Opinion
14275
April 8, 1936.
Before OXNER, J., Greenville, January, 1935. Affirmed.
Condemnation proceedings by the South Carolina State Highway Department against George B. Bobotes and others. From an order permitting plaintiff to abandon the proceedings, defendants appeal.
The order of Judge Oxner, requested to be reported, follows:
This order is upon the petition of the highway department for permission of the Court to abandon the condemnation proceedings instituted herein on or about the 3d day of August, 1934.
On or about that day the highway department served written notice upon the defendants that it would require for highway purposes the property of the defendants situate at the corner of Pendleton Street and Woodside Avenue in the Town of West Greenville. Notice was further given that a condemnation hearing would be held in the city hall of West Greenville on the 15th day of August, 1934, for the purpose of determining and assessing the value of said property. Said hearing was duly held as authorized by statutes, and the value of said property was assessed at $6,000.00. The property owners, being dissatisfied with said valuation, appealed from said award to the Court of Common Pleas. Said appeal came on to be heard before the Court and a jury at the October term, 1934, and resulted in the jury assessing the value of the property at $11,850.00, and a verdict against the highway department for such amount. Judgment was attempted to be entered on said verdict. Attorneys for the highway department noticed and argued a motion for a new trial, which was overruled by the Court. Thereafter, on or about the 27th day of October, 1934, attorneys for the highway department served notice of their intention to appeal to the Supreme Court, which said appeal was abandoned on or about December 19, 1934. On that day the highway department petitioned the Court for an order authorizing the department to abandon the proceedings, it being alleged in said petition that the valuation placed upon the property was greatly in excess of its real value, in the opinion of the highway department, and because thereof it would be improvident to acquire the property. It was further alleged that the department had made no entry upon the property, nor had it exercised any dominion or control over said property, nor had it announced its election to pay the award and acquire the property.
Hearing on said petition came on before the Court, and the question, both pro and con, was ably presented by counsel in oral and written argument.
In approaching a solution of this interesting question, the Court has first reviewed the authorities generally for the purpose of deducing a conclusion and then the decisions of this State to ascertain to what extent they are in sympathy or accord with such view.
Accordingly, the Court has reached the opinion that, in the absence of statutory abridgment, the right of the condemnor to discontinue the proceedings and reject the property sought to be acquired cannot be denied as a general rule. This right, however, is not an absolute one. There is a well-defined point of time or stage of the proceedings after which the right to abandon is lost. The vesting of the owner's right to compensation is considered the pivotal fact which determines the incidence of that stage of the proceedings, and such vesting of the right to compensation is concurrent with the taking of the property becoming complete. The vesting of the right to compensation and the completed taking are reciprocal and correlative, though the latter determines the former. The taking is said to become complete, in so far as it perfects the right to compensation, in either of two cases: First, from an actual viewpoint, that is, upon physical entry and appropriation of the property by the condemnor to the contemplated public use; second, from a procedural standpoint, that is, that particular stage of the proceedings at which ownership of the property is divested and transferred to the condemning party.
The Court finds as a matter of fact there was and has been no actual taking or appropriation of the property in question by the highway department, and this angle of the question goes out of consideration for the present. It, however, will be referred to later.
While there is some conflict of opinion as to what stage of the proceedings the taking becomes complete so as to vest the right to compensation, such disagreement in the main is due to various conflicting statutory and constitutional provisions. In those states having constitutional requirements that private property shall not be taken for public purposes without just compensation first being made therefor, it is almost uniformly held, in the absence of actual entry, that the taking does not become complete until the condemnor pays or tenders the amount of the final award to the property owner. Such constitutional provision is found in most of the states, including our own.
It is apparent that the within proceedings did not progress that far, and the Court is forced to the conclusion that the taking did not become complete so as to vest the right of compensation from either of said two considerations.
By virtue of such fixation of time at which the taking is rendered complete, the Courts generally hold that "the condemnation proceedings, the award or verdict and judgment therein merely serve the office of fixing and determining the value of the property sought, that the condemning party has the election of accepting the award and acquiring the property or rejecting the award and abandoning the proceedings"; provided, of course, as above pointed out, the condemning party in the meanwhile has not actually invaded the property and proceeded with the contemplated improvement. Such recognized right of election seems to be based upon considerations of public policy, which requires that the cost of a proposed project be first ascertained before it is finally determined to launch the enterprise.
