Columbia Water Power Co. v. Nunamaker

• Decision Date: 30 January 1906
• Parties: COLUMBIA WATER POWER CO. v. NUNAMAKER (four cases). SAME v. BEARDEN et al. SAME v. HUFFMAN. SAME v. YOUNGINER.
• Court: South Carolina Supreme Court

53 S.E. 996

73 S.C. 550

COLUMBIA WATER POWER CO. v. NUNAMAKER (four cases).

SAME v. BEARDEN et al.

SAME v. HUFFMAN.

SAME v. YOUNGINER.

Supreme Court of South Carolina

January 30, 1906

Appeal from Common Pleas Circuit Court of Lexington County; Gary Judge.

Actions by the Columbia Water Power Company against Arthur S Nunamaker, against E. F. Nunamaker, against Eliza M Nunamaker; against Lizzie Bearden and others, against Susan G. Huffman, against S. P. Younginer, and against Martha C Nunamaker. From an order requiring plaintiff to give in each case a temporary injunction bond, it appeals. Affirmed.

Abney & Thomson and Thomas & Thomas, for appellant. Shand & Shand, Efird & Dreher, and De Pass & De Pass, for respondent.

GARY, A. J.

These actions were instituted for the purpose of determining the right of the defendants to compensation under condemnation proceedings, for the alleged overflowing of their lands, by reason of raising the plaintiff's dam. The condemnation proceedings were commenced on the 25th of February, 1905. On the 12th of June, 1905, the plaintiff brought these actions, and on the same day, upon motion of its attorneys, a rule was issued requiring the defendants to show cause why they should not be enjoined from prosecuting the condemnation proccedings, and for an order in the meantime restraining them. The defendants made return to the rule to show cause, and on the 22d of June, 1905, his honor, the circuit judge, made an order that the restraining order theretofore granted should be continued until the final decree in said cases, provided the plaintiff entered into a written undertaking in the manner therein set forth. The plaintiff appealed from this order upon exceptions which will be set out in the report of the case. The sole question is whether there was error in requiring said undertaking.

When the right to institute condemnation proceedings is contested, the proper remedy is to bring an action in the Court of Common Pleas in order that the court may, in the exercise of its chancery powers, determine such right. Railway v. Ridlehuber, 38 S.C. 308, 17 S.E. 24; Cureton v. Railway, 59 S.C. 371, 37 S.E. 914; Glover v. Remley, 62 S.C. 52, 39 S.E. 780; Railroad v. Burton, 63 S.C. 348, 41 S.E. 451; Riley v. Union Station Co., 67 S.C. 84, 45 S.E. 149; Railway v. Reynolds, 69 S.C. 481, 48 S.E. 476. These cases show that such action must be regarded as independent, and not ancillary to the condemnation proceedings. If, upon the final hearing of the case, the court should decide that the defendants did not have a right to institute condemnation proceedings, it would then grant a permanent injunction. But the power of the court to render such judgment, is in no wise dependent upon the fact that a temporary injunction was or was not granted, as a right to a temporary injunction constitutes no part of the plaintiff's cause of action. When the circuit judge granted the order of injunction he did not have the power to dispense with the provision of section 243 of the Code, which requires a written undertaking on the part of the plaintiff. Smith v. Smith, 51 S.C. 379, 29 S.E. 227.

Appeal dismissed .

On Rehearing.

PER CURIAM.

This is a petition for rehearing on the grounds hereinafter mentioned.

1. It is submitted that the court overlooked the distinction made by the appellant in the first exception, between an order of suspension to which it was entitled as a matter of course and an order of injunction which, under section 243 of the Code of Civil Procedure of 1902, is only granted upon a written undertaking. The appellant contends that section 243 is inapplicable, as this is not an action for injunction, but simply to test a disputed right, and that upon the bringing of the action, the condemnation proceedings were ipso facto suspended without the affirmative order of the court. Section 239 of the Code of Civil Procedure of 1902, provides that "an order of injunction may be made: (1) where it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff; or (2) when, during the litigation, it shall appear that the defendant is doing, or threatens, or is about to do, or procuring or suffering some act to be done, in violation of the plaintiff's...