B. Elements

• Library: Elements of Civil Causes of Action (SCBar) (2021 Ed.)

B. Elements

Until the South Carolina Supreme Court decided Byrd v. City of Hartsville,¹⁶ the elements of an inverse condemnation were: (1) an affirmative, positive aggressive act on the part of the government agency; (2) a taking; (3) the taking is for a public use; and (4) the taking has some permanence.¹⁷ In Byrd the court changed the elements. It removed the element of "some degree of permanence, because, said the court, it conflicts with the principle that the government must compensate for even a temporary taking."¹⁸ Then it said that, in the case of a regulatory taking, the element that requires the taking to be for "public use" is inapplicable. Finally, the court stated the first element as simply "affirmative conduct of a government entity."

Thus there are apparently now two sets of elements for inverse condemnation actions. In a regulatory inverse condemnation there are only two elements:

(1) affirmative conduct, and
(2) a taking.¹⁹

If inverse...