Southern Development Land and Golf Co., Ltd. v. South Carolina Public Service Authority

• Decision Date: 14 May 1991
• Docket Number: No. 1689,1689
• Citation: 409 S.E.2d 428,305 S.C. 507
• Court: South Carolina Court of Appeals
• Parties: SOUTHERN DEVELOPMENT LAND AND GOLF COMPANY, LTD., Respondent, v. SOUTH CAROLINA PUBLIC SERVICE AUTHORITY, Appellant. . Heard

Page 428

409 S.E.2d 428

305 S.C. 507

SOUTHERN DEVELOPMENT LAND AND GOLF COMPANY, LTD., Respondent, v. SOUTH CAROLINA PUBLIC SERVICE AUTHORITY, Appellant.

No. 1689.

Court of Appeals of South Carolina.

Heard May 14, 1991.

Decided Aug. 12, 1991.

Certiorari Granted in Part

Dec. 3, 1991.

G. Dana Sinkler, Robertson & Sinkler, and Elizabeth T. Thomas, Sinkler & Boyd, Charleston, Michael W. Battle, Lovelace & Battle, Conway, and John Tiencken, S.C. Public Service Authority, Moncks Corner, for appellant.

Thomas E. McCutchen and Jeter E. Rhodes, Jr., Whaley, McCutchen, Blanton & Rhodes, Columbia, for respondent.

CURETON, Judge:

In this action for an injunction, Southern Development Land and Golf Company, Ltd., (Southern) challenges the right of the South Carolina Public Service Authority (Santee Cooper) to condemn a portion of Southern's property in Horry County for the construction of a high voltage transmission line. The case was referred to the master-in-equity for final judgment with direct appeal to the Supreme Court. The master granted the request for the injunction. He enjoined Santee Cooper from proceeding with the condemnation of the right-of-way and required Santee Cooper to select a different route other than one along the property of Southern. The master also prohibited Santee Cooper from using a pre-existing easement across Southern's property for a portion of the transmission line. Santee Cooper appeals the decision of the master. We reverse in part, vacate in part and remand.

Southern's action is based upon S.C.Code Ann. Section 28-2-470 (Rev.1991). This code section provides that a condemnee's action challenging the condemnor's right to condemn must be brought in a separate proceeding from the condemnation action. Under prior caselaw, such a proceeding was in equity in the court of common pleas. Seabrook v. Carolina Power & Light Co., 159 S.C. 1, 156 S.E. 1 (1930). Since this is an equitable action for an injunction this court may review the findings of fact of the master based upon our own view of the preponderance of the evidence. Taylor v. Hoppin' Johns Inc., --- S.C. ----, 405 S.E.2d 410 (Ct.App.1991).

The master issued the injunction based upon his findings that (1) Santee Cooper was estopped from using the proposed route based upon certain representations of its officers which were relied upon by Southern to its detriment and (2) Santee Cooper clearly abused its discretion in selecting the transmission line route because it did not consider or improperly considered certain criteria. We address these two findings separately.

I.

The master concluded Santee Cooper had no right to condemn a portion of Southern's property for the construction of an electric transmission line because Santee Cooper was equitably estopped due to certain representations made by one of its executive vice-presidents to the president of Southern. We reverse this holding by the master.

Southern relied upon two communications between Joseph Norman, executive vice-president of Santee Cooper, and Kenneth Tomlinson, president of Southern, to establish estoppel. The first communication was a telephone conversation on June 11, 1987. Tomlinson was at the real estate closing on the purchase of a tract of land for a planned golf course and residential development. He called Norman based upon the suggestion of a former chairman of the board of Santee Cooper. It is not clear when he was advised to contact Norman but he did it on the day of closing. During the conversation Tomlinson related to Norman his plans concerning the development and the need to have two existing power lines buried in order to contribute to the aesthetics of the development. The conversation centered on these two existing lines and what Santee Cooper could do to assist Southern. There was no inquiry by Southern regarding Santee Cooper's future expansion plans. The record indicates Santee Cooper had been considering the construction of a high voltage transmission line in the general area to service two area substations. By June of 1987 a proposed route had been chosen by the transmission design department of Santee Cooper. This route included a portion of the property which Southern was in the process of buying. No discussion took place between Norman and Tomlinson about the transmission line. Southern relies upon Norman's silence in asserting estoppel. Tomlinson testified he would not have purchased the property if he had been made aware of Santee Cooper's plans to construct the transmission line along a portion of the property.

