S.C. STATE HIGHWAY DEPT. v. MOODY

Citation Codes

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Docket Number

20248

Attorney(S)

Messrs. Daniel R. McLeod, Atty. Gen., and Richard B. Kale, Jr., Asst. Atty. Gen., of Columbia, and Miley and Macaulay, of Walhalla, for Appellant, cite: As to the Trial Court's having erred in permitting the purported cost to cure the alleged damage done to the Landowners' pond during construction of the improvement, which was then in progress, to be considered as a proper element of damages in the determination of just compensation in the condemnation proceeding: Section 33-121, et seq., Code of Laws of South Carolina (1962), as amended; 29 C.J.S., Eminent Domain, § 161, 48 Hun. 618, 2 N.Y.S. 34; Mills on Eminent Domain, 2d 420; 199 S.C. 112, 18 S.E.2d 663; 29 C.J.S. Eminent Domain, § 161, at 696; 4A Nichols on Eminent Domain, Consequential Damages, §§ 14, 245 [2]; 256 S.C. 431, 182 S.E.2d 735; 244 S.C. 237, 136 S.E.2d 306; 2 S.W.2d 543; 131 S.W.2d 803; 241 N.C. 350, 85 S.E.2d 392; 254 N.C. 337, 118 S.E.2d 918. As to the Trial Court's having erred in overruling the Highway Department's motions for mistrial based on evidence introduced by counsel for Landowners and arguments made to the jury as to an indemnification agreement existing between the Highway Department and the independent contractor: 92 S.C. 136, 75 S.E. 553; 191 S.C. 233, 196 S.E. 549; 192 S.C. 382, 6 S.E.2d 903; 227 S.C. 307, 87 S.E.2d 869; 240 S.C. 412, 126 S.E.2d 335; 253 S.C. 427, 171 S.E.2d 494; 167 S.C. 129, 166 S.E. 101. G. Ross Anderson, Jr., Esq., of Anderson, Kenyon Epps, Anderson, for Respondents, cites: As to a lack of error in permitting the purported cost to cure the alleged damage done to the Landowner's pond in the determination of just compensation in the condemnation proceeding: 18 Am. Jur. 886; 75 A.L.R. 855; 113 S.C. 303, 102 S.E. 331; 216 S.C. 500, 59 S.E.2d 132; S.C. Constitution, Article I, Section 17; 229 S.C. 267, 92 S.E.2d 688; 228 S.C. 392, 90 S.E.2d 472; 159 S.C. 481, 157 S.E. 842; 194 S.C. 33, 8 S.E.2d 852, 128 A.L.R. 1186; 256 S.C. 431, 182 S.E.2d 735; 194 S.C. 33, 8 S.E.2d 852; 109 Ga. App. 670, 137 S.E.2d 343; 83 Ga. App. 823, 64 S.E.2d 912; 29A C.J.S. Eminent Domain, § 195, p. 854; 26 Am. Jur.2d 846-847, § 171; Annotation 2 A.L.R.2d 711, § 8; 241 Ala. 247, 249 (3), 2 So.2d 405; 218 Ala. 369, 118 So. 749; 63 Wn.2d 581, 388 P.2d 223; 12 Wn.2d 1, 120 P.2d 496; 155 S.E.2d 404; 240 S.C. 412, 126 S.E.2d 335; 253 S.C. 9, 168 S.E.2d 573. As to a lack of error in overruling the Highway Department's motions for mistrial based on evidence introduced by counsel for landowners and arguments made to the jury as to an indemnification agreement existing between the Highway Department and the independent contractor: 240 S.C. 412, 126 S.E.2d 335; 240 S.C. 472, 126 S.E.2d 514; 252 S.C. 179, 165 S.E.2d 799; 212 S.E.2d 711; 253 S.C. 395, 171 S.E.2d 352; West Digest, Trial 18.

Judges

LITTLEJOHN, Justice:

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Smart Summary

Factual and Procedural Background

This condemnation proceeding was commenced by the South Carolina State Highway Department under § 33-121 et seq. to acquire a narrow strip (approximately .08 acre) of Richard D. Moody and Gladys S. Moody's property to widen Highway 183. The landowners appealed a condemnation board award to the court of common pleas where a jury returned a verdict awarding $1,000 for land taken and $15,400 for alleged damages to a 1/2 acre pond that extends into the Department's right-of-way. The Department appealed, contending the pond damages resulted from negligent conduct of an independent contractor and were not recoverable in the condemnation proceeding.

Legal Issues Presented

Whether damages attributable to temporary harm caused by the negligent conduct of an independent road-construction contractor (cost to restore the pond) are recoverable as part of just compensation in a condemnation proceeding under § 33-135 et seq.
Whether testimony and argument regarding an indemnification agreement between the Highway Department and the independent contractor required a mistrial or otherwise warranted reversal.

