The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1868-12-18

whenever the one, in the construction
OF its road, claimed the right OF; en-;
tefing dpon and using a portion pf
the lands and right. of way Of the
other, elSouth Carolina Railroad
Company is not made an exception
to the operation of this enactment;
but, on the contrary, section s of
said Act declares affirmatively that
emo lands or right of way which have
been heretofore procured for the con-
struction or use of any highway, shall
be considered exempt from liability
to condemnation, but the right of
way over the same may be condemn
ed for the construction of any other
highway" The same section, never
theless, secures protection to the
company Fhcse lands or right or way
are thus interfered with, by declaring
farther, in these words: .Propided,
That in the construction of such other
highway, there belno hindrance to
the use and enjoyment Of the high
way for. which such lands or right of
way were previously procured" And
it is apparent, from the reading of
the entire Act, that the Legislature
intended, to. encourage and invite
capitalists from other ,Stetes to invest
theiro money in railroad enterprises,
land in other works of. internal i'm
provemept in South. Carolina, by
aHording them all proper facilities in
the construction of their railroads,
and lin the removal, so far as they
could, of all pre,existing obstacles;
and also to assure them thai no other,
objection but the one Of 'thindrnnce
to their use and enjoyment" ETC., of
their own road, should be successfully
urged against them BY any company
whose lands oor right of way were
thus entered upon and thus used
It is equally manifest that the Gen
eral Assembly intended to confer and
impose upon the Circuit Judge, and
on him only, the power and respon-
sibility Of adiudicating upon the pc
tition. and of granting or refusing
to grant the order prayed for. A
bill of complaint has been heretofore
filed on the Equity side of the Court
of Common Pleas of Richlo d
County, by these respondents, against
these petitioners, in which oil their
rights and claims, now asserted before
me, are set forth and insisted on.
Such suit is stll pending in said
Equity Court. 1t was suggested, at
the late hearing Of this matter before
me, that the surest mode of securing
the just rights of both parties would
be to postpone any decision by me,
upon the petition aforesaid, until
the rights of both had been investi-
gated and adjudicated upon by that
Court. This suggestion struck me
favorably at the time, and I was in
clined to adopt it and to rule accord
ingly; but on subsequent reflection
and re-reading of the Act 40, I be-
came convinced that such ruling by
me would be departure from my
plain path of duty. The "Circuit
Judge" " named in Section 2. has no
right to transfer or delegate any por-
tion of his power and responsibility
to any other tribunal; neither would
be be justified in delaying the opera
tion of the Act of General Assembly
aforesaid, because he felt desirous of
first knowing what some other Cir
cult Judge would deem and decide to
be legally right and proper.
Regarding myself, therefore, as the
only constituted judicial agent of the
State under that Act 40 to enforce
its mandates, do not feel at liberty
to entertain and adjudicate upon
most of the various questions raised
by the South Carolina Railroad Com
pany in opposition to the petition,
because I cannot consider them
legitimately involved in the case.
am not sitting as Court of Equity,
to hear and decide upon general
matters of difference existing be-
tween these two companies. but as
the judicial officer Indicated by the
General Assembly, and specially in
structed by said Act to aid in enforc-
ing its provisions; and, therefore, do
not consider myself at liberty to en-
tertain and decide upon any asserted
rights or objections, except the sim
pie one of ''hindrance," particularly
specified in the Act.
IL is, therefore, ordered and delc,.-
mined, That the petition of the Co.
lumbia and Augusta Railroad Com
pany has been presented in due form
of law; and that respondents have, in
due form of law, put in their answer
thereto, in which answer it is alleged,
among other things, that the taking
OF their lands and right of way, as
prayed for, will be q hindrance to
| tba r1Qa on1 on;o-n>oul l.