Atl. Coast Line R. Co v. Baker

• Decision Date: 03 February 1926
• Docket Number: (No. 49.)
• Parties: ATLANTIC COAST LINE R. CO. v. BAKER.
• Court: South Carolina Supreme Court

131 S.E. 678

ATLANTIC COAST LINE R. CO.
v.
BAKER.

(No. 49.)

Supreme Court of South Carolina.

Feb. 3, 1926.

Cothran and Marion, JJ., dissenting.

Appeal from Common Pleas Circuit Court of Chesterfield County; E. C. Dennis, Judge.

Action by the Atlantic Coast Line Railroad Company against Rachel Baker. From an order denying an injunction pendente lite, the plaintiff appeals. Order dissolved.

The following are the statement in the case, the complaint, the order of Judge Dennis appealed from, and the exceptions thereto:

[131 S.E. 679]Statement.

Action commenced by the service of a summons and complaint on the 37th day of August, 1924, and is one seeking permanently to enjoin the erection of a building to be used as a garage and filling station upon property alleged to be the right of way of plaintiff railroad company. In the absence of Judge Dennis from his circuit, Judge S. W. G. Shipp on the 26th day of August, 1924, upon the verified complaint issued a rule to show cause why a temporary injunction should not be issued, with restraint pending the return of the rule. The said rule to show cause was returnable before Judge E. C. Dennis at Darlington, S. C, on September 8, 1924. On the return to the rule to show cause, upon consideration of the verified complaint and the affidavits pro and con, his honor, Judge Dennis, held that an interlocutory injunction was not essential to the preservation of any legal right of plaintiff and by order dated that day refused to grant an injunction pending the hearing on merits. From the order of Judge Dennis refusing the temporary injunction, plaintiff appeals to the Supreme Court. Upon an ex parte application his honor, Associate Justice T. B. Fraser, on the 9th day of September, 1924, granted an order staying all proceedings herein until this appeal can be heard in the Supreme Court.

Complaint.

The complaint, omitting caption and verification, is as follows:

(1) That at the times hereinafter mentioned, Atlantic Coast Line Railroad Company was, and is, a corporation duly chartered and existing under and by virtue of the laws of the state of Virginia, engaged in and doing business in the above state and county as a common carrier of freight and passengers for hire; and as such corporation is entitled to sue and be sued.

(2) That during the year 1857, as plaintiff is informed and believes, a corporation was formed, organized, and chartered under and by virtue of an act of the General Assembly of South Carolina (12 St. at Large, p. 645) under the corporate name of Cheraw & Coal Fields Railroad Company, the proposed line of railroad to be constructed by said company to extend from the town of Cheraw to the North Carolina state line, in the direction of Wadesboro, and the right of way of said company, as authorized by the law of its creation, was to be 200 feet wide, that is to say, 100 feet wide from the center of the track on each side, with a conclusive presumption of a grant thereto two years after the construction thereof.

(3) That later on, to wit, about the year 1868, as plaintiff is informed and believes, by Special Act of the General Assembly of South Carolina, the name of such corporation was changed from Cheraw & Coal Fields Railroad Company to Cheraw & Salisbury Railroad Company.

(4) That, thereafter, as plaintiff is informed and believes, the Cheraw & Salisbury Railroad Company completed the construction of its said line of railroad from the main line of the Cheraw & Darlington Railroad in the town of Cheraw, to the North Carolina state line.

(5) That, on or about the 30th day of November, 1892, as plaintiff is informed and be lieves, all property, including real estate, rights of way, rolling stock, etc., of the Cheraw & Salisbury Railroad Company was sold under foreclosure sale, and bought in at such sale by the Cheraw & Darlington Railroad Company, which last-named...