Shonnard v. South Carolina Public Service Authority

• Decision Date: 28 August 1950
• Docket Number: 16402.
• Parties: SHONNARD v. SOUTH CAROLINA PUBLIC SERVICE AUTHORITY.
• Court: South Carolina Supreme Court

60 S.E.2d 894

217 S.C. 458

SHONNARD v. SOUTH CAROLINA PUBLIC SERVICE AUTHORITY.

No. 16402.

Supreme Court of South Carolina.

August 28, 1950

Christie Benet, Herbert & Dial, Columbia, for appellant.

R. M Jefferies, Walterboro, W. D. Simpson, Moncks Corner, for respondent.

STUKES, Justice.

This action by appellant for continuing damages to land is similar in alleged facts to the case of Rice Hope Plantation v South Carolina Public Service Authority, 216 S.C. 500 59 S.E.2d 132. The main conclusion of the cited decision is applicable to this case; it is the converse of a proceeding under the power of eminent domain by the condemnor for the assessment of the value of private property taken for a public purpose. 'As we read the complaint, we think it is clear that it does properly allege a cause of action for the recovery by the plaintiff from the defendant, a governmental corporate agency, just compensation for the property of the plaintiff alleged to have been taken, pursuant to the provisions of the State Constitution in Article I, Section 17. See Chick Springs Water Co. v. State Highway Dept., 159 S.C. 481, 157 S.E. 842, and the many cases following it.' 216 S.C. 500, at page 513, 59 S.E.2d at page 136.

Appellant alleges ownership by her at the time of the 'taking' of a planation on the lower Santee River which suffers damages as the result of the diversion by respondent of water from that river to the Cooper River and resulting salinity from the ocean. The only contents of the answer which need be now noticed are the allegations that after the diversion of the water of the river appellant conveyed the plantation by general warranty deed, dated March 1, 1947, to Mrs. Susie M. Abney and Mrs. Sallie Abney Smith and that subsequently, by deed dated March 24, 1948, Mrs. Smith conveyed her undivided one-half interest to Mrs. Abney and neither of said deeds contained reservation of any cause of action against respondent, and thereby Mrs. Abney and Mrs. Smith are proper, necessary and indispensable parties to the suit, without whom there cannot be a complete adjudication of the cause of action asserted in the complaint.

Upon certified copies of the deeds and upon affidavits respondent moved the court for an order adding the grantees as parties and providing for appropriate amendment of the summons and pleadings and service thereof upon them. The court ordered accordingly and said in part, as follows:

'The defendant contends that the present action is one for a taking without just compensation. If this be true, then the following decisions would apparently determine the rights of Mrs. Abney and Mrs. Smith, for the taking appears to have been accomplished prior to their ownership of the property. Carroll v. Davis, 128 S.C. 40, 121 S.E. 601; Bridges v. Southern Railway, 86 S.C. 267, 68 S.E. 551, Ann.Cas.1921A, 1056; Cayce Land Co. v. Southern Railway Co., 111 S.C. 115, 96 S.E. 725. The question of whether the acts complained of give rise to one right of recovery or successive rights is of importance. See: Conestee Mills v. City of Greenville, 160 S.C. 10, 158 S.E. 113, 75 A.L.R. 519; Chick Springs Water Co. v. State Highway Department, 178 S.C. 415, 183 S.E. 27. The issues touch the lands in question and the manner of the operation of the defendant's properties. Since the issues do affect the lands and since they have passed into the hands of subsequent purchasers, all of those who may have any interest in the controversy should be made parties. This is not a determination that the subsequent purchasers have such an interest. It is merely a determination that, as owners of the lands in question, they should be bound by the decision made in the cause. To do so, they must be made parties to the action.'

The appeal is from the foregoing order upon exceptions which appellant has argued as making the single question, quoting from the brief, 'whether Mrs. Smith and Mrs. Abney should be made parties under the facts and circumstances of this case.'

The Code of Procedure, 1942, contains pertinent provisions, as follows Sec. 404: 'Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein, and in an action to recover the possession of real estate, the landlord and tenant thereof may be joined as defendants; and any person claiming title or a right of possession to real estate may be made parties plaintiff or defendant, as the case may require, to any such actions.' Sec. 409: 'The Court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in. * * *' Sec. 494: 'The court may, before or after judgment, in furtherance of...