City of Spartanburg v. Belk's Dept. Store of Clinton

• Decision Date: 05 May 1942
• Docket Number: 15402.
• Parties: CITY OF SPARTANBURG v. BELK'S DEPARTMENT STORE OF CLINTON et al.
• Court: South Carolina Supreme Court

20 S.E.2d 157

199 S.C. 458

CITY OF SPARTANBURG v. BELK'S DEPARTMENT STORE OF CLINTON et al.

No. 15402.

Supreme Court of South Carolina

May 5, 1942

[Copyrighted Material Omitted]

Carlisle Brown & Carlisle, of Spartanburg, for appellant.

Johnson & Johnson, of Spartanburg, for respondent.

BONHAM Chief Justice.

On October 31, 1941, the City of Spartanburg filed its petition against certain defendants, including Mrs. M. Antoinette Somaini, in the Court of Common Pleas of Spartanburg County for the condemnation of certain real estate in the City of Spartanburg, as provided by the Public Works Eminent Domain Law of South Carolina, being Act Number 611 of the Acts of 1936, page 1268. Along with the petition it filed a notice of a preliminary hearing before the Honorable T. S. Sease, and also a declaration of taking. It also published its notice in the Spartanburg Herald, and deposited with the Clerk of Court $100 for the use of the persons entitled thereto.

The foregoing petition, notice, and declaration of taking were duly served on the appellant, and she filed her return setting forth her objections and demanding a jury trial. She also served notice of her objection to the provisions of the Public Works Eminent Domain Law providing for the transfer of title and taking of property before payment for the same, on the grounds that such transfer and taking were in violation of the Constitution of the United States and of this State, which provide that private property shall not be taken for public use without just compensation.

A hearing was had before the Honorable T. S. Sease on November 24, 1941, as noticed, and thereafter Judge Sease, on December 26, 1941, filed an order overruling the objections of the appellant, and requiring that the city "make a deposit or file its bond in this Court in the amount of $3,000.00, conditioned to secure the payment of any amount ultimately determined as the compensation to be paid," and that "upon such deposit being given as security for the payment of the compensation to be paid, the City of Spartanburg shall be entitled to immediate possession of the property taken and possession thereof shall be surrendered to the city so that commencement of work on this much needed public project shall not be delayed." The sum of $3,000 was deposited by the City of Spartanburg with the Clerk of Court, in obedience to the order of Judge Sease.

On January 12, 1942, the City of Spartanburg entered into possession of the property, whereupon, on the following day, the appellant served notice of intention to appeal from the order of Judge Sease. She also served a notice of a motion before Judge Sease for a stay of proceeding, and her bond in the sum of $500. She also served her notice of a motion for an order requiring the Clerk of Court to pay to her the deposit of $3,000.

The respondent served notice of its motion before Judge Sease for an order setting the case "for trial before a jury upon Calendar 1 of the Court, with right-of-way over all other cases pending trial and date of trial to be fixed as Monday, January 19, 1942, or the first practicable date thereafter." The pending motions came on for hearing before Judge Sease who, on January 26, 1942, filed an order overruling appellant's motions, and set the case for trial before the Honorable M. M. Mann, at the Court of Common Pleas on January 26, "with right-of-way over all other cases." From this last named order, the appellant served notice of intention to appeal. Upon the call of the case for trial, it was continued by Judge Mann upon the appellant's motion.

The petition of the respondent, and the accompanying notice to appellant, together with a declaration of taking, all duly executed, were in the language of the Public Works Eminent Domain Law, and were in compliance with the provisions of that Act. The petition set forth the name of the petitioner, a sufficient description of the property, a statement that its acquisition was necessary for a public works project which is described therein, a statement that the proceedings were instituted under the said Act, and a suitable prayer for relief. The notice to the appellant and other named property holders and "to whom it may concern," was duly signed by the Clerk of Court of Common Pleas, and was in the language of Section 7 of the Act. The declaration of taking was duly signed by the Mayor of the respondent, and contained a description of the property, sufficient for its identification, a statement that title in fee and immediate possession were being taken by the petitioner for the uses named in the petition, and a statement of the value of the property, and an allegation that the sum named constitutes just compensation for the property taken.