Arguments of the Parties

Appellant's Arguments (Highway Department)

The jury's award included damages for negligent conduct by the independent contractor, which the Department contends are not recoverable in a condemnation proceeding.
The Department asserted the testimony as to cost to restore the pond was inadmissible because the damage was temporary and resulted from contractor negligence.
The Department argued the court erred in overruling motions for mistrial based on evidence and argument concerning an indemnification agreement between the Department and the contractor.

Respondents' Arguments (Landowners)

The landowners contended the cost to restore the pond was a proper element of damages to be considered in determining just compensation.
The landowners' counsel elicited testimony and referenced an indemnification agreement (testimony later struck by the trial judge).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
48 Hun. 618, 2 N.Y.S. 34	Cited by Appellant in support of the principle that cost-to-cure damages allegedly caused by contractor negligence are not proper elements of damages in condemnation proceedings.	Not referenced or applied in the court's opinion.
199 S.C. 112, 18 S.E.2d 663	Cited by Appellant regarding limits on damages recoverable in condemnation (also expressly cited in opinion as State Highway Dept. v. Amick's Estate).	Quoted and relied upon by the court for the principle that anticipated or past negligence in construction is not an element of damage in condemnation proceedings.
256 S.C. 431, 182 S.E.2d 735	Cited by Appellant and Respondents in briefing on admissibility and measure of damages.	Not referenced or applied in the court's opinion.
244 S.C. 237, 136 S.E.2d 306	Cited by Appellant in support of limitation on recoverable damages in condemnation proceedings.	Not referenced or applied in the court's opinion.
2 S.W.2d 543	Cited by Appellant in support of limits on damages recoverable in condemnation.	Not referenced or applied in the court's opinion.
131 S.W.2d 803	Cited by Appellant in support of limits on damages recoverable in condemnation.	Not referenced or applied in the court's opinion.
241 N.C. 350, 85 S.E.2d 392	Cited by Appellant in support of limits on damages recoverable in condemnation.	Not referenced or applied in the court's opinion.
254 N.C. 337, 118 S.E.2d 918	Cited by Appellant in support of limits on damages recoverable in condemnation.	Not referenced or applied in the court's opinion.
92 S.C. 136, 75 S.E. 553	Cited by Appellant regarding the trial court's alleged error in overruling motions for mistrial tied to indemnification evidence/argument.	Not referenced or applied in the court's opinion beyond noting the indemnification testimony was struck.
191 S.C. 233, 196 S.E. 549	Cited by Appellant on the indemnification/mistrial issue.	Not referenced or applied in the court's opinion beyond procedural comment.
192 S.C. 382, 6 S.E.2d 903	Cited by Appellant on the indemnification/mistrial issue.	Not referenced or applied in the court's opinion beyond procedural comment.
227 S.C. 307, 87 S.E.2d 869	Cited by Appellant on the indemnification/mistrial issue.	Not referenced or applied in the court's opinion beyond procedural comment.
240 S.C. 412, 126 S.E.2d 335	Cited by Appellant and Respondents regarding admissibility and mistrial issues tied to indemnification evidence/argument.	Not referenced or applied in the court's opinion beyond procedural comment.
253 S.C. 427, 171 S.E.2d 494	Cited by Appellant on indemnification/mistrial issue.	Not referenced or applied in the court's opinion beyond procedural comment.
167 S.C. 129, 166 S.E. 101	Cited by Appellant on indemnification/mistrial issue.	Not referenced or applied in the court's opinion beyond procedural comment.
113 S.C. 303, 102 S.E. 331	Cited by Respondents as authority that cost-to-cure may be proper in assessing damages in some contexts.	Not referenced or applied in the court's opinion.
216 S.C. 500, 59 S.E.2d 132	Cited by Respondents as authority on valuation/damages issues.	Not referenced or applied in the court's opinion.
229 S.C. 267, 92 S.E.2d 688	Cited by Respondents on valuation/damages principles.	Not referenced or applied in the court's opinion.
228 S.C. 392, 90 S.E.2d 472	Cited by Respondents on valuation/damages principles.	Not referenced or applied in the court's opinion.
159 S.C. 481, 157 S.E. 842	Cited by Respondents and expressly by the court (Chick Springs Water Co. v. State Highway Department) for the principle that there is no real distinction between a taking and damaging of property and that a landowner may seek relief by common law action where property is damaged by State action.	Applied by the court to explain availability of inverse condemnation/common law remedies and distinguish condemnation from remedies for negligent trespass.
194 S.C. 33, 8 S.E.2d 852	Cited by Respondents on damages/valuation authorities.	Not referenced or applied in the court's opinion.
109 Ga. App. 670, 137 S.E.2d 343	Cited by Respondents on damages/valuation authorities.	Not referenced or applied in the court's opinion.
83 Ga. App. 823, 64 S.E.2d 912	Cited by Respondents on damages/valuation authorities.	Not referenced or applied in the court's opinion.
241 Ala. 247, 2 So.2d 405	Cited by Respondents on damages/valuation authorities.	Not referenced or applied in the court's opinion.
218 Ala. 369, 118 So. 749	Cited by Respondents on damages/valuation authorities.	Not referenced or applied in the court's opinion.
63 Wn.2d 581, 388 P.2d 223	Cited by Respondents on damages/valuation authorities.	Not referenced or applied in the court's opinion.
12 Wn.2d 1, 120 P.2d 496	Cited by Respondents on damages/valuation authorities.	Not referenced or applied in the court's opinion.
253 S.C. 9, 168 S.E.2d 573	Cited by Respondents on damages/valuation authorities.	Not referenced or applied in the court's opinion.

