the law and litigation of eminent domain cases in south ...eminent domain cases in south carolina ....

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The South Carolina Bar Continuing Legal Education Division

The Law and Litigation of Eminent Domain Cases in South Carolina

Tuesday, February 18, 2020

http://www.scbar.org/CLE

SC Supreme Court Commission on CLE Course No. 200824

6.0 MCLE

Table of Contents

Eminent Domain Trial Procedure: Issues in Context .....................................................................6 Paul de Holczer Implications of the Powell Opinion ................................................................................................. 42 William Dillard Federal Condemnation Practice ...................................................................................................... 50 Sarah Spruill Condemnation Mediation .................................................................................................................53 Jessica Crowson Challenge Actions ............................................................................................................................60 Paul de Holczer Case Law Update ..............................................................................................................................72 William Dillard

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The Law and Litigation of Eminent Domain Cases in South

Carolina Tuesday, February 18, 2020

This program qualifies for 6.0 MCLE

SC Supreme Commission on CLE Course # 200824

8:30 a.m. Registration 8:55 a.m. Welcome and Opening Remarks 9:00 a.m. Eminent Domain Trial Procedure: Issues in Context

Paul de Holczer S.C. Department of Transportation 9:45 a.m. Implications of the Powell Opinion

William C. Dillard Jr. Belser & Belser, PA 10:30 a.m. Break 10:45 a.m. Federal Condemnation Practice

Sarah P. Spruill Haynsworth Sinkler Boyd, PA 11:30 a.m. Compensation Questions - Panel Discussion

Jessica C. Crowson Paul de Holczer Sarah P. Spruill

12:15 p.m. Lunch (on your own) 1:15 p.m. Condemnation Mediation

Jessica C. Crowson Rogers Lewis Jackson Mann & Quinn, LLC 2:00 p.m. Challenge Actions

Paul de Holczer 2:45 p.m. Break 3:00 p.m. Case Law Update

William C. Dillard Jr.

3:45 p.m. Evaluating the Strengths and Weaknesses of a Condemnation Case; Landowner Perspective vs. Condemnor Perspective- Panel Discussion Jessica C. Crowson William C. Dillard Jr. Paul de Holczer Sarah P. Spruill

4:30 p.m. Adjourn

The Law and Litigation of Eminent Domain Cases in South Carolina

SPEAKER BIOGRAPHIES

(by order of presentation)

Paul de Holczer

S.C. Department of Transportation Columbia, SC

(course planner)

Paul D. de Holczer was admitted to the South Carolina Bar in 1994. He is a member of the South Carolina Bar Government Law Section and the Real Estate Practices Section, Eminent Domain Subcommittee. He received his education at Presbyterian College (B.A.), Central College (London Program); University of South Carolina (M.A.; J.D.), and Corvinus University of Budapest (Summer Program). After Law School he was Judicial Law Clerk to the Honorable Frank P. McGowan, Jr., South Carolina Circuit Court. Paul has lectured on eminent domain and condemnation law for the South Carolina Bar, the South Carolina Department of Transportation, the University of South Carolina School of Law, the Charleston School of Law, the International Right of Way Association (Carolinas Chapter), and for several professional education firms (NBI; CLE International; HalfMoon, etc.). He authored the South Carolina chapter for The Law of Eminent Domain: Fifty-State Survey, First Chair Press/American Bar Association (William G. Blake, ed., 2012). Paul served as condemnation counsel for the Southern Connector Project, the Conway Bypass Project, the Carolina Bays Parkway Project, the Arthur Ravenel Jr. Bridge Project, the South Carolina Highway 170 Improvement Project, the Two Notch Road Improvement Project, and other projects. He has represented landowners and lessees in condemnation matters.

William C. Dillard, Jr. Belser & Belser, PA

Columbia, SC

William C. Dillard, Jr. is a civil litigator who focuses his practice in a number of areas, including eminent domain/condemnation, land use and zoning, construction litigation, commercial real estate transactions and litigation, property insurance bad faith claims, local government matters and business disputes. In the area of eminent domain law, Will provides representation to both landowners and governmental entities and serves as associate counsel to the South Carolina Department of Transportation in right-of-way acquisition matters.

Sarah P. Spruill Haynsworth Sinkler Boyd, PA

Greenville, SC

Sarah Spruill focuses on business and commercial matters and complex litigation, including shareholder disputes and municipal litigation. Sarah represents financial institutions, utilities, manufacturers, individuals and governmental entities. She has devoted much of her practice to the

defense of corporate officers and directors in connection with litigation and government investigations. She has represented corporations in various types of litigation, including securities claims, dissenters’ rights actions and commercial disputes. Sarah also has extensive experience in land use and condemnation matters. She especially enjoys appellate practice and has handled a broad array of appeals, ranging from real property and estate disputes to banking, utilities, construction, governmental litigation, personal injury and product liability actions in addition to matters stemming from contract and business litigation. Sarah is listed in The Best Lawyers in America Commercial Litigation (2019-2020). She is a past board member for Centre Stage South Carolina and the South Carolina Governor’s School for Science & Mathematics Alumni Association. Sarah is a graduate of Leadership Columbia and Leadership Greenville. Education: University of South Carolina, J.D., magna cum laude, 2000 University of South Carolina Honors College, B.A., magna cum laude, 1997

Jessica C. Crowson Rogers Lewis Jackson Mann & Quinn, LLC

Columbia, SC Jessica is originally from Columbia and Camden, South Carolina and has lived all over the southeastern United States. Jessica graduated magna cum laude from the College of Charleston in 1997. She graduated from Vanderbilt University School of Law in 2000. After law school, Jessica served as a law clerk to the Honorable Kaye G. Hearn, former Chief Judge of the South Carolina Court of Appeals and now a Justice of the South Carolina Supreme Court. Jessica’s prior experience also includes working at Howser, Newman & Besley Law Firm and the Pennington Law Firm, both in Columbia, SC and as Assistant State Attorney, Fourth Judicial Circuit, Florida. Jessica was recognized as a Woman of Influence by Columbia Business Monthly in May 2011. She is licensed to practice law in both South Carolina and Florida. Since 2013, Jessica has been a member of Rogers, Lewis, Jackson, Mann & Quinn, LLC. She maintains both a litigation and transactional practice, focusing on condemnation and eminent domain, easement and right-of-way disputes, telecommunications law, lease and contract negotiations, and general litigation. In condemnations, easement, and right-of-way disputes, Jessica primarily represents utility companies seeking to acquire or enforce utility easements. Related to telecommunications law, Jessica represents wireless communications carriers, tower companies, fiber providers, businesses, entities and landowners in the communications industry related to telecom towers, antenna leasing, DAS/IBRD systems, pole attachments, 5G, small cell node networks, and city development. Jessica’s wide-ranging knowledge of the wireless communications’ industry allows her to actively assists clients in negotiation of communications leases and licenses for the deployment of wireless infrastructure and technology across the United States on an expedited basis, as well as the legal support necessary for the continued evolution of that infrastructure and technology.

Eminent Domain Trial Procedure: Issues in Context

Paul de Holczer

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2020 The Law and Litigation of

Eminent Domain Cases in South Carolina

Paul D. de Holczer, Assistant Chief Counsel

South Carolina Department of Transportation

955 Park Street, Columbia, South Carolina 29201 803-737-3065

[email protected]

DISCLAIMER: The views expressed in this publication do not necessarily reflect the views of the South Carolina Department of Transportation.

EMINENT DOMAIN TRIAL PROCEDURE: ISSUES IN CONTEXT

A. The Order of a Condemnation Trial

Usually, a condemnation case proceeds in the following manner considering that

landowner has the greater burdens of proof. Some judges may direct the condemnor to

present its case as a plaintiff.

1) Opening Statements – Landowner's Counsel First, then Condemnor's Counsel

2) Witness for the Condemnor (usually an engineer) describes the Landowner's property, the

property being taken by the Condemnor, the purpose of the acquisition, the use of the

acquisition by Condemnor.

3) Landowner presents its case

Usually: Landowner, Landowner's engineer (if he has one), Landowner's appraiser (if he has

one)

Note that the Burden of Proof is on Landowner as to

a) value of property taken

b) existence of damages to remainder of Landowner's property from project

c) quantification of damages to remainder of Landowner’s property from project

(Landowner is essentially "Plaintiff")

4) Condemnor presents its case

Usually: Condemnor’s engineer (if engineering issues), Condemnor’s appraiser

mailto:[email protected]

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Note that the Burden of Proof is on Condemnor as to

a) existence of benefits to remainder of Landowner's property from project

b) quantification of benefits to remainder of Landowner's property from project

5) Closing Argument – Landowner's Counsel First, then Condemnor's Counsel, then

Landowner's Counsel

6) Property Inspection if requested by either party (this may come at any time, according to

the convenience of the court, but is more helpful after testimony)

7) Judgment

B. Condemnor’s Possession of Condemned Property and Title S.C. Code Ann. § 28-2-90 describes when Condemnor may take possession of the property:

A condemnor may take possession of property:

(1) at any time upon receipt of written consent of the record owner or

owners of fee simple title to the property;

(2) upon payment to the owner of mutually agreed compensation;

(3) upon deposit with the clerk of court in the county in which the

property to be condemned is situated, the amount stated in the

Condemnation Notice as just compensation for the property, the

amount having been determined by the condemnor pursuant to §

28-2-70(a) before initiating the action;

(4) upon payment to the owner or deposit with the clerk of court of the

amount determined by the appraisal panel or awarded by the

judgment in the condemnation action.

No South Carolina statute provides when title passes; however there are three incidents

which might occasion a transfer of title.

The first is the date of the filing of the condemnation notice and the deposit of the Tender.

The second is the date the landowner takes a drawdown of the Tender.

The third is the date of the filing of the final order ending the case.

“With some qualifications, the general rule is that title passes to the condemnor when, and

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not until, the compensation is or damages are paid, tendered, or secured; and that when

payment is made the title relates back to the date of the filing of the condemnation petition.”

29A Corpus Juris Secundum § 420 (1992). In South Carolina, the Tender (the sum the

Condemnor alleges is just compensation) is paid into court under the quick-take method.

Some or all of this tender of just compensation is available to the Landowner and Other

Condemnees as of the date of filing of the Notice of Condemnation and Tender of Payment.

Arguably, then, title transfers upon the filing of the Notice and Tender.

If a property is sold or transferred while the condemnation action is pending, the portion

which transfers would thus be the parcel less the area acquired. If the landowner no longer

has the possession and title of the acquisition, then he cannot transfer the title or possession

of the acquisition. Instead, the seller/landowner retains an interest in the Tender – unless she

transfers that, too. Any “Other Condemnees” also have an interest in the Tender.

C. Sole Issue in a Condemnation Action is Just Compensation § 28-2-370. Just compensation to include only value of property taken, damage to remaining

land, and benefits to landowner.

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 § 28-2-

360 may be considered.

Important Considerations § 28-2-120. Eminent Domain Procedure Act to prevail over Rules of Civil Procedure.

In the event of conflict between this act and the South Carolina Rules of Civil Procedure, this

act shall prevail.

§ 28-2-330. Rules of Evidence.

Actions under this act are governed by the rules of evidence applicable in civil actions.

§ 28-2-500. Amount deposited with or withdrawn from clerk of court not relevant evidence.

The amount deposited, or withdrawn under § 28-2-480, is not admissible in evidence and

may not be referred to at the trial.

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§ 28-2-340. Evidence which may be admitted in trials of condemnation

actions; inspection of property.

(A) For the purpose of determining the value of the land sought to be condemned and fixing

just compensation in a hearing before a judge or in a trial before a jury, the following

evidence (in addition to other evidence which is relevant, material, and competent) is

relevant, material, and competent and may be admitted as evidence and considered by the

judge or the jury:

(1) evidence that a building or improvement is unsafe, unsanitary, or a public

nuisance or is in a state of disrepair and evidence of the cost to correct the condition, even if

no action has been taken by local authorities to remedy the condition;

(2) evidence that any state public body charged with the duty of abating or requiring

the correction of nuisances or like conditions or demolishing unsafe or unsanitary structures

issued an order directing the abatement or correction of any conditions existing with respect

to the building or improvement or demolition of the building or improvement and of the cost

of compliance with an order;

(3) evidence of the last assessed valuation of the property for purposes of taxation and

of any affidavits or tax returns made by the owner in connection with the assessment which

state the value of the property and of any income tax returns of the owner showing sums

deducted because of obsolescence or depreciation of the property;

(4) evidence that the property or improvement is being used for illegal purposes or is

being so overcrowded as to be dangerous or injurious to the health, safety, morals, or welfare

of the occupants and the extent to which the rentals therefrom are enhanced by reason of the

use;

(5) evidence of the price and other terms upon any sale or the rent reserved and other

terms of any lease or tenancy relating to the property or to any similar property in the vicinity

when the sale or leasing occurred or the tenancy existed within a reasonable time of the

hearing.

(B) Upon motion of either party, the court shall permit the jury to inspect the property which

is the subject of the action, and if the trial is without a jury, the court shall make the

inspection.

D. Valuation Issues

A. Calculation of Compensation

1. Just Compensation

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"Just compensation includes 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 § 28-

2-360 may be considered." S.C. Code Ann. § 28-2-370.

The just compensation required by the Constitution to be made to the owner is to be

measured by the loss caused to him by the appropriation. He is entitled to receive the

value of what he has been deprived of, and no more. Smith v. City of Greenville, 229

S.C. 252, 92 S.E.2d 639 (1956).

