Belue v. City of Spartanburg

280 S.E.2d 49, 276 S.C. 381, 1981 S.C. LEXIS 413

Opinions

Littlejohn, Justice.

In this action Carl Belue, plaintiff (landowner), alleges that he is entitled to money damages against the defendants, City of Spartanburg- and its Water Works Department, because the City’s water main burst, flooding his property and damaging it. He seeks recovery on three theories:

(1) Damage to his property was a taking within Article I, § 17 of the South Carolina Constitution;

(2) The bursting water main and subsequent damage to his property constituted a nuisance, and/or

(3) The bursting water main and subsequent damage was caused by City’s negligence in maintaining the water main.

The defendants demurred, asserting that the complaint failed to state a cause of action entitling the landowner to recover money damages. The trial court sustained the demurrer. The landowner has appealed.

We agree with the lower court which held that the allegations of the complaint are directly repugnant to the longstanding rule of sovereign immunity based on a long line of decisions in .this state, including Boyce v. Lancaster County Natural Gas Authority, 266 S. C. 398, 223 S. E. (2d) 769 (1976); Hicks v. City of Columbia, 225 S. C. 553, 83 S. E. (2d) 199 (1954) ; Furr v. City of Rock Hill, 235 S. C. 44, 109 S. E. (2d) 697 (1959); and a more recent case of Teague v. Cherokee County Memorial Hospital, 272 S. C. 403, 252 S. E. (2d) 296 (1979). The plaintiff is not entitled to recover on the basis of alleged nuisance or negligence.

We are of the opinion that the lower court correctly held that the flooding of the landowner’s property was not a taking of private property for public use as contemplated by the constitution. Although not advanced as the basis for the holding, to constitute a valid cause of action for an unconstitutional taking of property, the complaint must allege a positive, affirmative, aggressive act on the part of the municipality. Kline v. City of Columbia, 249 S. C. 532, 155 S. E. (2d) 597 (1967). Here, the complaint fails.

The allegations do not bring the action within § 5-7-70, Code of Laws of South Carolina (1976), which permits an action to be brought based upon a defect in a street.

Accordingly the trial court properly sustained the demurrer.

Affirmed.

Lewis, C. J., and Gregory, J., concur. Ness and Harwell, JJ., dissent.