*1 , SOUTH CAROLINA STATE HIGHWAY DEPARTMENT COMPANY, Appellant, v. SOUTHERN RAILWAY Respondent (2d) 236) (121 S. E. General, McLeod, Grady Attorney Daniel R.
Messrs. General, Columbia, Patterson, Jr., Assistant Attorney L. Bowen, and Bolt & Greenville, Appellant, *2 ITorton, Messrs. Fant & Rainey, Greenville, and Frank Jr., G. Tompkins, Columbia, Respondent, *3 3, 1961. August
Taylor, Chief Justice.
This arises out of action an appeal brought the South Carolina Southern Highway Department against Railway for Company a of condemning highway purposes portion defendant's A right-of-way County. Greenville hearing held, before the Board of Condemnation was and resolution amount of was duly the and fixing compensation damages filed. the The defendant to Court Railway Company appealed case, of Common Pleas for Greenville tried and the County; before the trial and Judge a rеsulted in jury, compensation to the defendant fixed the’ Railway Company $3,800.00. amount of Plaintiff to this con- appeals other that the trial erred in' tending, among things, Judge interest, the to with as jury respect follows: charging “I' you was that the requеsted charge landowner was' interest on from any entitled to award September until date this no statutory provision, of trial. There-is up in- Foreman of for Mr. and the Jury, providing Gentlemen fixed on a award flat or rate. any terest cоndemnation at the However, that land- if conclude from the evidence you include your should you owner entitled to award all the under evidence award that consider any you damages is entitled to a result of having that landowner on September been to which it was entitled paid damages words, of In other which is the date the taking. here the idea is that under constitution compensa- tion is not unless the landowner is equivalent made given value of what is full and equivalent prop- perfect the landowner taken. should make erty Just time. had on whole as if the landowner been paid Again, award include all and your past, present should damages, involved, with that here are provided they proved future are all the The landowner reasonable evidence. certainty by receive under would just compensation *” * * provision. Carolina, 33-135, Laws of South Code
provides:
“In and damages rights assessing the actual to be taken therefor only value land way, shall be therefrom con- any special damages resulting sidered.” 33-136, Section, Laws of Code South following
Carolina, 1952, provides: the
“In instituted any by condemnation State proceeding to reason of by benefits be derivеd Department, Highway construction, the value the the of road proposed including if it to the whose old road shall revert property person condemned, shall be taken into consideration deter- to to be awаrded the amount of if any, mining compensation, therefor.” such and due allowance made person no mention will be that in the It noted sections foregoing saw fit to so the do is made of interest although Legislature e., statutes, 25-57, i. оther condemnation of Section Code Carolina, 1952, Laws of South State Authorities .Eminent Act, Domain provides:
“* * * In the event of an interest at the rate appeal, legal shall be allowed and be to the shall landowner the paid upon courts, final award as settled the finally from the date by that his or the of it is taken author- property any by part Carolina, 25-110,
And in Section Code of Laws of South Law, the Public Works Eminent Domain we find following:
“* * * If the amount so shall exceed so fixed the amount in court enter court shall deposited by petitioner, defi- the amount of such judgment against petitioner with interest at the rate of six cent ciency, together per per annum on such from the оf of title to deficiency date vesting ** * the date of of the final how- entry judgment (subject, ever, use, income, to abatement for rents or derived profits from such the owner by thereof subsequent * * *” of title in the vesting petitioner)
Defendant that it is in- contends entitled to recover 15, 1959, terest from the date of entry, September I, under Article just compensation Carolina, Constitution of does South 1895. it shall be define or how “just compensation,” prescribe or made whеre the is for the use of a except taking private v. County, Wilson Greenville gwcm’-publiccorporation, E. 301. The amount of just 96 S. to be can be determined under paid only provisions act of the whose authority only Legislature, procedural may bemay whereby legislation provided private property use, means by with the condemned public together City which is to be for the taking, paid al., et v. Belk’s Store Clinton Department Spartanburg E. 157. C. S. *5 6
In v. State Depаrtment, Johnson South Carolina Highway 591, 594, stated: 424, 236 114 E. this Court S. (2d) “* * * what was ‘just The for determination was question 33- 33-135 and for the land taken. Sections compensation’ I, 17 Article of the 1952 Code implement method of ascertaining a by providing is the landowner to which amount of ‘just compensation’ a his by govern- entitled reason of the by property taking Greenville, C. v. City mental Smith agency. 33-135 of the Code prescribes 92 S. E. 639. Section (2d) therefor the land to be taken that the actual value of ‘only be con- therefrom shall and any damages resulting special ‘benefits to sidered’; 33-136 that and Section requires road construction’ shall reason of the derived by proposed in amount consideration determining be taken into * * * The is entitled. to which landowner ‘just prescribed yardstick compensation’ determining *” * * statutes. foregoing recodified statutes were Department Highway Do Eminent to the Authorities State subsequent Code, the Public Act, and main 25-57 of Seс. Law, of the Code. Eminent Domain Sec. 25-110 Works in those of interest made for Provision is expressly payment acts, the acts but any providing no provision appears and it for condemnation of for highway purposes; proрerty was of such provision will not be that absence presumed by reading this should remedy which oversight are, therefore, to the con acts. such into the We persuaded error in such clusion the trial was in charge that Judge at com just that interest is not to be considered arriving cases. condemnation pensation highway been before this Court. has not heretofore This question Depart- State Highway of South Carolina In the recent case Miller, E. 237 S. C. S. ment v. that com- cases which hold made to those
reference is is 'taken be- interest where includes pensation *6 fore raised, payment. This not been question, was having left open by without that the stating, “Assuming, deciding, * * State, rule is in this foregoing aрplicable
Plaintiff also contends in error into evi admitting dence to that testimony the effect defendant had es tablished minimum or for a standards requirements safe and bed. track proper
The track bed in had been and question never standardized would, defendant’s witnesses could no time when if it give ever, hand, be meet to such On the improved standards. other is to the effect that is testimony money and it would tight ever, at least if years, be several before the imрrovements This could made. evidence which improvements remote, in the future be made is too might speculative and Ind., and Electric Indiana 166 N. Company, Southern Gas 127, and should be excluded. E. (2d) reasons,
For the we are of that thе foregoing opinion aside, from should be reversed and judgment set appealed d . it is so ordered. Reverse and Moss concur. JJ., Legge, Lewis, J.,
Oxner, dissents. (dissenting).
