THE STATE OF SOUTH CAROLINA 

In The Court of Appeals 

Lucille H. Ray, Appellant, 

v. 

City of Rock Hill, South Carolina, a Municipal 

Corporation, and South Carolina Department of 

Transportation, an agency of the State of South Carolina, 

Defendants, 

Of which City of Rock Hill is the Respondent. 

Appellate Case No. 2016-002118 

Appeal From York County 

D. Garrison Hill, Circuit Court Judge

S. Jackson Kimball, III, Special Circuit Court Judge 

Opinion No. 5684 

Heard April 1, 2019 – Filed September 11, 2019 

AFFIRMED IN PART, REVERSED IN PART, AND 

REMANDED 

Richard B. Fennell, of James, McElroy & Diehl, P.A., of 

Charlotte, NC, and Charles S. Bradford, of Charles S. 

Bradford, P.A., of York, for Appellant. 

W. Mark White and Jeremy D. Melville, both of Spencer 

& Spencer, P.A., of Rock Hill, for Respondent. 
 

 

LOCKEMY, C.J.: In this action, Lucille Ray asserts the special circuit court

judge erred in granting summary judgment to the City of Rock Hill (the City) as to 

her claims for inverse condemnation and injunctive relief. In addition, Ray argues 

the circuit court erred in (1) excluding witness testimony regarding abatability, and 

(2) granting a directed verdict to the City as to her claim for trespass. We affirm in 

part, reverse in part, and remand to the circuit court. 

FACTS

Ray's claims against the City in this action relate to a 24-inch storm water pipe (the 

Pipe) located under her property at 330 College Avenue (the Property) in the City. 

The Pipe begins at a City maintained catch basin on College Avenue in front of the 

Property and channels storm water underneath Ray's home and through the 

Property. The Property and the Pipe are located at the topographical low point of a 

watershed comprising approximately 29 acres. 

Ray's predecessors-in-title constructed a home on the Property in the 1920's. The 

Pipe was installed on the Property prior to the construction of the home. The 

record contains no evidence of who originally installed the Pipe, who owns the 

Pipe, or the existence of any easement for piping water across the Property. The 

record reveals one of Ray's predecessors-in-title was aware of the Pipe and 

connected a drainage pipe into the Pipe. 

Ray acquired the Property in May 1985 and acknowledges a history of sinkholes 

and cave-ins on the Property since the time of her acquisition. In 1992, Ray 

observed as her gardener fell waist deep into a sinkhole behind her home. Ray was 

also aware of bending and movement in the roof frame of the home in 1995 and 

again in 2007. By 2008, Ray was aware of the existence of the Pipe and was 

concerned that water leaking from the Pipe might be damaging her home. Ray 

noticed the front steps of her home appeared to be sinking and requested the City 

investigate the Pipe. In 2008, City employees came to the Property at least twice 

and informed Ray that a storm water pipe "ran toward the steps" of Ray's house. 

On November 6, 2012, Ray filed suit against the City and the South Carolina 

Department of Transportation (SCDOT). In her complaint, Ray asserted causes of 

action for trespass and inverse condemnation; she also sought injunctive relief and 

attorney's fees. Ray claimed her home incurred structural damage due to 

foundation movement as a result of water leaking from the Pipe.
On March 24, 2014, SCDOT filed a motion for summary judgment on each of 

Ray's claims. The circuit court granted the motion and all causes of action asserted 

against SCDOT were dismissed. 

On May 19, 2014, the City filed a motion for summary judgment. Following a 

hearing, the special circuit court judge granted the City partial summary judgment, 

dismissing Ray's claims for inverse condemnation, injunctive relief, and attorney's

fees. The judge further held the collection and discharge of water under Ray's

home may be considered an affirmative, intentional act, thus leaving a genuine 

issue for trial as to Ray's trespass claim. The judge ruled the statute of limitations 

began to run on Ray's trespass claim no later than 2008. However, the judge found 

a genuine issue of fact existed as to whether the asserted trespass in this case was 

abatable. The judge noted that, pursuant to case law, where the offending conduct 

is abatable, the statute of limitations begins to run with each new invasion of a 

plaintiff's property. Therefore, since abatability is an issue of fact, the judge found 

Ray's remaining claim for trespass survived as to each new invasion for the three 

years prior to November 6, 2009. The City's and Ray's subsequent motions to 

reconsider were denied. 

