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2005-UP-001 - Hill v. Marsh

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Paul E. Hill and Vera H. Hill,        Respondents,

v.

Charles A. Marsh and Carol P. Marsh,        Appellants.


Appeal From Pickens County
Charles B. Simmons, Jr., Circuit Court Judge


Unpublished Opinion No. 2005-UP-001
Submitted November 1, 2004 – Filed January 7, 2005


AFFIRMED


C. Thomas Wyche and David L. Freeman, of Greenville, for Appellants.

Brian Keith James, of Easley, for Respondents.

PER CURIAM: Charles and Carol Marsh appeal the trial court’s order requiring them to remove a garage from their property because it violates their subdivision’s restrictive covenants.  We affirm.[1] 

FACTS

The Marshes and Paul and Vera Hill own adjacent properties in a four-lot subdivision located on Lake Keowee in Pickens County.  The Hills use their house in the subdivision as a secondary residence.  The Marshes live year-round in their house in the subdivision.  The deeds for every lot in the subdivision contain identical restrictive covenants.  The restrictions include a clause stating:  “No trailer, tent, shack, barn, temporary building, out building, shanty or mobile home of any description shall be placed or erected on said lot of land.”

In 1988, the Marshes approached the Hills and asked for permission to build a tool shed on their property.  The Hills initially objected to the tool shed because they believed it constituted an “out building” in violation of the restrictive covenants.  However, the Hills eventually agreed to allow the Marshes to build the tool shed when the Marshes promised not to build any more outbuildings.  Subsequently, in 1992, the Marshes built a carport on their lot.  The carport was constructed while the Hills were away from their lake home.  The Marshes neither informed the Hills of their intention to erect the carport nor sought permission to do so.  In 1996, the Marshes built a two-car garage on their lot.  The garage was also constructed during a time when the Hills were away from their lake home.  

On March 7, 2001, the Hills returned to their lake home after being away for an extended period of time.  They noticed that the carport had been dismantled and moved away.  A neighbor informed the Hills that the Marshes were planning to build a new three or four-car garage in its place.  The next day the Hills sought the advice of a local attorney.  On the attorney’s advice, the Hills wrote a letter to the Marshes expressing their opposition to a new garage being constructed where the carport had been located.  On April 19, 2001, the Hills noticed blocks going up around the perimeter of space where the proposed building was to have been constructed.  The Marshes’ attorney assured the Hills’ attorney that the blocks were only going to be used as a retaining wall for a parking area.  However, on June 7, 2001, the Hills’ attorney received a letter from the Marshes’ attorney stating the Marshes had decided to build a new garage and that they were going to connect it to their house by means of a wooden walkway and bridge.  When the Hills returned to their house on June 22, 2001, most of the construction of the new garage had been completed.  The new garage is 1,231 square feet and currently houses four cars and a boat. 

The Hills filed this action on August 20, 2001, seeking removal of the new garage from the Marshes’ lot.[2]  After a hearing, the trial court sent a letter to both parties’ trial counsel outlining its ruling.  The ruling stated that the new garage was in violation of the restrictive covenants and required the Marshes to remove the garage from their property.  Prior to the proposed order being submitted by the Hills’ attorney, the Marshes discharged their trial counsel and retained a new attorney. 

Before the final order was entered, the Marshes’ new attorney filed a motion for judgment and, alternatively, a motion to supplement the record.  The trial court denied both motions and entered a final order.  The final order required the Marshes to remove the new garage from their property because it violated the restrictive covenants.  The Marshes filed a motion for rehearing, amendment, and for stay and suspension of injunction pursuant to Rules 52, 59, and 62, SCRCP.  The trial court denied the motion for rehearing and amendment and stayed the injunction during the pendency of an appeal.  This appeal followed.  

STANDARD OF REVIEW

An action to enforce a restrictive covenant is in equity.  South Carolina Dep’t of Natural Res. v. Town of McClellanville, 345 S.C. 617, 622, 550 S.E.2d 299, 302 (2001).  In an appeal from an equitable action, tried by a special referee alone, the appellate court has jurisdiction to find facts in accordance with our own view of the preponderance of the evidence.  Id.  The court should not, however, disregard the findings of the special referee, who was in a better position to weigh the credibility of witnesses.  Tiger, Inc. v. Fisher Agro, Inc., 301 S.C. 229, 237, 391 S.E.2d 538, 543 (1990).

