Dunlap v. Beaty

Supreme Court of South Carolina

Dunlap v. Beaty

122 S.E.2d 9, 239 S.C. 196, 1961 S.C. LEXIS 44

CourtSupreme Court of South Carolina

DecidedOctober 2, 1961

Docket17838

StatusPublished

Cited by16 cases

This text of 122 S.E.2d 9 (Dunlap v. Beaty) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dunlap v. Beaty, 122 S.E.2d 9, 239 S.C. 196, 1961 S.C. LEXIS 44 (S.C. 1961).

Pincite

Opinion

Oxner, Justice.

Plaintiff, Caroline Elizabeth Sides Dunlap, seeks in this action a declaratory judgment that a covenant prohibiting the use of a certain 3.67-acre tract of land in the City of Rock Hill as a store or for the conduct of mercantile business is no longer in effect and should be annulled. This covenant is contained in a deed executed by defendant Anna C. Beaty to plaintiff on March 6, 1935. Extinguishment of this restriction is sought upon the grounds (1) that it was not imposed as a part of a general scheme of improvement, and (2) that since the deed was executed, there has been such a radical change in the character of the neighborhood as to destroy the essential object and purpose of said restriction. In addition to the grantor, Anna C. Beaty, there were made parties defendant certain individuals as representatives, respectively, of those owning property in three nearby subdivisions known as “Cherry’s Broad Acres”, “Cherry Development, Inc.” and “Cherry Park.” The defendant, Anna C. Beaty, along with the class representatives of one of the subdivisions above mentioned, vigorously denied that there had been any material change in the character of the neighbor *200 hood, alleged that said restriction was imposed in accordance with a unified plan in the development of a large acreage owned by Anna C. Beaty, and further alleged that regardless of whether there was uniformity in the scheme of development or any changed conditions, plaintiff was bound by her contractual obligation contained in said deed. The class representatives of the other two subdivisions filed an answer submitting their rights to the court.

The case was referred to a Referee who, after taking considerable testimony and visiting the neighborhood in which the property was located, concluded that the covenant in controversy was not imposed as a part of a general scheme of improvement; that it was a covenant personal to the grantor; and that because of the radical change in the character of the neighborhood, to which Mrs. Beaty had contributed, the essential object and purpose of the restriction had been defeated and that it should now be extinguished. His report was confirmed by the Circuit Judge, from whose decree the grantor Anna C. Beaty, and W. Moubray Beaty and William C. Beaty, class representatives of one of the subdivisions, have appealed.

At the time of the conveyance of the 3.67-acre tract by Anna C. Beaty to plaintiff in 1935, said property was bounded on the south by the highway between Rock Hill and Charlotte, on the west by Charlotte Avenue and on the north and east by other lands of the grantor. In this deed the grantor bound herself, her heirs and assigns, by a covenant that a 42-foot strip adjacent to the eastern side of said tract of land “shall always be reserved for the purpose of a roadway or park and that until such time as said tract of land may be actually converted into a roadway or park that the same shall not be used for any other purpose whatsoever, the grantee to have the right of easement over the aforesaid proposed roadway, unless the same be converted into a Park.” The deed also contained the following further covenants and restrictions:

*201 “It is covenanted and agreed that the above described premises shall never be conveyed or leased to any person of the African or Negro race. It is further covenanted and agreed that no structure shall be erected on the premises nearer to inner line of sidewalk than 25 feet.

“It is also covenanted and agreed that no building on said premises shall ever be used as a store or for the conduct of mercantile business, and that no building shall be constructed on said premises at a cost of less than Three Thousand Dollars.”

The highway above mentioned forming the southern boundary of said tract is now U. S. Highway No. 21 and at this point is known as Cherry Road. Further west it is known as North York Avenue. The 42-foot strip along the eastern side of said tract of land is now used for street purposes and known as Beaty Street.

As heretofore stated, the covenant sought to be extinguished in this action is that which provides “that no building on said premises shall ever be used as a store or for the conduct of mercantile business.”

The 3.67-acre tract owned by plaintiff is a part of a large body of land in and near the City of Rock Hill which was formerly owned by James M. Cherry. Prior to his death in 1920, he had a plat made of a portion of his property with the intention of developing it but little was done by him toward that end. Defendant Anna C. Beaty, his daughter, through inheritance and a conveyance from her sister, acquired most of her father’s extensive holdings. In 1926 she began developing that portion of a subdivision known as “Cherry Park”, which lies west of Charlotte Avenue, and opposite the property now belonging to the plaintiff. Mrs. Beaty conveyed a number of lots in this subdivision, some of which were conveyed without restrictions and others with the restrictions that they were to be used for residential purposes only. In 1931 she conveyed without restrictions a tract of land south of Cherry Road, across from plaintiff’s prop *202 erty, to the “Cherry Development, Inc.” Most of this property was reacquired by Mrs. Beaty. She thereafter conveyed at least one of these lots fronting on Cherry Road without restrictions.

The property now owned by plaintiff is a part of a tract of 133 acres which comprised the Beaty farm. The deed by Mrs. Beaty to the plaintiff in 1935 of the 3.67-acre tract was the first conveyance made by her from the Beaty farm. No further conveyances were made from the 133-acre tract until the following year when several lots adjacent to plaintiff’s property on the north were sold by Mrs. Beaty. Each of these deeds contained restrictions similar to those in the conveyance to plaintiff. In none of them was there any reference to other property of the grantor or to any general plan of development. In 1946 Mrs. Beaty opened a subdivision known as “Cherry’s Broad Acres” which was carved out of the 133-acre tract. Uniform blanket restrictions were imposed on the lots in this subdivision in accordance with the requirement of the Federal Housing Administration. Since 1946 this subdivision has been developed block by block, any undeveloped land remaining unrestricted and unplatted until developed. In 1956 Mrs. Beaty conveyed to Beaty’s Shopping Center, Inc., a corporation owned by the Beaty family and of which Mrs. Anna C. Beaty is the principal stockholder and a director, about six acres of land bounded on the west by Beaty Street and on the south by Cherry Road. This conveyance was made without restrictions and without reference to any other property belonging to Mrs. Beaty. Shortly thereafter the shopping center was developed. It now contains a supermarket, a furniture store, a drugstore, a hardware store and real estate office. Beaty Street separates the shopping center from plaintiff’s property.

Mrs. Anna C. Beaty still owns a number of lots near plaintiff’s property. Most of the other lot owners in the immediate vicinity, some of whom hold their property without any restrictions, have attempted to release plaintiff’s property from the restrictions contained in her deed. The members of *203 the Beaty family have refused to go along with this plan to remove the restrictions.

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