Oxner, Justice I find no in the error instructions given trial Judge on of He did not question damages. that сharge respond- ent could interest eo nomine but in recover effect instructed that could be jury interest assessed as of .just element 1, Article 17 under of the of this State. is authority to the overwhelming weight effect that the owner is
when until after his paid compensation taken, interest, he is entitled to or its at least in the form for the equivalent damages, delay making R., Annotations 96 A. L. 150 and A. L. payment. page 36 413; Domain, R. Nichols on Third Edi (2d) page Eminent tion, Volume Section 8.63. It be noted anno will in these
8 Co., Power 112
tations that v. Wateree S. C. Haig S. E. is cited line with Some as foregoing. case of South of these authorities referred to the recent are Miller, v. Department Carolina State Highway E. 561. (2d) On in 36 A. R. it is annotation L. page stated : cases,
“In the majority the rule has been great that the interest which bemay recovered as recognized part or to which one whose damages prop- been under the of eminent erty has taken domain is power *7 entitled, is a strict matter of constitutional Stated dif- right. when is not with ferently, paid coincidentally compensation the it sum in addition to the bare must include some taking, date, the the delay value of the on for taking proрerty within may so that be just making payment, compensation the that just of the constitutional com- requirement meaning be pensation paid.” Commission,
In Works v. Railroad Appleton Water Co. S., 121, 476, 478, A., 770, 154 L. Wis. 142 N. 47 R. N. W. the observed: must mean fair and Court cоmpensation “Just taken; is value the time the com just reasonable at property must necessarily for taken mean pensation presently property cannot mean its its it paid; present value present presеntly future, without interest.” the to be two years value paid has consistently Court al- Supreme The United States in condemnation cases. of damages interest a part lowed States, 261 v. United Railway Air Co. U. Line In Seaboard 664, 356, said: 354, 67 L. Ed. Ct. S. shall be рaid that ‘just compensation’ “The requirement no specific includes elements and all is comprehensive interest or interest is when necessary to include command Where the of such compensation. its a part equivalent and. of land before condemns takes possession United States not lim- owner is compensation, or paying ascertaining at time of of the.property taking; the value ited to
9 ishe entitled to such addition as will the full produce equiva- lent of that value with the paid contemporaneously taking. Interest at a rate is a measure which to as- proper good by certain the so to be amount added.”
In several cases this Court has
permitted
recovery
interest as an element of
even
interest eo
damages
though
nomine could not have been recovered. Wilson v. Atlantic &
Co.,
C.
587;
Co.,
Railway
v. Sullivan Power
Knight
140 S. C.
The owner’s right just cannot be made compеnsation to depend upon statutory While the authorization. Legisla- ture fix the may to be procedure followed a claim asserting for it compensation, may or ele- impair deny essential ment Stabb, thereof. As stated in State v. 236 Ind.
N. E. 392, 396, the “prevents taking for private use without property public just compensation. One of the elements of is the allowance of interest. This an essential element it cannot be excluded even enactment.” To the same effect is Chick legislative Water Co. v. State Springs Highway Department, 159 S. C. 842, 848, E.S. where it was “In said: actions for taken, the State for against sued, Constitution itself consent the state to gives *8 and, the Constitutional where Convention has suсh given consent, no act of the General Assembly needed for that is it in of that it,- nor power body purpose, deny ‘a constitutional shall never be provision construed as de- for its efficacy pendent operation uрon legislative ”will.’ It would seem under the foregoing authorities that the fact that the has not Legislature authorized the allowance of interest condemnation cases is not highway controlling. I think the before us must be question answered under the ... Constitution.
Since majority has decided that the judg- reversed, ment I should shall not undertake to discuss the other raised questions exceptions.