Sease v. City of Spartanburg

• Decision Date: 02 July 1963
• Docket Number: No. 18088,18088
• Court: South Carolina Supreme Court
• Parties: Eunice C. SEASE, Appellant, v. CITY OF SPARTANBURG, Respondent.

Page 683

131 S.E.2d 683

242 S.C. 520

Eunice C. SEASE, Appellant, v. CITY OF SPARTANBURG, Respondent.

No. 18088.

Supreme Court of South Carolina.

July 2, 1963.

Sam R. Watt, E. W. Johnson, Spartanburg, for appellant.

T. Emmett Walsh, Spartanburg, for respondent.

MOSS, Justice.

Mrs. Eunice C. Sease, the appellant herein, instituted this action and asked for a temporary injunction against the City of Spartanburg, the respondent herein, restraining it pendente lite from proceeding in condemnation against her property and after a hearing on the merits that said injunction be made permanent. The appellant, by her complaint, challenges the right of the respondent to proceed in condemnation against her property. The Honorable Frank Eppes, the presiding Judge, issued a rule to show cause and a temporary restraining order. The respondent demurred to the complaint and such was heard before the Honorable G. Badger Baker, the then presiding Judge, who, by his order dated February 16, 1963, sustained the demurrer of the respondent and dismissed the complaint on the ground that it failed to state a cause of action and, thereby, terminated the temporary restraining order. This Court, upon proper application therefor, on March 16, 1963, issued an order superseding and staying the condemnation proceeding until this appeal could be heard on its merits. The present appeal is from the order sustaining the demurrer to the complaint.

A summary of the pleadings in the case will be helpful to an understanding of the issue to be decided. The appellant is the owner of a parcel or tract of land lying generally in the apex of North Pine and St. John Streets in the City of Spartanburg. This property is afforded access from St. John Street by means of Jolley Alley and is afforded access from both North Pine and St. John Streets by means of Jolley and Crawford Streets. The City of Spartanburg, a municipal corporation, proposes to acquire from the appellant, by condemnation, certain lots upon which houses are located, as a right of way for the construction of a street parallel and adjacent to North Pine Street. The appellant alleged that the effect of the condemnation by the respondent would be to completely deprive her and her property from ingress and egress to North Pine Street because such proposed new street would be constructed between her remaining property and North Pine Street. It is further alleged that the appellant and her property would be deprived of access to Pine Street not only with an intervening street between them but, in addition, her remaining property would be accessible only to St. John Street by means of Jolley Alley, Jolley and Crawford Streets, and these three would form a cul-de-sac. It is then alleged that the proposal of the respondent is fantastic, unreasonable, unnecessary, uncalled for and unwarranted, and that the condemnation of appellant's property would be a great detriment to her and would serve no useful purpose to the respondent. The complaint also alleges that if the respondent is not restrained and enjoined from condemning her property that she will suffer irreparable injury because she has no adequate remedy at law.

The respondent filed a demurrer to the complaint on the ground that the same fails to state facts sufficient to constitute a cause of action in that it appears upon the face of the complaint that the only action complained of by the appellant is the exercise of the power of eminent domain which is a right vested in the respondent and may be exercised from time to time for proper purposes in accordance with the laws of this State; and that the appellant has a legal remedy for any injury or damage to her property resulting from the exercise of the power of eminent domain by the respondent.

It is elementary that in passing upon a demurrer, the Court is limited to a consideration of the pleadings under attack, all of the factual allegations whereof that are properly pleaded are for the purpose of such consideration deemed admitted. A demurrer admits the facts well pleaded in the complaint but does not admit the inferences drawn by the plaintiff from such facts. Costas v. Florence Printing Co., 237 S.C. 655, 118 S.E.2d 696. A demurrer to a complaint does not admit conclusions of law pleaded therein. Gainey v. Coker's Pedigreed Seed Co., 227 S.C. 200, 87 S.E.2d 486.

The State may delegate to its agencies, and to municipal corporations, the right to exercise its power of eminent domain, and may by statute prescribe the manner in which, at the instance of such condemnor, the 'just compensation' of the condemnee as is provided for in Art. I, Sec. 17, of the 1895 Constitution of this State, for the taking of private property for public use, is to be ascertained. Smith v. City of Greenville, 229 S.C. 252, 92 S.E.2d 639.

A municipal corporation is given the power of condemnation by statute, 47-68.1 of the Code; and the respondent herein, acting through its city council, has the right, pursuant to Section 47-1327 of the Code, to 'lay out and open new streets in the city and close up, widen or otherwise alter streets in such city whenever, in its judgment, it may be necessary for the improvement or convenience of the city. But it shall first pay damages, should any be claimed, to any landowner through whose premises such streets may run, such damages to be fixed and determined as provided in §§ 25-161 to 25-170' of the Code. The foregoing sections implement Art. I, Sec. 17, of the Constitution, by providing a method of ascertaining the amount of just compensation to which the landowner is entitled by reason of the taking of his property for a public purpose by a municipal corporation.

The constitutional prohibition against taking private property for public use without just compensation must have been intended to protect all the essential elements of ownership which make property valuable, including of course the right of user and the right of enjoyment. Property in a thing consists not merely in its ownership and possession but...