Historical Newspapers of South Carolina

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THE DAILY Daily Paper $8 a Year', fl^?fe BY JULIAN A. SELBY. "Let our Just Censuro M?S NI Attend the True Event." COLUMBIA, S. C.. TUESDAY MORNING, DECEMBER 1, 1868. Tri-Weckiy 85 a Year VOLUME IV- KO 21^. THJS PHXENIX. PUBtilBIIBD DA 11.7 ARD T1U-WKF.KI.T. THE GLEANER. EVEIIT WEDNESDAY MORMNO. BY JULIAN A. SELBY, . EUITGS A?tS PaoiaiKroR. Office on Main St., few doora above Taylor. TERMS INVARIABLY IN ADVA NC E. SUBSCRIPTION. DH?V, G months..$4 00 | Tri-Weekly, G moe...$2 GO Weekly. 6 mont hB.$1 50 ADVERTISEMENTS Inserted at 75 con tu per square of niuo lines for the fini Insertion, and 50 cents each subs?quent. Weekly 75 cents each insertion. aar A liberal discount made on the above rates when advertisements are inserted bi', the month. Ao EN TH . -Hiram Mitchell, Spartanburg; J. It. Allon, Ohostor;8. P. Kinard, Newberry 0. H.?Jas. Grant, Union; Julius Poppe, Anderson C. H. Tiie Columbi? und Augusta Itailroucl. In our issue of December 18, ultimo, we published tho opinion of Judge Platt, of date the 4th December, ultimo, on the pe? tition of tho Columbia and Augusta Rail? road Company for tbe condemnation of a -way over certain lands of the Soutb Carolina Railroad Company. This opinion concluded with the following order: "It ts, therefore, ordetedand determined, That the petition of the Colombia and Au? gusta Railroad Company has been presented in duo form of law; and thot respondents Lave, in due form of law, put in their answer thereto, in wbicb answer it is alleged, among other things, that tho taking of their lands and right of wa}', a's prayed for, will be a hindrance to tho usa and enjoyment by respondents of tbeir own highway, within tbe intent and meaning of the Act (No. 42) aforesaid. And if such ground of objection be made to appear, by clear aud sufficient evitlenco produced, as true and well taken, then and in such case the prayer of tho pe? tition must be denied, as provided in and by section 8 of the Act aforesaid. But in the absence of such proof, the order prayed for will be granted. "And il is further ordered, That the hear? ing nf the case, for the purposes above ex? pressed, be continued before mo at Cham? bers, in Aiken, on Thursday, the 10th day of December, instant." . Wo are now furnished with the further opiuion of Judge Platt, with his order for the jury, and with the jury'8 inquisition and verdict. Those we publish below, as part of tho history of this interesting and im? portant case. We understand that the South .Carolina Railroad Company have given no-, tico of appeal to tho Circuit Court of Edge field, whioh will sit in February next; and' will then move to set aside the verdict as "irregular, illegal and void." Ex pur te tho Columbia and Augusta Rail? road Company. In re, Petition for a jury to assess compensation over lands and right of way of, tho Sonth Carolina Rail? road Company. (In continuation of my decision and opin? ion of 4th Doeomber last:) Tho counsel did not assemble on Thurs? day, the 10th, in pursuance of order of 4th ult., but did appear on Friday, the 11th, and the case was proceeded with. Respon? dents presented and filed thoir further and additional answer to the petition, setting forth and insisting that the Act aforesaid, in permitting one company to enter upon and use the lands and right of way of an? other company for the construction of its road, did not apply to companies previously chartered, but only to such as should be thereafter chartered; that the word "shall" in tho 3d line of the 1st section, indicated tho legislative intent to have its application confined to companies to be chartered in the fulnre. I could not acquiesce in this narrow construction of the Act. and over? ruled the objection. Too great stress if often laid upon merely verbal oriticism, in our endeavors to ascertain the legislative intent. True it is, the word shall, is, gram? matically, a verb in the future tense, and its precise moaning depends very much upon tho other verb with which it stands associ? ated and tho context. By reading the entire Act, it becomes clearly manifest, that said first section was intended to bu aud ia appli? cable to all companies, whether chartered previously or subsequeutly. lu declaring what corporations may avail themselves of tho beneficial provisions of the Act, it says: " Whenever am/ corporation shall he authorized by its charier to construct a railioai/, tte." In my judgment, tho true intent and meaning of the words above quoted, are sufficiently, clear to justify petitioners in their interpre? tation of thurn; but such meaning would have been more happily and more accurately expressed, if, instead thereof, they had said thus: "Whenever any corporation shall bo able to show that it is authorized by its charter, to construct a railway, &c." If any doubt remain in regard to it, such doubt will bo dissipated by tho reading of section 8, which declares that, "No lands or right of way, which havo heretofore or may here? after bo procured for the construction or use of any highway, shall bo considered