Atlantic Coast Line R. Co. v. Baker

• Decision Date: 03 February 1926
• Docket Number: 49.
• Citation: 131 S.E. 678,134 S.C. 106
• Parties: ATLANTIC COAST LINE R. CO. v. BAKER.
• Court: South Carolina Supreme Court

131 S.E. 678

134 S.C. 106

ATLANTIC COAST LINE R. CO. v. BAKER.

No. 49.

Supreme Court of South Carolina

February 3, 1926

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 Statement.

Action commenced by the service of a summons and complaint on the 27th 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 believes, 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 company acquired and became the owner of all the property of, and succeeded to all rights under the charter of Cheraw & Salisbury Railroad Company.

(6) That, as plaintiff is informed and believes, on or about the 18th day of July, 1898, the Cheraw & Darlington Railroad Company, with all of its property, rights and powers, etc., was consolidated with and into Atlantic Coast Line Railroad Company of South Carolina.

(7) That, as plaintiff is informed and believes, on or about the 18th day of April, 1900, the Atlantic Coast Line Railroad Company of South Carolina was consolidated with and into the Atlantic Coast Line Railroad Company, the plaintiff herein, who is now the owner of all the powers, rights and property, above mentioned and described.

(8) That, as plaintiff is informed and believes, Cheraw & Coal Fields Railroad Company, afterwards Cheraw & Salisbury Railroad Company, obtained from the then adjoining landowners deed to a right of way 200 feet wide, that is to say, 100 feet wide from the center of the track on each side, beginning in the town of Cheraw, at the end of the north leg of the present Atlantic Coast Line Railroad Company's wye, just below the passenger station of said company, and running to the North Carolina state line, and that said right of way, as above set forth, is now owned by the plaintiff herein.

(9) That the defendant, Rachel Baker, is committing acts of trespass upon the right of way of plaintiff, in that said defendant is attempting to build a house on said right of way, at the point where the right of way of plaintiff is intersected by the Jefferson Davis Highway, in the town of Cheraw, east and north of the track of plaintiff on said north leg of the wye, and south of said Jefferson Davis Highway, and fronting on said highway; that the said defendant was duly warned and forbidden to enter said lands and to erect or cause to be erected the said house, at this point, and was informed that such building would be upon the right of way of plaintiff, but that the said defendant has treated such notice with defiance, and claims that she is entitled to enter upon said land, and to build said house thereon, and to occupy and use the same as her own, and threatens and continues so to do.

(10) That title to the said land, 100 feet from the center of the track, is in plaintiff, and that said building is a permanent structure, intended as a store or garage, which if built will seriously interfere with plaintiff in the use and enjoyment of its said easement at this point, and will greatly increase the hazard of fires.

(11) That plaintiff has acquiesced and permitted adjoining landowners to plant gardens and cultivate parts of its right of way, so long as such use was not inconsistent with the use of said land for railroad purposes, but that if the defendant be permitted to complete the erection of the building, above mentioned and described, it will seriously interfere with the enjoyment of the easement by plaintiff, and the use thereof will be inconsistent with plaintiff's use thereof for railroad purposes, as said structure is permanent, and the use and occupancy thereof by defendant, and its continuance upon said land, will constitute a continuing trespass upon the rights and property of plaintiff who is in possession of same.

(12) That, as plaintiff is informed and believes, the defendant is insolvent and cannot be made to respond to a judgment for damages, that the acts...