Opinion
14258
March 18, 1936.
Before GREENE, J., Charleston, March, 1935. Affirmed.
Action by Ida W. Schroeder against Harry J. O'Neill and others. From an adverse order the plaintiff appeals.
The order of Judge Green, requested to be reported, follows:
This case was heard by me at Charleston at the November, 1934, term, and was fully argued by counsel on both sides.
The suit was brought by the plaintiff, the holder of a license to a front beach lot on Sullivans Island, against the board of township commissioners of the island and certain other more recent licensees of lots on the island to restrain the erection of any buildings by the latter upon certain lots lying between plaintiff's lot and the Atlantic Ocean, and to declare the licenses of these lots null and void. These lots in front of plaintiff's lot had been laid out by the board from an area which somewhat recently had increased by accretion from the ocean bed between the plaintiff's lot and the Atlantic Ocean. The board had then issued licenses of these lots for value to the other defendants or their predecessors in interest. In other words, it appears that the shore line in front of plaintiff's lot retreated to the seaward, thus making in front of plaintiff's lot land which had before that been covered by water, and from this area of land so cast up from the ocean onto the beach, the board of township commissioners of the island laid off lots and sold licenses for such lots to the other defendants.
The plaintiff, to sustain her complaint, relies upon two positions, viz.:
First, that the licenses of these lots are illegal and void on the ground that under the statutes of this state the board was without power to issue licenses for lots containing less than one-half acre each. It is not disputed that these lots in question are each less than one-half acre in content.
Secondly, that even if such licenses were not unlawful at the time of issuance, they became void by the failure of any of these licenses, or their assigns, to build a dwelling house on said lot within one year after the date of the issuance of the licenses.
The answers of the defendants are in some respects different; but, briefly stating the essentials, they all, including the answer of the board, take issue with the construction of the statutes taken by the plaintiff. The answers of the lot-holding defendants further set forth that they paid to the board $100.00 each for their licenses and attempted to build or would have built, but the board declined to issue permits to them to build, and, in view of threatened litigation, passed resolutions extending the time to build until the question which had been raised as to the legality of the licenses had been definitely settled and the licensees so advised in writing by the board. Among other things, the answers, or certain of them, set forth the payment to the board each year of a yearly assessment of $10.00 for each lot, which they contend operated to renew the license from year to year, and created an estoppel in their favor against a forfeiture of their payments and their rights or interests in these lots. Various positions as to title, estoppel, acquiescence, waiver, easements, and forfeiture of the purchase price and assessments paid also are set forth at length in the answers.
The case has already been before the Supreme Court upon appeal from an order denying a jury trial. The order appealed from went further, as the Supreme Court said, and construed the statutes bearing on the question without regard to "the defenses set up by the defendants, to such an extent as virtually to dismiss the answers and to decide the case in favor of the plaintiff." The opinion of the Supreme Court held the action was equitable and it was not error to refuse trial by jury or to refuse to frame issues for a jury, and that "such equitable issues as are present in this cause should be passed upon by the Court." The opinion, however, modified the order below in its construction of the statutes and directed "that in the trial of this cause hereafter the reasoning of the Circuit Judge in refusing the order based upon his construction of the statute law be disregarded as being unnecessary to his decision of the motion." The Supreme Court, however, expressly declined "to decide the issues in the absence of testimony and with nothing before it to substantiate the allegations of the complaint or the defenses set out in the answers." Schroeder v. O'Neill et al., 166 S.C. 515, 165 S.E., 175.
The case was accordingly brought for decision before me at the November term in Charleston upon a stipulation of facts with letters and papers appended, supplemented by some oral testimony and certain maps and exhibits introduced in evidence before me.
From the facts so stipulated, and the testimony and evidence introduced, it appears and I so find, that the plaintiff is, and has been, since 1923, the owner of the occupational rights of lot No. 261, on Sullivans Island, containing one-half acre and entitled to such rights as inure to a licensee under the peculiar form of tenure prevailing on Sullivans Island under the statutes. The description of her lot gives the from beach as her southern boundary.
