The daily phoenix. (Columbia, S.C.) 1865-1878, January 29, 1869, Supplement, Image 10
IN THE SUPREME COURT.
Columbia, S. C., January 29, 18G9.
AKOUMKNT OK HONORABLE C. G. MEMMINGER, OF COUNSEL FOB
RESPONDENTS.
May it jilease the Court : 1 should have been somewhat surprised at
the heat will which this causo has boon argued, it' 1 did not Suspect it
to he the result ol' an apprehension on the part of my friends that the
spring which they have set here is about to catch their own fingers.
We make no such controversy as that which they describe. We do
.not claim their land, nor shall we set up a right to one inch of it until
the preliminary question to which they refer has been decided hy the
Court. So that the whole clamor raised here ami elsewhere eau. with a
Ycry brief statement, he shown to he utterly unfounded.
Now. what is the question involved ;' it is not whether we eau make
a railroad to Augusta, or run a road parallel with that of the South
Carolina Hailroad from Oranitovillo to Hamburg, or go on their land
just as we are permitted todo on the lands of others. No! that which
has aroused their feelings to such an extent in this matter is the knowl?
edge that we are about to deprive that corporation of a large amount of
revenue. Hence, the longer this agitation eau he kept alive, the longer
will they continue to make a profit of live or ten thousand dollars a
month." If they lose, it will not he due to the fact that we have
gone on their land, hut because we have built a road: Build as we
may, a portion of their trade will be lost ; and this, may it please,
your Honors, is tho gravamen of the case, lt will deprive them of
that tax which lor thirty-six years they have imposed upon every mau
who was obliged to travel over their road to Augusta; hut at the same
time it gives thc country another link in that great chain of railroads
which unites New York with New Orleans, ?ind saves every traveller
an abstraction from his purse of a toll on seventy miles of the South
Carolina Hailroad. Therefore it is that this controversy has been kept
up, and we have been fought as it were to the death. It is in vain,
therefore, for t lient to say they have hastened this matter lo a conclu?
sion.
On the 11th of April, 18G7, the South Carolina Hailroad Company
filed a bill in this Court, in which they set forth the invasion of their
rights hy the Columbia and Augusta Railroad Company, and among
other things they aver as follows : '. That the charter of the said Columbia
" and Hamburg Hailroad Company impairs the obligation of the contract
" made between the State and your orators, and that thc rights, powers
"and privileges granted in said charter are inconsistent with, repugnant
" to, toni in derogation of the rights, powers and privileges vested in your j
"orators, under and by virtue of the Acts of thc General Assombly
" hereinbefore referred to. That the projected track of the said Co
" lumbia and Augusta Railroad, connects points and places already
'. connected hy tho road of your orators, and crosses tho track of your
" orat >rs, and runs for a considerable distance (twenty or thirty miles)
' in the general direction of the road ?d'your orators, and on hind
'.granted to your orators for right of way, and is a competing road."
To that hill the defendants filed an answer, admitting that they were
about to run their road on land that was granted to them as a right of
way.
The Court will observe that this is one of the very points now
being argued, and what was tho judgment ? It is refreshing to read
such a clear enunciation of judicial ?minion. The Chancellor says :
'. lt is contended on behalf of the plaintiffs, that their exclusivo
"privilege to establish and maintain railway communication between
"Charleston and Hamburg attaches to ?wery foot of their road con
" nccting those places, and that the construction of another road sitie by
''side and parallel with their road from Uraniteville to Hamburg, a
"distance oftener twelve miles, cannot operate otherwise than as a
"palpable invasion of such exclusive privilege; that other routes th in
"the ?me selected may be lound by the defendants lor their projected
" road, and that its location, ns proposed by them from Granit oville to
" Hamburg, is. therefore, unauthorized hy their charter. A glance at
"the ma]? will show that Uraniteville is very nearly, if not altogether,
"in a direct course from Columbia tn Hamburg. From Granitcvillc to
" Hamburg it is conceded that the tildy practicable route for a railway
"isthat hythe valley of Horse Creek. Other routes for their road
"than that by Granitcvillc maybe found, hut they arc attended with
.'natural obstacles to?) formidable to be overcome, save by an outlay of
"capital wholly beyond the means and resources of thc defendants. To
"deny them access to Hamburg by Granitcvillc and the valley ?d' Horse
"Creek, is to disable them utterly from completing their projected road.