The second representation took place in March of 1988. By this time Southern had been made aware of the plans for the transmission line during a meeting between Southern and Santee Cooper representatives concerning the pre-existing lines. Tomlinson testified Norman advised him during March that Santee Cooper had decided to bury the transmission line or move it to another location. Norman denied the representation. Tomlinson also testified Norman repudiated this representation approximately one month later in April. Tomlinson testified he had continued construction on the golf course during this one month interval based upon the representation.

The burden of proof is upon the party who asserts an estoppel. Frady v. Smith, 247 S.C. 353, 147 S.E.2d 412 (1966). The elements of estoppel as to the party estopped are (1) conduct by the party estopped which amounts to a false representation or concealment of material facts or which is calculated to convey the impression that the facts are otherwise than and inconsistent with those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon by the other party; and (3) knowledge, actual or constructive, of the true facts. As related to the party claiming the estoppel, the elements and (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party estopped; and (3) action based thereon of such a character as to change his position prejudicially. Id.; Oswald v. County of Aiken, 281 S.C. 298, 315 S.E.2d 146 (Ct.App.1984).

Southern fails to establish estoppel based upon the representations of Norman. As to Norman's actions in June of 1987, he was the executive vice-president for commercial operations at Santee Cooper. He did not have direct authority over transmission lines which was under the authority of engineering. Norman testified he did not know the transmission line was going to go across the property Tomlinson was purchasing. He made no affirmative representation to Tomlinson about transmission lines in the conversation. He was not asked to make any inquiry concerning future Santee Cooper plans. Southern's argument that Norman made a representation by his silence fails because Southern did not prove Norman had knowledge of the transmission line at the time of the conversation.

Because of such lack of knowledge, we hold Norman's failure to tell Tomlinson about the proposed transmission line does not constitute such conduct as amounts to a false representation or concealment of a material fact. "[M]ere innocent silence or inaction will not work an estoppel." 28 Am.Jur.2d Estoppel And Waiver Section 53, at 667 (1966). In order for a party to be estopped by silence, he must manifest an intent to mislead by his silence. Id.

Moreover, it is clear under the facts of this case that Southern had the means of determining Santee Cooper's plans for future expansion of its system by simply making an appopriate inquiry. Such an inquiry would have been a prudent act given the existence of the pre-existing easement across the property near Little River Neck Road. The easement was a matter of record. Southern's failure to inquire precludes application of the doctrine of estoppel. See Adams v. Adams, 220 S.C. 131, 66 S.E.2d 809 (1951) (true status of property could be ascertained by reference to public records).

As to the second conversation, Southern had already purchased all of the property for its development by the time this representation occurred in March of 1988. Southern has not demonstrated a detrimental change of position in the purchase of the property based upon this purported representation. While Southern may have incurred some construction costs during the one month period between the alleged statement and its repudiation, these costs are not shown in the record and therefore do not establish any basis for the application of the equitable remedy of an injunction.

Based upon this court's review of the record, the master erred in holding Santee Cooper was estopped from condemning a portion of Southern's property.

II.

The master also concluded Santee Cooper should be enjoined from condemning a portion of Southern's property and from using an existing easement on Southern's property because Santee Cooper clearly abused its discretion in the selection of a route for the transmission line. We vacate the decision of the master and remand to him with instructions that he direct Santee Cooper to re-evaluate all the alternate routes in accordance with the criteria outlined below and exercise its discretion in a choice of a route based upon that analysis. See Florida Power Corp. v. Gulf Ridge Council, 385 So.2d 1155, 1157 (Fla.Dist.Ct.App.1980).

Under S.C.Code Ann. Section 28-2-210 (Rev.1991), a condemnor may institute an action for "the acquisition of an interest in any real property necessary for any public purpose." It is not disputed that the transmission line is to be constructed for a public purpose. It is also uncontested that a transmission line is necessary in some location. The dispute involves the location of the line as chosen by Santee Cooper.

The disputed route chosen by Santee Cooper follows the eastern property line of Southern's planned development and then crosses the property near Little River Neck Road. This road...