LAW/ANALYSIS

I.  Negative reciprocal easement

The Marshes argue on appeal that the Hills have no legal right to enforce the restrictive covenants against them.  We disagree. 

[I]t is well settled in this state that where the owner of a tract of land subdivides it and sells the distinct parcels thereto to separate grantees, imposing restrictions on its use pursuant to a general plan of development or improvement, such restrictions may be enforced by any grantee against any other grantee.

Bomar v. Echols, 270 S.C. 676, 679, 244 S.E.2d 308, 310 (1978). 

Restrictive covenants may be created in express terms or by implication.  Id.  “Where they arise by implication, the restrictions are said to create a reciprocal negative easement.”  Id.

One seeking to show a reciprocal negative easement must establish four elements:  (1) a common grantor; (2) a designation of the land or tract subject to restrictions; (3) a general plan or scheme of restriction in existence for the designated land or tract; (4) the restrictive covenants run with the land.  Id.  at 679-80, 244 S.E.2d at 310.  In determining whether reciprocal negative easements have been created, the court should look not only to the language of the deeds, but also the circumstances surrounding the origin of covenants.  Id. at 680, 244 S.E.2d at 310.  In order to establish a restrictive covenant by implication, the implication must be “plain and unmistakable”.  Bomar at 270 S.C. at 680, 244 S.E.2d at 311. 

In Bomar, the Respondents were seeking to enforce restrictions that were in their deeds against the Appellant, whose deed did not contain the same restrictions.  Of the fourteen conveyances by the Vaughn family from the tract originally owned by A. H. Vaughn, only six conveyances, all originating from Grover Vaughn and made from 1953 to 1959, were restricted as to use by provisions in the deeds.  No master subdivision plat had been made nor had any member of the Vaughn family undertaken to improve or develop the land for use as a subdivision.  In addition, no blanket or general restrictions conveying the Vaughn tract had ever been recorded.  The supreme court held: 

Without more, we are unable to conclude that these piecemeal, lot by lot sales from a large tract of land over a considerable time span, made without reference to a master plat, constitute a general plan or scheme.  The provision permitting the restrictions to be enforced by the grantor or any purchaser of land from the Vaughn tract can not have the effect, as contended by the respondents, of transforming restrictions applicable to specific lots into blanket restrictions.

Id.  at 681, 244 S.E.2d at 311. 

The Marshes assert the Hills failed to satisfy the third element of a general plan or scheme of restriction.  We disagree.  Jerry Mehan, the original developer of the subdivision filed a plat on April 6, 1976 showing tract subdivided into four lots.  He sold the first of these lots, Lot 1, to the Hills’ predecessor in interest on April 2, 1976.  He sold another lot, Lot 3, on April 4, 1973.  He next sold the Marshes their lot, Lot 2, on November 4, 1977.  He sold the final lot, Lot 4, on September 29, 1982.  In each deed conveying the lots, Mehan included the exact same restrictions. 

Unlike the deeds in Bomar, all of these deeds were executed relatively close in time and included the same restrictions.  We agree with the trial court that the reciprocal right of enforcement can be implied in the deeds.  Accordingly, we hold the trial court did not err in holding the Hills had the right to enforce the restrictive covenants. 

II.  Waiver, estoppel, and laches   

The Marshes next argue that the Hills are barred by the doctrines of waiver, estoppel, and laches from enforcing the covenants because the Hills acquiesced in other neighborhood violations of the restrictive covenants.  We disagree. 

If there has been unreasonable delay in asserting claims, or if, knowing his rights, a party does not seasonably avail himself of means at hand for their enforcement, but suffers his adversary to incur expenses or enter into obligations or otherwise change his position, or in any way by inaction lulls suspicion of his demands to the harm of the other, or if there has been actual or passive acquiescence in the performance of the act complained of, then equity will ordinarily refuse her aid for the establishment of an admitted right, especially if an injunction is asked.

Rabon v. Mali, 289 S.C. 37, 40, 344 S.E.2d 608, 610 (1986).

