South Carolina State Highway Dept. v. Bolt

• Decision Date: 23 May 1963
• Docket Number: No. 18073,18073
• Citation: 242 S.C. 411,131 S.E.2d 264
• Court: South Carolina Supreme Court
• Parties: SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Respondent, v. James W. BOLT and The Federal Land Bank, Appellants.

Page 264

131 S.E.2d 264

242 S.C. 411

SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Respondent, v. James W. BOLT and The Federal Land Bank, Appellants.

No. 18073.

Supreme Court of South Carolina.

May 23, 1963.

Bolt & Bowen, Greenville, for appellants.

Daniel R. McLeod, Atty. Gen., Grady L. Patterson, Jr., Asst. Atty. Gen., Columbia, W. H. Arnold, C. Victor Pyle, Greenville, for respondent.

LEWIS, Justice.

This is a condemnation proceeding brought by the respondent South Carolina State Highway Department to acquire a right of way for the construction of a controlled-access highway across the property of the appellant James W. Bolt. Upon the trial of the case, a jury assessed the damages by reason of the taking of the right of way at the sum of $13,900.00, and the landowner has appealed, charging that the verdict was inadequate, that the lower court erred in refusing to permit the jury to consider as elements of damage loss of business and the cost of the construction of new buildings to replace those allegedly rendered worthless by the acquisition of the right of way, and that error was committed in certain respects in the charge to the jury.

The appellant owned a tract of land of 51.43 acres, located on the north side of a highway known as the Congaree Road about six miles from Greenville, South Carolina, upon which was located, among other improvements, his residence, barns, and three large chicken houses. The chicken houses were located about four hundred fifty feet from Congaree Road, had a layer capacity of 2500 hens, and the appellant had been engaged in the commercial egg business for about twelve years. On September 21, 1959, this proceeding was instituted by the respondent to acquire a right of way of approximately 250 feet in width across appellant's property in connection with the construction of U. S. Highway I-385, a controlled-access road. The right of way acquired in this proceeding crosses the appellant's land partly in a cut of four to nine feet, comes within approximately 25 feet of one of the chicken houses, 31 feet of another, and 112 feet of the other, takes 7.18 acres of land and cuts off 2.6 acres, the frontage on Congaree Road, from the remainder of the tract.

Upon the trial of the case the appellant contended, and introduced testimony to show, that the most advantageous and profitable use of his property was for a commercial egg business, which he had been operating thereon for about twelve years, and that, due to the close proximity of his chicken houses to the new location of the highway, the noise from the traffic would so adversely affect the productivity of the chickens as to completely destroy his commercial egg business. He accordingly requested the trial court to instruct the jury that loss of his business was an element of damage to be considered in determining just compensation to him for the taking of the right of way by the respondent. This request was refused and the jury was instructed that 'injury to or loss of business is not an appropriation of property which must be paid in a case of this kind.' Claimed error in the refusal of the court to permit the jury to consider loss of business as an independent element of damage in determining the issue of just compensation to the appellant presents the first and basic question to be decided in this appeal.

Article I, Section 17 of the Constitution of this State provides that private property shall not be taken for public use without just compensation being first made therefor.

The Legislature has, in the enactment of Sections 33-135 and 33-136 of the 1962 Code of Laws, implemented the foregoing constitutional provision 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 by the State Highway Department for highway purposes. Johnson v. S. C. State Highway Department, 236 S.C. 424, 114 S.E.2d 591. These sections provide that in determining just compensation to the landowner 'only the actual value of the land to be taken therefor and any special damages resulting therefrom shall be considered', taking into consideration in determining the amount of just compensation any 'benefits to be derived by reason of the proposed road construction.'

The issues, therefore, to be determined in the trial of the case were (1) the actual value of the land taken from the appellant in the right of way being acquired, (2) any special damages resulting to the remainder of the land by reason of such taking, and (3) the benefits, if any, accruing to the remainder of the property by reason of the construction, the latter to be deducted from the total of the value of the land taken and any special damages found to exist.

