Tuomey Hospital v. City of Sumter

• Decision Date: 13 February 1964
• Docket Number: No. 18170,18170
• Court: South Carolina Supreme Court
• Parties: The TUOMEY HOSPITAL, Respondent, v. The CITY OF SUMTER, Clifton G. Brown, as Mayor, and James Cuttino, James D. Harrelson, M. D. Mazursky and Robert D. Palmer, as Councilmen, Constituting the City Council of Said City of Sumter, Appellants.

Page 744

134 S.E.2d 744

243 S.C. 544

The TUOMEY HOSPITAL, Respondent, v. The CITY OF SUMTER, Clifton G. Brown, as Mayor, and James Cuttino, James D. Harrelson, M. D. Mazursky and Robert D Palmer, as Councilmen, Constituting the City Council of Said City of Sumter, Appellants.

No. 18170.

Supreme Court of South Carolina.

Feb. 13, 1964.

C. M. Edmunds, Sumter, for appellants.

John D. Lee, Jr., R. Kirk McLeod, Sumter, for respondent.

TAYLOR, Chief Justice.

Respondent commenced this action seeking an injunction against Appellants to restrain them from condemning lands owned by Respondent in the City of Sumter. The Honorable James Hugh McFaddin issued a rule to show cause why Appellants should not be enjoined and restrained from proceeding with the condemnation proceeding.

Appellants in due time demurred to the complaint and filed its answer and return. After hearing, Judge McFaddin, by his Order of May 20, 1963, overruled the demurrer and granted a temporary injunction pendente lite.

The complaint alleges that Respondent, The Tuomey Hospital, is an eleemosynary corporation created and existing under the laws of this State to conduct, operate and maintain a charitable hospital under and in accordance with the terms and provisions of the Will of the late Timothy J. Tuomey and that said corporation has been conducting such nonprofit hospital for nearly 50 years. Respondent owns the property between Calhoun and Canal Streets on Sumter Street and the entire plant of said hospital is located thereon. The City of Sumter, a municipal corporation, proposes to acquire by condemnation a strip of land ranging from 10-14 feet in width and extending the entire block of Sumter Street between Calhoun and Canal Streets as a right of way for the purpose of widening Sumter Street. Respondent further alleges that the action of Appellants in commencing such condemnation proceedings is arbitrary, capricious, dictatorial, unreasonable and entirely unnecessary and is in violation of the statute law of this State in that as the property sought to be condemned is devoted to a public use and the City of Sumter has no power of condemnation of the same; further that the proposed widening of Sumter Street would cause Respondent irreparable damage in the proper conduct and operation of its hospital facilities as the taking of the property in question would result in the street being located too close to Respondent's new hospital building completed in early 1963. The complaint also alleges that Respondent has no adequate remedy at law and cannot be compensated in damages and that unless Appellants are restrained and enjoined from condemning its property, Respondent will suffer irreparable injury and damage.

Appellants demurred to the complaint on the ground that it contains no facts or allegations sufficient to state a cause of action in that it does not contain factual allegations showing any gross arbitrary or capricious action on the part of the governing body of the City of Sumter, neither does it allege bad faith or abuse of discretion on the part of Appellants in commencing the condemnation proceedings; further that Respondent has an adequate remedy at law; that the allegation in the complaint to the effect that the land of Respondent is devoted to a public use is merely a legal conclusion and that Appellants have statutory authority to condemn Respondent's property.

The power of eminent domain is an inherent and necessary attribute of the State, Paris Mountain Water Co. v. City of Greenville, 110 S.C. 36, 96 S.E. 545. Although municipal corporations have no inherent right of eminent domain, the State, through the Legislature, may delegate the right to exercise the power of eminent domain to a municipal corporation, Smith v. City of Greenville, 229 S.C. 252, 92 S.E.2d 639. The legislative grant of the power of eminent domain must be strictly construed for the protection of property rights, Paris Mountain Water Co. v. City of Greenville, 105 S.C. 180, 89 S.E. 225, 669.

When the right to institute condemnation proceedings is contested in this State, the proper remedy is for the landowner to bring an action in the Court of Common Pleas, as was done here, in order for the Court, in the exercise of its chancery power, to determine such right. Seabrook v. Carolina Power and Light Co. et al., 159 S.C. 1, 156 S.E. 1; Greenwood County v. Watkins, 196 S.C. 51, 12 S.E.2d 545; Sease v. City of Spartanburg, 242 S.C. 520, 131 S.E.2d 683.

The general rule, as stated in 29 C.J.S. Eminent Domain § 74, p. 861, is that '* * * property already devoted to a public use cannot be taken for another public use which will totally destroy or materially impair or interfere with the former use, unless the intention of the legislature that it should be so taken has been manifested in express terms or by necessary implication, mere general authority to exercise the power of eminent domain being in such case insufficient; * * *.

'The rule that power to take property devoted to a public use must be conferred expressly or by necessary implication applies only where the second use will destroy or injure the use to which the land was originally appropriated. So, in the absence of some statutory provision expressly or by implication forbidding it, property devoted to one public use may under general statutory authority be taken for another public use, where the taking will not materially impair or interfere with or is not inconsistent with the use already existing, and is not detrimental to the public. It is not material that some inconvenience may result to the prior occupant, if the conditions are such that the two uses can stand together.'

In Riley v. South Carolina State Highway Department, 238 S.C. 19, 118 S.E.2d 809, it was pointed out that the rule generally stated above applies to a municipality and that the general grant of the power of eminent domain to a municipality is usually insufficient to authorize taking of land already devoted to a public use as 'such authority must be given by the Legislature in express terms or by...