Opinion
14606
January 25, 1938.
Before JOHNSON, J., Charleston, April, 1937. Affirmed.
Suit by Henry C. Cheves to enjoin the City Council of Charleston and another from maintaining a wharf south of a sea wall adjoining plaintiff's property. Complaint dismissed and plaintiff appeals.
The order of Judge Johnson follows:
This is a suit to enjoin the City Council of Charleston and its lessee, Fort Sumter Navigation Tours, Inc., from maintaining and using a certain wharf or dock in the City of Charleston, and to require the said wharf or dock and the building or buildings thereon to be removed. The cause was referred to William McG. Morrison, Master for Charleston County, to take the testimony merely, and to report the same to this Court. The Master held several references, and the cause is now before me on his report, dated November 6, 1936, of the minutes of those references, including the testimony and the numerous exhibits in evidence.
In 1909 and 1910, the City Council of Charleston had under way a project for the reclamation of a large area of marsh, mud, and low-water lots on Ashley River between the Battery, or White Point Gardens, and Chisolm's Mill. This area was in due course reclaimed and filled in, streets were laid out, and this part of the city has for many years been a desirable residential section.
At the time this extensive reclamation project was under consideration, the lots and properties abutting on Ashley River, and beyond which the reclamation was proposed to be made, were owned by various parties, and the City Council of Charleston accordingly entered into a number of agreements with such owners, some of whom claimed title to as far as the channel, providing for the filling in of the desired area, the construction of a sea wall and boulevard, the paving of the streets, etc.
The plaintiff, Henry C. Cheves, was one of these landowners, and under date May 26, 1910, he and the City Council of Charleston entered into a written agreement which he sets up in his complaint here as the basis of his right to maintain this suit. The indenture in question recites that the City Council (party of the first part) "purposes to construct a substantial sea-wall along the water-front of the City of Charleston, on Ashley River, from Chisolm's Mill to the Southwest extremity of White Point Gardens, and to lay out and construct a boulevard along the North of said sea-wall and about seventy feet in width for the whole length thereof, as is shown and delineated on a plat * * *"; that Henry C. Cheves (party of the second part) "is the owner of certain lots of land in the City of Charleston on the South side of South Bay Street, which said lot the party of the second part claims to extend from said street to the channel of the Ashley River"; and that the said Henry C. Cheves, "in consideration of certain covenants and agreements on the part of the said party of the first part hereinafter more particularly set forth, has agreed to convey unto the said party of the first part for the purpose of constructing said sea-wall and boulevard a portion of said lot of land as hereinafter more particularly set forth and described." It then proceeds to convey to the City Council of Charleston a strip of land 70 feet in width "measuring and containing on the North and South lines one hundred and thirty-four feet, and on the East and West lines seventy feet, be the said dimensions more or less, butting and bounding on the North on lands of the said Henry C. Cheves on a line seventy feet North of the said sea-wall, and running parallel thereto, on the East on a lot formerly the property of J.R. P. Ravenel, on the South on lands claimed by the said party of the second part, and on the West on lands now or late of Wilkinson," all as shown on a plat annexed to the indenture.
The habendum is to the City Council of Charleston in fee simple, "for the use and purpose of erecting, constructing and maintaining said sea-wall and boulevard, and for no other purpose."
The indenture then sets out certain covenants, as follows:
1. The City Council covenants "to construct the aforesaid sea-wall and boulevard and to fill in all the low land lying between the inner line of the said boulevard and the highlands on the premises of the said party of the second part with solid earth to a level of eight and one-half feet above low-water mark, within three years from the date of these presents, without any expense to the said party of the second part."
2. Both parties covenant that if the City Council should fail to complete the sea wall and boulevard and the filling of said lowland within three years, "the aforesaid parcel of land, together with any improvements thereon, will revert to the said party of the second part, his heirs and assigns forever": with a provision for extension of the time in the event of delay occasioned by legal proceedings in obtaining the necessary property and rights for the construction of the sea wall and boulevard, or in the prosecution of the work.
3. The City Council covenants "that it will, within two years after the completion of said sea-wall and the filling in of said lands, pave the aforesaid boulevard, both sidewalks and driveway."
4. Both parties covenant "that the said party of the second part and his heirs and assigns who may be the owners of the aforesaid property of the said Henry C. Cheves on South Bay Street, shall have the right to build steps of stone or other suitable material along the front of said sea-wall for the use of the owners or occupants of the said property, and for pleasure purposes only, provided that the steps and the gateway to the said steps shall be constructed in accordance with the general design of the sea-wall and railing and shall be first approved by the City Engineer, and also provided that the said gateway shall be kept closed except when in actual use."
