Bookhart v. Central Elec. Power Co-op.

• Citation: 72 S.E.2d 576,222 S.C. 289
• Decision Date: 22 September 1952
• Docket Number: No. 16670,16670
• Parties: BOOKHART v. CENTRAL ELECTRIC POWER COOPERATIVE, Inc. (two cases). MOSS v. CENTRAL ELECTRIC POWER COOPERATIVE, Inc. (two cases). MOSS et al. v. CENTRAL ELECTRIC POWER COOPERATIVE, Inc. (two cases).
• Court: United States State Supreme Court of South Carolina

Page 576

72 S.E.2d 576

222 S.C. 289

BOOKHART v. CENTRAL ELECTRIC POWER COOPERATIVE, Inc. (two cases).

MOSS v. CENTRAL ELECTRIC POWER COOPERATIVE, Inc. (two cases).

MOSS et al. v. CENTRAL ELECTRIC POWER COOPERATIVE, Inc. (two cases).

No. 16670.

Supreme Court of South Carolina.

Sept. 22, 1952.

The order of Judge Henderson follows:

This is a demurrer by the defendant to the plaintiff's complaint on the ground that it fails to state facts sufficient to constitute a cause of action, in that it appears upon the face of the complaint that the defendant, as a cooperative nonprofit membership corporation organized under and for the purpose stated in the Rural Electric Cooperative Act, Code 1942, § 8555-91 et seq., has the right under that act to obtain the right-of-way sought over the plaintiff's lands by condemnation, upon the payment to plaintiff of just compensation for the taking thereof as ascertained in the condemnation proceeding, and the facts alleged in the complaint do not in law entitle the plaintiff to have the defendant enjoined from exercising its said right by means of the procedure prescribed in the statutes of South Carolina in such case made and provided.

It was heard by me on September 28, 1951.

There is no contention by the plaintiff that the proposed power line is to be located in an improper place on this land, or that it is unnecessarily wide, or other objection of a local nature, but, as is accurately stated by counsel for the plaintiff in their excellent written brief, the allegations of the complaint raise the following question: 'Under the law of South Carolina when a corporation attempts to exercise the power of eminent domain, can a landowner challenge the right of the corporation to exercise that power on the ground that no public necessity exists for the construction of the project?'

In considering a complaint for the purpose of passing upon a demurrer, while of course the facts which are well pleaded are deemed to be true, the demurrer does not admit conclusions of law. Spigner v. Provident Life and Accident Insurance Company, 148 S.C. 249, 146 S.E. 8; Henderson v. McMaster, 104 S.C. 268, 88 S.E. 645.

Many of the matters involved in the complaint have already been passed upon by the Supreme Court in the appeal in the case of Bookhart against this defendant. 219 S.C. 414, 65 S.E.2d 781.

It is clear that a landowner has a right to go to the court of equity for relief if a condemnor attempts to make an unreasonably hurtful location of the power line on his property such as by going through shade trees surrounding the residence, when that could be avoided. Seabrook v. Carolina Power and Light Company, 159 S.C. 1, 156 S.E. 1.

Also the Court will prevent the taking of an unnecessarily wide right-of-way. White v. Johnson, 148 S.C. 488, 146 S.E. 411.

However, in my opinion, the question of the public necessity of constructing the project as a whole is a legislative or political one, and not subject to review by the Courts, in the absence of fraud, bad faith, or clear abuse of discretion on the part of the condemnor.

At 29 C.J.S., Eminent Domain, § 89, page 882, we find the following:

'The legislature may delegate the power of determining the necessity of exercising the power of eminent domain to public officers or boards or to private corporations vested with the power of eminent domain, and in the absence of any statutory provision submitting the matter to a court or jury the decision of the question of necessity lies with the body of individuals to whom the state has delegated the authority to take. Generally, a determination by the grantee of the power is conclusive and is not subject to judicial review, in the absence of fraud, bad faith, or clear abuse of discretion.'

Also, see 18 A.J. 734, and Lewis on Eminent domain, Vol. 2, sec. 597.

This defendant has been given authority by the General Assembly to condemn rights-of-way. Code, § 8555-93. See also South Carolina Electric & Gas Co. v. South Carolina Public Service Authority, 215 S.C. 193, 54 S.E.2d 777.

Judging from the foot-notes, and the many additional cases in the pocket part, the principle laid down in 29 C.J.S., Eminent Domain, § 89, page 882, seems to be the almost universal rule and I do not think that the South Carolina cases are to the contrary. These cases deal with the question of the location of the right-of-way as it crosses the plaintiff's land, and not with the public necessity or expediency of the project as a whole.

