Snow v. Smith

784 S.E.2d 242, 416 S.C. 72, 2016 S.C. App. LEXIS 23
CourtCourt of Appeals of South Carolina
DecidedMarch 2, 2016
DocketAppellate Case No. 2013-002727; No. 5386
StatusPublished
Cited by8 cases

This text of 784 S.E.2d 242 (Snow v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Snow v. Smith, 784 S.E.2d 242, 416 S.C. 72, 2016 S.C. App. LEXIS 23 (S.C. Ct. App. 2016).

Opinion

KONDUROS, J.

In this easement action, a group of homeowners contend the master-in-equity erred in finding (1) their easement was limited to ingress and egress and (2) the restrictive covenants do not apply to the Lake Access Lot. We affirm in part, reverse in part, and remand.

FACTS/PROCEDURAL HISTORY

Charles S. Coleman, Sr. and E.L. Stoudenmire (Developers) developed Hilton Place subdivision in 1983. The Restrictions were filed on October 12, 1983. The Restrictions stated, “No lot or property conveyed hereunder shall be used for any other than private residential purposes of one family, except by and with written consent and approval of Grantors.” Additionally, they stated, “No building, barn, outbuilding, fence, garage or structure of any kind or alterations or additions thereto shall be erected, placed or made on any lot hereby conveyed; no residence containing less than 1,200 square feet of living space shall be erected on any lot....” The Restrictions also provided any lot or property conveyed could only be used for “private residential purposes of one family, except by and with written consent and approval of the Grantors.” The Restrictions banned any “noxious or offensive activity” on the lots and anything that “becomes an annoyance or nuisance to the neighborhood.” They likewise barred any “condition or situation” on any of the lots that was “a nuisance or otherwise detracted] from the desirability of the neighborhood as a residential section.” Further, the Restrictions provided “[t]hese covenants, conditions and restrictions are for the benefit of the Grantors who may change or modify the terms contained herein at any time.” The Restrictions also stated [80]*80they were “imposed upon all those lots shown on a plat ... dated September 19, 1983” (1983 Plat). The 1983 Plat shows several numbered lots and a lot with no number described as “Lake Access” (Lake Access Lot). The Developers never formed a homeowners’ association although a group of homeowners attempted to form one at one point.

When Elizabeth Snow (f/k/a Elizabeth S. Bell) bought her lot in 1990, the deed stated, “Also conveyed her[e]with is an easement for the use and enjoyment by the lot owner and the lot owner[’]s immediate family to the Lake Access Lot shown on the recorded subdivision lot, said easement to be appurtenant to the land her[e]in conveyed.” Additionally, her purchase contract stated, “Lake Access Lot is available for purchaser’s use at time of closing.” Henry D. Gehlken, Sr. and Vivian Gehlken’s deed stated the conveyance included “a nonexclusive access to the water of Lake Murray through the lake access as shown on [the 1983 P]lat[,] which shall run with the land.” Other homeowners’ deeds make no mention of lake or water access but do indicate they are subject to all easements of record.

A Confirmatory Amendment to the Restrictions was filed on February 5, 1999. It indicated the Restrictions only applied to the numbered lots. It also stated, “Nothing contained herein shall be construed to impose any covenants, conditions or restrictions on any other property shown on the aforesaid plat.” The Amendment further provided, “In the event this amendment conflicts with any other provisions of the Restrictions ... this amendment shall supersede and govern.”

In July 2010, the heirs1 of the Developers deeded the Lake Access Lot to Judson P. Smith and Christy Brabham Bell (n/k/a Jennifer Christy Brabham) for $25,000. Smith and Bell built a dock, gazebo, fire pit, deck, and storage building containing a toilet2 on the Lot. They also widened and lengthened the boat ramp.

[81]*81Several homeowners3 brought suit against Smith and Bell as well as the Heirs (collectively, Respondents) for declaratory judgments and breach of covenants. They also sought as to the Heirs to set aside the conveyance of the Lake Access Lot due to fraud, negligence, and breach of fiduciary duty.

At trial, Snow testified she interpreted her sales contract and deed as allowing her to use the entire Lake Access Lot at any time. Snow believed the outhouse on the Lake Access Lot negatively affected her property value because “it is an outhouse. It’s a bathroom outside.” She thought the outhouse diminished the value of her property by $25,000. She acknowledged the Lake Access Lot now being maintained instead of overgrown as it previously had been helped her property value. However, she stated her home value had decreased $19,000 since she refinanced her home in 2006.

Another owner, Stephen Linder, testified the outhouse decreased his property value by $10,000 to $25,000. He believed it was “a detriment to the neighborhood” “[bjecause it’s an outhouse where people go to the bathroom outside.” Linder further indicated he could hear noise when Smith and Bell occasionally had parties on the Lot.

Kathryn Ann McDaniel, also a homeowner, testified once when she believed Smith and Bell were having a party, she had noticed an odor coming from the Lake Access Lot that smelled like an outhouse. She believed her property value had decreased by at least $20,000. She stated she had arrived at that figure “I guess probably just from what I think I would pay for something with an outhouse next door.”

Homeowner Vivian Gehlken testified her property value had decreased $50,000 but she attributed that to the economy. However, she thought the outhouse had a negative effect on her property and the neighborhood. She provided she had not used the Lake Access Lot since Smith and Bell bought the Lot because it made her feel “uncomfortable.”

Kenneth Kelly also testified as a property owner in the subdivision. He believed the outhouse and his believed loss of [82]*82lake access had a negative effect on his property value in the amount of $20,000 to $25,000. Chrissie Campitella, another homeowner as well as a real estate broker, testified her property value had decreased by $25,000 because the outhouse was an eyesore. She also indicated she had seen the boat access ramp blocked about two to three times a month.

Bell testified she and Smith lived together in a house in the subdivision and had bought the Lake Access Lot together. She stated that when they bought the Lot, it was very overgrown and had a great deal of construction debris and trash on it. She provided they used a lot of heavy equipment to remove the debris. Bell considered the outhouse to be a bathroom because it was on a permitted septic tank. She indicated the South Carolina Department of Health and Environmental Control (DHEC) had issued the permit. She testified the Lot had electricity and currently had one television. She and Smith moved an additional, bigger television to the Lot for parties during football games.

Smith testified that although vehicles would be parked in the driveway of the Lake Access Lot from time to time, they did not block the access to the lake because one could easily go around them. He acknowledged the driveway had been blocked at times during the construction but it was now completed. He also provided he does leave his truck in the driveway while he is putting his boat in the water but moves it as soon as his boat is unloaded. He also indicated he parks his golf cart in the driveway while unloading supplies but moves it as soon as it is unloaded. He stated that when he and Bell bought the Lot, “it was a dump. You couldn’t get to the water.” Smith indicated the grass on the upper part of the Lot was cut but the lower part towards the water was not.

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Cite This Page — Counsel Stack

Bluebook (online)
784 S.E.2d 242, 416 S.C. 72, 2016 S.C. App. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/snow-v-smith-scctapp-2016.