Groce v. Greenville
| Decision Date | 28 March 1913 |
| Court | South Carolina Supreme Court |
| Parties | GROCE. v. GREENVILLE, S. & A. RY. CO. |
1. Railroads (§ 72*)—Right of Way—Extent of Way Acquired by Deed.
Where a right of way had been granted along a line to be located approximately along a certain survey, the railroad cannot change its line so as not reasonably to approximate the location referred to in the grant.
[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 168-178; Dec. Dig. § 72.*]
2. Eminent Domain (§ 56*)—Public Use-Change of Railroad Location.
If the proposed change from the original line is not reasonably necessary to the proper construction of the railroad, the right to take the land needed cannot be acquired by condemnation, since the power of eminent domain can be exercised only where it is reasonably necessary for some public purpose.
[Ed. Note.—For other cases, see Eminent Do-Cent. Dig. §§ 147-160; Dec. Dig. § 56.*]
3. Eminent Domain (§ 69*)—Compensation —Necessity—Payment of Money.
Where a railroad company changes the line of its road after acquiring a right of way by deed, it cannot compel the landowner to accept a conveyance of other land in lieu of that taken by the proposed change, since compensation for property taken for public use can be made only in money.
[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 171-179; Dec. Dig. § 69.*]
4. Eminent Domain (§ 274*)—Remedies of Owner — Injunction — Restraining Construction.
Where a railroad company, which has acquired a right of way by deed along a line as approximately located by a certain survey, changes its route, but still claims a right of way under the deed, and the landowner claims that the new line does not reasonably approximate the line described in the deed and that there is no reasonable necessity for the change, the owner is entitled to a temporary injunction until the hearing on those questions, since neither can be tried in condemnation proceedings.
[Ed. Note.—For other cases, see Eminent Domain. Cent. Dig. §§ 753, 765-768; Dec. Dig. § 274.*]
5. Trespass (§ 13*) — Acts Constituting Trespass—Wrongful Act after a Rightful Entry.
Where a railroad company enters upon the land under a grant of a right of way or with consent, actual or presumed, it is liable for any trespass committed outside the. right of way granted or for any invasion of the property rights of the owner not incident to the proper location and construction of its road.
[Ed. Note.—For other cases, see Trespass, Cent. Dig. § 11; Dec. Dig. § 13.*]
6. Injunction (§ 48*) — Trespass to Real Property—Continuing Trespass.
If the trespass is continuing and of such a nature that the legal remedy therefor is inadequate, the owner is entitled to an injunction.
[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 101; Dec. Dig. § 48.*]
7. Injunction (§ 148*)—Interlocutory Injunction—Bond.
Where a temporary injunction is granted to restrain the construction of a railroad pending a determination of the company's right to construct its road along a certain line over the plaintiff's land, the company is entitled to a bond sufficient to protect it from any loss occasioned by reason of the injunction in case its right should be finally upheld.
[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 323-334; Dec. Dig. § 148.*]
Action by one Groce against the Greenville, Spartanburg & Anderson Railway Company. From an order denying an interlocutory injunction, the plaintiff appeals. Order reversed.
Bomar & Osborne, of Spartanburg, for appellant.
Nicholls & Nicholls and Jno. Gary Evans, all of Spartanburg, for appellee.
HYDRICK, J. Plaintiff brought this action solely for the purpose of obtaining an injunction and appeals from an order refusing an injunction until the ease can be heard on the merits. So much of the complaint as is material to the consideration of the appeal is, in substance, as follows: That plaintiff is the owner of a tract of land which is bounded on the west by Middle Tyger river, her line extending to the center of the stream; that, in May, 1912, she granted defendant a right of way over said tract along a certain route which had been surveyed and was agreed upon; that defendant thereafter changed its plans and is proceeding, against her objection and protest, to construct its road over her land along a substantially different route, without legal right or her permission to do so, and is about to cut a new channel for said river for the purpose of diverting the stream from her said lands without her consent or permission; that neither such change in the route of the road or in the channel of the river is necessary for the performance of defendant's functions as a railway company, and that, unless defendant is enjoined, she will be deprived of valuableproperty rights, without due process of law, and will be irreparably injured; that defendant never notified her in writing, as required by the statute, that it required a right of way over her land along the route upon which it is now constructing its road, or that it required a change in the bed of the river for its purposes, and, as soon as she learned that defendant was proceeding to take her property without authority and without process of law, she objected and protested against the same, but that her objections and protests were unavailing, and she is without adequate remedy save by the injunctive process of the court; that defendant denies her ownership of said land and her right to compensation for the taking thereof. She prays that defendant be enjoined.
The plaintiff's grant describes the right of way as "running in a general southeasterly direction, and to be finally located approximately as shown by a survey made by Maj. Thos. B. Lee." It also gave defendant the right "to do any and all acts necessary or appropriate for any proper purpose connected with said road or line."
As originally located, the road passed to the east of a certain bend in Middle Tyger river on plaintiff's land. The bend is in the shape of a horseshoe. At the nearest point to the toe of the shoe, the road appears to be only about 10 or 15 feet from the eastern bank of the river. The new route which the company proposes to take begins its departure from the old between a third and a half of a mile south of the river, and it gradually diverges to the west, until it attains a distance of a little over 100 yards from the original location, and then the lines of the two locations converge until they meet about the same distance north of the point of greatest departure. The new location being a shorter curve than the old, it crosses the bend...
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