Ex parte Savannah River Elec. Co.

• Decision Date: 14 March 1933
• Docket Number: 13601.
• Parties: Ex parte SAVANNAH RIVER ELECTRIC CO. In re CONDEMNATION OF LANDS OF TWIN CITY POWER CO. et al.
• Court: South Carolina Supreme Court

168 S.E. 554

169 S.C. 198

Ex parte SAVANNAH RIVER ELECTRIC CO. In re CONDEMNATION OF LANDS OF TWIN CITY POWER CO. et al.

No. 13601.

Supreme Court of South Carolina

March 14, 1933

Appeal from Common Pleas Circuit Court of McCormick County; S.W. G Shipp, Judge.

Condemnation proceeding instituted by the Savannah River Electric Company for the purpose of condemning the lands of the Twin City Power Company and another. From an order refusing a motion made after the condemnor had given notice of abandonment of condemnation proceeding, to order a reference to ascertain amount of expenses and fees incurred by the Twin City Power Company and another because of institution of the proceeding they appeal.

Affirmed.

T. B. Greneker, of Edgefield, and Robinson & Robinson, of Columbia, for appellants.

Grier, Park, McDonald & Todd, of Greenwood, Hull, Barrett & Willingham, of Augusta, Ga., and J. W. Thurmond, of Edgefield, for respondent.

BONHAM Justice.

Savannah River Electric Company and Twin City Power Company are South Carolina corporations, each having for the object of its creation the development of water power on Savannah river, in McCormick county, for the purpose of generating electrical current for general public use. Daniel J. Halpin is trustee, holding certain bonds issued by Twin City Power Company. For the sake of brevity let us designate the respondent as the electric company and the appellant corporation as the power company.

March 30, 1929 the electric company began proceedings to condemn certain lands of the power company. April 26, 1929, the power company and Daniel J. Halpin, as trustee, served on the electric company notice of their refusal to consent to the taking of their lands. About the same date the power company began an action in the court of common pleas for McCormick county against the electric company for the purpose of enjoining them from proceeding with the condemnation proceedings. The matter came before Judge W. H. Townsend, in circuit court, on return to the rule to show cause. He ordered that an injunction be granted provided Daniel J. Halpin, as trustee, be made a party to the proceedings within thirty days, and that in case he was not made such party the action be dismissed.

Both parties appealed from this order. The injunction was dismissed by the opinion of this court. 163 S.C. 438, 161 S.E. 750. A petition by plaintiff, the power company, for a writ of certiorari was denied by the Supreme Court of the United States. 284 U.S. 574, 52 S.Ct. 17, 76 L.Ed. 499.

March 8, 1932, the electric company gave notice to the power company and Halpin, as trustee, that they had abandoned the condemnation proceedings. July 31, 1932, the power company gave notice of a motion that it be referred to a master or referee to ascertain the expenses and fees to be taxed against the electric company by the power company, and Daniel J. Halpin, as trustee, under the provisions of section 7298, Code 1932. The motion was heard by Judge S.W. G. Shipp, who held in an order dated November 5, 1932, that the motion for the reference be refused. This appeal is from that order.

The exceptions present the single question whether the power company and Daniel J. Halpin, trustee, were entitled to expenses and fees which it is alleged they had incurred because of the institution of the condemnation proceedings; and whether it was error to refuse the motion to order a reference to ascertain the amount of such expenses and fees.

The pertinent provisions of section 7298 of the Code 1932, under which appellants claim, are as follows: "Every municipality, or other corporation, upon which the power of eminent domain has been or may hereafter be conferred, shall be required, whenever it institutes condemnation proceedings against any property, to either take the property and pay therefor the amount of the award in such proceedings as finally established, or to pay to the owner or owners of the property sought to be condemned all expenses incurred by them in connection with such proceedings, including a reasonable attorney's fee, which expenses and fee shall be ascertained by a reference of the question of the amount of such expenses and fee to the master *** and to a referee appointed by the court *** on motion in the proceedings at any time after the expiration of thirty (30) days after the award has been finally rendered and remains unpaid."

Judge Shipp, in the order appealed from, said: "Prior to the passage of the act which now appears as section 7298, the common-law rule was of force, to the effect that condemnation proceedings may be abandoned at any time before the landowner's right to compensation is vested, and under such circumstances the landowner was not, as a general rule entitled to recover any damages. 20 C.J. 1086 (Haig v. Wateree Power Company, 119 S.C. 319, 330, 112 S.E. 55). The right to have expenses and fees taxed, therefore, depends upon the construction of the act of 1924, now section 7298. My construction of this section is that the right to have expenses and fees taxed does not arise until there has been an award. When an award has been made the party who instituted the condemnation proceedings has either to take property and pay the award, or must pay to the owner, all expenses and fees incurred by him. That the award must precede the right to an order of reference appears from this language in the section under consideration: 'Which reference shall be ordered on motion in the proceedings at any time after the expiration of thirty days after the award has been...