South Carolina State Highway Department v. Smith

172 S.E.2d 827, 253 S.C. 639, 1970 S.C. LEXIS 298

• Court: Supreme Court of South Carolina
• Decided: March 3, 1970
• Docket: 19021
• Status: Published

Opinions

Louis Rosen, Acting Associate Justice.

This appeal is from an award of damages in a condemnation proceeding originally upon twelve Exceptions, two have been abandoned and the others have been presented under five questions. We need only consider one for disposition of this appeal.

The question is whether error was committed in allowing testimony and giving jury instructions as to depreciation in value of personal property used by landowner in the operation of a business on the condemned land but not taken by the condemnor.

The condemned property, consisting of 1.01 acres being a portion of 2.6 acres (all buildings on portion condemned), owned by the landowner, Charlotte M. Smith, is located at the intersection of State Road 12 and State Road 568 about three miles southeast of Camden, South Carolina. Landowner operated a grocery store-filling station on the condemned property which contained “the normal store equipment,” consisting of such items as a meat case, a coca-cola box, scale, a meat sheer, a cash register and an adding machine. This equipment was removed from the premises by the landowner before the property was taken but in anticipation of condemnation. It is landowner’s position that this property has become a “liability” to her because there is no ready market for used store equipment and that she is therefore entitled to compensation. At the trial testimony was allowed to show depreciation in the value of this equipment and the trial judge instructed the jury that such depreciation, if found by them, could be allowed as an element of compensation.

The power of eminent domain is inherent in the sovereignty of the State. Riley v. South Carolina State Highway Department, 238 S. C. 19, 118 S. E. (2d) 809 (1961). The South Carolina Constitution, Article I, Section 17 limits this sovereignty by requiring just compensation for private property taken for public use. The method of ascertaining the amount of just compensation is provided for by S. C. Code Ann. Sec. 33-135 (1962).

The doctrine that private property, whether real or personal, may be taken for public use, upon just compensation to the owner, has long been recognized in this State. Lindsay v. East Bay Street Com’rs, 2 Bay (2 S.C.L.) 38; Ford v. Whitaker, 1 Nott & McC. (10 S.C.L.) 5; Stark v. McGowen, 1 Nott & McC. (10 S.C.L.) 387, 9 Am. Dec. 712; Singleton v. Com’rs of Roads, 2 Nott & McC. (11 S.C.L.) 526; Eves v. Terry, 4 McCord (15 S.C.L.) 125; State v. Dawson, 3 Hill (21 S.C.L.) 100; and Louisville, C & C. R. Co. v. Chappell, Rice (24 S.C.L.) 383.

“ ‘Property,’ in its constitutional sense, also includes personal property * * 26 Am. Jur. (2d), Eminent Domain, Sec. 173, p. 849 (1966).

The question here then is whether or not the personal property involved, namely, the meat case, a coca-cola box, scales, a meat sheer, a cash register and an adding machine, belonging to the landowner and used in her business located in a building situate on the land being taken by the State Highway Department, was included in the taking. We think not.

When land is taken under the power of eminent domain, the ownership of personalty kept on the premises taken, but not permanently affixed thereto, is not affected; and the owner is entitled to remove same as was done here. Actually, here the removal of the personal property was done by the landowner before the taking of the land and buildings thereon.

“A majority of the State Courts hold that, in the absence of a statute or agreement to the contrary, the removal costs of a stock of merchandise, or other personal property, and the breakages or other injury to such property caused by such removal, from a leasehold or fee in land, where there is an entire taking of the whole of the condemnee’s estate under the sovereign power of eminent domain, cannot be considered as an element of damage, since such loss is not a taking of property.” (Citations omitted) Williams v. State Highway Commission, 252 N. C. 141, 113 S. E. (2d) 263, 266.

This is simply because personal property, unlike fixtures, can be removed from the condemned premises. See 4 Nichols on Eminent Domain, Sec. 13.13 (3d ed. rev. 1962) (1969 Supp.) ; 27 Am. Jur. (2d) Eminent Domain Sec. 293 (1966).

“It is generally held that damages in condemnation proceedings should be allowed in respect of fixtures which have become a part of the realty.

“ * * * (but) compensation cannot be recovered in such a proceeding for damages resulting to personal property not annexed (at least constructively) to the freehold.” Annot, 90 A.L.R. 159-60 (1934).

The lower court erred in allowing testimony as to damages to personal property and in charging thereon. The judgment is therefore reversed and remanded for a new trial.

Reversed and remanded.

Moss, C. J., and Littlejohn, J., concur. Bussey and Lewis, JJ., dissent.