Young v. Wiggins, 17934
| Citation | 126 S.E.2d 360,240 S.C. 426 |
| Decision Date | 15 June 1962 |
| Docket Number | No. 17934,17934 |
| Parties | Foster H. YOUNG and Mrs. Hessie B McLaughlin, Individually and as Trustee of the Estate of S. T. Burch, Respondents, v. J. B. WIGGINS, A. L. Manwiller, E. J. Ratliff, Foster Jeffords, and Edward L. Young, Individually and as directors and officers of Ebenezer Community Watershed Conservation District; and W. D. Boling, F. E. Weaver, T. W. Williamson, Keith Jordan and J. B. Cook, as officers and supervisors of Florence Soil Conservation District, Appellants. |
| Court | United States State Supreme Court of South Carolina |
Dusenbury, Dusenbury & McKenzie, Florence, for appellants.
McEachin, Townsend & Zeigler, Willcox, Hardee, Houck & Palmer, Florence, for respondents.
This is an action to enjoin the directors of Ebenezer Community Watershed District from condemning certain lands belonging to plaintiffs. After a full hearing, an injunction was granted by the circuit court, upon the ground that the proposed taking was not for a public use. This appeal by the directors of the district followed.
The district was organized as a subdistrict of the Florence Soil Conservation District under a special act of the General Assembly, No. 1085 for 1958. 50 St. at Large, p. 2344. The circuit court found that the procedures required for the organization of the district, including certain findings by the board of supervisors of the Florence Soil Conservation District, a referendum, and the election of a board of directors for the district, had been complied with.
Under the terms of the Act, the approval of the board of supervisors of the Soil Conservation District was required before the board of directors of the Watershed District could lawfully institute condemnation proceedings. A certificate of approval was circulated among the members of the board and was signed by each member at his residence or place of business. Condemnation notices were issued and served on the basis of this certificate. The circuit court held that this 'individual action of the members of the board of supervisors was not official and could not constitute the approval contemplated by Act No. 1085 for commencement of condemnation proceedings.' Recognizing that this deficiency might be cured and the litigation renewed, the court chose to rest the injunction on its finding of no public use, thereby resolving the controversy on the merits.
The conclusion that there was no effective approval of condemnation by the board of supervisors is not challenged on this appeal. Therefore, the law of this case establishes that the condemnation proceedings were prematurely instituted. However, we will not dismiss the appeal on this ground, without reviewing the decision of the circuit court on the issue of whether the proposed taking is for public use.
The Act authorized the organization of the district 'for the purpose of developing and executing plans and programs relating to any phase of conservation of water, water usage, flood prevention, flood control, erosion prevention and control of erosion, flood-water and sediment damages.'
The Act specified that the district should include 'all lands abounding on the Run of Middle Swamp from, but not including, the property of J. W. Parker, Jr., on the upper end, and extending to, but not including, property of J. W. Parker, Sr., on the lower end.'
This area is devoted primarily to agriculture. However, it is near the City of Florence and the testimony establishes that its potential value for suburban residential development far exceeds its agricultural value.
Prior to the passage of the Act, certain landowners, including Edward L. Young and Jesse B. Wiggins, became interested in creating a large lake by damming up Middle Swamp. They enlisted the assitance of the personnel of the soil conservation service, and undertook to secure the cooperation of other affected landowners. Apparently, most of these readily consented to the flooding of their swamp lands, and agreed to cooperate in a real estate development, by which it was proposed to finance the project. So far as practicable, the area of the proposed lake was restricted to exclude objecting landowners. Thus restricted, the proposed lake would flood some 250 acres, including about twenty acres belonging to the plaintiff, F. H. Young, hereafter referred to as Dr. Young, on the upper or western end, and about ten acres belonging to the plaintiff, Hessie B. McLaughlin, as trustee, on the lower or eastern end.
In June, 1957, E. L. Young and J. B. Wiggins, accompanied by Albert Cole of the soil conservation service, approached Dr. Young in an effort to enlist his cooperation in the lake project. Its value to the landowners as a source of water for irrigation and from the standpoint of real estate development was put forward. When he dissented, it was suggested that legislation granting the power of condemnation would be sought 'if the landowners involved would not cooperate.'
After the organization of the district, Messrs. Bernard D. Dusenbury and Richard G. Dusenbury, acting as attorneys for the directors and interested landowners, made a further effort to obtain Dr. Young's participation in the lake project. Alternative proposals were made in a letter dated May 16, 1959, both of which featured the organization of a 'development corporation, probably wholly owned by the participating landowners.' It was estimated that lake front lots could be sold for over one-half million dollars, which would far exceed the total cost of development. It was suggested that Dr. Young either 'participate fully with all of the other landowners;' or grant necessary easements for the flooding of his land and the construction of a road 'approximately 250 to 300 feet behind the flood line,' and accept conforming restrictions on the use of his property 'to apply only if and when (he) should ever decide to subdivide (his) land or to sell it.'
When this offer was rejected by Dr. Young and when Mrs. McLaughlin refused to participate, application was made to the board of supervisors of the soil conservation district for approval of condemnation. This petition stated that all of the property owners in the district, except Dr. Young and the heirs of the Sebe Burch estate (represented by Mrs. McLaughlin, as trustee) had agreed 'that it would be in the best interest of all concerned' to construct the proposed lake; that all possible means of acquiring 'permissive easements' as to the required Young and Burch lands had been exhausted; and that the 'aims and objectives' of the district could be accomplished only by invoking the power of eminent domain.
The findings of the board of supervisors, in approving the organization of the district, were, substantially in the language of the Act, as follows:
'(a) That there is a need in the interest of the public health, safety and welfare, for the creation of the district sought in the within petition, * * *.
'(b) The operation of said district within the proposed boundaries with the power conferred upon such districts by law is administratively practicable and feasible.'
The testimony on which these findings were based related principally to the feasibility of establishing the lake and the benefits which would accrue to...
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