Wilson v. Greenville County

• Decision Date: 20 July 1918
• Docket Number: 10052.
• Citation: 96 S.E. 301,110 S.C. 321
• Parties: WILSON v. GREENVILLE COUNTY.
• Court: South Carolina Supreme Court

96 S.E. 301

110 S.C. 321

WILSON v. GREENVILLE COUNTY.

No. 10052.

Supreme Court of South Carolina

July 20, 1918

Appeal from Common Pleas Circuit Court of Greenville County.

Proceeding by N. R. Wilson against Greenville County. Judgment for claimant, and defendant appeals. Reversed.

Fraser J., dissenting.

E. M Blythe, of Greenville, for appellant.

Bonham & Price, of Greenville, for respondent.

HYDRICK J.

This is a proceeding to ascertain the compensation to be made for a right of way for a public highway through respondent's lands. The old Buncombe road ran through his tract, which lies near the foot of the mountains, passing near his residence, store, and outbuildings. The county authorities decided to improve the highway, and found it necessary to relocate it, to get a satisfactory grade up the mountains. The new road diverges from the old about half a mile south of his residence, and runs through his tract for the distance of three miles before it enters the old road again, leaving his residence and buildings some distance to the east of the new location. The old road was not closed, but merely discontinued as a public highway.

The statute (section 1932, Civil Code) gives the county authorities "full power and authority to order the laying out and repairing of public roads where necessary, to appoint where bridges or ferries or fords shall be made, to discontinue such roads, bridges and ferries as shall be found useless, and to alter roads so as to make them more useful." Section 1933 gives the commissioners authority to open new roads and to widen or change the location of old roads, where in their judgment such change would be for the material interest of the traveling public. It confers upon them the power to condemn rights of way for such purposes and provides:

" In assessing compensation and damages for rights of way only the actual value of the land to be taken therefor, and any special damages resulting therefrom shall be considered, and due allowance shall be made for any special benefit which may accrue to the owner, including the value of the old road, if the same reverts to such owner."

The county contended that, under these statutes, respondent was not entitled to recover damages resulting to him from the discontinuance of the old road as a public highway, and that the special benefits accruing to him from the improvement should be set off against the value of the land taken, as well as the damages resulting from the taking. The court overruled both these contentions, and, under the instructions given, the jury found the following verdict:

"We find for claimant, for land, $128.00; for damages, $172.00. We find no special benefit."

From the judgment entered, the county appealed, assigning error in the instructions given and in the refusal of instructions requested with regard to ascertaining the compensation, and the elements of benefit and damage to be considered by the jury in determining the amount thereof.

The court erred in its ruling and charge whereby recovery was permitted for damages resulting from the mere discontinuance of the old road as a public highway. Its discontinuance was authorized by section 1932. The owner of land on a public highway has no property or other vested right in the continuance of it as a highway at the public expense. If damage results merely from its abandonment as a public highway, without its being closed, it is damnum absque injuria. Cherry v. Rock Hill, 48 S.C. 553, 26 S.E. 798; Water Co. v. City, 53 S.C. 89, 30 S.E. 699; Garraux v. Greenville, 53 S.C. 575, 31 S.E. 597.

Respondent's attorneys concede that such is the law, and that, if the old road had been merely discontinued as a public highway, without relocating it on respondent's land, he would not be entitled to damages; but they contend that the abandonment of the old and the location of the new road on the same tract of land are so closely connected that they are inseparable. The contention is unsound. The two acts are separate and distinct in fact and in law, and the legal consequences are the same as if the old and the new road had been on the land of different owners.

The court erred, also, in charging respondent's fifth request, to wit:

"It is for the jury alone to say whether the plaintiff has received any special benefits, and if the jury finds that the building of the new road has enhanced the value of all timber lands adjacent to the road, and has caused a general enhancement in values to all property throughout that portion of the county, and has not especially enhanced the value of plaintiff's property, then the jury cannot offset this general benefit against the plaintiff's damages."

The request is somewhat involved in expression, but it speaks of the enhancement of two classes of lands: (1) All timber lands adjacent to the road; and (2) all property throughout that section of the county--and both are referred to as "this general benefit." The error consists in characterizing the enhancement of lands "adjacent" to the road as a general, rather than special, benefit. The word "adjacent" was evidently here used in the sense of "contiguous"; that is, as touching, or lying immediately on, the road.

The enhancement in value of lands through which an improved highway is located is a benefit to the owner. Railway Co. v. Partlow, 5 Rich. 428. The proposition is so well recognized that, in some circumstances, it is made the ground of assessing the owner to pay for it, at least in part. The benefits derived from such improvements are classed as general and special. The general are such as are enjoyed by all people in the community. The special are such as are peculiar to one or more persons by reason of the more favorable location of their lands with reference to the highway. Those who own lands immediately on a highway derive advantages which are not shared by others in the same community. These special benefits usually find concrete expression in a comparatively greater increase in the value of such lands, though that may not be, and often is not, the only special benefit which they enjoy. But certainly, to the extent that the benefits accruing to those who own lands on the highway exceed those of their neighbors whose lands are off the highway, they are special. A benefit that is limited in enjoyment to one or more persons is special to him or them. Therefore the fact that all persons who own lands adjacent to the road enjoy special benefits does not make such benefits general. A special benefit to one tract on the highway does not become general, because a like benefit is enjoyed by many tracts that are also contiguous to the highway. The benefit accruing to each tract is special to it.

The court held that, in so far as it allows or requires the value of the land taken to be offset by special benefits, the statute is unconstitutional, and instructed the jury that they might set off damages against special benefits, but, in any event, respondent was entitled to recover the actual value of the land taken. Respondent insists that this instruction was correct, but, if not, that it was harmless, because the jury found that there were no such benefits. That would be so, if the jury had not been erroneously instructed as to what they might consider special benefits. But for that error, they might have found that respondent did receive enough special benefit to offset the damages found and the value of the land taken. Moreover, as a new trial must be had, because of the other error pointed out, it is important that the point be decided now, so that the next jury may find a verdict under proper instructions.

It was decided in this state, as early as 1796, that, in the absence of a constitutional requirement that compensation should be made, the legislature has the power, in the exercise of the state's right of eminent domain, to take private lands for public highways without compensation. Lindsay v. Commissioners, 2 Bay, 38; McGowen v. Stark, 1 Nott & McC. 387; Patrict v. Commissioners, 4 McCord, 541; State v. Dawson, 3 Hill, 100. In Lindsay's Case, the court said:

"Every freeholder, holding lands under the state, holds them upon condition of yielding a portion of them, when wanted for the public roads and highways."

In State v. Dawson (decided in 1835) this right of the state was reaffirmed, after elaborate consideration by all the judges of the state, and it appears from numerous statutes that the Legislature exercised this right for nearly 200 years, from the days of the lords proprietors until the adoption of the Constitution of 1868. Since that time, we have had of force the constitutional provision that private property shall not be taken for public use without just compensation.

But the Constitution does not define just compensation, or prescribe how it...