Hoffman v. Greenville County, 18031

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: MOSS; TAYLOR
• Citation: 129 S.E.2d 757,242 S.C. 34
• Parties: Willard T. HOFFMAN and Florine Hoffman, Respondents, v. COUNTY OF GREENVILLE, South Carolina, Appellant.
• Docket Number: No. 18031,18031
• Decision Date: 14 February 1963

Page 757

129 S.E.2d 757 242 S.C. 34 Willard T. HOFFMAN and Florine Hoffman, Respondents,
v.
COUNTY OF GREENVILLE, South Carolina, Appellant. No. 18031. Supreme Court of South Carolina. Feb. 14, 1963.

Page 758

[242 S.C. 35] Riley & Riley, Greenville, for appellant.

Traxler & Turner, Greenville, for respondents.

[242 S.C. 36] MOSS, Justice.

Willard T. Hoffman and Florine Hoffman, the respondents herein, are the owners of a lot of land located on the south side of McMakin Drive, near the City of Greenville, upon which is located their residence. They acquired title to said lot on June 30, 1959. By their complaint, the respondents allege that after they purchased said lot, the County of Greenville, the appellant herein, entered upon the said property and cut a ditch approximately two feet wide and two feet deep across the rear and center portion of said lot. It is further alleged that by reason of the cutting of said ditch, the appellant has changed the normal course of drainage from nearby county roads and adjoining areas and the increased volume of surface water is channeled through said ditch, with increased velocity, and from said ditch it overflows and spreads out over their property and under their house. It is

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further alleged that by the cutting of the ditch across their property and by the collecting of surface water from the adjacent area and dumping it in an increased volume upon their property, they have been deprived of the beneficial use and the full enjoyment of their said property. It is further alleged that the aforesaid acts of the appellant, without permission of the respondents, constituted a taking of their property for public use entitling them to just compensation under the provisions of Article I, Section 17, of the 1895 Constitution of this State.

The appellant, by its answer, interposed a general denial and alleged that there was no taking of the respondents' property for a public purpose. It was further alleged that if [242 S.C. 37] the respondents' property was damaged, it was the result of a natural flow of water brought about by conditions that were present when they purchased the property in question. It was further alleged that the flooding of the said property was the result of heavy rains and such constituted an act of God.

This cause was tried before the Honorable James H. Price, Jr., Judge of the Greenville County Court, and a jury; and, appellant's motions for nonsuit and directed verdict having been overruled, the jury returned a verdict in favor of the respondents. Thereafter, appellant's motion for judgment non obstante veredicto, or alternatively, for a new trial was overruled, and this appeal followed.

The first question for determination is whether there was any evidence of a taking by the appellant of the property of the respondents for a public use in violation of Article I, Section 17, of the 1895 Constitution of this State.

In the construction of Article I, Section 17, of the Constitution, we do not recognize a distinction between 'taking' and 'damaging'. A deprivation of the ordinary beneficial use and enjoyment of one's property is equivalent to the taking of it, and is as much a 'taking' as though the property was actually appropriated. The constitutional prohibition against taking private property for public use without just compensation must have been intended to protect all the essential elements of ownership which makes property valuable, including the right of user and enjoyment. Accordingly, it has been held that where a county collects surface water into an artificial channel and casts the same in concentrated form upon adjacent lands, resulting in a deprivation of the ordinary beneficial use and enjoyment of such property, such would amount to the taking of the property of the owners pro tanto, for which taking just compensation must be paid as required by the aforesaid Article of the Constitution. Faust v. Richland County, 117 S.C. 251, 109 S.E. 151, and Owens v. South Carolina State Hwy. Dept., 239 S.C. 44, 121...