*1 VICKERY, Gary Sears, Carey, Taylor, Roger James K. Ramond L. Williams, Hooper, George Alfred Individually O. and as Mem- Association, bers of The Respondents, Acres Landowners POWELL, Watkins, Henry Burris, v. Grady Grady Tilley, James Tribble, Martin, Martin, Waymon J. D. Jimmy Lee Roy Vickery, Bert, Powell, Kenneth W. Barker and G. Henry Grady H. of which Watkins, Tribble, Martin, Grady Tilley, J. Waymon D. Lee Jimmy Martin are Appellants.
(225 E. (2d) 856) *2 Anderson, McAlister, M. A. Appellants, Esq., for Anderson, Raines, L. Henry Esq., Respondents, 9, 1976. June
Gregory, Justice: set basic here whether a uniform issue involved to an in deeds identifiable of restrictions imposed portion scheme of of a subdivision created a common development enforceable mutual restrictive covenants initiating of a restricted deed other against any grantee. grantee This is a class action brought by respondents December of whom are all against appellants, owners of situated in a known as subdivision property Carolina, Acres” in Anderson South County, “Rolling relief contend- injunctive wherein the respondents sought as con- the use of mobile homes ing against in Roll- tained in all deeds to land sold between two creeks sese on Acres is enforceable inter the theory Subdivision ing of mutual covenants or easement. was filed
In of 1973 a class action by many January many present appel- present respondents against that the entire lants it was contended subdivision wherein was restricted the use of homes and injunc- with- for. That action was dismissed tive relief prayed *3 out prejudice. Referee held referred to a who Special
The matter was the on the matter and recommended respondents hearings re- on his that be relief based finding injunctive granted creeks contained in the deeds to between strictions dismissed created The action was restrictive covenants. home, having although Mr. whose Vickery, Roy home, found by mobile was and of a appearance shape deed of the Referee not to be one within prohibition and from the up restrictions as it was constructed ground been, not, exceptions mobile. Timely and had never who heard Glenn taken and Judge were by appellants entered his confirming report order April to intention notice of On Referee. Special April followed. this was served and appeal appeal homes, in mobile some live Most of the appellants Acres”, and it is their contention of “Rolling inception in- has been of improvement scheme that: No general (1) birth to a easement which could give negative augurated consideration; since all That of covenant and (2) mutuality refer to only “Rolling in Acres” deeds to lots “Rolling Acres”, would delineate that part is no notice which there are in mobile homes permissible Acres” which of “Rolling if That a in are they (3) and that which prohibited; part exist, or if there mu- easement does consideration between the grantees, of covenant and tuality on the relief denied injunctive should be respondents such. laches from enforcing and ground estopped for our consid- four pose questions Although appellants those eration, estoppel to reach concerning it is unnecessary of all find the first dispositive as we question notice is whether the basic following issues involved. The question between the those deeds land on all restrictions imposed Acres Subdivision inaugurated general creeks mutuality rise covenant scheme of improvement giving sese. enforceable inter Grantee,
“For the benefit of the Grantor follow- on the described ing hereby imposed above all no limitations of size of property: (a) dwellings; (b) to be of new materials on outside constructed dwellings wooden or frame and all areas are to be exposed painted; no on no out- tin roofs (c) permitted (d) dwellings; side no or sheds sanitary buildings; (e) out-buildings barns be are com- on lots unless they permitted bodies no automobiles or truck pletely painted; junk (f) on no lumber or old permitted premises; (g) storage items of an nature accumulated unsightly any building allowed; lot; no trailer home or home will (h) *4 lot; or will be on any no swine allowed (i) pigs building no kennels or will be allowed on any (j) dog dog breeding horses, lot; animals, farm cows namely, (k) fowl—chickens or on turkeys farm permitted —will of two or more.” acres consisting (2) is no or business use in There dedication to residential the nor statement other above purpose