To the foregoing petition the appellant filed her verified return, in which she raised the question that she could not answer the allegations of paragraph 4, relating to the intentions of respondent with reference to the use of the land, and submitted that "the said allegations are not allegations of fact such as defendant is required to answer." Further making her return to the petition and to the notice and to the declaration of taking, the appellant alleged that the notice is defective, "in that copies of the same have not been posted in conspicuous places on the said real estate and entry of the same has not been made on record of Lis Pendens in the office of the Clerk of this Court" as required by law; that the declaration of taking "does not set out a statement of the sum of money estimated by the purchaser to be just compensation for the property," and that "there has not been deposited in Court to the use of this defendant the estimated amount of just compensation for the property." She alleges further that she has not been served with notice of application to the Court for the designation of a day on which defendant shall surrender possession of the premises to the respondent. She further demanded a jury trial of all issues arising in the proceeding, and prayed that the petition be dismissed, but that if the same not be dismissed, that the respondent be required to estimate the just compensation for her property, and to deposit the same in Court to her use.

The following order was filed by Judge Sease on December 26, 1941:

"This is an action duly commenced in this court by the City of Spartanburg on October 31, 1941, pursuant to the terms of the Public Works Eminent Domain Law, approved July 17, 1935, for the purpose of acquiring title in fee simple and immediate right of possession to certain real estate lying along West Main street in the City of Spartanburg needed for the widening and improvement of a portion of that street lying between Thompson street and High Point Road as a public works project.

"The City of Spartanburg, at the time of institution of this proceeding, filed a Declaration of Taking on October 31 1941, under Section 18 of the Act, taking immediate title in fee to the lands condemned and declaring that immediate possession of the property was being taken by the city for the purposes mentioned in the Petition. The Declaration of Taking declared that the value of the property being taken did not exceed $100, and the city duly deposited with the clerk of this court $100 as just compensation for the property being taken for the use of the persons entitled thereto.

"Notice was duly published, served and filed as required by Section 7 of the Act, giving due notice of a hearing before this Court for the following purposes:

"1. To determine the validity of these proceedings and the right of the petitioner to take title to and possession of said property prior to final judgment, as authorized by Section 18 of the Public Works Eminent Domain Law;

"2. To fix the amount of security to be given by petitioner on account of its selection to take title to and possession of said property prior to final judgment; and

"3. To designate the procedure (whether by reference to a Special Master or by trial before a jury) to determine the amount of compensation to be paid for said property, and to whom the same is to be paid.

"All defendants were properly served with copy of summons, petition, declaration of taking and notice at the time of commencement of the action, and all jurisdictional requirements have been fulfilled.

"The matter now comes before me for hearing on the above notice and the returns filed by defendants. Of the several returns filed by defendants, only the return of the defendant Mrs. M. Antoinette Somaini raises any real issue as to the regularity and validity of the condemnation proceedings. Besides lesser objections, she raises the point that the taking of title and possession of her property by the city under the Public Works Eminent Domain Law is in violation of Section 17, Article 1, of the State Constitution of 1895, claiming that the taking is without just compensation first being made therefor.

"The matter has been fully heard by me and the issues have been argued by counsel for the respective parties.

"I find that the proceedings herein are in conformity with the provisions of the Public Works Eminent Domain Law under which the action was brought, that the same are regular and valid, and that the City of Spartanburg has the right to take title to and possession of the property condemned prior to final judgment as authorized by Section 18 of the Act. Upon filing of the Declaration of Taking and the deposit being made in Court, title to the property being condemned became vested in fee simple in the City of Spartanburg, and the right to just compensation for the same became vested in the persons entitled thereto.

"I find that the Public Works Eminent Domain Law and these proceedings...