Pitts v. Brown

Decision Date12 July 1949
Docket Number16236.
Citation54 S.E.2d 538,215 S.C. 122
PartiesPITTS v. BROWN et al.
CourtSouth Carolina Supreme Court

[Copyrighted Material Omitted]

Hingson & Todd, Greenville, for appellant.

Mann & Arnold, Greenville, for respondents.

FISHBURNE Justice.

This is a suit in equity instituted by the appellant to restrain the respondents (defendants below) from erecting upon their lot adjoining that of appellant, a business building, in violation, as appellant claims, of restrictions contained in conveyances of their respective premises from a common vendor, to whom their titles are traced through mesne conveyances. The lots in question are located in a subdivision known as Sans Souci Villa, situated about two miles outside of the city limits of Greenville. The paramount issue to be decided is whether the use and occupancy of the property is limited to residential purposes only.

When the cause came on for hearing, the parties waived a reference and agreed that the trial court should hear the evidence find the facts, and render its judgment thereon. This was done, and the court held that the various deeds out of the common grantor, The Suburban Land Company, contained no uniformity of restrictions applicable to the entire subdivision; and it was adjudged that no general building scheme having been founded on restrictions, they were not enforceable. The court dissolved the preliminary injunction previously granted and dismissed the complaint. From this judgment M. H. Pitts prosecutes this appeal.

In 1911, the Suburban Land Company, having acquired a tract of land near the city of Greenville, consisting of twenty five and 97/100 acres situate on the North side of Buncombe Road, had the property surveyed and divided into five blocks, containing fifty eight building lots. The plat, which was duly recorded, shows the shape of the respective lots, their numbers and dimensions, and the newly opened streets upon which they are located. The Suburban Land Company constructed sidewalks, provided public utilities, and ultimately sold all of the lots by various deeds from 1911 to 1920. Most of the lots were sold, however, during the first two or three years.

The Suburban Land Company obtained title to this tract from J. W. Gray, Master, by deed dated May 4, 1911, in a partition proceeding involving a part of the lands belonging to what was known as the Perry Estate. The suit was brought, seeking approval by the court of a contemplated sale of the property to a real estate company for division into lots for a residential district. The court approved the sale, and in its decree imposed certain restrictions on the property to be conveyed, one of which was that 'No part of the real estate shall be used for any other purpose than as sites for dwelling houses.'

The decree of the court further provided that no part of the lands conveyed should be sold, devised, leased or otherwise disposed of to persons of African descent; and that no dwelling house should be erected thereon costing less than Fifteen Hundred Dollars; these restrictions to bind the purchasers, their heirs and assigns, and all other persons holding under them.

The two lots which we are concerned are located in Block A of the subdivision. Block A contains lots numbered from one to fourteen. Lot No. 10 fronts on Brockman Avenue, with its Southern boundary on Buncombe Road. The respondents purchased the rear portion of this lot on March 1, 1947. It has a frontage on Buncombe Road of seventy feet and a depth of eighty eight feet.

May 20, 1947, the appellant acquired title to the lot known as 9B, immediately adjacent to Lot No. 10, and fronting on Buncombe Road. On appellant's lot there is a large, well kept dwelling house in which he resides and for which he paid $8,000.00. There is also a large two-story dwelling house on Lot No. 10, fronting on Brockman Avenue, but there is no building on the rear portion of Lot No. 10. The respondents were undertaking to construct a business building thereon and were prevented from doing so only by the preliminary injunction granted by the trial judge.

There are no restrictive covenants in the deeds under which appellant and respondents obtained title to their respective lots from their immediate grantors. The restrictions by which they are bound, are contained in the conveyances from the common grantor to their predecessors in title.

All deeds by The Suburban Land Company conveying lots in Sans Souci Villa were introduced in evidence. The following restrictions were imposed on Lot No. 10, the rear portion of which is now owned by respondents: (a) The property should not be sold, rented or otherwise disposed of to persons of African descent; (b) No house to be built on the lot costing less than Fifteen Hundred Dollars; and (c) that anything that would constitute a nuisance or injure the value of any adjoining lots will not be permitted.