exempt from liability to condemnation, but the right of way over and across and along such right of way may bo condemned for tho construction of any other highway." If this ground of objection wero well tnkon, then two companies chartered about tho timo of the passage of this Act, tho one the day previous to, tho other tho next day after it, would be differently nffected by it; tho one 1 wonld bo entitled to its beneficial provisions, tho other not. Surely tho Gonorai Assembly never intended to legislate thus partially for the people whom they represent. In this 8tug<i of thc case, respondents wero about proceeding to the examination of their'witncss.scs, (all present,) when it was suggested by me, that instead of an oral examination, tho better conrso would be to have it in writing, in form of affidavits; that then tho entire testimony would be of record, in the very words of each witness; and if ever necessary hereafter to review the case, such record of testimony could always bo found and referred to, and therefore avoid tho wrong which might result to the one company or tho other, by the failure of human memory to state correctly hereafter what tho oral testimony had boen. This recommendation was approved of by counsel and adopted; and upon re-assem? bling next morniug, tho affidavits of tho following witnesses were read by counsel for respondents and petitioners respectively, to wit: For Respondents: HENRY T. PEAKE, Gen. Sup't of their road. ?T. E. M?KLET, their Agont ut Augusta. J. H. BITCKHALTEII, their Superintendent or Hoad Master. A. CAUADEUX, Civil Eng. and Surveyor. CHAKI.ES MAHON, Civil Eng. and Surveyor. For Petitioners: Cou WM. JOHNSTON, President of their Company. GAVT. JAS. O. MOOIIE, their Chief Eng'r. Tiros. G. WILLIAMSON, their Ass't do. W. A. Ginnies, Acting Assi.-daut Engineer. JOHN M. PENNINGTON, Contractor on sam? road. JAS. STILLWELL, Contractor on samo road, GJ?OKOE A. HALL, Superintendent of t contract, same road. JAMES G. GIUHES, Civil Engineer. JOHN L. BRANCH, Civil Engineer. Divers maps and profiles were produced exhibiting the depot lot, nod also the cou? try between Graniteville and Hamburg, es pecially indicating the road-bed and righto way of tho old company, and the interfe renoo by the new compauy with their land and right of way, in the construction o their own road-bed. These maps and prc files were left with me, and will be by m filed, as part of thc testimony, in connel tion with the nfhdavits aforesaid, in th officor' tho Clerk. Such maps and aflidc vits constitute tho entire testimony in th oaso. It will be preceived by reading the af! davits that there aro three distinct kinds an degrees of interference : 1. The one at Graniteville, upon an across tho depot lot of ten acres, and o which the depot buildings are situated. 2. Between Graniteville and Hamburg (1 for 1 ?4 miles over respondents' right of wa^ and parallel with their track, fifty feet dil tant from it; (2) for 2 miles, in like manne: commencing about three miles from Savai uah River and extending to or near t "Dead Fall." 3. At "Dead Fall," over land claimed t respondents as their right of way (althoug distant moro that 100 feet from their roai bed) near to tho corporate limits of Hun burg. This land was obtained by them f< the special purpose of supplying earth ft their railroad uses, and where for conven enae of getting and loading such earth, th? have constructed a "back out." Petitioner road-bed lies between respondents' trac and this, their aforesaid earth supply, pr venting them, as they insist, from any a cess to it; but petitioners say in reply I this, that although their road-bed is, that point, upon a little higher grade thc that of respondents, they will so constru it as always to permit them, by a slight e tension of their "back out," to cross the track, and get their needed supply of earl os heretofore, so that although somewh inconvenienced, they will never be binden thereby. Tho testimony of the witnesses on bo sides had reference to the three kinds ai degrees of iutcrfereuce abovo described each witness thus discriminating and par cularly describing the kind aud degree hindrance, or no hindrance at each of tho points of collision. The whole mass affidavits (fourteen in all) possess this o: feature of similarity: their apparently u shakable belief iu the facts stated by thu and in their opinions formed thereon, in the confident and emphatic manner which they express themselvos. But i similarity terminates here. Tho five first abovo named, all agree declaring their belief that petitioners' ro can never be constructed on the line adopt for its track, without serious- hindrance the uso aud enjoyment by tho other co; pany of their road; and that irreparal injury must inevitably be thereby inflict upon them. Most of them give thoir r< sons for snch belief, and state where a how tho mischief will bo done. The last niuo witnesses abovo named agreo in declaring their confident belief tl respondents can never be hindered in t uso and enjoymeut of their highway by t construction of the other road; but, on I contrary, they will at some points bo nm I