On September 12, 2016, the first day of trial, the City moved to exclude certain 

testimony, including opinions expected to be offered by Michael Leonard, a 

structural engineer and Ray's expert witness. In deposition testimony, Leonard 

opined that the structural damage to Ray's home was partially the result of the 

leaking Pipe. Leonard further testified that to render a qualified opinion on the 

abatability of the flow of water to and through the Pipe would require a thorough 

engineering study. Leonard testified he had not performed a hydrology study or 

studied the flow of water to or through the Pipe. Leonard testified he was unable 

to testify to a reasonable degree of engineering certainty that the flow of water 

could be reasonably routed around the Property. 

The circuit court granted the City's motion, excluding Leonard's opinion testimony 

regarding the issue of the abatability of the alleged trespass. Thereafter, Ray 

acknowledged she could not meet her burden of proof in light of the court's ruling 

and stated "it would be appropriate to enter judgment against me." In a subsequent 

order, the circuit court held that given the special circuit court judge's prior ruling 

on summary judgment, only an abatable trespass remained as a viable cause of 

action. The court explained that because it had excluded Leonard's opinion 

testimony as unreliable concerning abatement, Ray's trespass cause of action was 

unviable. With no genuine issue of material fact remaining, the court found the 

City was entitled to judgment as a matter of law. This appeal followed. 
 

LAW/ANALYSIS 

I. Summary Judgment 

Ray argues the special circuit court judge erred in granting summary judgment as 

to her claims for inverse condemnation and injunctive relief. 

"An appellate court reviews a grant of summary judgment under the same standard 

applied by the [circuit] court pursuant to Rule 56, SCRCP." Lanham v. Blue Cross 

& Blue Shield of S.C., Inc., 349 S.C. 356, 361, 563 S.E.2d 331, 333 (2002). 

Summary judgment shall be granted when "the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show 

that . . . no genuine issue [exists] as to any material fact and that the moving party 

is entitled to a judgment as a matter of law." Rule 56(c), SCRCP. "In determining 

whether any triable issues of fact exist for summary judgment purposes, the 

evidence and all the inferences [that] can be reasonably drawn from the evidence 

must be viewed in the light most favorable to the nonmoving party. . . [who] is 

only required to submit a mere scintilla of evidence in order to withstand a motion 

for summary judgment." Hancock v. Mid-S. Mgmt., 381 S.C. 326, 329-31, 673 

S.E.2d 801, 802-03 (2009).

A. Inverse Condemnation 

"An inverse condemnation occurs when a government agency commits a taking of 

private property without exercising its formal powers of eminent domain." 

Hawkins v. City of Greenville, 358 S.C. 280, 290, 594 S.E.2d 557, 562 (Ct. App. 

2004). "To prove an inverse condemnation, a plaintiff must show: (1) an 

affirmative, positive, aggressive act on the part of the governmental agency; (2) a 

taking; (3) the taking is for a public use; and (4) the taking has some degree of 

permanence." Marietta Garage, Inc. v. S.C. Dep't of Pub. Safety, 352 S.C. 95, 101, 

572 S.E.2d 306, 308 (Ct. App. 2002). 

The special circuit court judge determined Ray's claim that the City collected water 

into its storm water drainage system and channeled it under her home did not 

support her claim of inverse condemnation. The judge found no positive, 

aggressive acts were committed by the City. The judge noted Ray did not allege 

the construction of any new improvements causing water to flow through the Pipe 

under her Property, and Ray failed to cite any case law which would categorize 

maintenance of the storm water drainage system as a positive, aggressive act. 
 

 

Ray contends the City's maintenance in November 2012 of drainage pipes situated 

under College Avenue in front of her Property constituted an affirmative act 

sufficient to give rise to a claim for inverse condemnation. She maintains the City, 

after repairing several broken pipes under College Avenue, reconnected the subject 

Pipe to the City's storm water drainage system against her wishes.1

 Ray asserts the 

City undertook a permanent public project to modernize its infrastructure along 

College Avenue, and, as a result, it took positive steps to direct its storm water 

system flow directly under her home. 

The City asserts there is no evidence it installed or owned the subject Pipe or that 

any new construction or improvements upstream from the Pipe resulted in an 

increase in the amount or flow rate of water toward Ray's Property. The City 

contends its maintenance of the pipes under College Avenue in November 2012 

was not to the subject Pipe or to a pipe directly connected to the Pipe. The City 

argues summary judgment was proper because Ray was unable to produce any 

evidence to attribute the flow of water through the Pipe to any action by the City. 

