Timmons v. South Carolina Tricentennial Commission, No. 19074

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtLITTLEJOHN; MOSS
Docket NumberNo. 19074
PartiesAnnie Mary TIMMONS, Appellant, v. The SOUTH CAROLINA TRICENTENNIAL COMMISSION and Daniel R. McLeod, as AttorneyGeneral for the State of South Carolina, Respondents. The SOUTH CAROLINA TRICENTENNIAL COMMISSION and Daniel R. McLeod, as AttorneyGeneral for the State of South Carolina, Respondents, v. Annie Mary TIMMONS and Home Federal Savings and Loan Association, of WhomAnnie Mary Timmons is, Appellant.
Decision Date07 July 1970

Page 805

175 S.E.2d 805
254 S.C. 378
Annie Mary TIMMONS, Appellant,
v.
The SOUTH CAROLINA TRICENTENNIAL COMMISSION and Daniel R.
McLeod, as AttorneyGeneral for the State of South
Carolina, Respondents.
The SOUTH CAROLINA TRICENTENNIAL COMMISSION and Daniel R.
McLeod, as AttorneyGeneral for the State of South
Carolina, Respondents,
v.
Annie Mary TIMMONS and Home Federal Savings and Loan
Association, of WhomAnnie Mary Timmons is, Appellant.
No. 19074.
Supreme Court of South Carolina.
July 7, 1970.

[254 S.C. 383]

Page 808

N. Welch Morrisette, Jr., William H. Gibbes, of Berry, Lightsey, Gibbes & Bowers, Arthur T. Cole, Columbia, for appellant.

Augustus T. Graydon, of Graydon & Suber, Atty. Gen., Daniel R. McLeod, Asst. Atty. Gen., Everett N. [254 S.C. 384] Brandon, Columbia, for respondents.

[254 S.C. 385] LITTLEJOHN, Justice.

The Souh Carolina Tricentennial Commission, a State agency created by the General Assembly for the purpose of commemorating the 300th birthday of the State, brought an action against Annie Mary Timmons, a landowner, for the purpose of acquiring through the power of eminent domain a parcel of her real estate for use incident to the tricentennial celebration. In this case she is represented by Mr. Arthur T. Cole. We refer to this action as the condemnation proceeding.

Annie Mary Timmons brought an action against South Carolina Tricentennial Commission and against Daniel R. McLeod, as attorney general, under the Uniform Declaratory Judgment Act, seeking an injunction preventing acquisition of the property. In this case she is represented by Mr. N.

Page 809

Welch Morrisette, Jr. and Messrs. Berry, Lightsey, Gibbes and Bowers. We refer to this action as the injunction proceeding.

[254 S.C. 386] The injunction proceeding was tried in equity before Judge Grimball, resident judge of the Fifth Judicial Circuit, and resulted unfavorably to the landowner. Thereafter, the condemnation proceeding was tried before Judge Timmerman and a jury, resulting in a verdict for $325,000 in favor of the landowner.

The landowner, through respective counsel, has appealed in each case. Such appeals were argued together before this court and are ripe for our determination. We consider first,

THE INJUNCTION PROCEEDING

We have carefully studied each of the questions raised by counsel for the appellant as relates to whether an injunction should have been issued. We observe that the same questions were clearly presented to Judge Grimball, and from a study of his order we conclude that he correctly set forth and disposed of all of the issues raised on this appeal. The order of Judge Grimball shall be printed as the opinion of this court, except that paragraph 4 at folio 531 and subsequent paragraphs of the order (relating to matters of no concern on this appeal) will not be included.

ORDER OF JUDGE GRIMBALL

Annie Mary Timmons is the owner of a lot in the block of land in which the Columbia Exhibit Center is being erected for South Carolina's Tricentennial celebration in 1970. All other properties in the block have been acquired by The South Carolina Tricentennial Commission by purchase. In May of 1969, a joint resolution of the General Assembly gave to The South Carolina Tricentennial Commission the power of eminent domain.

On June 6, 1969, a suit was filed in the clerk's office of this Court seeking to condemn this lot of Miss Timmons. On June 10, 1969, pursuant to a verified complaint presented to the Court on behalf of Miss Timmons, a temporary injunction was granted restraining The South Carolina Tricentennial Commission from proceeding in its [254 S.C. 387] condemnation action. A hearing on the issue raised in the landowner's suit (No. 3650) was set for August 13, but the hearing on the merits in that suit was delayed until August 19 when the landowner sought a continuation of the temporary injunction.