“Waiver is the intentional relinquishment of a known right.”  Gibbs v. Kimbrell, 311 S.C. 261, 267, 428 S.E.2d 725, 729 (Ct. App. 1993).  A party is not necessarily barred from enforcing restrictive covenants where a previous deviation of the restrictions has been allowed.  Rabon, 289 S.C. at 40, 344 S.E.2d at 610.  A party’s waiver of the right to object to a minor violation of a covenant does not result in waiver of the right to object to a subsequent and more substantial violation.  Gibbs, 311 S.C. at 268, 428 S.E.2d at 729. 

“Laches is the negligent failure to act for an unreasonable period of time.”  Gibbs, 311 S.C. at 269, 428 S.E.2d at 730.  However, delay alone in the assertion of a right, without injury to the adversary, does not constitute laches.  Id.  Whether a plaintiff is barred by laches is to be determined in light of the circumstances in each particular case.  Rabon, 289 S.C. at 40, 344 S.E.2d at 610.

Estoppel arises when a party, relying upon what another has said or done, changes his position to his detriment.  Additionally, estoppel arises when a party observes another dealing with his property in a manner inconsistent with his rights and makes no objection while the other changes his position in reliance on the party’s silence; the party’s silence is acquiescence that estops him from later seeking relief. 

Gibbs, 311 S.C. at 268, 428 S.E.2d at 729 (citations omitted).

The Marshes rely on Rabon.  We find that case distinguishable from the present case.  In Rabon, the Malis’ predecessor in title had used three of his four lots in a subdivision for commercial purposes for years before selling the property to the Malis, despite the restrictions against such use on one of the lots, Lot 50.  The supreme court found the objecting property owners knew of the prior commercial use of the property and never expressed concern or objected to the property being put to commercial use.  The court also found ample evidence to support reliance by the Malis on the permissibility of a commercial enterprise on the premises.  It noted that because of the objecting landowners passivity with regard to the prior commercial use of the property, the Malis had adversely changed their position by expending approximately $43,000.00 dollars on improvements to the property.  The supreme court held the Malis could continue using Lot 50 for commercial purposes; however the court also held that as there was no indication Lot 51 had been used for commercial purposes in the past, the objecting property owners were not barred from enforcing the restrictive covenant on this particular lot. 

In finding the Hills were not barred from enforcing the restrictive covenants, the trial court relied on Gibbs.  In Gibbs, the Gibbs and Kimbrells owned adjacent lots in a forty-five lot subdivision subject to restrictive covenants.  For over 10 years, the Kimbrells’ predecessors in title, the Reids, had operated a blueberry farm on their lots.  The farm was only a part-time business, which the Reids operated only on the weekends.  Two years before the Kimbrells purchased their lots, the Gibbs granted the Reids permission to build a shed on the lots.  The shed did not have a foundation or walls and was easily movable.  After purchasing the property, the Kimbrells informed the Gibbs that they intended to construct a garage on their property and operate an automobile repair business thereupon.  After the Kimbrells poured the concrete floor, the Gibbs brought an action to enjoin the Kimbrells from operating a car repair business on their property because it violated the subdivision’s restrictive covenants.  Although the court had prohibited the erection of any buildings on the property during the pendency of the action, the Kimbrells proceeded to add walls, a door, and a window to the shed.  The trial court ordered the Kimbrells to remove the garage from their property. 

On appeal, this court rejected the Kimbrells’ assertion that the Gibbs were barred by waiver, laches or estoppel from enforcing the restrictive covenants.  The court held that although the Gibbs may have intended to waive their objections to the operation of a blueberry farm or similar activity, they had not waived their right to object to a significantly different activity. 

This court also similarly rejected the Kimbrells’ estoppel arguments.  It held that there was no evidence that the Kimbrells had changed their position in reliance on any actions by the Gibbs.  As to the Kimbrells’ argument that the Gibbs were estopped from enforcing the covenants because the Gibbs permitted multiple violations by other subdivision residents, this court noted that in filing their action against the Kimbrells, the Gibbs had objected to the only violations of which they were aware.  The court further held:  “Regardless, the violation of covenants by other residents of the subdivision without objection by the Gibbs’ would not affect their right to enforce the covenants against the Kimbrells unless the character of the subdivision has changed so radically as to defeat the purpose of the covenants.”  Gibbs, 311 S.C. at 268-69, 428 S.E.2d at 730.  Therefore, a plaintiff can enforce restrictive covenants against a defendant whether or not the plaintiff has enforced those covenants against other residents in a subdivision.

