D. W. Alderman & Sons Co. Wilson*

• Decision Date: 10 May 1904
• Citation: 69 S.C. 156,48 S.E. 85
• Court: South Carolina Supreme Court
• Parties: D. W. ALDERMAN & SONS CO. WILSON*

48 S.E. 85

69 S.C. 156

D. W. ALDERMAN & SONS CO. WILSON^*

Supreme Court of South Carolina.

May 10, 1904.

TEMPORARY INJUNCTION—WHEN GRANTED— TRESPASS—PRACTICE.

1. Where it is shown by a complaint that an injunction is necessary to the preservation of a legal right, if it is established as alleged in the complaint, a temporary injunction should be granted.

2. Where a complaint alleges an exclusive right of way over a certain road, and that the defendant threatens to trespass thereon, and the trespass is of such a nature as to render an action at law inadequate, a temporary injunction is properly granted.

3. In determining whether a temporary injunction should be granted, the complaint, the return, and the affidavits should be considered.

¶ 3. Sec Injunction, vol. 27, Cent. Dig. §§ 316, 318.

Appeal from Common Pleas Circuit Court of Florence County; Purdy, Judge.

Action by D. W. Alderman & Sons Co. against Thomas Wilson. From order granting temporary injunction, defendant appeals. Affirmed.

Messrs. Willcox & Wlllcox, for appellant.

Wilson & Du Rant, for respondent.

JONES, J. This is an appeal from an order of temporary injunction pendente lite, granted herein by Judge Purdy August 18, 1903. restraining defendant from building or operating a railroad upon or across that part of the land described in the complaint, on which plaintiff has located its right of way, alleged in the complaint to be exclusive and prior to any right of defendant. In his order granting the injunction, Judge Purdy said: "Under the law as I conceive it to be, if complaint shows a prima facie case for equitable interference, it is the duty of the court to grant the temporary injunction. It will only be necessary to refer to the statute and to the latest decision on the subject: '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.' Code Civ. Proc. c. 3, subject 'Injunction, ' § 240. In Riley v. Charleston Union Station Company, 67 S. C. 84, 45 S. E. 153, filed July 10th, the Supreme Court, by Mr. Justice Gary, reversed the order of Judge Watts, refusing to grant a temporary injunction. In that case Mr. Justice Gary said: 'The only question that can be considered at this stage of the case is whether the plaintiffs have made a prima facie showing for equitable relief by way of injunction' —citing Alston v. Limehouse, 60 S. C. 568, 569, 39 S. E. 188. Has the plaintiff made a prima facie showing? It alleges that it and the defendant are separately engaged in manufacturing trees into lumber, each using iron railways for hauling the trees to their separate mills. Each has acquired trees in' the same territory, and the litigation shows that there is not only great rivalry between them, but no good feeling. The complaint shows that the plaintiff has acquired a right of way over the land of Maggie Jones, described in the complaint, and that the right of way over the same has been staked out, and that the line of railroad sought to be built and operated by the defendant will cross the line proposed to be built and operated by the plaintiff, causing serious and continuous friction and annoyance, of such character that damages at law will not compensate the injury. The defendant alleges in his answer, and by his return and affidavits, that the alleged right of way was procured by fraud, is a mere license anyway, and has been revoked by a subsequent conveyance to him by the same party of a right of way over the land, and, in addition to this, undertakes to show that, if the plaintiff follows the line indicated in its alleged grant, the line proposed by the defendant will not conflict with the proposed route of the plaintiff. All of these are issuable facts triable on the merits of the case, and under the authorities of our own court it is not proper for a circuit judge...