"Whether the plaintiff has established a claim for inverse condemnation is a matter for the court to determine." WRB Ltd. P'ship v. Cty. of Lexington , 369 S.C. 30, 32, 630 S.E.2d 479, 481 (2006) ; Cobb v. S.C. Dep't of Transp. , 365 S.C. 360, 365, 618 S.E.2d 299, 301 (2005) ("[I]n an inverse condemnation case, the trial judge will determine whether a claim has been established; the issue of compensation may then be submitted to a jury at either party's request."). Even though the trial court must decide the threshold question of whether a government entity's actions amount to an affirmative, positive, aggressive act, the question is one of fact, not law. If a genuine issue of material fact exists as to whether the government entity committed an affirmative, positive, aggressive act causing damage to private property, summary judgment is not proper.
"To prevail in such an action, a plaintiff must prove `an affirmative, aggressive, and positive act' by the government entity that caused the alleged damage to the plaintiffs property." WRB Ltd. P'ship v. County of Lexington, 369 S.C. 30, 32, 630 S.E.2d 479, 481 (2006) (citations omitted). "A landowner has the burden of proving damages for the taking of the landowner's property, whether through condemnation proceedings or by inverse condemnation."
"[T]o prevail in an inverse condemnation action, 'a plaintiff must prove an affirmative, aggressive, and positive act by the government entity that caused the alleged damage to the plaintiff's property.'" Ray, 434 S.C. at 47, 862 S.E.2d at 263 (quoting WRB Ltd. P'ship v. Cnty of Lexington, 369 S.C. 30, 32, 630 S.E.2d 479, 481 (2006)). An "affirmative act" only amounts to an "affirmative, positive, aggressive act" when it has been proven to have caused or precipitated the damage in question.
As to whether West/Hobby established a taking occurred: Carolina Chloride, Inc. v. S.C. Dep't of Transp., 391 S.C. 429, 435, 706 S.E.2d 501, 504 (2011) ("The elements of an action for an inverse condemnation are: (1) affirmative conduct of a government entity; (2) the conduct effects a taking; and (3) the taking is for a public use." (citing Byrd v. City of Hartsville, 365 S.C. 650, 657, 620 S.E.2d 76, 79 (2005))); WRB Ltd. P'ship v. Cty. of Lexington, 369 S.C. 30, 32, 630 S.E.2d 479, 481 (2006) ("Whether the plaintiff has established a claim for inverse condemnation is a matter for the court to determine." (citing Cobb v. S.C. Dep't of Transp., 365 S.C. 360, 365, 618 S.E.2d 299, 301 (2005))); id. ("To prevail in such an action, a plaintiff must prove 'an affirmative, aggressive, and positive act' by the government entity that caused the alleged damage to the plaintiff's property."
As to whether West/Hobby established a taking occurred: Carolina Chloride, Inc. v. S.C. Dep't of Transp., 391 S.C. 429, 435, 706 S.E.2d 501, 504 (2011) ("The elements of an action for an inverse condemnation are: (1) affirmative conduct of a government entity; (2) the conduct effects a taking; and (3) the taking is for a public use." (citing Byrd v. City of Hartsville, 365 S.C. 650, 657, 620 S.E.2d 76, 79 (2005))); WRB Ltd. P'ship v. Cty. of Lexington, 369 S.C. 30, 32, 630 S.E.2d 479, 481 (2006) ("Whether the plaintiff has established a claim for inverse condemnation is a matter for the court to determine." (citing Cobb v. S.C. Dep't of Transp., 365 S.C. 360, 365, 618 S.E.2d 299, 301 (2005))); id. ("To prevail in such an action, a plaintiff must prove 'an affirmative, aggressive, and positive act' by the government entity that caused the alleged damage to the plaintiff's property."
