*1
Hardin, Deceased, Respondents,
v. The CAROLINA DEPARTMENT SOUTH TRANSPORTATION, Petitioner.
OF Tallent, Hair, Respondent B. Elisha’s California Elisha d/b/a Department Transportation, The Carolina Petitioner. South
No. 26262. Supreme Court of South Carolina. April
Hardin heard 2006. 2,May Tallent heard 2004. Feb. 2007. Decided Rehearing Denied March *3 Brooker, Jr., Linda C. McDonald and Beacham O. both of Columbia, Widener, Firm, L. Robert of McNair *4 Law Columbia, for Petitioner. White, Robinson, Hinson,
David A. of of Rock Bradshaw & Hill, Respondents. Lindemann, F.
Andrew of Davidson Morrison & Linde- mann, Columbia, Crowe, of Turner Danny Padget C. Columbia, Laney, Graham & for Amicus Municipal Curiae Association of South Carolina. Barnett, of Mt. Bundy'Bybee & Bybee,
Richard D. of Smith Pleasant, Landowners As- for Amicus Curiae South Carolina sociation. Scott, Jr., M. both of the South Lyon,
Robert E. Clifton Counties, Columbia, for Amicus Carolina Association Association of Counties. Curiae South Carolina Greenville, Childs, III, for Respondent. Robert Clyde TOAL: Chief Justice deal the issue of whether and to what
These cases constitute and closures of roads degree realignments I, § of Article 13 of the South “takings” meaning within the and the Fifth Amendment to the United Carolina Constitution courts determined that separately States Constitution. Lower Hardin and Tallent suffered owners both Depart- result of actions of the South Carolina (SCDOT). ment of We reverse. Transportation Background Factual/Procedural appeals, engage In of our of these we light disposition two a brief of the facts. only review
A. Hardin divided, Lyle high-speed, Dave Boulevard is a controlled- City of Rock Hill to Interstate highway connecting Highway private driveway 77. No has direct access to Instead, driveways exit onto side roads highway. private highway. highway intermittent access to the The which have in the traffic to has a number of turn lanes median which allow many access the surface intersecting cross the median and streets.
The that are located on the plaintiffs properties own two side Boulevard. The sit on Lyle properties north of Dave intersection Road. highway’s either side of with Garrison intersection contained a break in the years, For several Boulevard. This break Lyle median which runs down Dave intersection to access both allowed vehicles Garrison City Road and the in either direction. highway Rock Hill construct a new intersection requested SCDOT 1,000 existing feet east of the intersection to approximately
603 park accommodate an a industrial and technical college. that creating SCDOT advised a new intersection would re- quire Lyle that the intersection be closed due Garrison/Dave to the limitations cross streets on the a highway. After public hearing, consented to SCDOT the construction of the result, new intersection. As a SCDOT closed the break in the at Lyle median the prevent- intersection. This Garrison/Dave ed vehicle traffic from making any left turns the Garri- Lyle intersection. son/Dave
In filed an plaintiffs inverse condemnation action against SCDOT alleging depriving leaving the traffic their to properties ability cross Dave Lyle Boulevard constituted a which the plaintiffs were owed com- pensation. trial The court ruled that the plaintiffs suffered a compensable taking, appeals and the court of affirmed. See Dep’t Transp., Hardin South Carolina (Ct.App.2004).
B. Tallent case, plaintiff purchased a tract of property located on Easley Bridge Old near The Road Greenville. plaintiff opened a operated hair tanning salon and studio on the property. At the time she purchased property, property had access to Old Highway Easley Bridge via Road. As the aligned, Easley roads were then Old Bridge Road off a split Highway tangent gradually curved Road, to intersect White Horse runs perpendicular which Highway 123. the plaintiff purchased
Sometime after property, began SCDOT construction controlled-access “diamond” interchange at the intersection of Highway 123 and White Horse Road. This re-configuration closing involved points Easley Bridge between Old Road and White Horse Specifically, Road. closed Easley Bridge SCDOT Old Road to traffic, removed a traffic through light, and made several along cosmetic the road. changes changes These altered the Bridge character of Easley through-connect- Old Road from ing ending surface street to a road in a cul-de-sac. Hardin, plaintiff
As in brought inverse condemnation against Using action the fact that the road re- SCDOT. on cul-de-sac and limited her
configuration
situated
navigate
her
requiring
to Highway
her access
low
running through
neigh-
income
secondary
roads
series
borhoods,
prop-
had “taken” her
plaintiff alleged
SCDOT
de-
re-configuration
the road
erty.
plaintiff alleged
The
*6
in her
being
business
her
value and resulted
property
creased
valuable).