The decisions and policy of this State unquestionably are in full accord with the foregoing conclusions. The Court is not unmindful of the apparent inequality of the parties, in that, the property owner is obliged to sell and the condemnor is not required to take, but as was observed in the Haig case, 119 S.C. 319, 112 S.E., 55, 59, "such is the law in this and other States where the statutes have not otherwise provided."
A few of the controlling authorities considered by the Court are reviewed.
Nichols on Eminent Domain (2d Ed.), Vol. 2, Par. 417:
" When the Right to Discontinue the Proceedings Expires. — Before attempting to pass upon the nature and effect of the judgment entered in eminent domain proceedings, it is necessary to consider the decisions which involve the right of the condemning party to discontinue or abandon the proceedings which it has itself instituted. In every form of procedure for appropriating land for the public use, there must be a point when the right of the condemning party to discontinue the proceeding is lost and the right of the owner of the land to the compensation becomes vested, but there are few principles of general application which determine the incidence of this point, and it depends largely upon the statutes and practice of the different States.
"As far as the constitutional rights of the condemning party are concerned, it would be competent for the legislature to provide that condemnation proceedings should not be discontinued after the first step had been taken, or it might be provided that the owner's right to compensation should become absolute at any later point in the proceedings, for a corporation granted the power of eminent domain must take it with whatever conditions the legislature may choose to burden it. It is also well settled that so far as the rights of the owner of the property are concerned, eminent domain proceedings are, from their inception until the taking is complete, wholly within the control of the State which authorized them, and at any time during the pendency of the proceedings the condemning party may be permitted to abandon the undertaking altogether, or select a different location, and give up all claim to the site to which it had originally chosen and started to take. On the other hand, once the land is actually taken the owner is constitutionally entitled to be paid its value in money, and if the public improvement is abandoned before he is paid, the owner cannot be compelled to take back the property with damages for its detention only. There can be no discontinuance of the proceedings once the taking is complete. When the taking is complete is a question of substantive law depending upon the eminent domain procedure of each State. * * *
"But although it is generally agreed that the proceedings may be discontinued at any time before the right to judgment is complete, that is before the award of the commissioners has been confirmed by the Court or the verdict of a jury has ripened to a judgment, upon the effect of a judgment the cases are in conflict. In several States it has been held that after the proceedings have gone to judgment or the award has been confirmed, the owner's right to compensation has vested, and subsequent discontinuance of the proceedings cannot impair that right. On the other hand, in many States in which it is required that compensation be paid in advance, as there can be no taking until the compensation is actually tendered or paid, it has been held that the right to compensation is not absolute until the taking is complete, and that in the absence of any statutory provision showing a legislative intent to the contrary, it may be defeated even after judgment by a discontinuance of the proceedings at any time before payment is made or possession of the property is actually taken."
Many cases cited in the footnotes sustain this text.
Haig v. Wateree Power Company, 119 S.C. 319, 330, 112 S.E., 55, 59: "The case at bar was brought under the condemnation statute. The verdict of the jury fixed the value of the future right to flood certain lands of the condemnee. No damage had been done, and no right of the landowner had been invaded. It was optional with the condemnor whether it would take the land at its assessed value or decline to do so. Until the land was actually taken, no obligation rested upon the condemnor to pay the award fixed by the jury. No title vested until payment of the award. There could be no final determination of the rights of the parties in the action so long as the taking of the property, payment of the award, and vesting of the right was optional with either party. "The act of condemnation is not complete until the damages assessed have been paid or tendered.' Corpus Juris, Vol. 20, p. 1082. If the condemnor had elected not to take the property, the judgment could not have been enforced, as the landowners' right to compensation had not vested. `The general rule is, the condemnation proceedings may be dismissed, or abandoned, at any time before, but not after, the landowner's right to compensation has become vested.' Corpus Juris, Vol. 20, p. 1079."
