The Camden journal. [volume] (Camden, S.C.) 1866-1891, 1869-02-27
H7 D gSaS7


forced special cases. but whether It has cast that forth
to be claimed and exercised will by any person
ton having other higher power than the grant Of
Alright to construct railway canal turnpike other public
highway? Can you believe that the Legislature intended
dispense this great authority in hng and dam
A opIRgdIa s the the to 3 ssa
all history been SO carelessy given ou2 And be
claimed is done in the present instance where the
which the Courts Of this State should regard this question
better than in the language Of Judge Willard a mani
festy the object Of section g. article to engra upon the
laws Of this State feature elsewhere generally
garded important for the protection of rights Of property
namely that and to
erce the extraordinary powers of the eminent shouh
upon the lands of Others either with their consent
under the sanction Of judicial act determining the rghal char
aetsr and proper limitations Of such Ws ASK
May please your Honors safer rule be laid DOWN.
suppose that section eight of the Act Of 1853 forced
guide by which administer that act than is this LAM
guage Mr. Justice Ward2 But you find that safeguard
recognized or adopted in Of the Of thus
case Not Where you trd the sanction OF judicial
authority for the claim mao DY be Columbia and Augusta
Railroad Company to its exarcse the eminent
Judge at Chambers refusing the defence Of existing
legal right conferred by graz the State yet
the right and vestng Il other. jury not drawn
according to the law of tb pplcabe to eases where
questions of freehold Serneh but selected Clerk
and accompaniedby the Clio making the
contrary to any prescribed o. seos' zed legal mode
remedy you seek not lodged in Court Of Under
the law, there transition and giving rise to an
general power holds the Court of Equity and
entertain both proceedings Is not his position precisely anas
gous to that of the under the previous who
Judged only legal matters but certain matters OF Equity
growing out of the case2 ssz5ss55s..
Mr. Magrath-There remedy in equity. MrsJ. We
gave the remedy and when he made bis order for
injunction it protection to that point where we had
right ask it, Mr. Willard made his order of force until
right Of the Columbia and Augusta Railroad Company had
been "duy acquired !" that is the right lawfully
But Judge Boozer considers it thus acquired because
Pat has ordered jury assess for the
domination Of the right and Judge Pat ordered the
because injury could be done thereby
Judge Boozer hearing the motion to dissolve the nuno
would hear and decide all the questions in the case
And admitting eight applies to railroads there are
proceedings which, adopted would give protection but they
have not been adopted because the Judge has not Mt TO-
consrue the Act as we think your Honors viii eonstrue IT.
The difficulty has been that Judge Pat considered that the
Legislature gave him power to condemn but TO IN
quire whether in given case, it intended TO
the language of the Act: aBut the right OF
way land and along such right Of
condemned for the construction of any other
ded that construction OF such other there be
hndrance to the and enjoyment Of the for
which such lands right of way We're
Your Hono will mark the limitations to the exercise Of the
rghthe right of way over said land and the right OF
aacro aalong such right of way What H the demand
made? aThe said Columbia and Augusta Railroad Company
require the right Of way along and OVER the right OF way
and lands claimed by the said Sonth Carolina Raroad
Company" - - Us ~ si..,as -
them fxed precise and technical meanings but
elsewhere recognized to have had little weight IN
| cusson. -.41s 80 49, ,-s. ~ szg
L have SHOWN your dOnorS
involve the right 60 3aong for the purpose OF
crossings involves asmpe right to cross The Act
the Legislature says said land and or along
such right of way and the rule Of construction strict
Suppose section drawn with special referenee
to the case of the Columbia and Augusta DO
not know whether not whether tho purpose was
general special who its author by what was
drawn but may suppose right co1ld De
claimed by that road Chancellor Carroll in his Decree
the right to run paraewth the South Carolina Raroad
from Granteve Hamburg the Chancellor sad that was
their right If they claimed under act AZ they could
only claim the right go "across or ana not
any existing right of way. ~ =, S
Then however, comes the proylso rooded snas N tne
construction of such other there be hndrance to
its use and enjoyment highway for which such or
right Of previously proeured Suppose there Is
hndrance who tries it? Who has authority to
confne the operation of this eighth section to the OF
highway you have in the nineteenth section OF the ourtn
article tribunal established for the purpose of
directing and controlling that question: but in question OF
bdranee between railroads who decide that pont Not
the County Commissioners for they have no authority no
then The Judge before whom the application is
is the authority? Hndrance made IN the proVlso IL
s therefore taken out of the general provisions OF
Act If therefore there special provision made or us
trial it must be tried according to law and In Term er
GUS as are objections they not ana ne
ton of hndance is assumed which, without any special
authority tho Judge alone has right decide and secondly
that having such right he entertain the ous G
Term time Honors aware that IN the Meqa Oci
epe case the Court of Appeals determined tnat III
vacation could entertain motion TOR ceroTd eAcep
in Term time unless by authority of Act OF the
Nor can YOU point the law South Carolina oy Whicn
Judge in Chambers authorized to decide quesuon
the dyesture of legal rghts And if that question OF legal
roht involves matters Of fact resulting from testimony the
mower of Judge at Chambers to decide it, no where TO be
ound What hndrance? Is it not question OF