Vickery v. Powell

• Decision Date: 09 June 1976
• Docket Number: No. 20235,20235
• Citation: 267 S.C. 23,225 S.E.2d 856
• Court: South Carolina Supreme Court
• Parties: Gary VICKERY, James K. Carey, Ramond Taylor, Roger L. Sears, Alfred Hooper, and George O. Williams, Individually and as Members of The Rolling Acres Landowners Association, Respondents, v. Henry POWELL, Grady Watkins, James Burris, Grady Tilley, J. D. Tribble, Waymon Lee Martin, Jimmy Martin, Roy Vickery, Kenneth W. Barker and G. H. Bert, of which Henry Powell, Grady Watkins, Grady Tilley, J. D. Tribble, Waymon Lee Martin, and Jimmy Martin are the Appellants.

Page 856

225 S.E.2d 856

267 S.C. 23

Gary VICKERY, James K. Carey, Ramond Taylor, Roger L. Sears,

Alfred Hooper, and George O. Williams,

Individually and as Members of The

Rolling Acres Landowners

Association, Respondents, v. Henry POWELL, Grady Watkins, James Burris, Grady Tilley, J.

D. Tribble, Waymon Lee Martin, Jimmy Martin, Roy Vickery,

Kenneth W. Barker and G. H. Bert, of which Henry Powell,

Grady Watkins, Grady Tilley, J. D. Tribble, Waymon Lee

Martin, and Jimmy Martin are the Appellants.

No. 20235.

Supreme Court of South Carolina.

June 9, 1976.

M. A. McAlister, Anderson, for appellants.

L. Henry Raines, Anderson, for respondents.

GREGORY, Justice:

The basic issue involved here is whether a uniform set of restrictions imposed in deeds to an identifiable portion of a subdivision created a common scheme of development initiating mutual restrictive covenants enforceable by any grantee of a restricted deed against any other grantee.

This is a class action brought by the respondents in December 1973 against the appellants, all of whom are owners of property situated in a subdivision known as 'Rolling Acres' in Anderson County, South Carolina, wherein the respondents sought injunctive relief contending restrictions against the use of mobile homes as contained in all deeds to land sold between two creeks in Rolling Acres Subdivision is enforceable Inter sese on the theory of mutual covenants or negative equitable easement.

In January of 1973 a class action was filed by many of the present respondents against many of the present appellants wherein it was contended that the entire subdivision was restricted against the use of mobile homes and injunctive relief was prayed for. That action was dismissed without prejudice.

The matter was referred to a Special Referee who held hearings on the matter and recommended the respondents be granted injunctive relief based on his finding that restrictions contained in the deeds to lots between the creeks created restrictive covenants. The action was dismissed against Mr. Roy Vickery, whose home, although having the appearance and shape of a mobile home, was found by the Referee not to be one within the prohibition of the deed restrictions as it was constructed from the ground up and was not, and had never been, mobile. Timely exceptions were taken by appellants and heard by Judge Glenn who entered his order April 2, 1975 confirming the report of the Special Referee. On April 14, 1975 notice of intention to appeal was served and this appeal followed.

Most of the appellants live in mobile homes, some from the inception of 'Rolling Acres', and it is their contention that: (1) No general scheme of improvement has been inaugurated which could give birth to a negative easement of mutuality of covenant and consideration; (2) That since all deeds to lots in 'Rolling Acres' refer only to 'Rolling Acres', there is no notice which would delineate that part of 'Rolling Acres' in which mobile homes are permissible and that part in which they are prohibited; (3) That if a negative equitable easement does exist, or if there is mutuality of covenant and consideration between the grantees, the respondents should be denied injunctive relief on the ground of laches and estopped from enforcing such.

Although appellants pose four questions for our consideration, it is unnecessary to reach those concerning estoppel and notice as we find the first question dispositive of all issues involved. The basic question is whether the following restrictions imposed on all those deeds to land between the creeks in Rolling Acres Subdivision inaugurated a general scheme of improvement giving rise to mutuality of covenant enforceable Inter sese.

'For the benefit of the Grantor and Grantee, the following restrictions are hereby imposed on the above described property: (a) no limitations of size of dwellings; (b) all dwellings to be constructed of new materials on the outside and all wooden or frame exposed areas are to be painted; (c) no tin roofs permitted on any dwellings; (d) no outside sanitary buildings; (e) no out-buildings or sheds or barns to be permitted on building lots unless they are completely painted; (f) no junk automobiles or truck bodies permitted on premises; (g) no storage of old lumber or items of an unsightly nature accumulated on any building lot; (h) no trailer home or mobile home will be allowed; (i) no pigs or swine will be allowed on any building lot; (j) no dog kennels or dog breeding will be allowed on any building lot; and (k) farm animals, namely, horses, cows or farm fowl--chickens or turkeys--will be permitted on lots consisting of two (2) acres or more.'

There is no dedication to residential or business use in the above restrictions, nor any statement of purpose other than they are for the benefit of the Grantor and Grantee. There is nothing to designate the use of occupancy. The record reveals that the property is open for commercial purposes and is being utilized as such in at least two instances (a...