Court's Reasoning and Analysis

The court began by identifying the governing statutes (§§ 33-135 and 33-136) that limit consideration to the actual value of the land taken and any special damages resulting from the taking. It explained that condemnation proceedings are statutory special proceedings with defined issues and that the Department, as condemnor, has no notice in such a proceeding of claims beyond those statutory measures.

The court recited precedent (Chick Springs Water Co. v. State Highway Department) establishing that damage by State action may constitute a taking remedied by a common law action (inverse condemnation) and distinguished condemnation (government as moving party) from inverse condemnation (landowner as plaintiff). It also cited State Highway Dept. v. Amick's Estate for the rule—taken from Corpus Juris—that damages in condemnation do not include those arising from anticipated or past negligence in construction.

Applying these principles to the evidence, the court found the testimony established uncontradicted negligence by the contractor and that the pond damage was temporary and not a necessary incident of construction. Allowing cost-to-repair for such temporary, negligently caused damage in the condemnation proceeding deprived the Department of due process (lack of notice of such claims in the statutory condemnation appeal). Consequently, the court held the trial court erred in admitting and awarding the pond repair claim in this condemnation proceeding.

The court also noted that testimony regarding an indemnification agreement was properly struck by the trial judge and made no further ruling beyond stating the issue should not recur on retrial.

Holding and Implications

Affirmed in part; reversed in part.

Holding: The court affirmed the jury award of $1,000 for the land actually taken and reversed the award of $15,400 for pond repair damages because those damages were temporary and resulted from alleged negligence of the independent contractor and were not recoverable in the condemnation proceeding.

Implications: The direct effect is that the $1,000 award for property taken stands, while the pond-damage award is vacated. The opinion explains that where property is damaged by State action or by agents/contractors (trespass or negligence), the landowner's remedy is a common law action (inverse condemnation) against the contractor, the highway department, or both, as appropriate; the condemnation special proceeding is not the proper forum for recovery of damages arising from contractor negligence. The court did not announce a broader new rule beyond application of existing statute and precedent.

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The SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant, v. Mr. RichardD. MOODY et al., Respondents.

June 22, 1976.

LITTLEJOHN, Justice:

This condemnation proceeding was commenced by the South Carolina State Highway Department pursuant to § 33-121 et seq., Code of Laws of South Carolina (1962), which relate to "Rights of Way, Lands and Condemnation." The purpose of the proceeding is to determine the amount of just compensation to which Richard D. Moody and Gladys S. Moody (landowners) are entitled by reason of the fact that the Department has required a narrow strip of land, owned by them, for the purpose of widening highway 183, which runs in front of their residence in Oconee County.

The matter was first heard before a condemnation board. The landowners, being dissatisfied with the board's award, appealed and asked for a trial, de novo, in the court of common pleas, as is permitted by statute. The appeal was heard before the judge and a jury, which wrote a verdict in favor of the landowners in the amount of (1) $1,000.00 for land taken and (2) $15,400 for damages to the landowners' pond, which lies in front of the landowners' home and is immediately adjacent to and extends into the Department's right-of-way.

The Department has appealed, alleging that the jury verdict included damages for negligent conduct on the part of the independent road-construction contractor, for which the owners are not entitled to recover in a condemnation proceeding. We agree with the Department's contention that a condemnation proceeding, or an appeal therefrom, is not a proper proceeding in which to seek redress for trespass and/or damages, proximately caused by negligence of a road-construction contractor, to property, and we reverse.