The actual value of the land taken, of course, means the market value thereof. And [m]arket value of property taken or injured for public use means the fair value of the property as between one who wants to purchase and one who wants to sell, its present value at a sale which a prudent owner would make if at liberty to fix the time and conditions of sale, not what could be obtained for it at a forced sale or under peculiar circumstances, nor a value obtained from the necessities of another. 20 C.J. 727.' Howell v. State Highway Department, 167 S.C. 217, 166 S.E. 129.

The trial judge correctly instructed the jury that '[t]he landowner [is] entitled to compensation upon the basis of the most advantageous and profitable use of [his] land. In estimating the value of property condemned, all of the uses to which it may be applied, or for which it is adapted, which affect its value in the market, are to be considered, and not merely the condition it is in at the time and the use to which it was then applied by the owner.' City of Orangeburg v. Buford, et al., 227 S.C. 280, 87 S.E.2d 822; 29 C.J.S. Eminent Domain § 160.

In addition to the actual value of the land taken, where a portion of a tract of land is taken for such public use, the landowner is entitled to compensation for any special damages resulting to the remainder thereof. The special damages referred to in the above statutes relate to injury or damage to the remainder of the property from which a portion is taken. They would include any damage or any decrease in actual value of the remainder of the landowner's property which are the direct and proximate consequence of the acquisition of the right of way. In other words, as a general rule, special damages include all injuries or damages which cause a diminution in the value of the remaining property. As stated in 18 Am.Jur. 905, Section 265:

'When part of a parcel of land is taken by eminent domain, the owner is not restricted to compensation for the land actually taken; he is also entitled to recover for the damage to his remaining land. In other words, he is entitled to full compensation for the taking of his land and all its consequences; and the right to recover for the damage to his remaining land is not based upon the theory that damage to such land constitutes a taking of it, nor is there any requirement that the damage be special and peculiar, or such as would be actionable at common law; it is enough that it is a consequence of the taking. The entire parcel is considered as a whole, and the inquiry is, how much has the particular public improvement decreased the fair market value of the property, taking into consideration the use for which the land was taken and all the reasonably probable effects of its devotion to that use.'

Therefore, where a portion of a tract of land is taken, the damages recoverable in an eminent domain proceeding brought under the foregoing statutes are limited to the value of the land actually acquired for the right of way and any injury resulting to the remaining property. The only subject of the condemnation in this case under the statute, Section 33-122 of the 1962 Code of Laws, was the real property of the appellant and, in such cases, it is the general rule that injury to or loss of business resulting from the taking is not considered as an element of damage in eminent domain proceedings in the absence of a statute expressly allowing such damages. 18 Am.Jur., Eminent Domain, Section 259; 29 C.J.S. Eminent Domain § 162.

However, in estimating the value of the property condemned, the landowner is entitled to compensation upon the basis of the most advantageous and profitable use of his land. And, as stated in the case of Housing Authority of City of Bridgeport v. Lustig, 139 Conn. 73, 90 S.2d 169, 171:

'Accordingly, the better reasoned cases hold that, although the value of a business which is being conducted upon the real property condemned may not ordinarily be added to the market value of the realty as damages for the taking, the fact that a given business is in operation on the property should be taken into consideration in determining the market value of the real property if in truth it is a factor in establishing that market value--if, that is, the use of the real property for that purpose enhances the value of it. Edmands v. City of Boston, 108 Mass. 535, 549; King v. Minneapolis Union Ry. Co., 32 Minn. 224, 226, 20 N.W. 135; Pittsburgh, V. & C. Ry. Co. v. Vance, 115 Pa. 325, 334, 8 A. 764; Chairman of Highway Commission v. Parker, 147 Va. 25, 29, 136 S.E. 496; Voigt v. Milwaukee County, 158 Wis. 666, 670, 149 N.W. 392. In...