Georgetown Cnty. v. Davis & Floyd, Inc.

• Decision Date: 13 February 2019
• Docket Number: Appellate Case No. 2017-000234,Opinion No. 5627
• Citation: 824 S.E.2d 471
• Court: South Carolina Court of Appeals
• Parties: GEORGETOWN COUNTY, Appellant, v. DAVIS & FLOYD, INC., Republic Contracting Corporation, S&ME, Inc., The South Carolina Department of Transportation and The City of Georgetown, Defendants, Of whom The South Carolina Department of Transportation and The City of Georgetown are the Respondents.

824 S.E.2d 471

GEORGETOWN COUNTY, Appellant,

v.DAVIS & FLOYD, INC., Republic Contracting Corporation, S&ME, Inc., The South Carolina Department of Transportation and The City of Georgetown, Defendants,Of whom The South Carolina Department of Transportation and The City of Georgetown are the Respondents.

Appellate Case No. 2017-000234

Opinion No. 5627

Court of Appeals of South Carolina.

Heard December 5, 2018

Filed February 13, 2019

Rehearing Denied March 29, 2019

Louis H. Lang and George Albert Taylor, both of Callison Tighe & Robinson, LLC, of Columbia, for Appellant.

David Leon Morrison, of Morrison Law Firm, LLC, of Columbia, for Respondent City of Georgetown, and Lisa A. Reynolds, of Anderson Reynolds & Stephens, LLC, of Charleston, for Respondent South Carolina Department of Transportation.

Robert E. Lyon, Jr. and John K. DeLoache, both of the South Carolina Association of Counties, of Columbia, for the Amicus Curiae South Carolina Association of Counties.

HILL, J.:

This appeal requires us to determine whether a county may sue another political subdivision and the South Carolina Department of Transportation (SCDOT) for inverse condemnation. Because we hold the property Georgetown County (the County) alleges was inversely condemned is not "private property" within the meaning of the Takings Clause of S.C. Const. art I, § 13, and further hold the County may not sue SCDOT, a state agency, on such a claim, we affirm dismissal of the County's claim.

I.

The County alleges the City of Georgetown (the City) and SCDOT, while engaged in a joint water drainage project, altered the water table, causing sinkholes to form and damaging public buildings and real property owned by the County. The County brought numerous causes of action against the City, SCDOT, and their private contractors, including one for inverse condemnation against the City and SCDOT. The City and SCDOT moved to dismiss the County's inverse condemnation claim pursuant to Rule 12(b)(6) of the South Carolina Rules of Civil Procedure (SCRCP). The circuit court granted the motion to dismiss, which the County now appeals.

II.

In deciding a Rule 12(b)(6) motion, the trial court looks only at the complaint and, taking the facts alleged as true and construing all reasonable inferences and doubts in plaintiff's favor, asks whether the complaint would entitle the plaintiff to relief under any theory. Doe v. Marion , 373 S.C. 390, 395, 645 S.E.2d 245, 247–48 (2007). We use the same standard to review the dismissal order on appeal. Id .

A. Inverse Condemnation and the South Carolina Takings Clause

An inverse condemnation claim derives from the Takings Clause of our state constitution, which provides: "Except as otherwise provided in this Constitution, private property shall not be taken for private use without the consent of the owner, nor for public use without just compensation being first made for the property." S.C. Const. art. I, § 13 (A). The County urges us to interpret "private property" as used in the Takings Clause to mean any property not owned by the condemnor, here the State. The County suggests this interpretation furthers the intent motivating the Takings Clause, i.e. to justly compensate a property owner for the taking. According to the County, it is damaged by the State's condemning of their property no less than a private citizen would be and is no less entitled to the just compensation our constitution guarantees.

We disagree with the County's interpretation that the private property referred to in the Takings Clause means any property not owned by the condemnor. The Takings Clause does not define what it means by private property, so we must turn to the "ordinary and popular meaning" of the term. See Richardson v. Town of Mount Pleasant , 350 S.C. 291, 294, 566 S.E.2d 523, 525 (2002) ; Private , The American Heritage Dictionary of the English Language (1978) ("4. Belonging to a particular person or persons, as opposed to the public or the government: private property ."); Private , Webster's Ninth New Collegiate Dictionary (9th ed. 1988) ("[I]ntended for or restricted to the use of a particular person, group or class ... belonging to or concerning an individual person, company, or interest."). Public is an antonym of private. We therefore hold the term private property as used in the Takings Clause of the South Carolina Constitution applies only to property owned by a private citizen, private corporation, or non-public entity. It does not encompass property owned by the State, its agencies, political subdivisions (including counties and municipal corporations), or other public entities. See Roschen v. Ward , 279 U.S. 337, 339, 49 S.Ct. 336, 73 L.Ed. 722 (1929) ("[T]here is no canon against using common sense in construing laws as saying what they obviously mean.") (Holmes, J.); Gibbons v. Ogden , 22 U.S. (9 Wheat. 1), 188, 6 L.Ed. 23 (1824) ("[T]he enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.").