On March 22, 1926, the board of township commissioners of Sullivans Island issued to the other defendants, or to their predecessors in interest, the usual licenses to the eight lots in question which the board had caused to be laid off as delineated upon a map made by Richard C. Richard C. Rhett, surveyor, on March 16, 1926, recorded in R.M.C. office, Charleston County, in Plat Book E, page 33. Each of these lots is less than one-half acre. The licensees of these eight lots each paid the board $100.00 as license fees for the lots. The licensees, or their assigns, have since paid to the board each year their annual assessments of $10.00 per year on each lot; until 1929 in some instances, in others until 1930, and still others until 1931. This suit was commenced on August 25, 1930, and it appears that before that time the board accepted and retained these payments and no tender or reimbursement thereof was made by the board to any of the licensees. In the case of the defendant Irma Blank, for instance, it appears that the board accepted her annual payments of assessments of $10.00, paid for the use, occupation, and enjoyment of her lot, for the years 1930 and prior thereto; but that the check for $10.00 for her 1931 assessment was returned by the board, with the statement to the effect that the board is of opinion that these amounts should not be collected. The correspondence is attached to the stipulation of facts. On July 10, 1931, the clerk of the board wrote a letter quoting a resolution of the board "that during the time this controversy is in the Courts and until its decision the Board will not enforce the payment of assessments on lots affected by this case."
On March 24, 1930, the clerk of the board wrote one of these lotholders advising of a resolution of the board that unless a habitable building be placed on each lot by January 1, 1931, the lot would be declared vacant and forfeited to the commission; but on July 8, 1930, he wrote to disregard that resolution, as a suit was to be started to decide the question, and if the action is decided in favor of the board, the lotholders would be given one year from the date of the decision to build on said lots.
No dwelling house or other building has in fact been erected on any of the eight lots in question; but the board of township commissioners at a regular meeting on May 4, 1926, passed resolutions reciting that there was read to the board a letter of Annie W. Pringle (one of the licensees) stating that she was desirous of immediately building on one of these eight lots and stating that she was informed that a suit was about to be brought to test the validity of the presumptions and asking that the time of one year in which to build be extended. On motion it was unanimously resolved by the board "that the time for building on this lot, as well as for the remaining seven lots * * * likewise be extended, and that the time of one year should not commence to operate against any of the owners of the licenses to said lots, until this question of legality be definitely settled, and until they be so advised in writing by the Board."
The plaintiff took no steps until the commencement of this action, in August, 1930. The present board declined to issue any permits to build on any of these lots until the present controversy is determined by the Court. No dwelling house having been erected on any of these eight lots, there has been no removal or destruction of any dwelling house upon any of them.
No other lotholders on the island have intervened or joined with the plaintiff in the suit. Before bringing suit, the plaintiff applied to the board demanding that the board bring proceedings in the Court of Common Pleas to compel the licensees of these lots to desist from building. Upon refusal of board to sue, the plaintiff instituted this action.
Several questions raised in the answers may first be disposed of and laid aside, before coming to the two main questions at issue.
The plaintiff does not claim any title or right as a riparian proprietor to the land itself which has been built up by accretion in front of her lot. Her southern boundary is given as the beach, not the ocean, and her lot containing already one-half acre to which she is limited by law, she can have no proprietary interest in the area of accretion.
Likewise, the plaintiff very properly did not claim any right to an easement of unobstructed ocean view, breezes, light, or air. Easements of such a character are not recognized in this state. Bailey v. Gray, 53 S.C. 503, 515-517, 31 S.E., 354.
The plaintiff thus having no property right different in kind from that of other licensees or lotholders in general on the island, these questions may be disregarded.
We may likewise leave out any question of the public health being impaired by the laying out of the lots of less than one-half acre. The plaintiff did not urge this position and introduced no evidence to show any impairment of the public health; and oral testimony, introduced on behalf of defendants, disclosed that both in the old or western end of the island and in the newer portions laid out at the eastern end of the island, there are large numbers of lots laid out containing less than one-half acre, and that the health of the island was not impaired by the layout of those lots. The plats introduced in evidence upon inspection, corroborate this fact. It was also in evidence that on many such less than half-acre lots habitable houses have been built and occupied for generations without objection and with the sanction of the board.
There remain for consideration the two real issues in the case. Was it legal for the board to lay out and issue licenses for lots of less than one-half acre?
The statutes controlling Sullivans Island are Act No. 140 of 17th February, 1906, 25 Statutes, page 280; the Act of 1791, Code 1932, § 2246; Act of 1857, Code 1932, § 2247; Act of 1819, Code 1932 § 2248, and Act of 1827, Code 1932, § 2249.
