Greenwood County v. Watkins
| Decision Date | 10 December 1940 |
| Docket Number | 15182. |
| Citation | 12 S.E.2d 545,196 S.C. 51 |
| Parties | GREENWOOD COUNTY v. WATKINS. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Court, of Newberry County; A. L. Gaston Judge.
Action to quiet title by Greenwood County against Mrs. Bennie M Watkins. From a judgment for plaintiff, defendant appeals.
Order of Judge Gaston follows:
This case came on for trial before me, without a jury, at the February, 1940, term of court. After the taking of testimony and hearing arguments of counsel, I took the matter under advisement.
This is an action to quiet the title to certain lands heretofore acquired by the plaintiff from the defendant, and was commenced by the service of the summons and complaint on September 17, 1939.
The complaint, in substance, alleges, that Greenwood County, in developing a hydroelectric project on the Saluda River, at Buzzard Roost, required a tract of land of 152.2 acres, in Newberry County, particularly described in the complaint which was owned by the defendant, and on December 14, 1934 the county commenced a condemnation proceeding against the defendant to condemn said land. After the service of notice in condemnation, a jury was duly impaneled by the clerk of court to fix the compensation, and from the award of the clerk's jury, both parties appealed, which appeal came on for trial, and was tried de novo, before the presiding judge and a jury at the April, 1938, term of court. The verdict then rendered became final, and was paid to the defendant on December 23, 1938, with interest.
After the rendition of the verdict by the clerk's jury, the county deposited the amount of the award there made, and entered into the possession of the lands involved, and has since been in the possession thereof.
These alleged facts are not in dispute.
The allegations of the complaint, which are denied by the defendant, are to the effect that plaintiff was authorized to acquire all lands necessary or needful, within its discretion, for this project, and among the purposes for which these lands were required and are needed by the plaintiff is to provide a right of way for the electric transmission line of Duke Power Company. Plaintiff alleges that it has the right to convey to Duke Power Company an easement over these lands for the following reasons:
1. That in such condemnation proceeding, it acquired a fee-simple title to the lands;
2. The question that plaintiff did acquire a fee-simple title to the land is now res judicata;
3. The defendant is now estopped to deny that plaintiff acquired a fee-simple title.
4. And even if it should be held that the plaintiff acquired only an easement, the proposed conveyance to Duke Power Company is such a use as is within the purposes for which the lands were acquired, and the county has the right to convey to Duke Power Company an easement thereover.
The defendant contests each of the claims of the plaintiff, as above set forth, and contends that plaintiff acquired only an easement by the condemnation proceeding, and it has no right to convey to Duke Power Company any right of way thereover.
Duke Power Company has refused to accept a conveyance from the plaintiff in view of the claim of the defendant, and requires of the plaintiff, before accepting such right of way, that it have adjudicated its rights and title, and upon the failure of the plaintiff to do, threatens condemnation.
It will thus appear that there are only two issues in this case: (1) Has plaintiff acquired a fee-simple title to the lands involved? (2) If not, is the proposed conveyance of the right of way by plaintiff to Duke Power Company within the purposes for which the lands were condemned? The testimony and arguments of counsel have been directed entirely to those issues.
Taking up the first issue presented, plaintiff contends that, under the authority of the statutory law, under which it condemned the property, plaintiff acquired a fee-simple title. It appears that under Act No. 299 of 1933, 38 Stats. p. 411, the Legislature specifically authorized counties to construct hydroelectric projects, together with other powers. This act did not give the right of condemnation, and was amended in 1934 by Act No. 798, 38 Stats. p. 1392, and by Section 7 thereof, the same rights and privileges to condemn were granted as had been conferred by Act No. 236 of 1933, 38 Stats. p. 299. The last-mentioned act, in Section 7, provides, with respect to the right and power to condemn:
It thus clearly appears that the powers of condemnation conferred upon the plaintiff by Act No. 299 of 1933, as amended, are "all the rights, powers, and privileges of eminent domain granted to municipalities under the laws relating thereto", whereas, the procedure to be followed is that of the general condemnation statute, commonly known as the railroad statute, now embodied in the Code as Sections 8454 to 8467. Thus far, the parties agree.
It should be well to note here that the general condemnation statute limits the title acquired to an easement (Code, Section 8461), and if it had been the intention of the Legislature by the above-mentioned Act of 1933, to limit the title to be acquired thereunder to an easement, then the Legislature could have referred to the general condemnation statute for the power and authority given, as well as procedure. The procedure thereunder is entirely different to that prescribed for municipal corporations (Code, Sections 7311 et seq.). In addition to the difference in procedure, our Supreme Court has clearly decided that the procedure specified under the general condemnation statute is free from constitutional objection, in the method provided for the hearing before the clerk's jury and the right therein given to the condemnor to deposit the amount of the award of the clerk's jury, and take possession of the property, pending any appeal to the Circuit Court. Lexington Water Power Company v. Wingard, 150 S.C. 418, 148 S.E. 366.
So it, therefore, becomes necessary to determine what were "all the rights, powers, and privileges of eminent domain granted to municipalities under the laws relating thereto", in 1933. The general powers of eminent domain, theretofore conferred upon municipalities, are embraced within Act No. 300 of February 20, 1907 (25 Stats. p. 640), which is now embraced within the Code in Sections 7307 to 7317. Sections 1 and 2 of that Act, which are now Sections 7307 and 7308 of the Code, provide:
"Any municipal corporation desiring to become the owner of any land, situate within the corporate limits of such municipal corporation, in this State, for the erection of a public building, for the use of the corporation, or the purpose of procuring a supply of water or establishing a sewerage system or other public works, for the use of the corporation, shall have the right to purchase said land from the owner or owners thereof, and pay for the same in such manner as said municipal corporation may determine." "In case the owner or owners of any land desired by a municipal corporation for the above purposes shall refuse to sell the same, it shall and may be lawful for said municipal corporation to condemn said land in the manner hereinafter provided."
Section 3 of the Act, now Section 7311 of the Code, specified the title that the municipality shall thereby acquire, in a portion of the last sentence, as follows: "And on the payment of the full value of said land, and such special damages aforesaid, ascertained and determined on in the manner herein provided, the fee simple of the said lot or lands shall be vested in such city or town for the use of the public, ***."
So it thus clearly appears by the specific language of the statutory law, that a municipality, under its general powers by condemnation, acquires a fee-simple title to the lands.
The Code, also, contains a special provision with respect to municipalities acquiring streets in Section 7367 et seq. of the Code, and by Section 7368 it is again specifically provided, "*** after judgment in such case the fee simple of said lot or lots, or parts of lots, shall be vested in such city or town, upon the payment", etc.
These are the only two provisions of the Code that have come to my attention that specify the title that municipalities acquire in condemnation proceedings. The defendant contends that under Section 7280 of the Code, it is provided that towns shall have the right "*** to acquire existing waterworks by condemnation in the manner now provided by law for railroad corporations to acquire rights of way ***", and contends that the power there conferred is limited to an easement, and is applicable here. But, in the first place, it will be observed that the clause mentioned applies to waterworks, and not to a hydroelectric project. This clause was not in the original act, but was added by an amendment in 1916 (29 Stats. p. 939). Furthermore, it does not specify the title that a town shall acquire, it applies only to the condemnation of existing waterworks, and I think a reasonable...
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