Collins v. City of Greenville

• Decision Date: 05 November 1958
• Docket Number: No. 17471,17471
• Citation: 105 S.E.2d 704,233 S.C. 506
• Parties: R. C. COLLINS, Respondent, v. The CITY OF GREENVILLE, S. C., a municipal corporation, Appellant.
• Court: South Carolina Supreme Court

Page 704

105 S.E.2d 704

233 S.C. 506

R. C. COLLINS, Respondent, v. The CITY OF GREENVILLE, S. C., a municipal corporation, Appellant.

No. 17471.

Supreme Court of South Carolina.

Nov. 5, 1958.

W. H. Arnold, Greenville, for appellant.

Rainey, Fant, Traxler & Horton, Greenville, for respondent.

MOSS, Justice.

The respondent, R. C. Collins, owns two buildings in the City of Greenville. The Appellant, City of Greenville, owns and operates a sewer system in said City of Greenville.

The complaint alleges that on February 13, 1957, the sewer line of the appellant, in Augusta Street, was stopped up by an accumulation of rags and waste material and that the appellant, in its attempt to remove the rags and waste material causing said obstruction, negligently and carelessly caused the sewage to back up and overflow the commodes in the two buildings owned by the respondent. It is further alleged that as a result of such overflow that the hardwood floors and the carpets thereon were ruined by the sewage. The respondent asks for a judgment against the appellant for such damage.

The appellant demurred to the complaint on the ground that the same did not state facts sufficient to constitute a cause of action, in that it was not liable for any act of negligence unless made so by statute, and that the damage to the respondent did not result from a defect in the street, nor was it liable for any alleged negligence in the repairing of the sewer line.

The demurrer was heard by the Honorable W. B. McGowan, County Judge, who overruled the same on the ground that the facts stated in the complaint allege a cause of action for the taking of the private property of respondent for public use without just compensation. Art. I, Section 17, of the 1895 Constitution of South Carolina.

The case is before this Court upon a proper exception challenging the foregoing ruling. The respondent asserts as a sustaining ground that if this Court should hold that the complaint does not state a cause of action for the taking of private property for public use as prohibited by the Constitution, that the complaint does state a cause of action for a defect in a street, under Section 47-70 of the 1952 Code of Laws of South Carolina.

The questions for consideration by this Court are whether or not the complaint states a cause of action for the taking of private property for public use without compensation as prohibited by the Constitution, Art. I, section 17; and whether the complaint states a cause of action for a defect in a street, under Section 47-70 of the 1952 Code of Laws of South Carolina.

The Constitution of this State, Art. I, Section 17, provides that:

'* * * Private property shall not be taken * * * for public use without just compensation being first made therefor.'

In Webb v. Greenwood County, 229 S.C. 267, 92 S.E.2d 688, 694, this Court said:

'South Carolina, in its construction of Article I, § 17, Constitution of 1895, does not recognize a distinction between 'taking' and 'damaging,' but holds that a deprivation of the ordinary beneficial use and enjoyment of one's property is equivalent to the taking of it, and is as much a 'taking' as though the property were actually appropriated, citing Wilson v. Greenville County, 110 S.C. 321, 96 S.E. 301; White v. Southern Ry. Co., 142 S.C. 284, 140 S.E. 560, 57 A.L.R. 634; Henderson v. City of Greenwood, 172 S.C. 16, 172 S.E. 689; Gasque v. Town of Conway, 194 S.C. 15, 8 S.E.2d 871.'

In the case of Gasque v. Town of Conway, 194 S.C. 15, 8 S.E.2d 871, 873, this Court said:

'The constitutional prohibition against taking private property for public use without just compensation must have been intended to protect all the essential elements of ownership which make property valuable, including, of course, the right of user, and the right of enjoyment. Accordingly, it has been held that the erection and maintenance of a public work or enterprise under lawful authority in such a way as to destroy the beneficial use of adjacent land or property may constitute a taking, although there is no physical invasion of the property itself. This principle is illustrated by such cases as Kneece v. City of Columbia, 128 S.C. 375, 123 S.E. 100, which was an action for damages to property, caused by disagreeable odors resulting from the installation of a municipal incinerator; Derrick v. City of Columbia, 122 S.C. 29, 114 S.E. 857, damages resulting for improperly maintaining a slaughter house; and Faust v. Richland Co., supra [117 S.C. 251, 109 S.E. 151], where an action was sustained for diverting water on to plaintiff's premises.

'What is a 'taking' of property within the constitutional provision is not always clear; but, so far as general rules are permissible of declaration on the subject, it may be said that there is a taking where the act involves the actual interference with, or the disturbance of, property rights, resulting in injuries which are not merely consequential or incidental. 18 Am.Jur., Sec. 132, Page 750.