The condemnee is entitled to full compensation for the land actually taken as well as

all special damages, resulting from the taking, which cause a diminution in the value

of the remaining property.

In other words, as a general rule, special damages include all injuries

or damages which cause a diminution in the value of the remaining

property. As stated in 18 Am.Jur. 905, Section 265: "When part of a

parcel of land is taken by eminent domain, the owner is not restricted

to compensation for the land actually taken; he is also entitled to

recover for the damage to his remaining land. In other words, he is

entitled to full compensation for the taking of his land and all its

consequences; and the right to recover for the damage to his remaining

land is not based upon the theory that damage to such land constitutes

a taking of it, Nor is there any requirement that the damage be special

and peculiar, or such as would be actionable at common law; it is

enough that it is a consequence of the taking. The entire parcel is

considered as a whole, and the inquiry is, how much has the particular

public improvement decreased the fair market value of the property,

taking into consideration the use for which the land was taken and all

the reasonably probable effects of its devotion to that use.”

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S.C. State Highway Department v. Touchberry, 248 S.C. 1, 148 S.E.2d 747, 748-749

(1966), citing S.C. State Hwy. Dept. v. Bolt, 242 S.C. 411, 417; 131 S.E.2d 264, 266

(1963).

The entire parcel is considered as a whole, and the inquiry is, how has the particular

public improvement affected (benefitted or damaged) the fair market value of the

property, taking into consideration the use for which the land was taken and all the

reasonably probable effects of its devotion to that use.

While South Carolina has not expressly adopted the “unit rule,” it has done so in

effect. “The unit rule prohibits an award of compensation by assigning separate

values to component parts of the property and then adding them together to reach the

value of the whole property. See 4 Julius Sackman, Nichols on Eminent Domain §

13.09[5] (Rev.3d ed. 1997); 26 Am. Jur.2d Eminent Domain § 338 (1996).” South

Carolina allows an appraiser to consider the value of separate parcels or elements of a

condemned property: “While the unit rule precludes the jury from valuing the

property as separate units, the value of those units may enhance the fair market value

of the property as a whole. Thus, while the property is to be valued as a whole, we do

not find that this precludes the admission of testimony showing the separate value of

individual elements for consideration by the jury in arriving at the overall value,

which is the basis for compensation.” However, the jury must not add the separate

value of individual elements to reach its decision as to the value of the property as a

whole. Burroughs & Chapin v. S.C. Dept. of Transp., 352 S.C. 535, 574 S.E.2d 751

(Ct.App. 2002) (applying the unit rule to land and timber values in a condemnation

action).

Just Compensation does not include loss of business, anticipated or past negligence in

the construction of the improvement, future negligence in the operation of the

improvement, loss of traffic flow, sentimental value, temporary inconvenience,

punitive damages, speculative damages or damages for trespass.

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The condemnee has the burden of proving the value of the property. South Carolina

Power Co. v. Baker, 212 S.C. 358, 46 S.E.2d 278 (1948). The value of the property is

a question for the trier of fact.

2. Damages

Damages include any devaluation of the remaining property. The devaluation may be

caused by any changes from the project, but the changes must result in an actual

decrease in the market value of the remaining property. Specified elements of

damage to the remaining property must be limited to the decreased market value of

the property resulting therefrom. S.C. State Highway Department v. Touchberry, 248

S.C. 1, 148 S.E.2d 747 (1966).

The condemnee has the burden of proving damages. Rice v. S.C. Dept. of Hwys and

Public Transportation, 277 S.C. 495, 289 S.E.2d 645 (1982). The existence of

damages is a question for the trier of fact. The condemnee has the duty to minimize

damages to the remaining property. South Carolina Power Co. v. Baker, 212 S.C.

358, 46 S.E.2d 278 (1948).

3. Benefits

“In any condemnation action, benefits to be derived from the proposed project

including the value of any property or rights relinquished or reverting to the

landowner as a part or result thereof, must be taken into consideration in determining

the amount of compensation and due allowance made for them.” S.C. Code Ann. §

28-2-360.

S.C. Code Ann. § 28-2-30(2) provides, in part, that “An appraisal includes the

assessment of general and specific benefits to the owner as offsets against any

damages to the property.” In South Carolina, there is no distinction between general

and special benefits as to the remaining property: All benefits to a property may be

considered if these benefits reflect in the value of the property.

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In determining benefits and damages, the South Carolina Supreme Court has

determined that “all the reasonably probable effects” of the proposed project are to be

considered. “Therefore the fact that all persons who own lands adjacent to the road

enjoy special benefits does not make such benefits general. A special benefit to one

tract on the highway does not become general, because a like benefit is enjoyed by

many tracts that are also contiguous to the highway. The benefit accruing to each tract

is special to it.” Wilson v. Greenville County, 110 S.C. 321, 96 S.E. 301 (1918)

(emphasis supplied) (citing Bramlett v. City, 88 S.C. 110, 70 S.E. 450 (1911)). The

Wilson Court quoted Bramlett: “The question on which justice to the landowner

depends is whether he has been made to suffer loss by reason of the construction of

the sidewalk or other improvement. If the benefits of any kind, either general or

special, received from construction of the sidewalk, equal or exceed the damage, then

he has suffered no loss, and there is nothing to compensate him for. This rule, which

we think has the advantage of being just as well as simple, has been adopted by many

Courts of high authority (citations omitted).”

The condemnor has the burden of proving benefits. The existence of benefits is a

question for the trier of fact. S.C. Dept. of Hwys and Public Transportation v.

Manning, 283 S.C. 394, 323 S.E.2d 775 (1984).

4. Highest and Best Use

In valuing property, South Carolina law requires an appraiser to consider the

property’s highest and best use. “Highest and best use” means the most favorable use

to which the property may reasonably be put in the not too distant future.” However,

highest and best use does not allow for consideration of speculative and remote uses.

The landowner is entitled to the fair market value of her property at the time of the

taking, not its speculative value. The potential of property may be considered as an

element affecting value, but it is not sufficient to show that the potential is a mere

possibility. It must be shown that the potential is reasonably probable. City of North

Charleston v. Gilliam, 311 S.C. 252, 254-55, 428 S.E.2d 720, 721 (Ct. App. 1992);

Charleston v. Olasov, 282 S.C. 603, 320 S.E.2d 478 (Ct. App. 1984) (citing South

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Carolina State Highway Dep’t. v. Miller, 237 S.C. 386, 117 S.E.2d 561 (1960); U.S.

v. Twin City Power Co., 248 F.2d 108 (4th Cir.1957), cert. denied, 356 U.S. 918, 78

S.Ct. 702, 2 L.Ed.2d 714 (1958).); South Carolina Power & Light v. Copeland, 258

S.C. 206, 188 S.E.2d 188 (1972); South Carolina Highway Dep’t v. Bryant, 253 S.C.

400, 405, 171 S.E.2d 349, 351 (1969).

5. Sales

Sales to condemning authorities and under threat of condemnation are inadmissible

because they are not arms-length transactions, but compulsory sales. Haig v. Wateree

Power Co., 119 S.C. 319, 112 S.E. 55 (1922). See also, Rikard v. Miller, 231 S.C.

98, 97 S.E.2d 257 (1957) (“. . . whether the sale was voluntary or by operation of law,

as a sale for taxes or a sale in eminent domain proceedings.”) and Tinsley v. Ervin

Co., 264 S.C. 487, 216 S.E.2d 170 (1975) (“. . . We are of the opinion there was no

error whatever on the part of the trial judge in excluding evidence as to settlement for

a right of way acquired by the Greater Greenville Sewer District from Tinsley.

Suffice it to say the parties had to compromise or go to court. The sale did not

involve a willing seller.”).

In S.C. State Hwy. Dept. v. Bolt, 242 S.C. 411, 131 S.E.2d 264 (1963), the Court

stated “the actual value of the land taken, of course, means the market value thereof.

And [m]arket value of property taken or injured for public use means the fair value of

the property as between one who wants to purchase and one who wants to sell, its

present value at a sale which a prudent owner would want if at liberty to fix the time

and conditions of sale, not what could be obtained for it at a forced sale or under

peculiar circumstances, nor a value obtained from the necessities of another . . . .”

Offers and Options are inadmissible: “Oral and not binding offers are so easily made

and refused in a mere passing conversation, and under circumstances involving no

responsibility on either side, as to cast no light upon the question of value. It is

frequently very difficult to show precisely the situation under which these offers were

made.” S.C. Dept. of Transp. v. Hood, 381 S.C. 318, 672 S.E.2d 595 (Ct. App. 2009)

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citing Baynham v. State Highway Department of S.C., 181 S.C. 435, 187 S.E. 528

(1936); and citing Sharpe v. U.S., 191 U.S. 341, 24 S.Ct., 114, 48 L.Ed., 211 (1903).

E. Division of Condemnation Awards

§ 28-2-460. Parties to whom just compensation must be made and paid.

Unless the persons served with the Condemnation Notice agree in writing as to whom just

compensation must be made and paid, the appraisal panel determination, verdict, or judgment

must be made jointly to all the parties and may be paid to the clerk of court. Upon making the

payment, the condemnor's obligation to pay interest upon the funds shall terminate. The

payment of the funds so awarded must be held by the clerk of court pending the final order of

the court of common pleas in an equity proceeding to which all persons served with the

Condemnation Notice must be necessary parties. From the order of the court of common

pleas there may be an appeal as provided for appeals from the court in equity cases.

A proceeding to allocate any condemnation funds is by statute a proceeding in equity.

S.C Dept. of Transp. v. M & T, 379 S.C. 645, 667 S.E.2d 7 (Ct.App. 2008).

Four common types of cases in which the Court might be called upon to apportion the Condemnation Award

1) Disputes between Landowners and Lessees

2) Disputes between Claimants in Unknown Heirs cases

3) Disputes between Landowners and Mortgagees

4) Disputes between Landowners in cases involving more than one Landowner

Written Instrument Controls In Disputes between Landowners and Lessees – look to the lease

In Disputes between Landowners and Mortgagees– look to the mortgage

Generally, a lessee, as the holder of a constitutional property interest, or as a "condemnee"

under eminent domain statutes, may be entitled to just compensation when all or part of the

leasehold interest is lost by condemnation. See South Carolina State Highway Dept. v.

Hammond, 238 S.C. 317, 120 S.E.2d 21 (1961).

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Absence of Written Instrument

When a lease contains no provision as to the effect upon it of condemnation, the court looks

to the common law rule. S.C Dept. of Transp. v. M & T, 379 S.C. 645, 667 S.E.2d 7 (Ct.App.

2008), citing Farr v. Williams, 232 S.C. 208, 212, 101 S.E.2d 483, 485 (1957)

The burden of proof is upon the lessee to prove his entitlement to a portion of a

condemnation award. “The imposition of the burden of proof upon the lessee merely reflects

the significant property interest of the landowner as fee simple owner, and recognizes that

what is not proven as damages by a tenant belongs, or reverts, to the owner.” S.C Dept. of

Transp. v. M & T, 379 S.C. 645, 667 S.E.2d 7 (Ct.App. 2008).

“The leasehold value in a total condemnation is the difference between the market value rent

and the rent paid by the tenant over the full course of the lease including renewal options.”

“However, it is important to note that the South Carolina Supreme Court merely relied upon

the unappealed Hamilton formula as the law of that case procedurally, not as the law of this

state governing all leasehold estate valuations.” S.C Dept. of Transp. v. M & T, 379 S.C.

645, 667 S.E.2d 7 (Ct.App. 2008), discussing Hamilton v. Martin, 270 S.C. 223, 241 S.E.2d

569 (1978).

“The master-in-equity there [in Hamilton] measured the leasehold estate as ‘the value of the

use and occupancy of the leasehold for the remainder of the tenant's term, plus the value of

the right to renew the lease, less the agreed rent which the tenant would pay for such use and

occupancy.’" S.C Dept. of Transp. v. M & T, 379 S.C. 645, 667 S.E.2d 7 (Ct.App. 2008),

discussing Hamilton v. Martin, 270 S.C. 223, 241 S.E.2d 569 (1978).

“A different method of valuation is commonly used where, as here, only a partial taking by

condemnation of the leased premises occurs. This particular issue has not yet been addressed

by the South Carolina Supreme Court.” S.C Dept. of Transp. v. M & T, 379 S.C. 645, 667

S.E.2d 7 (Ct.App. 2008).

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“While there is a split of authority on the matter, the general rule in other jurisdictions is that,

"where only a portion of the leasehold is condemned, the measure of damages is the

difference between the fair market value of the lease before and after the taking." Mobil Oil

Corp. v. Phoenix Cent. Christian Church, 138 Ariz. 397, 675 P.2d 284, 287-88 (1983) (notes

and supporting citations omitted).” S.C Dept. of Transp. v. M & T, 379 S.C. 645, 667 S.E.2d

7 (Ct.App. 2008).

“Because of the strong policy of our State in favor of the ownership rights of the landowner,

a rule allocating the burden of proof to a tenant not only is consistent with this policy, but

also is fair since the landowner has permanently lost part of the property and would

otherwise be entitled to the award. Moreover, the burden imposed upon a tenant to prove

damages remains the same whether the allocation proceeding is in equity or law.” S.C Dept.

of Transp. v. M & T, 379 S.C. 645, 667 S.E.2d 7 (Ct.App. 2008).

