A. Injury/invasion of Real Property

• Library: South Carolina Damages (SCBar) (2009 Ed.)

A. Injury/Invasion of Real Property ¹

Damages associated with harm to real property or the rights of real property owners pose special problems in selecting a benchmark for measurement. As federal and state statutory schemes have arisen to address pollution damages, the common law has nonetheless remained a source of recovery in private actions. Below are the most common theories of recovery under the common law and the damages recoverable under each. While the various doctrines represent divergent theories of liability, with respect to damages they are far more alike than different: "[t]he measure of damages for permanent injury to real property by pollution, whether by nuisance, trespass, negligence or inverse condemnation is the diminution in the market value of the property."²

1. Nuisance

A fundamental distinction is observed between damages for permanent nuisances and temporary nuisances. The former can typically be measured by reference to the loss in value to the property that is occasioned by the nuisance. However, in the case of temporary nuisances damages must be measured in terms of the temporary loss in value of the property up to the point at which the nuisance abates. This typically takes the form of lost rental value or some other measure of temporary use value. In either case, the key to the damages inquiry is assessing the value of the property both with and without the nuisance.

As noted above, the ordinary rule in nuisance cases is that damages are assessed on the basis of the diminution in the value of the property brought about by the nuisance.³ However, incidental losses have been recovered as well, including recovery based upon an injury or illness to a person other than the landowner. The manner of recovering for such injuries is indirect:

The allegation that plaintiff's mother and sister live with her and suffer as alleged, though not strictly necessary to the statement of plaintiff's cause of action, was not irrelevant thereto, because it tends to show the nature and extent of plaintiff's damages, since she has the right to have them live with her and enjoy the comforts of her home. In a like case, a plaintiff might allege injuries to his wife and children, or the keeper of a hotel or boarding house, to his guests, not to enable him to recover damages for what they suffered, but to show the nature and extent of his own damages.⁴

Thus, although only the landowner, rather than others impacted by the nuisance, is permitted to recover in damages, such recovery has been expressly authorized to include harm that manifests itself as injury to others.⁵ The tortfeasor does not escape liability in such case, but neither is a third party owning no real property interest permitted to recover under a nuisance theory.

This limitation has not been applied so rigidly as to deny holders of less than the entire interest in real property the right to recover damages. Thus the holder of a right of possession who was entitled to all rents generated by land was permitted to recover damages, as was a lessee of real property.⁶ However, the holder of an option to purchase real property was held not to be entitled to recover damages for loss of value to the property under a nuisance theory.⁷ South Carolina courts have not limited the recovery of damages under a nuisance theory to only those owners who held the property at the time the activity giving rise to the claim began.⁸ However, damages cannot be established absent a worsening of the nuisance so as to bring the property value below its value at the time the owner took possession.⁹

In assessing the diminution in value to real property caused by a nuisance, courts in South Carolina will closely scrutinize whether the damages complained of resulted from the nuisance itself or from some other cause. For example, when an undesirable business is alleged to cause a nuisance to surrounding landowners, the consequences of the nuisance itself must be separated from the loss in value to the landowners' property that results from the simple fact that the business is lawfully present at the location. The South Carolina Supreme Court has explained this principle:

[A] landowner could not recover for depreciation in value of his property, which resulted solely from the location of the business of the defendants in an area which had been zoned by the proper authorities for such type of business. If this were not true, then zoning ordinances would be a nullity and every person locating a business in an area zoned by the city for business use would be subject to respond in damages for depreciation in value of neighboring property solely because of the location of his business in the zoned area.¹⁰

In Winget, the supreme court held that the trial judge had erred in refusing to strike testimony that linked alleged property damage to the location of the defendant business only, rather than to the manner in which the business operated.¹¹ A key issue in any inquiry into damages, therefore, is whether the amount claimed reflects lost value resulting only from the nuisance or whether some lawful activity has also contributed to the claimed loss.

Punitive damages have been expressly approved in the context of a nuisance claim. In Tant v. Dan River, Inc.,¹² the Supreme Court reversed a court of appeals determination that punitive damages were not available to landowners claiming damage from soot discharged by a nearby business. The South Carolina Supreme Court held that the actions of the defendant business in failing to maintain up-to-date pollution-control equipment were in violation of applicable statutes.¹³...