South Carolina State Highway Dept. v. Wilson, 19071
| Decision Date | 26 June 1970 |
| Docket Number | No. 19071,19071 |
| Court | South Carolina Supreme Court |
| Parties | SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant, v. Gertrude B. WILSON, Anna Rebecca Drayton, Martha G. Alexander, Raymond Draytonand Aubrey W. Jones, Respondents, and Standard Oil Company and Shell Oil and Gas Company. |
Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. C. Pinckney Roberts, Columbia, Dan F. Laney, Jr., Bishopville, for appellant.
Jennings & Jennings, Bishopville, for respondents.
This is an appeal by the State Highway Department from a jury verdict in the amount of $30,200.00 in a highway condemnation case. The land involved belonged to the widow and children of one Aubrey Wilson. Raymond Drayton, a son-in-law of Wilson, is an interested party by virtue of having been a tenant of the property for many years and having constructed thereon a number of buildings. The interests of Standard Oil Company and Shell Oil and Gas Company, if any, do not appear in the portion of the transcript included in the appeal record.
Prior to the condemnation, the Wilson tract contained 44 acres located on the west side of U.S. Highway 15, approximately 2.5 miles south of the center of the City of Bishopville. It was approximately rectangular in shape and fronted on U.S. Highway 15 for approximately 670 feet. Located on the southern portion of the property, near Highway 15, there were improvements consisting of a mercantile store building, two grain bins and a warehouse. A county road, leading to U.S. Highway 15, extended along the southern boundary of the Wilson property. Condemned by the Department was approximately three acres taken for the purpose of approach to an interchange of I--20, a controlled access highway, which will cross U.S. Highway 15 slightly to the south of the Wilson property. U.S. Highway 15 where it borders the Wilson property is being widened from a two lane highway with no median to a four lane highway with a traffic median separating the northbound from the southbound lanes. This median will extend, with the exception of one break, the length of the Wilson property and beyond to a point approximately 400 feet north of the northern property boundary. The county road at the southern boundary of the Wilson property is being relocated and, as relocated, will run diagonally across the Wilson property and intersect with U.S. Highway 15 at an angle of approximately sixty degrees. The only break in the above mentioned median is at the intersection of the relocated county road. The angle at which this county road intersects means that southbound traffic turning into the relocated county road will make a sixty degree turn, while northbound traffic entering the county road will make a left turn of approximately one hundred twenty degrees. The severance of the Wilson property by this relocated county road leaves 1.74 acres (an elongated triangle) lying to the south of the relocated county road and 39.26 acres lying to the north thereof. The two grain bins and a substantial portion of the store building hereinabove mentioned were located upon the condemned portion of the land. The warehouse remains upon the above mentioned triangular parcel.
A controlled access line extends from the southern boundary of the Wilson tract to the relocated county road so that there will be no access whatever from the remaining southern portion of the Wilson land to U.S. Highway 15, except via the relocated county road. Included in the condemnation is a triangular site area extending fifty feet north of the relocated county road, with the result that the remaining frontage of the Wilson land bordering the right of way on U.S. 15, to the north of the county road, is reduced to approximately 330 feet.
The condemnees contended and offered evidence to the effect that the highest and best use of three to four acres of the land bordering U.S. 15 was for commercial purposes and the highest and best use of the remainder was for farm land. Witnesses for the department regarded it all as being farm land. The condemnees claimed damages for loss of access to U.S. 15, due to the limited, controlled access, the construction of the median, taking of improvements within the right of way, and poor accessibility to the warehouse and the land remaining on the south side of the county road. Witnesses for the condemnees testified as to total damages ranging from about $46,000 to nearly $66,000. The witnesses for the Department contended that the benefits exceeded any damage by some five to ten thousand dollars, because, as a result of the construction, the remaining portion of the Wilson land would be the first accessible to northbound traffic leaving I--20, and the last accessible to southbound traffic on U.S. 15 about to enter I--20. In view of the respective contentions, the nature of the access to the remaining portions of the Wilson land after construction, and the effect thereof on the value of the remainder, became most important issues in the case.
The trial court declined a requested charge by the Highway Department to the effect that any diminution in the value of the remaining property, resulting from the construction of the median, was not a compensable element of damage, since the construction of the median was an exercise of the State's police power, rather than its power of eminent domain. It is now asserted that the failure to so charge constituted prejudicial error.
This court has previously recognized that there is a distinction between the exercise of the police power and the exercise of the power of eminent domain; that just compensation is required in the case of the exercise of eminent domain but not for the loss by the property owner which results from the constitutional exercise of the police power. Richards v. City of Columbia, 227 S.C. 538, 88 S.E.2d 683; Edens v. City of Columbia, 228 S.C. 563, 91 S.E.2d 280. While we, apparently, have not heretofore had the precise question before us, the clear weight of authority from other jurisdictions is to the effect that the construction of a median, or other traffic control devices, is an exercise of the police power; and that where there is no other taking or damaging of the property of an abutting landowner, the landowner is not entitled to compensation for any resulting damage.
Additionally, there is considerable authority from other jurisdictions to the effect that, even though there be other taking or damaging of the property of an abutting landowner, under the power of eminent domain, the landowner is still not entitled to recover any damage resulting from the concomitant construction of a median or other traffic control device. Barnes v. North Carolina State Highway Commission, 257 N.C. 507, 126 S.E.2d 732 (1962); Annotation 73 A.L.R.2d 689.
While no case precisely in point factually with the instant case has been cited or come to the attention of the court, the Department urges us to adopt and apply to the facts of the instant case the rule of law last above mentioned.
The decisions of courts from other jurisdictions are, of course, only persuasive authority and we are not convinced that the rule which the Department would have us adopt is a sound one. To the contrary, our pertinent constitutional provision, our statutory law, and the prior decisions of this court interpreting the same lead us to the conclusion that the trial judge properly refused the Department's request to charge.
The Constitution of this State, Article I, Sec. 17, provides that '* * * private property shall not be taken * * * for public use without just compensation being first made therefor.' We have consistently held that the deprivation of the ordinary beneficial use and enjoyment of one's property is equivalent to the taking of it, and is as much a taking as though the property were actually appropriated to the public use. We have consistently held that within the purview of this constitutional provision, there is no distinction between taking and damaging and that the least damage to property constitutes a taking within the purview of the Constitution. Owens v. South Carolina State Highway Dept., 239 S.C. 44, 121 S.E.2d 240 (1961); Webb v. Greenwood County, 229 S.C. 267, 92 S.E.2d 688 (1956); Early v. South Carolina Public Service Authority, 228 S.C. 392, 90 S.E.2d 472 (1955); Milhous v. State Highway Dept., 194...
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