City of Orangeburg v. Southern Ry. Co.

• Decision Date: 25 June 1942
• Docket Number: No. 454.,454.
• Citation: 45 F. Supp. 734
• Court: U.S. District Court — District of South Carolina
• Parties: CITY OF ORANGEBURG v. SOUTHERN RY. CO. SOUTHERN RY. CO. v. CITY OF ORANGEBURG et al.

45 F. Supp. 734

CITY OF ORANGEBURG v. SOUTHERN RY. CO.

SOUTHERN RY. CO. v. CITY OF ORANGEBURG et al.

No. 454.

District Court, E. D. South Carolina, Orangeburg Division.

June 25, 1942.

Hugo S. Sims, of Orangeburg, S. C., for plaintiff.

Frank G. Tompkins, of Columbia, S. C., and Adam H. Moss, of Orangeburg, S. C., for defendant.

WARING, District Judge.

The above entitled cause was commenced by the service of a summons and complaint on December 14, 1940. The case was instituted in the Court of Common Pleas for Orangeburg County, South Carolina. The plaintiff is a municipal corporation and the complaint was for the purpose of foreclosing an alleged lien on certain lands located within the City of Orangeburg, the lien being claimed because of an assessment levied for improvements in streets abutting on the said property. The complaint alleged that the defendant was the owner of land described in the said complaint and showed that under authority of Article X, Section 16 of the Constitution of the State of South Carolina, cities of Florence and Orangeburg and the Town of Landrum may assess abutting property for permanent improvements, and an Act of the General Assembly of the State of South Carolina (Act No. 345, Acts of 1915, page 586), the City of Orangeburg adopted certain ordinances relative to street improvements and as a result thereof levied an assessment upon certain abutting property including that involved in this suit. The complaint alleged that all provisions of law had been duly complied with and that the assessment amounting to the sum of $6,937.01, together with interest from January 15, 1937, at the rate of 6% per annum was due. The complaint prayed that the lien upon the lot be foreclosed; that the premises be sold and the proceeds of sale, after the payment of costs and any taxes that might be due, be applied upon the payment of the assessment.

The defendant, the Southern Railway Company, answered, reserving the right to institute removal proceedings and in due time, namely: January 2, 1941, filed its petition and bond and took other appropriate steps whereby the said cause was removed to the jurisdiction of this court.

Apparently on January 14, 1941, the plaintiff by and through one of its officers, namely: F. M. DeMars, as Tax Collector of said municipality, attempted to levy an execution on the lands for the purpose of summarily foreclosing the same lien which had been claimed in the suit heretofore instituted. On the same date the plaintiff instituted a second action in the Court of Common Pleas for Orangeburg County, making substantially the same allegations as in the first suit, the defendants therein named being the Southern Railway, Carolina Division, the South Carolina and Georgia Railroad Company, the South Carolina Railroad Company and the South Carolina Railway Company, which are alleged to be South Carolina corporations. F. M. DeMars as Tax Collector in the levy made under summary process hereinabove referred to, gave notice that this real estate was "being seized as the property of the Southern Railway; Southern Railway, Carolina Division; South Carolina & Georgia Railroad Company; South Carolina Railway Company and all other persons or person who may have or claim any interest in and to the same". Apparently the City officials were doubtful as to the real owner of the property, but it is quite clear that it was the same property and that it was the same lien claimed against this property, which was sought to be enforced in both of these two suits and also in the attempt at summary action.

Thereafter the Southern Railway Company filed its petition in this cause setting forth substantially the above recited facts and showing that the Southern Railway, Carolina Division, was a corporation formed out of a merger of the South Carolina & Georgia Railroad Company and the South Carolina Railroad Company and the South Carolina Railway Company, which three last named companies are now out of existence. The petition prayed that this court should issue its rule against the City of Orangeburg and F. M. DeMars, citing them to appear in this court and show why they should not be adjudged in contempt and also that they should be required to show cause why they should not be restrained from proceeding in the State Court or in any other cause other than this pending action. This petition with the exhibits was filed on April 8, 1941, and Judge A. M. Lumpkin, then presiding in this court, issued an order requiring that the parties show cause why they should not be adjudged in contempt and enjoined as prayed for in the petition. The matter was never heard by judge Lumpkin before his untimely death and so it later came on for a hearing before me at the recent term of court holden in Orangeburg, S. C.