"That route is, therefore, the only practical route that remains to the
"defendants. Aro they entitled to pursue it ?"
Now, your Honors observe, that in the judgment of the Court, this
is the only route, and more particularly ?loes the Chancellor justify him?
self in this opinion, lor he goes on to say :
"In proposing to adopt that route, it has not been shown that tho
.' defendants are acting otherwise than in good lilith, and because they.
" in truth, regard that route as the most desirable and the best ; had
.. the plaint ills built their road in a direct course from Charleston to
" Hamburg, the coincidence in the tracks of the two roads from Gran
" iteviile to Hamburg could not have occurred. In carrying their road
.. to Granitoville, or rather its immediate vicinity, the plaintiffs diverge
'. considerably from the direct line between Charleston and Hamburg.
'. The coincidence referred to between the respective roads ?d' the
"parties from Granitcvillc to Hamburg, is tho result of that very di
" vergence; when at the date of its charter to the plaintiffs, the Stat?'
" reserved the right to authorize the construction of a railroad from
" Columbia to Hamburg, was there not involved in such reservation
" the right to authorize such road by at least the straight and direct
" course between those places? The plaintiffs' road from Hamburg to
" Granitoville though pursuing for sonic ten or twelve miles a course
" almost, if not altogether in the direct line to Columbia, was built as
" surcdly under the powers conferred hy their charter and certainly not
" in derogation ?d' any power retained by the General Assembly to au
" thorizc other like improvements. If so, then such location of the
" plaintiffs' road, must be held to be in subordination to such reserved
" power, although in its exercise the result should be a railway from
" Columbia, passing hy Granitoville, and thence to Hamburg, with a
" concurrent, track along the same route, and involving lor that dis
" tance an incidental competition between the two roads. As already
" remarked, the plaintiffs' exclusive privileg?i is restricted to railway
" communication between the points indicated in their charter and the
" City of Charleston. But the projected road of the defendants con
" stituti^s in no sense, and neither in whole or in part, a railway coin
.. munication with Charleston. How can blaine be implied to the de
" fendants for proceeding with their road from Hamburg to Granitcvillc,
" when in so doing they are pursuing, with slight deviations, the direct
" course to Columbia, and are confining themselves, so fsir as the route
" of their road is concerned, within the strictest limits of their charter ?"
Such was tim decision ol' the Chancellor, but it was appealed from;
nml in the thirteenth volume of Richardson will be found the final ad?
judication. The decision of the Court is in a few lines:
.. Whilst, therefore, the Court recognizes the abstract right of the
.. defendants to cross, ami affirms the decree of the Chancellor upon the
" questions considered by him. it will retain the bill and endeavor under
.. it to lix the relative rights ami duties ol' the parties in respect to the
"crossing ?nd also to settle all points of dispute between ?h.- parties
.. connected with the main subjects, which have been brought under
.. adjudication."
.Now. if tin' South Carolina Railroad Company were so anxious tn
hive their rights determined, was not here the place to come? Could
they not. in the Supreme Court, h ive made all the questions which
havo since been the subject of such iv.nt nont?.ntion r There was
?-W pluuo, n.nd t.i?oro t.tio judiciary competcnl to decid.- th,- case, and
why did they nul there seek that justice which th.y ar?- so loudly de?
manding herc ? Let them answer. They chose not to ask further aid
"f thai ('.Mut hut went outside, filed a now bill, raising one of the very
questions ?nv il ved in (lie former ease and claimed tho right to this pre?
liminary inquiry. In thal new bill they asked for au injunction to
stop nur proceeding with the construction of the roath All ofthat
J.ld have been reached in thc other case; nevertheless, for reasons
best known to themselves, they posed that by. ami now bring us b iforc
this Court with a claim that we ar?: invading' their rights ami a prayer
tint we he enjoined therefrom.
Mr. Justice Willard-Why could they not, have moved for an in?
junction in the old caso?