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Sample Orders

1) Sample Order – Consent Order of Dismissal

STATE OF SOUTH CAROLINA COUNTY OF LEXINGTON

IN THE COURT OF COMMON PLEAS 11TH JUDICIAL CIRCUIT

C/A No.: 2014-CP-32-0000

South Carolina Department of Transportation,

Condemnor,

vs. Big Sales Company,

Landowner(s).

CONSENT ORDER

OF DISMISSAL

This matter comes before this court upon the motion of Condemnor, and with

the consent of Landowner, pursuant to Rule 41(a)(2), SCRCP, for an Order to end

this case because the case has been settled pursuant to S. C. Code Ann. § 28-2-40.

IT APPEARS Condemnor’s Condemnation Notice for the above-referenced

project is specifically made a part hereof by reference, which Condemnation Notice

reflects and describes the property of Landowner and the portion and interest being

acquired by Condemnor; and,

IT APPEARS, prior to the trial of this case, the parties agreed Condemnor

would pay Seventy-Eight Thousand and No/100 Dollars ($78,000.00) to

Landowner for the acquisition of the property and interest condemned by

Condemnor and any special damages; and,

of 36

IT APPEARS the parties agreed that this case has been settled and therefore

should be ended and stricken from the calendar, and that the above-entitled action

be and is dismissed with prejudice; and,

IT FURTHER APPEARS the parties, through their undersigned counsel,

intend to bind themselves and do bind themselves to the provisions herein.

IT IS THEREFORE ORDERED THAT:

1. Just compensation to Landowner for the Condemnor’s acquisition of the

above-referenced property, portion and interest and any special damages is

Seventy-Eight Thousand and No/100 Dollars ($78,000.00); and,

2. This case be ended and stricken, with prejudice, from the calendar; and,

The Clerk of Court return the Tender of Payment, plus any accrued interest, by

check made payable to South Carolina Department of Transportation, mailed to

Paul D. de Holczer, Attorney for South Carolina Department of Transportation, 1911

Barnwell Street, Suite C, Columbia, South Carolina 29201-2605; and,

3. Landowner provide Condemnor with a signed, completed Release; and,

Condemnor pay to Trust Account of Law Firm, for the benefit of Landowner,

the sum of Seventy-Eight Thousand and No/100 Dollars ($78,000.00); and,

4. The Clerk of Court annotate the Condemnation Notice, transferring the

realty to Condemnor, with the amount of settlement as Seventy-Eight

Thousand and No/100 Dollars ($78,000.00) and file it with the Register of

Deeds Office of Lexington County, duly indexed, as provided by law for the

recording and indexing of deeds, and exempt from filing fees as provided under

S. C. Code Ann. § 12-24-40; and, finally,

of 36

5. The Clerk of Court mail the Recorded Annotated Condemnation Notice

to Paul D. de Holczer, Attorney for South Carolina Department of Transportation,

1911 Barnwell Street, Suite C, Columbia, South Carolina 29201-2605.

AND IT IS SO ORDERED.

________________________________ Presiding Judge, Eleventh Judicial Circuit

In , South Carolina , 2015.

WE SO MOVE AND CONSENT:

________________________________ Paul D. de Holczer, Attorney for Condemnor

________________________________ Arnold Palmer, Attorney for Landowner

2) Sample Order -- Dispute over Proceeds – Tax Issue


IN THE COURT OF COMMON PLEAS

C/A No.: 04-CP-32-0000


Condemnor,

vs. Joe Smith (Tract 161),

Landowner, and Internal Revenue Service, Lien Holder, South Carolina Department of Revenue, Lien Holder, The Lexington Medical Center, Judgment Holder, and Lexington County Treasurer, Lien Holder, Other Condemnees.

ORDER DISMISSING PARTIES

AND TRANSFERRING ACTION

TO MASTER IN EQUITY

This matter comes before this court upon the motion of the Condemnor,

South Carolina Department of Transportation (SCDOT), and with the consent of

the Landowner, pursuant to Rule 41(a)(2), SCRCP, for an Order to end this case

between the Condemnor and Landowner and to transfer this matter to the Master

in Equity because the case has been settled pursuant to S. C. Code Ann. § 28-2-

40 (1976, as amended).

IT APPEARS the Condemnor has commenced a condemnation action, by

filing a Notice of Condemnation in the Court of Common Pleas of Lexington

County, to condemn and acquire the real estate described in the aforementioned

Notice of Condemnation; and

IT APPEARS the SCDOT plans and Condemnation Notice for the above-

referenced project are specifically made a part hereof by reference, which plans

and Notice reflect and describe the property of the Landowner and the portion(s)

and interest(s) being acquired by SCDOT; and

IT APPEARS that Other Condemnee Lexington Medical Center, though

properly served, has failed to appear and defend and should therefore be

dismissed from this action; and

IT APPEARS the Condemnor and Landowner agree that Five Thousand

Six Hundred Sixty-Four and No/100 ($5,664.00) Dollars is just compensation

of the Landowner for the Condemnor’s acquisition of the above-referenced

property, portion(s) and interest(s) and any special damages; and

IT FURTHER APPEARS the parties agree that the matter should be

transferred with finality to the Master in Equity, to determine to whom and in what

apportionment the just compensation should be paid.

IT IS, THEREFORE, ORDERED:

1. That just compensation of the Landowner for the Condemnor’s acquisition

of the above-referenced property, portion(s) and interest(s) and any

special damages is Five Thousand Six Hundred Sixty-Four and No/100

($5,664.00) Dollars;

2. That Condemnor’s Tender of Payment of Five Thousand Six Hundred

Sixty-Four and No/100 ($5,664.00) Dollars, paid to the Lexington County

Clerk of Court, be held by the Lexington County Clerk of Court pending a

hearing before the Master in Equity for an apportionment of the award of

just compensation pursuant to S. C. Code Ann. § 28-2-460;

3. That the Clerk of Court annotate the Notice of Condemnation, transferring

the realty to the State, with the amount of settlement as Five Thousand

Six Hundred Sixty-Four and No/100 ($5,664.00) Dollars; and file it with

the Register of Deeds Office of Lexington County, duly indexed, as

provided by law for the recording and indexing of deeds, and exempt from

filing fees as provided under S. C. Code Ann. § 12-24-40;

4. That the Clerk mail the Annotated Notice of Condemnation to Paul D. de

Holczer, Attorney for South Carolina Department of Transportation, 1911

Barnwell Street, Suite C, Columbia, South Carolina 29201-2605;

5. That Condemnor South Carolina Department of Transportation and Other

Condemnee Lexington Medical Center, be dismissed from this action;

6. That this matter is transferred with finality to the Master in Equity for an

apportionment of the award of just compensation, plus interest if any,

pursuant to S. C. Code Ann. § 28-2-460;

7. That the hearing for an apportionment of the award of just compensation

be held within ninety (90) days from the date of the filing of this order; and,

8. That the costs of the hearing before the Master in Equity, if any, shall be

born by all parties receiving any apportionment of the award of just

compensation, with the costs apportioned by the Master in Equity.


Lexington, South Carolina _______________, 2006.


WE SO MOVE AND CONSENT:

_____________________________ Paul D. de Holczer Attorney for Condemnor

_____________________________ Donald R. Attorney for Landowner

_____________________________ Joe S. Attorney for Other Condemnee SC Department of Revenue

_____________________________ Joseph M. Attorney for Other Condemnee Lexington County Treasurer

_____________________________ Robert F. Attorney for Other Condemnee United States Internal Revenue Service

3) Sample Order -- Dispute over Proceeds – Mortgage Issue



C/A No.: 2007-CP-32-0000


Condemnor, vs. James Doe, Landowner, and Chase Home Finance LLC, Mortgagee (Assignee of Mortgage Electronic Registration Systems, Inc., Mortgagee), Other Condemnee.

ORDER DISMISSING CONDEMNOR

AND TRANSFERRING ACTION

TO MASTER IN EQUITY

This matter comes before this court upon the motion of the Condemnor,

South Carolina Department of Transportation (SCDOT), and with the consent of

the Landowner, pursuant to Rule 41(a)(2), SCRCP, for an Order to end this case

between the Condemnor and Landowner and to transfer this matter to the Master

in Equity because the issue of just compensation in this case has been settled

pursuant to S. C. Code Ann. § 28-2-40.

IT APPEARS the Condemnor has commenced a condemnation action, by

filing a Notice of Condemnation in the Court of Common Pleas of Lexington

County, to condemn and acquire the real estate described in the aforementioned

Notice of Condemnation; and

IT APPEARS the Condemnor has, as a part of the settlement of this case,

amended its Notice of Condemnation to reduce the acquisition for its project, by

filing an AMENDED Notice of Condemnation in the Court of Common Pleas of

Lexington County; and

IT APPEARS the SCDOT plans and AMENDED Notice of Condemnation

for the above-referenced project are specifically made a part hereof by reference,

which plans and AMENDED Notice reflect and describe the property of the

Landowner and the portion(s) and interest(s) being acquired by SCDOT; and

IT APPEARS that Other Condemnee Mortgage Electronic Registration

Systems, Inc., Mortgagee, has assigned its interest to Chase Home Finance LLC

and has been dismissed from this action with Chase Home Finance LLC

substituted as Other Condemnee for Mortgage Electronic Registration Systems,

Inc.; and

IT APPEARS the Condemnor and Landowner agree that Forty-Five

Thousand and No/100 ($45,000.00) Dollars is just compensation of the

Landowner for the Condemnor’s acquisition of the above-referenced property,

portion(s) and interest(s) and any special damages; and

of 36

IT APPEARS the Condemnor and Landowner agree that Five Thousand

and No/100 ($5,000.00) Dollars is to be paid to paid to Landowner by Condemnor

within thirty (30) days of Landowner's removal of that portion of the ornamental

brick wall above ground and within the Condemnor's acquisition of the above-

referenced property;

PROVIDED THAT Landowner's removal of that portion of the ornamental

brick wall above ground and within the Condemnor's acquisition of the above-

referenced property is accomplished by the earlier of two dates: 1) one year after

the filing of this consent order; or, 2) before the Condemnor, in its discretion, must

have the wall removed to conform the right of way to the construction schedule;

and,

IT FURTHER APPEARS the parties agree that the matter should be

transferred with finality to the Master in Equity, to determine to whom and in what

apportionment the just compensation should be paid.

IT IS, THEREFORE, ORDERED:

1. That just compensation of the Landowner for the Condemnor’s acquisition of

the above-referenced property (portion and interest) and any special

damages is Forty-Five Thousand and No/100 ($45,000.00) Dollars;

2 That Five Thousand and No/100 ($5,000.00) Dollars is to be paid to

Landowner by Condemnor within thirty (30) days of Landowner's removal of

that portion of the ornamental brick wall above ground and within the

of 36

Condemnor's acquisition of the above-referenced property in accordance

with the provision set forth above;

3. That Condemnor is to supplement the Tender of Payment held by the

Lexington County Clerk of Court to the amount of Forty-Five Thousand and

No/100 ($45,000.00) Dollars, to be held by the Lexington County Clerk of

Court pending a hearing before the Master in Equity for an apportionment of

the award of just compensation pursuant to S. C. Code Ann. § 28-2-460;

4. That the Clerk of Court annotate the AMENDED Notice of Condemnation,

transferring the realty to the State, with the amount of settlement as Forty-

Five Thousand and No/100 ($45,000.00) Dollars; and file it with the

Register of Deeds Office of Lexington County, duly indexed, as provided by

law for the recording and indexing of deeds, and exempt from filing fees as

provided under S. C. Code Ann. § 12-24-40;

5. That the Clerk mail the Annotated AMENDED Notice of Condemnation to

Paul D. de Holczer, Attorney for South Carolina Department of

Transportation, 1911 Barnwell Street, Suite C, Columbia, South Carolina

29201-2605;

6. That Condemnor, South Carolina Department of Transportation (SCDOT), be

dismissed from this action;

7. That this matter is transferred with finality to the Master in Equity for an

apportionment of the award of just compensation, plus interest if any,

pursuant to S. C. Code Ann. § 28-2-460;

8. That the hearing for an apportionment of the award of just compensation be

held within ninety (90) days from the date of the filing of this order; and,

9. That the costs of the hearing before the Master in Equity, if any, shall be born

by all parties receiving any apportionment of the award of just compensation,

with the costs apportioned by the Master in Equity.


Lexington, South Carolina _______________, 2006.


WE SO MOVE AND CONSENT: ________________________________ Paul D. de Holczer Attorney for Condemnor

_______________________________ James Doe Landowner, Pro Se

_______________________________ J. Scott Attorney for Other Condemnee Chase Home Finance LLC, Mortgagee (Assignee of Mortgage Electronic Registration Systems, Inc., Mortgagee)

4) Sample Order -- Dispute over Proceeds – Unknown Heirs

STATE OF SOUTH CAROLINA COUNTY OF KERSHAW


C/A No.: 2001-CP-28-0000


Condemnor,

vs. Betty T, Sarah K, Willie T, Nathan T and Ira T,

Landowners, and John Doe and Mary Roe, representing all unknown persons having or claiming to have any right, title or interest in or to, or lien on the lands described herein, including all unknown heirs of the Estate of Nathan T (deceased),

Unknown Claimants.

FINAL ORDER

This matter came before this court on December 3, 2002, during the term

of the Kershaw County Court of Common Pleas for a hearing as to the amount of

just compensation to be awarded the Landowners for the Condemnor’s

acquisition of a portion of property necessary for the improvement of South

Carolina Highway 97 and Grannies’ Quarter Creek Bridge. Appearing before the

court was Paul D. de Holczer, Esquire; for the South Carolina Department of

Transportation (SCDOT); H.W., Esquire, Guardian ad Litem for the Unknown

Claimants; and Betty T, Landowner, pro se.