benefited by it; specifying particularly tho and the 2 miles aforesaid, where by having petitioners' road-bed between their track and the high ground beyound both, nud Hie track complained of being elevated some feet above their own, tho new road will catch nil the washings from that high ground, and which must be disposed of by that company, and thus tbo old compuny bo relieved of that expensive aunoyunce, from which they have so long suffered. All these nine witnesses admit that the old compauy niav be inconvenienced, and may .be subjected to some, money outlay at "Dead Fall;" and that like inconvenience and vexation may bo caused at Orangeville, by the laying of this opposition road-bed across their depot lot; but insist that no hindrance will be thereby occasioned to the legitimate uso end enjoyment by respond? ents of their own road. But after all, tho apparently opposite opinions thus expressed by tho witnesses, may be more seeming than *real discor? dances. When, on tho ono side, respond? ents' witnesses say there will be "hindrance to the uso and enjoyment of their highway," they may not mean tho Highway itself, but hindrance to the uso of certain facilities in? cident to it; hindrance to certain other usen for which tho lands were procured; or . to the construction of additional facilities, which they mny perohanco hereafter need: or hindrances which only exist as ajjprehen sions of future biudrance. On the other band, when petitioners' wit nesses say there will be no hindrance, thoj may mean no hindrance to tho highway itself-to the railroad, as distinguished fron the facilities or incidental privcleges of tin franchise. They concur with tho othei witnesses in stating that in somo of tbes< incidental matters, not only inconvenience! will bo occasioned, but oven hindrances wil unavoidublj* occur; but they deny that thon will be any hindrance io the ase and enjoy vient of tile railroad, as a highway for trave and traffic. It must bo borne in miud, that all th foregoiug testimony was given while th petition (unamended as now) claimed fo their road-bed, and for their own exclugiv ase, a width o? 50 feet-all of it within rc spondents' right of way-not only en rom from Orangeville to Hamburg, but alao tb like 50 feet aoroea the depot lot at GrauiW ville. Counsel now proceeded to argue the cns? and I was not surprised at witnessing tl) excited zeal and earnestness manifested b respondents' cotiusel in tho advocacy au .deleuce of their clients' rights, for I bud n< brought my own mind to tho conviction t tho possibility of their losing 50 feet < their right of way, and especially throug their depot lot, at Grauiteville, withoi being necessarily hindered in their uso ac enjoyment, Seo., as provided againt in se 8 aforesaid. I therefore felt it my duty 1 interrupt tho discussion, by declaring I petitioners the determination my mind bj come to, not to graut the order prayed fo so long as they insisted on 50 feet for thc road-bed. First, I had become couvinci that at somo points, it must work such hindrance as tho law had forbidden; ai secondly, that, according to my coustru tion of the Act, although it would tolera and permit the ucual width for their rig of way over hinds generally, through wbii they required to pass, the General Asseuib never intended to give them such right way when they begged the privilege of Ia ing their road-bed along and over the reg lar and usual right of way of another coi pany, and that too for miles, and al through and over their very depot lot; tb in my judgment, tho Act 42 iu nllowi any interference at all with tho right of w of another and older company, intended t thing more than to give the right of passa over it, and to permit the taking of so mu of their right of way as might be needed 1 tho construction of their road bed a nothing more; that surely the Legislate never intended to justify so extouoivo encroachment upon tho vested right another company, as that claimed u prayed for in this petition. I int ?hunted to the couusel that if th should express a desire to amend their pe tion iu that respeot, I would pormit tin to do so; but otherwise I must decline gm ing tho order prayed for. Soon thereafter they presented th amended petition, as it now appears, ducing their claim from 50 feet to mer sufficient width for construction of th roadbed, not only at Grauiteville, I throughout the entire route. Counsel tL proceedod with their discussion, Warn and earnestly as before; insisting, on 1 ouo sido, that oven now it would work I hiudraucu complained of; and, on tho otb that all former grounds of complaint w now obviated by such amendment of pi tion. Most of tho difficulties in my own mi wero dissipated; but still I hud ling ing doubts iu rogard to tho bindra question at two points, tho ono at "D< Fall," and tho other at the Granitev Depot lot; and wishing to avoid the po bility, so far as I could, of doing injusl to either company, I claimed tho rigb further reflection upon and consideratiot tho caso iu its various aspects and dearin My mind bas now become quieted'in settled conviction, that no such bindra as that contemplated in