Lewis on Eminent Domain (3d Ed.), Vol. 2, Pars. 955 and 956:
"The Right to Abandon After the Proceedings are Complete. — The weight of authority undoubtedly is that, in the absence of statutory provisions on the question, the effect of proceedings for condemnation is simply to fix the price at which the party condemning can take the property sought, and that even after confirmation or judgment the purpose of the taking may be abandoned without incurring any liability to pay the damages awarded. * * *"
The author devotes the remainder of this section just quoted to discussion and review of the authorities, including the decisions from New York, Nebraska, Maine, and a Tennessee case by the Federal Court of Appeals. The author, at the bottom of page 1680 makes the following summarization: "These decisions from New York, Nebraska, Maine, and the Federal Court of Appeals are the only ones contrary to the doctrine stated at the beginning of this section."
These same decisions are the ones relied on by counsel for the property owners, and it is apparent that they represent the minority view. The decisions of this State are in line with the prevailing view. The Haig case, supra, seems to be very clear to this effect. Quoting further from that case 119 S.C. 319, at page 328, 112 S.E., 55, 58:
"As the statute does not fix a time within which the award must be paid, the amount thereof cannot be required until the time of the actual taking or entry on the land. We know of no statute or decision in this State, and none has been cited, that sustains the position that upon an award the condemnor is obliged to take the property and pay the award. An examination of the holding of the Courts in other jurisdictions reveals the fact that the weight of authority is that, in the absence of statutory provisions on that question, the effect of proceedings for condemnation is simply to fix the price at which the party condemning can take the property sought, and that even after confirmation the purpose of taking the property may be abandoned without incurring any liability to pay the amount of the award. The reason for the rule appears to be that —
"`Whenever land is sought to be taken for a public purpose, the public authorities, in the absence of any statutory provision to the contrary, have a reasonable time, after the ascertainment of the expenses of the scheme, to decide whether to accept or refuse the land at the price fixed.'"
Quoting further from said case, 119 S.C. 319, at page 331, 112 S.E., 55, 59: "In the case at bar, the verdict was rendered on the 7th day of March, 1918, and the landowners' right to compensation did not vest until the condemnor elected to take the property on the 3d of February, 1919. Until that time there was no final determination of the rights of the parties. Section 304 of the Code of Laws of South Carolina defines a judgment to be `the final determination of the rights of the parties in the action.'"
Mr. Associate Justice Cothran in his concurring opinion in the Haig case, supra, 119 S.C. 319, at page 335, 112 S.E., 55, 61, made the following observation: "The respondents contend that they were entitled to enter judgment upon the verdict in the Court of Common Pleas, and that as such it bore interest from the date of such entry. Whether the verdict was such an adjudication of the rights of the parties as warranted the entry of a judgment upon it depends upon the question whether or not there was an absolute obligation at that time upon the power company to take the property so condemned and to respond to the award. `A judgment is the final determination of the rights of the parties in the action.' Code, § 304. It seems clear that if the condemnor, after the award has been made, had the right to abandon his project entirely and neither take the property nor pay the award, in other words, if compliance with the award is entirely optional with him, that which is optional does not comply with the definition of a judgment. `The final determination of the rights of the parties.' We know of no statute or decision, and none have been cited to us, that sustains the position that upon an award the condemnor is obliged to take the property and pay the award; common experience is to the contrary, and suggestions or efforts to compel the condemnor to take and pay have been abandoned."
Mr. Associate Justice Fraser, while dissenting on some questions involved in the Haig case, was in full agreement with the Court in this respect. At page 338 of 119 S.C. at page 61 of 112 S.E., it was stated: "While the corporation has the right to take the property and pay the compensation as fixed, it is under no obligation to take it. The only thing the verdict does is to fix the compensation to be paid if the corporation shall see fit to take the property. There being no obligation on the part of the corporation to take the property, an absolute judgment cannot be had. The only judgment that can be had is a conditional judgment, that if the corporation shall determine to take the property, it shall, as a condition precedent, pay the compensation. A judgment is a final determination of the matter in issue between the parties. There can be no final determination until after the verdict, and the verdict does not form the basis of a final judgment."
