A. Definition

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

A. Definition¹

An action for inverse condemnation, recognized at common law,² is appropriate where the government takes private property for public use.³ The term "private property" as used in the Takings Clause of the South Carolina Constitution means property owned by a private citizen, private corporation, or non-public entity and does not encompass property owned by the State, its agencies, its political subdivisions, or other public entities.⁴ On the other hand, the United States Supreme Court has held the federal Takings Clause does apply when the federal government takes public land owned by a state or its political subdivisions.⁵

The difference between condemnation and inverse condemnation is that in the former the governmental entity is the moving party, but in the latter the property owner is the moving party.⁶ Inverse condemnation is a cause of action against a government to recover the value of property that has been taken even though no formal exercise of eminent domain was attempted by the taking agency.⁷ It is not a tort action, but rather is based on the constitutional prohibition against taking property without compensation.⁸ The prohibition is found in both the federal and state constitutions. The Fifth Amendment to the United States Constitution provides that "private property [shall not] be taken for public use, without just compensation." It is applicable to the states through the Fourteenth Amendment. Under Art. I, § 13 of the South Carolina Constitution: "Except as otherwise provided in this Constitution, private property shall not be taken for private use without the consent of the owner, nor for public use without just compensation being first made therefor." Actions may be brought under both constitutions.⁹

South Carolina courts have construed the state provision not to require an actual physical taking of property to entitle its owner to compensation. Property may be taken, within the meaning of the state constitution even though the owner's title and possession remain undisturbed. Deprivation of the ordinary beneficial use and enjoyment of property is equivalent to taking it just as if the property itself were actually appropriated."¹⁰

There is no constitutional right to a jury trial in an inverse condemnation case; however, the statutory right to a jury in eminent domain cases applies to the compensation phase of inverse condemnation actions.¹¹ Thus, in an inverse condemnation case, the trial judge must determine whether a claim has been established, after which the issue of compensation may then be submitted to a jury at the request of either party.¹²

It is important to note that regulatory taking cases are for strategic reasons —...