Lay v. State Rural Electrification Auth.
| Decision Date | 09 November 1936 |
| Docket Number | No. 14374.,14374. |
| Citation | 188 S.E. 368 |
| Parties | LAY. v. STATE RURAL ELECTRIFICATION AUTHORITY. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Richland County; G. Duncan Bellinger, Judge.
Suit by D. J. Lay to enjoin "the State Rural Electrification Authority from using the highway right of way for its lines. From a judgment in favor of the defendant, the plaintiff appeals.
Affirmed.
Decree of Judge Bellinger follows:
This suit was commenced by the plaintiff on the 1st of July, 1936, by his summons and complaint seeking to enjoin the defendant from using the highway right of way for its lines. The plaintiff had given an easement to the state for highway purposes, and the complaint alleges that the erection of the defendant's line upon and along the highway constitutes an additional servitude and is the taking of the plaintiff's private property for public use without compensation and contrary to the Constitution.
The defendant, by its answer, sets up its right and power to use the highway for its lines under the State Rural Electrification Authority Act approved the 14th of March. 1935, and found in the Acts of the General Assembly of South Carolina for 1935, 39 St. at Large, at page 71.
The plaintiff demurred to the answer on the ground that same does not set up facts sufficient to constitute a defense in that the act referred to is unconstitutional because the section giving the defendant the right to use any state or public highway for its lines violates article 1, section 17 of the Constitution of South Carolina and the Fifth Amendment of the Constitution of the United States in that it is a taking of private property for public use without just compensation being first made therefor.
That the answer admits all the facts set forth in the complaint, and the defendant's demurrer to the answer raises a question of law, the decision of which is determinative of the plaintiff's rights. The case, therefore, resolves itself solely into a question of law.
The plaintiff's demurrer did not specify the article of the Constitution which it wasclaimed that the act violated, but appropriate motion for amendment was made and allowed setting up the section as above set out.
The question therefore which comes before me in the consideration of this demurrer is whether or not the placing of the defendant's wires, poles, and transmission lines along and upon a public highway, in this instance State Highway No. 18, imposes an additional servitude upon the lands of the plaintiff which are adjacent and contiguous to the highway or an additional servitude on the land actually granted by the plaintiff to the state for highway purposes. If the defendant's lines do impose an additional servitude, then it would be the taking of private property for public use without just compensation and the act of the General Assembly in so far as same undertook to give the State Rural Electrification Authority power to place its lines on the public highway would be unconstitutional.
Does the placing of the electric line on the highway constitute an additional servitude?
It is, of course, apparent that such use is different in form from the use made of the highway right of way at the time of the original grant, which was doubtless made in what is sometimes referred to as the horse and buggy days. The law, however, must take account of changing conditions and inquire as to whether or not it is a change in conditions brought about by modern invention or whether it is such a departure from the original grant as to constitute an additional servitude.
There appears to be no case in South Carolina deciding the question. In the case of Benton v. Yarborough, 128 S.C. 481, 123 S.E. 204, 205, 34 A.L.R. 402, our Supreme Court held that an individual had no right by permission of county authorities to construct a private telephone line along a public highway over the protest of the owner of the fee, but the question of whether or not the Legislature would have the power to declare that such installation would not be an additional servitude in the case of public corporations was specifically reserved, and is the question to be decided in this case.
It is conceded in the pleadings and established by the Rural Electrification Act that the purpose of the act is a public and not a private purpose.
There appears to be considerable conflict in the decisions on the point as to whether or not a power line...
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Hall v. Lea County Elec. Co-op.
...Co. v. Crawford,229 Ky. 254, 16 S.W.2d 1041 (1929); Cater v. Northwestern Telephone Exchange Co., supra; Lay v. State Rural Electrification Authority, 182 S.C. 32, 188 S.E. 368 (1936); Kirby v. Citizens Telephone Co., 17 S.D. 362, 97 N.W. 3 (1903); State ex rel. York v. Board of Com'rs., 28......
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Bookhart v. Central Elec. Power Co-op.
...and when the policy of State administration of rural electrification was in force there arose the case of Lay v. State Rural Electrification Authoirty, 182 S.C. 32, 188 S.E. 368, 369, which involved contest of the statutory right of the State Authority to construct transmission lines on and......
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Caldwell v. McMillan
...the novelty of a purpose does not render it the less a public purpose.' 73 C.J.S., Public, p. 277-278. See Lay v. State Rural Electrification Authority, 182 S.C. 32, 188 S.E. 368. The Legislature, approximately two years after the passage of the first Act, passed the 1952 Amendment which st......
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Gressette v. Sc Elec. and Gas Co.
...but found the written easements were not determinative in light of this Court's precedent in Lay v. State Rural Electrification Auth., 182 S.C. 32, 188 S.E. 368 (1936), Leppard v. Central Carolina Tel. Co., 205 S.C. 1, 30 S.E.2d 755 (1944), and Richland County v. Palmetto Cablevision, 261 S......