Moseley v. South Carolina Highway Dept.
| Citation | 115 S.E.2d 172,236 S.C. 499 |
| Decision Date | 14 June 1960 |
| Docket Number | No. 17670,17670 |
| Court | United States State Supreme Court of South Carolina |
| Parties | J. H. MOSELEY, Respondent, v. SOUTH CAROLINA HIGHWAY DEPARTMENT, Appellant. |
Daniel R. McLeod, Atty. Gen., J. C. Coleman, Jr., Asst. Atty. Gen., for appellant.
Boyd, Bruton & Lumpkin, Columbia, Stuckey & Stuckey, Bishopville, for respondent.
The question presented may be briefly stated as follows: Is the State Highway Department exempt from liability for compensation where in the course of constructing or improving a state highway within a municipality, it takes private property for public use? The Court below held that it was not exempt. On this appeal, the Department contends that the sole liability for damages sustained by the landowner rests under the statute upon the municipality.
Plaintiff, the owner of a lot of land in the town of McBee, upon which a hotel is located, brought this action against the State Highway Department to recover damages alleged to have resulted from certain street improvements made in this municipality. The Highway Department and the town of McBee entered into an agreement under which the former agreed to improve and pave certain streets within the town constituting a part of the State Highway System. Plaintiff alleged that in making these improvements, the streets in front of his hotel were elevated, causing surface water, after each heavy rainfall, to be cast upon his property. The plans and specifications for this project were prepared by the Highway Department but approved by the town of McBee. The actual work was done by the Highway Department through a private contractor.
In its answer, the Highway Department denied that plaintiff sustained any damages as a result of said improvements. It further alleged that under the statute and the contract made with the town of McBee, the Town assumed any and all liability arising out of these street improvements and, therefore, an action could only be maintained against the Town.
After issues were joined, the town of McBee was made a party defendant and duly filed an answer in which it denied that the plaintiff had sustained any damage by its acts or those of the Highway Department. Subsequently, the Highway Department moved to dismiss the action as to it upon the ground that it was 'not subject to suit for damages arising out of the construction of a state highway within the limits of any municipality of the State.' From an order denying this motion, this appeal is taken.
It seems to be conceded, and properly so under Chick Springs Water Co. v. State Highway Department, 159 S.C. 481, 157 S.E. 842, and Milhouse v. State Highway Department, 194 S.C. 33, 8 S.E.2d 852, 128 A.L.R. 1186, that the allegations in the complaint are sufficient to charge a taking of private property for public use within the meaning of Article 1, Section 17 of the Constitution. But the Highway Department contends the under Sections 33-173, 174 and 234 of the 1952 Code, the liability for any compensation rests solely upon the town of McBee.
The foregoing code sections were taken from Act No. 329 of the Acts of 1951, 47 St. at L. 457, wherein the General Assembly undertook to recodify the law relating to the State Highway Department. This Act is quite comprehensive. We are only concerned with that portion relating to state highways within the corporate limits of municipalities which will be found in Section 57 of this Act. In subdivisions (a) and (b) of this section the Highway Department is authorized to construct and maintain state highways lying within the corporate limits of municipalities. Subdivision (c) is as follows:
Subdivision (d) permits any person suffering damages by reason of the construction and maintenance of any state highway within a municipality to bring suit against such municipality but limits recovery in the case of property damage to $1,500 and in the case of personal injury or death to $4,000. It is further stated in this subdivision that 'the remedy thus afforded shall be exclusive.'
The terms of subdivision (c) are now embodied in Sections 112, 172, 173, 174 and 175 of Title 33 of the 1952 Code. Subdivision (d) now forms Section 33-234 of this Code.
It seems clear that Section 33-234 refers only to ordinary tort actions and is not applicable to a person seeking compensation under the Constitution for a taking of his property by the State. A similar statute was so construed in Chick Springs Water Co. v. State Highway Department, supra, 159 S.C. 481, 157 S.E. 842. It was also there held that Article I, Section 17 of the Constitution is self-executing and the right to compensation therein given may not be taken away or restricted by the Legislature.
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