Manion v. Louisville, St. L. T. Ry. Co., 90 Ky., 491, 14 S.W. 532, 533: "In this state compensation must be actually paid or tendered before any right passes to the railway company, and hence there is no reason for requiring it to pay for property with the title and possession in the owner as it existed before condemnation. * * * Now, when the company concludes not to enter and inflict this injury, the owner ought not to insist upon its doing so. The weight of authority undoubtedly is that, in the absence of statutory provision, the effect of provisions for condemnation is simply to fix the price at which the party condemning can take the property, and that even after condemnation or judgment the purpose of the taking may be abandoned without incurring any liability to pay the damages awarded. Lewis, Em. Dom. § 656. Such is the correct rule on the subject, and to adjudge otherwise would require the applicant, whether a private corporation or a state or municipality, to submit to the imposition of exorbitant values upon property condemned for public use, and to often take possession or purchase that which would be detrimental instead of beneficial to the public interests."
State ex rel. Struntz et al. v. Spokane County et al., 85 Wn., 187, 147 P., 879, 880:
"The purpose of an award by a jury or otherwise in condemnation proceedings is simply to fix the amount to be paid by the condemnor before it can appropriate land to the desired purpose, and when this price is ascertained the condemning party, in the absence of statutory provisions to the contrary, has a reasonable time to determine whether to accept or refuse the land at the price fixed. We know of no rule of law that compels a party seeking to condemn land for public use to proceed with the appropriation when in its judgment the price to be paid is exorbitant.' The cost of construction and other necessary expenses are questions which necessarily must be taken into consideration by the board of county commissioners before it can determine whether the financial condition of the county treasury or the funds available for such purposes warrant the construction of a proposed county highway, and it is because of this that such a board is vested with a discretion to determine whether or not it will proceed — a discretion which cannot be properly exercised until it has been definitely, or at least approximately, ascertained what the total cost will be. Since the courts exercise judicial powers only, it follows that this discretion, which is of a legislative character, cannot be controlled by the courts. * * * The decree in this case gives to the county the right to appropriate the land of relators upon payment of the award, and this is all that it could do, since under our Constitution there could be no appropriation until the damages had been first ascertained and paid. The judgment entered on the verdict is therefore not an appropriation of the land, and no decree to that effect could be entered until this judgment had been complied with and the money paid into court for the benefit of relators.
"Relators contend that the entry of this judgment in the award gave them a vested right to the money of which the subsequent action of the board could not deprive them. Under statutes such as ours the rights of the parties are correlative. There can be no vested right in the one party until there is a vested right in the other, and, since the condemning party can obtain no vested right in the land until it has paid the award, it follows that the other party can have no vested right in the award until by its payment title to the land is vested in the condemning party."
Chandler v. Morey et al., 195 Ill., 596, 63 N.E., 512, 514: "The judgment of condemnation merely fixes the amount of the damages as the amount of compensation to be paid to the owner for the taking of his property. Of itself, it does not pass the title to the land sought to be condemned to the petitioner seeking to condemn it. The judgment is conditional, and does not effect the condemnation of the land until the payment of the award by the petitioner. Before payment, the party seeking condemnation may abandon the location, and select another."
City of Chicago v. Hayward, 176 Ill., 130, 52 N.E., 26: "A judgment in a condemnation proceeding, finding the compensation to be awarded to the land or lot owner, gives the corporation condemning the right to the land on condition that it first pays for the same. The verdict and judgment only settle the value of the real estate which the party condemning seeks to appropriate. Under such condemnation proceedings the city is under no legal obligation to pay any money whatever, unless it chooses to do so. The proceeding merely fixes the amount to be paid before the property can be lawfully taken. The city has a right to abandon the improvement."
Stevens et al. v. Borough of Danbury, 53 Conn., 9, 22 A., 1071, 1072: "There is here, it will be seen, no provision that the amount assessed shall constitute a debt which may be recovered of the borough by the owner of the property proposed to be taken. The amount is fixed by the proceedings as the sum to be paid if the land is taken, and its payment is clearly a condition precedent of the right to take it. The mere incipient or theoretical taking is really only a proposed taking. This is manifest from the use of the word `take' in the resolution in relation to lands taken for the laying of pipes, where the proposed taking, upon which the proceedings for the assessment are had, is a very different thing from the actual entry upon and digging up of the land for the laying of the pipes. We conclude, therefore, that the borough, after the assessment, had still the right to abandon the idea of taking the land, and the whole project if it deemed best, and that the only security that the owner of the property had, was in the necessity of the borough making payment before the land was actually taken."