Our holding was foreshadowed over a century ago in Edgefield County v. Georgia-Carolina Power Co. , 104 S.C. 311, 88 S.E. 801 (1916). At issue in that case was whether Edgefield County could sue a power company for flooding county roads. An Act of the General Assembly had authorized the power company to build a dam across the Savannah River, and the authority included a general power of condemnation. Id . at 322-27, 88 S.E. at 804–06. The circuit court denied the power company's demurrer to the county's complaint. Affirming the circuit court, the supreme court remarked the State could have flooded or even closed the county's road "and Edgefield could not complain about it." Id . at 328, 88 S.E. at 806–07. Likewise, the State, by the Act, could have "expressly" granted the power company the right to flood the roads. Id . The court observed: "[I]f the company should thereby flood the private property of the citizen, then under constitutional protection it would need to make compensation to those persons who suffered a particular injury from the nuisance. But public property, we think, does not fall within the protection of the Constitution. " Id . at 328–29, 88 S.E. at 807 (emphasis added) (citations omitted). The court went on to hold that because the Act did not expressly delegate to the power company the right to flood the particular county road at issue, the county could sue the power company for damages. Id. at 330, 88 S.E. 801

SCDOT and the City claim Edgefield County shores up their position. The County—unsurprisingly—deems the "public property" remark dictum. Whether the statement in Edgefield County rises (or sinks) to the level of dictum is not important to our task today. What is important is our supreme court has once before explained the scope of the State's eminent domain power and its interplay with the Takings Clause in the context of an alleged condemnation of public property. Yaeger v. Murphy , 291 S.C. 485, 490 n.2, 354 S.E.2d 393, 396 n.2 (Ct. App. 1987) ("[T]hose who disregard dictum, either in law or in life, do so at their peril.").

Several other states have held "private property" as used in the state takings clauses of their state constitutions does not include property owned by political subdivisions of a state. See Bd. of Water Works Trs. of City of Des Moines v. SAC Cty. Bd. of Supervisors , 890 N.W.2d 50, 71 (Iowa 2017) ; Metro. St. Louis Sewer Dist. v. City of Bellefontaine Neighbors , 476 S.W.3d 913, 916–17, 923 (Mo. 2016) (en banc) (finding sewer district failed to state a claim for inverse condemnation and rejecting its argument that "this [c]ourt should interpret the words ‘private property’ as used in article I, section 26 [of the Missouri Constitution] to include ‘public property’ that is damaged by other unrelated public entities").

B. Federal Takings Law

The County is right that we have relied on federal common law in interpreting South Carolina's Takings Clause. Hardin v. S.C. Dep't of Transp. , 371 S.C. 598, 604, 641 S.E.2d 437, 441 (2007). The United States Supreme Court has held the federal Takings Clause applies when the federal government takes public land owned by a state or its political subdivisions. See United States v. 50 Acres of Land , 469 U.S. 24, 31, 105 S.Ct. 451, 83 L.Ed.2d 376 (1984) ("[I]t is most reasonable to construe the reference to ‘private property’ in the Takings Clause of the Fifth Amendment as encompassing the property of state and local governments when it is condemned by the United States.").

But we have never looked to federal law for the meaning of private property as used in Article I, § 13. The decision in 50 Acres of Land is no solace to the County because the Supreme Court has recognized the obligation of just compensation does not arise when a sovereign state transfers public property from one governmental use to another.

United States v. Carmack , 329 U.S. 230, 242 n.12, 67 S.Ct. 252, 91 L.Ed. 209 (1946) ; see also Tex. Dep't of Transp. v. City of Sunset Valley , 146 S.W.3d 637, 645 n.2 (Tex. 2004) (citations omitted) ("The City cites several cases from other states that it contends support a municipality's constitutional right to compensation from the state. Those cases, however, are either distinguishable in that they involved statutorily created eminent-domain rights, or inapposite in their reliance on federal authority. The relationship between a city and state, which are not separate sovereigns, is not analogous to that between the federal government and a state.").

C. The Takings Clause and Home Rule

There is another basis for upholding dismissal of the County's inverse condemnation claim against SCDOT. As a state-created agency, SCDOT is an arm of the state. Riley v. S.C. State Highway Dep't , 238 S.C. 19, 24, 118 S.E.2d 809, 810 (1961). Like SCDOT, the County is a creature of the state. Political subdivisions of the state have no...