Howell v. State Highway Department

• Decision Date: 11 October 1932
• Docket Number: 13488.
• Parties: HOWELL et al. v. STATE HIGHWAY DEPARTMENT.
• Court: South Carolina Supreme Court

166 S.E. 129

167 S.C. 217

HOWELL et al. v. STATE HIGHWAY DEPARTMENT.

No. 13488.

Supreme Court of South Carolina

October 11, 1932

Appeal from Common Pleas Circuit Court of Chester County; William H Grimball, Judge.

Proceeding by the State Highway Department of South Carolina to condemn land belonging to James Franklin Howell and another for road purposes. From a judgment on a verdict awarding respondents more than the amount of damages fixed by the Board of Commissioners, the Highway Department appeals.

Affirmed.

John M Daniel, Atty. Gen., Cordie Page and J. Ivey Humphrey, Asst Attys. Gen., and McDonald, MacAulay & McDonald, of Chester for appellant.

Hemphill & Hemphill, of Chester, for respondents.

BONHAM J.

South Carolina highway commission, after due notice, condemned certain land of the respondents for road purposes, on state route No. 9, in Chester county. The notice of intention to condemn was dated July 10, 1931. A hearing was had July 25, 1931. A notice of the resolution of the board fixing the amount of the award and assessing the damages was served upon respondents July 28, 1931, who, within ten days after such service upon them, gave notice of their intention to appeal to the circuit court from the resolution of the board fixing the award, and that they would ask for a trial de novo. The notice and grounds of appeal were duly served upon the state highway department, and filed with the clerk of the court for Chester county. The case was heard at the November, 1931, term of court for said county, by Judge Grimball and a jury, and a verdict was rendered in favor of respondents in the sum of $1,250, which was considerably more than the sum assessed and allowed by the board of condemnation. Motion for new trial was denied. From the judgment entered on the verdict, appeal is taken. The grounds of error are stated in seven exceptions.

The exercise by the state of its right of eminent domain, as it is vested in the state highway department for the purpose of condemning lands for public road purposes, and the method of its exercise, are provided for by article 1, § 17, of the Constitution, and by the various statutes now embodied in the Civil Code 1932 in section 5813 et sequitur. The machinery provided is in the hands of the state. The Governor appoints a number of citizens, from which number the highway department names a board of commissioners of three or more, who proceed to condemn the land needed. Members of the highway commission may be members of such board. The commissioners give notice to the landowner of their intention to take certain of his property for road purposes, and fix a day for the hearing. For this hearing the landowner may demand a jury and may offer testimony of the value of the property and of the damages done him. Either party may appeal to the circuit court from the award made by the commissioners, and the trial in that court shall be de novo. If the state be the appellant, no further condemnation proceedings shall be had until the appeal is heard. If the landowner be the appellant, the highway department may pay to the clerk of the court the amount of the award fixed by the commissioners and proceed with the roadwork. In the present case, the landowner appealed. The case was heard at the November, 1931, term of the court for Chester county. Upon the publication of the verdict for the plaintiff, a motion for new trial was made by the highway department on the grounds hereinafter referred to, which motion was denied. This appeal by the highway department is predicated upon seven exceptions.

The allegation of error in exception 1 is that the verdict of $1,250 is excessive. The brief of appellant points out that only about a quarter of an acre was taken, and about thirteen trees destroyed. There was evidence that the tract consisted of 1 4/5 acres lying adjacent to the Seaboard Air Line Railway, and facing highway No. 9. There was differing testimony of the value of this land and nearby properties just before and just after the taking of the land. There was evidence that plaintiffs had once sold a quarter of an acre off of the lot at the price of $800 and had bought it back at $1,050. There was evidence that thirteen shade trees had been cut from the land, upon which various estimates of value are placed by witnesses. There was evidence that the bank left in front of plaintiffs' home, their dwelling place, was at least 12 feet deep; the strip taken runs for 462 feet along the whole front of plaintiffs' property. There was evidence that industrial plants, residences, and business places had grown up in the immediate vicinity of this property, enhancing its value. The judge and the jury visited the locus, and, since his honor denied the motion for new trial, he must have agreed with the estimate of value fixed by the verdict.

