Martin v. Cantrell, 16848

Decision Date22 March 1954
Docket NumberNo. 16848,16848
Citation225 S.C. 140,81 S.E.2d 37
CourtSouth Carolina Supreme Court
PartiesMARTIN v. CANTRELL et al.

Frank G. Carpenter, Greenville, for appellant.

Leatherwood, Walker, Tood & Mann, Greenville, for respondents.

GRENEKER, Acting Associate Justice.

The plaintiff, appellant here, brought her action in the County Court of Greenville County in March, 1953, seeking a declaratory judgment that certain restrictions upon her property prohibiting its use for other than residential purposes be declared void. The defendants, who were the other property owners in the subdivision, answered denying that the plaintiff was entitled to the relief sought. The matter was heard before Honorable W. B. McGowan, Judge of the Greenville County Court, without a jury, and after taking the testimony and hearing arguments he filed his decree on the 29th of August, 1953 holding that the plaintiff was not entitled to the relief sought, and this appeal is from the decree of that court.

The testimony shows that the appellant's lots are located just outside the corporate limits of the City of Greenville on the eastern side of the New Easley Bridge Road and are a part of a subdivision known as the Furman Development Company property. This tract was subdivided in 1923 by being cut into lots, laying out and constructing streets, curbs and sidewalks. The property consisted of forty-one lots, and of these lots, twenty-nine had substantially similar restrictions prohibiting their use for purposes other than residences. The appellant's property is included in these restricted lots. Twelve of the lots in the subdivision contained no restrictions, and upon one of these lots, located at an entrance to the subdivision, on the New Easley Bridge Road, has been constructed a drive-in known as Al's Ice Cream Bar. This business establishment adjoins appellant's property but had been constructed prior to the time appellant purchased her lots. Most, if not all, of the lots containing no restrictions already have residences constructed upon them. The number of vacant lots in the subdivision, if any, other than those of the appellant, does not clearly appear, as the appellant contended that there were six undeveloped lots, while the defendants' testimony was to the effect that there were no undeveloped lots except those of the appellant and several instances in which two lots were put together to make one residence site. Appellant admits that she knew of the restrictions upon her property at the time she purchased it. The record also reveals that the appellant attempted to use her property for business purposes shortly after she acquired it, that a temporary restraining order was served upon her preventing such use, and that the matter ended there. This proceeding is recognized by appellant, as she asks in her complaint 'that the injunction of the court dated November 24, 1947 be dissolved.' The subdivision is now composed of a number of moderately priced homes and has been a residential district, with the exception of one lot upon which the ice cream bar is located, ever since the tract was subdivided. A recorded plat of the property is made a part of the transcript. Plaintiff's property is designated on this plat as Lots 1 and 2 of Block G and a portion of Lot 17 of Block H. Lots 1 and 2 are contiguous, the former bordering on the New Easley Bridge Road; across Mauldin Street, opposite Lots 1 and 2, is Lot 17, which also borders on the New Easley Bridge Road.

The deeds conveying the various pieces of property to the appellant contain the following restrictions:

'1. This property shall be used exclusively for residential purposes and no mercantile establishment of any kind shall be erected.

'2. This property shall not be sold, rented, or otherwise disposed of to Negroes or to persons of African descent.

'3. That no building shall be erected nearer than fifteen feet to the front line.'

Provisions Two and Three are not involved in this action.

Quoting from the statement:

'The subdivision now is composed of a number of moderate priced but respectable homes and has been a residential district, with the exception of the one lot upon which the ice cream bar is located, since the tract was subdivided.'

There are four exceptions set out in the transcript, but the two questions presented by appellant are:

'(1) Has the appellant carried the required burden of proof in showing that there are no parties who may validly enforce the restrictions on her land?'

'(2) Has the appellant shown such a change as would make enforcement of restrictions inequitable?'

The trial court's answer to both of these questions was adverse to appellant's contention, and with that answer we concur.

The plaintiff seeks affirmative relief under the declaratory judgment act, and of course the burden of proof rests upon her in this action, as well as in other actions, to prove the material allegations of her complaint by the greater weight or preponderance of the testimony. Our attention has not been called to any authority where the burden of proof in an action under the declaratory judgment act rests any less heavily upon the shoulders of the plaintiff than in the ordinary civil action. Prudential Ins. Co. v. Cannon, 211 S.C. 134, 44 S.E.2d 25. It must be kept in mind that it is the plaintiff who is seeking to have the restrictions removed and not the defendants. Appellant has cited certain authorities which hold that where a party seeks to enforce restrictive covenants, such party must carry the burden of showing the covenants were intended to benefit his particular lot. We do not think, however, that those cases cited are applicable, for here we have the appellant attempting to assert the invalidity of the restrictions.

We have considered all of the exceptions, along with the questions presented, but the paramount issue to be decided is whether appellant's property may be used by her for purposes other than residential.

The undisputed testimony shows that this tract of land was subdivided in 1923, thirty-one years ago, and that no business establishments have been erected on any of the restricted lots; in fact, that the only business establishment of any kind within the subdivision is Al's Ice Cream Bar, which was established prior to the time plaintiff acquired her property and on an unrestricted lot. We take this as very strong and almost unanswerable evidence that the general plan of a residential area has been maintained since the date of the subdivision and that the property owners so regarded it. We think that the plan from the beginning contemplated that the restricted area was to be used only for residential purposes and we further think that the actions of the landowners since that time show conclusively that they purchased or built their homes in this are resting confident in the belief that they were building or purchasing homes which would be protected by the sanctity of the...

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15 cases
  • In re Willcox
    • United States
    • U.S. Bankruptcy Court — District of South Carolina
    • August 15, 2005
    ...his material allegations by a preponderance of the evidence. 316 S.C. 5, 10, 446 S.E.2d 417, 421 (S.C.1994) (citing Martin v. Cantrell, 225 S.C. 140, 81 S.E.2d 37 (1954)) (burden is plaintiff to prove material allegations of the complaint). Accordingly, under either analysis, Plaintiff must......
  • Pascoe v. Wilson, Appellate Case No. 2016–000671
    • United States
    • South Carolina Supreme Court
    • July 13, 2016
    ...his cases by a preponderance of the evidence. See Vermont Mut. Ins. Co. , 316 S.C. at 10, 446 S.E.2d at 421 (citing Martin v. Cantrell , 225 S.C. 140, 81 S.E.2d 37 (1954) (declaratory judgment)); 55 C.J.S. Mandamus § 405 (2016) (mandamus). A preponderance of the evidence is evidence which c......
  • C. Douglas Wilson & Co. v. Insurance Co. of North America, Philadelphia, Pa.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • January 10, 1979
    ...action, requires the plaintiff to sustain its burden of proof in the same manner as in an ordinary civil action, Martin v. Cantrell, 225 S.C. 140, 81 S.E.2d 37 (1954), I join the panel majority in this affirmance. See also: National Bank of South Carolina v. American Surety Co. of New York,......
  • Crossmann Cmtys. of N.C., Inc. v. Harleysville Mut. Ins. Co., 5292.
    • United States
    • South Carolina Court of Appeals
    • January 28, 2015
    ...which were not covered under the polices. The burden of proof in a declaratory judgment action rests on the plaintiff. Martin v. Cantrell, 225 S.C. 140, 144, 81 S.E.2d 37, 38–39 (1954). We find no error by the trial court in rejecting Appellants' bare assertion that all of the claims paid i......
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