In view of the foregoing authorities, the statutory provisions under which condemnation proceedings herein were had do not contemplate or authorize the entry of final judgment in the usual legal sense of the term as fixing and determining the rights of the parties. The contemplated judgment is a conditional one, not capable of acquiring the character of finality until the highway department should exercise its election to take the property and pay or tender the award. The attempted entry of the judgment itself vested no right of property in the highway department, and no right of the owners to compensation. The decision in the Mauldin case, 64 S.C. 444, 42 S.E., 202, is not controlling here. There the judgment held authorized to be entered as a final judgment was for damages already sustained. The Haig case, supra, very clearly refutes the idea that the holding in the Mauldin case is authority for the entry of final judgment in condemnation proceedings.
The conclusion is inescapable that the right of abandonment exists in the present case.
So much for general considerations of the question. The attorneys for the property owners very forcibly urged three particular angles of the case in support of their denial of the right of the highway department to abandon the instant proceedings. The Court has given each of them careful thought and study and has been forced to conclude that they do not justify any deviation from the views already announced. In fairness, the Court will discuss these features and assign its reasons for not being in a position to agree with counsel.
It is contended that the statutory provisions under which the proceedings in the Haig case were had are different from those controlling in the case at bar; that the statutes involved in the case at bar contemplate a final and complete judgment, vesting the owner's right to compensation. Sections 5923, 5924, and 5925 of the 1932 Code authorizing condemnation by the highway department provide for appeal from the preliminary award to the Court of Common Pleas as regulated by Section 5813 of the 1932 Code. Section 5813 prescribing the appeal from the preliminary award to the Court of Common Pleas reads as follows: "The verdict of the jury in such cases shall be final, unless set aside for the reasons for which verdicts may be set aside in other cases, or unless the judgment of the Court thereupon shall be reversed, for error of law, on appeal to the Supreme Court."
In the Haig case, it was stated that the proceedings therein were had under Sections 3292-3305 of the 1912 Code. Section 3296 of the 1912 Code granting the right of appeal to the Circuit Court is as follows: "And the question of compensation shall be thereupon submitted to a jury in open Court, whose verdict shall be final and conclusive, unless a new trial shall be ordered by the Supreme Court."
These two provisions as to finality are substantially the same. The last-mentioned section contemplates some kind of a judgment, as there could be no appeal from a verdict at the time of the Haig case. But such judgment contemplated by this section and Section 5813 of 1932 Code is only a conditional judgment, not a final determination of the rights of the parties in the action. The statutory provision as to finality can only mean finality of the amount to be paid in the event the condemning party elects to take the property.
The Court is of the opinion that the decision in the Haig case is controlling. It is suggested that the Haig case is obiter dictum, in that the question of abandonment was not the question there. However, the force and effect of the final verdict, judgment, and the right of election were squarely before the Court in that case.
Sections 7297, 7368, 8458, 8532, and 8454 of the 1932 Code, authorizing condemnation by railroads, water companies, etc., have the same provisions as to finality of the award and verdict upon appeal to the Court of Common Pleas. Notwithstanding these provisions, Section 7298 of the 1932 Code recognizes the right of municipal and quasi-public corporations to refuse to pay the final award and the right to abandon the proceedings. It is noticed that this section does not confer the right of abandonment; that right is presupposed as existing at common law. This section merely prescribes the conditions upon which it may be exercised, that is, upon paying the costs and expenses incurred by the property owner in the proceedings. If as a matter of legislative policy, municipal corporations and quasi-public corporations are recognized as having the right to reject the final award and abandon the proceedings, it is difficult to see why the State itself, or one of its agencies, should not have that privilege. The fact that apparently no restrictions were imposed by said section upon the State in the exercise of that right is not sufficient to warrant the conclusion that the right was intended to be denied the State.
It is suggested that Section 7298 has no application to the case at bar in that the highway department is neither a "municipality or other corporation," and this is conceded by the attorneys for the property owners. Whether or not the section is broad enough to give the property owners in this proceedings relief is not before the Court and is not considered or passed upon.