O:\SEMINARS\2020\20-12 EMINENT DOMAIN\SPEAKERS\MATERIALS\PAUL 2.DOC

26

The Condemnation Notice and Tender of Payment were filed on July 20,

2001. The SCDOT plans and Condemnation Notice for the above-referenced

project are specifically made a part hereof by reference, which plans and Notice

reflect and describe the property of the Landowners and the portion being

acquired by SCDOT (0.261 of an acre of land). There being Unknown

Claimants, service of the pleadings in this matter was accomplished by

publication in the Chronicle-Independent newspaper of the Summons and Notice

of Filing, Lis Pendens, and Notice of Order Appointing Guardian ad Litem Nisi as

provided by law. H.W., Esquire, was duly appointed Guardian ad Litem for the

Unknown Claimants.

The court reviewed the Affidavit of Betty T and inquired of Betty T and

H.W., Esquire, Guardian ad Litem, regarding the amount of just compensation.

Betty T offered uncontested testimony that Five Hundred and No/100 ($500.00)

Dollars is just compensation of the Landowners for the Condemnor’s acquisition

of the above-referenced property and any special damages. H.W., Esquire,

Guardian ad Litem, stated that he was familiar with the area and the property,

had reviewed the comparable sales, and also agreed that Five Hundred and

No/100 ($500.00) Dollars is just compensation of the Landowners for the

Condemnor’s acquisition of the above-referenced property and any special

damages.

O:\SEMINARS\2020\20-12 EMINENT DOMAIN\SPEAKERS\MATERIALS\PAUL 2.DOC

The court finds that Five Hundred and No/100 ($500.00) Dollars is just

compensation of the Landowners for the Condemnor’s acquisition of the above-

referenced property and any special damages.

Following the hearing on just compensation, the court inquired of Betty T

and H.W., Esquire, Guardian ad Litem, as to whom just compensation must be

made and paid pursuant to Code of Laws of South Carolina, ' 28-2-460 (Cum.

Supp. 1998) (as amended). H.W., Esquire, Guardian ad Litem, took no position

as to whom just compensation must be made and paid; however, Betty T testified

that she had been living on the property for several years and requested that the

Five Hundred and No/100 ($500.00) Dollars be paid to her. The Department of

Transportation took no position as to whom just compensation must be made

and paid. There was no evidence or testimony contradicting Betty T’s testimony

or contesting her request.

The court finds that the Five Hundred and No/100 ($500.00) Dollars just

compensation should be made and paid to Betty T.

IT IS THEREFORE ORDERED that:

5. This case be ended and stricken, with prejudice, from the calendar;

6. Five Hundred and No/100 ($500.00) Dollars is just compensation of

the Landowners for the Condemnor’s acquisition of the above-

referenced property and any special damages;

7. The Five Hundred and No/100 ($500.00) Dollars just compensation

should be made and paid to Betty T;

7. The Kershaw County Clerk of Court disburse the Tender of

Payment of Five Hundred and No/100 ($500.00) Dollars, plus any

accrued interest, to Betty T;

8. Betty T complete and return to Paul D. de Holczer, Attorney for

Condemnor, a Social Security Number Reporting Form reporting

her receipt of the Five Hundred and No/100 ($500.00) Dollars just

compensation;

9. The Clerk of Court annotate a copy of the Notice of Condemnation,

transferring the realty to the state, with the amount of just

compensation as Five Hundred and No/100 ($500.00) Dollars, and

file it with the Register of Deeds Office of Kershaw County, duly

indexed, as provided by law for the recording and indexing of

deeds, and exempt from filing fees as provided under S.C. Code

Ann. § 12-24-40.

10. The Clerk of Court mail a true copy of the annotated recorded

Notice of Condemnation to Paul D. de Holczer, Attorney for

Condemnor, 1911 Barnwell Street, Suite C, Columbia, South

Carolina 29201-2605.


_________________________________

Presiding Judge, Fifth Judicial Circuit Camden, South Carolina _______________, 2002.

5) Sample Order – No Appearance By Landowners– Unknown Heirs

STATE OF SOUTH CAROLINA COUNTY OF SUMTER


C/A No.: 03-CP-43-0000


Condemnor,

vs. Bettie S, James S, Edna L, Individually and as Life Estate, Harold E, Gloria J, Erica M, Angela D, and Thelma H,

Landowner(s),

and Richard P, Judgment Holder, World Financial National Bank/New York & Co., Judgment Holder, and South Carolina Department of Revenue, Lien Holder,

Other Condemnee(s),

and John Doe and Mary Roe, representing all unknown persons, having or claiming to have any right, title or interest in or to, or lien on the lands described herein, including all unknown heirs of Lillie B, deceased, Thomas E, deceased, Harvey E, deceased,

Unknown Claimant(s).

ORDER OF JUDGMENT

This matter came before this court for a hearing on August 9, 2004, at the

Sumter County Courthouse. Appearing before the court was Paul D. de Holczer,

30

Esquire, for the Condemnor South Carolina Department of Transportation.

Charles, Esquire, served as Guardian ad Litem for the Unknown Claimant(s) in

this matter. This matter was properly before the court and the court had

jurisdiction of the subject matter and parties.

This matter was set to be tried during the term of Common Pleas (Jury) for

the week of August 9, 2004. On August 4, 2004, Condemnor’s counsel sent

notice of the hearing, by regular United States Mail, to the known addresses of

the Landowners and Other Condemnees. No one appeared for the Landowners

or Other Condemnees at the Roster Meeting and, pursuant to S.C. Code Ann. §

28-2-240, the Department of Transportation requested precedence of this action,

which the Court granted. The Bailiff sounded the case and searched the

Courthouse for all parties to appear in connection with the case, but no

Landowner or Other Condemnee appeared. At the trial of the case, the

Department of Transportation moved to proceed without a jury and the court

transferred this matter to the Non-Jury Docket in accord with S.C. Code Ann. §

28-2-310(B).

IT APPEARS the South Carolina Department of Transportation plans and

Condemnation Notice for the above-referenced project are specifically made a

part hereof by reference, which plans and Notice reflect and describe the

property of the Landowners and the portion acquired by Condemnor. It was

stipulated by the Department that the date of condemnation was February 11,

2003, that the Department’s acquisition is 0.095 acres (or 4,138.2 square feet) of

land, that the area of the Landowners’ property before the taking was 9.660

acres (or 420,789.6 square feet) of land, and that the area of the Landowners’

property after the taking is 9.565 acres (or 416,651.4 square feet) of land; and,

IT APPEARS Condemnor properly published in the Sumter Item, the

Notice of Condemnation and Tender of Payment, Lis Pendens, and Notice of

Order Appointing Charles, Esquire, Guardian ad Litem for Unknown Claimant(s);

and

IT APPEARS that Charles, Esquire, Guardian ad Litem for Unknown

Claimant(s), submitted an Affidavit and the Original Affidavit is made a part of the

record in this case; and,

IT APPEARS that Randy C, P.E., testified about the condition of Loring

Mill Road both as it exists prior to the new construction and as it will exist after

the new construction and improvement. The court recognized Randy C as an

expert transportation engineering witness and found Randy C to be

knowledgeable about the project construction, and further found his testimony to

be credible and convincing; and

IT APPEARS that Harry P, testified about his appraisal of the subject tract,

the before and after value of the property, his consideration of both damages and

benefits, and his opinion of just compensation. The court found Harry P to be a

licensed General Certified appraiser, holding the MAI designation of the

Appraisal Institute; and,

IT APPEARS that Harry testified that One Thousand Two Hundred Fifty

and No/100 ($1,250.00) Dollars is just compensation for the Condemnor’s

acquisition of the above-referenced property and any special damages. The

court found Mr. Parker’s testimony to be credible and convincing; and,

IT ALSO APPEARS that, unless the persons served with the

Condemnation Notice agree in writing as to whom just compensation must be

made and paid, the judgment must be made jointly to all the parties and may be

paid to the clerk of court pursuant to S.C. Code Ann. § 28-2-460; and,

IT APPEARS that the payment of the funds so awarded in this case must

be held by the Sumter County Clerk of Court pending the final order of the Court

of Common Pleas, or the Master in Equity, in an equity proceeding to which all

persons served with the Condemnation Notice must be necessary parties,

pursuant to S.C. Code Ann. § 28-2-460.

IT IS THEREFORE ADJUDGED AND ORDERED that:

1. Just compensation in this case is One Thousand Two Hundred Fifty

and No/100 ($1,250.00) Dollars.

2. Charles, Guardian ad Litem for the Unknown Claimant(s), be and is

dismissed from this action, having discharged his duties.

3. Condemnor South Carolina Department of Transportation be and is

dismissed from this action, having satisfied and fulfilled its statutory duties

and responsibilities.

3. The Clerk of Court annotate the Notice of Condemnation in this case, transferring

the realty to the state, with the amount of the award as One Thousand Two

Hundred Fifty and No/100 ($1,250.00) Dollars; and file the Annotated Notice of

Condemnation with the Register of Deeds Office of Sumter County, duly indexed,

as provided by law for the recording and indexing of deeds, and exempt from

filing fees as provided under S.C. Code Ann. § 12-24-40.

4. The Clerk of Court mail the recorded Annotated Notice of Condemnation to Paul

D. de Holczer, Attorney for Condemnor, 1911 Barnwell Street, Suite C,

Columbia, South Carolina 29201-2605.

5. The Clerk of Court hold the award of just compensation of One Thousand Two

Hundred Fifty and No/100 ($1,250.00) Dollars in an interest-bearing account,

until such time as the Court, acting in equity and upon application, issues its final

order making a determination as to whom and in what apportionment the just

compensation should be made and paid.


_____________________________ Presiding Judge

August _______, 2004. Sumter, South Carolina

STATE OF SOUTH CAROLINA

COUNTY OF LEXINGTON


C/A No.: 2013-CP-32-00000


Condemnor,

vs.

John Doe,

Landowner.

VERDICT

WE, THE JURY, UNANIMOUSLY FIND FOR THE LANDOWNER IN THE AMOUNT

OF:

________________________________________________________________________

($____________________________).

__________________________, 2020.

_____________________________________

FOREPERSON OF THE JURY

[WHEN YOU HAVE REACHED YOUR VERDICT, PLEASE INFORM THE BAILIFF]

STATE OF SOUTH CAROLINA

COUNTY OF LEXINGTON


C/A No.: 2013-CP-32-00000


Condemnor,

vs.

John Doe,

Landowner.

CONDEMNOR’S PROPOSED TRIAL STIPULATIONS

In the above-referenced condemnation action, Condemnor proposes the following stipulations

pursuant to Rule 43(k), SCRCP:

Date of Condemnation: October 14, 2013

Size of Acquisition: 00.09 of an acre of land

Size of Tract Before: 00.55 of an acre of land

Size of Tract After: 00.46 of an acre of land

February 12, 2020

___________________________________

Paul D. de Holczer (SC Bar #6905)

deHolczer Law PC

1911 Barnwell Street, Suite C

Columbia, South Carolina 29201-2605

(803) 708-3242 / [email protected]

Attorney for Condemnor

Implications of the Powell Opinion

William Dillard

2020 – The Law and Litigation of


The Implications of the Powell Opinion By William C. Dillard, Jr.

The South Carolina Supreme Court’s decision in S.C. Dep't of Transportation v. Powell,

424 S.C. 206, 818 S.E.2d 433 (2018), reh'g denied (Sept. 28, 2018), involved a landowner in a

direct condemnation action asserting a claim for damages based on alleged diminution in value

resulting from a remote project component. Specifically, Powell raises the question of what degree

of connection is required between (1) the purpose of the acquisition and (2) the remote project

component in order for the claimed loss to be compensable.

I. Case Summary

The Powell case arose from SCDOT’s project to upgrade the Highway 17 Bypass near the

Backgate area of Myrtle Beach. As part of the project, the Department converted the bypass into

a controlled access highway whereby certain secondary road intersections were closed and

entrance/exit ramps provided the only access for motorists. Mr. Powell owned a 2.5 acre

commercially zoned property at the corner of a secondary road (Emory Road) and a frontage road.

Although the Powell property was separated from the highway by the frontage road and a power

line easement, he had indirect access to the highway via the nearby intersection of Emory Road

(see “Before” picture below). “Because Powell's property was zoned ‘highway commercial,’ his

easy access to the Bypass significantly enhanced its value.” Powell at 208, 818 S.E.2d 434.

In the general vicinity of the Powell property, the project involved (1) closing the

intersection of Emory Road and the highway and (2) rerouting the frontage road away from the

Powell property with installation of a cul-de-sac (see “After” picture below). As part of the project,

the Department condemned 0.183 acre of the Powell tract to round the intersection of Emory Road

and the frontage road. As characterized by the Supreme Court, the purpose of the acquisition was

“[t]o facilitate the closure of the Intersection . . . [by] reroute[ing] the abutting [frontage] road.”

Powell at 208, 818 S.E.2d at 434.

BEFORE

AFTER

Per the Court, as a result of the project

access from the Bypass to Powell's property would be substantially

restricted. Travelers on the Bypass could reach Powell's property via

the Farrow Parkway exit south of the property and travel north for

about one mile, or they could exit one mile north of Powell's

property and travel south, a distance of 2.24 miles for northbound

travelers and 1.25 miles for southbound travelers.

Powell, at 208–09, 818 at 434.

