White v. Johnson

• Decision Date: 18 January 1929
• Docket Number: 12565.
• Citation: 146 S.E. 411,148 S.C. 488
• Parties: WHITE v. JOHNSON et al., Spartanburg County Highway Commission.
• Court: South Carolina Supreme Court

146 S.E. 411

148 S.C. 488

WHITE v. JOHNSON et al., Spartanburg County Highway Commission.

No. 12565.

Supreme Court of South Carolina

January 18, 1929

Suit in the original jurisdiction of the Supreme Court by W. J. White against B. W. Johnson, as Chairman, and others as members, of the Spartanburg County Highway Commission. Injunction refused, and complaint dismissed.

Lyles Daniel & Drummond, of Spartanburg, for plaintiff.

Nicholls Wyche & Byrnes, of Spartanburg, for defendants.

STABLER J.

This is an action brought in the original jurisdiction of the court for injunctive relief.

The facts of the case appear to be as follows: The plaintiff is the owner of a tract of land, in Spartanburg county, fronting for a distance of approximately 3,000 feet on the easterly side of state highway No. 56, leading from Pauline by way of Cross Anchor to the Laurens county line; this road is the property line separating plaintiff's lands from lands owned by Miller Bros. on the opposite side. The Spartanburg highway commission, composed of the defendants in this action, is vested by statute, with authority to locate or relocate and improve the roads of the county, and to condemn property for necessary rights of way and for construction materials. The commission has decided to partially relocate widen, and surface treat highway No. 56, and in so doing proposes to fix the width of the right of way at 66 feet, both where it follows the old highway and where it is relocated. It contemplates, however, building the traveled roadway, between outer side-ditch banks, only 36 feet wide, leaving, as a part of the right of way, uniform adjacent strips of the width of 15 feet on each side of the completed roadbed. The plaintiff is willing, and has agreed, to give whatever land may be necessary for the construction of the traveled roadway at any width determined upon, including the necessary sloping of cuts, toeing out of spilled fills, etc., but has declined the commission's request to convey to it a strip 33 feet wide, measuring from the center of the roadway back into his property, as this would take a strip of his land 15 feet wide not included in the actual traveled way. Of course, the commission expects to obtain a similar strip of 33 feet from the opposite landowners, in order to make up the 66-foot right of way.

Upon the plaintiff's refusal to grant its request, proceedings were instituted by the commission to condemn the 33-foot strip of plaintiff's land. This action was then brought to have the commission permanently enjoined from prosecuting such condemnation.

Among other things, the plaintiff alleged that the carrying out of the proposed plan of the commission would result in inserting a strip of land 15 feet wide between plaintiff's property and the highway, completely shutting him off and destroying any road frontage; that the additional 15-foot strip is not reasonably essential, now or in prospective necessity, to the completion of the relocation, construction, and maintenance of the road, and that through the taking of his property by the defendants plaintiff will suffer irreparable injury.

By way of return, the defendants demurred to the complaint, on the ground that it did not, in the several particulars enumerated, state facts sufficient to constitute a cause of action. They also answered, alleging that a right of way of the width of 66 feet was necessary for the proper construction, operation, control, and maintenance of the proposed highway, pleading various reasons and facts in support of this contention, as set out in an affidavit of Charles H. Moorefield, state highway engineer, attached to the answer and made a part of it, and to which we shall more specifically hereafter refer.

The plaintiff demurred to the answer and supporting affidavit on the ground that, for the various reasons alleged in the demurrer, the facts stated did not constitute a defense or legally justify the condemnation of the "excess" strip of...