and forbidden tho Act aforesaid, will ever be caused by tho construction of tho Columbia and Au? gusta Railroad over and upon tho right of way of the South Carolina Railroad Com? pany. Inconveniences will bo occasioned, sumo injuries done, and some money expen? ditures for tho repairs of such injuries; but all thoso will be made good to them by the compensation verdict of tho jury as required and ordered in and by tho Act. Tho last lingering doubt which troubled my mind was whether such road-bed could be laid through and upon tho dopot lot without becoming a hindrance. If tho ori? ginal 50 feet claim had been persisted in, it certaiuly could not. Its reduction to merely sufficient width for tho road-bed gives it a different aspect. Tho grades of tho two roads there aro tho same, both on same level with tho lot itself; so that petitioners'track, when laid and in practical use, will work no real hindrance or any serious detriment to respondents. It may, and probably will, causo 'them some vexatious inconvenience, by compelling their freight carts and waggons to cross over this unwelcome, in? trusive track, iu their daily iugress to, and ! egress from, tho depot. This is rather an auuoyancc than a hindrnnce. In the crowded city of New York, similar incon? veniences and so-called hindrances are expe? rienced. In almost every busiuess street tho cartmeu and truck-drivers are compelled to cross tho truck of some city railroad company. It somowhat incommodes them, and excites angry feelings, and causes much hard swearing among the drivers, but the owners of thoso trucks aud cartB havo never yet complained of such railroad tracks as a nuisance, or us a real hindrance to the suc? cessful prosecution of their business. So here at Graniteville, the employees of respondents, in and about their depot, may become angrily excited by being compelled daily to seo and to cross over this track (which they may deem an opposition track) in their very depot lot; but, in my judg? ment, respondents will never find a hin? drance to the legitimato use of their own road. Their own road-bed, aud the track constructed thereon, will not be invaded 01 disturbed by thu construction of the othei road; nor will their passenger or freighl trains ever be delayed, much less hinderet by it. True it is, they may be annoyed b} the occasional whistle of a rival company, so near to their own track, but no greater 01 more alarming "hindrance" to their use ant enjoyment need ever bo apprehended fron such close proximity. That no injustice can possibly result t< respondents, and no prejudice to theil rights, is manifest from these two consider ations: 1. That after petitioners shall havi ascertained the quantum of compensation and havo paid or tendered it, they mus necessarily go back to the.Court of Equity iu order to get the injunction removed; am before they can ask its removal they mus .show not only that they have tendered th compensation, but that they have "acquire tho right," (as provided in Judge Willard' injunction order.) Their suit in Equity now pending on the Equity side of th Court of Common Pleas of Richland Coun ty, embraces the whole issue as to "right, aud every point must necessarily bo adjudi cated npon when they apply for leave t proceed with their road. 2. From the vei diet which the jury may reuder under m order, there is given an appeal which wi bring the matter again before me while prt siding in court, and I can then determiu whether my judicial action now is resultin to tho prejudice of respondents. If th rights of both purties shall not then hav been adjudged in said equity snit, it will b within my discretion, as a Judge, to cot tiuue the case from term to term in order t prevent injustice, and to continue it uut the qnestious of right shall be decided. ] is, therefore, not only in tho power of th Court of Equity lo prevent tho injustic which respondents fear may be the result ( my order as a prejudic ilion of their questio of right, but equully withiu my own pow< to prevent such injustice, by refusing t allow the case to bo tried on appeal ant those questions shall bo decided. It is therefore ordered and determine that tho prayer of petitioners bo grantee Tho order lo tho Clerk of Commou Plea of Edgefield County, will bo issued accon ingly. Z. PLATT, Judge of Second Circuit. AT CHAMBERS, December 17, 18GS. On hearing tho petition in this case, it ordered that the same be tiled in the offii of tho Clerk of tho Court of Common Plea for Edgefield County. Ordered further that tho said clerk tl proceed (according to the provisions of tl Act of tho General Assembly of tho Stat No. 12, ratified OD tho 22(1 Septembe 1808.) to einpa miel a jury of twelve to assc the compensation to bo paid by tho pel tioners to tho South Carolina Ruilroi Company, for a way over the lands ai right of way of tho said South Carolit Railroad Company, that is to say, (1) ovi tho lot at Graniteville Station, described : a lot of ten acres, on which is situated tl depot at said Graniteville Station; (2) ovi tho right of way of 100 feet appurtenant I the said South "Carolina Railroad botwee the said