The landowners' property involved in this action consists of approximately 21/2 acres, upon which is situated their residence, with a 1/2 acre pond located between the residence and the existing roadbed. The landowners' property fronts approximately 275 feet on the highway. At that point, the Department has owned, heretofore, a right-of-way measuring 371/2 feet on each side of the center of the road. The pond was mostly on the landowners' property, but extended onto the right-of-way of the Department to a depth of eight feet. In this proceeding, the Department is requiring a right-of-way of 20 additional feet for the purpose of widening the roadbed and the installation of curbs, gutters and sidewalks. At the time the case was tried, construction was still in progress, the curbs and gutters having been installed, but not finished. The amount of property being acquired is approximately .08 acre. The date of the taking was November 15, 1973. The date of the trial was September 15, 1975. In order to widen the roadbed and install the sidewalk, it was necessary for the contractor to provide support for the addition. The contractor did this by dumping fill-in dirt alongside the old roadbed and into a portion of the pond. As a result, the pond became muddy. It is the testimony of the landowners that more than $15,000.00 will be required to clean out the pond and restore it to its original condition. The testimony relative to the cost of restoring the pond was objected to by the Department, which argued that evidence of damage to the pond was not admissible since the damage was not permanent and was the result of negligence by the independent contractor. The Department asserts that compensation for such is not recoverable in an eminent domain proceeding.

The basis of these condemnation proceedings is Art. I, § 13 of our Constitution, which states that private property shall not be taken for public use without just compensation. The legislature, in Code § 33-121 et seq., has set forth the procedures to be used, and the damages to be considered by a condemnation board and a jury when there is an appeal. Sections 33-135,-136 read as follows:

"§ 33-135. Actual value and special damages to be considered. — 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.

"§ 33-136. Consideration of benefits. — In any condemnation proceeding instituted by the Department, benefits to be derived by reason of the proposed road construction, including the value of the old road if it shall revert to the person whose property is being condemned, shall be taken into consideration in determining the amount of compensation, if any, to be awarded to such person and due allowance made therefor."

These Code Sections determine the issues and the damages which may be awarded, when these special proceedings are used for the purpose of acquiring land for public use. In these proceedings there are no complaints and no answers. None are needed since the issues to be tried are set out in the Code and are well known to the parties. An appeal from the condemnation board is brought to a common pleas jury by a simple notice of the landowners that they are dissatisfied with the board's award. In such an appeal, the Department is not placed on notice of any damage issues other than those stipulated in §§ 33-135, -136.

When an agency of the government, such as the Highway Department, requires a landowner's property for public use without having condemned the same in keeping with the statutes herein cited, the landowner is not left without relief. In a line of cases, commencing with Chick Springs Water Co. v. State Highway Department, 159 S.C. 481, 157 S.E. 842 (1931), this Court has held that there is no real distinction between a taking of property and the damaging of property. Any action on the part of the State which takes or damages property for public use, deprives a landowner of its full use and is a taking as contemplated by the constitution. If an independent contractor, in constructing a road or improving the same, trespasses beyond the right-of-way and causes damages to a landowner, relief to the landowner is available by way of a common law action for damages. Such an action may be instituted against the contractor, or against the highway department, or against the two, depending on the facts. This we refer to as inverse condemnation. One basic difference between condemnation and inverse condemnation is that in condemnation proceedings, the governmental entity is the moving party, whereas, in inverse condemnation, the property owner is the moving party. In a common law action (inverse condemnation), the complaint should, of course, set forth the basis of the claim and specify the damages and relief sought, as in any other common law action.

Allowing the landowner to pursue inverse condemnation within this condemnation proceeding denied the Department of due process, because it obviously had no notice that the landowners would seek compensation for damages of a temporary nature to the pond, growing out of the negligent conduct of the independent contractor.

In State Highway Dept. v. Amick's Estate, 199 S.C. 112, 18 S.E.2d 663 (1942), we quoted the following from Corpus Juris:

"In proceedings to condemn land or to recover compensation for land already taken or injured, no damages are included except such as necessarily arise from a lawful taking and a proper construction and operation of the improvement. Anticipated or past negligence in the construction of the improvement is not therefore an element of damage, . . . ."

We further stated that the remedy of the landowner where he suffers damages because of the trespass or negligence of the condemnor's agents is a common law action for damages.

The gravamen of the testimony of both landowner Richard Moody and his only witness, was to the effect that the contractor was negligent and that the damage could have been prevented by the use of proper care. This evidence was not contradicted and the conclusion is inescapable that the landowners' damage to the pond was temporary and was not a necessary incident to the construction.

We conclude that the lower court erred in allowing a claim for the cost of repair to the pond in this condemnation proceeding. Inasmuch as the verdict included a separate item for the property taken, the award for that item in the amount of $1,000.00 can stand, and we affirm the verdict to this extent.

The Department also raises an issue regarding testimony with respect to an indemnification agreement which apparently existed between the Department and the independent contractor. It is the contention of the Department that it was error for counsel for the landowners to ask questions relative to this agreement in the presence of the jury, and error for counsel to comment upon the same in argument. The trial judge properly struck out the testimony. In any subsequent trial, there is no reason for this problem to arise again, and further comment by this Court is unnecessary.

Affirmed in part; reversed in part.

LEWIS, C.J., and NESS, RHODES and GREGORY, JJ., concur.