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Real Property – Condemnation – Damages – Rerouting & Partial Taking

As part of a single highway project, the South Carolina Department of Transportation both (1) took a portion of the defendant-landowner’s property and (2) changed the frontage road in front of his property into a cul-de-sac, thereby substantially restricting access to the property. The landowner is entitled to damages, not only for the partial taking, but also for the diminution in value of his remaining property.

We reverse the Court of Appeals’ decision, which upheld summary judgment for the SCDOT.

“In determining just compensation, only the value of the property to be taken, any diminution in the value of the landowner’s remaining property, and any benefits as provided in Section 28-2-360 may be considered.” S.C. Code Ann. § 28-2-370.

SCDOT contends that it exercised its power of eminent domain when it took a portion of defendant’s land for the project, but it exercised its police power when it changed the traffic pattern. In SCDOT’s view, defendant is entitled to damages for the former but not the latter. However, SCDOT cannot escape its constitutional and statutory obligations to tender just compensation for acquiring defendant’s property under the power of eminent domain, and any acts carried out under its police power which are incidental to its eminent domain authority are compensable.

The record plainly shows that each time SCDOT furnished construction plans to defendant – including the initial condemnation notice – the closure of the intersection and the 0.183-acre acquisition were indicated on the same sketch. Additionally, when SCDOT changed the plans to terminate the frontage road into a cul-de-sac, it was indicated on the overall project plans. Moreover, SCDOT’s counsel’s request for a continuance on the eve of trial to permit a new appraisal accounting for the revised construction plans lends support to defendant’s contention that there was a clear connection between the taking of his property and the closure of the intersection and construction of the cul-de-sac.

Consistent with South Carolina State Highway Department v. Wilson, 254 S.C. 360, 175 S.E.2d 391 (1970), the closure of the intersection, by itself, would likely result in no compensation to defendant because it would not constitute a taking under Hardin v. S.C. Dep’t of Transp., 371 S.C. 598, 641 S.E.2d 437 (2007), and its progeny; however, in this case, SCDOT acquired defendant’s property as part of the overall project, as noted by the condemnation notice. The record contains evidence that the condemnation of defendant’s property, the closure of the intersection, and the curving of the frontage road over the condemned parcel were all integrally connected components of the project, creating a material issue of fact as to which of these acts is a direct and proximate cause of the taking, thus rendering summary judgment improper. Employing the clear language of our just compensation statute, we hold that a jury should be permitted to hear evidence on the diminution in value to the remaining property.

Reversed and remanded.

Dissent

Under the facts of this case, defendant is not entitled to remainder damages arising from the closure of the intersection of Emory Road and the Highway 17 Bypass and is not entitled to remainder damages arising from the creation of the Old Socastee Highway cul-de-sac. The majority has fundamentally altered the law of eminent domain in South Carolina in concluding such damages are recoverable under the facts of this case.

This decision significantly blurs the distinction between a noncompensable exercise of police power and a compensable exercise of eminent domain.

South Carolina Department of Transportation v. Powell (Lawyers Weekly No. 010-078-18, 22 pp.) (Kaye Hearn, J.) (George James Jr., J., joined by John Kittredge, J., dissenting) Appealed from the Circuit Court in Horry County (Edward Cottingham, J.) On writ of certiorari to the Court of Appeals. Howell Bellamy Jr. and Robert Shelton for Petitioner; John McCutcheon Jr. and Beacham Brooker Jr. for Respondent. S.C. S. Ct.

 

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