Graniteville Station and tho poii near Hamburg, known as tho "Dead Fall and (3) over the lauds which lie outside tho 100 feet right of way, but within tl 200 feet claimed by the .said South Carolina Railroad Company at that point. Ordered further, that in tho rendering of their verdict, tho said jury shall discrimi? nate between the amouuts that shall be as? certained by them for a wny over the said several parcels respectively. My decision and opinion of this dato is part and parcel of tho foregoing order. Z. PLATT, Judge of Second Circuit. AT CHAMBERS, Decernbor 17, 18G8. Tne STATU OF SOUTH CAROLINA, I COUNTY OF EDQEFIEXD. \ An inquisition, held at Granitoville Sta? tion, in tbo County and State aforesaid, on tho 2d day of January, Anno Domini 1869, by thc undersigned, drawn and empaneled as a jury, (pursuant to tho provisions of an Aot of tho General Assembly of the said State, ratified tho 22d day of September, A. D., 1868, entitled "Au Act to declare the manner by which tho lands or the right of way over tho lands of pcrsou:} or corpora? tions may be taken for the construction and uses of railways and other works of internal improvement,") and charged by tbe order of his Honor Z. Platt, Circuit Judge of the Second Circuit of the said State, to asses the compensation to be paid by the Colum? bia and Augusta Railroad Company for a way over the lands aud right of way of the South Carolina Railroad Company: The said jury, being first sworn faithfully and impartially to determino tho question of compensation submitted to them, and having inspected thc pre?ases, and taken testimony in reference to tho construction of the proposed railroad, and tho quantity of land which is required therefor; and having considered tho question of compen? sation, irrespective of any benefit which tho South Carolina Railroad Company may de? rive from the proposed railroad, and with respect alone to the quantity and value of the lands required, and to the special da? mage which the South Carolina Railroad Company will sustain by reason of the con? struction of tho said proposed highway j through tho said lands, do assess the com i pensatiou to be paid by the said Columbia and Augusta Railroad Company, for a way over the lauds and right of way of the said South Carolina Railroad Company, that is to say: 1. For a way over tho lot of the said South Carolina Railroad Company at Gran iteville Station, we asses tho compensation itt (for twelve and one-half feet from centre each way making 30,000-43,560 of an acre) fifty dollars; it being understood that the construction of the said Columbia and Au? gusta Railroad through said lot will be practically at grade, except that portion iu rear of agent's bouse which is useless for all purposes as far as locating side tracks aud conveniences around a depot-yard. 2. For a way over the right of way of the said South Carolina Railroad Company, between Grnniteville Station and the "Dead Fall," near Hamburg, wo asses the compensation at (thirty feet from centre each way) fifty dollars, it being understood that the construction of tho road-bed of the Columbia and Augusta Railroad will be ut no point nearer than fifty feet from its centre lino to the centre line of tho Sooth Carolina Railroad track. 3. For a way over tho lands of the South Carolina Railroad Company at tho "Dead Fall," we assess tho compensation ut (thirty feet from thc centre each way,) ten dollars, it being understood that the Columbia and Augusta Railroad Company will permit the South Carolina Railroad Company, to extend I a sido track at that placo across tho track of I tho Columbia and Augusta Railroad, and I that the construction of the lutter railroad at that poiut shall bo at such grade as to make au extension of the side track practi? cable, and that the cost of the construction and tile keeping up of such crossing shall be borne by the said Columbia and Augusta Railroad Company. Aud to tho foregoing verdict, we. the jurors, do hereunto set our hands: JAMES A. DOZIER, (Foreman,) THOMAS W. OARWILE, ARTHUR A. GLOVER. FREDERICK L. SMITH, MICHAEL A. MARKERI1. CHARLES A. OHEATHAM, GEORGE W. WISE. STEWART HARRISON, WILLIAM F DURISOE, Sn. A. MI NICK. M. HOWELL. NAT. CORLEY. GIBBES & THOMAS, H EA // ESTA TE A GENTS, COIiVMRIA , s . c . rill IK undersigned have determined ID form a _|_ juin.( ss parin? rshlp, under th? above name, for the purchase and sale, on commission, of HEAL ESTATE an 1 oilier property. Tho present low prices for real estate, in thc South, offers great inducements for tho investment of Northern capital; and wc propoBS to heep complete and ex? tensivo lists of property for sale, und to furnish reliable information to tho buyer and aollcr making no charge, except where nales are effected. Advertising, when authorized, will be done Ubi tally and on tho hist toi ms. Wo call?n our friends throughout the State to furnish UH with u.vuruto descriptions of any property they have to sell, with price, terms, Ac. We have now, and aro continu? ally receiving, inquiries after property that csu bc purchased. JAMES G. GIBBES, JOHN P. THOMAS, WADE HAMPTON GIBBES, NOY 19 Columbia, 8. C.