The hearing on August 19 was confined to the issues raised in the landowner's complaint in which she seeks a permanent injunction enjoining any proceedings to condemn her property. Upon a petition from Commission's counsel, this Court modified that temporary injunction to allow the Commission to file certain motions of a pre-trial nature in the condemnation action; those matters are not for consideration at this time.

The Court will, however, comment hereinafter on the Commission's motion for consolidation of the two proceedings without making a final ruling on that motion. That matter, along with other issues not raised in the landowner's proceedings, will be heard at a time set out in this order.

The landowner in her proceeding is testing the validity of the condemnation itself and the enactments under which the condemnation proceedings have been instituted.

The Commission's counsel has stated the points raised by the landowner in that proceeding as follows:

1. There is no necessity for the condemnation;

2. The condemnation does not result in a permanent taking of the property;

3. The taking does not involve a public use of the property as required in eminent domain proceedings;

4. The statutes are discriminatory and deny the landowner due process and the equal protection of the laws;

Page 810

5. The legislative enactments under which the Commission is proceeding are special legislation, prohibited by Article III, Section 34, subsection 9 of the South Carolina Constitution;

6. The legislative enactments do not grant express authority for the condemnation and are defective.

[254 S.C. 388] At the hearing, the landowner testified as to her acquisition and development of the property, but none of her testimony related to the issues raised by her pleadings except the statement that the tract had no historical significance. Her counsel relied on the enactments creating The Tricentennial Commission and defining its powers and two letters relating to the enactment of the measure giving the Commission the power of eminent domain.

The Commission's witnesses testified as to the historical and architectural importance of the house and surrounding block, the proposed use of the property as the site for the Columbia exhibit center during The Tricentennial celebration, the projected use of the property after 1970 and the permanent character of the taking. In connection with the latter testimony, the contract between the Commission and HUD and the enactment by the General Assembly of South Carolina in regard to the use of the property were introduced. Other exhibits relating to this property, its acquisition and use were placed in evidence.

I will now consider and rule on the various points raised by the pleadings and at the hearing. The testimony and exhibits relate principally to the necessity for the taking, the permanent nature of the taking and the public use of the condemned property. A letter offering certain testimony relating to the issue of special legislation was received in the Court subsequent to the hearing and will be considered in that part of this Order.

The six issues will be dealt with in the Order set out above.

1 The necessity for the Condemnation.

In the law of eminent domain, it is well established that there must be a necessity for the taking, but this does not mean an absolute necessity, but rather a reasonable necessity. Seabrook v. Carolina Power & Light Co., 159 S.C. 1, 156 S.E. 1. Our Supreme Court said in White v. Johnson, 148 S.C. 488, 146 S.E. 411, 412:

[254 S.C. 389] 'It is well established law that necessity, as well as public use, must always exist in order to warrant the taking of lands, through condemnation, by a grantee of the power of eminent domain. The delegation of the right to exercise that power carries with it the implied condition that it shall be exercised only to the extent found necessary.

'As to what is meant, in this connection, by the term 'necessity', we find the following in 80 C.J., at page 630: 'Necessity * * * does not mean an absolute but only a reasonable necessity, such as would combine the greatest benefit to the public with the least inconvenience and expense to the condemning party and the property owner consistent with each benefit * * *'.'

This block will be used as a site for a historical exhibit during 1970 and thereafter as a public park or garden and historic site. The block is the site of the Hampton-Preston house, an antebellum mansion in which the Hampton and Preston families lived prior to and during the Civil War. The house is being restored, and the gardens which were laid out over the entire block are to be replanted after the Tricentennial celebration.

The validity of condemnation for parks, public squares, historical sites or monuments has been established in many instances. The landowner complains that her properties are to be used for parking purposes, but that, too, is a recognized use for which lands can be condemned. Condemnations for ornamental or beautification

Page 811

purposes are recognized as necessary uses in several jurisdictions.

This use is clearly appropriate and fitting for the purposes for which the land is being condemned, and that is the test on the issue of necessity. This determination has been made by the Commission, and, unless the landowner can show that acquisition of this land is not reasonably necessary and is an abuse of discretion, the Court will not interfere.

[254 S.C. 390] The record before me establishes that the acquisition of this parcel (as well as all other parcels in this block), is reasonably necessary and in the interest of the public.

This taking is therefore necessary within the meaning of the law of eminent domain, and there is no basis for enjoining the condemnation on this ground.

