The South Carolina Constitution, like the Fifth Amendment and just about every other state constitution, prohibits takings of "private property" without just compensation. See S.C. Const. art. I, § 13(A).
But does that govern the situation where the owner of the property allegedly taken by a city and the State DOT by creating sinkholes is a county? In other words, is property owned by a county "private" property? (We've been down this road before, as noted in this post.)
In Georgetown County v. Davis & Floyd, Inc., No. 5627 (Feb. 13, 2019), the South Carolina Court of Appeals answered no. There, the County asserted an inverse condemnation claim against the City of Georgetown and SCDOT, alleging that "while engaged in a joint water drainage project, [they] altered the water table, causing sinkholes to form and damaging public buildings and real property owned by the County." Slip op. at 2. The defendants sought dismissal for failure to state a claim.
The County, the opinion noted, "urges us to interpret 'private property' as used in the Takings Clause to mean any property not owned by the condemnor, here the State." Slip op. at 2-3.
The court rejected that assertion because the "ordinary and popular" meaning of the term "private" (as shown by a dictionary, among other sources), means that the property is restricted to a particular person, group, or class.
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.
Slip op. at 3.
Some states agree. See slip op. at 4 (citing Bd. of Water Works Trs. of City of Des Moines v. SAC Cty. Bd. of Supervisors, 890 N.W.2d 50, 71 (Iowa 2017); Metro. St. Louis Sewer Dist. v. City of Bellefontaine Neighbors, 476 S.W.3d 913, 916–17, 923 (Mo. 2016) (en banc)). Federal law is a bit different, and the "United States Supreme Court has held the federal Takings Clause applies when the federal government takes public land owned by a state or its political subdivisions." Slip op. at 4. But hey, that's federal law, and the court noted it was interpreting South Carolina's definition of private property.
Next, (and this one is for you municipal-law types), the court concluded that as a "creature of the state," counties do not possess "a separate sovereignty." Slip op. at 5. "Accordingly, we hold the County may not bring an inverse condemnation claim against its 'creator' the state." And just because the County has home rule power doesn't change that.
Finally, the court concluded that the definition of "person" in South Carolina's eminent domain statutes does not change the result.
Georgetown County v. Davis & Floyd, Inc., No. 5627 (S.C. App. Feb. 13, 2019)
