Schroeder v. O'Neill

• Decision Date: 18 March 1936
• Docket Number: 14258.
• Citation: Schroeder v. O'Neill, 184 S.E. 679, 179 S.C. 310 (S.C. 1936)
• Parties: SCHROEDER v. O'NEILL et al.
• Court: South Carolina Supreme Court

184 S.E. 679

179 S.C. 310

SCHROEDER v. O'NEILL et al.

No. 14258.

Supreme Court of South Carolina

March 18, 1936

Appeal from Common Pleas Circuit Court of Charleston County; G. B Greene, Judge.

Action by Ida W. Schroeder against Harry J. O'Neill and others.From an adverse order, the plaintiff appeals.

Affirmed.

The order of Judge Greene, requested to be reported, follows:

This case was heard by me at Charleston at the November, 1934 term, and was fully argued by counsel on both sides.

The suit was brought by the plaintiff, the holder of a license to a front beach lot on Sullivans Island, against the board of township commissioners of the island and certain other more recent licensees of lots on the island to restrain the erection of any buildings by the latter upon certain lots lying between plaintiff's lot and the Atlantic Ocean, and to declare the licenses of these lots null and void.These lots in front of plaintiff's lot had been laid out by the board from an area which somewhat recently had increased by accretion from the ocean bed between the plaintiff's lot and the Atlantic Ocean.The board had then issued licenses of these lots for value to the other defendants or their predecessors in interest.In other words, it appears that the shore line in front of plaintiff's lot retreated to the seaward, thus making in front of plaintiff's lot land which had before that been covered by water, and from this area of land so cast up from the ocean onto the beach, the board of township commissioners of the island laid off lots and sold licenses for such lots to the other defendants.

The plaintiff, to sustain her complaint, relies upon two positions, viz.:

First that the licenses of these lots are illegal and void on the ground that under the statutes of this state the board was without power to issue licenses for lots containing less than one-half acre each.It is not disputed that these lots in question are each less than one-half acre in content.

Secondly that even if such licenses were not unlawful at the time of issuance, they became void by the failure of any of these licensees, or their assigns, to build a dwelling house on said lot within one year after the date of the issuance of the licenses.

The answers of the defendants are in some respects different but, briefly stating the essentials, they all, including the answer of the board, take issue with the construction of the statutes taken by the plaintiff.The answers of the lotholding defendants further set forth that they paid to the board $100 each for their licenses and attempted to build or would have built, but the board declined to issue permits to them to build, and, in view of threatened litigation, passed resolutions extending the time to build until the question which had been raised as to the legality of the licenses had been definitely settled and the licensees so advised in writing by the board.Among other things, the answers, or certain of them, set forth the payment to the board each year of a yearly assessment of $10 for each lot, which they contend operated to renew the license from year to year, and created an estoppel in their favor against a forfeiture of their payments and their rights or interests in these lots.Various positions as to title, estoppel, acquiescence, waiver, easements, and forfeiture of the purchase price and assessments paid also are set forth at length in the answers.

The case has already been before the Supreme Court upon appeal from an order denying a jury trial.The order appealed from went further, as the Supreme Court said, and construed the statutes bearing on the question without regard to "the defenses set up by the defendants, to such an extent as virtually to dismiss the answers and to decide the case in favor of the plaintiff."The opinion of the Supreme Court held the action was equitable and it was not error to refuse trial by jury or to refuse to frame issues for a jury, and that "such equitable issues as are present in this cause should be passed upon by the court."The opinion, however, modified the order below in its construction of the statutes and directed "that in the trial of this cause hereafter the reasoning of the Circuit Judge in refusing the order based upon his construction of the statute law be disregarded as being unnecessary to his decision of the motion."The Supreme Court, however, expressly declined "to decide the issues in the absence of testimony and with nothing before it to substantiate the allegations of the complaint or the defenses set out to the answers."Schroeder v. O'Neill et al.,166 S.C. 515, 165 S.E. 175.

