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2007-UP-492 - Commissioners of Public Works v. Foreman

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Commissioners of Public Works of the Town of Mount Pleasant, South Carolina, Respondent,

v.

Joseph B. Foreman, Pressley T. Foreman, Mary Alice Foreman Jackson, Joseph Christopher Foreman, Jr., Louise Foreman Frasier, Yvonne V. Foreman, Carl F. Foreman, Michael J. Foreman, Jackie R. Foreman, Ulysses C. Foreman, and Sharon E. Foreman, Appellants.


Appeal From Charleston County
Mikell R. Scarborough, Master-in-Equity


Unpublished Opinion No. 2007-UP-492
Submitted October 1, 2007 – Filed October 15, 2007


AFFIRMED


Arthur C. McFarland, of Charleston, for Appellants.

Donald G. Jennings and James A. Bruorton, IV, both of Charleston, for Respondent.

PER CURIAM:  In this condemnation proceeding for a water and sewer easement, the owners of the condemned property appeal the determination of just compensation by the Master-in-Equity.  We affirm.[1]

FACTS

Appellants own four tracts of land in Mount Pleasant, South Carolina, which they inherited from their parents.  Although the tracts are adjacent to each other, they are separately platted and have never been merged together.

On December 13, 2004, the Commissioners of Public Works of the Town of Mount Pleasant (CPW) served Appellants with a condemnation notice and tender of payment for a proposed water and sewer easement on 1,920 square feet of one of Appellants’ tracts (parent tract).  Appellants failed to challenge CPW’s right of condemnation; therefore, the matter was referred to the Master solely for a determination of just compensation.  The Master found just compensation for the easement to be $6,144.00.  This appeal followed.

STANDARD OF REVIEW

A condemnation action is an action at law.  S.C. Pub. Serv. Auth. v. Arnold, 287 S.C. 584, 586, 340 S.E.2d 535, 537 (1986).  “In an action at law, tried without a jury, the appellate court’s standard of review extends only to the correction of errors of law.”  Temple v. Tec-Fab, Inc., 370 S.C. 383, 387, 635 S.E.2d 541, 543 (Ct. App. 2006).  Furthermore, the findings of fact of the trial court will not be disturbed on appeal unless found to be without evidence reasonably supporting them.  Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976).

LAW/ANALYSIS

Appellants argue the award of $6,144.00 as just compensation for the condemnation of their land was insufficient.   Specifically, they contend that the Master erred in failing to consider the condemned tract is one of four contiguous tracts that they own and that, for purposes of determining just compensation, all four tracts should have been considered as a single parcel for the “total bundle of rights” that would have been lost as a result of the easement.  We disagree.

“A condemnor may commence an action . . . for the acquisition of an interest in any real property necessary for any public purpose.”  S.C. Code Ann. § 28-2-60 (2007).  “Determination of fair market value is a question of fact.”  Payne v. Holiday Towers, Inc., 283 S.C. 210, 215, 321 S.E.2d 179, 182 (Ct. App. 1984). 

During the hearing before the Master, Gary Pruitt testified for CPW as an expert in the field of real estate appraisal.  Appellants did not object to Pruitt as an expert, and they neither moved to strike any portion of his testimony nor objected to the introduction of the appraisal he performed for CPW.

In determining the fair market value of the parent tract, Pruitt relied on the selling price values of four similarly situated tracts of land as comparables.  These tracts were selected by Pruitt according to their frontage on a “secondary road” akin to the road on which the parent tract fronted.  Based on these comparables, all of which were sold within four years of the appraisal in question, Pruitt determined the parent tract was worth $10.00 per square foot.  On cross-examination, Pruitt admitted any comparable property that was sold in closer proximity to the time of the appraisal would reasonably be considered a better indication of the true value of the parent tract.  Furthermore, Appellants questioned Pruitt about the sale of one neighboring tract of land that was sold within four weeks after the date of the appraisal and a second, adjoining tract of land that fronted on a primary road and was sold within four months after the appraisal.  Both of these sales supported a higher valuation of the parent tract.  