The circuit court granted partial summary judgment to the Department, holding that

Powell’s loss of indirect access was not compensable. The Court of Appeal affirmed, adopting a

test focused on whether the acquisition was necessary for the intersection closure or, instead,

merely an incidental result and not indispensable to the overall project. 415 S.C. 299, 781 S.E.2d

726 (Ct. App. 2015). The Supreme Court reversed, holding that “a jury should be permitted to hear

evidence on the diminution in value to the remaining property.” Powell at 216, 818 S.E.2d at 438.

II. Noteworthy Language from the Opinion

• “Here, a taking has indisputably occurred and the jury should determine whether the

closure of the Intersection proximately caused a diminution in the value to the remainder

of Powell’s property.” Powell at 212.

• (Discussing S.C. State Highway Dep't v. Wilson, 254 S.C. 360, 175 S.E.2d 391 (1970):

“[I]n affirming the trial court's decision to reject the charge, this Court focused on the fact

that but for the acquisition of the landowner's property used for the reconfiguration of the

county road, the Highway Department would not have installed a median. . . . [B]ecause

the direct taking of the landowner's property occurred under the Highway Department's

power of eminent domain—requiring compensation to the property owner—the Court held

the closure of the median was an incidental result and therefore, the landowner could

recover compensation[.]” Id. at 213–14.

• “Wilson requires that a court look at the consequential diminution in value to the

landowner's property caused by the public improvement and the reasonably probable

effects of its use.” Id. at 215 fn.4.

• “[O]nce it is established that a taking has occurred, the unambiguous words of the statute

allow a jury to consider whether and to what extent the property's value has been

diminished. Effects which may not amount to a taking standing alone may nevertheless be

considered when determining just compensation, provided they are a direct and proximate

cause of the taking.” Id. at 215 fn.4.

• “Applying Wilson's logic to the facts at hand, there is evidence in the record Powell's land

was taken in conjunction with closing the Intersection and the installation of the cul-de-

sac. Accordingly, he is entitled to have a jury decide the extent of the reasonably probable

effects of the taking and the resulting diminution in value.” Id. at 215 fn.4.

• “The record contains evidence the condemnation of Powell'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.” Id. at 216.

• (Dissent): “The majority has significantly broadened the scope of recoverable damages in

a condemnation case in which (1) property has been physically taken (here, .183 acres) and

(2) roads upon which the landowner's property does not abut have been altered or closed.

The majority has neutered our holding in Carodale, dramatically expanded the scope of

compensability, and added an inverse condemnation flavor to section 28-2-370 that our

case law—until now—has refused to allow. In addition, this decision significantly blurs

the distinction between a noncompensable exercise of police power and a compensable

exercise of eminent domain.” Id. at 226.

III. Historic Treatment of Compensable Damages

As highlighted in the excerpts below, South Carolina case law has long contemplated that,

in order for claimed losses to be compensable in a direct condemnation action, there must be some

degree of connection between the acquisition and the project component alleged to cause the

diminution in value. Based on the statement of legislative intent set forth in the Eminent Domain

Procedures Act (see below), it is appropriate to attempt to interpret Powell in a way that is

consistent with prior case law.

• Wilson v. Greenville Cty., 110 S.C. 321, 96 S.E. 301, 302 (1918). “[Landowner]

concede[s] that . . . if the old road had been merely discontinued as a public highway, without

relocating it on [his] land, he would not be entitled to damages; but [he] contend[s] that the

abandonment of the old and the location of the new road on the same tract of land are so closely

connected that they are inseparable. The contention is unsound. The two acts are separate and

distinct in fact and in law, and the legal consequences are the same as if the old and the new road

had been on the land of different owners.” [Statutory reference: “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”].

• S.C. State Highway Dep't v. Bolt, 242 S.C. 411, 416, 131 S.E.2d 264, 266 (1963). “[T]he

special damages referred to in [§ 33-135] relate to injury or damage to the remainder of the

property from which a portion is taken. They would include any damage or any decrease in actual

value of the remainder of the landowner's property which are the direct and proximate consequence

of the acquisition of the right of way.” Id. at 417. “[T]he severance of appellant's land into two

tracts and depriving him of his former direct access to an unrestricted highway, are elements

properly considered in determining just compensation . . . .” Id. at 423.

• S.C. State Highway Dep't v. Wilson, 254 S.C. 360, 175 S.E.2d 391 (1970). “While the

construction of a median, with nothing more, may very well be an exercise of the police power

with no resulting compensable damage to an abutting property owner, in the instant case the

proposed median is only an incidental part of the overall Department plans and contemplated

construction. There is no suggestion of the need for, or the contemplated construction of, a median

except as an incidental part of the major relocation and construction plans of the Department. But

for such overall construction and relocation, and condemnation under the power of eminent

domain for such purposes, there would have been no median and, of course, no damage to the

abutting landowner. It logically follows, we think that any damage attributable to the planned

median is an incidental result of the exercise of the power of eminent domain, and under these

circumstances we know of no sound reason for departing from the established rule in this State . .

. . [T]he inquiry is, how much has the particular public improvement decreased the fair market

value of the property, taking into consideration the use for which the land was taken and all the

reasonably probable effects of its devotion to that use.” Id. at 368-369 (quoting Bolt).

• S.C. State Highway Dep't v. Carodale Assocs., 268 S.C. 556, 235 S.E.2d 127 (1977).

“Closing a street inherently produces a diversion of traffic and loss of frontage on a viable traffic

artery. However, these repercussions are not compensable elements of damage. Succinctly, the

restriction of ingress or egress to and from one's property is the right which must be compensated

if infringed when a highway is closed by condemnation. The landowner has no property right in

the continuation or maintenance of the flow of traffic past its property. Traffic on the highway, to

which they have access, is subject to the same police power regulations as every other member of

the traveling public. Re-routing and diversion of traffic are police power regulations.” Id. at 561,

235 S.E.2d at 129 (internal citations omitted).

• S.C. Eminent Domain Procedure Act (Act No. 173 of 1987)

S.C. Code Ann. § 28-2-20: “This act amends the law of this State relating to

procedures for acquisitions of property and to the exercise of the power of eminent

domain. It is the intention of the General Assembly that this act is designed to create

a uniform procedure for all exercise of eminent domain power in this State. It is not

intended by the creation of this act to alter the substantive law of condemnation,

and any uncertainty as to construction which might arise must be resolved in a

manner consistent with this declaration. . . .”

S.C. Code Ann. § 28-2-370: “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 § 28-2-360 may be

considered.”

• SCDOT v. Powell, 424 S.C. 206, 215, 818 S.E.2d 433, 438 (2018). “[S]ection 28-2-370 . .

. by its plain language entitles a landowner to compensation for any diminution in value to the

remaining property as a result of the taking. . . . [T]he unambiguous words of the statute allow a

jury to consider whether and to what extent the property's value has been diminished.”

IV. Categories of “Access”-type Damages Claims Following Powell

While the precise meaning and impact of Powell will likely require further clarification by

the courts, comparison of the opinion with prior case law provides for the following plausible

breakdown of access-related claims:

1) Inverse condemnation: Hardin’s holding that restriction of direct access by a median is not

necessarily a “taking,” and therefore not compensable, is applicable only to inverse condemnation

actions, not to direct condemnation actions. (per Powell).

2) Direct condemnation: In direct condemnation actions, it appears that the following rules

apply to inclusion of access-related damages as a component of just compensation:

a. Direct access: Under Wilson, modifications to an abutting road, such as

installation of a raised median, can result in compensable damages based on the

standards set forth in that case (e.g., “any damage attributable to the planned

median is an incidental result of the exercise of the power of eminent domain”).

b. Traffic flow/closure of road: Under Carodale, loss of traffic flow resulting from

modification or closure of a road (whether abutting or non-abutting) is not

compensable.

c. Indirect access/closure of intersection: Loss of indirect access to and from a

non-abutting road (e.g., due to closure of an intersection with a nearby highway)

should be analyzed under Powell.

Federal Condemnation Practice

Sarah Spruill

“THE LAW AND LITIGATION OF EMINENT DOMAIN CASES IN SOUTH CAROLINA” February 18, 2020 Sarah Spruill

Comparison of State and Federal Condemnation Practice South Carolina Eminent Domain Procedures Act

(S.C. Code Ann. § 28-2-10, et seq.)

Federal Eminent Domain Procedure

(Rule 71.1, FRCP)

Prior to Notice • Negotiation and appraisal required prior to serving Notice of Condemnation

• Do title work • Survey access possible

Prior to Notice • Attempt negotiation

• Do title work

• No survey access process

Initiation of Action1 Service of Notice of Condemnation on all Landowners

- Must include: landowner information, property description, purpose and legal

authority for taking, form of condemnation, statement that appraisal has been

made, a project map and location within the county where the landowner can

view project plans, and an offer of payment in the appraised amount Filing of Notice with Clerk of Court - 30 days after service of Notice where no challenge is filed

- Must include: payment of appraised value (deposited with clerk of court),

affidavit stating payment offer has been rejected2, trial demand, and name and

address of each landowner to be notified for trial Possession / Quick Take - Condemnor may take possession as of the Filing of Notice and deposit with

the clerk of court of appraised value

- Can be done as of 30 days from Service of Notice of Condemnation,

provided there has not been a Challenge Valuation Determination - Not earlier than 60 days from Filing of Notice

- Either party can demand jury trial

- Just compensation value determined as of the date of Filing of Notice

Initiation of Action Service and Filing of Complaint / Notice of Condemnation - Must name at least one landowner (all that can be identified after reasonably

diligent search must be added before hearing on compensation)

- Must include: authority for the taking, uses for which property is to be taken,

description sufficient to identify property, interests to be acquired, and a

designation of each defendant / landowner

- May join multiple pieces of property in one action Answer - A landowner must raise any defenses by answer within 21 days of service

- Not required to answer (will not be held in default)

Possession/ Can seek access at end of 21 days, but will require court order.3 - To extent access is sought before compensation is determined and paid, one

would have to seek injunctive relief, which is generally granted in 4th Circuit

once it is established taking is appropriate

- Quick take available by statute in some cases (U.S. government will be

allowed access under Declaration of Taking Act)

Valuation Determination - Rule calls for expedited disposition, and multiple tracts of property can be

batched in one trial

- No 7th Amendment right to a jury trial (in diversity cases, state law will

control right to jury trial)

Possible Road Blocks to Possession Service Issues / Unknown Landowners These will require involvement by the Court to perfect service, and as such, mean that these actions will take more than 30 days for possession

- If service cannot be accomplished by mail / personal service, an order of

publication will be required and service will be accomplished by publication

over three weeks.

- If there are unknown landowners or landowners under disability (minors,

military, incompetent, imprisoned, etc.), a guardian will need to be appointed.

Landowner Challenge - A landowner may challenge the condemnation (as opposed to the just

compensation/valuation) by bringing action in a separate proceeding in the

Court of Common Pleas within 30 days of service of the Notice of

Condemnation.

- All condemnation proceedings will be stayed until the challenge is resolved

Possible Road Blocks to Possession Service Issues / Unknown Landowners - If landowner is unknown or cannot be personally served, counsel can file a

certificate for service by publication over three weeks.

Landowner Challenge - Must be made by answer within 21 days of service of the Notice of

Condemnation

1 Landowner and condemnor can settle at any time.

2 An offer can be rejected (1) by express rejection or (2) by failure to respond to the Notice of Condemnation.

3 This procedure is the same regardless of whether the landowner answers.

Condemnation Mediation

Jessica Crowson

Condemnation Mediation: Helpful Tips for a Successful Mediation

February 2020

South Carolina Bar CLE Presentation, Columbia, South Carolina

Presented by:

Jessica Clancy Crowson, Esq. Partner [email protected] www.rogerslewis.com

1901 Main Street, Suite 1200, Columbia South Carolina 29201 PO Box 11803 (29211) 803-978-2837 (direct dial) 803-256-1268, ext. 118 (main office) 803- 252-3653 (Fax)


http://www.rogerslewis.com/

http://www.rogerslewis.com/

Condemnation Mediation: Helpful Tips for a Successful Mediation February 2020 South Carolina Bar CLE Presentation, Columbia, South Carolina Jessica C. Crowson, Esq.

2

Condemnation Mediation: Helpful Tips for a Successful Mediation

I. Mediator: Picking the right Mediator for your condemnation is key to a

successful Mediation.

- Pick the right Mediator. Reach out to other condemnation attorneys for

Mediator suggestions.

- Mediator needs to have familiarity with condemnation.

- Mediator needs ability and willingness to push both sides and question both

sides’ assumptions, assertions, positions, and valuations.

II. Mediation Brief: Preparing a Mediation brief is usually optional; however, it is

an important component of a successful Mediation.

- Provide the Mediator with a thorough Mediation brief which focuses on the

specifics of your condemnation case.

- Include the Date of Take!!

- Point out what the parties agree on and what they disagree on. Important to

make this a clear distinction.

- Include pertinent information about the property at issue.

o What is property currently being used for?

o What is notable about areas around the property?

o What is the applicable zoning?

o Is the property developed or undeveloped?

o Is the property already encumbered?

o Are there existing property restrictions?

o Are the setback locations important for this condemnation?

o What is different now versus the Date of Take?

o Any access issues that are important?

- Include pertinent information about the Take.

o How does it impact the property?

o How much of the property does it encumber?

o What is being installed?


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o How will this impact access?

- Include appraisal amounts and where/how appraisals differ.

