Marion County Lumber Co. v. Tilghman Lumber Co.
| Decision Date | 19 September 1906 |
| Citation | 55 S.E. 337,75 S.C. 220 |
| Parties | MARION COUNTY LUMBER CO. v. TILGHMAN LUMBER CO. |
| Court | South Carolina Supreme Court |
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.
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 Marion 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 Marion county, known as the "Phil Dew Land," with "exclusive rights of way over said land and rights of ingress and egress for men, teams, vehicles, and engines at any and all times, and the right of way and right to build, construct, and operate a railroad across the land, etc." Subsequent to this the defendant company took deed from the owners conveying "an exclusive right of way not to exceed eighteen feet wide upon and across" the said tract of land, with privilege "to build, construct, and operate a railroad, logging road, tramway, or cart or wagon way upon said right of way, also the right and privilege to use all such small timber, except pine trees fourteen inches and above at stump, and brush and earth from said right of way as may in the judgment of said Tilghman Lumber Company be required to build, construct, and maintain the aforesaid railroad, logging road," etc. The defendant by its answer admits that it entered upon the said tract in September, 1905, cut out a right of way over and across the same, constructed in part a logging railroad thereon, and has distributed ties along such right of way for the purpose and with the intention of operating a steam logging railroad thereon.
Assuming that plaintiff establishes its alleged senior easement, then it is obvious that it is the owner of the dominant estate in the land described, with which neither the owners of the said land nor their subsequent grantees can materially interfere. It is true the owners retained the soil and certain timber, but by...
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