Nance v. Waldrop

Brailsford, Justice

(dissenting) :

Disagreeing with Justice Littlejohn’s interpretation of the restrictive covenants, I respectfully dissent.

The respondents concede that the appellant is using his property for residential purposes. Hence, only the second restrictive covenant is at issue. On appeal, the respondents adhere to the position they took in the court below, that “there cannot be a house erected (on appellant’s lot) costing less than ($4,500.00) and, therefore, no trailer (is) permitted on the property.” Respondents repeatedly assert that the appellant’s mobile home, which essentially maintains its mobile character while in use on appellant’s lot, has not been “erected” on the lot within the meaning of the second restriction. On that premise, the respondents reason that the presence of the mobile home is “violative of the second (restriction) inasmuch as Appellant did not erect a house” costing $4,500.00.

But the second restriction does not require that a house be built on the lot; it only prohibits the erection of one costing less than the specified amount. Cf. Donald E. Baltz, Inc. v. R. V. Chandler & Co., 248 S. C. 484, 489, 151 S. E. (2d) 441, 444 (1966). The respondents’ argument comes to this — that appellant’s mobile home is not a “house” which has been “erected.” Under their own theory of the case, respondents must fail; for if appellant has not erected a house costing less than $4,500.00, he has not broken the covenant.

We continue to follow the rule that “ ‘restrictions as to the use of real estate should be strictly construed and all *76doubts resolved in favor of free use of the property; such covenants, however, should not be construed so as to defeat the plain and obvious purpose of the contractual instrument. McDonald v. Welborn, 220 S. C. 10, 66 S. E. (2d) 327; Maxwell v. Smith, 228 S. C. 182, 89 S. E. (2d) 280.’ Cothran v. Stroman, 246 S. C. 42, 44, 142 S. E. (2d) 368.” Donald B. Baltz, Inc. v. R. V. Chandler & Co., 248 S. C. 484, 487-488, 151 S. E. (2d) 441, 443 (1966). I agree with Justice Littlejohn that the restriction at issue, written in 1938, probably was drafted without thought of mobile homes, but cannot conclude with him that “the plain and obvious purpose” of the restriction was to proscribe them. Our function is to construe the covenant as written, not to divine what the parties might have written if their minds had adverted to the contingency which has arisen.

Restrictive covenant cases “present such wide differences in circumstance that, in the main, each case must be decided on its own facts.” Baltz, supra, 248 N. C. at 489, 151 S. E. (2d) at 444. No case precisely in point has been found, but the facts in Schaeffer v. Gatling, 243 Miss. 155, 137 So. (2d) 819 (1962), are clearly analogous. I quote from the opinion:

“The house trailer is being used 'strictly for residential purposes.’ ... If the original owner of the subdivision had desired to prohibit the use of house trailers as residences, this could easily have been accomplished by designating house trailers as prohibited use, or by restricting architectural design, or by placing a minimum on the floor space for a residence, or by prohibiting temporary residences. None of these things were done.” 137 So. (2d) at 820.

Justice Littlejohn cites an Ohio decision resting partly on an expressed desire to mitigate social problems spawned by the advent of mobile home living. Certainly, social needs weigh strongly when common law courts fashion or modify rules of law. But our judicial authority in the present case is limited to interpreting and enforcing the restrictions in *77appellant’s chain of title in light of applicable rules of construction. Regulating the use of mobile homes, however needful that may be, is the responsibility of other departments of government.

Finally, the fact that respondents rely on a general plan of development instituted by a common grantor adds nothing to the scope of the covenant at issue. The presence of a general developmental scheme cannot expand the restriction beyond its own terms. The general scheme principle is effective to supply restrictions occasionally omitted from deeds in a subdivision, and to bestow standing upon other property owners to enforce the restrictions which have been imposed, but not to re-write the restrictions themselves.

In my view, the injunction prohibits a use of appellant’s property not excluded by the covenants in his deed. I would reverse the order appealed from.

Bussey, J., concur.