Lail v. South Carolina State Highway Dept., 18211
| Decision Date | 12 May 1964 |
| Docket Number | No. 18211,18211 |
| Citation | 136 S.E.2d 306,244 S.C. 237 |
| Parties | Menta Lee LAIL, Respondent v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant. |
| Court | South Carolina Supreme Court |
Daniel R. McLeod, Atty. Gen., Benjamin B. Dunlap, Asst. Atty. Gen., Suggs & McCutcheon, Conway, for appellant.
H. T. Abbott, Conway, for respondent.
In this action plaintiff-respondent seeks to recover from defendant-appellant for surface water damages to her house and lot located at Surfside Beach in Horry County, South Carolina, which damages were alleged to have been caused by the acts of the defendant in the course of certain construction work in the improvement of U. S. Highway No. 17, in the years 1960 and 1961, it being contended that the actions of the defendant constituted a taking without just compensation therefor, in violation of Section 17, Article I of the Constitution of South Carolina. From a verdict of the jury favorable to the plaintiff in the sum of $3,500, and an order of the trial judge denying motions for a new trial and for judgment non obstante verdicto, the defendant appeals.
The plaintiff acquired Lot 3, Block 10, Ocean Terrace Section of Surfside and built a home thereon about May 1958. U. S. Highway No. 17, in that vicinity, runs in a general northeasterly and south-westerly direction and Surfside Beach lies to the southeast of the highway between the highway and the Atlantic Ocean. To the northwest of the highway there is a bay or swamp area and the natural drainage from at least a portion of this bay or swamp area was, and still is, across the right of way of Highway 17, in the direction of the Atlantic Ocean. Long before this controversy arose, there was a thirty-six inch concrete pipe carrying the natural drainage from the bay or swamp area under Highway 17 to the southeast side thereof, from which point, according to a topographical map in evidence, the natural drainage followed an old branch or run in a meandering southeasterly direction toward the ocean. Much of the bay of swamp area in question drains away from Highway 17 rather than under it. A canal was dug in the year 1953, commencing at a point in the swamp or bay area about eight hundred feet northwest of the highway, which thereafter carried the water from that area off in a northerly direction away from the highway. Said canal was not constructed by defendant.
The section of Surfside in which plaintiff's property is located was laid out and subdivided in the year 1954. A contour survey of the area and the aforesaid map were made at that time, and in order to take care of the drainage, a ditch was dug, by the developer, from a point connecting with the aforesaid culvert, or concrete pipe, on the southeast side of the highway and running thence through the subdivision in the direction of the ocean. This ditch averaged three and a half to four feet in depth and was approximately three feet wide at the bottom. It was so constructed as to follow in general the run of the natural branch, but actually went along lot lines and streets in the subdivision. This main drainage ditch intersects with a rear corner of plaintiff's lot; runs across the rear end of the lot and then down the side of the lot to the street line, under which street there is a pipe. The map and the testimony of the surveyor who made it show that the run of the old branch went diagonally across plaintiff's lot from rear to front. By the scale of the map, in appears that the said ditch from the highway to the corner where it first touches plaintiff's property, runs a distance of approximately 2300 feet, or slightly less than one half mile. Between the property of the plaintiff and the highway, three other lateral drainage ditches, constructed by the subdivider, emptied into the main ditch which runs along the line of plaintiff's property. The map indicates that the ditch, which passes plaintiff's property, is the natural drainage course for approximately 2,750,000 square feet of Surfside lying between plaintiff's property and the highway.
During 1960 and 1961, the defendant dual-laned Highway 17 in that area, in the course of which the existing highway was widened by four feet on the northwest side thereof, this widened roadway now serving as north bound lanes. To the northwest thereof was constructed two southbound lanes, the new portion of the paved highway being, inferentially, twenty-four feet in width. To the northwest of the southbound roadway there was constructed a frontage road, the width of the pavement thereon being twenty feet. In the course of this construction work no change was made in the grade of the old portion of the highway, nor was any change made in the size of the culvert. The culvert, however, was fifty feet in length prior to the new construction and an additional one hundred fourteen feet of culvert, of the same size pipe, was extended to the northwest to accommodate the drainage under the new southbound highway and the frontage road to the northwest thereof. The grade of the newly constructed southbound lanes and the frontage road were both constructed in accordance with the existing grade of the old highway, except that the frontage road was slightly lower than the main roadways.
Surfside lies between Murrells Inlet and Myrtle Beach and the grade of the old, as well as the new, highway construction was such that the grade break in the direction of Myrtle Beach, from which water drained in the direction of the culvert, was 1,466 feet away and on the Murrells Inlet side the grade break was seven hundred thirty-four feet from the culvert. Reference to the topographical map in evidence shows that the aforesaid grade breaks corresponded with the natural grade breaks of the terrain.
The width of the old right of way prior to 1960 was seventy-five feet, and for the purpose of the new construction defendant acquired an additional right of way, to the northwest of the old right of way, one hundred twelve feet in width. There being a distance of 2,200 feet between the grade breaks, it follows that the old right of way contained 165,000 square feet and the new right of way contained approximately 246,400 square feet, within the watershed naturally drained by the run which formerly ran across the plaintiff's lot and now drained by the ditch by her property.
While there is no evidence in the record as to the precise portion of the bay area to the northwest of Highway 17 naturally drained by the culvert under the highway and the ditch going by plaintiff's property, one of her witnesses approximated such area as being one half square mile, he, however, not professing any exact or precise information thereabout. If we assume that the grade breaks in the area immediately adjacent to the highway to the northwest are approximately the same as the rest of the terrain, and that the grade break to the northwest of the highway back in the swamp or bay is in the vicinity of the head of the drainage canal which runs away from the highway, such would mean that approximately 1,760,000 square feet of the bay area naturally drains, and since 1953 has drained, underneath the highway and in the direction of the Atlantic Ocean by plaintiff's property.
A recapitulation of the foregoing indicates that the total area naturally draining into the ditch along plaintiff's property line is approximately as follows:
Surfside 2,750,000 square feet
Bay or swamp area 1,760,000 square feet
Old right of way 165,000 square feet
New right of way 246.400 square feet
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Total 4,921,400 square feet
In view of the undisputed evidence with respect to the location of the canal in the swamp area, we think the estimate of plaintiff's witness with respect to approximately one half square mile of the swamp area draining toward and under the highway is excessive, inaccurate and unreasonable, but, if we assume it to be correct, such would not be helpful to plaintiff as under his estimate the total area which naturally drained toward plaintiff's property would be vastly greater than the area arrived at in the foregoing recapitulation.
Between 1954 and July 1960 the section of Surfside in which plaintiff's property is located was developed with the building of many houses therein, the exact number not appearing in the record. The building of houses, the construction of streets, and the lateral drainage ditches by the subdivider (hereinabove referred to) naturally increased the rate of flow-off in probably one half or more of the drainage area served by the main ditch in question.
The grading in connection with the new highway construction was commenced in March 1960. The grading and the extension of the culvert pipe was completed in April 1960. In...
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