(and
The trial
thus
to the
less
public
less accessible
compensable taking,
that
suffered a
plaintiff
court ruled
the
Tallent v. South
of
affirmed. See
appeals
court
160, 609
544
Transp., 363 S.C.
Dep’t
Carolina
of
(Ct.App.2005).
Law/Analysis
held, a
to recov
plaintiffs right
have previously
As we
upon the
premised
inverse condemnation case is
ery
a taking. Byrd
suffered
v.
ability to show that he or she has
(2005).
Hartsville,
657,
76,
650,
80
365 S.C.
620 S.E.2d
City of
property
that the existence of
Although
recognized
it has been
reference to sources such as
by
are often determined
interests
103,
law,
126
Randolph,
v.
547 U.S.
S.Ct.
Georgia
state
see
(2006) (Scalia,
1515,
J.,
1540,
dissenting),
605
2886,
(1992)
120 L.Ed.2d
nineteenth
(reviewing
S.Ct.
798
see
Central
century takings jurisprudence);
also Penn
York,
104,
2,
City
New
438
122 n.
98
Transp. Co.
U.S.
(1978);
656,
at
S.Ct.
L.Ed.2d 631
and Byrd
57
Although no set formula exists for determining whether has been government, “taken” significant relevant does jurisprudence provide guideposts. action Determining government whether effects a re quires a court to government’s examine the character of the action and extent to which this action interferes with the Central, owner’s in the rights property as a whole. Penn 438 130-31, U.S at 98 S.Ct. specifically, 2646. Stated more these hoc, inquiries” “ad factual examining involve the character of action, government’s action, impact the economic of the and the to which the degree action interferes with the owner’s investment-backed expectations. Loretto v. Teleprompter 419, 426, Corp., Manhattan CATV U.S. S.Ct. (1982) Central,
L.Ed.2d (quoting Penn U.S. *7 2646); 658-59, Byrd, S.Ct. 365 at S.C. at 620 80 S.E.2d same). (quoting the the of Generally, physical occupation private property by government taking the results in a re gardless public government’s of the interest the action serves. Loretto, 426-28, 3164; at 102 see See 458 U.S. S.Ct. also Lucas, 1015, at Additionally, 505 112 2886. the U.S. S.Ct. a government enforcement effect a regulation usually will all beneficial regulation when the denies economically Lucas, 1015, 112 or of land. 505 at S.Ct. productive use U.S. cases, In begin by the instant it is instructive to nature of the classifying government’s the the actions which allege Neither Hardin property give takings. owners rise any nor Tallent involves the enactment of which regulation Thus, in directly regulates any properties. use of the owners’ order to “taken” these SCDOT any part properties, have must have some of them. De physically appropriated aspect proper that we what termining question requires analyze ty public system with reference road interests exist a property owner’s access thereto.