A return was filed on behalf of the City of Orangeburg and F. M. DeMars, wherein they made assurances that they had not in any way intentionally proceeded in disregard of the jurisdiction of this court and they stated that if this court should find that their acts did in any way constitute, or were tinged with, contempt they would make such proper apologies and amends as might be deemed just and appropriate. In regard to the other matters, namely: the prayers for injunction, the respondents admitted that they had attempted to foreclose the lien, which the City of Orangeburg claimed by reason of a paving assessment by the institution of this suit and further alleged that they had later discovered that the Southern Railway was not the real owner of the property and that its only interest in the property was derived from a lease for a term of years. They stated that they deemed it proper to institute another suit against the parties whom they now believed to be the true owners and that because of their uncertainty of the rights and relations between the defendants named in their second suit and in order to protect themselves from the extinguishment of the lien by lapse of time the Tax Collector, F. M. DeMars, had been instructed to and did levy upon the real estate. It was further stated that while the levy had actually been made on January 14, 1941, no further steps had been taken to enforce this and the sole purpose of the levy was to protect the lien from expiring by operation of the time limit of the statutes. The respondents denied that this court had acquired jurisdiction over the real property and further alleged that an action for foreclosing any lien against specific real estate is an action in rem and that the Court of Common Pleas for Orangeburg County has acquired the exclusive jurisdiction over the said real estate because of the ownership alleged in the second suit. The return further says on information and belief, that the Southern Railway and the Southern Railway, Carolina Division, are corporations directed and controlled by the same executives and under identical ownership, management and control and that the subsidiary corporation the Southern Railway, Carolina Division, has admitted that it owns an easement for railroad purposes over the lands described in the Complaint and that such lands are occupied by the Southern Railway under a lease for a term of years. The respondents, therefore, pray the dismissal of the rule and that no injunction issue and that the proceedings in the State Court be allowed to go forward and that no further steps be taken in the cause in this court.

In the presentation of the matter before me it was admitted that the actual ownership of the land in question was in some doubt, but that apparently the various companies had an easement or right to use the said lands for railroad purposes and that a lease had been entered into between Southern Railway, Carolina Division, and the Southern Railway Company dated June 30, 1902, which recites an Act of the General Assembly of South Carolina of February 19, 1902, authorizing the consolidation and merger of the various railroad companies and that all of their properties and franchises were leased to the Southern Railway Company. This lease apparently includes the property in question and grants to the Southern Railway Company "lines of railroad property and franchises and their appurtenances * * * for the full term of Nine Hundred and Ninety Nine (999) years beginning on the 1st day of July in the year One Thousand Nine Hundred and Two (1902)."

From the foregoing it will appear that there seems to be grave doubt as to who is the actual owner of the fee to the land in question. In the argument it was generally admitted that it was uncertain whether the fee in these lands was ever acquired by any one or more of the railroad companies hereinabove named or any of their predecessors, but that they did hold rights for the use thereof for railroad purposes and the lands had been devoted to such use. The lands are at present in the actual possession and control of the Southern Railway Company under this long term lease and it is using and exercising all of the rights and franchises acquired under its lease and held by its predecessors in and to this land.

Under the provisions of the Constitution of South Carolina and appropriate acts of the General Assembly and ordinances of the City of Orangeburg the city proceeded to make certain improvements to streets on which the property in question abutted and assessments were duly made against the various abutting properties. It appears that the railway company disputed the right of the city to make an assessment against it and some time ago put the city on notice that it would not recognize the assessment as a valid lien. Accordingly the various steps hereinabove recited were taken by the city for the purpose of enforcing its alleged lien. The various questions as to the validity of the assessment or the lien, which may involve the merits of the controversy, have not been argued or presented to me. These must be determined when the case comes on for a trial and will be...