Ga. v. Ridle-huber

• Citation: 38 S.C. 308,17 S.E. 24
• Court: United States State Supreme Court of South Carolina
• Decision Date: 21 February 1893
• Parties: GEORGIA, C. & N. RY. CO. v. RIDLE-HUBER et al.

17 S.E. 24

38 S.C. 308

GEORGIA, C. & N. RY. CO.

v.RIDLE-HUBER et al.

Supreme Court of South Carolina.

Feb. 21, 1893.

Eminent Domain—Proceedings to Obtain Compensation—Denial op Right — Separate Action—Review on Appeal.

1. Gen. St. § 1550, declares that, where a railway company enters on land without consent of the owner, there shall be "an assessment of compensation, " as provided in the following sections. Section 1551 directs the impaneling of a jury, on petition of the company, to ascertain "the amount" to be paid as compensation, and for notice to the owner. Section 1552 provides that the jury shall in-spect the premises, and ascertain "the amount of compensation" to be made, and render their verdict therefor. Held, that these sections do not provide for a trial of the right to compensation, but refer only to the amount; and hence, where the right is denied, a separate action may be maintained to restrain the landowner from proceeding under said sections.

2. Plaintiff appealed from a judgment dismissing his bill on certain grounds. Defendants asked that the judgment be sustained on other grounds; none of them stating additional reasons for the ruling below, but proceeding on the supposition that, even if the ruling was erroneous, the complaint should have been dismissed on grounds going to the merits, which were not considered by the trial court. Held, that there was nothing presented by defendants for review.

Appeal from common pleas circuit court of Abbeville county; T. B. Fraser, Judge.

Action for injunction brought by the Georgia, Carolina & Northern Railway Company against G. C. Ridlehuber, trustee, F. C. Ridlehuber, Sally Hodges, and Dudley Byrd. Judgment dismissing the complaint. Plaintiff appeals. Reversed.

L. W. Perrin, for appellant.

J. Fuller Lyon, and De Bruhl & Bradley, for respondents.

McIVER, C. J. On the 23d of September, 1890, the defendants herein filed their petition in the court of common pleas against the plaintiff company for compensation for the taking by said plaintiff of a right of way, and the construction of its road, over and across a tract of land therein described, in which the prayer was that said petition be filed in the office of the clerk of said court, and that said clerk be ordered to impanel a jury, according to law, to ascertain the compensation to be paid for the use of the land required for the right of way, with such special damages as may be sustained by reason of the construction of said railway through said land. His honor, Judge Norton, granted an order in accordance with the prayer of the petition. Up to this point the plaintiff had no notice of any of these proceedings; but after said order was granted the clerk gave notice to the plaintiff herein of the filing of said petition and order, and that on a day named he would proceed to draw the jury as directed by said order. Thereupon the plaintiff instituted this action for the purpose of enjoining further proceedings under said petition and order, upon the ground that the defendants herein were not entitled to any compensation, for the reason that plaintiff had previously obtained from the defendant G. C. Ridlehuber, as trustee and holder of the legal title, a valid release of the right of way. The defendants answered, denying the validity of said release of the right of way upon two grounds, among others: (1) For want of power in the trustee to make such release; and (2) because the same was obtained by misrepresentation. The case was referred to the master to hear and determine all the issues of fact as well as law. At the reference the defendants demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The master overruled the demurrer, and found that the deed releasing the right of way was not obtained by any intentional misrepresentations, but that the trustee had no power to make such a deed, and therefore recommended that the complaint should be dismissed. To this report the defendants excepted upon the ground, among others, that the master erred in overriding the demurrer. The case was heard by his honor, Judge Fraser, upon the report and the several exceptions thereto, who, without considering or deciding any of the other issues in the case, rendered judgment dismissing the complaint upon the ground that inasmuch as, in his opinion, all the issues presented could and should be determined under the special proceedings instituted by the defendants to obtain compensation, there was no necessity for any separate action to determine such issues. From this judgment plaintiff appeals upon the several grounds set out In the record, but which need not be repeated here, as they substantially present the single question whether the circuit judge erred in holding that the several issues tendered by the pleadings in this case could and should be determined under the special proceeding instituted by the defendants for the purpose of obtaining compensation, and hence constituted no ground for a separate action; for, if he was right in this ruling, then, clearly, be was right in declining to consider the other issues, and, if he was wrong, it is then equally clear that he should have proceeded to determine the other issues. The defendants, however, having given notice, according to the proper practice, that they would ask this court to sustain the judgment below upon other grounds stated in the record, it will be necessary to dispose of them. None of these grounds state additional reasons for the ruling below; but, on the contrary, they proceed upon the supposition that, even if the ruling below was erroneous, yet the complaint should have been dismissed upon grounds going to the merits, which were not considered by the circuit court, and therefore present nothing for us to review under this appeal.

Recurring, then, to what we consider the only question properly before us, it will be necessary to inquire whether there are any, and, if so, what, statutory provisions applicable to this question. These provisions are claimed to be found in sections 1550-1561 of the General Statutes, to which an additional section has been added by the act of 1885, (19 St. p. 168,) the provisions of which, however, are not pertinent to the present inquiry. It will be observed that these sections "do not purport to confer the right to take or condemn the property of the citizen for theconstruction of a railway or other structure of a like kind under the right of eminent domain; for this is conferred by the charter of the company claiming such right, and these sections only purport to prescribe the manner in which this is to be done, and the mode by which the amount of compensation is to be ascertained." Ross v. Railway Co., 33 S. C. at page 483, 12 S. E. Rep. 103. A brief review of the provisions of these sections will not only show this, but will show, further, that while provision is made for the mode by which a railway company may acquire the right to enter upon the lands of another without his consent, for the purpose of constructing its road, there is no provision made by which the right to compensation can be tested where the company has been permitted to enter upon the lands of the owner thereof, and to construct its road, but the only provision is as to the mode of ascertaining the amount of compensation to which the landowner may be entitled; for the statute seems to proceed upon the assumption, either that the right to compensation has been conceded, or has been already determined in some other way. Section 1550 provides that a railway...