Webb v. Greenwood County

• Court: South Carolina Supreme Court
• Writing for the Court: G. BADGER BAKER; Greneker; STUKES
• Citation: Webb v. Greenwood County, 229 S.C. 267, 92 S.E.2d 688 (S.C. 1956)
• Decision Date: 01 May 1956
• Docket Number: No. 17152,17152
• Parties: John S. WEBB, Appellant, v. GREENWOOD COUNTY, Respondent.

Page 688

92 S.E.2d 688

229 S.C. 267

John S. WEBB, Appellant, v. GREENWOOD COUNTY, Respondent.

No. 17152.

Supreme Court of South Carolina.

May 1, 1956.

Pope & Greene, Newberry, Griffith, Coleman & Griffith, Saluda, for appellant.

Grier, McDonald Todd & Burns, G. P. Callison, Greenwood, for respondent.

G. BADGER BAKER, Acting Associate Justice

Plaintiff-appellant is the owner of two tracts of land, bordering Saluda River in Saluda County. The two tracts are used for farming, growing timber and pasturage purposes. In 1940, the County of Greenwood constructed a hydroelectric plant, about five miles upstream, at a point commonly known as Buzzard's Roost, and as a necessary reservior of water supply the County created Lake Greenwood.

In May of 1952, appellant brought this action against the respondent, County of Greenwood, alleging an unlawful use of Saluda River by (1), the discharge of unusual quantities of water at unexpected times and irregular intervals (2), the flooding of his lands (3), the creation of dangerous and hazardous conditions for his cattle, and (4), the deposits, by the flood waters, of injurious silt and mud upon his fields, which has materially reduced the value of his property for agriculture and pasturage, thereby taking his property for public use without just compensation being first paid therefor.

Respondent, in its answers, admitted the construction of the hydroelectric plant, the creation of Lake Greenwood, but denied that appellant's lands have been damaged by reason of its operation of the project, and alleged three 'immunity defenses': a license from the Federal Power Commission, navigability of Saluda River, and acts of God. The fifth defense in the answer 'specifically pleads the Statute of Limitations as a bar to this action for any acts or damages occurring more than six (6) years prior to the commencement of this action.' Prior to the trial of the case respondent, on motion, was permitted to amend its fifth defense so as to plead the Statute 'as a bar to any acts or damages of any kind or nature,' which, in effect, is identical in substance to its original plea; and, further, respondent was permitted to add a sixth defense of the Statute of Limitations, which is nothing more than a reassertion of the plea as originally alleged and amended. Very probably the amendment was urged as a measure of precaution rather than of necessity from any deficiency in pleading, and, of course, properly allowed.

At the trial of the case appellant, and his witnesses, described the condition of his lands prior to the erection of the hydroelectric structure, the depreciated condition thereafter, and the elements of reduced value comprising just compensation, the relief demanded. There is present the requisite evidence of the release of the impounded waters at irregular intervals, the force thereof, the overflow of the banks of Saluda River, the flooding of appellant's lands and the deposit of damaging mud and silt. Discussion of the evidence in detail or effect is unnecessary since the question or questions presented on appeal are legal and not factual.

When appellant rested his case, respondent moved for a nonsuit, upon several grounds, which motion was granted on the basis that appellant's cause of action is for a permanent taking, resulting from ordinary day by day operations of the project, and is barred by the Statute of Limitations since the taking was effective several years prior to 1946.

The trial Judge, Honorable T. B. Greneker, at the time of ordering the nonsuit, stated he would prepare and file a written order containing his reasons for his decision on the motion. A comprehensive order was thereafter issued, from which this appeal is taken, although in point of time the appeal relates back to time of trial.

Judge Greneker discusses the various problems or issues presented in the case and bases his conclusion upon the application of the Statute of Limitations on the following points:

(1) The hyroelectric installation, its structures, dam and reservoir, is permanent, open and apparent, authorized and directed by law, and not subject to abatement;

(2) Appellant's claim is for consequential damages constituting one cause of action for a permanent taking of his lands, without any element of improper or negligent operations, or abatable nuisance, but is the result of ordinary and normal functional performance of the project;

(3) South Carolina, in its construction of Article I, § 17, Constitution of 1895, does not recognize a distinction between 'taking' and 'damaging,' but holds that 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 were actually appropriated, citing Wilson v. Greenville County, 110 S.C. 321, 96 S.E. 301; White v. Southern Ry. Co., 142 S.C. 284, 140 S.E. 560, 57 A.L.R. 634; Henderson v. City of Greenwood, 172 S.C. 16, 172 S.E. 689; Gasque v. Town of Conway, 194 S.C. 15, 8 S.E.2d 871;

(4) The Statute of Limitations is a statute of repose, affects the remedy, not the right, and its application is not in contravention of Article I, § 17, and therefore is operative against a consequential taking;

(5) Our broad interpretation of a 'taking' affects the time when the Statute begins to run, 'for the obvious reason that a 'taking' occurs when a legal remedy is available,' and since the cause of action arises when the injury, damage or taking occurs, the Statute is operative from the time the permanency and extent thereof is, or should be, known to the landowner;

(6) The application of the Statute is not affected by the permanency of the taking, whether it is permanent or temporary;

(7) However, temporary...