- Include status of pending litigation.

o Is discovery complete?

o What discovery is left to do?

o Any pending motions or motions that will be filed?

o Is there a pending trial date?

- Include overview of prior settlement discussions, including how far have the

parties come and whether or not settlement discussions have been

productive.

- Frame everything around the paramount question: What is the amount of just

compensation to which the owner is constitutionally entitled to receive?

III. Preparing for Mediation: Consider the following factors as you prepare for your

condemnation Mediation.

- The Split:

o Be aware of the split (the 50/50 mark) since per statute that sets who

pays other side’s attorney fees.

o Per statute, the Condemnor is required to pay the Landowner’s

“reasonable litigation expenses” if the jury returns a verdict above the

split. The Landowner’s attorney must apply for this within 15 days of

the entry of judgment. The application must:

▪ include that the Landowner prevailed,

▪ state the amount sought, and

▪ include an itemized statement from an attorney or expert

witness representing or appearing at trial on behalf of the

Landowner stating the fee charges, basis therefor, the actual

time expended, and all actual expenses for which recovery is

sought.

The Court shall determine the amount of litigation expenses to be

awarded. The Court in its discretion may reduce the amount to be

awarded. (§28-2-470).

- Statutory Interest:


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o Be aware of Date of Take and interest amount

o Condemnor must pay interest at the rate of 8% per year on the amount

of just compensation determined by a jury. Interest accrues from the

date of filing of the Condemnation Notice through the date of the

verdict or judgment. (§28-2-420).

- Attorney Fees/ Costs:

o Be aware of the amount your client will incur if the case continues

moving forward rather than settling at Mediation.

- Demonstrative Exhibits:

o Can be: maps, plats, surveys, pictures, videos, etc.

o Should show the applicable portion of the property both in the before

and in the after.

- View the Property:

o You should have already done this. If not, it is important to do so

before Mediation.

o Attorneys tend to get lazy on this, especially if the property is not local

to the attorney. Visiting the property in person can provide crucial

information that an attorney may otherwise miss.

o View the comparable sales as well. This is the best way to help you

understand if they are actually comparable or not.

- Appraisal:

o It is imperative that you know the details of both appraisals extremely

well. Mediations often come down to a battle of the appraisers, so

being armed and ready for this is key.

o Prepare an Appraisal Chart detailing both appraisals

▪ Where do the appraisers agree?

▪ Where do the appraisers disagree?

- Deposition Transcripts:

o Review the transcripts of all depositions that were taken in the case.

o Prepare a summary for your reference during the Mediation.

o Print particular pages from the transcripts with witness testimony that

is especially key to your arguments and positions, ie: testimony from

the other side’s expert witness or the Landowner herself. It is helpful

to have this at the Mediation to give to the Mediator during Mediation

break out to emphasize your point.


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- Know the Details:

o Dig into the details and know specifics about the disagreement

between the two sides.

o Be prepared to “prove” your case and discuss each issue in detail.

o Know the facts.

o Know the law on the critical issues.

o Have printed cases for the legal issues in dispute. Be ready to give the

Mediator copies of these cases.

- Experts:

o If the opinion of an expert is important, consider bringing the expert to

the Mediation so she may talk directly to the opposing party, opposing

counsel, and Mediator. This involves costs, so you must weigh the

cost/benefit analysis and discuss with your client.

o If your expert will not be at the Mediation, inform the expert of the

upcoming Mediation date and times. Ask her to have her appraisal

handy and be available by phone.

IV. At Mediation: As part of any Mediation preparation, much thought must be

given to the following considerations which each impact how the Mediation proceeds

and the end results:

- Decision Maker for Each Party:

o Decision maker for each party must be available. This is a requirement

for any Mediation, not just condemnation Mediations.

o If the decision maker will be available by phone rather than in

attendance at the Mediation, opposing counsel should be informed in

advance and provide consent.

o Having the decision maker present at the Mediation is preferable and

greatly impacts the Mediation outcome.

- Opening Statement:

o Condemnor gives first opening statement.

o Landowner gives second opening statement.

o In Condemnor opening statement:

▪ General overview of the property,

▪ General overview of the Take,


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▪ Discussion of what the parties agree on,

▪ Discussion of what the parties disagree on,

▪ Overview of applicable law (statutes and caselaw),

▪ Statement that in spite of all this, we are here in good faith to

resolve this matter.

- Power point versus no Power point:

o Consider the sophistication of both sides.

o Potentially more helpful for layman property owners.

o If power point will be used, be prepared with all necessary technology.

Do not assume the technology will be present at Mediation. Do not

assume the technology will work at Mediation. Have a backup plan

ready and available.

- Resources to have with you at the Mediation:

o Caselaw: Have copies of important cases (applicable to disputed issues

in the condemnation);

o USPAP, if appraisers and appraisals are disputed;

o Eminent Domain Statute;

o SC Civil Court and Evidence Rules.

V. Concluding the Mediation: Sometimes condemnations settle at Mediation.

Often times, they do not. Keep these thoughts in mind as the Mediation concludes:

- Know when to call it a day and walk away from the Mediation. Your best

option may be to end the Mediation. The Mediator is a helpful resource in

making this decision.

- Consider reconvening the Mediation at a later date.

- Memorialize everything in writing, including the settlement terms, the

obligations both sides agreed to, and that Mediation occurred. Include as

much detail as possible.

Challenge Actions

Paul de Holczer

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2020 The Law and Litigation of


Paul D. de Holczer, Assistant Chief Counsel

South Carolina Department of Transportation

955 Park Street, Columbia, South Carolina 29201 803-737-3065

[email protected]

DISCLAIMER: The views expressed in this publication do not necessarily reflect the views of the South Carolina Department of Transportation.

CHALLENGE ACTIONS

The first statutory reference to a challenge action arises at S.C. Code Ann. § 28-2-280. Form

and content of condemnation notice. This statute requires that notice of the availability of a

challenge action be given in the Noice of Condemnation and Tender of Payment, the

pleading which commences a challenge action.

This notice appears, according to statute, as:

"AN ACTION CHALLENGING THE CONDEMNOR'S RIGHT TO

ACQUIRE THE PROPERTY AND RIGHTS DESCRIBED HEREIN MUST

BE COMMENCED IN A SEPARATE PROCEEDING IN THE COURT OF

COMMON PLEAS WITHIN THIRTY DAYS OF THE SERVICE OF THIS

CONDEMNATION NOTICE, OR THE LANDOWNER WILL BE

CONSIDERED TO HAVE WAIVED THE CHALLENGE."

The second statutory reference to a challenge action arises at S.C. Code Ann. § 28-2-470.

This statute explains the challenge action:

§ 28-2-470. Proceedings to challenge condemnor's right to condemn.

An action challenging a condemnor's right to condemn must be

commenced in separate proceedings filed in the court of common pleas in the

county in which the property or a portion thereof is located. The action must

be commenced within thirty days after service of the Condemnation Notice

upon the landowner. All proceedings under the Condemnation Notice are

automatically stayed until the disposition of the action, if any, unless the

landowner and the condemnor consent otherwise. No issues involving the

condemnor's right to condemn may be heard in the trial upon the issue of just

compensation.


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Procedure to Challenge Condemnation

Under the Eminent Domain Procedure Act, “An action challenging a condemnor’s right to

condemn must be commenced in separate proceedings filed in the court of common pleas in

the county in which the property or a portion thereof is located.” S.C. Code Ann. § 28-2-470.

The Challenge Action must be commenced within thirty (30) days of the service of the

condemnation notice. The trial of the Challenge Action is separate from the trial on the issue

on just compensation. “No issue involving the Condemnor’s right to take can be heard in a

condemnation action.” S.C. Code Ann. § 28-2-470. The sole issue in a condemnation action

is, “What is Just Compensation?”

A Challenge Action can be waived by a landowner who does not file it in the prescribed time

frame. It can also be waived by a landowner who accepts or withdraws (“takes a drawdown”

of) the Tender of Payment (that is, the condemnor’s offer of just compensation tendered to

the Court at the time of filing). S.C. Code Ann. §§ 28-2-480 and 490.

The Challenge Action stays the condemnation action until the Challenge Action is resolved,

unless the parties agree otherwise. S.C. Code Ann. § 28-2-470. The Challenge Action may

be settled like any other case. S.C. Code Ann. § 28-2-40. (Compromise or settlement

permitted.). If the Challenge Action does not settle, the trial is held before a judge sitting in

equity without a jury. “An action challenging a condemnation under § 28-2-470 is

considered one in equity because it essentially seeks to enjoin the condemnation.” Georgia

Dept. of Transp. v. Jasper County, 355 S.C. 631, 586 S.E.2d 853 (2003) (citations omitted).

► Note that a landowner should not file a Challenge Action simply to delay a condemnation

and thus gain negotiation leverage with the condemnor: “If the court determines the right to

take issue was not raised and litigated in good faith by the landowner, the court must award

the condemnor the reasonable costs and litigation expenses incurred therein.” S.C. Code Ann.

§ 28-2-510. This is an important tool the Court can wield to prevent the filing of frivolous

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Challenge Actions which do not articulate a serious deficiency in a pending condemnation

action but are interposed simply to gain negotiating leverage. Oien Family Investments, LLC

v. Piedmont Municipal Power Agency, 424 S.C. 168, 817 S.E.2d 647 (Ct. App. 2018) (“The

Court finds that forcing a public utility to locate a transmission line where the landowner

wants it by challenging the condemnation is not good faith.”) (The trial court’s finding that

the challenge was not brought in bad faith for purposes of awarding costs and litigation

expenses is inconsistent with the substantive finding that the challenge action was not in

good faith.). Interestingly (and paradoxically), the Court did not remand for an award of

costs and litigation expenses to the condemnor. Neither party appealed to the South Carolina

Supreme Court.

A Challenge Action must be predicated on one or more alleged fatal deficiencies in the

condemnation action. These deficiencies are condemnor’s 1) fraud; 2) bad faith; or, 3) clear

abuse of discretion. When a landowner brings an action to enjoin a condemnation

proceeding, the burden is upon him to allege and establish fraud, bad faith, or clear abuse of

discretion on the part of the condemnor. Sease v. City of Spartanburg, 242 S.C. 520, 131

S.E.2d 683 (1963) See also Oien Family Investments, LLC v. Piedmont Municipal Power

Agency, 424 S.C. 168, 817 S.E.2d 647 (Ct. App. 2018).

Of the potential deficiencies in a condemnation, the deficiency of clear abuse of discretion is

most commonly pled. In legal terms, an abuse of discretion occurs when a decision is based

upon an error of law or upon a factual conclusion that is without evidentiary support. Fields

v. Regional Med. Ctr. Orangeburg, 363 S.C. 19, 609 S.E.2d 506 (2005) (See Thompson v.

Hammond, 299 S.C. 116, 382 S.E.2d 900 (1989)). The condemnor is sometimes accused of

abusing its discretion by seeking to acquire the property for a private use (rather than a public

use); for an unjustified, unnecessary or excessive use; by failing to make a reasoned decision,

with appropriate guiding principles, about the acquisition; or, by seeking to acquire more

property than is justified or necessary for the particular use.

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Some Challenge Actions are based on lack of public use. Different jurisdictions use the

terms “public benefit,” “public interest,” “public purpose”, and “public use,” and the terms

mean different things. The South Carolina Constitution uses the term “Public Use” and this

term, and what it denotes in this particular context, is significant in South Carolina

jurisprudence. Legislative findings which purport to make a determination of public use are

entitled to deference, but what is a public use is ultimately a judicial question. Edens et al. v.

City of Columbia et al., 228 S.C. 563, 571, 91 S.E.2d 280, 283 (1956).

Under South Carolina law the expansive pre-Kelo federal jurisprudence did not apply even

before Kelo. Kelo v. City of New London, 545 U.S. 469 (2005). South Carolina’s courts

have sometimes considered more expansive concepts of public use. Riley v. Charleston

Union Station Co., 71 S.C. 457, 51 S.E. 485 (1905); see also Timmons v. S.C. Tricentennial

Comm'n, 254 S.C. 378, 402, 175 S.E.2d 805, 817 (1970). Public Use means that “the public

must have a definite and fixed use of the property to be condemned, independent of the will

of the person or corporation taking title under condemnation, and that such use by the public

is protected by law.” Riley v. Charleston Union Station Co., supra, 71 S.C. at 486, 51 S.E. at

496 (Quoted in Edens, supra.). It means a fixed, definite, and enforceable right of use,

independent of the will of a private lessor of the condemned property, and it implies

possession, occupation, and enjoyment of the land by the public at large or by public

agencies. Georgia Dept. of Transp. v. Jasper County, 355 S.C. 631, 636 - 639, 586 S.E.2d

853 (2003).

The test as to whether roads are public or private is how many have a full and

unrestricted right in common to use them. If the public has the right to use the

way at pleasure and on equal terms, the way is a public one, even though in

reality it is seldom used . . . . If it is intended for the use of the public and

may be traveled by any person who desires to use it, the power of eminent

domain may properly be exercised, even though . . . it may accommodate only

a limited portion of the public or even only a single family . . . . Likewise,

land may be taken for a public highway, even though it constitutes a cul-de-

sac, has limited access . . . or leads to the residence of a single individual . . . .

Greenwood Co. v. McDonald, 302 S.C. 157, 394 S.E.2d 325 (1990).