Mr. Memminger-Simply because they have chosen this course. I
know of no other n ason, for undoubtedly they h ive h id their choice of
procedure. Vet your Honors have hoard the clamor raised by them
on the ground that they were taken by surprise, when in truth their
whole object was to stop tho construction of the road. Vonr Honors
granted an injunction holding that it was unnecessary to h.ive a heariti"
ol' all tile questions involve,) in the e ise.
Mr. Justice Willard-Thc intention w is ?o defer ?ill othor questions
until tint which was decisive of thc eise could be heard.
Mr Memminger-There i> a bill filed claiming the right at issue
but it does tot matter what happens outside. If upon the bea ri mr of
thal !-;!! it is your Honors' opinion that the privileges of thc South
Carolina Hailroad hiv,- boen in fringed by the Columbia and Augusta
Hailroad Company, all thc money we may expend upon tho road from
that tim - until the presen' will bo thrown away. The 1 I as filed is
li* pen Jen*, and it is at our own peril that we go forward ami construe!
tho road. Should ymir Honors be of the opinion thal we are wron?
our work, ol' course, goes for nothing. When an action for trespass '(,,
try title is ponding, ami any purchaser ch loses ?o buy a righi ol' uno of
the parties, would th u affect the lille ? He may do what lie pleases
may maire improvements pendente lite, but he does so with his eyes
open and n full knowledge of his responsibility. If (be decision is
against him he loans the whole. We understand that. Wc do not
claim that we ean take this land without judgment, but, on the contrary,
affirm that if it ho against us, wc shall sacrifice all we may have ex?
pended upon tho land. Yet we take that risk. If the Judges are to
fail in duty and be frightened out of propriety because n man chooses
to make a road in defiance of law, what is tho use of law? If Mr.
Johnston chooses to go on and build his line upon tho lands of the
South Carolina Railroad, and your Honors come to the conclusion that
he neted without warrant of law, he must take the consequences;
therefore, 1 say, may it please the ('oort, that it is an idle clamor which
has been raised and one to which WO should gi vt; no concern.
I now proceed to show that ymir Honors have nothing to do with
this ease in its present stage, although you may have much to do with it
in the end. The judgment, of the Court must be reached by law, not
by invention or contrivance; not by short cuts. Your Honors will
bear in mind that it is but recently you have taken your places upon
that Inn ich. A new system of jurisprudence has been established, and
it behooves you to lay the foundation securely, and to avoid creating
precedents that may work incalculable mischief hereafter. Because a
part)- cannot make an appeal as rapidly as he desires and applies for j
.some newly invented writ to facilitate his object, you are not necessarily
to accede to that request, and permit a process which is not clearly
authorized by the constitution and thc law which are your guide. The
attempt made hy our friends on the other side reminds nie of an inci?
dent of my early experience. A client once carno into my office with
the complaint that a man had run away with some of his negroes and
inquired if I could not find a way to catch and bring the man back. 1
asked where he was. The reply was. he did not know ; but, said he.
'.down in Georgia we have a writ that is called the comm ltogm1 and
I the moment you put it into the clerk's office then1 is not amanto
whom it refers who will not quietly walk into jail, deliver himself up
and beg for (?od s sake; io surrender everything that is wanted." If
strikes me that it is something like a comm bogus which is required
! here.
lint to proceed with the argument. 1 shall maintain three proposi?
tions-first, that upon the ease made by the plaintiffs this Court could
not net by prohibition; secondly, that they are not entitled toa pre?
liminary trial ; that 'he preliminary trial is not a matter (d'right in this
case; and thirdly, that if such preliminary trial ho had, tho Columbia
and Augusta Railroad Company have a right to condemn the land.
Now, the two last propositions I consider mere matters ?d'instruction.
Time would be wasted upon such an argument, and 1 shall, therefore,
not touch upon them very elaborately. The first proposition is the
question your Honors are to decide. On the case made by this party,
lean you issue a writ of prohibition ? Your Honors will perceive that
the constitution of 18G8 is very careful in the distribution of powers in
the judicial department. Referring to article four, ol' that instrument,
it will bc found that the judicial power of this State is vested in the
Supreme Court and two Circuit Courts, namely, "a Court of Common
" Pleas having civil jurisdiction, and a Court of General Sessions, with
"criminal jurisdiction eui)*; in Probate Courte and in Justices of the
"Peace." Section 4 declares that "thc Supreme Court shall have
" appellate jurisdiction only in cases of chancery and shall constitute a
"Court for the correction of errors at law, under such regulations as
.the General Assembly may by law prescribe: Provided, the said
.. Court shall always have power to issue writs (d' injunction, manda.'
