THE STATE OF SOUTH CAROLINA 

In The Court of Appeals 

John Burke, William Burt, Sr., Thomas Cooper, Mike 

Ellison, Harold J. Hanson, David McKee, Plaintiffs, 

Of whom John Burke is the Respondent, 

v. 

The South Carolina Department of Transportation, 

Appellant. 

Appellate Case No. 2017-001881 

Appeal From Aiken County 

Doyet A. Early, III, Circuit Court Judge 

Opinion No. 5709 

Heard October 15, 2019 – Filed January 15, 2020 

AFFIRMED 

James Drayton Nance, of Nance, McCants & Massey, of 

Aiken, for Appellant. 

Tucker S. Player, of Player Law Firm, LLC, of 

Columbia, for Respondent. 

HILL, J.: In this appeal, we must decide whether prejudgment interest in an inverse 

condemnation case is a question for the jury or the court. We conclude it is one for 

the court and affirm the trial court's award of prejudgment interest. 
I. 

John Burke sued the South Carolina Department of Transportation (SCDOT) 

alleging it had inversely condemned his property during construction on the I-520 

bypass in Aiken County. At trial, the circuit court did not instruct the jury on 

prejudgment interest nor did Burke or SCDOT request such an instruction as part of 

the definition of just compensation. The jury awarded Burke $134,000 as just 

compensation. 

After trial, Burke asked the trial court to award him prejudgment interest. The trial 

court found the date of taking to be the date Burke commenced his lawsuit, and 

awarded him prejudgment interest. In calculating the interest, the trial court relied 

on section 28-2-420 of the South Carolina Eminent Domain Procedure Act (2007) 

(the Act), which states "[a] condemnor shall pay interest at the rate of eight percent 

a year upon sums found to be just compensation by the appraisal panel or judgment 

of a court to the condemnee." SCDOT now appeals, contending only the jury may 

award interest in inverse condemnation cases. 

II. 

This appeal presents a novel issue of law, which we decide de novo. See I'On, 

L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 411, 526 S.E.2d 716, 718–19 (2000). 

Inverse condemnation is a common law action derived from the takings clause of 

our state and federal constitutions. Vick v. S.C. Dep't of Transp., 347 S.C. 470, 480, 

556 S.E.2d 693, 698 (Ct. App. 2001); see also Cobb v. S.C. Dep't of Transp., 365 

S.C. 360, 364, 618 S.E.2d 299, 301 (2005) (noting inverse condemnation cases and 

eminent domain proceedings are "treated alike under the takings clause of our State 

Constitution," but acknowledging inverse condemnation is a common law cause of 

action). Inverse condemnation occurs when the normal condemnation procedure is 

inverted: the government has taken private property without initiating the formal 

condemnation process of the Act. See Georgetown Cty. v. Davis & Floyd, Inc., 426 

S.C. 52, 61, 824 S.E.2d 471, 476 (Ct. App. 2019), cert. granted, S.C. Sup. Ct. order 

dated Aug. 5, 2019. SCDOT concedes Burke is entitled to prejudgment interest, but 

argues that in an inverse condemnation action only the jury can award it. 

There is considerable tension in our inverse condemnation precedent. In Vick—the 

sole authority SCDOT relies upon—this court held the Act's provision on interest 

does not apply to inverse condemnation actions. 347 S.C. at 479–81, 556 S.E.2d at 

698–99. Vick did not hold that prejudgment interest was exclusively a jury question; 

it found the trial court did not err in charging the jury it could consider interest as 
 

 

part of its just compensation award. See id. at 484 n.3, 556 S.E.2d at 701 n.3. The 

court in Vick suggested South Carolina State Highway Department v. Miller, 237 

S.C. 386, 117 S.E.2d 561 (1960), "implies that interest recoverable in inverse 

condemnation actions is an issue to be charged to the jury for its determination as a 

measure of damages." 347 S.C. 481, 556 S.E.2d at 699. Miller assumed "without 

deciding" that interest was recoverable in a condemnation action. 237 S.C. at 392, 

117 S.E.2d at 564. Yet a year after Miller (which was not an inverse case), the court 

ruled interest was not recoverable at all in condemnation actions. S.C. State 

Highway Dep't v. S. Ry. Co., 239 S.C. 1, 5–6, 121 S.E.2d 236, 238 (1961). This did 

not change until 1987 when the Act became law and included an interest recovery 

provision. See S.C. Dep't of Transp. v. Faulkenberry, 337 S.C. 140, 150–51, 522 

S.E.2d 822, 827–28 (Ct. App. 1999) (discussing history of interest recovery in 

condemnation cases). 