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Perhaps the case most on point regarding public use is Karesh v. City Council of City of

Charleston, 271 S.C. 339, 247 S.E.2d 342 (1978). Although Karesh is not a condemnation

action and the challenge in Karesh was to a contractual arrangement, exercise of the power of

eminent domain was integral to the project. In Karesh, certain taxpayers brought an action

for declaratory judgment and injunctive relief to prevent the City from entering into a

contract with a private developer to construct a convention center-hotel complex in

downtown Charleston.

The critical issue in this case is whether the City of Charleston can condemn

land and lease it to a private corporation for the construction of a parking

facility and convention center containing rental commercial space. We believe

it cannot.

Karesh at 340. The South Carolina Supreme Court held that the City could not condemn

land and lease it to a private corporation for construction of a parking facility and convention

center containing rental commercial space because this would not be a taking of private

property for “public use” as required by South Carolina Constitution; specifically, Const. art.

1, § 13. The Court held that what constitutes a “public use” is ultimately a judicial question,

that the term is an elastic one in order to keep abreast of changing social conditions, and that

it presents a question of fact in each particular case. Karesh, citing Edens et al. v. City of

Columbia et al., 228 S.C. 563, 571, 91 S.E.2d 280, 283 (1956).

Just a year later, the South Carolina Supreme Court revisited essentially the same issues in

Goldberg v. City Council of City of Charleston, 273 S.C. 140, 254 S.E.2d 803 (1979).

Again, certain taxpayers brought an action for declaratory judgment to prevent the City from

entering into a contract with a private developer to construct a convention center-hotel

complex in downtown Charleston. Again, exercise of the power of eminent domain was

integral to the project.

The issue presented by this appeal was before the Court in Karesh v. City

Council of the City of Charleston, S.C., 247 S.E.2d 342 (1978) where we held

unconstitutional a joint undertaking of the City of Charleston with a private

developer for the construction and operation of the same off-street parking

facility that is the subject of this appeal.

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Here, the City Council has removed the constitutional impediments

enunciated in Anderson v. Baehr, 265 S.C. 153, 217 S.E.2d 43 (1975) and

present in Karesh. The City Council has determined that off-street parking

facilities are needed on the site to serve the burgeoning Market Street area and

the existing King Street area. Land is to be condemned for this purpose and

the City intends to construct on the land a municipal off-street parking facility.

The facility will be owned and operated by the City. The parking facility will

not be controlled as in Karesh by a private developer through a leasing

arrangement with the City, and the public will possess the enforceable right to

use the parking facility. There is no evidence of fraud or bad faith on the part

of the City Council.

The constitutional vice of a municipal corporation joining hands with a private

developer to undertake a project primarily of benefit to the developer is not

present in this project. By retaining exclusive ownership and control over the

parking facility the City Council has simultaneously avoided both the joining

of hands with a private developer and the undertaking of a project primarily of

benefit to a private developer.

The fact that the business patrons of the private developer, as members of the

general public, will also possess the enforceable right to use the parking

facility does not defeat the constitutional validity of this project.

Goldberg at 141.

Some Challenge Actions are based on lack of necessity. “Lack of necessity” stands for the

proposition that the condemnation is not reasonably necessary to accomplish the purpose of

the project. In a complaint that there is a lack of necessity, the condemnor is usually alleged

to have committed an abuse of discretion in that the scope of the acquisition exceeds what is

necessary for the purpose of the project. When a condemnation fails because of an abuse of

discretion in that there is a lack of necessity, the condemnor’s factual conclusions are found

to be without evidentiary support (failure of evidence). Perhaps the clearest discussion of

necessity is found in Atkinson v. Carolina Power & Light Co., 239 S.C. 150, 121 S.E.2d 743

(1961):

The legislature may delegate the power of determining the necessity of

exercising the power of eminent domain to public officers or boards or to

private corporations vested with the power of eminent domain, and in the

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absence of any statutory provision submitting the matter to a court or jury the

decision of the question of necessity lies with the body of individuals to whom

the state has delegated the authority to take. Generally, a determination by the

grantee or the power is conclusive and is not subject to judicial review, in the

absence of fraud, bad faith, or clear abuse of discretion.

Atkinson, 239 S.C. 150, 121 S.E.2d 743 (1961), citing Bookhart v. Central Electric Power

Company Cooperative, 222 S.C. 289, 72 S.E.2d 576, 578 (1952) (quoting from 29 C.J.S.,

Eminent Domain, § 89, p. 882). See also Timmons v. S.C. Tricentennial Comm'n, 254 S.C.

378, 402, 175 S.E.2d 805, 817 (1970). Note that in Oien, supra, the Court of Appeals found

that “Evidence in the record supports the circuit court’s finding that Piedmont exercised its

discretion in selecting the Middle Route through a rational decision making process

supported by a proper factual basis.” While the condemnor, Piedmont Municipal Power

Agency, did not have a written analysis supporting its exercise of discretion, the Court of

Appeals did not find that lack of a written analysis disqualified Piedmont’s analysis:

“Although it would have been difficult for Piedmont to have adequately considered all of the

necessary factors—environmental impact, land use, impact to individual landowners, costs

for the route, and visual impact—with regard to all three routes without any written notes,

memoranda, or subsequent reports, based upon [plaintiff’s expert’s] testimony, as well as the

facts of this particular case, we find no error.”

A responsible condemnor makes a reasoned and supported determination of what property

must be acquired for the proposed project, what property or properties are necessary. The

analysis in Southern Dev. and Golf Co. v. South Carolina Pub. Serv. Auth., 305 S.C. 507, 409

S.E.2d 428, 514 (Ct.App. 1991), aff'd as modified, 311 S.C. 29, 426 S.E.2d 748 (1993)

provides a useful guide for determining what factors must be considered by a condemnor:

The master also concluded Santee Cooper should be enjoined from

condemning a portion of Southern's property and from using an existing

easement on Southern's property because Santee Cooper clearly abused its

discretion in the selection of a route for the transmission line. We vacate the

decision of the master and remand to him with instructions that he direct

Santee Cooper to re-evaluate all the alternate routes in accordance with the

criteria outlined below and exercise its discretion in a choice of a route based

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upon that analysis. See Florida Power Corp. v. Gulf Ridge Council, 385 So.2d

1155, 1157 (Fla.Dist.Ct.App.1980).

. . . .

The route for the transmission line was chosen by John Rag, a transmission

design engineer for Santee Cooper. Rag testified he considered the criteria of safety, reliability, cost, and aesthetics in choosing the route. At the time

the route was chosen in 1987 Southern had not purchased the property. The

land was undeveloped and for sale. Santee Cooper had a pre-existing

easement running close to Little River Neck Road. Santee Cooper witnesses

testified no public notice was given concerning the proposed transmission

line. No property owners were contacted before the route was chosen

regarding anticipated use of their property. Further, while cost was considered by Santee Cooper the cost element involved anticipated construction cost of the line only without substantive regard to the cost to acquire the land.

. . . .

In his legal conclusions the master found Santee Cooper clearly abused its

discretion in the selection of the route for the transmission line. The master

relied upon the case of Florida Power & Light Co. v. Berman, 429 So.2d 79

(Fla.Dist.Ct.App.1983), petition denied, 436 So.2d 98 (Fla.1983). In that

decision, the Florida District Court of Appeal held that Florida law required a

condemning authority to consider five criteria in deciding which route to

select and which land to condemn. The criteria were (1) availability of an alternate route; (2) cost; (3) environmental factors; (4) long-range planning; and (5) safety considerations. Id. at 82. While a condemning

authority did not necessarily abuse its discretion by choosing one route over

another suitable route, the Florida court held the condemning authority did

abuse its discretion by making a selection of a route without weighing and

considering the factors. Id.

. . . .

By utilizing the factors of safety, reliability, aesthetics, and cost, Santee

Cooper has established legitimate criteria for a rational decision making

process and a valid exercise of discretion. This court does not imply such a list

of factors is exhaustive. Other condemning authorities may have other

legitimate criteria they consider. However, under the facts of this case, the

failure to legitimately consider land acquisition costs indicates Santee

Cooper's choice of a route lacks a factual basis. The master found Santee

Cooper's chosen route would cost almost four times the amount of the two

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alternates proposed by Southern. Santee Cooper merely contends it considered

all land values equal. Land acquisition cost is a basic component of cost and

should be considered by a condemning authority. This does not mean Santee

Cooper or any other condemning authority in the exercise of its discretion

may not choose a route which costs more than another route. Under some circumstances it is conceivable a more costly route may be chosen in a valid exercise of discretion based upon factors other than cost. We vacate this portion of the master's decision and remand with instructions

that the master direct Santee Cooper to re-evaluate its proposed route and the

alternate routes proposed by Southern. In this evaluation, Santee Cooper should consider its criteria of safety, reliability, aesthetics, and costs along with any other appropriate factors such as environmental conditions and long range area planning by public authorities. The cost factor should include land acquisition cost. Santee Cooper should then exercise its discretion in the choice of a route based upon a reasoned analysis of the relevant factors. By this opinion we do not imply that any route previously

considered is eliminated from the consideration process or that any new route

cannot be considered. We simply hold that a condemning authority must

exercise its discretion by a rational decision making process which is

supported by facts.

Southern Dev. and Golf Co. v. South Carolina Pub. Serv. Auth., 305 S.C. 507, 409 S.E.2d

428, 514 (Ct.App. 1991), aff'd as modified, 311 S.C. 29, 426 S.E.2d 748 (1993). Emphasis

supplied. It is important to note that the Supreme Court stated in its opinion: “Although we

agree with the Court of Appeals' analysis of the issue of abuse of discretion, in light of our

holding on the question of estoppel, we find the remand as ordered by the Court of Appeals

unnecessary.”

The National Environmental Policy Act (NEPA) gives a useful framework for considering

factors important in selecting the most appropriate design for a project. Wikipedia gives a

useful explanation of NEPA:

The National Environmental Policy Act (NEPA) is a United States

environmental law that promotes the enhancement of the environment and

established the President's Council on Environmental Quality (CEQ). The law

was enacted on January 1, 1970. To date, more than 100 nations around the

world have enacted national environmental policies modeled after NEPA.

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Prior to NEPA, Federal agencies were mission oriented. An example of

mission orientation was to select highway routes as the shortest route between

two points. NEPA was necessary to require Federal agencies to evaluate the

environmental effects of their actions. NEPA's most significant outcome was

the requirement that all executive Federal agencies prepare environmental

assessments (EAs) and environmental impact statements (EISs). These reports

state the potential environmental effects of proposed Federal agency actions.

Further the U.S. Congress recognizes that each person has a responsibility to

preserve and enhance the environment as trustees for succeeding generations.

NEPA's procedural requirements do not apply to the President, Congress, or

the Federal courts since they are not a "Federal agency" by definition.

However, a Federal agency taking action under authority ordered by the

President may be a final agency action subject to NEPA's procedural

requirements.

The Citizen's Guide to the National Environmental Policy Act is another helpful resource

from the Council on Environmental Quality for those that are not familiar with NEPA. This

45-page guide, published in December 2007, describes the NEPA process and provides

information on how citizens can get involved. The Citizen’s Guide can be downloaded here:

https://ceq.doe.gov/get-involved/citizens_guide_to_nepa.html

A Challenge Action may quite specifically challenge the grant of the power of eminent

domain to the condemning authority, or challenge the enabling legislation for the project.

Timmons v. S.C. Tricentennial Comm'n, 254 S.C. 378, 402, 175 S.E.2d 805, 817 (1970). The

pleading commencing a condemnation, the Notice of Condemnation and Tender of Payment,

must state the legal authority for the exercise of the power of eminent domain, so the

condemnor should already have confirmed the statutory grant of power. S.C. Code Ann. §

28-2-280(C)(4) mandates the Notice of Condemnation and Tender of Payment “allege the

basis of the condemnor's right to take the property by eminent domain and maintain the

action, including (i) a reference to the condemnor's legal authority to take the property; . . . .”

Note that our appellate courts have held that Condemnor’s failure to cite the proper statutory

authority in the Notice of Condemnation is not necessarily fatal when no party is “prejudiced

by the reference to the incorrect statutory reference” and the error may be “appropriately

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redressed by an amendment to the notice.” Hill v. York County Natural Gas Authority, 384

S.C. 483, 682 S.E.2d 809 (2009).

Remedy

The appropriate remedy in a Challenge Action is a temporary injunction to stop the

acquisition until and unless the condemnor cures the infirmity in the condemnation action.

Southern Dev. and Golf Co. v. South Carolina Pub. Serv. Auth., 305 S.C. 507, 409 S.E.2d

428, 514 (Ct.App. 1991), aff'd as modified, 311 S.C. 29, 426 S.E.2d 748 (1993). In Southern

Development, the Court of Appeals remanded the case to the Master with instructions that the

Master direct Santee Cooper to reevaluate its proposed route and the alternate routes

proposed by Southern Development.

If the grant of the power of eminent domain to the condemning authority is defective or the

enabling legislation is defective, then, arguably, the condemnor may be permanently enjoined

– or, at least until the General Assembly passes legislation which corrects the infirmity. The

condemnation may also be permanently enjoined if there are other specific issues which

make the condemnation inequitable, such as estoppel. Southern Dev. and Golf Co. v. South

Carolina Pub. Serv. Auth., 305 S.C. 507, 409 S.E.2d 428, 514 (Ct.App. 1991), aff'd as

modified, 311 S.C. 29, 426 S.E.2d 748 (1993).

By statute, a landowner prevailing in a Challenge Action is entitled to recover reasonable

attorney’s fees and litigation costs. “If, in the action challenging the condemnor's right to

take, the court determines that the condemnor has no right to take all or part of any

landowner's property, the landowner's reasonable costs and litigation expenses incurred

therein must be awarded to the landowner.” The recovery of reasonable costs and litigation

expenses is codified more than once: S.C. Code Ann. § 28-2-510(A); § 28-11-30(2)(a).