2. The Permanent Nature of the Taking.

Landowner contends that the taking is not permanent because The South Carolina Tricentennial Commission will terminate on January 1, 1972, under the terms of the enactments by which it has been created by the General Assembly.

The Commission has been...

To continue reading

Request your trial
59 practice notes
  • Thompson ex rel. Harvey v. Cisson Const., No. 4339.
    • United States
    • Court of Appeals of South Carolina
    • February 1, 2008
    ...S.C. Dep't of Health & Envtl. Control, 351 S.C. 97, 102, 567 S.E.2d 907, 910 (Ct.App.2002); see also Timmons v. S.C. Tricentennial Comm'n, 254 S.C. 378, 402, 175 S.E.2d 805, 817 (1970) (observing that where the language of the statute is clear and explicit, the court cannot rewrite the stat......
  • Bass v. Isochem, No. 3996.
    • United States
    • United States State Supreme Court of South Carolina
    • June 6, 2005
    ...Dep't of Health & Envtl. Control, 351 S.C. 97, 567 S.E.2d 907 (Ct.App.2002); see also Timmons v. South Carolina Tricentennial Comm'n, 254 S.C. 378, 175 S.E.2d 805 (1970) (observing that where the language of the statute is clear and explicit, the court cannot rewrite the statute and inject ......
  • State v. Brannon, No. 4428.
    • United States
    • Court of Appeals of South Carolina
    • July 18, 2008
    ...S.C. Dep't of Health & Envtl. Control, 351 S.C. 97, 102, 567 S.E.2d 907, 910 (Ct.App.2002); see also Timmons v. S.C. Tricentennial Comm'n, 254 S.C. 378, 402, 175 S.E.2d 805, 817 (1970) (observing that where the language of the statute is clear and explicit, the court cannot rewrite the stat......
  • Wright v. Craft, No. 4181.
    • United States
    • Court of Appeals of South Carolina
    • November 27, 2006
    ...Am. Fed. Bank, FSB v. No. One Main Joint Venture, 321 S.C. 169, 174, 467 S.E.2d 439, 442 (1996); Timmons v. S.C. Tricentennial Comm'n., 254 S.C. 378, 405, 175 S.E.2d 805, 819 (1970); Powers v. Temple, 250 S.C. 149, 162, 156 S.E.2d 759, 765 The trial court admitted a number of photographs of......
  • Request a trial to view additional results
59 cases
  • Thompson ex rel. Harvey v. Cisson Const., No. 4339.
    • United States
    • Court of Appeals of South Carolina
    • February 1, 2008
    ...S.C. Dep't of Health & Envtl. Control, 351 S.C. 97, 102, 567 S.E.2d 907, 910 (Ct.App.2002); see also Timmons v. S.C. Tricentennial Comm'n, 254 S.C. 378, 402, 175 S.E.2d 805, 817 (1970) (observing that where the language of the statute is clear and explicit, the court cannot rewrite the stat......
  • Bass v. Isochem, No. 3996.
    • United States
    • United States State Supreme Court of South Carolina
    • June 6, 2005
    ...Dep't of Health & Envtl. Control, 351 S.C. 97, 567 S.E.2d 907 (Ct.App.2002); see also Timmons v. South Carolina Tricentennial Comm'n, 254 S.C. 378, 175 S.E.2d 805 (1970) (observing that where the language of the statute is clear and explicit, the court cannot rewrite the statute and inject ......
  • State v. Brannon, No. 4428.
    • United States
    • Court of Appeals of South Carolina
    • July 18, 2008
    ...S.C. Dep't of Health & Envtl. Control, 351 S.C. 97, 102, 567 S.E.2d 907, 910 (Ct.App.2002); see also Timmons v. S.C. Tricentennial Comm'n, 254 S.C. 378, 402, 175 S.E.2d 805, 817 (1970) (observing that where the language of the statute is clear and explicit, the court cannot rewrite the stat......
  • Wright v. Craft, No. 4181.
    • United States
    • Court of Appeals of South Carolina
    • November 27, 2006
    ...Am. Fed. Bank, FSB v. No. One Main Joint Venture, 321 S.C. 169, 174, 467 S.E.2d 439, 442 (1996); Timmons v. S.C. Tricentennial Comm'n., 254 S.C. 378, 405, 175 S.E.2d 805, 819 (1970); Powers v. Temple, 250 S.C. 149, 162, 156 S.E.2d 759, 765 The trial court admitted a number of photographs of......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT