Gilmer v. Hunnicutt

• Citation: 35 S.E. 521,57 S.C. 166
• Parties: GILMER v. HUNNICUTT, County Supervisor, et al.
• Decision Date: 03 April 1900
• Court: South Carolina Supreme Court

35 S.E. 521

57 S.C. 166

GILMER v. HUNNICUTT, County Supervisor, et al.

Supreme Court of South Carolina

April 3, 1900

Original application for an injunction and mandamus by Robert A Gilmer against James M. Hunnicutt, county supervisor, and others. Denied.

J. R Earle, for petitioner.

Stribling & Herndon, for defendants.

JONES J.

This is an application in the original jurisdiction of this court. The petitioner seeks an injunction to restrain the defendants, who are admitted to be the county board of commissioners for Oconee county, from constructing and maintaining a new road across the lands of the petitioner in said county. He also seeks mandamus to compel the said commissioners to repair that portion of the original highway which was abandoned after the laying out of the new road.

The respondents first challenge the jurisdiction of this court to entertain this proceeding. The argument is that the authority to allow injunction is an incident of chancery jurisdiction, and that by article 5, § 4, of the constitution, this court has appellate jurisdiction only, in cases of chancery. This section, however, in express terms confers upon the supreme court power to issue writs of injunction, mandamus, etc. Salinas v. Aultman, 49 S.C. 378, 27 S.E. 407.

The allegations of the petition are as follows: "(1) That the plaintiff is the owner of a certain tract of land situate in said county and state, containing ___ acres, lying on both sides of Chauga river, and has located on said land a very valuable custom gristmill, a dwelling, and other valuable improvements; and at and before the times hereinafter mentioned the public highway was located and maintained within fifty yards of plaintiff's dwelling and mill, and a crossing maintained over said stream near said mill. (2) That the county board of commissioners in and for said county on the three several days herein mentioned passed the three several resolutions in words and figures as follows, to wit: On April 4, 1893: 'Resolved, that the clerk of this board employ a surveyor to survey a new road at Gilmer's, and to supervise the same, and that he make a contract for same.' On May 2, 1893: 'Whereas, in our judgment, steep places and some rough places can be avoided by a change in the public road near Gilmer's mill, it is ordered that said road be changed so as to leave the public road near Hopewell church and go to the right, and cross the old road and go to the left of the old road in about 300 yards; then along the old road about 150 yards; then to the right of the old road near a mile, and cross Chauga creek near about a half mile above the present bridge; thence to Toxaway road near 300 yards; thence said road to the Jarrett's Bridge road; then across that road to the Ft. Madison road,--a profile of which shall be filed in this office.' On June 6, 1893: 'Resolved, that, in our opinion, steep places and rough places can be avoided by a change in the public road known as the "Jarrett's Bridge Road," near R. A. Gilmer's, and whereas, R. A. Gilmer will not give the right of way over his lands: Therefore it is ordered that a right of way over the lands of R. A. Gilmer is condemned by this board, and that R. E. Mason is hereby appointed as an arbitrator on behalf of this board to assess the damage of the said R. A. Gilmer by said road being built over his land.' That the records do not show there was ever any other further action taken in reference to this road. (3) That the clerk of said board of county commissioners, and a surveyor by him employed, soon after the passage of the resolution of April 4, 1893, and the two subsequent, did go upon, lay out, and construct and build a roadway upon and across plaintiff's lands, against his objections and solemn protest. (4) That the said board of county commissioners and clerk, their agents and servants, upon the adoption of the resolutions aforesaid went onto, across, and upon plaintiff's lands for the purpose of laying out, opening, constructing, and building upon and across plaintiff's lands a public roadway, and did destroy and appropriate to their purposes timber and other building material for the building of the said road at, upon, and across plaintiff's lands a distance of 1,995 yards, against plaintiff's objections and protest. (5) That persons on the part of Oconee county and plaintiff attempted to be chosen to act as referred to in resolution of June 6, 1893, failed and refused to act, and plaintiff repeatedly urged upon the county board of commissioners the adjustment of his claim, which said board failed and refused to consider until on ___, 1898, the said board selected P. P. Sullivan, and plaintiff promptly selected J. M. McClanahan to act for him. These two selected E. C. Burchfield, and the three rendered an award for plaintiff for six dollars, which was set aside, for mistake in not properly assessing plaintiff's damages, in the court of common pleas, in an action brought by this plaintiff for that purpose; and plaintiff has never been paid or tendered any compensation whatever for the damages he sustained, though he has constantly and continuously urged a settlement upon the proper authorities. (6) That at the time the county commissioners, their clerk, agents, and servants, committed the trespasses hereinbefore mentioned, this plaintiff tendered them a right of way over his lands, and has ever since made, and does now make, such tender, which would not have changed the general course of the road, and could have been opened and built at a much less cost than the route upon which they attempted to build and relocate the road, and upon a less grade, thus maintaining the road upon practically the said route and lands which it had been for more than fifty years, while the new route upon which they have attempted to relocate the road is near a half mile from plaintiff's residence and milling machinery, and discontinues the crossing over Chauga river at this point, and increases the distance of the custom of plaintiff's mill on the east side of Chauga river, which was considerable, more than one mile each way, and the distance of the new route from the divergent point to its intersection with the road is one mile further than the road as it stood on this graded route proposed by plaintiff, and that by reason of the attempted change the public is greatly inconvenienced and damaged in traveling from the neighborhood and to plaintiff's custom mill; and plaintiff, in particular, is greatly inconvenienced and damaged by said...