Exception 2 charges error to the presiding judge for that he used the following language in his charge: "The actual value of the land means the fair market value of the land, upon a fair market, upon fair advertisement, and a fair sale at normal times. It does not mean any value in times of great inflation in currency nor does it mean the value in times of great depression. The actual value of the land means a fair market value, a fair market in normal times."

The particular assignment of error is that by this charge the jury were left to fix the value as of a time they thought to be normal, whereas they should have been instructed that the value must be fixed as of the time of taking.

It is noteworthy that appellant's counsel did not ask that such instruction be given. When the charge was being delivered this occurred:

"The Court: Now the State Highway Department asked me to charge you this, which I will charge you.

"Mr. Hemphill: May it please your Honor, I think you have just about covered my request. Now there is one thing I should like your Honor to get clear: that is what is meant by the actual value of the land? As I understand it, it means the market value.

"The Court: Well I will tell them that--

"Mr. Hemphill: I think your Honor, please, the market value is ordinary times; not when it is depressed; not when it is inflated."

Then followed the charge of which appellant now complains. Appellant did not then ask for a more specific charge as to the time at which the value should be fixed. Nor did counsel then express any dissent from the charge. The exact matter as presented by the exception was not presented to the court until the jury had rendered the verdict and the motion for new trial had been made. In disposing of this motion, Judge Grimball said: "One of the grounds for a new trial is that I erred in my charge to the jury on the measure of damages. If is of course, possible that I was wrong in my charge on that point. I haven't had an opportunity to study the case or authorities cited to me this afternoon on the motion for new trial. However, the record will show *** that when I had finished charging the jury these authorities were not presented to me; and after I had charged on this particular point, I was not asked to correct my charge."

It would seem that the question should have been made on the trial and not after verdict rendered. However, the question is one of importance, and we prefer to consider and determine it.

Appellant relies mainly in support of its contention upon the case of Board of Commissioners of Fairfield County v. Richardson, 122 S.C. 58, 114 S.E. 632, 633. In that case Mr. Justice Cothran for the court said this:

"It is conceded that as soon as the board of county commissioners, by resolution as provided in section 1933, vol. 1, Code of Laws A. D. 1912, fixed the amount of compensation and damages to which the owner was entitled, they went into possession of the condemned property. That determined when the taking occurred, and fixed the point at which damages should be assessed. The value of the owner's property which was destroyed, 'taken,' as of that date is the measure of compensation and damages. The fact that an appeal lies to the circuit court and a trial de novo had upon that issue cannot change the period at which the estimate is to be made. That has already been fixed and cannot be changed by the accidental rise or fall in the market price of the property destroyed.

"In the case of growing unmatured crops destroyed, at any period of their existence, at any stage of development, the criterion is to ascertain: (1) What would reasonably have been produced but for the act of the condemnor; (2) what would it have been worth on the market at the time of such destruction; (3) deduct therefrom the estimated expenses of producing, cultivation, harvesting, and marketing.

"This is the only rule, in the nature of things, that the board of commissioners could have applied, for they could not have speculated upon the future market price of the cotton. It would be illogical, upon an appeal from their decision, to open up the issue upon an entirely different basis of valuation."

It will be observed that the property taken in this instance was a growing crop of cotton.

One can readily understand how the value of cotton, the price of which varies from day to day as dealers and speculators manipulate the market, must be held to be fixed at the time of the taking; but there seems to be no corresponding reason of weight why the value of land should be fixed as of the very day of the entry. The value of land is a more stable thing, not likely to vary to any great extent from day to day.

Appellant does not challenge the charge as to the definition of market value, but only as it fails to fix a definite time. We think that the instruction is not open to serious criticism. It would be manifestly unfair...