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April 23, 1956


The opinion of the court was delivered by: Legge, Justice.

   April 23, 1956.
Appellant based this action against the City of Greenville, upon an alleged taking of his property for public use without just compensation; and, the jury having found against him, he appeals, challenging the charge of the trial judge as to the measure of his recovery.

The complaint alleged that in 1938 appellant had purchased a tract of approximately fourteen acres in Greenville County, which tract was later annexed to and became a part of the City of Greenville; that between 1942 and 1946, when the tract was under lease from appellant to the United States government for military purposes, the government opened up a private road through a part of it; that upon the expiration of the lease appellant closed and barricaded this road; and that thereafter the city ignored his signs prohibiting trespass, removed his barricade, and opened up the road as a public street, without paying or offering to pay him for the land so taken, the same being a strip thirty feet wide and about one thousand feet in length. Respondent's answer pleaded a general denial, and that the road in question was a public road and had been used by the public for more than twenty years.

The transcript sets forth the pleadings and the trial judge's charge to the jury, but contains none of the testimony. It is apparently conceded that respondent's claim of prescriptive right arising from public use of the road for twenty years is applicable only to the width of the old road, and not to the additional width of the road as it presently exists. The following portion of the charge is unchallenged:

"Gentlemen, there is something I overlooked that I will call to your attention. Under the undisputed testimony in this case, the area of the present roadway is sixty-two hundredths (.62) of an acre; likewise, under the undisputed testimony in the case, the area of the alleged old road was twenty hundredths (.20) of an acre, making a difference of forty-two hundredths (.42) of an acre. I would instruct you, gentlemen, as a matter of law, that under the defense of the City of Greenville, that is, prescriptive right for a period of twenty years by the public generally, that would not apply to the forty-two hundredths (.42) of an acre, since of course the twenty-year period had not elapsed".

Appellant's exceptions are:

"1. The court erred in charging the jury as follows:

"`If you find that the remaining land has not been damaged and that its value has increased by virtue of the road having been built thereon and that the land as it now stands is worth more or as much than the entire tract was prior to the taking, then in that event the plaintiff would not be enitled to any damages and you would find in favor of the defendant. If the value after the appropriation is less than it was before the appropriation, then the difference is the amount of the damages. On the other hand, if the value after the taking is the same or greater than before the appropriation, then the plaintiff cannot recover damages'.

"The specification of error being that the charge allowed any benefits to be offset against the damages including the value of the land taken, and this being an action for damages for a constitutional taking, the benefit rule does not apply.

"2. The court erred in charging the jury as follows:

"`Now, gentlemen, if you find from the testimony that the plaintiff, that is, the landowner, has suffered any special damages as a result of the taking of his land, if you find that there was a taking for public purposes, such as a road, then you take that into consideration and seek such amount as special damages as you may determine from the testimony is just compensation. If you find from the evidence that the plaintiff received any special benefits as a result of the building of the roadway, then it is your duty to take that into consideration in writing your verdict, and charge the amount that you find, if you find any, that the plaintiff has been benefited, as an offset against any damages you may find plaintiff has suffered, if you find that the plaintiff has suffered any damage'.

"The specification of error being that in an action for trespass for damage for taking private property for public purposes without paying just compensation the defendant is not entitled to offset any benefits against the damages.

"3. The court erred in charging the jury as set out in exceptions 1 and 2 above, the specification of error being that the respondent did not plead benefits as an offset in its answer."

Respondent suggests that appellant's exceptions should not be considered because he did not complain of the charge when, at its conclusion, the jury was excused. But the agreed statement in the transcript contains the following: "During the trial, the question arose as to whether the defendant was entitled to offer testimony to show that the street benefited the plaintiff. The plaintiff objected to such testimony, and after arguments the court stated that he would permit such testimony, and announced that he was going to charge the rule of damages laid down in Wilson v. Greenville county, 110 S.C. 321, 96 S.E. 301." The Act of February 20, 1953, Code Supplement 1955, § 10-1210, requires the trial judge to excuse the jury temporarily at the conclusion of his charge "in order to give counsel and litigants an opportunity to express objections to the charge or request the charge of additional propositions made necessary by the charge"; and we have repeatedly held that objection to an erroneous statement of the law or misstatement of the issues in the charge is waived unless thus timely made. Munn v. Asseff, 226 S.C. 54. 83 S.E.2d 642: Belue v. City of Greenville, 226 S.C. 192, 84 S.E.2d 631; Hall v. Walters, 226 S.C. 430, 85 S.E.2d 2d 729; State v. Shea, 226 S.C. 501, 85 S.E.2d 858; Richardson v. Register, 227 S.C. 81, 87 S.E.2d 40. But where a contested issue of law has been argued during the course of the trial and ruled upon by the trial judge, the statute does not require objection to be made, at the conclusion of his charge, to that portion of it dealing with the same issue in accordance with his previous ruling.

Until the adoption of the Constitution of 1868, an individual had no right, as against the State's power of eminent domain, to compensation for the taking of his land for a public highway. In Lindsay v. East Bay Street Commissioners, 2 Bay 38, decided in 1796, the court was equally divided on the question whether the right of eminent domain authorized the taking of lands from individuals for highways without compensation; and the plaintiff therefore failed in his application for a prohibition. In State v. Dawson, 3 Hill 100, decided in 1836, where the defendant had been indicted for obstructing the road commissioner, a statute authorizing the commissioner to cut timber on private property for the repair of highways, and making no provision for compensation of the owner, was held not violative of Section 2 of Article IX of the Constitution of 1790 which declared that "no freeman of this state shall be * * * deprived of his life, liberty or property, but by the judgment of his peers, or by the law of the land."

Article I of the Constitution of 1868 set forth, in forty-one sections, a declaration of rights, Section 23 reading as follows:

"Private property shall not be taken or applied for public use, or for the use of corporations, or for private use, without the consent of the owner or a just compensation being made therefor: Provided, however, That laws may be made securing to persons or corporations the right of way over the lands of either persons or corporations, and, for works of internal improvement, the right to establish ...

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