Owens v. South Carolina State Highway Dept.

• Citation: 239 S.C. 44,121 S.E.2d 240
• Decision Date: 15 August 1961
• Docket Number: No. 17824,17824
• Parties: Park R. OWENS, Respondent, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant.
• Court: United States State Supreme Court of South Carolina

Page 240

121 S.E.2d 240

239 S.C. 44

Park R. OWENS, Respondent, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant.

No. 17824.

Supreme Court of South Carolina.

Aug. 15, 1961.

Daniel R. McLeod, Atty. Gen., Julian L. Johnson, Asst. Atty. Gen., Suggs & McCutcheon, Conway, for appellant.

H. T. Abbott, Conway, for respondent.

MOSS, Justice.

Park R. Owens, the respondent herein, instituted this action seeking to recover from the South Carolina State Highway Department, the appellant herein, for damage to his farm land in Horry County, South Carolina, alleged to have been caused by the negligence of the appellant in the construction and relocation of a part of Highway No. 707.

The respondent is the owner of a tract of farm land located near the City of Myrtle Beach and the Myrtle Beach Army Air Force Base; the said farm being situated on the northeastern side of said Air Force Base and between U. S. Highway No. 501, this being the dual lane highway from Conway to Myrtle Beach, and the old highway from Conway via Socastee to Myrtle Beach, designated as Highway No. 707. A portion of the old Highway No. 707, between Socastee and Myrtle Beach, was located in close proximity to the Air Force Base property owned by the United States Government. Sometime prior to the year 1955, the United States Government decided to reactivate the Air Base at Myrtle Beach and in connection therewith desired to lengthen or extend the existing aircraft runways. This proposed extension of the runways would embrace a portion of old Highway No. 707. The appellant refused to close this portion of the highway, even though request therefor was made by the United States Government. It appears that the City of Myrtle Beach was vitally interested in the reactivation of the Air Base and was willing to assist in any way possible in bringing about this desired result. After the route for the relocation of the said highway was made, with the apparent approval of the appellant, the City of Myrtle Beach obtained, in its name, rights of way seventy-five feet in width, including one from the respondent. The relocated part of Highway No. 707 would by-pass the Air Force Base property and connect the old Highway No. 707 with the dual lane Highway No. 501 at point just south of the city limits of Myrtle Beach.

It is undisputed that the plans and specifications for the construction of the relocated highway were prepared by the Corps of Engineers of the United States Government. The road was actually constructed under a contract made by the United States Corps of Engineers with Ray Construction Company of Charlotte, North Carolina, and the contract price for such construction was paid by the Department of Defense of the Government. One of the engineers of the government supervised this road construction along with other construction work being done at the Air Base. When the initial construction of the relocated road was completed in August, 1955, it was tendered to the appellant so that the portion of the old highway could be closed in order to extend the aircraft runways at the Air Base. The appellant refused to accept the road because the pavement surface thereof was too rough. Thereafter, the Corps of Engineers let another contract and overlaid the original pavement surface with a new surface. After the resurfacing of said road, the appellant did, on June 8, 1956, accept the reconstructed highway from the Corps of Engineers of the Government and took over such for maintenance.

The complaint of the respondent alleges, inter alia, that the appellant located Highway No. 707, connecting such with U. S. Highway No. 501, and constructed the said road over property of the respondent; that in constructing this said road, the appellant filled in a roadbed, the level of which was five to six feet above the respondent's property; that ditches were cut along each side of this embankment or roadbed for the purpose of carrying off water from the highway; that the appellant was negligent in the construction of these ditches in that they were not of sufficient width or depth to drain and carry away the water which the construction of the roadbed caused to be impounded along the sides of said highway. It is further alleged that by reason of the negligence of the appellant in failing to construct adequate ditches sufficient in depth and width to carry off the water, which the elevated roadbed caused to collect on the sides of the highway, that the impounded water was cast over and upon the respondent's property in great volume, causing his property to be completely inundated, and not only destroying the crops upon said lands, but caused the farm land to be unfit for cultivation. It was further alleged that in constructing the raised roadbed through the respondent's land, the natural flow of surface water was obstructed, and because of the negligent failure to contruct adequate drainage ditches, the said water was impounded on said land rendering the same useless, unfit for cultivation, and permanently damaging the same. It was further alleged that when the appellant constructed relocated Highway No. 707, it failed to provide proper drainage for the surface water cast off of U. S. No. 501, and such water was carried down the side of said Highway No. 707 and was emptied into and upon the land of the respondent. It is further alleged that since the relocation and construction of Highway No. 707, the respondent has had several crops totally destroyed by the water which had been cast upon his property by the negligent acts of the appellant.

