Home Sales, Inc. v. City of North Myrtle Beach, 1303

• Decision Date: 07 December 1988
• Docket Number: No. 1303,1303
• Citation: 299 S.C. 70,382 S.E.2d 463
• Court: South Carolina Court of Appeals
• Parties: HOME SALES, INC., Respondent, v. CITY OF NORTH MYRTLE BEACH, and A. William Moss, of whom City of North Myrtle Beach is Appellant. . Heard

Page 463

382 S.E.2d 463

299 S.C. 70

HOME SALES, INC., Respondent, v. CITY OF NORTH MYRTLE BEACH, and A. William Moss, of whom City of North Myrtle Beach is Appellant.

No. 1303.

Court of Appeals of South Carolina.

Heard Dec. 7, 1988.

Decided March 13, 1989.

Louis M. Cook, North Myrtle Beach, and Roy D. Bates, Columbia, for appellant.

Howell V. Bellamy, Jr., Henrietta U. Golding and Preston B. Haines, III, of Bellamy, Rutenberg, Copeland, Epps, Gravely & Bowers, Myrtle Beach, for respondent.

PER CURIAM:

The appealed order of this case enjoined the City of North Myrtle Beach (the City) from opening up for public parking that part of Eighth Avenue running between Ocean Boulevard and the beach. We reverse and remand.

FACTS

Tilghman Estates, Inc., on or about August 25, 1949, subdivided a tract of land situate within the City limits of North Myrtle Beach. Tilghman Estates subdivided the property in order to develop it. The recorded plats of the subdivision reflect rectangular lots, some fronting on Ocean Boulevard, which was at the time of the subdivision a public highway running in a northerly and southerly direction through the subdivision. Other lots front on the platted streets designated as Fifth Avenue through Tenth Avenue which avenues run in an easterly and westerly direction between an area set aside on the subdivision plat as "Playground Park" which is adjacent to the high water mark of the beach and other lands of the Tilghman Estate designated as property to be developed.

Homes Sales, Inc., is the owner of a lot and residence located at the intersection of Ocean Boulevard and the street designated as Eighth Avenue on the subdivision plat. This property abuts the playground park or beach on its eastern boundary and is very valuable.

The City attempted to open that part of Eighth Avenue running between Ocean Boulevard and the playground park area on the beach.

Home Sales instituted this action against the City and by its amended complaint sought injunctive relief prohibiting the utilization of Eighth Avenue North between Ocean Boulevard and the sand dunes on the beach front for public parking. The complaint alleged, inter alia, (1) a cause of action seeking injunctive relief for the violation of applicable restrictive covenants, (2) a cause of action seeking injunctive relief for the violation of applicable City zoning ordinances and (3) a cause of action alleging the creation of and maintenance of a private and public nuisance.

The matter was referred to the master-in-equity with the right to enter a final order appealable directly to the Supreme Court.

The subdivision plat contains the following legend.

Restriction lines as shown must be observed. An easement of five feet is reserved along the rear end of all lots for public utilities. The reserved area along the beach front is for use by the community as a park and playground. The avenues may or may not be opened to the strand at the discretion of the owners.

In no case shall the front dune be disturbed by property owners without written consent of TILGHMAN ESTATES, Inc.

Tilghman Estates imposed upon the subdivision certain restrictive covenants by instrument dated March 25, 1950. The instrument creating the restrictive covenants is of record.

On March 3, 1983, Charles T. Tilghman, M.H. Tilghman, Catherine H. Tilghman and Mary Elizabeth Tilghman Dent, who presumptively were the owners of Tilghman Estates, Inc., now understood to be dissolved, executed a deed to the City in which they conveyed the avenues running from Ocean Boulevard to the beach and certain other property. The granting clause of the deed, which is in the usual form, grants, bargains, sells and releases unto the City, its successors and assigns forever the above-referred to property.

After the granting clause and after the description of the property conveyed the deed contains the following language.

The GRANTORS reserve the right to open or not open the street ends aforesaid to the beach, and they have yet to so open any of the street ends. The GRANTORS so hereby grant to the GRANTEE the right to open the said street ends to the beach for pedestrian traffic, but the same shall not be opened to the beach for motor vehicle traffic. This restriction shall not be construed to prevent the GRANTEE from opening the said street ends and utilizing the same for the parking of motor vehicles or any other lawful public purposes.

