Spradley v. South Carolina State Highway Dept., 19260

• Decision Date: 29 July 1971
• Docket Number: No. 19260,19260
• Court: South Carolina Supreme Court
• Parties: Lizzie Mae SPRADLEY, Respondent, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant.

Page 735

182 S.E.2d 735

256 S.C. 431

Lizzie Mae SPRADLEY, Respondent, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant.

No. 19260.

Supreme Court of South Carolina.

July 29, 1971.

Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. M. J. Bowen, Jr., Columbia, and Jones, Long, Barfield & Bouknight, Lexington, for appellant.

E. Pickens Rish, Lexington, for respondent.

MOSS, Chief Justice.

Lizzie Mae Spradley, the respondent herein, brought this action against the South Carolina State Highway Department, the appellant herein, under Article I, Section 17, of the 1895 Constitution of this State, to recover just compensation for the taking and damaging of her real property alleged to have been caused by the concentrated dumping and spilling of surface water thereon.

The respondent alleges in her complaint that in the fall of 1966 the appellant in the course of the widening of U.S. Highway No. 321 did certain construction and repair work to said highway in front of and adjacent to her property. It is further alleged that prior to said repair and construction work the surface water which had gathered and accumulated upon the said road had emptied into a proper drainage without flooding, spilling or accumulating upon the property owned by her. It is then alleged that the appellant in making the above repairs and improvements failed to provide for the proper drainage of water from said highway and caused surface water to accumulate and dumped and spilled in concentrated form upon her property thereby damaging same.

The defendant denied that the damage alleged to have been sustained by the respondent was caused by the widening of U.S. Highway No. 321. It further alleged that the highway in front of the property of the respondent was properly repaired and constructed with adequate facilities for the drainage of water therefrom and denied any liability to the respondent.

This case came on to trial before the Honorable James Hugh McFaddin, Presiding Judge, and a jury at the 1968 October Term of Court of Common Pleas for Lexington County. At the appropriate stages of the trial the appellant moved for a nonsuit and directed verdict. These motions were refused and the case submitted to the jury resulting in a judgment in favor of the respondent. The appellant then moved for judgment Non obstance veredicto and, in the alternative, for a new trial. Such motions were refused and this appeal followed.

The exceptions of the appellant, preserved by the foregoing motions, raise the question of whether the trial judge should have ruled that there was insufficient evidence of any act or acts on the part of the appellant, in connection with the repair or improvement to the highway in question, which caused damage to or the taking of the property of the respondent, within the purview of Article I, Section 17 of the 1895 Constitution of this State.

The Constitution of this State, Article I, Section 17, provides, that '* * * private property shall not be taken * * * for public use without just compensation being first made therefor.' In the construction of this Article of our Constitution, we do not recognize a distinction between 'taking' and 'damaging'. A 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 was actually appropriated. Webb v. Greenwood County, 229 S.C. 267, 92 S.E.2d 688; Early et al. v. South Carolina Public Service Authority, 228 S.C. 392, 90 S.E.2d 472; Chick Springs Water Company v. State Highway Department, 159 S.C. 481, 157 S.E. 842, and Milhous v. State Highway Department, 194 S.C. 33, 8 S.E.2d 852, 128 A.L.R. 1186.

The constitutional prohibition against taking private property for public use without just compensation must have been intended to protect all the essential elements of ownership which makes property valuable, including the right of user and enjoyment. Accordingly, it has been held that the erection and maintenance of a public work under lawful authority in such a way as to destroy the beneficial use of adjacent land or property may constitute a taking, although there is no physical invasion of the property itself. Gasque v. Town of Conway, 194 S.C. 15, 8 S.E.2d 871, Collins v. City of Greenville, South Carolina, 233 S.C. 506, 105 S.E.2d 704, and Owens v. South Carolina State Highway Department, 239 S.C. 44, 121 S.E.2d 240.

In Baynham v. State Hwy. Dept., 181 S.C. 435, 187 S.E. 528, it was held that when a public agency acting under authority of statute uses land which it has lawfully acquired for public purposes in such a way that neighboring real estate, belonging to a private owner, is actually invaded by superinduced addition of water so as effectually to destroy or impair its usefulness, there is a taking within the meaning of the constitution. It was also held in the cited case that it was for the jury to determine whether or not the construction by the highway department was 'the real factor, or...