It is further contended that the tender of the preliminary award by the highway department to the property owners, and the deposit of same with the State treasurer pending the appeal, completed the taking and vested the owner's right to compensation.
The Court is of the opinion that mere tender of the preliminary award to the property owners could not have had the effect of completing the taking. Such tender has to be made to ascertain whether the property owner will accept. No cases have been cited and none are found holding that tender of the preliminary award has that effect. See introductory note to the Annotation found in 16 L.R.A. (N.S.), at page 537. Quoting from that note briefly: "* * * It may be laid down as a universal rule that under constitutions forbidding the taking of private property without just compensation being first made, actual tender or payment of the final award is a condition precedent to the divesting of the title of the owner to his land or easement and its vesting in the condemning party."
As to the deposit of the preliminary award Section 5923 of the 1932 Code provides that in case of appeal by the property owner from the preliminary award the highway department may immediately, after tendering to the owner the amount of the award, proceed with the contemplated work. It further provides that the amount of the award shall be kept intact pending the outcome of the appeal. No place of such deposit is prescribed by the statute. In the case at bar it appears that a voucher for the amount of the preliminary award was tendered the property owners by the highway department immediately after the preliminary award, and, upon refusal of the property owners to accept same, the amount of the award was deposited in the highway department right-of-way deposit fund in the State treasurer's office and earmarked "George B. Bobotes." Thereafter, the highway department did not enter the property, and on or about December 15, 1934, after decision to abandon the proceedings, the deposit was withdrawn.
As we have already seen, payment or tender of the final award or actual entry and appropriation of the property are the two conditions precedent to the taking becoming complete. The deposit, even if made as regulated by statute, not accompanied by actual entry, could not have the effect of completing the taking.
The Wingard case, 150 S.C. 418, 426, 148 S.E., 366, is relied on by counsel of the property owners for the proposition that deposit of the preliminary award completes the taking. In that case, both sides appealed from the preliminary award, and the condemnor, after tender of the amount of such award to the property owners, made the deposit as required by statute, entered the property, and proceeded with the work. After threats of physical violence by the property owners to the servants and employees of the condemnor, the condemnor instituted proceedings to enjoin interference with the prosecution of the project. The injunction was granted. It was contended by the property owner that Article 1, § 17, of the Constitution prevented the taking of his property without compensation first being paid. There was actual entry, and that fact unquestionably completed the taking so as to vest the right to compensation, but this question was not involved — compensation was not claimed. It is not clear from the reading of that case whether the effect of the deposit of the preliminary award was to render the taking complete so as to divest ownership; but if such was the case, it distinctly appears that the basis of the holding in that case was Article 9, §§ 20, 21, of the Constitution of 1895. That section (Section 20), reads as follows: "Right of Way. — No right of way shall be appropriated to the use of any corporation until full compensation therefor shall first be made to the owner or secured by a deposit of money."
It was held that the provision for the deposit of money effectively negatives the contention that the compensation must first be actually paid the owner. The Court said, taking Article 1, § 17, alone, there was support of the position of the property owner, but that this provision should be read in connection with Article 9, §§ 20, 21.
Manifestly Sections 20, 21 of Article 9 have no application to the highway department.
It is next contended that the building of the board fence by the highway department in Pendleton Street in front of the property in question constituted a complete taking so as to entitle the property owners to compensation. Testimony on this question was taken, and it appears that shortly after the preliminary steps in the condemnation proceedings this board fence or barrier about seven feet in height was erected in Pendleton Street about five feet from the line of the property in question. The property line is about eighteen inches from the street, that is the highway; there is no sidewalk at all in front of the building. It was testified to by officials of the highway department that the barrier was erected to provide a safe temporary walkway in the street for pedestrians pending the acquisition of the property which was to be used for a sidewalk. No actual entry was made on the property, and it appears from the testimony that the department exercised no control or dominion over the property. While there may or may not be a cause of action in favor of the property owners against the highway department for damages resulting from interfering with the easement of light and air under the theory of the Derrick case, 122 S.C. 29, 114 S.E., 857, and other kindred cases, this question the Court is not purporting to determine. But assuming for the present discussion that such cause of action exists, it is predicated not upon an actual taking but upon a theoretical entry or taking. Damages in such an action are assessed on the basis of a pro tanto taking, not on the basis of an entire taking. While based upon Article 1, § 17, of the Constitution, such an action is of tort character for damages already sustained — it is not considered a condemnation proceeding. Ownership of the property is not divested by such a proceeding. Such theoretical taking could not have the effect of transferring ownership and title of the property to the highway department and vesting the right of the property owners to compensation for the entire value of the property. As already seen, actual physical entry and appropriation of the property is necessary to vest the owner's right to compensation and to complete the taking, so as to prevent an abandonment of condemnation proceedings.
