Hunnicutt v. Rickenbacker, 20425
| Decision Date | 12 May 1977 |
| Docket Number | No. 20425,20425 |
| Citation | 234 S.E.2d 887,268 S.C. 511 |
| Court | South Carolina Supreme Court |
| Parties | Harriette G. HUNNICUTT, Mary P. Kirby, Clyde W. Hanes, Robert A. Griggs, F. Lawton Irick, Jr., L. O. Tucker, John J. Koopman, R. E. Shuler, R. H. Cauthen, Respondents, v. Robert C. RICKENBACKER, Jr., and Judith M. Rickenbacker, Appellants. |
Furman R. Gressette, Charles H. Richardson and Gressette & Gressette, St. Matthews, for appellants.
Horger, Horger & Barnwell, Orangeburg, for respondents.
This appeal is from an order of the lower court permanently enjoining appellants from the commercial use of a lot owned by them and directing that a building constructed on the property by appellants be removed within one hundred twenty (120) days.
Appellants and respondents own lots in Homestead Acres, a residential subdivision in the Town of Holly Hill, South Carolina. While appellants argue that there was no proof of the fact, their answer conclusively admits that "plaintiffs and defendants own certain property heretofore conveyed by Mary Graham Wiggins to S. J. McCoy, et al . . . and the lands thereby conveyed . . . had a general scheme and plan adopted for them with certain restrictions and conditions designated in the conveyance . . . one of which was that the property was not to be used for commercial purposes." Appellants' answer further admits "the purchase of the property with notice of restrictions and conditions in the conveyance." The existence of the restrictions against commercial use, established in accordance with the general plan and scheme of the common grantor, was, therefore, admitted, rendering further proof thereof unnecessary.
Although their deed was subject to the restriction that "no portion of the property . . . conveyed . . . shall be used for commercial purposes," appellants began construction of a commercial type building on their lot about October 1974 to be used for commercial purposes. Construction of the building was continued over the objections of respondents and was prosecuted to near completion, when construction was stopped by a temporary restraining order issued by the lower court after respondents instituted this action.
The complaint of respondents sought a permanent injunction against appellants' use of the property for commercial purposes. Subsequently, prior to a hearing on the merits, a motion by respondents to amend the complaint, so as to also seek a mandatory injunction requiring the removal of the structure which appellants had already constructed, was granted in the proper exercise of the court's power under Code Section 10-692 to grant amendments to the pleadings, either before or after judgment, in furtherance of justice.
The appellants alleged in their answer, by way of defense, that the restrictions against commercial use had been abandoned; that there has been such radical changes in the neighborhood as to destroy the purposes of the restrictions; that respondents are estopped to bring this action because of their own engagement in commercial activities in the area; that respondents were guilty of laches; and that the equities are in appellants' favor. Appellants also interposed a counterclaim in the amount of $20,000.00.
The trial judge, after hearing the testimony, decided all factual issues in respondents' favor and permanently enjoined appellants from using their property for commercial purposes. This involved findings that the restriction against commercial use had not been abandoned and that, with only one or two minor inconsequential exceptions, the neighborhood had retained its residential character in accordance with the original general plan and scheme adopted by the common grantor. The evidence amply sustains these findings. There was no evidence to sustain appellants' contention that respondents were barred by laches or estoppel from asserting their right to have the restriction enforced. The trial judge, therefore, correctly issued a permanent injunction against the use of appellants' property for commercial purposes.
Affirmance of the...
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