Could a South Carolina town condemn county land for a new road?

Plain-English summary

Mount Pleasant asked whether it could condemn a piece of Charleston County property for a proposed road right of way if the county would not sell. The April 2001 informal opinion said South Carolina's municipal condemnation statute appeared to allow a taking of county property only if the property was not already devoted to public use.

The AG could not determine from the request whether this particular county parcel met that condition. The letter described public use as a fact dependent concept and advised the town against condemning county property where it could not be sure the exception did not apply.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Municipal road projects

The opinion read Section 5-7-50 as granting municipalities condemnation authority for authorized public purposes, including rights of way, but expressly excluding property already devoted to public use.

Counties and property owners

County ownership alone was not the bar the AG identified. The decisive issue in the letter was whether the county land was devoted to public use, which the AG said a fact finder would determine from the circumstances.

Common questions

Could Mount Pleasant condemn Charleston County land simply because it needed a road?
A: The AG said the town appeared to have authority only if the county parcel was not already devoted to public use. It did not decide whether this parcel qualified.

Did the municipal statute allow condemnation of land outside town limits?
A: The quoted statute allowed condemnation within the municipality's county and adjoining counties for an authorized purpose, subject to its public use exception.

Did the AG recommend condemnation in this case?
A: No. Because the public use question was uncertain, the letter advised against acquiring the county property by condemnation.

Background and statutory framework

Section 5-7-50 granted municipal condemnation authority but excluded property devoted to public use. The letter cited South Carolina decisions describing public purpose and a four part framework for evaluating a public project's benefit; it still treated the parcel's actual use as a question of fact.

Citations and references

• Section 5-7-50: the municipal condemnation provision quoted in the opinion.
• The opinion concluded that the town could condemn county property “only if the property is not devoted to a public use.”

Official title

Concerning a municipality’s authority to acquire property owned by a county.

Requester

The Honorable Harry M. Hallman, Jr., Mayor, Town of Mount Pleasant

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-18-2001-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01april-18-hallman.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON
AITORNEY GENERAL

April 18,2001

II
~

The Honorable Harry M. Hallman, Jr.
Mayor, Town of Mount Pleasant
P.O. Box 745
Mount Pleasant, South Carolina 29465

RE:

Informal Opinion

Dear Mayor Hallman:
By your letter of March 19, 200 I, you have requested an opinion of this Office concerning a municipality's authority to acquire property owned by a county. Specifically you write: Very soon we will begin negotiating for the purchase of right of way for a new parallel road to US 17 in Mount Pleasant. One alignment would require acquisition of a portion of a property owned by Charleston County Government. In the event that the County will not sell this property, can a municipality condemn another local government's property for a public purpose?

As a general rule, "a municipality cannot condemn land belonging to the federal government, nor land belonging to the state, nor other public land, unless expressly authorized to do so by statute." McQUILLIN, MUNICIPAL CORPORATIONS § 32.74 (2000). See also 263 AM. JUR. 2D Eminent Domain § 102 ( 1996)("Municipalities and other political subdivisions generally require specific legislative authority to take public property."). In South Carolina, municipalities are granted the power of condemnation pursuant to South Carolina Code of Laws Section 5-7-50, which reads in part: Any municipality desiring to become the owner of any land or to acquire any easement or right-of-way therein for any authorized corporate or public purpose shall have the right to condemn such land or right-of-way or easement, subject to the general law of this State, within and without the corporate limits in the county in which it is situated and in any adjoining county or counties. This authority shall not apply to any property devoted to public use; provided, however, the property of corporations not for profit organized under the

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Mayor Hallman
April 18, 2001
Page 2of3
provisions of Chapter 35 of Title 33, shall not be subject to condemnation unless the
municipality in which their service area is located intends to make comparable water service
available in such service area and such condemnation is for that purpose.
(Emphasis added).

!

.

Although the statute grants a municipality broad authority to acquire "any land" "within and
without the corporate limits in the county" and "in any adjoining counties," the statute does contain
some limitations on that authority. Most relevant to your inquiry, is the prohibition on acquiring
property already devoted to a public use. Thus, a municipality appears to have the requisite statutory
authority to condemn property of the county, but only if the county property is not devoted to a
public use. In effect, the exception may swallow the rule when applying the law to the facts, as the
the determination of a what constitutes a public use is not so narrowly construed.
The courts have provided some commentary about the determination of a public use, or a
public purpose:
In general, a public purpose has for its objective the promotion of the public health, morals,
general welfare, security, prosperity, and contentment of all the inhabitants or residents
within a given political division .... It is a fluid concept which changes with time, place,
population, economy and countless other circumstances. It is a reflection of the changing
needs of society.

I

WDW Properties v. City of Sumter, 342 S.C. 6, 535 S.E.2d 631 (2000). Furthermore, in Nichols v.
South Carolina Research Authority, 290 S.C. 415, 351 S.E.2d 155 (1986), the Supreme Court of
South Carolina put forth the following four part test to determine whether an action or expenditure
of a public entity satisfied the public purpose doctrine:
The Court should first determine the ultimate goal or benefit to the public intended by the
project. Second, the Court should analyze whether public or private parties will be the
primary beneficiaries. Third, the speculative nature of the project must be considered.
Fourth, the Court must analyze and balance the probability that the public interest will be
ultimately served and to what degree.
As you can see, although the courts have established some basic guidelines for the determination of
a public purpose, the ultimate determination of whether a public use is served is primarily one of fact
for a fact finder. And of course, whether the use of such property would constitute a public use
would depend on the facts surrounding each case.

In sum, the Town of Mount Pleasant can condemn property of Charleston County, but only
if the property is not devoted to a public use. Because the public purpose doctrine is a "fluid

Mayor Hallman
April 18,2001
Page 3of3
concept," we cannot, with any great degree of certainty, advise the Town of under what
circumstances a county's use of property would not be considered a public use. In the absence of
certainty and in the exercise of caution, we would advise against the Town's acquisition of county
property by condemnation.

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Li

This letter is an informal opinion only. It has been written by a designated Assistant Attorney
General and represents the position of the undersigned attorney as to the specific question asked. It
has not, however, been personally scrutinized by the Attorney General nor officially published in the
manner of a formal opinion.
With kind regards, I remain
Very truly yours,

Susannah Cole
Assistant Attorney General