Derby Heights, Inc. v. Gantt Water and Sewer Dist., 17700

• Citation: 237 S.C. 144,116 S.E.2d 13
• Decision Date: 18 August 1960
• Docket Number: No. 17700,17700
• Parties: DERBY HEIGHTS, INC., Respondent, v. GANTT WATER AND SEWER DISTRICT, Appellant, and Eight other cases against the same appellant.
• Court: United States State Supreme Court of South Carolina

Page 13

116 S.E.2d 13

237 S.C. 144

DERBY HEIGHTS, INC., Respondent, v. GANTT WATER AND SEWER DISTRICT, Appellant, and

Eight other cases against the same appellant.

No. 17700.

Supreme Court of South Carolina.

Aug. 18, 1960.

E. P. Riley, E. P. Riley, Jr., R. W. Riley, Greenville, for appellant.

Leatherwood, Walker, Todd & Mann, Greenville, for respondents.

Wyche, Burges & Wyche, Greenville, amicus curiae.

LEGGE, Justice.

In nine actions, tried together, recovery of 'just compensation' was sought against the defendant, Gantt Water & Sewer District, a public corporation, for its alleged taking of water lines that the plaintiffs had installed to serve their respective properties. In seven of them the Master, finding that there had been a taking, recommended judgment for the plaintiffs with interest from August 1, 1958, the date of their demand for compensation. In two, he found that the plaintiffs' lines had not, at the time of the trial, been taken into the defendant's water distribution system; and as to them he recommended dismissal without prejudice. By order of December 9, 1959, the Honorable T. B. Greneker, Presiding Judge, rejected the Master's recommendation as to allowance of interest, but in all other respects confirmed his report and adopted the recommendations contained therein. From that order the defendant has appealed.

There is no issue here as to the amounts awarded in these cases. Actually, the appeal involves but two questions:

1. Had the respective plaintiffs dedicated their water lines to the public?

2. Was there a taking by the defendant?

By the Act of April 21, 1954 (48 Stat. at L. 2215), there was created a public corporation known as Gantt Water & Sewer District. The area of the district, as described in the Act, comprised a portion of Greenville County lying to the west of the City of Greenville and to the south of the Parker Water and Sewer Sub-District. The Act committed to the district 'the functions of constructing, operating, maintaining, improving and extending a Water Distribution System, a sewer system, a system for the collection and disposition of garbage, and a system for fire protection' within its area; established a Commission to operate, manage and govern it; and prescribed its powers, which included that of eminent domain.

With the exception of Suela Hewins, all of the respondents owned and developed residential subdivisions, served by water lines constructed at their own expense under the streets of their respective subdivisions, which streets they had laid out and conveyed to Greenville County. Water for these lines was obtained from the water system of the City of Greenville. Suela Hewins in 1955 installed at her own expense a private water line from the city's system to her residence in a subdivision known as Terry Court.

The area of Gantt Water & Sewer District included all of the properties before referred to. When Gantt began operation in 1955 it issued bonds and out of their proceeds it constructed certain water mains but it proceeded to use respondents' lines for the servicing of their subdivisions; it required that all properties within the district use its water supply, which it obtained from the city's water system; and, pursuant to a contract between it and Greenville City Water Works, a surcharge of 33 1/3% was added to all water bills rendered to customers in the district, this surcharge being collected by the City Water Works for the account of Gantt. A tap fee was required for each consumer unit served, in the amount of $60, of which $18 went to Gantt and $42 ($35 for installation of the meter and $7 for the cost of making the tap) went to the City Water Works.

The testimony negates the idea that respondents either gave the water lines in question to Gantt or consented that it should, without cost, take them over. Appellant, so conceding, contends nevertheless that respondents had no property in them because: (1) by having laid them in streets that had been conveyed to Greenville County, respondents actually or by implication had dedicated them to public use; and (2) since the cost of them had been taken into consideration in fixing the prices of lots in their subdivisions, respondents had already been compensated for such cost by the purchasers of the lots.

