Seabd. Air Line Ry v. Atl. Coast Line R. Co

• Decision Date: 25 April 1911
• Court: South Carolina Supreme Court
• Parties: SEABOARD AIR LINE RY. v. ATLANTIC COAST LINE R. CO.

71 S.E. 39

88 S.C. 477

SEABOARD AIR LINE RY.

v.ATLANTIC COAST LINE R. CO.

Supreme Court of South Carolina.

April 25, 1911.

1. Appeal and Error (§ 854^*) — Review — Matters of Evidence Considered—Pleadings.

Where an application for an injunction is refused without stating any reason, the only question arising on appeal is whether, upon the complaint and its supporting affidavits, and upon the return and its supporting affidavits, there is a prima facie showing warranting an injunction.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3403, 3404, 3408-3430; Dec. Dig. § 854.*]

2. Injunction (§ 136*)—Right to Temporary Injunction.

A temporary injunction should be granted when it appears prima facie that such injunction is necessary to preserve the right asserted by the plaintiff.

[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 305, 306; Dec. Dig. § 136.*]

3. Eminent Domain (§ 198*)—Compensation —Statutory Provisions.

The condemnation statute is limited to the ascertainment of the amount of damages, and affords no method for determining the right to condemn.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 525, 528, 529; Dec. Dig. § 198.*]

4. Eminent Domain (§ 169*)—Proceedings to Take Property and Assess Damages— Conditions Precedent.

A railroad company cannot lawfully condemn a crossing of the right of way of another, unless it appears that such crossing would not be an unreasonable hindrance of the right of way already dedicated within Civ. Code 1902. § 2195, and unless the consent of the Railroad Commission to such crossing is obtained, as provided by section 2179.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 461; Dec. Dig. § 169.*]

5. Eminent Domain (§ 274*)—Remedies of Owner—Injunction—Stay Until Determination of Right to Condemn.

An injunction to stay condemnation proceedings to assess damages for a proposed crossing by one railroad of the right of way of another should be granted where it is not shown that there has been a performance of a condition precedent to the plaintiff's right, imposed by the Railroad Commission.

[Ed. Note.—For other cases, see Eminent Domain. Cent. Dig. §§ 753, 765, 768; Dec. Dig. § 274.*]

Appeal from Common Pleas Circuit Court of Chesterfield County; J. W. De Vore, Judge.

Appeal by the Seaboard Air Line Railway, from an order refusing an injunction pendente lite, to restrain the Atlantic Coast Line Railroad Company from maintaining condemnation proceedings. Order reversed, and condemnation proceedings enjoined pendente lite.

See, also, 71 S. E. 34, 40.

Stevenson & Matheson and Lyles & Lyles, for appellant.

Geo. B. Elliott, Willcox & Willcox, and W. P. Pollock, for respondent.

JONES, C. J. This is an appeal from an order of Judge De Vore passed on November 11, 1910, refusing injunction pendente lite to restrain condemnation proceedings to assess damages for the proposed crossing of plaintiff's right of way by a spur track of the defendant at Front street, in the town of Cheraw, S. C.

The order refused injunction without stating any reason; hence the only question properly arising is whether, upon the complaint and supporting affidavits, and upon the return and the supporting affidavits, there was a prima facie showing warranting injunction.

The rule is well established that temporary injunction should be granted when it appears prima facie that such injunction is necessary to preserve the right asserted by the plaintiff. Marion County Lumber Co. v. Tilghman Lumber Co., 75 S. C. 220, 55 S. E. 337.

That the condemnation statute affords no machinery for determining the right to condemn and is limited to the ascertainment of the amount of damages has been frequently declared. Georgia, etc., Ry. Co. v. Ridlehuber, 38 S. C. 308, 17 S. E. 24; Water Co. v. Nunamaker, 73 S. C. 550, 53 S. E. 996.

It would be an anomaly to have a judgment fixing the amount of compensation to be awarded in condemnation proceedings in advance of a determination whether the right to condemn exists, upon which depends the duty to pay the compensative damages. Such a judgment presupposes the ascertainment of the right upon which it is based. Hence it is essential to stay proceedings, so that there be no such judgment until the right thereto has been established.

Before a railroad company can lawfully condemn a crossing of the right of way of another, it must appear...