The opinion of the court was delivered by: Moss, Justice.
The respondent, R.C. Collins, owns two buildings in the City of Greenville. The appellant, City of Greenville, owns and operates a sewer system in said City of Greenville.
The appellant demurred to the complaint on the ground that the same did not state facts sufficient to constitute a cause of action, in that it was not liable for any act of negligence unless made so by statute, and that the damage to the respondent did not result from a defect in the street, nor was it liable for any alleged negligence in the repairing of the sewer line.
The demurrer was heard by the Honorable W.B. McGowan, County Judge, who overruled the same on the ground that the facts stated in the complaint allege a cause of action for the taking of the private property of respondent for public use without just compensation. Art. I, Section 17, of the 1895 Constitution of South Carolina.
The case is before this Court upon a proper exception challenging the foregoing ruling. The respondent asserts as a sustaining ground that if this Court should hold that the complaint does not state a cause of action for the taking of private property for public use as prohibited by the Constitution, that the complaint does state a cause of action for a defect in a street, under Section 47-70 of the 1952 Code of Laws of South Carolina.
The questions for consideration by this Court are whether or not the complaint states a cause of action for the taking of private property for public use without compensation as prohibited by the Constitution, Art. I, section 17; and whether the complaint states a cause of action for a defect in a street, under Section 47-70 of the 1952 Code of Laws of South Carolina.
The Constitution of this State, Art. I, Section 17, provides that:
"* * * Private property shall not be taken * * * for public use without just compensation being first made therefor."
"South Carolina, in its construction of Article I, § 17, Constitution of 1895, does not recognize a distinction between `taking' and `damaging,' but holds that a deprivation of the ordinary beneficial use and enjoyment of one's property is equivalent to the taking of it, and is as much a `taking' as though the property were actually appropriated, citing Wilson v. Greenville County, 110 S.C. 321, 96 S.E. 301; White v. Southern Ry. Co., 142 S.C. 284, 140 S.E. 560, 57 A.L.R. 634; Henderson v. City of Greenwood, 172 S.C. 16, 172 S.E. 689; Gasque v. Town of Conway, 194 S.C. 15, 8 S.E.2d 871."
In the case of Gasque v. Town of Conway, 194 S.C. 15, 8 S.E.2d 871, 873, this Court said:
"The constitutional prohibition against taking private property for public use without just compensation must have been intended to protect all the essential elements of ownership which make property valuable, including, of course, the right of user, and the right of enjoyment. Accordingly, it has been held that the erection and maintenance of a public work or enterprise under lawful authority in such a way as to destroy the beneficial use of adjacent land or property may constitute a taking, although there is no physical invasion of the property itself. This principle is illustrated by such cases as Kneece v. City of Columbia, 128 S.C. 375, 123 S.E. 100, which was an action for damages to property, caused by disagreeable odors resulting from the installation of a municipal incinerator; Derrick v. City of Columbia, 122 S.C. 29, 114 S.E. 857, damages resulting for improperly maintaining a slaughter house; and Faust v. Richland Co., supra [117 S.C. 251, 109 S.E. 151], where an action was sustained for diverting water on to plaintiff's premises.
"What is a `taking' of property within the constitutional provision is not always clear; but, so far as general rules are permissible of declaration on the subject, it may be said that there is a taking where the act involves the actual interference with, or the disturbance of, property rights, resulting in injuries which are not merely consequential or incidental. 18 Am. Jur., Sec. 132, Page 750.
"In the case at bar, the town made no entry of any kind upon the plaintiff's lot. Nor did it subject the land to any burden or easement. All that the town did was to refuse to grant appellant a permit to erect a filling station. In our opinion, by this negative act the defendant did not `take' or appropriate the plaintiff's property for public use in a constitutional sense. To hold otherwise would be an unjustifiable extension of the meaning of the word, and would go far beyond its plain, natural and usual import. It seems evident that where the town has made no entry on appellant's lot, subjected it to no easement, nor placed it under any servitude, it has not taken the lot nor deprived the appellant of it.
"In addition to this, the Constitution requires that just compensation be paid where private property is taken for public use. The term `public use' is such a flexible term that the courts have avoided a positive definition lest it prove an embarrassment in subsequent cases and work a mischief in practical application. There is no arbitrary standard by which to determine whether the purpose to which property is appropriated possesses all elements of public utility. The meaning of the term is flexible, and is not confined to ...