The habendum clause provided:

TO HAVE AND TO HOLD all and singular the premises before mentioned unto the said: GRANTEE, its successors forever in fee simple absolute.

The record reflects that for some years prior to the institution of this action, members of the public had on occasion driven their vehicles into the subject part of Eighth Avenue and pedestrians had use of the street end for access to and from the beach. The record also reflects that Home Sales used the avenue for purposes of entering the side entrance to its lot.

The evidence also reflects that on Memorial Day weekend, after the City had opened the street, that (1) approximately 30 cars parked in the designated parking area, some for several days, (2) there was some littering and a trash container was turned over, (3) people used the avenue for entrance to the beach where they made noise, and some slept on the beach, (4) at night lights from the automobiles using the avenue shined into the Home Sales residence and (5) the noise from the horns of people using the avenue could be heard by the people in the home located on Home Sales property. Importantly, however, Home Sales notified the City of Myrtle Beach of only one incident of disorderly conduct. The police promptly responded and, as far The appealed order found, inter alia, (1) that as a matter of fact the subdivision plat reserved to the discretion of the lot owners the right to open or not to open the avenues to the strand, (2) that the restrictive covenants contained in the declaration of restrictions apply to the subject property which is an avenue or avenue end, (3) that the City is subject to any and all covenants, restrictions and limitations placed upon the subject property by the original grantor as set forth in the recorded plats and the declaration of restrictions, (4) that the zoning laws of the City of North Myrtle Beach restrict the subject property to private single family residences and commercial parking lots are not permitted under the zoning ordinances, (5) that the City began implementing plans for the development of Eighth Avenue into a "public parking" lot, (6) that the City did not obtain the consent of the lot owners in the subdivision to utilize Eighth Avenue, (7) that the City removed certain existing vegetation, leveled the property and applied coquina to a substantial portion of the subject property, (8) that the utilization of the property for the purposes of parking interferes with the property rights of adjoining property owners and that at all hours of the day and night vehicles travel in and out of the parking area and the automobile lights and noise disturb the property owners; debris and trash were accumulating in the parking area, persons have been urinating in the area, etc., and (9) that prior to the aforesaid acts the adjoining property owners and the plaintiff did not experience disturbance of their quiet enjoyment of the property as they are now experiencing and have been experiencing since the creation of the parking lot.

                as the record shows, put an end to the alleged disorderly conduct.   There is no evidence of record indicating that Home Sales complained of or swore out a warrant against any person for disorderly conduct either on their property or Eighth Avenue
                

The appealed order then concluded as a matter of law that (1) the subject plat reserved to the property owners rather than Tilghman Estates, Inc., the exclusive right to open or not to open the avenues, (2) that the purported conveyance from Tilghman Estates to the City cannot be relied upon by the City in order to utilize Eighth Avenue, (3) that the City did not have the right to open the avenue because this right is with the property owners, (4) that the deed from the Tilghmans to the City is ineffective to convey the right to open Eighth Avenue because that right was clearly reserved to the owners (lot owners), (5) that the restrictive covenants contained in the declaration of restrictions were applicable to Eighth Avenue and prohibited the use of the subject property as a parking lot, (6) that even though the City contends that it is not utilizing the property for purposes of parking but rather has simply opened the street for vehicular and pedestrian traffic as an access to the beach, it is clear from the evidence that the City has created a parking lot, (7) that the City is subject to its own zoning ordinances which prohibit the use of the Eighth Avenue as a parking lot, (8) that the City has permitted the property to be used as a nuisance, (9) since the utilization of the property for the purpose of parking is violative of the zoning ordinances of the City, a nuisance per se exists and if not a nuisance per se a nuisance per accidens, (10) that the use by the City of the subject property deprives the plaintiff and others of the quiet enjoyment of their property and (11) based on the above findings of fact and conclusions of law, the appealed order enjoined the City from utilizing the subject property for parking.

ISSUES

The issues presented on appeal are whether (1) the subdivision plat conveyed to the property owners any power over the use of Eighth Avenue and the other avenues designated on the plat, (2) whether the City had a legal right to open Eighth Avenue for vehicular traffic and parking, (3) whether the opening of Eighth Avenue violated Home Sales' right of quiet enjoyment of its property, (4) whether the City intended to open a parking lot on Eighth Avenue rather than a street for access to and from...