The Act of 1906 established a township government for the township of Sullivans Island, providing a commission of five persons known as the board of township commissioners of Sullivans Island in place of the town council, which until then had been the municipal government for the island. This act was upheld in Board of Township Commissioners for Sullivans Island v. Buckley, 82 S.C. 352, 64 S.E., 163.
Among other powers, the Act provides: "Section 8. That the said Board has the charge and control of the lots on Sullivan's Island, and full right and authority to lay out such other lots as may from time to time become necessary; Provided, That no lot shall exceed more than one-half acre in measurement."
The Act of 1791 (Code 1932, § 2246) gave liberty to the citizens of this State to build on said island a dwelling and outhouses for their accommodation; "and the person or persons so building shall have the exclusive right to the same, and one-half acre of land adjoining thereto, as long as he, she, or they, may require, for the purposes aforesaid."
The Act of 1857 (Code 1932, § 2247) provided that "the present owners of lots on Sullivan's Island, whereon dwelling houses have been erected, and such citizens of this State as may hereafter build dwelling houses upon the said island, under the license granted by the preceding section, shall be taken and deemed to have, and shall enjoy, the same rights, titles, and interests, as tenants, from year to year, in and to the lots now owned by them, respectively; upon condition, nevertheless, that they shall deliver up the same when demanded by the Governor of this state. * * * And the titles thereto shall be assignable, transferable, transmissible, and distributable, as estates for years now are, or hereafter may be, by the Laws of this State."
The Act of 1819 (Code 1932, § 2248) provides as follows: "No exclusive right to a lot on the said island shall be obtained by any citizen otherwise than by his actually building a dwelling house thereon; and if such dwelling house shall be removed or destroyed, the owner thereof shall have the exclusive right to rebuild on the same lot for one year thereafter; and if no dwelling house be built by him within that period, such lot shall be again considered as vacant."
The Act of 1827 (Code 1932, § 2249) provides: "Hereafter no person shall erect, or cause to be erected, more than one dwelling house on each half-acre lot in the town of Moultrieville, on Sullivan's Island; and if any person shall build, or attempt to build, such a dwelling house, such person may be compelled to desist from such building, and to remove the same, by the Court of Common Pleas; and it shall be lawful for the intendant or any one of the wardens of the said town to execute such order, under the direction of the sheriff of the county, or of his lawful deputy."
It has been suggested that the Act of 1906 has not been brought forward in the Code. But even if that Act were regarded as inoperative, it would still not affect the result in this case, which depends upon the construction of the earlier Acts which are in the Code 1932, §§ 2246-2249. There is no claim that any of the lots in question exceed one-half acre. The provision in the Act of 1906 that they should not exceed one-half acre therefore can have no bearing. Moreover, apart from this Act, the construction of the earlier Acts in the Patterson case ( Town Council of Moultrieville v. Patterson, 7 Rich. Eq. (28 S.C. Eq.), 344, hereinafter referred to, is that they must not exceed one-half acre; the Act of 1906 in that particular is merely declaratory of the law as already held in the Patterson case.
If the Act of 1906 be held ineffective as regards the government of Sullivans Island and control of the lots, it would not impair the validity of the acts done by the board while actually holding office and performing the functions of office. If not a government de jure, the board is nevertheless the de facto government of the island, and in the absence of a direct proceeding to oust them from office, their acts as de facto officers under color of office have the same force and effect as a government de jure, as far as they affect the public and the rights of third persons, and they are not subject to collateral attack. 46 C.J., 1060, § 378; State v. Coleman, 54 S.C. 282, 284, 32 S.E., 406; State v. Miller, 122 S.C. 468, 476, 115 S.E., 742.
"There can be no doubt that the organization thereunder of the municipal government of Rock Hill constituted the municipality a municipal corporation de facto, and the members of its city council de facto officers of the corporation. But that situation, under the well-settled rule, the validity of the proceedings under which the municipal government of the city was established, or the acts of its de facto officers, cannot be attacked in this proceeding." Green v. City of Rock Hill, 149 S.C. 234, 252, 147 S.E., 346, 352.
The board of township commissioners have been recognized by the plaintiff and all parties to this cause as constituting such board governing the island. The plaintiff first applied to the board as such to bring the action and upon their refusal made them parties to the suit as such board. It is clear that the board constitutes the de facto government of the island and as such has inherent powers over the lots as such, apart from the Act of 1906.
