Hutchison v. York County

• Citation: 68 S.E. 577,86 S.C. 396
• Parties: HUTCHISON v. YORK COUNTY et al.
• Decision Date: 20 July 1910
• Court: South Carolina Supreme Court

68 S.E. 577

86 S.C. 396

HUTCHISON v. YORK COUNTY et al.

Supreme Court of South Carolina

July 20, 1910

Appeal from Common Pleas Circuit Court of York County; Ernest Moore Special Judge.

Kate J Hutchison brought action to restrain York County, Clem F Gordon as Supervisor, and others, from vacating a public highway through her plantation and from taking land for the purpose of establishing a new and different highway. Injunction refused, and plaintiff appeals. Affirmed.

Wm. J Cherry, for appellant. W. B. Wilson, Jr., for respondent.

JONES C.J.

The judgment of the circuit court herewith reported, together with the exceptions thereto, should be affirmed for the reasons therein stated.

While the judge hearing the application does not try the case upon its merits, it is incumbent upon plaintiff to make out a prima facie case that temporary injunction is reasonably essential to protect his rights. Temporary injunction does not follow automatically when the complaint states a cause of action. Northrop v. Simpson, 69 S.C. 554, 48 S.E. 613; Marion Company v. Tilghman Co., 75 S.C. 221, 55 S.E. 337; Crawford v. Lumber Corporation, 77 S.C. 83, 57 S.E. 670. If plaintiff's prima facie case depends upon allegations that a statute is unconstitutional, the judge hearing the application must consider that matter in determining the reasonable necessity for temporary injunction, and if he holds the statute valid, the necessity is not made to appear. The question is one of law, in which the presumption is in favor of the validity of the statute. In order to reverse the refusal of temporary injunction in such a case, this court must review the constitutional question.

In Riley v. Union Station Co., 67 S.C. 84, 45 S.E. 149, the judge hearing the application for injunction did not consider the constitutional question; hence there was no basis for a review of that matter by this court, but in that case the circuit judge held that there was no prima facie showing that the lands proposed to be condemned were not necessary for the construction of the proposed Union Station, and this court reversed the order of refusal upon the grounds: 1. Because the statute did not furnish an adequate remedy when the right to condemn was in issue. 2. Because the allegations of the fact made a prima facie case showing that injunction was necessary to preserve plaintiff's rights.

In that case there were allegations showing that the taking of the proposed land would prevent plaintiff from further use and occupation of her home, and would destroy an established industry and business thereon, to her irreparable injury, and that the taking of the property was not necessary, but oppressive. After trial upon the merits, Riley v. Union Station was again appealed to this court (71 S.C. 482, 51 S.E. 498, 110 Am. St. Rep. 579), and this court held "that the grantee of the power to condemn must not abuse the discretion confided by the Legislature and spoliate private property by taking for pretended public use more than a reasonable necessity requires. We find no abuse of discretion or bad faith in defendant's proposal to condemn plaintiff's property, and the general rule is that if there be no bad faith or abuse of discretion on the part of the grantee in the matter of location, his discretion will not be interfered with."

From this it appears that in order to prevent a mere quasi public corporation, organized for private gain, authorized by law to condemn land, from proceeding to...