Cain v. South Carolina Public Service Authority

• Decision Date: 12 August 1952
• Docket Number: No. 16658,16658
• Citation: 72 S.E.2d 177,222 S.C. 200
• Parties: CAIN et al. v. SOUTH CAROLINA PUBLIC SERVICE AUTHORITY.
• Court: South Carolina Supreme Court

Page 177

72 S.E.2d 177

222 S.C. 200

CAIN et al. v. SOUTH CAROLINA PUBLIC SERVICE AUTHORITY.

No. 16658.

Supreme Court of South Carolina.

Aug. 12, 1952.

R. M. Jefferies, Walterboro, Robert McC. Figg, Jr., Charleston, Norval N. Newell, W. D. Simpson, Moncks Corner, for appellant.

Samuel Want, Darlington, Dennis & Denis, Moncks Corner, for respondent.

OXNER, Justice.

This action was brought to compel the South Carolina Public Service Authority to convey to the plaintiffs approximately 33.3 acres of a 1170 acre tract of land in Berkeley County, which was acquired from Elizabeth R. Cain by condemnation under an Act of the General Assembly, approved May 31, 1939, 41 St. at L. 265, now incorporated as Sections 9111 to 9125, inclusive, of the 1942 Code. Mrs. Cain died on June 1, 1941, leaving a will wherein she bequeathed and devised all of her property, except household goods and personal effects to her children, who are the plaintiffs in this action. The asserted obligation of the Authority to convey said property to the plaintiffs is based on a repurchase provision contained in the above mentioned Act. The construction of this provision is the focal point of this controversy. The facts and issues presented on this appeal can better be understood by first reviewing the pertinent portions of said Act.

Section 2 (now Section 9112 of the 1942 Code) provides that all 'state authorities' established for the purpose of developing waterways, producing and distributing electric power, reclaiming and draining swampy and flooded lands, improving health conditions, or reforesting water sheds, shall have the right of eminent domain for any of such purposes and are authorized to exercise same in the manner stated in the Act. Section 12 (now Section 9122 of the 1942 Code) states that the powers of condemnation therein given shall be cumulative to, and shall in no way repeal or restrict, any right of condemnation previously given by law to such authorities. Section 3 (now Section 9113 of the 1942 Code) is as follows.

'For the general welfare of the State and in the public interest, and to provide for the payment of just compensation on account thereof through the exercise of the right of eminent domain by said authority established by the State for purposes defined in section 9112, a method of condemnation procedure, as hereinafter more fully provided, is hereby established whereby such state authority may exercise the right of eminent domain. The power of condemnation and the method of condemnation procedure shall include and be applicable to the condemnation of property necessary or useful or convenient for the public purposes herein mentioned, including all lands or interests therein which may be necessary or useful or convenient in the construction of dams, canals, locks, power houses or reservoirs, and including borrow pits, flowage rights, waters, water rights, riparian rights, easements, rights-of-way, and all other rights necessary or useful or convenient in carrying out the purposes of said state authority. Unless said state authority shall state in the notice to owners hereinafter provided for that it seeks to acquire an estate other than one in fee simple, all properties to be acquired under the terms and provisions of this article which said authority shall determine are to be actually covered by impounded water, or occupied by dams, structures, or borrow pits shall be in fee simple and all lands between the high water mark, as established by said state authority and a line not exceeding 100 lineal feet beyond the maximum high water mark of water impounded or to be impounded, and within a reasonable distance from any dam, dike or structure, shall be in fee simple, but said state authority shall arrange to permit the previous owner of said 100 feet strip, and his heirs and assigns, to pass over and across said strip which may be acquired hereunder, and any and all lands of said state authority which are not actually covered with water at convenient places for purposes of ingress and egress to the reservoirs of said state authority, which right shall be exercised so that the same will not interfere with any dams, dikes, structures and buildings of said state authority or the application and use of said state authority of proper health and sanitation measures and said strip and all of the lands acquired by the authority may be controlled by the authority for health and sanitation measures to the extent of exclusion of the public from said strip and lands at such times as may be necessary: provided, however, that, if the lands, or any portion thereof, acquired by said state authority hereunder are not occupied for the purposes of erecting dams, dikes and structures, including lands acquired near said dams, dikes and structures for purposes of protecting said dams, dikes and structures and for purposes of obtaining materials for maintenance, and the one hundred feet strip from the said maximum high water mark, and unless said lands above the dams, dikes and structures are actually covered with water, within a period of five years from the date of acquiring lands hereunder, the owner of any tracts of land acquired by said state authority under this article shall have the absolute right to repurchase said lands from said state authority upon the payment by the owner to said state authority of the amount paid by said state authority to said owner less any damages which said lands may sustain by reason of said state authority having occupied the same, together with depreciation in value of said lands and any special damages which the owner may have sustained by reason of said state authority having acquired said land hereunder. If the owner and the said state authority should fail to agree upon the amount of damages as above specified, which shall be deducted from the amount to be repaid by said owner, then said damages shall be ascertained and established under the procedure herein provided for the acquisition of lands by appointment of referees and with full right of appeal to both parties as provided for in the original acquisition hereunder. Unless the owner shall exercise his right to repurchase said lands within a period of one year from the expiration of the five years above provided, then said right shall cease upon the authority giving to said owner ninety days notice that said right will expire at the end of said ninety days. Such state authority shall also have the right to acquire by condemnation all water and flowage rights in any and all land in the vicinity of said projects which it may determine to be necessary, useful or convenient or which might be damaged by reason of the construction or operation of such projects, and on such lands the state authority may establish such health control measures as may be necessary.'