Although the City asserts its repair work in 2012 only involved one pipe and did 

not affect the subject Pipe, we believe questions of fact exist as to which pipes 

were damaged and in need of repair. On November 13, 2012, Ray's attorney 

advised the City that three large pipes in front of Ray's Property were damaged 

during the City's work on College Avenue and specifically advised the City that 

Ray did not consent to the reconnection of the Pipe to any of the replacement 

pipes. Ray submitted photographs of the damaged pipes in front of her home into 

evidence. These photos appear to show three large severed pipes and the City's

subsequent work to reconnect the pipes and resume the flow of storm water. 

This court addressed inverse condemnation and municipal drainage systems in 

Hawkins v. City of Greenville. Hawkins filed suit against the City of Greenville 

asserting a cause of action for inverse condemnation and alleging the City's neglect 

in designing and maintaining its stormwater drainage system led to flooding which 

damaged his property. Hawkins, 358 S.C. at 285-86, 594 S.E.2d at 560. This court 

found Hawkins failed to allege any affirmative, positive, and aggressive acts by the 

City which damaged his property. Id. at 291, 594 S.E.2d at 562. Specifically, the 

court found: (1) the acts Hawkins alleged were merely failures to act; and (2) the 

only affirmative act Hawkins cited as a basis for his inverse condemnation claim

1 On November 13, 2012, Ray's attorney sent a letter to the City instructing them not

to reconnect the City's storm water drainage system to the Pipe. 
was the replacement of a culvert and the installation of material around a nearby 

creek. Id. at 291, 594 S.E.2d at 562-63. The court held there was no evidence in 

the record that either of these acts caused the flooding on Hawkins's property. Id. 

at 291, 594 S.E.2d at 563.

We note that while the dissent in the present case finds Hawkins controlling, we 

believe Hawkins is distinguishable from the present case. Here, we find a genuine 

issue of material fact exists as to whether the City engaged in an affirmative, 

positive, and aggressive act in reconnecting City pipes to the Pipe after the City 

admitted it did not have an easement and Ray told the City not to reconnect. 

Accordingly, we reverse the special circuit court judge's grant of summary 

judgment as to Ray's inverse condemnation claim. 

B. Injunctive Relief 

"Actions for injunctive relief are equitable in nature." Denman v. City of 

Columbia, 387 S.C. 131, 140, 691 S.E.2d 465, 470 (2010). "In equitable actions, 

an appellate court may review the record and make findings of fact in accordance 

with its own view of the preponderance of the evidence." Id. "To obtain an 

injunction, a party must demonstrate irreparable harm, a likelihood of success on 

the merits, and the absence of an adequate remedy at law." Id. "An injunction is a 

drastic remedy issued by the court in its discretion to prevent irreparable harm

suffered by the plaintiff." Scratch Golf Co. v. Dunes W. Residential Golf 

Properties, Inc., 361 S.C. 117, 121, 603 S.E.2d 905, 907 (2004). 

The special circuit court judge found Ray's claim for injunctive relief failed as a 

matter of law because her trespass claim provided an adequate remedy at law. The 

judge noted Ray "could be made whole by a damage award on the trespass claim." 

Ray argues the City's trespass on the Property is continuing in nature as it recurs 

with each rainfall. She contends the judge's finding that a genuine issue of fact 

existed as to whether the trespass was abatable was inconsistent with its grant of 

summary judgment to the City as to her claim for injunctive relief. Ray asserts that 

repairing the damage caused by the flow of water through the Pipe beneath her 

home, while permitting the City to continue channeling water through the Pipe, 

guarantees further damage and litigation between the parties. 

We agree with Ray that an injunction is the proper remedy for a continuing 

trespass. See Mack v. Edens, 306 S.C. 433, 437, 412 S.E.2d 431, 434 (Ct. App. 

1991) ("Injunction is a proper remedy for a continuous trespass to land. Because 
of the permanent and recurring nature of the injury, which cannot otherwise be 

prevented, the courts should enjoin the continuous trespasser to protect the 

landowner's property rights from hurt or destruction."). However, as discussed 

below, we believe the circuit court properly granted a directed verdict in favor of 

the City as to Ray's trespass claim. Therefore, our finding below is dispositive of 

Ray's argument that the special circuit court judge erred in granting summary 

judgment as to her claim for injunctive relief for trespass. 