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'In the case at bar, the town made no entry of any kind upon the plaintiff's lot. Nor did it subject the land to any burden or easement. All that the town did was to refuse to grant appellant a permit to erect a filling station. In our opinion, by this negative act the defendant did not 'take' or appropriate the plaintiff's property for public use in a constitutional sense. To hold otherwise would be an unjustifiable extension of the meaning of the word, and would go far beyond its plain, natural and usual import. It seems evident that where the town has made no entry on appellant's lot, subjected it to no easement, nor placed it under any servitude, it has not taken the lot nor deprived the appellant of it.

'In addition to this, the Constitution requires that just compensation be paid where private property is taken for public use. The term 'public use' is such a flexible term that the courts have avoided a positive definition last it prove an embarrassment in subsequent cases and work a mischief in practical application. There is no arbitrary standard by which to determine whether the purpose to which property is appropriated possesses all elements of public utility. The meaning of the term is flexible, and is not confined to what may constitute a public use at any given time. Riley v. Charleston Union Station Co., 71 S.C. 457, 51 S.E. 485, 110 Am.St.Rep. 579.

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'* * * Ordinarily the constitutional provision under consideration contemplates compensation for a 'taking' or for damage which is permanent or presumably of a permanent nature, and growing out of a positive act or aggressive step. It was never intended to furnish a cause of action for every error of judgment committed or wrongful act perpetrated by a town council.'

In Edens v. City of Columbia, 228 S.C. 563, 91 S.E.2d 280, 282 it was said:

'* * * In still other states the power of eminent domain may be exercised for a public purpose, benefit or the public welfare, as contrasted with the requirement of our constitution that it be for a public use. Redevelopment Agency, etc. v. Hayes, 1954, 122 Cal.App.2d 777, 266 P.2d 105; Schenck v. City of Pittsburgh, 1950, 364 Pa. 31, 70 A.2d 612; State ex rel. Bruestle v. Rich, 1953, 159 Ohio St. 13, 110 N.E.2d 778; Nashville Housing Authority v. City of Nashville, 1951, 192 Tenn. 103, 237 S.W.2d 946; Velishka v. City of Nashua, 1954, 99 N.H. 161, 106 A.2d 571, 44 A.L.R.2d 1406; Gohld Realty Co. v. City of Hartford, 1954, 141 Conn. 135, 104 A.2d 365, 368. From the last cited we quote:

"'In this state it is settled that public use means public usefulness, utility, or advantage, or what is productive of general benefit, so that any appropriating of private property by the state under its right of eminent domain, for purposes of great advantage to the community, is a taking for public use."'

In the case of Edens v. City of Columbia, supra, there is cited the case of Healy Lumber Co. v. Morris, 33 Wash. 490, 74 P. 684, 63 L.R.A. 820, 99 Am.St.Rep. 964, which holds that a public use must be either a use by the public or by some quasi public agency, and not simply a use which may incidentally or indirectly promote the public interest or general prosperity.

In Bookhart v. Central Elec. Power Co-op., 219 S.C. 414, 65 S.E.2d 781, 788, it is said:

'Appellant attacked in argument the authority of Boyd v. Winnsboro Granite Co., 66 S.C. 433, 45 S.E. 10, and with the criticism we are inclined to agree. However, the statement of the rule there was tempered in the subsequent decision of Riley v. Charleston Union Station Co., supra, 71 S.C. 457, 51 S.E. 485, 110 Am.St.Rep. 579, which was a well-considered case, and the apparently generally abandoned theory of 'public benefit' as justifying the exercise of the power of eminent domain was not followed; nor do we need to follow it here, if we were so disposed. Public benefit and public use are not synonymous in the better and more clearly constitutional view. We think that the latter (public use) is necessary for the constitutional exercise of the power of eminent domain.'

In the case of White v. Johnson, 148 S.C. 488, 146 S.E. 411, 412, the following rule was announced 'It is well-established law that necessity, as well as public use, must always exist in order to warrant the taking of lands, through condemnation, by a grantee of the power of eminent domain. The delegation of the right to exercise that power carries with it the implied condition that it shall be exercised only to the extent found necessary.

'As to what is meant, in this connection, by the term 'necessity,' we find the following in 20 C. J., at page 630: 'Necessity * * * does not mean an absolute but only a reasonable necessity, such as would combine the greatest benefit to the public with the least inconvenience and expense to the condemning party and property owner consistent with such benefit. * * *"

We conclude from the foregoing authorities that the...