eminent domain—right to compensation —denial—injunction—appealable order.
1. Where the right to compensation is denied by a railroad company to a claimant for damages for right of way, claimant's statutory condemnation proceedings will be enjoined at the suit of the railroad until the right of the claimant to condemnation can be determined.
2. In a suit to restrain claimant for damages in condemnation proceedings from bringing statutory proceedings to recover the same
until his right can be determined, the refusal to grant the injunction is appealable, as it is essential to the assertion of the legal right claimed by plaintiff.
Appeal from common pleas circuit court of Richland county; Gage, Judge.
Thirty actions by the South Bound Railroad Company against the following defendants, respectively: (1) Eliza Burton et al., (2) Dora Casson et al., (3) Alice C. Casson, (4) Charles Logan, (5) Charles H. Manson, (6) J. H. Van Metre, (7) R. C. Myers et al., (8) Mrs. E. L. Ehrlich, (9) Jno. R. Nowell, (10) the Capital City Building & Loan Association, (11) Martha Holmes, (12) Robert Nelson, (13) Aaron Grear, (14) Jno. T. Sloan and Jno. T. Seibels, (15) Mary Jones Johnson, (16) Jacob J. Durham, (17) J. Quitman Marshall, (10) Mary J. Clark, (19) H. A. Harth, (20) Saml. L. Sweeney, (21) Mary Smith, (22) Humphrey Jones, (23) Mary E. Higbee, (24) Jno. N. Finley, (25) Emma L Pierce, (26) Maria L. Taylor, (27) Carrie Paul, (28) Jno. W. Wood, (29) Katie M. Jones, (30) Margaret Day, —on complaints of which the following in the action against Martha Holmes is substantially a copy:
"The plaintiff, complaining of the above-named defendant, alleges:
"(1) That the plaintiff is, and was at the times hereinafter named, a corporation duly created by and organized under the laws of the state of South Carolina.
"(2) That by an act of the legislature of the state of South Carolina approved the 9th day of February, 1882, found in 17 St. at Large, p. 949, plaintiff corporation was authorized to build a railroad from a point within or near the city of Columbia, in the state of South Carolina, to the city of Savannah, in the state of Georgia, and was, by an act of the legislature approved the 24th day of December, 1890, found in 20 St. at Large, p. 763, authorized to build a line of railroad from a point within or near the city of Columbia to the North Carolina line, in the direction of Monroe, In the state of North Carolina.
"(3) That by an act of the general assembly of the state of South Carolina, entitled 'An act to appoint commissioners to purchase land for the purpose of building a town and for removing the seat of government thereto, ' approved the 22d day of March, 1786, found in 4 St. at Large, p. 751, it was enacted: 'That the commissioners hereinafter directed to be appointed, shall be, and they are hereby, authorized and required to lay off a tract of land two miles square, near Friday's Ferry, on the Congaree river, including the plain of the hill where Thomas and James Taylor, Esquires, reside, Into lots of one-half acre each; and the streets shall be of such dimensions, not less than sixty feet wide, as they shall think convenient and necessary, with two principal streets running through the center of the town at right angles, of one hundred and fifty feet wide; which land shall be, and the same is hereby declared to be.vested in the said commissioners, and their lawful successors, for the use of this state.'
"(4) That under the provisions of said act the said body of land was purchased from the owners thereof by the commmissioners appointed thereunder, and it became vested in the state of South Carolina in fee simple; and it was enacted that the territory so laid off into streets and lots should be called and known by the name of 'Columbia'; and power was conferred upon the commissioners therein named, and, by subsequent acts, upon the successors of said commissioners, to sell certain of the lots so laid off, as provided in said act
"(5) That the state of South Carolina still retains the interest in fee simple in the streets of said town so laid off as aforesaid.
"(6) That by subsequent acts of the general assembly of the state of South Carolina the mayor and aldermen of the town of Columbia, subsequently of the city of Columbia, were vested with authority, from time to time, under their common seal, to make all such ordinances, rules, and regulations relative to the streets and markets of said town as they might think proper and necessary.
