Opinion
19910
November 14, 1974.
Messrs. Julius W. McKay, and A.L. Moses of McKay, Sherrill, Walker, Townsend Wilkins, Columbia, and James Stevens, of Stevens Holt, of Loris, for Appellant, cite: As to the Trial Court's erring in finding that the Demurrer was predicated on the ground that an improvement made to a right-of-way or a public road or street is not a betterment for which compensation can be had under the statute: § 57-401 et seq. S.C. Code of 1962; 197 S.E.2d 290; 39 Am. Jur.2d Highways, § 159; Section 10-205 of the S.C. Code. As to the Court's erring in holding that the Betterments Act does not apply to a public street, the error being that the language of the Betterments Act contains no exceptions to its applications: 17 S.C.L.Q. 397, 399; 373 F.2d 209; 165 S.C. 33, 162 S.E. 599; 149 S.C. 178, 146 S.E. 815; § 57-401 of the 1962 Code; 251 S.C. 138, 161 S.E.2d 163; 104 S.C. 311, 88 S.E. 801; 1960-61 Op. Atty. Gen. 206; Restatement Second of Trust, § 269. As to the Court's erring in holding that Betterments Act does not authorize a monetary judgment, the error being that the Betterments Act read together with § 47-1323, under the circumstances of the facts presented in this case, authorize a monetary judgment: 183 S.C. 49, 190 S.E. 120, 110 A.L.R. 144; 211 S.C. 492, 46 S.E.2d 52; 212 S.C. 17, 46 S.E.2d 252; 73 S.C. 83, 52 S.E. 874; 110 A.L.R. 153; 63 C.J.S. Municipal Corporations § 975; § 7439 of the 1932 Code.
Messrs. David R. Gravely of Bellamy, Rutenberg, Epps Gravely, and John E. Copeland, of Copeland Van Osdell, of Myrtle Beach, for Respondent, cite: As to the Trial Court's properly finding that the Demurrer was predicated on the grounds that an improvement made in the right-of-way or public road or street is not a betterment for which compensation can be had under the statute in question: § 57-401 of the South Carolina Code of Laws (1962); 231 S.C. 628, 99 S.E.2d 729; 58 S.C. 544, 36 S.E. 1001. As to the Court's properly holding that the Betterments Act does not apply to a public street: 144 S.C. 89, 142 S.E. 39; 101 S.C. 350, 85 S.E. 903; 248 S.C. 130, 149 S.E.2d 326; 197 S.E.2d 290, 297. As to the Court's properly holding that the Betterments Act does not authorize a monetary judgment: South Carolina Code § 57-406.
Julius W. McKay, and A.L. Moses, of McKay, Sherrill, Walker, Townsend Wilkins, of Columbia, and James Stevens, of Stevens Holt, of Loris, for Appellant, in Reply.
November 14, 1974.
In this action the plaintiff, Grand Strand Amusement Park (Grand Strand), seeks to recover from the defendant, City of Myrtle Beach (City), "judgment against Defendant, pursuant to the South Carolina Betterments Act, S.C. Code Ann. (1962) § 57-401 et seq. in the amount of $250,000.00," for improvements to Spivey Beach Road. The City demurred to the complaint. The lower court sustained the demurrer. Grand Strand has appealed.
The action is a sequel to the case of City of Myrtle Beach v. W.M. Parker, 260 S.C. 475, 197 S.E.2d 290 (1973). Our decision in that case, to which Grand Strand was a party, held that the City had not abandoned Spivey Beach Road which Grand Strand was occupying. We ruled that the City held the street in trust for the use and benefit of the general public.
According to the agreed statement of facts, in 1964 Grand Strand obtained a leasehold interest in property on both sides of a portion of Spivey Beach Road in the City, said lease containing an option to purchase. Grand Strand took the view that the road had been abandoned by the City and proceeded to improve the road and use it. The present action seeks to recover from the City money allegedly spent for the improvements to the road.
There are several grounds of the demurrer, and three exceptions are taken to the ruling of the lower court, but the only real issue is set forth in the agreed statement as follows: "The Demurrer, as interpreted by the Lower Court, brings into question the applicability of the Betterments Act, Section 57-401 et seq. to a public street."
Section 57-401 of our Betterments Act provides as follows:
"Defendants to be awarded full value for improvements in certain cases. — After final judgment in favor of the plaintiff in an action to recover lands and tenements, if the defendant has purchased the lands and tenements recovered in such action or taken a lease thereof or those under whom he holds have purchased a title to such lands and tenements or taken a lease thereof, supposing at the time of such purchase such title to be good in fee or such lease to convey and secure the title and interest therein expressed, such defendant shall be entitled to recover of the plaintiff in such action the full value of all improvements made upon such land by such defendant or those under whom he claims, in the manner provided in this chapter."
Subsequent sections of the act provide that the improver may bring an action for the improvements made against the party who dispossessed him. And if a judgment is procured it becomes a lien upon the property which may be sold to satisfy first the party who prevailed in the first action, and secondly the improver. The judgment debtor has, under the act, the right to satisfy the judgment and avoid the sale.
Grand Strand argues that the easement of the City is an interest in land as contemplated by the term "lands and tenements" used in the statute. When the entire statute is read, it becomes obvious that Grand Strand's claim is not brought within the scope of the Betterments Act. The demurrer as construed is predicated on the ground that an improvement made to a right-of-way for a public road or street is not a betterment for which compensation can be had under the act. We agree.
We are dealing with an easement for a road which is held by a municipality in trust for the public. Clearly, the property would not be subject to sale to satisfy the judgment. The Betterments Act provides no other means for the enforced collection of an award thereunder, which does not possess the incidents of a money judgment.
The demurrer was properly sustained.
Affirmed.
MOSS, C.J., and LEWIS, BUSSEY and BRAILSFORD, JJ., concur.