*1 It is uncontradicted this accident occurred private Counsel for property. these sections of urges defendant the Code were therefore to the facts of inapplicable this case reversible for error to include judge them in his Counsel for the contends that charge. plaintiff this was harmless merely error.
These sections Code were not intended to regulate of automobiles It was operation private upon property. therefore error the trial in his include them judge charge.
It course us impossible for to say certainty effect, what if this erroneous had any, charge jury. think, however, that the probability prejudice defendant that a trial must be sufficiently new strong granted.
Reversed and remanded.
Moss, C. concurs in result. Bussey concur. JJ.,
Lewis, Brailsford, al., WALDROP, Respondents, Hesby Jack H. et NANCE Wallace Appellant
(187 226) S. E. (2d) *2 Eddie R. Harbin, Greenville, Esq., Appellant, for Greenville, Jr., Victor Pyle, Esq., Pyle Pyle, & Respondents,
March 1972.
Littlejohn, Justice: defendant, Wallace Hesby is fee Waldrop, simple owner of a lot located at the intersection of West Lee Road and Wildwood Road Greenville Plaintiff County. Caro- lyn Staton the owner of an lot. The other adjoining plaintiffs own residential subdivisions known as Woodland Hills and Gardens. Hampton Wade These subdivisions surround the lots owned by plaintiff Staton and the defendant.
All to this action parties have as a common grantor their chains title, one Robert Edwards. Ed- J. *3 wards, as Edwards, committee and trustee for M. James instituted action in the Court of Common Pleas for Grеenville He County. a sought approval sale of of a 500-acre portion tract of land. The court’s decree pro- vided that all deeds out of Robert Edwards as Commit- J. tee, etc., should contain the following:
“It is understood this is made conveyance subject restrictions which following made of a expressly the consideration thereof: Said shall used
“(1) property solely be residential . . . purposes. No house shall be erected thereon less than
“(2) Four Thousand Five Hundred Dollars.” ($4,500.00) a result, As the of defendant’s use his subject to this restriction. 1969, son, summer the the defendant’s
Early Rob- ert W. to the defendant’s lot as a Waldrop, began develop trailer This suit was filed the Court of Common park. Pleas for Greenville County 1969. After August action, commencement Robert one Waldrop placed his resi- lot and it as occupied defendant’s trailer on the of all others and on behalf individually dence. plaintiffs, situated, the defendant from to enjoin similаrly sought in con- otherwise as trailer park his using The lower court covenant. restrictive travention of the The defendant has appealed. the injunction. granted At the Master before the Equity. case was tried his father representing аppeared, Robert Waldrop hearing, to use that his plan He testified attorney. under power been abandoned. a trailer had park as the defendant’s his trailer and however, did, occupy to continue to plan He for use on the lot another trailer his sister place to to allow her residence. as submits this defendant four appeal questions
Upon the view need for our determination. Under we take we one basic the defendant inquiry: May answеr move unit, residential onto lot and trailer-type without as a residence violating occupy with the Master and the trial agree above? quoted has been violated. restriction judge as the one covenants such involved In cоnstruing here, effect the intent give attempt we to consider the overall plan. It is proper parties. should, as as from nearly possible, Such intent gleaned However, circumstances sur- instrument itself. of covenants also be cоnsidered. rounding origin Charleston, 140 S. Cheves v. Council City *4 S.E. 867 (1927). then, when
What, were the circumstances in 1938 the restriction with which we concerned was trailer, was the fact that the born ? One circumstance mobile home or was unknown. “The virtually Swi- mid-twentieth century.” is a novеl development Richards, v. 178 N. E. Common gart (2d) (Court It can be said with of Ohio, Licking 1961). Pleas County, of whether trailers near certainty question be on this not permitted was even property considered by the court out of parties litigation which the rеstriction was Does this whelped. mean the re- striction in defendant’s deed should not be so interpreted as to of a prohibit trailer on placing defendant’s lot? think not.
The area where and defendant’s plaintiffs’ located has devеloped as a residential section. houses that have been constructed therein are permanent nature and rather substantial in Such was size. the situation when the trailer was on defendant’s lot. placed “residential”,
The use in the restrictions of words “house” and “erected” indicate an intent on the creator of the covenant that structures the nature of con- be homes built. ventional
Similar situations arisen other have jurisdictions. Gisi, v. Pagel 132 Colo. 286 P. an (1955), order thаt the defendant should move his house trailer was affirmed. There was court a restriction that enforcing be used houses dwelling not less $4,000.00. than The court said:
“When the defendant moved his house trailer on the premises thereon placed not a home . . permanent but . ‘a portable unit to be hauled from designed place place by automobile or truck and would detract from and reduce the value area any residential where it is per- mitted be locatеd. It in a trailer belongs court where such ” units are ambulatory permitted.’ Richards, cited in Pagel Swigart supra. There the restrictive covenant was and read: pre-1946 vintage
“No shall be erected or maintained building upon any one residence and used for except designed occupation by not more than single family and one and one-half stories . . .” height said, the court “the “Fundamentally,” what did question intend by language used.” parties parties *5 state as to that law how lаnguage action conceded The noted homes was non-existent. court to mobile applied that: many home mode of has created living
“The mobile in a amount social and economic resulting great problems and over the country, conflicting legislation regulatory de- decisions, due some court some perhaps confusing of factors involved and lack to unfamiliar knowledge gree precedent. guiding >1= * [*] “. home as a dwell- . . to the mobile relating Regulations will doubt years no coming with progress laws, zoning, re-valuation of existing regulatory require . . .” and taxation measure with welfare. respect public that The concluded injunction prohibiting court of a home on the defendant’s shоuld be placing granted.