Dedication is the intentional appropriation of land, or of an easement therein, for some proper public purpose. 16 Am.Jur., Dedication, Section 2; 26 C.J.S. Dedication § 1. It is not a unilateral transaction; for its completion there must be acceptance by the public, of the property, for the particular purpose. In the absence of an express gift, one who asserts a dedication must show conduct on the part of the landowner clearly, convincingly and unequivocally indicating his intention to create a right in the public to use the land, adversely to him, for such purpose. Town of Estill v. Clarke, 179 S.C. 359, 184 S.E. 89; Shia v. Pendergrass, 222 S.C. 342, 72 S.E.2d 699.

Construction of the water lines, like the laying out of streets, was an essential part of the development of the subdivisions. Conveyance of the streets to the county did not necessarily preclude respondents from laying water pipes below their surface, even though the deeds may have contained no express reservation of their right to do so. It is not suggested that Greenville County either was ignorant of or objected to such construction. Whether the deeds conveyed the street areas in fee or an easement in them for street purposes is not disclosed by the record before us; and in our view that matter is immaterial. If respondents had no right, without the county's consent, to construct their lines under those areas, the county, objecting, may have required their removal. Cf. Cloverdale Homes v. Town of Cloverdale, 182 Ala. 419, 62 So. 712, 47 L.R.A., N.S., 607. But that is beside the point; the issue here is whether their construction under the streets effected, as a matter of law, a dedication of the water lines to the public. There was testimony for the respondents that no gift of these lines was ever made or intended. And that they were recognized by Gantt as privately owned is evidenced by its chairman's letter of September 30, 1955 to Messrs. Huguenin & Douglas, the first paragraph of which reads as follows: 'It is our understanding that you are the owner of Belle Meade-Derby Heights, a subdivision located within the area of our water and sewer district. We also understand that you own the private water line now serving your development.' The evidence amply warranted the finding, by the two lower tribunals, that there had been no dedication of the water lines in question.

We find no merit in appellant's contention that since respondents, when they fixed the prices of lots in their subdivisions, had taken into consideration the cost of the water lines, they were compensated for such cost by the purchasers and therefore had no property in the water lines for which they could demand that appellant compensate them. The testimony for respondents, though not very specific on this point, warrants the conclusion that they expected, from the sale of lots, to recoup the cost of installing their water systems as well as the other expenses incident to the development of their subdivisions. But there is nothing in that or any other testimony in the record here to require the conclusion that they did not own these lines when appellant took them over as part of its water system. Respondents' ownership of course entailed responsibility toward the owners of lots in their subdivisions, for they were under duty to them to render an adequate supply of water available in the subdivisions; and since that water was delivered through respondents' lines, theirs was the duty to maintain them. But the water pipes were the property of the respondents. If they had taken them up and put down other instead, the lot owners could not have complained so long as an adequate supply of water was rendered available to them. If they had taken them up and not replaced them, respondents would have breached an obligation to their lot owners, but none to appellant. The evidence is convincing that regardless of the fact that the prices of their lots were higher than they would have been if water had not been made available to the purchasers, respondents were the owners of their water lines when they were taken over by the appellant. The amount of 'just compensation' to which such ownership entitled them upon a taking for public use is, as we have hereinbefore stated, not in issue.

Appellant argues that in taking over the operation of respondents' lines it did not exercise its right of eminent domain; and that all that it has done has been to continue the use of these lines for the purpose for which they were constructed. This argument is without merit. The constitutional provision (art. I, Sec. 17, Const. of S. C.) is self-executing, Chick Springs Water Co. v. State Highway Department, 159 S.C. 481, 157 S.E. 842; Godwin v. Carrigan, 227 S.C. 216, 87 S.E.2d 471; Smith v. City of Greenville, 229 S.C. 252, 92 S.E.2d 639; its protection extends to every essential element of ownership, Gasque v. Town of Conway, 194 S.C. 15, 8 S.E.2d 871; Early v. South Carolina Public Service Authority, 228 S.C. 392, 90 S.E.2d 472. The record fully supports the finding by the circuit judge cthat the water lines installed by the plaintiffs at their own expense have been incorporated in and made a part of the water distribution system of the defendant and that, had such not been done, it would have been necessary for the defendant to construct these lines at its own expense.'

Appellant's contention appears to be that since water lines were essential to the salability of the properties, their installation by respondent was a contribution to the subdivisions and thence to the public generally and to appellant in particular, and that respondents had therefore given up all...