The question of the legality of lots of less than one-half acre came up before the Supreme Court in 1855, and was decided in the case of Town Council of Moultrieville v. William Patterson, 7 Rich Eq. (28 S.C. Eq.), 344. At that time the Acts of 1791, 1819, and 1827 above referred to were in force, and also the Act of 1817, which had not then been superseded by the Act of 1857 above quoted. In construing these Acts, the Supreme Court held very clearly that their meaning was not that it was unlawful to erect a building on a piece of ground less than a half-acre. That "if a citizen choose to build a summer residence, he was entitled to appropriate the exclusive use of half an acre (perhaps in any form or figure), of land adjoining his building, including its site; and as no other citizen could encroach upon these premises, he might, in virtue of his building, claim a lot of half an acre. He could claim no more; but it depended upon himself alone, whether he would claim an entire half-acre, or put up with less." Also "while he may put up one dwelling house on his lot (the size of which is left to himself), he is not entitled to put up two or more. * * * To this view, it has been objected, that the Act of 1827 positively forbids the building on any lot of less than half an acre. This is not my reading of that Act. The Act, it is true, speaks of `each half-acre lot.' Does this necessarily require that each lot shall be of the extent of half an acre? I think not. This Act has tacit reference to the Act of 1791. That Act gave the maximum to which each builder might claim; and it being probably supposed that every claimant would lay out his premises to the best advantage, the lots when afterwards spoken of are spoken of as half-acre lots. This accounts for the language of the Act of 1827. Its intention was simply to say, that the owner of a lot (as defined by the Act of 1791), should not put up more than one residence upon it."
The Patterson case was decided in 1855 and it would appear from the plats and evidence submitted that its holding has generally been adhered to in the layout of the island, there being quite a large number of lots containing less than half an acre. Reference is made to the plat of the whole island by Richard C. Rhett, November, 1929, and also the plat of Lamble of 1899.
Unless the Patterson case and the general custom and usage for years are to be disregarded and a construction given which would unsettle the tenure of many lots on the island, where people have built homes and occupied them without molestation for generations, and with the sanction of the board, I see no escape form the conclusion that the licensees of the lots in question were not unlawful or void or beyond the power of the board on the ground that the area of the lots so laid out and licensed contained less that one-half acre.
"It should require circumstances of a very strong and controlling character to induce the Court to reverse a rule long in existence in this state in regard to property." Elkin v. Southern Railway Co., 156 S.C. 390, 396, 153 S.E., 337, 339.
"When a principle is once adopted and declared by the Courts, the people have a right to regard it as just declaration of the law, and to regulate their actions and contracts thereby. * * * There should never be a disturbance of the same, except upon urgent reasons and a clear manifestation of error." Lillard v. Melton, 103 S.C. 10, 25, 87 S.E., 421, 427.
"The community has a right to expect, with confidence, we will adhere to decisions made after full argument and upon due consideration." State ex rel. Richards v. Moorer, 152 S.C. 455, 506, 150 S.E., 269, 287.
The second question remains whether the licenses have become void by the failure to build upon them a dwelling house within one year from the date of the licenses.
If the case presented only the bare fact that no dwelling house had been built on the lots within one year after the time of the license, it might well be that the board could consider the licenses expired, and issue licenses to other persons therefor. It appears, however, that within two months after the issuing of these licenses, the board passed resolutions reciting that suit was threatened to test the validity of the license to the eight lots in question, in view of which the board by formal resolutions extended the time for the lotholders in question to build until after the question should be settled, and the lotholders notified in writing by the board. The board thereafter refused permits to build, pending the outcome of the suit. It would seem unjust and inequitable to the lotholders, who had paid $100.00 each for their licenses and who until after this suit was brought continued to pay their annual assessments of $10.00 a year on these lots, which payments were accepted and retained by the board, to hold that these lotholders, who refrained from building, presumably in reliance upon the extension granted them by the board until the controversy should be settled, should lose their rights. This view is strengthened by the fact that originally in the beginning the only question appears to have been whether the licenses were invalid because the lots contained less than one-half acre, which question in fact, though not then so recognized, lacked any substantial foundation under the decision in the Patterson case. Before the first year had elapsed, the board had officially extended the time. It would be inequitable to penalize or visit a forfeiture upon the lotholders for failing to build under these circumstances. Under the statute, the licenses are not rendered ipso facto void for failure to build within a year, but the statute provides that if no dwelling house be built within a year, such lot shall again be considered as vacant. It seems clear that the board as the de facto government of Sullivans Island has inherent power over these lots. Plunkett v. City of Aiken, 159 S.C. 97, 107, 108, 156 S.E., 245; Grady v. City of Greenville, 129 S.C. 89, 102, 123 S.E., 494; Haesloop v. Charleston, 123 S.C. 272, 282, 283, 115 S.E., 596
The Court will not interfere with discretionary powers of a municipal body, except in cases of fraud or clear abuse of power, or where unreasonable or capricious. Plunkett v. City of Aiken, supra.