II. Exclusion of Expert Testimony 

Ray argues the circuit court erred in granting the City's motion to exclude 

Leonard's expert testimony. We disagree. 

"If scientific, technical, or other specialized knowledge will assist the trier of fact 

to understand the evidence or to determine a fact in issue, a witness qualified as 

an expert by knowledge, skill, experience, training, or education, may testify 

thereto in the form of an opinion or otherwise." Rule 702, SCRE. 

"Qualification of an expert and the admission or exclusion of his testimony is a 

matter within the sound discretion of the [circuit] court." Fields v. Reg'l Med. Ctr. 

Orangeburg, 363 S.C. 19, 25, 609 S.E.2d 506, 509 (2005). "[T]he trial court's 

decision [to admit or exclude expert testimony] will not be disturbed on appeal 

absent an abuse of discretion." Id. "An abuse of discretion occurs when the ruling 

is based on an error of law or a factual conclusion that is without evidentiary 

support." Id. at 26, 609 S.E.2d at 509. "A trial court's ruling on the admissibility 

of an expert's testimony constitutes an abuse of discretion when the ruling is 

manifestly arbitrary, unreasonable, or unfair." Id. "To warrant reversal based on 

the admission or exclusion of evidence, the appellant must prove both the error of 

the ruling and the resulting prejudice, i.e., that there is a reasonable probability the 

jury's verdict was influenced by the challenged evidence or the lack thereof." Id. 

"The trial court serves as the gatekeeper in the admission of all evidence presented 

at trial . . . ." Watson v. Ford Motor Co., 389 S.C. 434, 456, 699 S.E.2d 169, 180 

(2010). "In determining whether to admit expert testimony, the court must make 

three inquiries." Graves v. CAS Med. Sys., Inc., 401 S.C. 63, 74, 735 S.E.2d 650, 

655 (2012). "First, the [circuit] court must determine whether the subject matter is 

beyond the ordinary knowledge of the jury, thus requiring an expert to explain the 

matter to the jury." Watson, 389 S.C. at 446, 699 S.E.2d at 175. Second, the 

expert must have "acquired the requisite knowledge and skill to qualify as an 

expert in the particular subject matter," although he "need not be a specialist in the 
particular branch of the field." Id. Finally, the substance of the testimony must be 

reliable. Id. It is this final requirement of reliability which is the central feature of 

the inquiry. State v. White, 382 S.C. 265, 270, 676 S.E.2d 684, 686 (2009). 

In analyzing the reliability of proposed expert testimony the court must consider 

the following factors: "(1) the publications and peer review of the technique; (2) 

prior application of the method to the type of evidence involved in the case; (3) the 

quality control procedures used to ensure reliability; and (4) the consistency of the 

method with recognized scientific laws and procedures." Graves, 401 S.C. at 74, 

735 S.E.2d at 655 (quoting State v. Council, 335 S.C. 1, 19, 515 S.E.2d 508, 517 

(1999)).

The circuit court ruled Ray may be able to establish a claim for continuing trespass 

to the extent she could show intentional collection and discharge of water under 

her home causing damage within the three-year limitations period. The central 

issue in distinguishing a continuing trespass from a permanent trespass is whether 

abatement of the trespass is reasonably and practically possible. 

Hedgepath v. Am. Tel. & Tel. Co., 348 S.C. 340, 357, 559 S.E.2d 327, 337 (Ct. 

App. 2001). Thus, a material issue of fact with respect to Ray's claim for 

continuing trespass is whether the alleged trespass is abatable. 

Prior to trial, the City moved to exclude Leonard's expert testimony on the grounds 

that it was unreliable. The circuit court granted the motion with respect to the 

issue of whether the City's alleged trespass was abatable because Leonard "had not 

done any engineering work on this issue, and it would not meet [the] criteria of 

being reliable or assist[ing] the jury." As the court noted in its subsequent order, 

given the prior ruling on summary judgment, only an abatable trespass remained as 

a viable cause of action. The court explained that because it had excluded 

Leonard's opinion testimony as unreliable concerning abatement, Ray's trespass 

cause of action was unviable. 