In Riley v. Charleston Union Station Company, 71 S.C. 457, 51 S.E. 485, the Court did not question the necessity for the building of a railway station in Charleston, but the point considered was its location, whether on the land of the plaintiff or on lands of other persons.

Hutchison v. York County, 86 S.C. 396, 68 S.E. 577, was a case where there was already a highway connecting the same communities. The plaintiff contended that the old route was adequate. There was involved a question of location.

Sanders v. Luther, 164 S.C. 105, 162 S.E. 70, also had to do with the re-location of an existing road, this one in Beaufort County.

The delegation by the State of this great power of eminent domain does not mean that a condemnor is given a free rein, to run rough shod over the lands of the citizens of the State. The Courts will always jealously safeguard the right of landowners against a wrongful method in laying out the right-of-way across their particular tracts of land, but when it comes to the wisdom, or expediency, or reasonable public necessity of the entire project, the department of government through which the State speaks is its legislature, and if such power has been delegated, the condemnor must act in good faith and not in a capricious or wantonly injurious manner.

As an example, if the General Assembly should authorize a railroad company to construct a line of railway from Charleston to Columbia and should delegate to it the right of eminent domain for that purpose, I do not think that the judicial department of the State government could step in and hold up its hand and say that the entire project is unwise and not reasonably necessary in the public interest. The General Assembly determines the public necessity of the undertaking as a whole; the Court protects the citizen from bad faith or fraud on the part of the condemnor to whom the State has delegated this far-reaching power.

There are many conclusions of law set forth in the complaint, and also many conclusions of inferences of fact. It should be noted that paragraphs 9 and 10 are in the alternative. Paragraph 9 alleges that the defendant has never made a finding of fact as to the necessity for the proposed power line. Paragraph 10 says, 'if the defendant has ever made any determination that any necessity exists,' it is false and fraudulent. Under the principle governing alternative allegations, this does not amount to an allegation that no such finding was made. Daniels v. Berry, 148 S.C. 446, 466, 146 S.E. 420; 41 A.J. 317, section 41: 71 C.J.S., Pleading, § 41, page 109.

As to paragraph 10, the allegation that the finding of necessity has no basis in fact is merely a conclusion. Such conclusions are not admitted by a demurrer. Oliveros v. Henderson, 116 S.C. 77, 106 S.E. 855; McLeod v. Southern Railway Company, 188 S.C. 14, 198 S.E. 425; Duncan v. McCormick County, 192 S.C. 216, 6 S.E.2d 265.

Nor is the plaintiff's conclusion that the finding by the defendant was false and fraudulent admitted by the demurrer. It is essential that the facts and circumstances which constitute fraud should be set out clearly. State v. Jaques, 65 S.C. 178, 43 S.E. 515; Drennan v. Brown, 112 S.C. 340, 100 S.E. 75; Steele v. Kirven, 120 S.C. 88, 110 S.E. 837.

The allegation that the finding constitutes an abuse of discretion is merely a conclusion or inference of fact by the pleader. No facts are set forth in this paragraph to substantiate the statement. As shown by the case of South Carolina Electric & Gas Co. v. South Carolina Public Service Authority, above, the facts which are alleged in other paragraphs of the complaint, especially paragraphs 6, 7 and 8, as to the building of the power line into Elloree, do not as a matter of law constitute an abuse of discretion. Bank of Fort Mill v. Rollins, 217 S.C. 464, 61 S.E.2d 41; 71 C.J.S., Pleading, § 261, page 525.

As to the allegation that the determination of necessity was made for the personal benefit of the defendant, no facts are alleged in paragraph 10. If we turn to paragraphs 6, 7 and 8, and other paragraphs of the complaint, the facts there alleged indicate no personal benefit to the defendant, or that it is doing other than to carry out the purposes for which it was organized, and its contract duties, as set forth in the South Carolina Electric & Gas Co. case, above. This, then, is a mere conclusion or inference, and not based on alleged facts; and so is not admitted by the demurrer.

It Is Accordingly ordered that the demurrer of the defendant to the plaintiff's complaint be and the same hereby is sustained, and the complaint is dismissed.

The order of Judge Brailsford follows:

The plaintiffs, who are the owners of certain farm and timber lands, seek in this action to obtain an injunction restraining the defendant, a corporation organized under the Rural Electric Cooperative Act, Sections 8555-91 et seq., of the Code of Laws of 1942, from condemning a right-of-way over such lands for the construction of an electric transmission line, in a condemnation proceeding which it has commenced for that purpose.

The complaint alleges that the proposed transmission line is a high voltage trunk line designed for the purpose of conducting electric power in wholesale quantities to the area, section and community in and around the town of Elloree where the line will terminate; that this area, section and community is now, and has been for some time, adequately served and...