606 merely has an owner jurisdictions,
In some system. road accessing public purpose easement for to the Therefore, has access long as as a owner reason, is intact. For this system, road his easement public an that does not cut off owner’s any re-configuration road him. taking upon effects no public system access to the road Carolina, however, a owner has In South held, in owner South As have rights. more we any public to and from has an easement for access Carolina he has regardless whether property, road that abuts his Carolina public from an additional road. South access to and Allison, 389, 393, 143 S.E.2d S.C. Hwy. Dep’t State Carolina, (1965). Thus, in an example, for South owner roads an for access to and from both a corner lot has easement course, an in Carolina Of owner South property. that abut his road public to and from the also has an easement proper an This owner whose system. principle provides access to any road will not be denied ty public does not abut system. road cases, the court of occurred these finding City Rock Hill v. opinion relied on this Court’s appeals (1946). case, Cothran, In that S.E.2d rendered Hill of a street which City portion of Rock closed 361-62, Id. at of the a cul-de-sac. remaining part street of a corner lot which at 240-41. The owner S.E.2d an brought and another street fronted both the cul-de-sac trial court ruled taking, for a and the against city action at 242. This Court city’s favor. Id. reversed, stating: because of the damages
The of a landowner to recover right land on the location of his depends of a street vacation vacated, of the street part to the street or the reference vacated, rights on his and the effect of such vacation *8 not settled that an owner is It is well abutting owner. unless he has sustained damages entitled to recover in from that merely degree in kind and not injury different If it that there is a large. appears by public suffered may damages recover notwith- injury, owner special case, abut, in on the not as property his does standing vacated, of the part street because this amounts to a ‘tak- ing.’
* * * In the absence of special injury, no recovery will be allowed. is, The test abuts, not whether the but whether there special is a injury, and the first practical question which presents itself is whether one whose does not abut on immediately part of the street vacated —the part vacated in being the same block between his property and the next connecting cross injured street —is so specially as to be entitled to recover compensation on the ground direction, his access is cut off one but not in the opposite direction. 368-69,
Id. at
Cothran of a line of cases which provide that the closing of a portion a road a abutting piece of private property necessarily degree constitutes some of a taking of that property. E.g., Gray South Carolina Dep’t of Highways and Public Transp., S.C.
(Ct.App.1992). A critical examination of inter cases, ests at however, work in these yields no plausible explanation for this rule. When only portion public abutting road closed, landowner’s is leaving cul-de-sac, in a no taking has occurred. long As as the owner has access to and from the remainder of the road that continues to abut his property, his easement respect with to that Further, road remains intact. long as landowner still has public access to the system, road this easement is unaffected.2 This reasoning is line notion that a landowner has no right abutting roads more than one direction. See 73 A.L.R.2d 691-698. Returning example, to the comer lot the natural extension of this analysis government is that if entirely were to close one of the roads that abutted property, the owner's there would be no This is exactly correct. The existence of the road was the condition that easement, created the way long not the other around. So as a land- owner system, has access to the necessity road his easement is (now closed) intact. The easement for abutting access to the road has taken, not been extinguished. it has been *9 in expressing analysis to very
.This Court came close Highway Dep’t similar Carolina State another case. South Assoc., this stated: v. Carodale Court in the continuance of a right A landowner no vested has a its highway, the abandonment of without public highway; Likewise, closed, absque injuria. being is damnum maintain minimum level of duty is under a State no Nonetheless, or the vacation of a street traffic flow. of a concomitant diversion of creation cul de sac with “taking” has held a frontage traffic and been loss property. a a diversion of traffic
Closing inherently produces street However, artery. a traffic and loss of on viable frontage elements of dam- compensable these are not repercussions to and Succinctly, ingress egress the restriction or age. right compensated from one’s is the which must be is if a closed condemnation. infringed highway when continuation right The landowner no in the or has past traffic Traffic property. maintenance of the its flow access, subject have is highway, they on the to which as other member police power regulations every same and traffic Re-routing diversion of are traveling public. power police regulations. (1977) 556, 561, (emphasis 128-29 in 235 S.E.2d omitted). internal citations
