SOUTH CAROLINA PUBLIC SERV. A. v. 11.754. 8 ACRES OF LAND, ETC.

• Decision Date: 10 November 1941
• Docket Number: No. 4822.,4822.
• Citation: 123 F.2d 738
• Parties: SOUTH CAROLINA PUBLIC SERVICE AUTHORITY v. 11,754.8 ACRES OF LAND, MORE OR LESS, IN BERKELEY COUNTY, S. C., et al.
• Court: U.S. Court of Appeals — Fourth Circuit

123 F.2d 738 (1941)

SOUTH CAROLINA PUBLIC SERVICE AUTHORITY v. 11,754.8 ACRES OF LAND, MORE OR LESS, IN BERKELEY COUNTY, S. C., et al.

No. 4822.

Circuit Court of Appeals, Fourth Circuit.

November 10, 1941.

James Julien Bush, of Charleston, S.C., and Ben Hill Brown, of Spartanburg, S. C. (R. M. Jefferies, of Walterboro, S. C., on the brief), for appellant.

Augustine T. Smythe, of Charleston, S. C., for appellees.

Before PARKER, SOPER, and NORTHCOTT, Circuit Judges.

NORTHCOTT, Circuit Judge.

This is an appeal from an order entered in the District Court of the United States for the Eastern District of South Carolina in an action instituted by the appellant, South Carolina Public Service Authority, seeking to condemn certain lands owned by Albert M. Barnes, Clarence Dillon, and Annie Dillon, the appellees. The case was before this court in Barnes v. South Carolina Public Service Authority, 120 F.2d 439. In the opinion of this court in that case will be found a statement of the facts.

Pending the appeal to this court the court below on December 27, 1940, entered an order directing the clerk of the court to pay, out of the fund in his possession, the taxes on the land in question for the year 1940. This was done without prejudice to the parties and for the purpose of avoiding penalties. On January 25, 1941, the appellees here filed a notice of motion to require the Authority to pay back to the clerk of the court the amount expended by him for taxes. This was followed by a motion on January 27, 1941, advancing additional grounds for the motion of January 25. On February 3, 1941, the court below entered an order requiring the condemnor (the Authority) to deposit the sum paid out for the 1940 taxes with the clerk of the court. In this order the court held that the owners of the land condemned were not liable for the taxes after possession was taken by the condemnor. From this order this appeal was brought.

The sole question involved is whether the owners of the land should pay the taxes on same to the date on which possession was taken by the condemnor or the date on which the condemnor received a deed for the land and the title passed.

The condemnor took possession of the land in question on March 29, 1940, and the clerk of the court executed a deed passing the legal title to the land in June, 1941. It is the amount of the taxes for the period between the passing of possession and the passing of the title that is in dispute.

The pertinent statutes of the State of South Carolina are Sections 6, 7, 8 and 9 of the State Authorities Eminent Domain Act of the General Assembly of South Carolina for the year 1939, 41 Statutes at Large, 265, which read as follows:

"§ 6. Referees and Procedure. — The right of eminent domain herein conferred upon such State Authority, Commissions, Board of Governing Bodies, shall be exercised by a Board of three Referees, one of whom shall be nominated and appointed by the State Authority * * *, and the Referees so appointed shall * * * appoint a third Referee. * * * the Board of Referees shall * * * determine the question of compensation submitted to them and any special damage the owner may sustain by reason of the acquisition of his property for such purpose, which award therefor shall be * * * filed in the office of the Clerk of Court. * * * Upon the payment of the compensation ascertained by the award or the deposit thereof with the Clerk of Court, or otherwise as hereinafter provided, said State Authority may enter upon said lands for the purpose of constructing the Project. * * *

"§ 7. Compensation of Referees and Officers and Interest. — * * * In the event of an appeal, interest at the legal rate shall be allowed and shall be paid to the land owner upon the final award as finally settle settled by the Courts, from the date that his property or any part of it is taken by the Authority, to the date upon which such final award as finally approved by the Courts is paid to the land owner or is deposited for his benefit in accordance with the provisions of this Act.

"§ 8. Appeals to Courts. Deposits of Awards — Revenue Stamps. — Any interested party may appeal to the Court of Common Pleas from the decisions of the Board of Referees * * * and it shall be heard in said Court de novo before a jury. * * * The verdict of the jury in such cases shall be final, unless set aside for the reasons for which verdicts may be set aside or modified in other cases, or unless the judgment of the Court be thereupon reversed for error of law on appeal to the Supreme Court. * * * The amount of the final verdict of the jury on appeal shall be paid to the Clerk of Court by the State Authority * * * and the said funds so paid to the Clerk of Court shall be disbursed to the owners in accordance with the final order of the Court: * * * Upon the final determination of the condemnation proceedings the Clerk of Court shall execute and deliver to said State Authority a good and sufficient deed, subject to the terms and provisions of this Act, conveying title to the properties described in the notice to owners free and clear of all encumbrances, and upon delivery to the State Authority by the Clerk of such conveyance said State Authority shall stand seized and possessed of the title and properties therein described, and shall be considered a purchaser in good faith thereof. * * *

"§ 9. Taxes. — Before the payment of the amount of the award or the verdict of the jury the Treasurer of the County in which the property being condemned is situated, upon request of the State Authority, shall file with the Clerk of Court for said County a statement showing the amount of State and County taxes due on the property which is being condemned, including the pro-rata taxes for the year in which such statement is filed; Provided, that should the assessment for taxes for such last referred to year not have been made, then the amount due for taxes for such year shall be estimated based on the assessment for the previous year. The state Authority may pay to the Treasurer all of the taxes shown on such statement out of the amount of the award or verdict of the jury and the Treasurer shall receipt the statement so filed with the Clerk. Upon the payment of such amount, which shall be deducted from the amount of the award or verdict to be paid to the owners, the property described in the Notice to Owners shall be free of lien for taxes for all years, including the year in which said statement is filed."

Under Section 2569 of the Code of Laws of South Carolina, 1932, all taxes for the year...