In explaining how he arrived at his value, Pruitt testified the common practice in the appraisal field was to assign a “percentage of encumbrance factor” in determining the fair market value of an easement that does not rise to the level of a total condemnation.  Admitting the lack of a particular formula to determine this factor, Pruitt testified he examined the “bundle of rights” held by Appellants, as compared to the amount of that bundle Appellants would be forced to relinquish because of the easement.  Based on this analysis and his previous experience as an appraiser, Pruitt determined Appellants’ loss from the easement resulted in a twenty-percent reduction in the fee simple value of their land.    

Neither party disputes that the amount of land affected by the condemned easement is 1,920 square feet.  Although in his appraisal Pruitt relied on the original estimate provided by CPW of 1,845 square feet, he admitted the final plat, which listed the square footage at 1,920, accurately reflected the amount of land affected by the easement.  

Appellant Mary Alice Foreman Jackson was the only witness testifying on behalf of Appellants.  Jackson testified she and her eight living siblings had inherited the four tracts of land, including the parent tract, from their parents and, as of the time of the hearing, the property was still divided into four separate tracts.  Jackson further testified regarding certain conversations Appellants had over the years regarding the tracts.  In those discussions, Appellants discussed retaining the property once they inherited it and eventually developing it into some form of commercial business.  Appellants put forth no evidence of preparations to merge or re-zone the property, but they nevertheless suggest the Master should have based the award of damages on their privately discussed plans.  

Jackson opined the fair market value of the water and sewer easement across the parent tract was approximately $39,000.00 to $45,000.00.  In order to arrive at this figure, Jackson relied on the comparables from Pruitt’s appraisal, advice of Appellants’ counsel, and her knowledge of the general housing trends and prices in the Mount Pleasant area. 

It is a general rule in South Carolina that a landowner is “qualified by the fact of ownership to give his or her estimate of the value of damaged real and personal property.”  Hawkins v. Greenwood Dev. Corp., 328 S.C. 585, 594-95, 493 S.E.2d 875, 880 (Ct. App. 1997).  Jackson’s estimate, however, is speculative conjecture as the tracts have not been merged and the property is still zoned residential.  Furthermore, although the parent tract was zoned for residential purposes at the time of the hearing, Pruitt assumed the zoning of the parent tract would be changed to commercial for the purposes of the “highest and best use” analysis in his appraisal. 

To determine just compensation, “only the value of the property to be taken, any diminution in the value of the landowner’s remaining property, and any benefits as provided in § 28-2-360 may be considered.”  S.C. Code Ann. § 28-2-370 (2007).[2]   The landowner, however, is entitled to the value of the property under its most advantageous or profitable use, including any use reasonably anticipated in the near future.  City of N. Charleston v. Claxton, 315 S.C. 56, 61, 431 S.E.2d 610, 613 (Ct. App. 1993).  In the final order, the Master did not rely entirely on the Pruitt’s valuation, but instead found the price per square foot attributable to the subsequent sale of the adjoining tract as “more pertinent in determining the value of the subject property as of the date of the condemnation.”  At $16.47, the price per square foot of the adjoining tract was sold for over $6.00 more per square foot than the figure that Pruitt recommended in his appraisal.  Accordingly, the Master used a comparable price per square foot of $16.00, for the determined easement area of 1,920 square feet, and applied an encumbrance factor of twenty percent to arrive at its determination of the fair market value of $6,144.00 for the condemnation of the property for the water and sewer easement.  Because evidence in the record supports this valuation, we affirm the Master’s award of just compensation.

AFFIRMED.

ANDERSON and THOMAS, JJ., and GOOLSBY, A.J., concur.


[1]  We decide this case without oral argument pursuant to Rule 215, SCACR.

[2]  Section 28-2-360, which is referenced in section 28-2-370, provides that “[i]n in any condemnation action, benefits to be derived from the proposed project including the value of any property or rights relinquished or reverting to the landowner as part of result thereof, must be taken into consideration in determining the amount of compensation and due allowance made for them.”  S.C. Code Ann. § 28-2-360 (2007).