345

• Decision Date: 04 November 1957
• Docket Number: No. 17345,17345
• Citation: 100 S.E.2d 397,231 S.C. 676
• Parties: M. D. HOLLING and Gladys Sturcken Holling, Ruth Newman Buckhelster, Milton F. Nelson and Lois S. Nelson, in their own right and in behalf of others similarly situated and of like mind, Respondents, v. Nicholas MARGIOTTA, John A. Marglotta and Mutual Realty Co., a Corporation, Appellants.
• Court: South Carolina Supreme Court

Page 397

100 S.E.2d 397

231 S.C. 676

M. D. HOLLING and Gladys Sturcken Holling, Ruth Newman Buckhelster, Milton F. Nelson and Lois S. Nelson in their own right and in behalf of others similarly situated and of like mind, Respondents, v. Nicholas MARGIOTTA, John A. Marglotta and Mutual Realty Co. a Corporation, Appellants.

No. 17345.

Supreme Court of South Carolina.

Nov. 4, 1957.

Morris D. Rosen, Charleston, for appellants.

S. S. Seideman, M. L. McCrae, Jack P. Brickman, Charleston, for respondents.

STUKES, Chief Justice.

This is an action in equity to enforce by injunction restrictive covenants which relate to the lots in Stono Park subdivision in Charleston County. It was created in 1939, consisting of 124 lots, all of which were restricted to residential purposes except one which was designated No. 1 of block A, at the corner of U. S. Highway 17 and the Wappoo road. That lot is owned by one or more of the defendants and the front of it is occupied by a gasoline filling station and grocery store; at the rear was the sewing machine store and shop of the individual defendants. The corporate defendant, of which the individual defendants are the sole stockholders, acquired the adjoining lot on the highway, which is No. 2, in January 1956. Toward the rear and side (the southwest corner) of it was an occupied two-family garage apartment, part of the first floor of which was used by the grocery store for storage. The rest of the lot, the front of it, was and is used for free parking of vehicles of customers of the adjacent stores.

There is a civic club composed of the residents of the subdivision, of which the individual defendants are members and were formerly active in their cooperation to compel others to observe the restrictions. However, immediately upon the purchase by their corporation of lot No. 2 they converted the existing residential apartment into a commercial building by connecting it with the rear of the store building on lot No. 1, whereby their sewing machine establishment was extended into the first floor of the former apartment building. Its front was changed to include commercial display windows and an entrance from the highway was provided over lot No. 2. The outside front of the renovated building was painted with large multi-colored signs advertising the sewing machine business.

This action was commenced on May 4, 1956 by several residents of the subdivision in behalf of themselves and others similarly situated for injunction against the continued use of lot No. 2 in violation of the restrictive covenants. The master took the testimony, found the facts and recommended that the defendants and their representatives be enjoined from further use of lot No. 2 in violation of the covenants. Defendants' exceptions to the report were overruled by the court which issued its injunction against further commercial use of the lot and ordered the defendants to reconstruct the building, alter the appearance of it to that of a residence and relocate it to conform to the applicable restriction concerning side-line setback, all within thirty days from the date of the decree.

Defendants appeal and first contend that the character of the subdivision has so changed by the development of businesses nearby that it is inequitable to now enforce the covenants. Across the highway there are business establishments, but they are not within the boundaries of the subdivision. Martin v. Cantrell, 225 S.C. 140, 81 S.E.2d 37. In it there have been allowed a tourist home in a residence on the highway, a radio and T. V. shop in the garage at another residence, and one resident does automobile repairs gratis for his friends. These activities are inconsequential and have not changed substantially the residential character of the subdivision. Pitts v. Brown, 215 S.C. 122, 54 S.E.2d 538. The concurrent findings of the master and the court on this and other facts are conclusive upon appeal because they are not without evidence to support them and are not against the clear preponderance of the evidence. Archambault v. Sprouse, 218 S.C. 500, 63 S.E.2d 459.

The instrument whereby the restrictive covenants were created provides for the termination of them on January 1, 1963, with the following quoted provision, the effect of which need not be determined for the purpose of the decision of this appeal 'However the covenants and restrictions herein contained, or any portion thereof, may be extended for additional periods of time by making appropriate provisions therefor.' Appellants contend that this apparent, comparatively early end of the restrictions make inequitable the present enforcement of them. We do not agree. Under the facts here, the plaintiffs and other residents of the subdivision are entitled to enjoy the benefits of the restrictions as well during the last six years of the term as any other like period of it. The following comment is quoted from the...