King v. South Carolina State Highway Dept., 18519

• Decision Date: 13 June 1966
• Docket Number: No. 18519,18519
• Citation: 149 S.E.2d 64,248 S.C. 64
• Court: South Carolina Supreme Court
• Parties: Max B. KING, Respondent, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant.

Page 64

149 S.E.2d 64

248 S.C. 64

Max B. KING, Respondent, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant.

No. 18519.

Supreme Court of South Carolina.

June 13, 1966.

Atty. Gen., Daniel R. McLeod, Asst. Atty. Gen., Everett N. Brandon, Columbia, E. Harry Agnew, Anderson, for appellant.

Jack F. McIntosh, of Sherard & McIntosh, Anderson, for respondent.

BUSSEY, Justice.

This action was commenced by the respondent King alleging an unconstitutional taking by the appellant Highway Department of a strip of land on North Main Street in Anderson County, which unconstitutional taking was denied by the Department. The trial of the case resulted in a jury verdict for the respondent in the amount of $15,300, following which the trial judge overruled motions of the Department for judgment non obstante veredicto, a new trial and a new trial nisi, and the Department appeals.

The respondent is the owner of a lot, with a service station thereon, located at the corner of North Main Street and Concord Road. It is undisputed that in early 1963 the Department made certain preliminary surveys in accordance with a contemplated plan to widen North Main Street, it being originally planned to widen such to the extent of forty-five feet from the center. This plan would have required the acquisition of a right of way over a portion of the respondent's property which was concededly beyond the existing right of way line. No notice of condemnation was served, but there were some negotiations as to price.

At some time thereafter, precisely when does not appear, the Department concluded that the proposed project could be accomplished by using a right of way of only thirty-seven and a half feet from the center which would be within a total right of way of seventy-five feet, which it contended it already owned. The evidence reflects that, at some time about April 1963, representatives of the Department notified the respondent of the Department's contention that it owned a seventy-five foot right of way, and ceased any further negotiations with him as to the acquisition of any additional right of way.

The Department's contention that it owned a total right of way of seventy-five feet was based, not on a grant, but on a claim of dedication by virtue of a plat placed on record when the respondent purchased the lot, in 1953, and on the additional claim of user and maintenance over a long period of years. In June 1964, construction was commenced, in the course of which the seventy-five foot right of way, claimed by the Department, was utilized. The respondent's contention is that the claimed seventy-five foot right of way included a strip of land some thirteen feet in width, which he owned, and as to which the Department had acquired no right of way.

On the trial, evidence as to the value of the strip of land varied from three thousand dollars to six thousand dollars, and the verdict of the jury reflects that it, or necessity, included a most substantial sum for severance or proximity damages. The respondent's service station was totally destroyed by fire in the summer of 1963, (possibly August), necessitating the building of a new one, the location thereof being somewhat different from the old one. The respondent, however, made no effort to establish what, if any, severance damages he sustained as a result of the construction commenced in June 1964, which for the purpose of this appeal, was an unconstitutional taking, the jury having determined the ownership of a right of way over the strip of land adversely to the Department.

On the trial of the case the respondent offered the evidence of one Felton as to an appraisal made by him of the respondent's property some time during the early part of 1963, including testimony by him to the effect that the severance damage at that time amounted to twenty thousand dollars. The Department moved to strike said witness's testimony as to severance damage, contending that any taking by the Department did not occur until June 1964; that there was no evidence of any taking by the Department at any prior time, the witness's testimony as to severance damage being predicated solely on and related to buildings and improvements on the property at the time of his appraisal, but not on the property at the time of any taking by the Department. The trial judge refused this motion, basing his refusal on the view that there was evidence of a taking in 1963, prior to the destruction of the improvements by fire.

It is conceded that any damages to which the respondent is entitled for an unconstitutional taking must be fixed as of the time of the taking. The sole issue presented by this appeal is whether there is any evidence showing a 'taking' by the Department prior to the time the improvements were destroyed by fire. If there was no such evidence, then it follows that the testimony of the witness Felton as to...