In Section 4 (now Section 9114 of the Code), it is stated that for the purpose of the Act, 'the words 'owner' or 'owners' shall include any one claiming any interest in the property or rights sought to be condemned whether by way of present interest, or by way of vested or contingent remainder, possibility of reverter or otherwise, * * *.'

The remaining sections of the Act need not be reviewed as they relate merely to the procedure to be followed in exercising the right of condemnation.

The South Carolina Public Service Authority was created by the General Assembly in 1934. 38 St. at L. 1507. This Act, as amended, now constitutes Sections 8555-11 to 8555-24, inclusive, of the 1942 Code. Under its terms, the Authority was empowered 'to develop the Cooper River, the Santee River, and the Congaree River in this State, as instrumentalitites of intrastate, interstate and foreign commerce and navigation; to produce, distribute and sell electric power; to reclaim and drain swampy and flooded lands; and to reforest the water sheds of rivers in this State'. The Authority was also given all powers necessary or convenient for the exercise of the powers stated. In Creech v. S. C. Public Service Authority, 200 S.C. 127, 20 S.E.2d 645, 648, the Court said: 'In our opinion, the South Carolina Public Service Authority is a public corporation in the nature of a quasi municipal corporation, exercising certain governmental functions as an agency of the State.'

In the exercise of the foregoing powers, the Authority erected a dam across the Santee River, thereby impounding a large quantity of water in a reservoir or artificial lake, and constructed a diversion canal to carry water from this lake to a basin situate near the head waters of the Cooper River, which basin was made by building additional dams and dikes. It has also erected a power house for the purpose of generation of hydro-electric power. The project was begun in 1939 and was practically completed and placed in operation in 1942. In the construction of this large hydroelectric and navigation project, the Authority acquired, either by purchase or condemnation, more than 200,000 acres of land in several counties, including the County of Berkeley.

Included in the property acquired by condemnation was the 1170 acre tract of land belonging to Mrs. Elizabeth R. Cain. Proceedings for condemnation of this tract were instituted in July, 1939. A trial was had in March, 1940, and the jury fixed the sum of $21,352.50 as the value of the entire tract, or an average of $18.25 per acre. This amount was duly paid and deed executed to the Authority by the Clerk of Court for Berkeley County on April 16, 1940.

When Lake Moultrie, the lower of the two lakes in the Santee-Cooper project, was filled with water to its maximum operating level of 75 feet above mean sea level, the whole of the 1170 acre tract with the exception of 33.3 acres involved in this controversy was actually covered by the waters of said lake. On November 26, 1945, or about three years after the project was completed, plaintiffs demanded that the Authority convey to them the 33.3...