The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1868-11-21
THE GREAT RAILROAD CASE.
Opinion orJus,Ice willard.

The South Carolina Railroad Company vs. Ihe 20
lumbia and Augusta Railroad company-c91aameo IAN
Ders Supreme Court, Charleston. November. 1853
Conner, Corbin and Ii, grath, for moten; Mcitol
| and Memmi, ger, opposed.
Complainants have filed their bill OF com
D amt in the Court Of Common Pleas 1or hicn'
| land County, alleging that the defendants,
railroad CORPORATION, chartered under the laws
| of this State. have entered upon their right
of way and franchises, secured to them by
| charter. and under pretence OF constructing
| their railroad, are, without lsWiut autnoilGy
exercising acts Of ownership therein, wneIepy
great and irreparable damage is apprehended
by the eomplainauts to tneir pIoprlesary inter-
Defendants object to the issuing OF the writ
| on the ground thai under tie construction Of
the constitution and laws an injunction cannot
be issued BY Justice of the Supreme Court.
| Sec ion 6 Of the act to organize tho Su-
premc Court, passed September l8, 1865 grants
the authority in question IN express TERMS;
| but il is said that tue words "writs OF injunc-
| tlon' are qualified by the subsequent words
according to the principles aud courses of the
common law" and cannot mean the equity
| writs OF Injunction, but are Intended to refer
| to the writ of prohibition which has some OF the
characteristics of an injunction. 1t is evident,
| however, that the words last quoted are ln-
tented to qualify the words Immediately pre-,
| ceding them, sand other remedial wrlts, and
| not the previous members OF the sentence.
The writ of prohibition ID not known to the le-
| gal language OF South Carolina as writ OF
Injunction, and no principle OF construction wa
| rants their interchangeable use.
It is also contended that the grant OF autho :
| ity IN question is an inadm!ssable attempt, on
the ono hand, to enlarge the constitutional lr-
rlsd:ction of the Supreme Court, and on the
other to encroach upon the jurisdiction OF the
Court of Common Pleas, as fixed by article
of the constitution.
The powers granted by section G, acs Of Sep
tember IS, have no relation to those granted to
the Supreme Court by section article of the
constitution. The power in question Is not
exercised as any part of the Jurisdiction con-
ferred upon the Supreme Court, but is in aid
Of and referable wholly to, the jurisdiction IN
matters of equity, conferred upon the Court OF
Common Pleas by section 16, article 4. Inc
bill IN this case is before the Court OF Common
Pleas, which will hear and determine the case
under the 18th section. The INJUNCTION before
hearing is collateral and auxiliary remedy; 1t
merely laws hold upon the subject matter OF
the controversy, in order to subject it to de-
cree without entoring into or affecting the
decree itself Who shall authorize tho issue
OF the writ; whether it be the clerk, master,
or justice Of the Supreme Court, is matter
for Legislative discretion, untrammelled Dy any
constitutional restriction.
1t is also contended that This authority can
only be exercised in the county where the bill
'is fled. The argument OF counsel fails to show
the existence under the laws and practice OF
the Courts OF Equity Of this State, OF any such
strict localization of the powers OF chancel-
lor as that they contend for. But ii such mar
row limits were applicable to the authority OF o
circuit judge, who is to certain eXtent local
lied in the exercise Of his jurisdiction, the
argument would not so far enough to bind tho
authority of justice OF the Supreme Court.
The very object the Legislature had in view
was to bring to tho aid of the local judiciary
powers of more general character; and this
aim would be defeated if such power could
only be exercised IN the limited way contended
for. cannot 1ind that the authority 10 ques,
ton is denied, or that It is even doubtful, and
will, therefore, proceed to consider the ques-
ton affecting tho merits OF the case.
Tho South Carolina Railroad Company have
built and arc operating railroad under char
ter from this State. A portion OF their line is
included between Graniievil.e and Hamburg.
Their right of way Is to bo presumed TO ON
brace one hundred feet on each side of the cen-
tre of their tract. They own plat OF land at
GraniteYile, occupied by depots and Tor other
purposes incident to their road, and another
between Granlteville and Hamburg, called the
Dead FALL" reserved to supply earth for their
ambankments. The defendants have q charter
70 construct railroad from, Columbia 10 Ham
burg. They have located their line and it is in
process OF construction. Their location crosses
complainant's depot but to a point near their
depot; thence towards Graniteyille it encroacn-
es tor some distance on their right OF way. Ii
crosses their land at tho "Doad Fall" Defen-
dant's claim that, uuder their charter US II
stood under the amendatorJ act OF 1sJ3, they
have right 10 enter upon and take for the
uses OF their road q right Of way to the extent
of sxty.tive feet on each side OF their centre
line as located, and that this right extends to
the lands embraced in the right ofway held by
the complainants, ond to part OF tho other
lands held by them tor railroad purposes.
In April, 1867, complainants sought to arrest
the work OF defendants by an injunction bill.
alleging that the grant to defendants OF a
right to construct road from Colu to
Hamburg violated an exclusive privilege secur-
ed to them by charter to connect these places
by railroad communication. This suit result
ed in q decree Of chancellor Carroll IN April,
1867, affirming the right OF defendants to con-
struct their road, winch was affirmed by The
Court Of Errors. and is reported III 13 Rich
ardson's Equity. Pending this suit dcfeEdants
applied to the Court OF Common Pleas oil
Edgeheld District for the appointment Of COM
missluners to value the lands of the complain
ants, situated immediately adjacent to the
GraniteviIlc depot, in order to secure to defen-
dants right OF way over such lands Tor the
purpose of constructing their road. Judge
Aldrich rejected the application as informa!
and ns showing no necessity for, the taking OF
the lands demanded. (See Soath Clroilna
Railroad Company VS.. Blake, Q Rioharlson's
Equity, 22S) No appeal appears to have been
taken, nor has the location involved IN this ap-
plication been changed
The constitution ratified in April, 1868, pro-
vidss that no appropriation OF right OF way
over the lands OF eithor private person OF
CORPORATION should be made until just COM
pensation therefor had besn first made to tho
owner thereof ARTICLE /, section rs; article
II, section 81 On the 22d OF September, 186S,
law was passed to regulate the taking OF prl,
yate property for public uses, which provided
(Sectlon II that persons or corporations au-
thorized by charter to construct certain works
of internal improvements, including said
roads, should, before entering upon any lands
for the purpose of construction, give notice to
the owner that such lands are required for
said purposes; and upon his refusal to permit
the same to be used for such purposes. should
apply to the Court Of Common Pleas for jury
to assess the compensation to be made there
for. Under section 7, the right Of way vests
in the claimant upon the payment oil the COM
pensation thus ascartaiued. 1t also appears
that since the adoption Of the constitution,
the defendants have actually entered upon the
right of way OF the complainants, and particu-
larry upon the lot known as the dead Fall, !"
and are now engaged in the construction OF
their road, exercising acts OF ownership over
the rights and franchises Of the corlpluinants.
The questions presented by the complaints
are unauthorized and 8 trespass, or the rights
and franchises Of the compliments: and sec
ond, whether the appropriate r.medy therefor
is the Injunction prayed for.
The defendants intcrposo an objection that
coes to the foundation OF the comDlainant's