It is further advanced by counsel that the right of abandonment after final award should be denied, otherwise the property owner would be subject to repeated proceedings by the condemning party in an effort to obtain finally a favorable award. While there is some authority for this position, the great weight of authority is to the contrary. See Nichols on Eminent Domain (2d Ed.), Par. 418; Lewis on Eminent Domain (3d Ed.), Vol. 2, Par. 960, and cases cited in both.
The fact that the highway department sought a new trial and noticed an appeal to the Supreme Court should not impair the right of abandonment; authorities are to this effect. Notice of the intention to abandon was seasonable, that is, came within a reasonable time after relinquishment of the appeal.
For the foregoing reasons, the petition for abandonment of the proceedings should be granted, without obligation on the part of the highway department to respond to the award or take the property, and it is so ordered.
Messrs. Price Poag, for appellants, cite: Effect of tendering amount of award: 150 S.C. 418; 148 S.E., 366; 135 U.S. 641; 34 L.Ed., 295; 169 U.S. 557; 42 L.Ed., 853; 159 U.S. 380; 110 S.C. 321; 96 S.E., 301; 126 Tenn., 343; 149 S.W. 103; Ann. Cas., 1913-E, 1058; 148 S.E., 367; 76 S.W. 888; 86 S.W. 609; 84 S.W. 615. As to abandonment of condemnation proceedings: 24 A., 280; 86 Am. Dec., 199; 102 A., 321; Ann. Cas., 1918-D, 945. Construction of condemnation statute: Sec. 5813, 5923-5925, Code 1932; 119 S.C. 319; 112 S.E., 55; 149 Fed., 698; 85 S.C. 172; 67 S.E., 136; 98 U.S. 405; 25 L.Ed., 206. Rights of abutting property owners: 126 S.C. 484; 120 S.E., 236; 117 S.C. 259; 109 S.C. 151; 13 R.C. L., 142; 18 Cyc., 856; 20 C.J., 689; 67 S.C. 522; 123 S.E., 494; 75 S.C. 232; 59 L.R.A., 399; 167 S.C. 217; 166 S.E., 129; 135 U.S. 432; 34 L.E., 231; 69 S.E., 561; 91 S.E., 206; 20 C.J., 1085.
Messrs. W.B. McGowan and D.A. Holt, for respondent, cite: Legal tender: 101 S.C. 32; 85 S.C. 164; 150 S.C. 418; 148 S.E., 366; 14 S.W. 532; 147 Pac., 879; 22 A., 1071.
