South Carolina State Highway Dept. v. Miller

Decision Date09 December 1960
Docket NumberNo. 17723,17723
Citation237 S.C. 386,117 S.E.2d 561
CourtSouth Carolina Supreme Court
PartiesSOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant, v. W. N. MILLER and Thomas W. Miller, Respondents.

Daniel R. McLeod, Atty. Gen., Grady L. Patterson, Jr., James S. Verner, Asst. Attys. Gen., for appellant.

Thomas A. Wofford, Theodore A. Snyder, Jr., Greenville, for respondents.

MOSS, Justice.

W. N. Miller and Thomas W. Miller, the respondents herein, owned a lot of lnd containing 1.21 acres, located on Greenville County, South Carolina, and fronting on Highway No. I-85. The South Carolina State Highway Department, the appellant herein, instituted this condemnation proceeding on June 4, 1958, by the service of a notice upon the respondents that it required the aforesaid lot of land for highway purposes. This proceeding was instituted pursuant to Section 33-122 of the 1952 Code of Laws of South Carolina, and the notice given was in conformity with Section 33-132 of the Code. A Board of Condemnation was duly convened and did, by appropriate resolution served upon the respondents on June 27, 1958, fix the amount of compensation and damages to which the respondents were entitled in the amount of $7,200. The respondents herein appealed to the Court of Common Pleas for Greenville County from the award made by the Condemnation Board and the cause was heard de novo, pursuant to Section 33-139 of the Code, before the Honorable J. B. Pruitt, Presiding Judge, and a jury, resulting in a verdict of favor of the respondents in the amount of $11,865.

Immediately following the rendition of the verdict in favor of the respondents, in the amount above stated, they made a motion that interest be added at the rate of six per cent per annum from January 30, 1959, this being the date that the appellant made actual entry upon and took possession of the lot of land above referred to for highway purposes. The trial Judge ruled that interest was allowable and judgment was entered for the amount of the verdict plus interest from January 30, 1959 to April 6, 1960, to run until the verdict was paid. The amount of the verdict was paid on April 28, 1960. Timely notice of intention to appeal to this Court from the Order allowing interest was given by the appellant.

We should state that upon an appeal being made by the respondents from the award made by the Board of Condemnation, that the appellant tendered to them the amount of the award as made by said Board. Upon the refusal of the respondents to accept such award, the sum of $7,200 was set aside, pending the outcome of the appeal, and the appellant proceeded with the work of the construction of the highway. Section 33-140 of the Code.

It is the position of the appellant that it was error for the Court, after the rendition of a verdict in favor of the landowners, to find as a matter of fact and law that interest was due on such verdict from the date of the taking, January 30, 1959, the error being that interest is not recoverable under the condemnation statutes, Sections 33-122 et seq., of the 1952 Code of Laws of South Carolina. It is the further contention of the appellant that under Section 33-139 of the Code, the verdict of the jury was final and embraced all damages accrued to the date thereof, which was April 6, 1960.

Article I, Section 17 of the 1895 Constitution of this State, provides that: 'Private property shall not be taken * * * for public use without just compensation being first made therefor.' This section is applicable where private property is taken for public use by the State, or by any of its agencies. The State may delegate to its agencies 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 is to be ascertained. Smith v. City of Greenville, 229 S.C. 252, 92 S.E.2d 639.

In tracing the evolution of the 'just compensation' provision as is contained in Article I, Section 17 of the 1895 Constitution of this State, this Court, in the case of Wilson v. Greenville County, 110 S.C. 321, 96 S.E. 301, 303, said:

'It was decided in this state, as early as 1796, that, in the absence of a constitutional requirement that compensation should be made, the Legislature has the power, in the exercise of the state's right of eminent domain, to take private lands for public highways without compensation. Lindsay v. Commissioners, 2 Bay 38; Stark v. McGowan 1 Nott & McC. 387 ; Patrick v. Commissioners, 4 McCord 541; State v. Dawson, 3 Hill 100. In Lindsay's case, the Court said:

"Every freeholder, holding lands under the state, holds them upon condition of yielding a portion of them, when wanted for the public roads and highways.'

'In State v. Dawson (decided in 1835) this right of the state was reaffirmed, after elaborate consideration by all the judges of the state, and it appears from numerous statutes that the Legislature exercised this right for nearly 200 years, from the days of the lords proprietors until the adoption of the Constitution of 1868. Since that time, we have had of force the constitutional provision that private property shall not be taken for public use without just compensation.

