Johnson v. Rd. And Highway Comm'n For

• Decision Date: 21 April 1914
• Docket Number: (No. 8806.)
• Citation: 81 S.E. 502,97 S.C. 205
• Parties: JOHNSON. v. ROAD AND HIGHWAY COMMISSION FOR MARION COUNTY.
• Court: South Carolina Supreme Court

(97 S.C. 205)

81 S.E. 502

JOHNSON.

v. ROAD AND HIGHWAY COMMISSION FORMARION COUNTY.

(No. 8806.)

Supreme Court of South Carolina.

April 21, 1914.

1. Eminent Domain (§ 167*)—Condemnation —Assessing Damages.

Under Laws 1910, p. 948, § 7, empowering the commission, provided for improving roads of Marion county, to condemn, "provided, that where lands are condemned, the damage shall be fixed as now provided by law, " the damages are to be fixed by the county board as theretofore.

[Ed. Note.—For other cases, see Eminent Domain, Cent Dig. §§ 451-456; Dec. Dig. § 167.*]

2. Highways (§ 99*)—Improvement— Poweb

of Commission.

Whether the commission for improving roads in Marion county is proceeding to build a new road or relocate an old road is immaterial; Laws 1910, p. 948, §§ 5, 7, empowering it to do both.

[Ed. Note.—For other cases, see Highways, Cent. Dig. §§ 323-330; Dec. Dig. § 99.*]

3. Injunction (§ 123*)—Issues.

The action being merely to enjoin the commission of Marion county from opening a new road, the purpose or right of the commission to abandon part of an old road is not before the court.

[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 270; Dee. Dig. % 123.*]

4. Statutes (§ 123*)—Subject and Title.

The act (Acts 1910, p. 945), entitled "An act to authorize the county of Marion to issue bonds for permanent road and highway improvements, and to provide for the expenditure of the same, " providing for improvement of public highways in the county, has but a single purpose, sufficiently set forth in the title, within Const, art. 3, § 17.

[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 176-183; Dec. Dig. § 123.*]

Hydrick, J., dissenting.

Appeal from Common Pleas Circuit Court of Marion County; T. H. Spain, Judge.

Action by Loulie V. Johnson against the Road and Highway Commission for Marion County. From an order dissolving a temporary injunction, plaintiff appeals. Reversed, and injunction continued.

James W. Johnson, of Marion, for appellant.

W. F. Stackhouse and L. D. Lide, both of Marion, for respondent.

FRASER, J. In 1910 the iLegislature passed an act to provide for the improvement of public roads in Marion county. It provided for issuing bonds and a commission to carry out the work. In planning for the execution of their work, the commission determined to cut off an angle between two roads leading into the city of Marion, and thus shorten the distance between the city of Marion and the outlying sections of Wahee township. This cut-off ran through a field of the appellant. To this appellant objected and filed this action for injunction. The following is the complaint duly verified:

"The complaint of the above-named plaintiff respectfully shows to the court:

"I. That plaintiff is the owner of about 100 acres of valuable arable land, situate in Wahee township, in the county and state aforesaid, and pays taxes thereon; that said lands are free of stumps, in a high state of cultivation, and have a splendid crop of cotton and corn growing thereon. For a more particular description, see plat of same made by J. M. Johnson, hereto attached, marked 'Exhibit A, ' the land in question lying between the points marked in red ink on said A, B, C, and D.

"II. That on the 30th day of August, 1913, a notice, of which the following is a copy, was served on plaintiff: 'Notice of Condemnation. State of South Carolina, Marion County, In re Road and Highway Commission for Marion County, S. C, against Mrs. L. V. Johnson. Whereas, the Road and Highway Commission for Marion county met at the office of L. D. Lide, Esq., on the 18th day of August, 1913, at which meeting Commissioners Montgomery, Smith, Stackhouse, Baker and Johnson were present, and Commissioner Baker offered the following resolution; and whereas, it is the judgment of this commission that the connection between the roads leading from Wahee Neck to the Mars-bluff Ferry road be relocated and straightened, i. e., so that the alignment of the stretch of road from D. MIcIntyre's place be preserved, and projected until such alignment strikes the Marsbluff Ferry road near the west end of the Cat Fish causeway; suchrelocation being for the material interest of the traveling public; and whereas, for the purpose of relocating such road it is deemed necessary to acquire right of way over a portion of the lands of Mrs. L. V. Johnson; and It is also deemed necessary that the same be acquired by condemnation: Be it resolved, that the necessary legal steps be taken to condemn and establish such right of way, and that compensation and damages therefor be assessed; and the said right of way be surveyed and located by J. R. Pennell, resident engineer for the said highway commission, at the time of the assessment of the said compensation and damages. The motion to adopt the said resolution being seconded by Commissioner Montgomery, the same was unanimously adopted. You will therefore take notice that a right of way, as aforesaid, is required over your land for the purpose of relocating the road as aforesaid, and that compensation and damages therefor will be assessed on the premises on 10th day of September, 1913, at 10 o'clock a. m., and that said right of way will be surveyed and located by J. R. Pennell, resident engineer, at the time of the assessment of the said compensation and damages; and that the said commissioners will then and there view the said premises, and hear all testimony desired to be offered with reference thereto. J. M. Johnson, Chairman. L. D. Lide, Clerk. Dated at Marion, S. C, August 30th, 1913.'

"III. Plaintiff shows further to the court that the road which defendant proposes to lay out and open will be a new road entirely; that it starts at a point on said map marked with the letter B In red ink, and extends thence a straight line to a point designated by the letter F in red ink; the proposed location of the road being marked by a red line on said map.

"IV. Plaintiff shows further to the court that there is already a splendid road, which has just been put in first-class repair by defendant, at considerable cost to the county, from the point designated by the letter F, to the point designated by the letter B, on said map, a distance of 475 yards, and plaintiff is informed by the chairman of said commission that said commission proposes to thoroughly repair the road between the points designated as E and B, a distance of 425 yards, thus making a first-class road. That the distance between the points designated E and F, is 700 yards, and the lands through which it will go are not as suitable for road building as the place where the road Is now located.

"V. Plaintiff shows further to the court that defendant proposes to run a road diagonally through her field as shown on said map, thus cutting her lands up into short rows of irregular length, and almost ruining its value; that in addition it will greatly interfere with her ditching, and destroy her crops, and will entail heavy and continuous expense on the county, all for no purpose whatsoever except to shorten the road 200 yards.

"VI. Plaintiff shows further to the court that if defendant is permitted to carry into execution its purposes as outlined in said notice, she will suffer great and irreparable injury and damage; that she is advised that she has no adequate remedy at law, and hence she appeals to this court for protection.

"VII. Defendant's purpose is not to relocate a road or roads, but that its purpose is to lay out and construct a new road over her lands, and to condemn her lands for this purpose, and she is advised, and so alleges, that defendant has no power to do this, and is acting outside of the law in Its endeavor to do so.

"Wherefore plaintiff prays: (1) That defendant, its agents, officers, servants, and employed be enjoined from proceeding further in this matter; (2) for such other and further relief as she may be entitled to; (3) that she may have judgment for her...