April 8, 1936. The opinion of the Court was delivered by
This case comes to this Court on appeal from an order of his Honor, Judge G. Dewey Oxner, under which order his Honor permitted the South Carolina State Highway Department to abandon the condemnation proceedings instituted in the case. The history of the case, as set forth in the record, may be stated, in substance, as follows:
On August 3, 1934, the South Carolina State Highway Department, acting through its right of way engineer, served notice of condemnation proceedings upon the appellants. It appears that this notice was in the usual form and to the effect that the highway department required right of way through and over the property of the appellants, located in the Town of West Greenville, Greenville County, said State, and that the notice referred to described the dimensions of the right of way intended to be taken. It further appears that the description in question covered the entire lot and building of the appellants, "fronting 51.3 feet on Pendleton Street, the highway which was being constructed and improved; 24.1 feet on Woodside Avenue, and 24.95 feet on Lois Street, with a rear line of 55.6 feet." It was further stated in the notice served that a public hearing would be held on the matter involved in the town hall of West Greenville, at 3 o'clock p. m., August 15, 1934, for the purpose of ascertaining the appellants' damages. Pursuant to said notice, a hearing was had on the matter on the said date and evidence introduced thereon, after which arguments were made by counsel. In this connection it may be stated that the board of condemnation was composed of E.S. Booth, E.L. Culler, and C.O. Hearon, members of the South Carolina Highway Commission, and this commission, after said hearing, awarded damages to the appellants in the sum of $6,000.00. Not being satisfied with the award by said board, appellants, on August 20, 1934, through their counsel, served notice of intention to appeal to the Court of Common Pleas for Greenville County, and in said notice stated the grounds of such appeal, and further stated therein that the appellants would ask the Court for damages in the sum of not less than $18,000.00. On the same date, August 20, 1934, the appeal was docketed by the Clerk of said Court on Calendar No. 1, as case No. 308 1/2, for September, 1934, term. Thereafter, September 5, 1934, the attorneys for the appellants received a voucher from the highway department for the sum of $6,000.00, payable to the appellants, which voucher was refused and promptly returned to the highway department. Mr. Black, acting for the department, duly acknowledged receipt of the voucher so returned and stated, in effect, that he had deposited the voucher with the State Treasurer in accordance with the statutes, and the voucher was so deposited and earmarked, "George B. Bobotes Case." Following this, October 5, 1934, the case came on for trial in said Court before his Honor, Judge William H. Grimball, and a jury. In this connection it is well to state that pursuant to notice counsel for the highway department made a motion to strike from the appeal papers any reference to the award of $6,000.00. This motion was granted by the trial Judge. The record further shows that the trial of the case in said Court consumed two days, and on October 16, 1934, the jury returned the following verdict:
"We, the jury, find that the actual value of the property in question at the time of the taking was eleven thousand eight hundred fifty dollars, and we find a verdict therefore for this amount against South Carolina State Highway Department.
"[Signed] W.D. HARRIS, Foreman."
The record further discloses that the highway department made a motion for a new trial nisi, upon the ground that the verdict was excessive. Upon due consideration, his Honor, Judge Grimball, on October 19, 1934, filed a written order overruling this motion, and on October 22, 1934, attorneys for the highway department served due notice of intention to appeal to the Supreme Court. December 6, 1934, the appellants entered judgment against the South Carolina State Highway Department for the sum of $11,850.00. This judgment, as the record discloses, is shown as Judgment Roll E-4651 in the said office of the Clerk of Court for Greenville County. December 19, 1934, counsel for the State Highway Department served upon counsel for appellants a petition, wherein the department asked permission of the Court to abandon the said condemnation proceeding, and attached to the said petition a notice to the effect that on December 24, 1934, counsel would appear before his Honor, Judge Oxner, and ask for an order permitting and authorizing the said abandonment, and on the same date attorneys for appellants served notice that at the same time they would ask the Court for an order dismissing respondent's appeal to the Supreme Court, upon the ground that the same had not been perfected. This latter motion was granted by an order signed by his Honor, Judge Oxner, dated January 23, 1935. The record further discloses that the defendants, in due time, served an answer to the petition, setting forth the facts and denying the right of the highway department to abandon the said proceeding. It further appears from the record that there being some dispute as to the facts under the issues raised by the pleadings, his Honor, Judge Oxner, issued an order referring the matter to P.N. Becton, Esq., as Special Master, to take the testimony and report the same to the Court. Thereafter, after references were held before the Special Master, the case was argued before his Honor, Judge Oxner, May 11, 1935, and on June 10, 1935, Judge Oxner filed an order in which he granted the petition and held in said order that the South Carolina State Highway Department was entitled to abandon the said condemnation proceeding. As stated the case is before this Court on appeal from the said order of his Honor, Judge Oxner, and it is agreed by counsel that the sole issue under the pleadings and testimony is whether or not the highway department had the right to abandon the said condemnation proceeding at the particular time under the facts and circumstances of the case.
The order of his Honor, Judge G. Dewey Oxner, dated June 8, 1935, which order will be incorporated in the report of the case, is satisfactory to this Court. The exceptions are overruled, and it is therefore the judgment of this Court that the said order, and the judgment thereon, be and the same is hereby affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE concur.