Parrish v. Town Of Yorkvi Lee

• Decision Date: 09 October 1913
• Citation: 96 S. C. 24,79 S.E. 635
• Parties: PARRISH. v. TOWN OF YORKVI LEE.
• Court: South Carolina Supreme Court

79 S.E. 635

(96 S. C. 24)

PARRISH.

v.TOWN OF YORKVI LEE.

Supreme Court of South Carolina.

Oct. 9, 1913.

1. Municipal Corporations (§ 723*)—Actions—Torts.

An action for tort will not lie against a municipal corporation, unless it is made liable by statute; such a corporation being merely an arm of the state.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1545; Dec. Dig. § 723.*]

2. Eminent Domain (§ 2*)—"Taking of Private Property"—What Constitutes.

Where a municipal corporation emptied sewage into a stream flowing through plaintiff's land, thus injuring her property, there was "a taking of private property" for public use within the purview of the Constitution, guaranteeing that private property shall not be taken for public use without just compensation.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 3-12; Dec. Dig. § 2.*

For other definitions, see Words and Phrases, vol. 8, pp. 6852-6860; vol. 8, p. 7813.]

3. Eminent Domain (§ 69*)—Right of Condemnation.

As the Constitution prohibits the taking of private property for a public use without just compensation, the granting by the Legislature of the right to condemn private property imposes upon the condemning corporation the correlative duty of making just compensation.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 171-179; Dec. Dig. § 69.*]

4. Eminent Domain (§ 167*)—Condemnation

—Assessment of Damages.

As condemnation of land by a municipality is of statutory origin, the method prescribed by Civ. Code 1912, § 3023, by which the amount of compensation is to be determined by arbitrators appointed by the corporation and the landowner, is exclusive; there being no common-law action.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 451^56; Dec. Dig. § 167.*]

5. Eminent Domain (§ 269*)—Institution of Condemnation Proceedings.

As the remedy of condemnation is for the benefit, not only of the condemning corporation, but of the owner, a landowner whose property is taken by a municipality as a dumping place for sewage may, if the right to compensation is not denied, institute condemnation proceedings, for the assessment of his damage, by mandamus for the appointment of arbitrators to assess the same.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 698, 699; Dec. Dig. § 269.*]

6. Mandamus (§ 73*)—Scope of Mandamus.

The institution by a municipality of proceeding to ascertain the amount of compensation due in a condemnation case is a plain ministerial duty, and can be enforced by mandamus.

[Ed. Note.—For other cases, see Mandamus, Cent. Dig. §§ 115, 135, 144-149; Dec. Dig. § 73.*]

7. Eminent Domain (§ 266*)—Taking of Property—Denial of Right to Compensation—Remedy of Owner.

Where a municipality which has taken private property for public use, denies the owner's right to compensation, the owner may bring an action in equity to ascertain his right to compensation, because Civ. Code 1912, § 3023, which provides that the amount of compensation in condemnation proceedings is to be determined by arbitrators appointed by the municipality and the landowner, does not provide any method for determining the right to compensation when it' is contested.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 694-696, 702, 703, 705; Dec. Dig. § 266.*]

Appeal from Common Pleas Circuit Court of York County; Thos. S. Sease, Judge.

"To be officially reported."

Action by Laura E. Parrish against the Town of Yorkville. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

Marion & Marion, of Chester, and Thos. F. McDow, of Yorkville, for appellant.

W. W. Lewis, of Yorkville, for respondent.

HYDRICK, J. Plaintiff attempted to set up two causes of action in her complaint. Divested of unnecessary verbiage, the material allegations of the first cause of action are: That since the year 1908 the defendant has emptied the sewerage of the town of Yorkville into a stream which flows through plaintiff's land, thereby polluting the waters thereof to her injury and damage; that said use of her property was be-gun without notice to her, and without her consent, and without acquiring the right thereto, or making compensation therefor, in the manner prescribed by law, and that It has been continued against her protest; that defendant has refused her demand for compensation, and denies her right thereto; that such use of her property is a taking thereof for a public purpose, without compensation, and without due process of law, and she is thereby denied the equal protection of the law, contrary to the guaranties of both the state and federal Constitutions. The allegations of the second cause of action are such as are usual and appropriate to an action against a municipal corporation for damages for tort under the statute. Civil Code 1912, § 3053.

The grounds of demurrer to the first cause of action are: (1) That an action for damages for tort cannot be maintained against a municipal corporation, in the absence of legislative authority, and there is no such authority to bring this action; (2) that plaintiff has a remedy by condemnation, which is exclusive. The first ground was also interposed to the second cause of action. The court sustained the demurrer to both causes of action and dismissed the complaint.

It has been settled by a long line ol decisions in this court that an action for damages for tort will not lie against a municipal corporation, unless the corporation is made liable by statute, because such corporation Is merely an agent of the state for governmental purposes. Young v. Commissioners, 2 Nott & McC. 537; White v. Charleston, 2 Hill, 575; Coleman v. Chester, 14 S. C. 291; Black v. Columbia, 19 S. C. 412, 45 Am. Rep. 785; Young v. Charleston, 20 S. C. 118, 47 Am. Rep. 827; Acker v. Anderson County, 20 S. C. 498; Chick v. Newberry, 27 S. C. 419, 3 S. E. 787; Hill v. Laurens County, 34 S. C. 145, 13 S. E. 318; Dunn v. Barnwell, 43 S. C. 401, 21 S. E. 315, 49 Am. St. Rep. 843; Parks v. Greenville, 44 S. C. 170, 21 S. E. 540; Matheny v. Aiken, 68 S. C. 163, 47 S. E. 56; Bramlett v. Laurens, 58 S. C. 60, 36 S. E, 444; Bryant v. City Council, 70 S. C. 140, 49 S. E. 229; Irvine v. Greenwood, 89 S. C. 515, 72 S. E. 228, 36 L. R. A. (N. S.) 363.

It is not, and cannot be, disputed that plaintiff has been deprived of her property; that it has been taken by defendant for a public purpose within the meaning of the constitutional guaranty that private property shall not be taken for a public purpose without just compensation. Matheny v. Aiken, 68 S. C. 179, 47 S. E. 56, and cases cited. The question of vital interest to the plaintiff, then, is, Has she any remedy for the injury which she has admittedly sustained? We think she has. As the Constitution forbids the taking of private property for a public use without just compensation, the grant by the Legislature of the right to condemn private property for such pur poses imposes upon the condemning corporation the correlative duty to make just compensation for property so taken. Bramlett v. Laurens, 58 S. C. 60, 36 S. E. 444.

As condemnation of lands for such purposes is statutory in its origin, and was unknown to the common law, there is no common-law action appropriate to the assessment of compensation in such cases. Hence the statutes which confer the right to condemn usually provide a method of ascertaining the compensation, and this court has uniformly held that, when the statute provides a method, it is exclusive; the intention being that the remedy shall be simple, inexpensive, and expeditious. See cases cited below.

Turning to the statutes (Acts of 1902, 23 Stat. 1040; Civil Code 1912, § 3023), we find that the act which conferred upon municipal corporations the power to condemn lands and streams for the purpose of discharging sewerage provides that the compensation therefor shall be ascertained as follows: The...