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Georgetown County v. Davis & Floyd, Inc.

Court of Appeals of South Carolina

February 13, 2019

Georgetown County, Appellant,
Davis & Floyd, Inc., Republic Contracting Corporation, S&ME, Inc., The South Carolina Department of Transportation and The City of Georgetown, Defendants, Of whom The South Carolina Department of Transportation and the City of Georgetown are the Respondents. Appellate Case No. 2017-000234

          Heard December 5, 2018

          Appeal From Georgetown County Larry B. Hyman, Jr., Circuit Court Judge

          Louis H. Lang and George Albert Taylor, both of Callison Tighe & Robinson, LLC, of Columbia, for Appellant.

          David 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.

          Robert 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.

          HILL, J.

         This 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.


         The 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.


         In 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.

         A. Inverse Condemnation and the South Carolina Takings Clause

         An 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.

         We 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 ...

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