5. And, finally, "it is further covenanted and agreed that the area South of said sea-wall shall be kept open and unfilled in front of said sea-wall, boulevard and landing, and free from any obstructions, edifices or structures whatsoever, except as hereinbefore provided for landings and steps, so far as the said party of the first part is concerned, and the said party of the first part shall not sell, lease, license, encumber, part with or dispose of the said area or any part thereof or attempt so to do, and the party of the second part, his heirs or assigns, or any of them, shall have the right to enforce these conditions by injunction at any and all times and without warning, so far as the same are not inconsistent with the reversion provided for in these presents."
It appears that next east of the Cheves lot (which, as indicated above, has a width or frontage of 134 feet) there is a lot now or lately owned by one Hays, with a frontage of 70 feet; next east of the Hays lot is the Lawton lot, with a frontage of about 133 feet, and next east of the Lawton lot is a lot formerly owned by the City Council of Charleston and now occupied by the Fort Sumter Hotel. In 1921, the City Council of Charleston erected a wharf or dock from the sea wall in front of the last-mentioned lot, the wharf being practically opposite the foot of King Street. In 1927, this wharf was damaged and partially destroyed by a storm, whereupon it was repaired by the City Council of Charleston under a proper permit from the Secretary of War. In 1930, the City Council leased the wharf in question to the Fort Sumter Navigation Tours, Inc., which now holds it under that lease. In 1935, the wharf was again in great part destroyed by storm, and was again reconstructed under permit from the Secretary of War.
The plaintiff claims in his complaint that the erection of this wharf and its leasing to Fort Sumter Navigation Tours, Inc., is in violation of the covenants contained in the indenture between the City Council of Charleston and the plaintiff, above referred to, and particularly the covenant hereinbefore referred to as (5). He contends, in effect, that under the covenant last mentioned the City Council of Charleston bound itself to keep the entire frontage of the sea wall, from the Battery, or White Point Gardens, to Chisolm's Mill, free from wharves, docks, or other structures, except the landing and steps in front of the plaintiff's lot as referred to in the indenture, and also bound itself not to lease or otherwise dispose of any part of the whole frontage of the said sea wall.
The defendants contended at the outset, that such is not the proper construction of the covenant, and that, properly construed, it bound the City Council to keep free of wharves or other structures only so much of the waterfront as lies in front of the strip of land conveyed by the plaintiff under the indenture.
It seems to be well settled that restrictive covenants should be strictly construed, and unless there is a manifest intention to the contrary, a general covenant will be construed as limited to the premises purchased. It does not seem necessary, in my opinion, to invoke a rule of strict construction in respect of the covenant here involved, for the only reasonable construction, as I see it, is that for which the defendants contend. The words "the area south of said sea-wall," as used in the fifth covenant above mentioned, obviously mean not the area south of the entire length of the sea wall from the Battery to Chisolm's Mill, but the area south of the strip of land conveyed by the plaintiff for the purposes of the boulevard and sea wall. Similarly in the covenant numbered (4), where the plaintiff and his heirs and assigns are given the right to build steps of stone or other suitable material "along the front of said sea-wall," it would be far-fetched and unreasonable to contend that this covenant gave the plaintiff the right to build steps of stone or other suitable material anywhere along the whole front of the sea wall between the Battery and Chisolm's Mill. Manifestly, the area referred to in both covenants is that in front of the plaintiff's lot. In this connection it is noted that although the plaintiff claims title out to the channel of the river the City Council also claims title below high-water mark.
As the construction which I have placed upon the covenant in question, and which to my mind is the only reasonable construction, disposes of the matter, I deem it unnecessary to go further into the evidence or to pass upon the questions of estoppel, laches, and other issues which are raised under the answers of both defendants.
It is, therefore, ordered, adjudged, and decreed that the injunction prayed for in the complaint be and the same is hereby refused, and that the said complaint be and it is hereby dismissed.
It is further ordered that the plaintiff pay the costs therein.
Messrs. Nathans Sinkler, for appellant, cite: Contract: 128 S.C. 79; 121 S.E., 550; 190 S.E., 104.
Messrs. J. Waties Waring, Nathaniel B. Barnwell and Lionel K. Legge, for respondents, cite: Construction of restricted covenants: 18 C.J., 387; 7 R.C.L., 1115; 89 A., 29.
January 25, 1938. The opinion of the Court was delivered by
The issue in this case, which involves the construction of an indenture entered into between the plaintiff, Henry C. Cheves, and the defendant, City Council of Charleston, was decided in the Court below in favor of the defendant.
From the adverse decree, the plaintiff appeals.
After a careful study and review of the record, we are convinced that the Circuit Judge, Hon. J. Henry Johnson, reached the proper conclusion in the case. The exceptions are, therefore, overruled, and the judgment and decree of the Circuit Court affirmed. Let the Circuit decree be reported.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM and BAKER concur.
MR. JUSTICE CARTER did not participate on account of illness.