Case Law Update

William Dillard

2020 – The Law and Litigation of


Eminent Domain Case Law Update By William C. Dillard, Jr.

I. Direct Condemnation

Piedmont Nat. Gas Co., Inc. v. Smith, No. 2015-001909, 2018 WL 6419931 (S.C. Dec. 5, 2018) (unpublished opinion) (Stigma Damages; Prejudgment Interest on Deposited Funds)

Piedmont Natural Gas Company, Inc. condemned a fifty-foot right of way across private

property for a natural gas pipeline. The Supreme Court held that the jury verdict was supported by

evidence other than evidence of stigma to the property, and therefore declined to consider the issue

of “the propriety of awarding ‘stigma damages’ in a condemnation action.” Id. at *1.

The Court also held that the landowners were entitled to statutory prejudgment interest on

the entire amount of just compensation, and not just the difference between the condemnor’s

deposit and the jury award. The Court specifically rejected the condemnor’s argument that a

landowner’s statutory right to “draw down” a portion of the deposit precluded an award of interest

on that amount, stating that this right is not equivalent to the “fruits of possession” of the

condemned property pending litigation. Id. At *3.

S.C. Dep't of Transportation v. Powell, 424 S.C. 206, 818 S.E.2d 433 (2018), reh'g denied (Sept. 28, 2018) (Damages to the Remainder – Closure of Indirect Access)

SCDOT condemned 0.183 acre of Powell’s property to round the curve at the intersection

of two roads abutting the property (Emory Road and a Highway 17 frontage road). This

improvement was undertaken as part of a larger project centered on major improvements to the

nearby interchange of Highway 17 and another highway. Before the project, Highway 17 could be

accessed from Emory Road in close proximity to the Powell property. However, as part of the

project SCDOT also closed the intersection of Emory Road with Highway 17 – as a result, getting

to the property from Highway 17 required travelling a more circuitous route.

At issue in the case was whether Powell was entitled to damages based on diminished

indirect access to Highway 17. The Supreme Court, focusing on the statutory just compensation

provision, S.C. Code Ann. § 28-2-370 (“any diminution in the value of the landowner's remaining

property . . . may be considered”), declared that “[t]he record contains evidence the condemnation

of Powell'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.” Id. at 438. (See additional discussion in materials for “Implication of the Powell

Opinion.”).

Oien Family Investments, LLC v. Piedmont Mun. Power Agency, 424 S.C. 168, 817 S.E.2d 647 (Ct. App. 2018), reh'g denied (Aug. 16, 2018) (Condemnation Challenge Action – Abuse of Discretion)

Oien involved a landowner challenge action based on a dispute over the appropriate route

for a high voltage transmission line. After lengthy discussions between the landowner and

Piedmont over the appropriate route for the line, Piedmont condemned an easement running

through the middle of the property. The landowner filed a challenge action seeking, in effect, to

force Piedmont to re-route the line along the side of the property. The trial court ruled in favor of

Piedmont and the Court of Appeals upheld the result, holding that Piedmont did not abuse its

discretion in selecting the “middle route”.

The Oien opinion is very fact-specific and involves a long discussion of several different

issues in the record. Some of the lessons to be derived include that (1) although a written record

of an alternate route analysis or other decision-making process may not always be required to avoid

an abuse of discretion, a prudent condemnor can best ensure and demonstrate the integrity of its

analysis by maintaining a written record of its review of engineering, land cost, and other route

determination factors; (2) the challenge action abuse of discretion analysis from S. Dev. Land &

Golf Co. v. S.C. Pub. Serv. Auth., 305 S.C. 507, 409 S.E.2d 428 (Ct. App. 1991), aff'd in part, rev'd

in part, 311 S.C. 29, 426 S.E.2d 748 (1993), and Bookhart v. Cent. Elec. Power Co-op., 219 S.C.

414, 65 S.E.2d 781 (1951), is still good law; and (3) a landowner challenge action may be found

to be in bad faith (and result in an award of the condemnor’s attorney fees) if based on nothing

more than the landowner’s subjective preference to reroute or otherwise modify the project.

II. Inverse Condemnation

Knick v. Township of Scott, Pennsylvania, 139 S. Ct. 2162 (2019) (Inverse Condemnation – Abrogation of State Litigation Requirement)

A township regulation required owners of property with private cemeteries to keep the

cemeteries open and accessible to the public during daylight hours. Knick, a property owner

affected by the regulation, sought declaratory and injunctive relief in federal court under an inverse

condemnation theory. The Supreme Court held that property owners can file an inverse

condemnation claim in federal court without first pursuing relief in state court, overruling

Williamson Cty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

Burke v. S.C. Dep't of Transportation, No. 2017-001881, 2020 WL 216067 (S.C. Ct. App. Jan. 15, 2020) (Inverse Condemnation – Prejudgment Interest)

The landowner asserted an inverse condemnation claim against SCDOT in connection with

construction of the I-520 bypass in Aiken County and obtained a jury verdict of $134,000. The

question on appeal was whether an award of prejudgment interest was a question for the jury or,

instead, a matter for the court. The Court of Appeals held that the amount of prejudgment interest

in an inverse condemnation action is not a question for the jury. Instead, it is the province of the

trial court to award interest based on the statutory interest provision in the Eminent Domain

Procedures Act, at the statutory rate of 8%. See 28-2-420 (““[a] condemnor shall pay interest at

the rate of eight percent a year upon sums found to be just compensation by the appraisal panel or

judgment of a court to the condemnee.”). As the Court explained, “[the] premise—that inverse

condemnations should not be subject to different procedural rules than traditional condemnations

governed by the Act—controls. There is no good reason to treat the two differently. It would be

strange to tell inverse condemnation juries they must consider and calculate interest, while juries

in statutory condemnation actions would be relieved of the task. In both cases, the jury's role is to

determine just compensation.” Burke at *2.

Ray v. City of Rock Hill, 428 S.C. 358, 834 S.E.2d 464 (Ct. App. 2019), reh'g denied (Nov. 22, 2019) (Inverse Condemnation – Stormwater Repairs – Affirmative Act)

The circuit court granted summary judgment to the City on the plaintiff’s inverse

condemnation claim, finding that any damage resulting from the City’s maintenance and repairs

of storm water pipes, and specifically its alleged reconnection of stormwater pipes to a pipe

running underneath the plaintiff’s home, was not caused by an “affirmative, positive, aggressive

act.” The Court of Appeals reversed, holding that there was a question of fact as to whether the

repairs caused the damage to the plaintiff’s home. The Court held that evidence the City repaired

leaks in several upstream pipes and reconnected the pipe under the plaintiff’s home was sufficient

to create an issue of fact on the “affirmative act” issue. As the Court characterized the plaintiff’s

theory of the evidence, “the City undertook a permanent public project to modernize its

infrastructure . . . and, as a result, it took positive steps to direct its storm water system flow

directly under her home.” 428 S.C. at 366, 834 S.E.2d at 469.

Palmer v. State, 427 S.C. 36, 829 S.E.2d 255 (Ct. App. 2019), reh'g denied (July 12, 2019) (Wrongful Conviction – No Takings Clause Remedy)

On consideration of an issue of first impression, the Court of Appeals held that the Takings

Clause does not provide a remedy for wrongful conviction.

Georgetown Cty. v. Davis & Floyd, Inc., 426 S.C. 52, 824 S.E.2d 471 (Ct. App. 2019), reh'g denied (Mar. 29, 2019), cert. granted (Aug. 5, 2019) (Inverse Condemnation – Government Property)

Georgetown County alleged that a joint water drainage project undertaken by SCDOT and

the City of Georgetown had resulted in sinkholes and damage to County buildings, and asserted

claims for, among other things, inverse condemnation. The Court of Appeals held that the County,

as a governmental entity, could not bring an inverse condemnation claim because it cannot own

“private property” as contemplated under the state constitution Takings Clause. S.C. Const. art. I,

§ 13(A) (“Except as otherwise provided in this Constitution, private property shall not be taken for

private use without the consent of the owner, nor for public use without just compensation being

first made for the property.”). Furthermore, ‘[a]s a state-created agency, SCDOT is an arm of the

state. Like SCDOT, the County is a creature of the state. Political subdivisions of the state have

no ancestor other than the state and its citizens, nor do they possess a separate sovereignty.

Accordingly, we hold the County may not bring an inverse condemnation claim against its

‘creator,’ the state.” 426 S.C. at 59, 824 S.E.2d at 475.

Carolina Chloride, Inc. v. SCDOT, No. 2016-001440, 2018 WL 776633 (S.C. Ct. App. Feb. 7, 2018), cert. denied (August 21, 2018) (unpublished opinion) (Inverse Condemnation – Easement for Access to “Abutting” Road)

In an unpublished summary opinion decided without oral argument, the Court of Appeals

upheld the trial court’s dismissal of the plaintiff’s inverse condemnation claim, explaining, “[a]s

to whether Carolina Chloride's property did not abut Farrow Road . . . ‘[a] property owner in South

Carolina has an easement for access to and from any public road that abuts his property, regardless

whether he had additional access to and from another public road[’] . . . ‘Abut’ means to be

contiguous, or border on; to bound upon; to end, end at, or terminate, to join at a border or

boundary; to meet; to touch at the end or side.’” Id. at *1 (internal citations omitted).

Pulte Home Corp. v. Montgomery Cty., Maryland, 909 F.3d 685 (4th Cir. 2018) (Regulatory Takings – Denial of Development Approval – Penn Central)

The Fourth Circuit held that amendment of a local “Master Plan” and denial of a

developer’s request for increased sewer service in an environmentally sensitive area did not

constitute a regulatory taking. Applying the Penn Central factors, the Court determined that (1) a

hypothetical 83% reduction in value of the property is in and of itself insufficient to demonstrate

a taking, (2) based on regulations existing at the time of the landowner’s purchase, it had no

reasonable expectation to obtain easy approval of dense development, and (3) the character of

government action (regulation of development and density in a sensitive watershed area) was not

in the manner of a taking. “Development restrictions designed to protect a vulnerable watershed

and source of drinking water are an entirely appropriate form of local regulation, and they are

unlikely to amount to a regulatory taking particularly where, as here, the landowner is not left with

a mere token interest but instead can still develop its property.” 909 F.3d at 696.

III. Interesting Cases from Other Jurisdictions

Helmick Family Farm, LLC v. Comm'r of Highways, 297 Va. 777, 832 S.E.2d 1 (2019) (Evidence of Probable Rezoning Relevant to Just Compensation)

“[E]vidence concerning the reasonable probability of a rezoning is admissible in a

condemnation proceeding . . . . The reason for allowing the factfinder to hear such evidence is

obvious: a willing buyer will pay more for property that presents a fair prospect for more favorable

zoning than a property that offers no such prospect. . . . In short, the reasonable prospect of a

favorable rezoning has an effect on the market value of the property and is, therefore, relevant.”

Id. At 5 – 6. “We conclude, in accord with the overwhelming weight of persuasive authority, the

standards that govern real estate assessments, and the leading treatise on eminent domain, that the

reasonable possibility of a rezoning should be taken into consideration in compensating

landowners.” Id. at 8.

Himsel v. Himsel, 122 N.E.3d 935 (Ind. App. 2019), reh'g denied (July 12, 2019) (Regulatory Taking – “Right to Farm Act”)

The Indiana Right to Farm Act, which restricts nuisance claims against pig farms and

similar operations, did not constitute a regulatory taking of neighboring property that was allegedly

significantly devalued by the smell. In effect applying a Penn Central analysis, the court explained,

the Plaintiffs have not been deprived of all or substantially all economic or

productive use of their properties. . . . Indeed, their own expert valued the

Lannons' property at $ 51,500 (at an estimated 60% loss in value) and the

Himsel Plaintiffs' property at $ 181,2000 (at an estimated 49.5% loss in

value) with the CAFO nearby. . . . Moreover, they continue to reside in their

residences, making valuable use of their properties, and have alleged no

distinct, investment-backed expectations that have been frustrated . . . .

Finally, with respect to the character of the governmental action, we do not

agree with the Plaintiffs that the RTFA has permitted a physical invasion of

their property. While their property rights are clearly affected by application

of the RTFA, the Plaintiffs cannot dispute that the regulation is reasonably

related to the promotion of the common good.

Id. at 947–48.

Xinbing Song v. Sessions, 882 F.3d 837 (9th Cir. 2017) (Political Asylum – Eminent Domain Protest)

“A petitioner is eligible for asylum when his imputed or actual political opinion was one

central reason for his past persecution.” Id. at 841.

From the government's perspective, Song was the leader of a large group of

local residents protesting the government's eminent domain

policy. Song organized over one hundred people to block the entrance of a

government building. . . . The police arrested, beat, and tortured Song when

he hung a banner stating he would rather die than give up his property and

refused to vacate. Song was jailed for three days. He was only released

when his family was able to pay 10,000 Yuan and the injuries he had

sustained from the beatings and torture required medical aid.

Id. at 842.

“The evidence before the IJ and BIA compels the conclusion, at the very least, that Chinese

authorities persecuted Song because of a political opinion they imputed to him. We therefore grant

the petition for review, vacate the BIA's denial of asylum, and remand for consideration of

whether Song has met the other elements for asylum relief before exercising discretion whether to

grant asylum.” Id. at 843.

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