" mint, quo warranta, habeas corpus, and such other original and rcnie
.. dial writs as may be necessary to give it a general supervisory control
'. over all other Courts in tho State."
lt will bc observed that prohibition is not mentioned in thal section. |
In thc fifteenth section of the same article, however, thc language is
as follows: "Tho Courts of Common Pleas shall have exclusive j uris
" diction in all cases of divorce, and exclusive original jurisdiction in
"all civil cases and actions rx delicto, which shall not bc cognizable j
.. before Justices ol' the Peace, and appellate jurisdiction in all such
" cases as may be provided by law. They shall have power to issac
'.writs of mandamus, prohibition, scirc facias, and all other writs
..which may be necessary for carrying their powers fully into effect."
Your Honors will perceive, therefore, that the power to issue this writ
I is not given to the Supreme Court but to the Circuit Court ; and you 1
I are asked to assume jurisdiction only by virtue of the language first
quoted, that "said Court shall always have power to issue writs of in
" junction, mandamus, quo warranta, habeas corpus and such other
" original and remedial writs as may be necessary to give it a general
.; supervisory control over all other Courts in the State."
The first proposition is. that if the writ of prohibition belongs to tin'
jurisdiction of thc Circuit Court, according to the clear declaration of
the constitution it is denied to the Supreme Court. It is exclusive in
the. Circuit C-mrt. You can hear it when it comes up but cannot take
cognizance (d' it originally; although you have power to issue, stub
I writs as may he necessary to a general supervisory control over all other
I Courts in the State.
The second proposition 1 submit is. that before you can assert a juris?
diction to issue this writ under that article of the constitution there
must be some further legislation. The act to organize the Supreme
Courtis distinct upon this subject, for it declares " that each < f tho
" Justices of the Supreme Conn shall have power to administer oaths,
''issue writs of injunction, mandamus, quo tcarranto, habeas corpus
li and other remedial writs according to the principles and course of
.? common law heretofore existing in tin- State ol' South Carolina,which
.. is hereby declared Kn be of force so far as applicable and not incon
" sistent with the constitution."
The Legislature, therefore, have directed the form, and you cannot
assume that under the eonsl'tution a writ of prohibition is necessary to
keep a supervisory control over other Courts of tho State ; ami conse?
quently that it may be issued vifhout further legislation. Rut the most
important proposition is, that Vis writ of prohibition is not necessary,
and does n?t come within the description of this Act ol'the Legislature.
Now, may it please your Honors, necessity is shown in various ways,
but I think the absence of necessity is conclusively shown in one way.
When you demonstrate that certain things have gone on in a certain
manner without the interposition cf certain other thing for hundreds
of years, you prove that that latter thing is not at all necessary. And
j T defy counsel on the other side to lind a case in which in an Appeal
Court a writ (d' prohibition ever originated. lu all the books from
King Edward, the Confessor, down to this time, no eis.- can be found
in which a writ of prohibition his issued from this Cunt. It always
issued from the Court below. I go further. There are States in tliis
Union where thc power to issue was expressly given to this Cuni. In
the laws of Massachusetts thc p iwer is given to the Supreme Court of the
State to issue writs of prohibition t-i all inferior Courts for the further?
ance of justice. .. hut no case." says Mr. Nathan Dine, in his Treatise
on the Law. " is recollected in which this pawer bas ever h.(eu exer?
cised." He adds. (6 Dane's American baw. 330:) -And hut one
.. ease is at present found ill which a prohibition bas issued in any (d'
.. the United States; (hit was in Pennsylvania; a case much COlisid -red.
" In that case this writ was issued lo tlc- District Court. Thu case
- was a lib d for d images on account nf a capture (d' a vessel as a prize
"by a belligerent power, which vessel was alleged to be neutral
.. American property, (he vessel having b?cn carried infra prxtidia, or
.' place ol' safety, b donging to the captors."