Finally, the court held the Gibbs were not barred by laches in that they had acted with reasonable diligence in initiating their action within five months of learning of the Kimbrells’ plans.  The court further ruled: “Regardless, a party ‘[who] openly defies known rights, in the absence of anything to mislead him . . . is not in a position to urge as a bar [his adversary’s] failure to take the most instant conceivable resort to the courts.’” Id. at 269, 428 S.E.2d at 730 (quoting Archambault v. Sprouse, 218 S.C. 500, 509, 63 S.E.2d 459, 463 (1951)). 

In arguing the Hills are barred by estoppel, waiver, and laches, the Marshes assert other lots in their subdivision contain restrictive covenant violations.  Lot three in the subdivision is vacant.  However, lot four in the subdivision contains a house, a boathouse, a tool shed, and a garage.  The Marshes’ lot includes a residence, a small garage, a tool shed, and the garage that is the subject of this lawsuit and replaced a carport.  The Hills have a boathouse on their lot.

Dr. Hill testified that he and his wife did not object to the two outbuildings on Lot 4 because the buildings can barely be seen and have not changed the character of the neighborhood.  He asserted that he had not even noticed one of the outbuildings because it looked like a part of the house.  He stated his boathouse was on the lake owned by Duke Power and not on the lot; thus it was not subject to the restrictions.  As stated above, the Marshes sought and received the Hills’ permission before constructing the tool shed, promising the Hills they would not violate the covenants again.  The Marshes erected the subsequent buildings when the Hills were away.  Dr. Hill testified that he did not voice his objections with the other buildings because he did not want to sue a neighbor over what he considered minor violations when the buildings had already been completed.  However, he claimed the large garage, which is on the other side of the road from the Marshes’ house, had changed the character of the neighborhood. 

We agree with the trial court finding the holding in Gibbs to be controlling in the case at hand.  As a result, even if the Hills did acquiesce in other minor subdivision violations, they did not waive their right to require the Marshes to remove the garage, which is a major violation and different from the other violations. 

The Marshes’ defense of estoppel fails as they cannot establish that they changed their position to their detriment based on the Hills’ actions.  Their defense of laches fails for the same reason.  The Hills objected to the construction of the garage as soon as they learned of the Marshes’ plans.  Although the Marshes completed the garage at a cost of $40,000, they did so knowing of the Hills’ objections. 

Finally, we find misplaced the Marshes’ reliance on Honnicutt v. Rickenbacker, 268 S.C. 511, 234 S.E.2d 887 (1977).  In Honnicutt, the supreme court held:

The issuance of a mandatory injunction depends upon the equities between the parties, and it rests in the sound judicial discretion of the court whether such an injunction should be granted.  Where a great injury will be done to the defendant, with very little if any to the plaintiff, the courts will deny equitable relief. 

Id.  at 515-16, 234 S.E.2d at 889.  The court reversed a portion of an order that granted a mandatory injunction requiring the removal of a commercial building erected in violation of restrictive covenants.  Instead, it allowed the appellants the opportunity to convert the building to residential use to be in compliance with the restrictions. 

The Marshes argue:  “It would be a shame under the circumstances to order the Marshes to destroy the building which cost a great deal to erect and will cost a great deal to tear down.”  The Marshes rely on equitable principles to protect them when they constructed their garage with full knowledge that the garage was in violation of the covenants and that the Hills objected to its construction.  Two of the long-standing equitable maxims are “No person shall be allowed to reap the benefits arising from his own wrongful acts,” and  “He who seeks equity must do equity.”  Taff v. Smith, 114 S.C. 306, 312, 103 S.E. 551, 553 (1920).  We find the Marshes constructed the garage at their own risk.  They cannot  rely on equity to allow them to keep the product of their own wrongful acts. 

CONCLUSION

For the reasons stated above, the order of the trial court is

AFFIRMED.

HUFF, KITTREDGE, and BEATTY, JJ., concur. 


[1]We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] The Hills’ original attorney was unable, due to time constraints, to file suit on behalf of the Hills.  However, he referred the Hills to their current attorney, who filed this suit.