The Master’s contains the observation: following report is uncontradicted this trailer does “The testimony not constitute the Defendant’s prop- permanent blocks no concrete un- It rests on concrеte slab erty. them; der the axle remains on the trailer with stored tires removed and and in being property; addition, testified wants Robert W. he nothing Waldrop removed since lot which would have to be permanent date to he at some build subsеquent permanent intends thereon.” conclusion evidence warrants general The founded on these scheme or plan development building has area evolved here question. in title have in this and their predecessors aсtion plaintiffs relied the restrictions devel- buying obviously upon in- surrounding circumstances the property. oping of the restrictions the developments subsequent ception the restrictions as drawn thereto enforce the argument werе and intended to uses designed such as the prevent defendant is of his lot. making
The of the lower court is therefore judgment Affirmed.
Moss, C. and J., concur. Lewis, dissent. JJ., Brailsford Bussey, : Brailsford, (dissenting) Justice with Disagreeing Littlejohn’s interpretation Justice the restrictive I covenants, dissent. respectfully concеde respondents that the is his appellant using Hence, residential purposes. the second restrictive covenant is at issue. On the appeal, respondents to adhere the took in position they below, the court that “there cannot be house erected cost- (on appellant’s lot) and, less ing therefore, than no ($4,500.00) trailer (is) permitted on the assert property.” Respondents repeatedly that the mobile appellant’s which main- essеntially tains its lot, mobile character while in use on appellant’s has not been “erected” the lot within the meaning the second restriction. On that the premise, respondents reason presence home “violative the second inasmuch as did not (restriction) Appellant erect a house” $4,500.00. costing
But the second restriction does not house require lot; built the erection of one cost only prohibits Baltz, than the less amount. E. Donald Inc. specified Cf. Co., v. R. 489, V. Chandler 484, & S. S. E. 248 C. 151 444 441, comes (2d) argument (1966). respondents’ to this—that mobile home is not a “house” appellant’s which theory has been “erected.” Under their own case, fail; must for if has not erected respondents appellant $4,500.00, less he has not than broken the covenant. “ continue to follow rule that ‘restrictions as to of real use estate be strictly construed and all
76 use of the in favor of free property;
doubts resolved covenants, however, be construed so as to defeat should not of the contractual instrument. and obvious purpose plain 327; Welborn, 10, C. 66 S. E. McDonald v. S. (2d) Smith, 280.’ 182, Maxwell v. 228 S. C. 89 S. (2d) Stroman, 42, 44, 142 368.” 246 S. S. E. Cothran v. Co., R. Baltz, Inc. v. V. Chandler & S. C. Donald B. I 487-488, 441, agree S. E. (2d) (1966). issue, at written restriction Littlejohn Justice of mobile drafted without thought was probably “the homes, conclude with him that plаin but cannot them. of the restriction to proscribe obvious purpose” written, as not to construe covenant Our function if minds have written their might divine what the parties which has arisen. contingency had adverted *7 differ covenant cases wide “present Restrictive main, that, each case must in circumstance ences Baltz, 248 N. C. at supra, on its own facts.” decided has been 444. No case precisely point 151 at S. v. 243 Miss. found, but the Gatling, facts Schaeffer I analogous. (1962), clearly quote So. (2d) from the opinion: used for residential 'strictly
“The house trailer being owner of the subdivision had ... If original purposes.’ residences, trailers as the use of house desired prohibit by have been designating this could easily accomplished use, or archi- by restricting trailers as prohibited a minimum on the floor or by placing space tectural design, residences. residence, temporary for a or by prohibiting at 820. these were done.” 137 So. (2d) None of things cites an Ohiо decision resting partly Littlejohn Justice social spawned desire to expressed mitigate problems social needs Certainly, mobile home advent of by living. modify law courts fashion when common strongly weigh case our authority present of But judicial rules law. the restrictions enforcing is limited to interpreting chain of title in of appellant’s rules of con- applicable light struction. homes, use Regulating however be, needful may other responsibility depart- ments of govеrnment.
Finally, the fact that on a respondents rely general plan common instituted adds noth- development by grantor at covenant issue. The scope presence scheme general developmental cannot restric- expand tion its own terms. The beyond scheme general principle is effective to omitted from supply occasionally subdivision, deeds in a and to bestow other standing upon owners enforce been the restrictions which hаve but not to imposed, re-write the restrictions themselves. view, my injunction prohibits a use appellant’s not excluded I by the covenants in his deed. would reverse the order from. appealed
Bussey, concur. Trustee, FLINKINGSHELT, Emma L. Individually Larry and as class, Flinkingshelt, represent Appellants, R. both of whom JOHNSON, Jr., al., Respondents. John E. et (187 (2d) 233) S. E.