What Does Public Use Really Mean?


The South Carolina Constitution allows the use of the power of eminent domain only if the property to be taken is to be used for a public, not a private use. This seems clear enough, except when it isn’t. Case in point: Jasper County vs. Georgia Department of Transportation (GDOT).

In an effort to bolster its shipping industry and local government revenues, Jasper County, South Carolina entered into a land lease with SSA, a large shipping company from the State of Washington, which intended to construct and operate a port on the Savanah River. In exchange, the county planned to condemn land owned by the Georgia Department of Transportation and receive $4 million in rent per year for 99 years.


The land upon which the port was to be built was owned by GDOT, which had voluntarily purchased the land and placed spoilage easements on it to facilitate the dredging of the Savanah River.  While it was an agency of the sovereign state of Georgia with powers of eminent domain within its borders, in South Carolina it was a landowner with no such powers or state immunities from suit. Jasper County filed a condemnation action to take the land necessary to lease it to SSA to develop and operate the port.

Because of the economic interests of the county and the lease arrangements and control issues involved, the condemnation action filed by Jasper County was newsworthy and politically sensitive. GDOT reached out to several large South Carolina law firms but could not secure representation because of the political nature of the case.  GDOT was eventually referred to Richard Davis Bybee who agreed to undertake its representation and to challenge the condemnation action in state court.


Condemnation challenge actions are permissible in South Carolina on limited grounds and must be promptly filed in a separate action from the condemnation filing under a very short statute of limitations. The prime grounds for challenging the taking was on the grounds that the taking was for a private purpose, not a public one. South Carolina case law had previously established that a County could not condemn land to be used by a private entity, notwithstanding consequent public benefit because of the lack of public right of access and control.


Because of the public nature of the parties and the significance of the constitutional issues raised by Rick in the challenge action, the South Carolina Supreme Court assigned the case to a circuit judge with the exclusive control of the discovery and trial of the case and prior experience with eminent domain litigation. Discovery was expedited and the trial was conducted in Jasper County within six months of the challenge action filing.  The non-jury trial lasted a week. The evidence introduced at trial established that the County nor members of the public would have any right of access to or control of the port.  GDOT lost its challenge case in the lower court but appealed the case, requesting that the South Carolina Supreme Court take the case and bypass the South Carolina Court of Appeals.  Again because of the constitutional issues raised at trial, the Supreme Court agreed to hear the case directly from the trial court.

The South Carolina Supreme Court unanimously reversed the trial court on the grounds that the taking was not for a public use. When the United States Supreme Court issued its Kelo decision allowing a taking for economic redevelopment, the S.C. General Assembly amended its just compensation clause to prohibit a taking for economic redevelopment. In South Carolina public use means use by the public by either control or operation of the facility or the right of public access thereto.

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