Groce v. Greenville, S. & A. Ry. Co.
| Decision Date | 28 March 1913 |
| Citation | 78 S.E. 888,94 S.C. 199 |
| Parties | GROCE v. GREENVILLE, S. & A. RY. CO. |
| Court | South Carolina Supreme Court |
Action by one Groce against the Greenville, Spartanburg & Anderson Railway Company. From an order denying an interlocutory injunction, the plaintiff appeals. Order reversed.
Bomar & Osborne, of Spartanburg, for appellant. Nicholls & Nicholls and Jno. Gary Evans, all of Spartanburg, for appellee.
Plaintiff brought this action solely for the purpose of obtaining an injunction and appeals from an order refusing an injunction until the case can be heard on the merits. So much of the complaint as is material to the consideration of the appeal is, in substance, as follows: That plaintiff is the owner of a tract of land which is bounded on the west by Middle Tyger river, her line extending to the center of the stream; that in May, 1912, she granted defendant a right of way over said tract along a certain route which had been surveyed and was agreed upon; that defendant thereafter changed its plans and is proceeding, against her objection and protest, to construct its road over her land along a substantially different route, without legal right or her permission to do so, and is about to cut a new channel for said river for the purpose of diverting the stream from her said lands without her consent or permission; that neither such change in the route of the road or in the channel of the river is necessary for the performance of defendant's functions as a railway company, and that, unless defendant is enjoined, she will be deprived of valuable property rights, without due process of law, and will be irreparably injured; that defendant never notified her in writing, as required by the statute, that it required a right of way over her land along the route upon which it is now constructing its road, or that it required a change in the bed of the river for its purposes, and, as soon as she learned that defendant was proceeding to take her property without authority and without process of law, she objected and protested against the same, but that her objections and protests were unavailing, and she is without adequate remedy save by the injunctive process of the court that defendant denies her ownership of said land and her right to compensation for the taking thereof. She prays that defendant be enjoined.
The plaintiff's grant describes the right of way as "running in a general southeasterly direction, and to be finally located approximately as shown by a survey made by Maj. Thos. B. Lee." It also gave defendant the right "to do any and all acts necessary or appropriate for any proper purpose connected with said road or line."
As originally located, the road passed to the east of a certain bend in Middle Tyger river on plaintiff's land. The bend is in the shape of a horseshoe. At the nearest point to the toe of the shoe, the road appears to be only about 10 or 15 feet from the eastern bank of the river. The new route which the company proposes to take begins its departure from the old between a third and a half of a mile south of the river and it gradually diverges to the west, until it attains a distance of a little over 100 yards from the original location, and then the lines of the two locations converge until they meet about the same distance north of the point of greatest departure. The new location being a shorter curve than the old, it crosses the bend of the river about 200 feet west of the old. The proposed change in the channel of the river consists in throwing it entirely west of the new location within the horseshoe. The part of the horseshoe east of the new location contains about three acres, and, to compensate plaintiff for the proposed change in the channel of the stream and still keep the stream as her western boundary, defendant has offered to convey to her the land within the horseshoe east of the proposed new channel.
The defendant asserts the right to make these changes under and by virtue of the plaintiff's grant--that in the route on the ground that it is ""approximately" as shown by the survey referred to in the grant, and that in the channel of the river on the ground that it is necessary to the proper location of its road. These allegations are denied by the plaintiff. Upon both propositions the testimony is conflicting; so much so that, considering all the evidence, the court could not say that it was made so clearly to appear that plaintiff's action is without merit as to warrant the refusal of a temporary injunction until the hearing on the merits.
If the plaintiff should establish, at the trial, that the...
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