original, so, Though expressly provide it not Carodale does closings road are implicitly recognizes re-alignments far conduct government actions of a different character than in in a rights affects an his or her which owner’s terms, Stated in doctrinal constitutionally sense. significant closings road takings modern instruct principles a which not “take” land or an easement from realignments do rise to give compensable takings owner do not directly not interfere with an owner’s because these actions do in the rights property as whole.3 "ignoring well-established attempts The dissent to take us to task for course, ignore Of we not precedent” reaching decision. do our expressly precedent suggests; we overrule it. dissent prior closing This Court’s decisions that the of a holding actually road constituted that a owner imply easement; possesses than an they imply possession more property interest the existence of a road. particular public Tribble, That cannot be correct. Tuggle See 177 Ark. (1928) (not issue, S.W.2d on the but passing finding that landowner can have no interest vested *10 road); Carodale, existence of an abutting cf. at 128-29 (stating that a landowner has no vested rights in the of a in public highway continuance and the past continuation maintenance traffic property). flow his Thus, to the extent the rationale for these that holdings was the government had right, caused owner to lose property this collapses on itself. reasoning indicates,
As this analysis inquiry the focus of our interests; is, must be on a actual landowner’s his easements. We the “special injury” therefore overrule analysis contained in our jurisprudence speci in area and fy that our focus in these cases is on how road re any configuration affects a property owner’s easements. An ease ment is either taken or it not. That the “injury is is different in kind not merely degree” in which are con we standard, cerned. legal might Under Cothran’s owner prevail in a claim fact despite the that all his relevant property interests —his easements access—have not only been disturbed. Not the result in was Cothran incorrect, pronouncement its of the must be abandoned.4 law contrary 4. The rule the dissent advances is curious on its own terms. matter, primary deprived As a neither landowner in this case has been ingress egress property, her have or his or nor these landowners Instead, injured ability property. been in their to enter or exit their system these involve to the cases alterations road which have not disturbed the landowners' easements of access. Government action taking can deprived effect no unless it has an owner aof degree analysis particular interest. To the that the dissent's focuses on change put uses to which landowners their and the of a property's following in public use-driven value alterations road system, suggests significant impairment the dissent economic expectations give puts may analysis This landowner's rise to a cart before horse and overlooks the critical factor in these cases government's rights which character No is the of the action. directly have find a these owners been taken or interfered with. To taking beyond reality. in either of these cases would be to reason stretch in continue to have plaintiffs
Because the Hardin road Lyle to and Dave Boulevard and from not The system, rights their have been disturbed. way is irrelevant. only to turn one onto boulevard ability appeals’ decision and hold We therefore court of reverse that there has been no in this case. taking
Similarly, aspect plaintiffs property no Tallent re physically Accordingly, has taken SCDOT. we been has hold that there appeals’ verse the court of decision and been no in this case.
Conclusion reasons, appeals’ reverse the court of foregoing For the we in these cases. decisions JJ, WALLER, J., PLEICONES, concur.
BURNETT in part, part separate concurring dissenting opinion MOORE, J., concurs. which *11 WALLER, in part, dissenting in and concurring
Justice part: part
I in dissent in part. concur and I in the that Although majority’s holding concur result with not a I compensable taking, disagree Hardin has suffered with Further, I the its decision. underlying disagree rationale majority’s the conclusion that Tallent has not suffered taking. compensable view, majority
In the my ignores precedent well-established then, and of holds that authority, without direct citation instruct that road and principles closings “modern to give not “take” land ... do not rise which do realignments directly these actions do not compensable takings because in the as a rights property interfere with owner’s whole.” the that an contrary, long To the it has been of this state law necessary entitle of is not to physical taking property actual Conway, Town 194 compensation. one to v. S.C. Casque of
611 15, (1940), 871 overruled on other v. grounds McCall Batson, (1985) (to of deprive S.C. S.E.2d 741 one is, in ordinary enjoyment property beneficial use and of law, it, to the of and is as much a equivalent “taking” though actually itself were appropriated). in
As this Court noted
South
State Highway Dep’t
Carolina
Allison,
389, 393,
(1965),
143 S.E.2d
“an
S.C.
materially injures
deprives
abutting
that
or
obstruction
ingress
egress
proper-
owner of
or
to and from his
ty
‘taking’
is a
of the
property,
recovery
which
bemay
fact
had. The
that other
the property
means of
are
merely
available affects
the amount of
damages,
not the
of
right
recovery.”
Cothran,
I agree
majority
with the
Hill v.