27 and Grantee. the of the Grantor than benefit they The of occupancy. the use There is nothing designate for commercial pur- open record reveals that property least two instances as such in at utilized and is poses being no are there Not only and a repair garage). (a nursery lines, or set-back standards minimum building required shall be no limitations states there first restriction explicitly themselves that on It is size. apparent be re- the area sought allowed within farm animals are stricted. home from the ground built his Vickery
Appellant mobile home. of a in the shape appearance up to find unable and lower court were Referee or trailer within a mobile home that his home was with their must restrictions and we agree meaning the clear is neither preponderance conclusion as it record. in the evidentiary nor without support evidence Co., 106, 177 255 S. C. Bank & Trust Ex Guaranty parte, S. E. (2d) or scheme can find no discernible purpose
We When in these restrictions. embodied improvements home that looks like can build a Vickery Mr. Roy area”, see no sub- we can within the “restricted trailer the land. in encumbering to the covenantees stantial benefit in- effect which the the detrimental This is not mention on respond- of business will have encroachment evitable ent homeowners. Cantrell, 225 S. Martin v. a case like
This is not Referee, relied Special E. (2d) (1954), residential” than the land for “other the use of where had residential plan where the deeds and prohibited incep- from the one minor exception been maintained with to the is it comparable Neither tion the subdivision. Brown, 215 S. C. in Pitts v. situation lower.court, where relied on by also 538 (1949), of acquiescence (28) years twenty-eight found that court *5 28 holes created all in scheme filled in the by a common restrictions, deeds with no the unrestricted subjecting
deeds scheme. to the visually general apparent, in mobile homes have been in use The record shows that to outside Acres since its deeds lots The inception. creeks for their use. area between the expressly provides and restricted mobile homes People against buying with the trailers them and several anyway acqui- brought escence of the Mr. Bert. developer law, do
We find as a matter of the restrictions at issue rise to not of embody general plan development giving inter or covenants easements enforceable sese. The “scheme” in Black’s Law Diction- word is defined as: “A or formed to some ary, (4d) design plan accomplish areWe unable to discern purpose sj^stem.” any purpose —a to be eleven re- system accomplished by foregoing strictions. must
A covenant express parties purpose thereto enforceable it must not to be valid and and be too indefinite or 21 C. S. against public policy. J. Covenants, be is so in if there any, 1(c). purpose, § definite this as to be non-existent to Court. The law favors use free and unrestricted doubts property, resolving and in favor of free use restrictions. and ambiguities al., Surratt, et Edwards v. 228 S. C. (2d) Covenants, 21 C. 19. (1956); § J. There is little to keep original grantor selling lots free such any remaining nothing pre- business, vent the encroachment nothing prevent homes, resemble of homes that and nothing of farm animals on lots of maintenance two acres prevent or more. We at a loss to see what relief we can lasting in the face of all this. give respondents will not enforce a covenant when to do so “[Ejquity land, would to encumber the use of at without the same time substantial benefit to the covenantee.” achieving Richmond, Whitmarsh v. 179 Md. 20 A. we
Accordingly,
Reverse. J., concur. JJ.,
Lewis, Littlejohn Rhodes, : (concurring) Ness, Justice
I concur in that the judgment majority opinion *6 restrictions do not scheme of embody any general develop ment. Under the the land can be developed industrial, use, commercial or residential minor subject limitations dis expressing covenanting parties personal likes. The restrictions fail to for a scheme of devel provide can not be sese opment enforced inter accordingly easement Edwards theory negative by implication. Surratt, et al. v. 228 S.
I do not expressly join portion the majority opinion which intimates that drafted covenants properly restricting land to residential use and mobile homes within excluding of residential use meaning would invalid if a person can build a home which permanent resembles a mobile home. I do not believe the will be so majority opinion interpreted, is, but if I it do not share that position. SOLES, SOLES, parte
Ex Ray Peggy William In Joyce Petitioner. re SOLES, Appellant, Ray Respondent. v. William
(225 (2d) 859) S. E.