The case was accordingly brought for decision before me at the November term in Charleston upon a stipulation of facts with letters and papers appended, supplemented by some oral testimony and certain maps and exhibits introduced in evidence before me.

From the facts so stipulated, and the testimony and evidence introduced, it appears and I so find, that the plaintiff is, and has been, since 1923, the owner of the occupational rights of lot No. 261, on Sullivans Island, containing one-half acre and entitled to such rights as inure to a licensee under the peculiar form of tenure prevailing on Sullivans Island under the statutes.The description of her lot gives the front beach as her southern boundary.

On March 22, 1926, the board of township commissioners of Sullivans Island issued to the other defendants, or to their predecessors in interest, the usual licenses to the eight lots in question which the board had caused to be laid off as delineated upon a map made by Richard C. Rhett, surveyor, on March 16, 1926, recorded in R. M. C. office, Charleston county, in Plat Book E, page 33.Each of these lots is less than one-half acre.The licensees of these eight lots each paid the board $100 as license fees for the lots.The licensees, or their assigns, have since paid to the board each year their annual assessments of $10 per year on each lot; until 1929 in some instances, in others until 1930, and still others until 1931.This suit was commenced on August 25, 1930, and it appears that before that time the board accepted and retained these payments and no tender or reimbursement thereof was made by the board to any of the licensees.In the case of the defendantIrma Blank, for instance, it appears that the board accepted her annual payments of assessments of $10, paid for the use, occupation, and enjoyment of her lot, for the years 1930 and prior thereto; but that the check for $10 for her 1931 assessment was returned by the board, with the statement to the effect that the board is of opinion that these amounts should not be collected.The correspondence is attached to the stipulation of facts.On July 10, 1931, the clerk of the board wrote a letter quoting a resolution of the board "that during the time this controversy is in the courts and until its decision the Board will not enforce the payment of assessments on lots affected by this case."

On March 24, 1930, the clerk of the board wrote one of these lotholders advising of a resolution of the board that unless a habitable building be placed on each lot by January 1, 1931, the lot would be declared vacant and forfeited to the commission; but on July 8, 1930, he wrote to disregard that resolution, as a suit was to be started to decide the question, and if the action is decided in favor of the board, the lotholders would be given one year from the date of the decision to build on said lots.

No dwelling house or other building has in fact been erected on any of the eight lots in question; but the board of township commissioners at a regular meeting on May 4, 1926, passed resolutions reciting that there was read to the board a letter of Annie W. Pringle(one of the licensees) stating that she was desirous of immediately building on one of these eight lots and stating that she was informed that a suit was about to be brought to test the validity of the presumptions and asking that the time of one year in which to build be extended.On motion it was unanimously resolved by the board "that the time for building on this lot, as well as for the remaining seven lots * * * likewise be extended, and that the time of one year should not commence to operate against any of the owners of the licenses to said lots, until this question of legality be definitely settled, and until they be so advised in writing by the Board."

The plaintiff took no steps until the commencement of this action, in August, 1930.The present board declined to issue any permits to build on any of these lots until the present controversy is determined by the court.No dwelling house having been erected on any of these eight lots, there has been no removal or destruction of any dwelling house upon any of them.

No other lotholders on the island have intervened or joined with the plaintiff in the suit.Before bringing suit, the plaintiff applied to the board demanding that the board bring proceedings in the court of common pleas to compel the licensees of these lots to desist from building.Upon refusal of board to sue, the plaintiff instituted this action.

Several questions raised in the answers may first be disposed of and laid aside, before coming to the two main questions at issue.

The plaintiff does not claim any title or right as a riparian proprietor to the land itself which has been built up by accretion in front of her lot.Her southern boundary is given as the beach, not the ocean, and her lot containing already one-half acre to which she is limited by law, she can have no proprietary interest in the area of accretion.

Likewise the plaintiff very properly did not claim any right to an easement of unobstructed ocean view, breezes, light,...