City Rock
(1946)
its facts should therefore be limited. plaintiffs not directly portion did abut the closed road, such that there was no direct denial of or ingress egress. Cothran not deprived was of one of the immediate means of access to his under property. Accordingly, the facts Cothran, suffered, best, plaintiff diversion traffic which, out, majority points recog- flow as the has Court (landowner nized is not compensable. Carodale has no prop- in erty right the continuation or maintenance of the flow traffic its past property).5
However, view, my fact that a diversion traffic flow compensable is not not does mean closure road which materially deprives abutting ingress owner egress or a compensable and from his is not (2004) § See 46 Facts 3d 493 Am.Jur. Proof of (courts important have often noted distinction between access, change limitation of and a may compensable, which be flow, not compensable). *12 traffic which is traffic, business, although been of of It has noted that a loss loss and circuity compensable, they of travel are themselves are factors be not to determining remaining of considered reasonableness access abutting Cady roadway. Dep’t Transp., an to and from v. N.D. 472 of (N.D.1991). 467 N.W.2d 612 case, majority I agree of the Hardin
On the facts not that no Hardin’s does there has been directly by closed the Department abut the median which was of materially deprived and he not Transportation, was I property. Accordingly, to and from his ingress egress or only concur in with Hardin. result holding I in Tallent. majority opinion’s dissent from access case, a result closure of Tallent’s6 of SDCOT’s and Easley Highway Road Old points Bridge between Old end, the a cul de sac at one Easley Road was rendered Bridge to access her salon. by end used Tallent her customers 123 means remaining Highway by Tallent’s to was only access through secondary running roads a low-income series of closure, to the the value of the residential neighborhood. Due increased, while of Tallent’s commercial properties the value property decreased. held, consistent with South Carolina generally
Courts have law, road, land is partially on a closed whose a landowner damages claim if he still has portion, on cannot opened general to the of roads. There is system reasonable access rule, however, if the road leaves the exception closing to this Properties City de v. landowner in a cul sac. Mill Creek Columbia, Miss. State citing 944 67 (Miss.App.2006), So.2d Miss. 792 Fleming, v. So.2d Highway Comm’n (1963); Store, City Minneapolis, Inc. v. Liquor Kick’s a cul (holding N.W.2d creation of (Minn.Ct.App.1998) from de sac be if losses of access to and may compensable to existing “substantially right impairs roads [the landowner’s] the main thor- reasonably convenient suitable Waco, oughfare”). City also v. 396 S.W.2d DuPuy See (Tex.1965) (where construction of viaduct left access, cul-de-sac, deprived owner in he was reasonable roads from physically get even he could still though (N.D.1992) Backes, his 493 N.W.2d Boehm property); overpass that convert- (Highway construction Department’s into ed front of auto business cul-de-sac repair street in closing nearby highway access to from was off direct street Easley Bridge beauty shop Road. 6. Tallent’s was located on Old *13 access to after taking; permanent business closure forced use blocks, of indirect route of large through additional four residential neighborhood, regular distance to six comparable blocks, city and this physical specially interference affected property).
Here, road on which Tallent’s is has business located view, therefore, cul essentially my been rendered a de sac. In if Tallent has suffered a has special injury, compensable she taking.7 case,
As noted Appeals expert Court of “The ... appraiser testified that losses differed [Tallent’s] business from in the those area because the entities ‘desti- other were businesses, nation’ such people regard- that will them out seek less of the lack of immediate access from 123.... Highway the surrounding [W]hile residential area benefited from SCDOT, actions the value of commercial property Tallent’s had adversely been affected. The ... that realtor testified there had been no interest due to the current Tallent, lack of to Highway 123.” at S.C. Moreover,
S.E.2d the Master indicated several patrons they difficulty reaching Tallent’s testified had closure, property since were reluctant to do so safety reasons in driving through the low income neighbor- hood.
I affirm the Appeals’ holding would Court Tallent compensable taking. suffered a J.,
MOORE, concurs. recognized Spartanburg, 7. As Sease v. this Court S.C. (1963), of whether test a landowner is entitled damages special recover for the vacation street is existence of amounting injury ato