Marion County Lumber Co v. Tilghman Lumber Co

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: JONES
• Citation: 75 S.C. 220,55 S.E. 337
• Parties: MARION COUNTY LUMBER CO. v. TILGHMAN LUMBER CO.
• Decision Date: 19 September 1906

55 S.E. 337
75 S.C. 220

MARION COUNTY LUMBER CO.
v.
TILGHMAN LUMBER CO.

Supreme Court of South Carolina.

Sept. 19, 1906.

[55 S.E. 337]

Injunction—Location of Logging Road.

Plaintiff sued to restrain defendant from locating a right of way over land on which plaintiff had a senior right to locate a right of way for the purpose of operating a'logging railroad. Held, that plaintiff was not entitled to such injunction until it had located its way, but was entitled to enjoin the defendant from using a certain class of locomotives on such road in order to preserve plaintiff's timber from danger of fire.

Appeal from Common Pleas Circuit Court of Marion County; Gary, Judge.

Action by the Marion County Lumber Company against the Tilghman Lumber Company. From an order dissolving a temporary injunction, plaintiff appeals. Reversed.

M. C. Woods, for appellant.

Montgomery & Lide and Willcox & Willcox, for respondent.

JONES, J. The Marion County Lumber Company, a corporation under the laws of this state, brought this action to enjoin the Tilghman Lumber Company, a corporation under the laws of Virginia, from operating a logging railroad across certain lands in Marlon county. A temporary injunction was granted by Judge Ernest Gary, October 4, 1905, but the same was dissolved by his order of October 18, 1905, "without prejudice to plaintiff to apply for an injunction pendente lite, if at any time it is hindered, impeded, or inconvenienced in the exercise of its alleged exclusive right of way heretofore acquired by the defendant, its agents or servants, " from which order plaintiff appeals.

Ordinarily, interlocutory injunctions are not a matter of right, but of grace, resting in the sound discretion of the judge. Pelzer, Rodgers & Co. v. Hughes, 27 S. C. 415, 3 S. E. 781. But, when the sole purpose of an action is for an injunction, and a temporary injunction is essential to the assertion and preservation of a legal right, if established, as alleged in the complaint, it would be error of law to refuse or set aside a temporary injunction. Alderman v. Wilson, 69 S. C. 159, 48 S. E. 85, and cases cited therein. This, however, does not mean that a right to a temporary injunction pendente lite follows automatically if the complaint states a cause of action for injunction. The court should consider the showing made in opposition thereto and must determine in view of all the circumstances, subject to review by this court, whether the injunction is reasonably essential to protect the legal right of plaintiff pending the litigation, as was done in Northrop v. Simpson, 69 S. C. 554, 48 S. E. 613. We proceed to consider the appeal In the light of these rules.

The plaintiff having succeeded to the rights of the Cape Fear Lumber Company, bases its claim under a deed from owners, dated May 30, 1898, conveying to the Cape Fear Lumber Company "all of the short straw pine timber, all the cypress timber, and all the poplar timber, except timber measuring 12 inches in diameter and less at the stump end, " on the described tract of 950 acres in...