We find the trial court did not abuse its discretion in granting the City's motion to 

exclude Leonard's testimony. Leonard testified that to render a qualified opinion 

on the abatability of the flow of water to and through the Pipe would require a 

thorough engineering study. Leonard testified he had not performed a hydrology 

study or studied the flow of water to or through the Pipe. Leonard testified he had 

not analyzed whether an alternative drainage line could be placed in any particular 

location to divert water flow; he had not analyzed whether any alternatives would 

conflict with other existing infrastructure; he had not analyzed the topography of 

the watershed area to know if and how an alternative line could reroute the water 
flow; and he had not studied or analyzed the feasibility or cost of any alternatives 

to routing water flow. Leonard admitted that all of these factors would have to be 

studied to properly render an opinion as to the issue of whether the flow of water 

through the Pipe is reasonably and practically abatable. Finally, Leonard testified 

that although he believed the water flow could be rerouted around the Property, he 

was unable to testify to such with a reasonable degree of engineering certainty. As 

gatekeeper for expert testimony, the trial court properly excluded Leonard's

opinions regarding abatability. 

III. Directed Verdict 

Ray argues the circuit court erred in granting a directed verdict on her trespass 

claim. We disagree. 

When reviewing the circuit court's ruling on a directed verdict motion, this court 

must apply the same standard as the circuit court "by viewing the evidence and all 

reasonable inferences in the light most favorable to the nonmoving party." Elam v. 

S.C. Dep't of Transp., 361 S.C. 9, 27-28, 602 S.E.2d 772, 782 (2004). An appellate 

court will reverse the circuit court's ruling on a directed verdict motion only when 

there is no evidence to support the ruling or when the ruling is controlled by an 

error of law. Law v. S.C. Dep't of Corr., 368 S.C. 424, 434-35, 629 S.E.2d 642, 

648 (2006). "When the evidence yields only one inference, a directed verdict in 

favor of the moving party is proper." Wright v. Craft, 372 S.C. 1, 22, 640 S.E.2d 

486, 498 (Ct. App. 2006). "On the other hand, the [circuit] court must deny a 

motion for a directed verdict when the evidence yields more than one inference or 

its inference is in doubt." Id. "When considering a directed verdict motion, neither 

the [circuit] court nor the appellate court has authority to decide credibility issues 

or to resolve conflicts in the testimony or evidence." Burnett v. Family Kingdom, 

Inc., 387 S.C. 183, 188-89, 691 S.E.2d 170, 173 (Ct. App. 2010). 

After granting the City's motion to exclude Leonard's expert testimony, Ray 

conceded a directed verdict was proper in light of the circuit court's exclusion of 

Leonard's testimony on the issue of abatability. With no genuine issue of material 

fact remaining, the court found the City was entitled to judgment as a matter of 

law. We find the court did not err in granting a directed verdict. Ray did not offer 

any evidence on the issue of abatability other than the proposed testimony of 

Leonard. After the court excluded Leonard's testimony, there was no issue of 

material fact regarding the critical element of continuing trespass. Thus, a directed 

verdict in favor of the City was proper. 
 

 

CONCLUSION 

We reverse the special circuit court judge's grant of summary judgment as to Ray's

inverse condemnation claim. Additionally, we affirm the circuit court's exclusion 

of witness testimony regarding abatability and its grant of a directed verdict to the 

City as to Ray's claim for trespass. 

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 

MCDONALD, J., concurs. 

SHORT, J., concurring in part and dissenting in part: Respectfully, I concur in 

part and dissent in part. I agree with the majority to affirm the exclusion of expert 

testimony, the directed verdict on the trespass claim, and the injunctive relief. 

However, I would also affirm the trial court's grant of summary judgment on the 

inverse condemnation claim. "To establish an inverse condemnation, a plaintiff 

must show: '(1) an affirmative, positive, aggressive act on the part of the 

governmental agency; (2) a taking; (3) the taking is for a public use; and (4) the 

taking has some degree of permanence.'" Hawkins v. City of Greenville, 358 S.C. 

280, 290, 594 S.E.2d 557, 562 (Ct. App. 2004) (quoting Marietta Garage, Inc. v. 

S.C. Dep't of Pub. Safety, 352 S.C. 95, 101, 572 S.E.2d 306, 308 (Ct. App. 2002)). 

I agree with the circuit court that Ray has failed to allege an affirmative, positive, 

aggressive act on the City's part and Hawkins is controlling. The evidence shows

the pipes in the middle of College Avenue were broken during a City project, and 

the City repaired the pipes. I conclude this was maintenance to an existing system 

of pipes and not the basis for a claim for inverse condemnation. Thus, I would

affirm.