December 5, 2018
From Georgetown County Larry B. Hyman, Jr., Circuit Court
H. Lang and George Albert Taylor, both of Callison Tighe
& Robinson, LLC, of Columbia, for Appellant.
Leon Morrison, of Morrison Law Firm, LLC, of Columbia, for
Respondent City of Georgetown, and Lisa A. Reynolds, of
Anderson Reynolds & Stephens, LLC, of Charleston, for
Respondent South Carolina Department of Transportation.
E. Lyon, Jr. and John K. DeLoache, both of the South Carolina
Association of Counties, of Columbia, for the Amicus Curiae
South Carolina Association of Counties.
appeal requires us to determine whether a county may sue
another political subdivision and the South Carolina
Department of Transportation (SCDOT) for inverse
condemnation. Because we hold the property Georgetown County
(the County) alleges was inversely condemned is not
"private property" within the meaning of the
Takings Clause of S.C. Const. art I, § 13, and further
hold the County may not sue SCDOT, a state agency, on such a
claim, we affirm dismissal of the County's claim.
County alleges the City of Georgetown (the City) and SCDOT,
while engaged in a joint water drainage project, altered the
water table, causing sinkholes to form and damaging public
buildings and real property owned by the County. The County
brought numerous causes of action against the City, SCDOT,
and their private contractors, including one for inverse
condemnation against the City and SCDOT. The City and SCDOT
moved to dismiss the County's inverse condemnation claim
pursuant to Rule 12(b)(6) of the South Carolina Rules of
Civil Procedure (SCRCP). The circuit court granted the motion
to dismiss, which the County now appeals.
deciding a Rule 12(b)(6) motion, the trial court looks only
at the complaint and, taking the facts alleged as true and
construing all reasonable inferences and doubts in
plaintiff's favor, asks whether the complaint would
entitle the plaintiff to relief under any theory. Doe v.
Marion, 373 S.C. 390, 395, 645 S.E.2d 245, 247-48
(2007). We use the same standard to review the dismissal
order on appeal. Id.
Inverse Condemnation and the South Carolina Takings
inverse condemnation claim derives from the Takings Clause of
our state constitution, which provides: "Except as
otherwise provided in this Constitution, private property
shall not be taken for private use without the consent of the
owner, nor for public use without just compensation being
first made for the property." S.C. Const. art. I, §
13(A). The County urges us to interpret "private
property" as used in the Takings Clause to mean any
property not owned by the condemnor, here the State. The
County suggests this interpretation furthers the intent
motivating the Takings Clause, i.e. to justly compensate a
property owner for the taking. According to the County, it is
damaged by the State's condemning of their property no
less than a private citizen would be and is no less entitled
to the just compensation our constitution guarantees.
disagree with the County's interpretation that the
private property referred to in the Takings Clause means any
property not owned by the condemnor. The Takings Clause does
not define what it means by private property, so we must turn
to the "ordinary and popular meaning" of the term.
See Richardson v. Town of Mount Pleasant, 350 S.C.
291, 294, 566 S.E.2d 523, 525 (2002); Private, The
American Heritage Dictionary of the English Language (1978)
("4. Belonging to a particular person or persons, as
opposed to the public or the government: private
property."); Private, Webster's Ninth
New Collegiate Dictionary (9th ed. 1988) ("[I]ntended
for or restricted to the use of a particular person, group or
class . . . belonging to or concerning an individual person,
company, or interest."). Public is an antonym of
private. We therefore hold the term private property as used
in the Takings Clause of the South Carolina Constitution
applies only to property owned by a private citizen, private
corporation, or non-public entity. It does not encompass
property owned by the State, its agencies, political
subdivisions (including counties and municipal corporations),
or other public entities. See Roschen v. Ward, 279
U.S. 337, 339 (1929) ("[T]here is no canon against using
common sense in construing ...