The appellant, by way of answer, denies that it at any time located or constructed the road in question which traverses the respondent's property. It alleges that the said highway was located and constructed by the United States Corps of Engineers and, following said construction, it accepted the said road for the sole purpose of maintenance thereof for the use and convenience of the traveling public. The appellant further alleges that its responsibility in connection with relocated Highway No. 707 is limited only to the maintenance thereof, and that the appellant has no title whatsoever to the said highway, its roadbed, or any of the rights of way pertaining thereto. As a further defense, the appellant alleges that the said highway was properly and adequately constructed and improved under plans and specifications prepared by the United States Corps of Engineers, and that said highway has been provided, within the right of way, with adequate ditches and facilities for the proper drainage thereof. The appellant specifically denies that it has impounded water upon the property of the respondent or changed the natural drainage conditions in any manner, but if the property of the respondent has been damaged, such was caused by the low elevation of the said land and the natural accumulation of water from said property and the lands of surrounding property owners.

This case came on for trial before the Honorable C. M. Epps, and a jury, at the 1960 May term of the Civil Court of Horry County, and resulted in a verdict in favor of the respondent for actual damages.

At the close of the testimony in behalf of the respondent, the appellant made a motion for a nonsuit upon the ground that the respondent had failed to establish any actionable negligence, either of omission or commission, insofar as the construction of this highway was concerned. The appellant also moved to strike out any testimony with reference to any issue of maintenance insofar as the appellant was concerned. The motion for a nonsuit was refused but during the argument of such motion counsel for the respondent asserted that the action was one in tort founded on the negligence in the construction of the said highway. The trial Judge, in refusing the motion for a nonsuit, ruled that the action could not be maintained in tort and 'The only way I see that this case could be maintained would be under the theory of taking of the property'. With reference to the question of maintenance, counsel for the respondent stated, 'Our testimony hasn't been directed at maintenance', and the trial Judge ruled, 'We will limit it to the construction of it.'

At the conclusion of all of the testimony, the appellant made a motion for a directed verdict upon the grounds (1) That the testimony adduced by the respondent failed to establish any actionable negligence upon the part of the appellant; (2) That there was no evidence to establish any connection between the appellant and the construction of said highway; and (3) That the said roadway was constructed by the Corps of Engineers of the United States Government, and the subsequent acceptance of the road, by the appellant, which it neither constructed nor supervised during construction, would not render it liable to the respondent. This motion was refused.

During the course of the charge of the trial Judge to the jury an instruction was given that this case was based upon the provision of Article I, Section 17, of the 1895 Constitution of this State, that private property shall not be taken for public use without just compensation being first made therefor. He submitted to the jury the question of whether the appellant had 'taken' the property of the respondent by the negligent construction of the roadbed and ditches. He also submitted as a question of fact for the determination of the jury whether or not the appellant constructed or took part in the construction of said roadway, and if the jury concluded that the appellant constructed or took part in the construction of said highway, and such was negligently done, then the appellant would be liable to the respondent for damage to said property.

After a verdict had been rendered in favor of the respondent, the appellant made a motion for judgment non obstante veredicto and, in the alternative, for a new trial, asserting that the trial Judge committed error in refusing its motion...