Dowling v. Charleston & W.C. Ry. Co.

• Decision Date: 07 February 1913
• Citation: 81 S.E. 313,105 S.C. 475
• Parties: DOWLING v. CHARLESTON & W. C. RY. CO.
• Court: South Carolina Supreme Court

81 S.E. 313

105 S.C. 475

DOWLING v. CHARLESTON & W. C. RY. CO.

Supreme Court of South Carolina

February 7, 1913

"To be officially reported."

Original petition by John C. Dowling for a writ of mandamus against the Charleston & Western Carolina Railway Company. On demurrer to the petition. Demurrer overruled.

Julius P. Youmans, of Brunson, for relator.

F. B Grier, of Greenwood, for respondent.

HYDRICK J.

The petitioner applied to this court for a writ of mandamus requiring the respondent to furnish him cars on a certain side track of respondent's at Brunson, S. C., on which his lumber mill is located for the shipment of his lumber the product of said mill, and also to furnish for the use of the public at said station suitable side tracks and platforms for the loading of lumber for shipment. The defendant demurred to the petition for insufficiency.

The demurrer admits the truth of all facts alleged, and also of all facts which can, by fair and reasonable intendment, be inferred from those alleged.

For a proper understanding of the principles involved and decided it will be necessary to state only the substance of those allegations whose sufficiency is questioned by the ground of demurrer considered, and it will not be necessary to state other allegations which are material only in other aspects of the case.

The petitioner alleges that in 1904 respondent built a side track on its right of way alongside an oil mill, which has been recently erected; that in a short time thereafter a saw mill was built near the same side track between the oil mill and respondent's main line; that a tar still was also built on the same side track; that from the time each of said industries was established, and as long as it was in operation, the respondent furnished cars on said side track for the shipping of their products, and that it still furnishes cars for the use of the oil mill; that on October 1st last respondent notified petitioner that it would no longer furnish cars on said side track for the shipment of his lumber, and has refused, since that time, to do so notwithstanding the business has been profitable to respondent, and notwithstanding respondent can place cars on said side track for petitioner's use at a saving of time, labor, and money to itself, rather than require him to load his lumber on cars placed on another side track, where it has no adequate and reasonable facilities for loading lumber, it, nevertheless, has refused and still refuses to place cars on said side track for petitioner's use, whereby he has been compelled, at great expense, to haul his lumber to another side track, where respondent has not reasonable or adequate facilities for loading; that petitioner bought the saw mill plant in 1910, and respondent furnished him cars for the shipment of his lumber without question or objection until the time above mentioned; that only a few months before the controversy arose respondent, through its roadmaster, promised petitioner to extend said side track two car lengths for its own and petitioner's convenience in shipping his lumber; that petitioner's plant is worth about $15,000, and, relying upon the previous course of dealing of respondent with the owners of said saw mill, and being led thereby to believe that respondent would continue to furnish him cars, petitioner recently, and within a few months of the time...