The foregoing restrictions were likewise imposed on Lot No. 33. And identical restrictions were imposed on Lots Nos. 14, 32 and 37, except that with reference to the three last named lots there is the additional restriction that no building shall be erected thereon nearer than the building line shown on the plat, which building line is twenty five feet from all sidewalks.

The restrictions placed on Lots Nos. 6, 8 and 9, which are now owned by appellant and designated as Lot No. 9B, are identical with those imposed on Lots Nos. 14, 32 and 37 above mentioned, except that in the deed from the original grantor there is no provision that anything which would constitute a nuisance or injure the value of any adjoining lot will not be permitted.

The respondents admit that they contemplate the erection of a building on their lot which is to be used for business and not for residential purposes. They raise the issue that the lots contained in the entire subdivision are not subject to any uniform restrictions, that this lack of uniformity is evidence by the fact that restrictions vary as to certain lots and are omitted as to others, and are therefore unenforceable. Appellant contends that there was a general building scheme inaugurated for the use and occupancy of the property for residential purposes only; and that the variations and omissions with reference to restrictions are so slight and negligible as not to affect the general uniformity of the restrictive covenants which were imposed on the various lots for the protection and mutual benefit of all lot purchasers.

The record shows that in disposing by deed of the fifty eight lots composing Sans Souci Villa, The Suburban Land Company imposed restrictions on fifty two of them. While the restrictions varied slightly in eight of the conveyances, they were identical in forty four of them; and all of the fifty two lots were restricted to the erection of houses costing not less than $1500.00, and as to use by and conveyance to negroes. Six lots of the fifty eight were conveyed without any restrictions.

The trial court overruled appellant's contention and held that there was no uniform scheme of development, no mutuality in restrictions, and that no negative easement had been established. We are unable to agree with the conclusion reached by the trial court.

It is undisputed, as bearing upon a neighborhood building scheme, that although the property was subdivided and all lots sold by 1920, yet in 1948,--twenty eight years later,--and now, there are well kept residences on each and every lot in the subdivision. This, we take it, is well nigh unanswerable evidence that the general plan of a residential neighborhood has been maintained since its inception and that this general understanding of use and occupancy has been accepted, relied on, and acted upon by all of the lot owners. We think that the scheme from the beginning contemplated that no part of the Sans Souci tract should be used for commercial purposes. And an examination of the evidence completely confirms this view. The salient facts are not in dispute, and we are unable to regard an enterprise which has been developed in the manner stated as not embracing the necessary elements of a general scheme or plan to subject the several lots in the tract to the operation of uniform restrictions.

As was said in the case of Hooper v. Lottman, Tex.Civ.App., 171 S.W. 270, 272:

'Uniformity in the restrictions imposed on the lots is one of the strongest proofs of the existence of a building scheme. It is an evidentiary matter only, however, and any deviation from uniformity, as to restrictions imposed on any of the grantees, is often seized upon, as a defense to an action to enforce the covenant, on the theory that a general plan of improvement is not shown. There may, however, be departures from the usual restrictions in individual cases without destroying the integrity of the scheme of development as a whole. A want of absolute uniformity for reasons readily apparent does not militate against the view that the restrictions in the deed were in pursuance of a general scheme for improvement of the property. Coates v. Cullingford, 147 A.D. 39, 131 N.Y.S. 700; Morrow v. Hasselman, 69 N.J.Eq. 612, 61 A. 369. And although some of the lots may have written restrictions imposed upon them and others may not, yet if the general plan has been maintained from its inception, without material departure therefrom, and if it has been understood and relied upon by those concerned, it is binding and enforceable inter sese. Allen v. Detroit, 167 Mich. 464, 133 N.W. 317, 36 L.R.A.,N.S., 890.'

It is true that the restriction prohibiting anything that would constitute a nuisance or injure the value of any adjoining lots, is imposed...

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