We hold DOT's alleged conduct could constitute an affirmative, positive, and aggressive act that would support Tipperary's inverse condemnation claim. See WRB Ltd. P'ship v. Cty. of Lexington, 369 S.C. 30, 33, 630 S.E.2d 479, 481 (2006) (reversing summary judgment in favor of the county because capping a landfill, which resulted in methane gas venting onto the plaintiff's property, was "an affirmative, aggressive, positive act"), Berry's On Main, Inc. v. City of Columbia, 277 S.C. 14, 16, 281 S.E.2d 796, 797 (1981) (ruling "the removal of a public sidewalk and support in the course of an urban redevelopment project constitutes the affirmative, positive, aggressive act our cases require for a taking"); Kline v. City of Columbia, 249 S.C. 532, 537, 155 S.E.2d 597, 599-600 (1967) (finding that improving and widening a public street is an affirmative, aggressive, and positive act). 6. We agree with Tipperary that the circuit court, in dismissing its negligence claim against the City, incorrectly based this ruling on the absence in Tipperary's complaint of any allegation of an affirmative, positive, and aggressive act. As we have previously noted, proof of such an act by a governmental entity is necessary to prevail on an
We hold DOT's alleged conduct could constitute an affirmative, positive, and aggressive act that would support Tipperary's inverse condemnation claim. See WRB Ltd. P'ship v. Cty. of Lexington, 369 S.C. 30, 33, 630 S.E.2d 479, 481 (2006) (reversing summary judgment in favor of the county because capping a landfill, which resulted in methane gas venting onto the plaintiff's property, was "an affirmative, aggressive, positive act"), Berry's On Main, Inc. v. City of Columbia, 277 S.C. 14, 16, 281 S.E.2d 796, 797 (1981) (ruling "the removal of a public sidewalk and support in the course of an urban redevelopment project constitutes the affirmative, positive, aggressive act our cases require for a taking"); Kline v. City of Columbia, 249 S.C. 532, 537, 155 S.E.2d 597, 599-600 (1967) (finding that improving and widening a public street is an affirmative, aggressive, and positive act). 6.
Successful inverse condemnation actions require a plaintiff to establish the government committed an affirmative, aggressive, and positive act causing damage to the plaintiffs property. WRB Ltd. P'hsip v. County of Lexington, 369 S.C. 30, 32, 630 S.E.2d 479, 481 (2006). The only time frame in which the alleged taking could have occurred would have been after County's February 13, 2003 letter.
& Power, 219 Cal. App. 3d 1124, 1141, 268 Cal.Rptr. 559 (1990) ; Scott v. County of Custer, 178 P.3d 1240, 1243 (Colo. App. 2007) ; Cumberland Farms, Inc. v. Town of Groton, 262 Conn. 45, 70, 808 A.2d 1107 (2002) ; Department of Agric. & ConsumerServs. v. Bonanno, 568 So. 2d 24, 28 (Fla. 1990) ; Covington v. Jefferson County, 137 Idaho 777, 780, 53 P.3d 828 (2002) ; Hampton v. Metropolitan Water Reclamation Dist., 2016 IL 119861, ¶ 23, 405 Ill.Dec. 131, 57 N.E.3d 1229 ; Zimmerman v. County Comm'rs of Wabaunsee County, 293 Kan. 332, 344, 264 P.3d 989 (2011) ; Alevizos v. Metropolitan Airports Comm'n of Minneapolis & St. Paul, 298 Minn. 471, 484, 216 N.W.2d 651 (1974) ; 6224 Fontenelle Blvd., L.L.C. v. Metropolitan Utils. Dist., 22 Neb. App. 872, 879, 863 N.W.2d 823 (2015) ; McCarran Int'l Airport v. Sisolak, 122 Nev. 645, 661, 137 P.3d 1110 (2006) ; Wilkinson v. Board of Univ. & Sch. Lands, 2017 N.D. 231, ¶ 22, 903 N.W.2d 51 ; Harris v. Town of Lincoln, 668 A.2d 321, 327 (R.I. 1995) ; WRB Ltd. Partnership v. County of Lexington, 369 S.C. 30, 32, 630 S.E.2d 479 (2006) ; Hallco Tex., Inc. v. McMullen County, 221 S.W.3d 50, 56 (Tex. 2006) ; E-L Enters., Inc. v. Milwaukee Metro. Sewerage Dist., 2010 WI 58, ¶ 29 n.20, 326 Wis.2d 82, 785 N.W.2d 409. Contrast Leone v. County of Maui, 141 Haw. 68, 85, 404 P.3d 1257 (2017) ; Iowa Dev. Co. v. Iowa State Highway Comm'n, 255 Iowa 292, 297, 122 N.W.2d 323 (1963) ; Carter v. Oklahoma City, 862 P.2d 77, 81 (Okla. 1993).
Carolina Chloride, Inc. v. Richland Cty., 394 S.C. 154, 170, 714 S.E.2d 869, 877 (2011) (quoting WRB Ltd. P'ship v. Cty. of Lexington, 369 S.C. 30, 32, 630 S.E.2d 479, 481 (2006) ).In Rolandi v. City of Spartanburg, Rolandi alleged damage to real and personal property resulting from the backup of the City's sewer line. 294 S.C. 161, 163, 363 S.E.2d 385, 386 (Ct.App.1987).