Seabrook v. Carolina Power & Light Co.
Citation | 156 S.E. 1,159 S.C. 1 |
Decision Date | 12 November 1930 |
Docket Number | 13025. |
Parties | SEABROOK v. CAROLINA POWER & LIGHT CO. et al. |
Court | United States State Supreme Court of South Carolina |
Appeal from Common Pleas Circuit Court of Sumter County; John S Wilson, Judge.
Action by Marion W. Seabrook against the Carolina Power & Light Company and others. The lower court granted an injunction pendente lite, and defendant named appeals.
Affirmed.
Dargan & Paulling, of Darlington, and Lee & Moise, of Sumter, for appellant.
D. W Robinson, of Columbia, and H. D. Moise and McLeod & Shore all of Sumter, for respondent.
While agreeing with most of the conclusions contained in the opinion of Mr. Justice COTHRAN, I do not agree with him as to what I conceive to be one important matter; and, for that reason, I am of the opinion that the order of the circuit judge should be affirmed.
In his complaint, with regard to the intention and purpose of the defendant power company to condemn and take for its use a certain portion of the plaintiff's lands, he alleged "that the said threatened acts of the defendant will constitute wanton and illegal trespass upon and irreparable injury to and destruction of the property of the plaintiff." The plaintiff further set up in his complaint that the intention and purpose of the defendant, if carried out, would result in injuring and destroying "much of the most valuable, essential and necessary shade and ornamental trees; it will render the use and occupancy of said home and homestead dangerous and undesirable, and will necessarily spoil and destroy the same"; and that "the proposed location in and over the premises of the plaintiff is unnecessary; *** and by the exercise of reasonable care and prudence the said defendant can easily detour its proposed line."
The action is one for a permanent injunction. The only matter heard by the circuit judge was whether or not he should grant plaintiff an injunction pendente lite, until the case could be heard on its full merits. The plaintiff submitted affidavits of Mr. W. L. McCutchen, Dr. George W. Dick, and many other reputable citizens of Sumter, tending to support the allegations of the complaint which have been quoted. If these allegations are sustained at the proper time, and the plaintiff can convince the court that the defendant is acting wantonly, as he has alleged, the plaintiff might be, to say no further at this time, entitled to a permanent injunction. On the showing already made, according to the law of this state, the plaintiff was clearly entitled to the temporary injunction.
As it is conceded in the opinion of Mr. Justice COTHRAN, quoting his exact language, the only way possible, under our law, for the plaintiff, or any other citizen under similar circumstances, to protect himself against improper, unnecessary, unwarranted, or illegal condemnation proceedings on the part of a power company is "to contest the right to condemn by an independent action in the Court of Common Pleas, in equity." The cases cited by him, Columbia Water Co. v. Nunamaker, 73 S.C. 550, 53 S.E. 996, and others, fully sustain this rule of our law. The plaintiff has adopted that course, the only one open to him.
Regarding the "necessity," which the law requires of a public service corporation, before it may exercise the right of condemnation, this court, through Mr. Justice Stabler, recently laid down this reasonable and well-recognized rule:
Touching this same subject, this court, through Mr. Justice Hydrick, had the following to say:
In the Riley Case, cited in the Groce Case, the court said:
"The only question that can be considered at this stage of the case is whether the plaintiffs have made prima facie showing for the equitable relief by way of injunction. Alston v. Limehouse, 60 S.C. 568, 569, 39 S.E. 188. It is well settled in this state by numerous authorities that the statutes relating to condemnation proceedings thereunder do not provide the procedure for determining the right to institute such proceedings. The remedy under the statute for determining this right is therefore inadequate. When rights are to be adjudicated, and the statutes do not provide adequate remedy in the condemnation proceedings, the proper practice is for the party asserting such rights to bring an action in the court of common pleas; and the court, in the exercise of its chancery jurisdiction, will, upon a prima facie showing, enjoin the condemnation proceedings until the right to institute the proceedings under the statute can be judicially determined. In this case the plaintiffs made a prima facie showing entitling them to the injunction, and his honor the circuit judge was in error in not so holding. These views are sustained by the following authorities: Ry. Co. v. Ridlehuber, 38 S.C. 308, 17 S.E. 24; Cureton v. R. R. Co., 59 S.C. 371, 37 S.E. 914; R. R. Co. v. Tel.
Co., 63 S.C. 201, 41 S.E. 307; R. R. Co. v. Burton, 63 S.C. 348, 41 S.E. 451.
I am inclined to agree with the view of Mr. Justice Cothran expressed in another case, somewhat similar to the one at bar, when he used this language: " Atlantic C. L. Railroad Co. v. Baker, 134 S.C. 106, 131 S.E. 678, 681. See, also, the recent case of Cooke v. State Highway Department, 155 S.C. 63, 155 S.E. 228, where we refused to interfere with the order of the circuit judge granting a temporary injunction, for the reason that the plaintiff made a prima facie showing which entitled her to such injunction, pending a determination of the cause on its merits.
The cases of Hutchison v. York County, 86 S.C. 396, 68 S.E. 577, 578, and Emerson v. Kaminski, 143 S.C. 36, 141 S.E. 108, cited by Mr. Justice Cothran in support of his view on the question of "necessity," do not conflict with the view I hold. If they have any direct, or indirect, bearing on the question I am discussing, it is my opinion that they sustain the position I take. I refer to them briefly.
In the Hutchison Case, plaintiff sought to restrain a board of county commissioners from proceeding to condemn...
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