"(7) That amongst other streets so laid off by the commissioners aforesaid was Lincoln street which was laid off 100 feet wide, running north and south from Elmwood avenue, the northern boundary of the city of Columbia, to Lower street, the southern boundary thereof, which crossed, at a point near Taylor street In said city, a body of land which subsequently became known as 'Sidney Park, ' belonging to the city of Columbia, and, up to a recent date, used by it for the purposes of the waterworks of the city.
"(8) That this plaintiff corporation, after building the line of its railroad from the city of Savannah, in the state of Georgia, to Cayce, a point in the county of Lexington, in the state of South Carolina, on the west side of the Congaree river, and nearly opposite to the city of Columbia, being desirous of extending its line from said point to and through the city of Columbia and on towards a point on the North Carolina line in the direction of Monroe, in said state, and being authorized by its act of incorporation and acts amendatory thereof so to do, made application to the mayor and aldermen of the city of Columbia for permission to build the line of its road through and along said Lincoln street from the southern boundary of the city to Sidney Park, and to the point where Blanding street would have intersected with said Lincoln street if projected through Sidney Park; whereupon the said mayor and aldermen of the city of Columbia, in council assembled, did, by an ordinance duly ratified the 26th day of September, 1899, grant a right of way to this plaintiff 'along the line of Lincoln street, from the southern boundary of the city to Sidney Park to the point where Blanding street would intersect with Lincoln street if projected through Sidney Park
thence west along the line of Blanding street to a point at or near its intersection with Wayne street; thence north along or near the line of Wayne street to the northern limits of the city of Columbia'; and was authorized to lay down and construct its line of railway along said right of way, and also with the privilege of crossing Elmwood avenue and other streets along said line at street grade or twenty feet below grade, upon certain terms and conditions.
"(9) That by section 2 of said ordinance it was further provided: 'Whenever the track of said company shall cross or pass along a street of said city in a cut, the width of such cut shall not be more than twenty-five feet across the top, and maintained by the said company at such width, and all cuts where not directed to be bridged shall be fenced on both sides along the entire length, with a substantial fence not less than four and one-half feet high, and the outer faces of said fence not to be more than twenty-six feet apart, subject to the approval of the committee on streets.' And it was further provided in sections 3, 4, 5, 6, and 7 (section 3): 'Whenever the track of said railroad company crosses a street in a cut, said cut shall be covered by a substantial bridge, as aforesaid, the planking of which shall not be less than three inches thick, erected and maintained by said company at its own expense, the entire width of the street, inclusive of the pavements. A bridge twenty-five feet wide shall be provided and maintained by said railroad company across the cut opposite the county jail, and suitable bridges shall be erected and maintained by said company at such other points as may be decided by council or its committee. The sides of all bridges to be protected with a close railing four and one-half feet high.' Section 4: 'Whenever said track crosses a street in a cut, where existing drains, sewers, culverts or other water ways are disturbed, suitable water ways across said cuts must be provided, built and maintained at the expense of the company.' Section 5: 'City water pipes across said cut are to be supported by bridges and the pipes boxed up under the direction of the committee on water works at the expense of said company for building and maintenance. Whenever it becomes necessary in the judgment of council or its committee on waterworks to extend, remove or change the location of any wafer pipes by reason of the construction of said railroad track, said extension, removal or change of location shall be under supervision of the committee on water works and at the expense of said company.' Section 6: 'Where trestles are used by said company on Lincoln or other streets on their line, no bench shall be placed over any water gate or valve; and shall be so placed as to allow free access to said valve and gates by the employees of said city. And no benches in intersecting streets shall be nearer together than fortyfeet: provided, that when directed by city council, the railroad company shall construct iron bridges across the full width of the street. If trestling is allowed on Lincoln street where it is crossed by the waterway between Pendleton and College streets, roadways on both sides of said trestle shall be provided, erected and maintained at the expense of said company. No mudsills of a greater length than twenty-five feet shall be used under any trestle unless placed below the surface of the ground, nor shall the outside or foot of any buffer post extend further than twelve and one-half feet from the center line of said trestle.' Section 7: 'Whenever...
