Carroll v. Davis , 128 S.C. 40 ( 1924 )

March 4, 1924. The opinion of the Court was delivered by This is an action by respondent to recover a strip of land on which a road was built by the highway commission, for actual damages, for special damages, and for punitive damages. The case was heard by Judge Bowman and a jury, and resulted in a verdict in favor of plaintiff against both defendants. When the cause came for a hearing the defendants interposed a demurrer, which was sustained as to all of the defendants except Davis, but his Honor allowed the plaintiff to amend her complaint, so as to allow her to ask compensation against the county for taking her land, and submitted the case to the jury after all the testimony was in. After entry of judgment appellants appeal, and by six exceptions impute error.

We will not attempt to take up the exceptions in detail. Certainly his Honor was in error in submitting to the jury the causes of action as set out in the complaint against Davis and against the county authorities for compensation under the condemnation statute. The one was for compensation against the county authorities and the one against Davis for alleged torts. The county is only liable for actual damages under any circumstances, and the cases should have been submitted separately.

The demurrer of Davis should have been sustained. He was a private citizen, in no wise connected with the county. No overt act is alleged in the complaint which resulted in the injury complained of, but the complaint alleges that he induced the highway commission to open the road through plaintiff's land. The alleged wrongs alleged in the complaint against Davis do not give a cause of action against him. He did nothing that gave the plaintiff a cause of action against him. The alleged opposing causes of action were not those of Davis, but the acts of those clothed with authority in law to build roads in the county.

The complaint shows that the road had been actually built and had been in use by the public several months before Mrs. Carroll acquired title to the land. She obtained deed on November 8, 1920. Her husband, Mr. Carroll, testified that the road was built in June, 1920. This shows that she is not entitled to recover compensation. The weight of authority shows that, the plaintiff not being the owner of the land at the time of the entry of the highway commission, she is not entitled to compensation.Bridges v. Southern Ry. Co., 86 S.C. 267; 68 S.E., 551; Ann. Cas. 1912A, 1056.

"Damages for the taking of land or for injury to land not taken belongs to the one who owns the land at the time of the taking or injury and they do not pass to a subsequent grantee of the land except by a provision to that effect in the deed or by separate assignment." 20 Corpus Juris, 858.

The demurrer of Davis should have been sustained, and the other defendants should have had a directed verdict as asked for. The judgment is reversed, and complaint dismissed.

Reversed.

MESSRS. JUSTICES FRASER, COTHRAN, and MARION concur.

MR. CHIEF JUSTICE GARY did not participate.