Godwin v. Carrigan

• Decision Date: 19 May 1955
• Docket Number: No. 17005,17005
• Citation: Godwin v. Carrigan, 227 S.C. 216, 87 S.E.2d 471 (S.C. 1955)
• Parties: C. L. GODWIN, Appellant, v. H. C. CARRIGAN, G. B. Keels, J. S. Joseph, D. G. Elmore, W. B. Davis, Jr., and D. C. Elliott, as Mayor and Councilmen of the Town of Summerton, Respondents.
• Court: South Carolina Supreme Court

Page 471

87 S.E.2d 471

227 S.C. 216

C. L. GODWIN, Appellant, v. H. C. CARRIGAN, G. B. Keels, J. S. Joseph, D. G. Elmore, W B. Davis, Jr., and D. C. Elliott, as Mayor and Councilmen of the Town of Summerton, Respondents.

No. 17005.

Supreme Court of South Carolina.

May 19, 1955.

Nash & Wilson, Sumter, for appellant.

S. E. Rogers, Summerton, for respondents.

BAKER, Chief Justice.

C. L. Godwin, petitioner-appellant, instituted an action in April of 1954 against the Mayor and Councilmen of the Town of Summerton, respondents, to procure a writ of mandamus requiring the Town of Summerton, under Section 59-203, Code of Laws for 1952, to proceed to condemn lands of appellant alleged to have been taken by the Town, and to assess damages alleged to have resulted therefrom.

It is alleged in the petition that appellant is the owner of approximately 350 acres of land near the Town limits, and heretofore he donated to the Town one acre for the purpose of constructing a septic tank and sewerage outlet system with the understanding that the septic tank would not harm or injuriously affect the remainder of his land for the use of same for pasturage of cattle and as a home for himself and family.

The Town constructed upon the one acre of land the tank and sewerage outlet system with the overflow therefrom going into a creek which runs through appellant's land. The appellant contends the sewerage tank was defective and the outflow therefrom unfiltered, and emanating therefrom are obnoxious and vile odors, with the raw sewage flowing down the creek through his property and destroying the purity of the water, which has prevented him from the full enjoyment and use of his property and the making of a profit therefrom. He further alleges the acts of the Town have resulted in the taking (depriving him?) of his property without due process of law and without just compensation for the property so taken and in violation of his constitutional rights, especially Sections 5 and 17 of Article 1 of the Constitution of the State of South Carolina of 1895, and the Fifth Amendment, Article 5, of the Constitution of the United States. Appellant then states that he has demanded of respondents that they proceed with the condemnation of his lands and fix the damages to the remainder of his property, but respondents have failed and refused to do so, and under Section 59-202 of the Code of Laws of 1952 there is imposed upon the Town Council a ministerial duty to proceed with the condemnation, which is a legal right accruing to him and he has no other and sufficient remedy for the protection and enforcement of his legal rights.

A rule to show cause was issued by the presiding Judge of the Third Judicial Circuit, returnable before Honorable J. Frank Eatmon, the resident Judge of the Third Circuit. The respondents in due course of time filed their return to the rule, and to the return the appellant filed a traverse. Various affidavits were submitted by both appellant and respondents.

We now state almost verbatim that portion of Judge Eatmon's order containing a synopsis of the factual background and the allegations of the return and traverse.

During the public works program of the thirties, the Town of Summerton, with the aid of a grant from the Federal Government, constructed a municipal sewer system for the use and benefit of the citizens of said Town. At the time of the installation thereof, a municipality, under the then applicable law, embodied in Section 7297 of the Code of Laws for South Carolina for 1942, which was repealed in 1951, was authorized, for the purpose of establishing a system of sewerage, to acquire 'any land that it may deem necessary thereto, whether the same be situate within or without its corporate limits,' and likewise 'any stream of running water for the purpose of emptying therein to the sewerage from its sewer pipes'.

As a part of said system, the Town installed, on the land acquired from the appellant, two sedimentation tanks, the outflow of sewage from which is discharged into a stream running through lands of the appellant. Due to the insufficiency of the Federal grant, the Town was unable to construct the filtering and drying beds, so that such discharge, though sedimented, is not filtered. There has been no change in the manner or method of disposal since the original construction, although the Town has, over the years, increased in population, resulting in an increase in the use of the sewer system and the amount of overflow therefrom. No request to proceed in condemnation was made, and no action brought until 1954, when this proceeding was instituted by the appellant.

By their return the respondents, inter alia, deny the material allegations of the petition, particularly deny the appellant's right to compensation, and allege the acquisition from the appellant of, and payment for, the rights, out of the exercise of which the present controversy arises, including the right to discharge sewage into said stream. The respondents further allege that after the sewer system and manner of disposal had been in operation for some time 'and the use of said creek therefor and the consequential damages, if any, fully known to the Petitioner, the Petitioner, then complaining of the very acts and things now set forth in the Petition, and being in arrears in the taxes due to the Town of Summerton on other properties located in said Town, proposed to said Town the abatement of said taxes in full compensation for the rights, uses, damages, and taking now complained of; that the Town accepted said proposal and did abate said taxes owed by the Petitioner to said Town'; and, by reason thereof, the Town 'has paid unto the Petitioner full and just compensation for the matters and things alleged in the Petition.'

By traverse the appellant admits that there was some arrangement involving the abatement of taxes and that said taxes were abated, that he accepted the benefits thereof over a period of years until the town property concerned was disposed of, but contends that such abatement was made by the Town as 'some small token of appreciation of the town authorities for the gift of the tract of land for the construction of a septic tank.'

In addition to the foregoing digest of the allegations of the return as contained in Judge Eatmon's order, there are several other defenses pleaded by the respondents. It is further alleged that if the appellant did not consent to the use of and receive compensation in full for the rights and easement incident to the disposal of said sewage, then said rights and easements have been continuously, openly, notoriously and adversely used and exercised by the Town for more than twenty years and the Town has thereby acquired such rights and usages by prescription. Next, if there has been a taking by the Town of appellant's property without just compensation and consequential damage, which is denied, then such taking and damage occurred with the accrual of appellant's cause of action more than ten years prior to this action and is barred by Section 10-148 of the Code of Laws of 1952, and also that appellant's cause of action accrued more than six years prior to the commencement of this action and is barred by Section 10-143 of the Code of Laws for 1952. Another defense is that appellant having failed to pursue his remedy for more than twenty years, during which time the value of real property has increased manyfold, has made it inequitable, if not impossible, to ascertain the value of the property taken and the consequential damage or depreciated value of the remaining property at the time of the taking.

After a full hearing upon the rule to show cause, Judge Eatmon issued his order denying appellant's asserted remedy for a writ of mandamus. The basis of his order is that respondents have denied the right of appellant to compensation with a bona fide factual basis for such denial on the part of respondents. Appellant's exceptions are predicated upon the proposition that the statutory remedy provided by the laws of this State for condemnation is an exclusive remedy and it was therefore incumbent upon respondents to appoint commissioners for the purpose of assessing damages, this appointment constituting a ministerial duty.

The writ of mandamus is employed...