A municipal or other subordinate governmental agency, such as this board of township commissioners, can be bound by an estoppel in cases such as the present. Crocker v. Collins, 37 S.C. 327, 334, 15 S.E., 951, 34 Am. St. Rep., 752; Chafee v. Aiken, 57 S.C. 507, 516, 35 S.E., 800; Southbound R.R. v. Burton, 67 S.C. 515, 525, 46 S.E., 340; Grady v. City of Greenville, 129 S.C. 89, 123 S.E., 494; Solen Corporation v. Robertson, 142 S.C. 56, 140 S.E., 236.
The payment of the annual assessments by the defendant lot owners for the purpose of using, occupying, and enjoying their lots, when accepted by the board constituted in effect a yearly renewal of their rights.
The payment of the initial license fees by these lotholders, and annual assessments or renewal license fees of $10.00 per year per lot thereafter until after the commencement of this action in reliance upon their license which they had bought, and the official resolutions of the board extending the time to build, coupled with the acceptance of these payments by the board, and no action having been taken by the board or by any lotholder on the island until the latter part of August, 1930, when this suit was commenced, and the board and all other lotholders on the island standing by and permitting these parties to spend their money in the original acquisition and the renewal assessments upon these lots, all these would seem to make out a very clear and strong case of equitable estoppel. It would also be a somewhat inconsistent position for the board or the two succeeding boards to issue the licenses, accept the payments, extend the time for building, refuse permits to build, and then claim that the lotholders must be restrained from building or compelled to desist from building.
Further, Mr. Thee, a former chairman of the board, referring to these lots, testified without contradiction that the board extended the time for building on those lots until the street should be completed as laid out on the map, because it was impossible to build there. That it was all sand hills, and they could not get down to the lots; that they extended the time until they had funds to lay the street up there, but they ran out of funds.
The fact as shown, that in 1931 or thereabouts the board started to return some of the checks for yearly assessments, could not affect the question. That was some time after the suit was commenced and no action taken after suit had been started could affect the rights of the parties to be determined in the suit.
As the plaintiff has no proprietary right in herself to the lots in question and brings this action in the right of the board, she having first applied to the board to bring the action, and, upon their refusal, having started suit herself over four years after the licenses of these lots were originally issued, if the board is estopped, she also is estopped.
The failure of the plaintiff to have taken any action from 1926 to 1930 strengthens the foregoing conclusion. Welch v. Edisto Realty Co., 170 S.C. 31, 42, 169 S.E., 667.
It follows that the action of the plaintiff must be dismissed, and it is so ordered.
Messrs. Hagood, Rivers Young, for appellant.
Messrs. Mitchell Horlbeck, for respondents Paul, Baxter and Small.
Mr. Edwin J. Blank, for respondent Irma Blank.
Mr. Hammond C. Bowman, for Board of Township Commissioners.
March 18, 1936.
This case was tried by his Honor, Judge Greene, who gave judgment for the defendants. The plaintiff then appealed to this Court, but failed to file her brief as required by the rules; and the matter is now before us on a motion to vacate the order of the clerk dismissing the appeal. On the hearing, counsel for the respondents, while contending that the perfecting of the appeal had been inexcusably delayed and that the motion to reinstate was without merit, stated that they did not oppose a decision of the issues involved, but felt that such decision should be rendered on the transcript of record filed with the Court. To this opposing counsel assented. The request is granted and the appeal reinstated for the purpose of its immediate disposition.
A reading of the record discloses that a discussion of the questions raised by the exceptions is unnecessary as, they are all correctly disposed of in the full and well-considered decree of Judge Greene. His order, therefore, which will be reported, is affirmed.