Clarke v. City of Greer
| Decision Date | 11 June 1957 |
| Docket Number | No. 17307,17307 |
| Citation | 98 S.E.2d 751,231 S.C. 327 |
| Court | South Carolina Supreme Court |
| Parties | Nona CLARKE, Respondent, v. CITY OF GREER and Reed & Abee, Inc., Appellants. |
Ansel M. Hawkins, Greer, Benjamin A. Bolt, Greenville, for appellants.
J. Robert Martin, Sr., Greenville, forrespondent.
This action was brought against the City of Greer and Reed & Abee, Inc., a general contractor, to recover damages for unlawfully entering upon plaintiff's fifty acre tract of land near the City of Greer and laying sewer lines through said property. The complaint contains two causes of action separately stated. The first charges an unlawful entry upon and taking of plaintiff's property by the City of Greer and the second alleges a trespass by the contractor. Actual damages are sought against the city and both actual and punitive damages against the contractor. The defendants interposed a demurrer to the complaint upon the grounds (1) that the two causes of action are improperly joined in the complaint, and (2) that the plaintiff's remedy, if any, is solely under the condemnation statutes. The case is here on appeal by defendants from an order overruling the demurrer.
In the first cause of action it is alleged that during 1954 the city, without first making just compensation and over plaintiff's protest, unlawfully authorized and directed its agent and contractor to enter upon and lay sewer lines across her property and in doing so, 'cut down and destroyed valuable forest thereon, tore up and destroyed pasture lands and crops, tore down and destroyed terraces, blasted and hauled away valuable rock and scattered crushed rock over her lands and destroyed her timbers by infestation of worms from cut unremoved timbers.' It is further alleged that the laying of said sewer lines 'forever precludes plaintiff from the privilege of crossing from side to side of her farm and renders the land of plaintiff subject to the hazards of disease and disagreeable odors which in the natural course of events will emanate from said sewer line and forever deprives plaintiff of the unrestricted, free full use and enjoyment of her property and property rights.' It is then stated that the City of Greer 'is liable in actual damages for all the injuries and the taking and destruction of property under the fundamental laws of the State of South Carolina as guaranteed by its Constitution.'
In the second cause of action it is alleged that the contractor, Reed & Abee, Inc., over plaintiff's protest, unlawfully invaded her property and constructed sewer lines across same, with full knowledge that the City of Greer had not exercised any right of condemnation and was without authority to authorize anyone to enter upon her property. The damage to the real estate is set out in substantially the same manner as in the first cause of action. It is further alleged that the acts of Reed & Abee, Inc. 'were perpetrated in a negligent, high-handed, heedless, wanton and reckless manner to plaintiff's irreparable injury and damage.'
The prayer of the complaint is for judgment against the defendants in the sum of $25,000.
It is stated in the record that some time prior to the commencement of this action, the City of Greer sought to acquire by condemnation under Sections 59-203 and 59-204 of the 1952 Code a right of way across the property of the plaintiff. From the award of the condemnation board plaintiff appealed to the Court of Common Pleas for Greenville County. When the case was called for trial in April, 1955, it came to the attention of the Court that the Code sections under which the condemnation proceedings were instituted had been repealed, a fact which had been overlooked by counsel for the City of Greer. On motion of the city, that proceeding was discontinued for lack of jurisdiction. On June 3, 1955, a second condemnation proceeding was instituted by the City of Greer under the prevailing statutes (Section 25-161 et seq. of the 1952 Code Supplement). From the award by the condemnation board, plaintiff, specifically reserving all of her rights, again appealed to the Court of Common Pleas. The second condemnation proceeding is now pending in that Court. On June 11, 1955, this action was commenced. In the original complaint the two causes of action were jumbled. Later an amended complaint was served in which they were separately stated.
The only question we need consider is whether the two causes of action may be joined in the same complaint. Section 10701 of the 1952 Code permits the plaintiff to unite in the same complaint several causes of action when they arise out of the same transaction, but the causes of action so united must, except in actions for foreclosure of mortgages, 'affect all the parties to the action.' Assuming that both of the causes of action here arise out of the same transaction, there remains the crucial question of whether each affects both parties defendant.
'As a general rule, in order to authorize a joinder, the causes must affect the different defendants in such manner as to create a joint or common liability or the defendants must have a joint or common interest.' 1 C.J.S. Actions § 98, p. 1287.
It is clear that a common law action ex delicto could not be maintained against the City of Greer for the alleged wrongful acts set out in the complaint. 'It has been settled by a long line of decisions in this court that an action for damages for tort will not lie against a municipal corporation, unless the corporation is made liable by statute, because such corporation is merely an agent of the state for governmental purposes.' Parish v. Town of Yorkville, 96 S.C. 24, 79 S.E. 635, 636, L.R.A.1915A, 282. We have no statute authorizing a common law action for tort against a municipality in a case of this kind. However, Article I, Section 17 of the Constitution, which provides that private property shall not be taken 'for public use without just compensation being first made therefor', is self-executing, and may, without enabling legislation, be invoked by an individual whose property has been taken for public use.
Plaintiff claims that the City of Greer without first making a lawful condemnation and against her consent, tortiously entered upon her property and laid sewer lines across it, causing great damage. But, as pointed out in Smith v. City of Greenville, 229 S.C. 252, 92 S.E.2d 639, 644, 'whether the landowner's compensation be ascertained in a condemnation proceeding instituted by the municipality, or in an action brought against the municipality because of the taking, it is still referable to Article I, § 17, and the appropriate statute prescribing the measure of 'just compensation' thereunder.' Indeed, it is properly conceded in the excellent brief filed by plaintiff that the first cause...
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