Furthermore, four years after Vick, our supreme court in Cobb held the Act's 

provision of a right to a jury trial applies to inverse condemnation actions. See Cobb, 

365 S.C. at 365, 618 S.E.2d at 301 (concluding the Act is applicable to the inverse 

condemnation right to a jury trial "[i]n light of the historical treatment of an inverse 

condemnation action as equivalent to an eminent domain case"). 

The Fourth Circuit has stated, in the context of an inverse condemnation claim based 

on the fifth amendment takings clause of the federal constitution, that "[i]nterest, as 

an element of just compensation, ordinarily should be determined by the trier of 

fact." Tony Guiffre Distrib. Co., Inc. v. Washington Metro. Area Transit Auth., 740 

F.2d 295, 298 (4th Cir. 1984) (affirming the denial of prejudgment interest when the 

issue was first raised by post-trial motion). We have held, though, that the 

appropriateness of a statutory award of prejudgment interest is a question of law. 

See Keane v. Lowcountry Pediatrics, P.A., 372 S.C. 136, 143, 641 S.E.2d 53, 57 (Ct. 

App. 2007). 

To complicate things further, this court has declared "[i]t is well settled in this state 

that the award of prejudgment interest is a function of the trial court, and has never 

been held to be an issue of fact requiring its submission in a jury trial." Bickerstaff 

v. Prevost, 380 S.C. 521, 524, 670 S.E.2d 660, 661 (Ct. App. 2009) (affirming 

post-trial award of prejudgment interest in breach of contract case). 

We conclude Cobb's overarching premise—that inverse condemnations should not 

be subject to different procedural rules than traditional condemnations governed by 

the Act—controls. There is no good reason to treat the two differently. It would be 

strange to tell inverse condemnation juries they must consider and calculate interest, 
 

 

while juries in statutory condemnation actions would be relieved of the task. In both 

cases, the jury's role is to determine just compensation. 

Miller presumed a jury's just compensation award includes interest. The Act deflates 

this presumption, for § 28-2-420 requires that the condemnor shall pay interest upon 

the just compensation award, and the interest "shall accrue from the date of filing of 

the Condemnation Notice through the date of verdict or judgment by the court." In 

Vick, the trial court instructed the jury that it could include interest as part of its just 

compensation award. 347 S.C. at 484 n.3, 556 S.E.2d at 701 n.3. Here the trial court 

did not mention interest in defining just compensation, and that definition is now the 

law of the case. The jury would have therefore been clairvoyant (and rogue) to have 

included interest as part of its just compensation award. It was given a traditional 

just compensation charge, which stated: 

[T]he amount that the governmental agency should pay a 

landowner in order to adequately compensate the 

landowner for a taking of his property is called just 

compensation. It is that amount of money which would 

. . . put the landowner in as good a position monetarily as 

he was prior to the taking of the property. . . . He's entitled 

to have the full equivalent of the value of such use at the 

time of the taking . . . And this is probably the heart of 

what just compensation is: The measure of damages from 

the taking is the difference in the value of the landowner's 

land before the taking and after the taking. 

As this instruction suggests, just compensation can be viewed as a snapshot in time: 

a picture of the property's market value at the moment of taking. This scene does 

not yet include the background of the landowner's right to interest, which has not 

accrued at the moment of taking, but is added later to compensate the landowner for 

the loss of the use of his money between the time of the government's taking of his 

property and the judgment. Burke lost the use of his money for over three years. 

See Faulkenberry, 337 S.C. at 149, 522 S.E.2d at 826. We therefore hold that a 

request for prejudgment interest on a just compensation award in an inverse 

condemnation action is for the trial court and not the jury. 

Accordingly, the circuit court properly awarded prejudgment interest. We therefore 

affirm the trial court's reliance on § 28-2-420. 

AFFIRMED. 
LOCKEMY, C.J., and KONDUROS, J., concur.