Did a granted sewer easement force the City of Union to use that route instead of another property?

Plain-English summary

A senator asked whether the City of Union had to honor a property owner's granted sewer easement when officials wanted to place a line on another part of her land. In a September 2002 informal opinion, an Assistant Attorney General said the office would not second-guess the city's choice of route under the cited condemnation cases. Those cases generally left the location choice to the public body absent fraud, bad faith or clear abuse of discretion.

The letter also said a city's stated intention to use different land might indicate abandonment of the earlier easement. It described express or implied abandonment as a possible legal issue but did not find that Union had in fact abandoned this easement or resolve the property owner's particular rights.

Currency note

This opinion was issued in 2002. 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.

Common questions

Q: Did the AG order the city to use the previously granted route? A: No. It declined to question the city's location decision on the facts presented.

Q: When could a condemnation route choice be reviewed under the cases cited? A: The opinion described review for fraud, bad faith or clear abuse of discretion.

Q: Did choosing a different route automatically cancel the original easement? A: No. The letter said the change might indicate intent to abandon, but did not decide that abandonment occurred.

Background and statutory framework

The letter cited § 5-7-50 and Section 5-31-420 for municipal authority to acquire land or easements for sewer purposes. It discussed Cameron v. City of Chester on review of municipal condemnation decisions and court authority on express or implied easement abandonment.

Citations and references

• § 5-7-50 and Section 5-31-420: municipal land and easement acquisition for public purposes.
• Cameron v. City of Chester: review of condemnation necessity.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-23-2002/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/04/02sept-23-bauer.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M . CONDON
AITORNEY GENERAL

September 23, 2002

The Honorable Andre Bauer
Senator, District No. 18
Post Office Box 142
Columbia, South Carolina 29202

Re:

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Your Letter of July 25, 2002
City Of Union Sewer Lines

Dear Senator Bauer:
In your above-referenced letter, you ask for an opinion concerning the use of private property by the City of Union for the purpose of installing sewer lines. By way of background, you indicate that a citizen of Union granted "an easement and right-of-way [to the city] for a sewer line to be installed .... " You further indicate that City zoning officials have indicated that they cannot recognize or honor the deed and that" ... the City wants to put a sewer line through another piece of property that would mean she would have to give up more land to the city." Given this background, you specifically ask "whether or not the city has to recognize this deed of property to the City of Union for the purpose of installing sewer lines."

Municipalities, such as Union, are authorized to acquire property for construction of sewage systems to promote the public health, comfort and welfare. The property may be acquired through agreement with the land owner or through condemnation. The exercise of eminent domain, or condemnation, is an inherent attribute of the sovereign, which the General Assembly has delegated to municipalities. See OP. ATTY. GEN. DATED OCTOBER 8, 1990. S.C. Code Ann. § 5-7-50 provides in pertinent part that 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 . ... More specifically, Section 5-31-420 provides that "[i]n case the owner of ... any land desired by the
[municipal] corporation for enlarging, extending, or establishing a sewerage system ... shall refuse

REMBERT

c. DENNIS BUILDING

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POST OFFICE Box 11549

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COLUMBIA, S.C. 29211-1549

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TELEPHONE: 803-734-3970

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FACSIMILE: 803-253--0283

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The Honorable Andre Bauer
Page 2
September 23, 2002

to sell it, the municipal corporation may condemn the land in the manner provided in the Eminent Domain Procedure Act (Chapter 2 of Title 28)." While a private property owner has the right to contest condemnation proceedings, the public body's determination that condemnation of a certain tract of land is necessary for public use is not subject to judicial review in the absence of fraud, bad faith, or clear abuse of discretion. See Sease v. City of Spartanburg, 242 S.C. 520, 131 S.E.2d 683 (1963); Cameron v. City of Chester, 253 S.C. 574, 172 S.E.2d 306 (1970). Further, it has been held that the power of eminent domain includes the discretion to select the location of the land to be taken. See Brannen v. Bulloch Canty, 387 S.E.2d 395 (Ga. App. 1989); Father Flanagan's Boys' Home v. Millard School District. et al., 242 N.W.2d 637 (Ne. 1976); Canal Authority v. Miller, 243 So.2d 131 (Fla. 1970); and State v. Pacific Share Land Co., 269 F.2d 512 (Ore. 1954). The exercise of this discretion to determine the location of land to be taken is also not subject to review absent fraud, bad faith or clear abuse of discretion. Id.

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Based on the above cited authority, it does not appear to be appropriate for this Office to question the location selected for the particular sewer line by the City of Union. This determination, however, does not mean that citizens, such as the one referenced in your letter, are left without possible avenues of recourse. For example, the owner of an easement may relinquish that easement by express or implied abandonment. Immanuel Baptist Church ofNorth Augusta v. Barves, 274 S.C. 125, 264 S.E.2d 142 (1980). The intent to abandon" ... can either appear by an express declaration of the owner, or be implied from his acts and conduct and the circumstances of the case." Id. An easement that is abandoned is lost to the owner of the easement. Carolina Land Company. Inc. v. Bland, 265 S.C. 98, 217 S.E.2d 16 (1975). The City's expression of intent to place the sewer line on a piece of property other than the granted easement and right-of-way may indicate that the City intends to abandon that easement. Perhaps the citizen referenced in your letter should seek an express declaration from the City of this intention. In the alternative, the citizen could seek judicial review. This letter is an informal opinion only. It has been written by a designated Assistant Deputy 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 and not officially published in the manner of a formal opinion.

David K. Avant
Assistant Attorney General
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