'But the Constitution does not define just compensation, or prescribe how it shall be made, except where the taking is for the use of a private or quasi public corporation. * * *'

In the case of the City of Spartanburg v. Belk's Department Store et al., 199 S.C. 458, 20 S.E.2d 157, 164, it was said:

'It is evident that there must be a final determination of the amount of just compensation to be made, which can only be done under the provisions of the Act of the Legislature, * * *'

It was further said in the cited case, that:

'In our opinion, under the provisions of Article I, Section 17, of the Constitution of 1895, it is left to the Legislature to enact procedure by which private property may be condemned for public use together with the means by which just compensation is to be made. * * *'

It was further held in the cited case that a Circuit Judge has no authority, under the law, to determine the issue of just compensation. In the instant case, the respondents elected to have just compensation determined by the verdict of a jury, as is provided in Sections 33-134 and 33-139 of the Code. These sections are a part of the procedure which the Legislature has enacted, by which private property may be condemned for a public use and just compensation fixed.

Section 33-135 of the Code, relating to condemnation of property by the State Highway Department for roads, provides: 'In assessing compensation and damages for rights of way, only the actual value of the land to be taken therefor and any special damages resulting therefrom shall be considered.' It is manifest that where a landowner's compensation is ascertained in a condemnation proceeding instituted by the appellant herein, because of the taking, it is still referable to Article I, Section 17, of the Constitution, and the appropriate statute prescribing the measure of 'just compensation' thereunder.

After the Board of Condemnation had fixed the amount of compensation and damages to which the respondents were entitled, the State Highway Department went into possession of the condemned property on January 30, 1959. This is the date when the taking occurred and fixed the point at which damages should be assessed because it is the value of the respondents' property taken as of that date which furnishes the measure of compensation and damages. Board of Commissioners of Fairfield County v. Richardson, 122 S.C. 58, 114 S.E. 632, and Howell v. State Highway Department, 167 S.C. 217, 166 S.E. 129. In the last cited case it was held that the method of the final fixing of 'just compensation' is by the verdict of a jury, which arrives at such verdict by finding the right conclusion from a consideration of the facts, and then applying its findings of fact to the law as the trial Judge has given it. Therefore, it was for the jury to determine what was 'just compensation' for the taking of the lands of the respondents for highway purposes. In this connection attention is called to Section 33-139 of the Code, which provides: '* * * The verdict of the jury in such cases shall be final, unless set aside for the reasons for which verdicts may be set aside in other cases. * * *'

It has been held in numerous cases that just compensation includes interest where the property is taken before payment. See the csaes so holding cited in 36 A.L.R.2d beginning at page 451. Assuming, without deciding, that the foregoing rule is applicable in this State, it was the duty of the respondents to call the matter of interest on the award to the attention of the trial Judge and request an instruction upon such so that the jury could, by their verdict, determine what was 'just compensation'. In State v. Deal, 191 Or. 661, 233 P.2d 242, it was held that in condemnation proceedings that the property owners have the duty to call the matter of interest on the award to the attention of the trial court and request an instruction upon such matter, so that the jury, by their verdict, might find a fair cash market value of the property involved plus interest thereon at the legal rate from the day of the taking.

In 36 A.L.R.2d at page 469, it is said:

'A question that has arisen quite frequently is whether or not a court may add interest after the jury has returned a verdict for a gross sum.

'It appears to be well settled that when there is nothing in the record from which it can be definitely ascertained that the jury did not take into consideration the question of interest in fixing the amount of their verdict, even if no instructions in regard to interest were given by the court, the court cannot after verdict add interest to the sum found by the jury. The reason for this rule obviously is that the presumption is that the verdict includes...

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  • Vinson v. Hartley
    • United States
    • Court of Appeals of South Carolina
    • October 14, 1996
    ...upon itself the powers, duties, rights, and privileges of a jury." Id. at 282, 178 S.E. at 829-30. In South Carolina State Hwy. Dep't v. Miller, 237 S.C. 386, 117 S.E.2d 561 (1960), the South Carolina Supreme Court addressed amendment of a verdict by the trial "The judge cannot, under the g......
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    ...Dept. Store, 199 S.C. 458, 20 S.E.2d 157, 167; Cf. Smith v. City of Greenville, 229 S.C. 252, 92 S.E.2d 639; South Carolina State High. Dept. v. Miller, 237 S.C. 386, 117 S.E.2d 561; South Carolina State High. Dept. v. Southern Ry. Co., 239 S.C. 1, 121 S.E.2d 236; Hinson v. A. T. Sistare Co......
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    ...of 1868, the state exercised its right of eminent domain to take private lands without compensation. South Carolina State Highway Dep't v. Miller, 237 S.C. 386, 117 S.E.2d 561 (1960). Currently, both the Fifth Amendment to the U.S. Constitution and Article 1, § 13 of the South Carolina Cons......
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