Newton v. Batson, 16769

• Decision Date: 03 August 1953
• Docket Number: No. 16769,16769
• Citation: 223 S.C. 545,77 S.E.2d 212
• Court: South Carolina Supreme Court
• Parties: NEWTON v. BATSON.

Page 212

77 S.E.2d 212

223 S.C. 545

NEWTON v. BATSON.

No. 16769.

Supreme Court of South Carolina.

Aug. 3, 1953.

The Order of Judge Greneker requested to be reported follows:

This matter comes before me upon defendant's Exceptions to the Master's Report dated December 2, 1952, recommending the relief sought by the plaintiff. On February 3, 1953, I heard arguments of counsel and have carefully considered the record in the case.

On August 10, 1919, there was filed in the Register of Mesne Conveyances for Greenville County in Plat Book E at Page 137, a plat of a subdivision designated as 'Crescent Terrace, Property of Poinsett Realty Company.' Plaintiff and defendant both purchased residential lots according to this plat many years ago. There are several small lots of triangular shape distinguished from the remaining lots by ink markings or stippling. One of these lots, No. 97, the subject of this suit, adjoins plaintiff's lot on which his home stands.

More than 25 years ago the Poinsett Realty Company, was liquidated, having disposed of all of the property shown on the plat except the triangular lots. On January 11, 1951, the defendant purchased Lot No. 97 from the liquidating trustees of Poinsett Realty Company and shortly thereafter erected a steel post and wire fence around this lot. The plaintiff thereupon instituted this suit seeking an order to require the defendant to remove the fence and to restrain the defendant from making any use of said lot inconsistent with its use as a park or beautified area; the plaintiff also sought a declaratory judgment declaring the lot to be a park or beautified area. The plaintiff's position is that the triangular lots were marked and intended as park or beautified areas for the benefit of the other lots of the subdivision, and that as an owner of property abutting on one of these triangular lots, plaintiff has a special property interest entitling him to preserve the use of the property as a park or beautified area.

The Master found as a fact that Lot No. 97 was intended and used as a park or beautified area for more than 25 years and that the defendant had notice of this fact. The Master further found that the plaintiff gave timely notice of his claim to the defendant and concluded as a matter of law that the plaintiff was entitled to the relief sought.

The defendants seasonably served Exceptions to the Master's Report setting forth eleven alleged grounds of error. Rather than consider them seriatim the points raised by them will be considered together in this Order.

There is abundant testimony and evidence that Lot No. 97 was intended and used as a park or beautified area. The plat showing the subdivision was examined by me and it is apparent, both from the markings on the lot as well as from the size of the lot, that it was not intended for a residential lot but was intended for some special purpose. Lawyers expert in the field of title work testified as to the special significance of the markings. There is the testimony of numerous residents of the community as to the representations made by real estate agents handling the sale of the lots in the subdivision and as to the use to which Lot No. 97 was put over a period of more than 25 years. The fact that the corporation owning the subdivision went into liquidation more than 25 years before attempting to dispose of Lot No. 97 indicates that the corporation considered that it was not saleable. The fact that the defendant herself treated and referred to the lot as a park area is persuasive evidence. The Master's Findings of Fact is abundantly sustained by the evidence.

The defendant takes exception to the testimony regarding representations of the real estate agents basing his objection on the parol evidence rule. Defendant cites Drake v. Drake, 148 S.C. 147, 145 S.E. 705, Greene v. Mobley, 112 S.C. 275, 99 S.E. 814, and other cases for the familiar rule that parol evidence is not admissible to contradict the terms of a written contract or deed. While this rule is universally recognized, it has no application to the testimony in the case at Bar; in this case, the testimony as to the representations of the real estate agents is simply some evidence of the intention of the developers of the subdivision. Testimony as to representations of real estate agents who were named on the recorded plat as the agents is competent to show what was meant by the markings on Lot No. 97. Furthermore, the Master did not base his decision on this testimony alone, but independent of this evidence reached his conclusion on other evidence which clearly showed that Lot 97 was intended as a park area.

Defendants Exceptions attack the conclusion of law of the Master especially with regard to the property interest which the plaintiff has. These exceptions have no merit in view of the cases of Billings v. McDaniel, 217 S.C. 261, 60 S.E.2d 592 and Cason v. Gibson, 217 S.C. 500, 61 S.E.2d 58. The defendant makes a point of the fact that there was never any acceptance of the public authorities of the lot in dispute. This fact is not controlling as to the plaintiff's rights.

'* * * This being the law, the land owner, when he lays off his land into lots, streets, and alleys, and has the same platted, and then sells lots with reference to the map thereof, must be presumed to know that he thereby dedicates such streets and alleys to the use of such lot owners and the public; and the rights of the lot owner are not to wait in abeyance until the public authorities see fit to accept and take charge of such streets and alleys, but he is at once entitled to have all such streets and alleys opened for his use, necessary to the enjoyment of his property. All such streets and alleys must be considered as appurtenant thereto, for they begin at his property and extend in a network all over the land platted.' Billings v. McDaniel, supra, 217 S.C. at page 265, 60 S.E.2d at page 594. (Emphasis added.)

'Cases from many...