Owens v. South Carolina State Highway Department

Oxner, Justice

(concurring).

It is stated in the leading opinion that “there was evidence that waters were impounded by the construction of the highway in question and such flooded respondent’s land because of the inadequacy of the drainage ditches along the sides of said highway.” If after taking over the road, the Highway Department refused to rectify this condition, it would be liable for any damages resulting from its continuance. Townes v. City Council of Augusta, 52 S. C. 396, 29 S. E. 851; Chick Springs Water Co. v. State Highway Department, 178 S. C. 415, 183 S. E. 27. There is also authority to the effect that if under the power of eminent domain one agency *58takes or damages property without paying compensation, its successor by adopting the original taking subjects itself to such obligation. 18 Am. Jur., Eminent Domain, Section 146, page 774; Nichols on Eminent Domain, Volume 6, Section 28.4; 30 C. J. S., Eminent Domain, § 393, page 103; 29 C. J. S., Eminent Domain, § 195, page 1098; State Highway Commission v. Flint, 177 Miss. 830, 172 So. 299. However, this action was neither brought nor tried on either of these theories but solely upon the theory that the Highway Department actually did the construction or participated therein. Viewing the case in that light, I agree that appellant’s motion for a directed verdict should have been granted.