Your [loners arc also doubtless aware that in Kngland no such writ
. ever issued ; for Lord .Coke, during th" beat ol' controversy with (lie
Courts of Admiralty never claimed such an authority as between the
! Conns (d' common law jurisdiction. He only claimed to exercise this
' authority over the Courts administering maritime ami canon law.
j Von have, therefore, two facts, namely, thal in Kngland no writ ol'
I Lil.?ii.-o ever issued from Appellate Courte, ami in tho United
I States in tWO Stales where the power to ?S.MI ; the writ existed, no writ
i ol' prohibition bas ever issued from the Supremo Court ol' one. and in
the other it w is only issued in a case of admiralty. Yet your Honors
are urged to grant this writ in the present instance on thc ground that
|you have necessarily a supervisory control over othor Courts in the
State, and for no other good and subs! intial reason ; this in the face of
thc testimony of hundreds of years thal such a writ is not necessary
for any such purpose.
Hut more than tint; lb" Legislature has provided how yoi! may
keep your supervisory control over inferior C anis. Section '1 nf "an
Acl to reg?lale appeals and writs el" error to tho Supreme Court," p .ge
14, Slat. 180S, says: -pi?al judgments aid dcerocs iii civil and
.. criminal actions in the ('inuit Courts, brought there by original pre
.; cess, or removed there by appeal from any inferior Court or jurisdic
? lion, may be examined and reversed, or affirmed in tho SupremeCourl
. iipni writ (d' error." 'I'll,il is tbo principle ; that is the form ; hut if.
perchance, there happens to b ? a ease for which the writ of error is II ?t
ii sufficient and speedy remedy, the law does not allow you to legislate
and m ike a new writ. Your Honors arc perfectly aware that under
thu article ol' the constitution which gives Congress the power to
i regulate commorcc, it has been decided ib u what they omit to regulate
i is as nundi a p;ir( of tin' regulation as if it bad b en actually enacted.
In oilier words, what is left oui is as much a part of the regulation as
i hoi which n is been embodied in it.
Now. when tho legislative authority of South Car..lin; undertook lo
direct how this C unt should have supervisory control, il prescribed a
will ?d'error, ami lids provides tho mode.
.N ow. I submit I . the Court, (bat lhere is another reason why this writ
should not be granted. h'roin the argument of thc gentlemen on the
oilier side, il is obvious that they conceive there is no other remedy.
They are under a great mistake. The appropriate and proper remedy
is the very one which they have invoked, namely, an injunction, and I
I think there is something in your Honor's opinion to tba? effect (re?
ferring to Mr. Justice Willard.) This is one of those cases in which a
I
decree ?B necessary. You want to defino thc rights of both parties.
You cannot get at the question in any other way. Mr. Justice Willard
says: "Another ground is when the party complained against professes
"to act by public authority and enter upon and to a certain extent
"use the land of third persons and exceeds his authority, it is held to
"be a peculiarly proper case for the interposition of a Court of Equity."
That is the law. And the South Carolina Railroad Corporation did
invoke the aid of the Court ol" Chancery, lint suppose that Conn in
granting or dissolving the injunction committed an error-did any
one ever hear of a writ of prohibition on that ground? You have
appellate jurisdiction in chancery and cm correct all its errors here, and
if mero delay be a BUflicicnt ground, then it would authorize a prohibi?
tion for everything objectionable, moro especially in this caso, whore you
an; not allowed to appeal until the fin al judgment anti decree.
Your Honors will lind that this matter underwent examination in
England in the very famous case of Home vs. the Earl of Camden.
Thc King's Bench issued a prohibition to the Prize Court. The pro?
ceedings came nj) and the dedges gave an opinion which was discussed
in the House of Lords. That covers the whole td' this case. A great
deal of error is laid at the door of .Jlitiges 1 Matt and Boozer, but if so
the errors committed are errors ol' law and are the subject matter ttl'
appeal to this Court where your Honors havo to pronounce upon tin.
whole question finally, lt may be a matter of some delay, but eventually
the justice of the case must be determined hore. As I said before,
however, this is not the method. I rider your Honors to a very clear
decision on this subject, which will be found in the case of Leonard. (!{
Richardson L. lt., p. Ill,) and I will take the liberty of reading what
is there better said than I can say it myself. On pago 113 the Court
observe: "The ground taken for a writ of prohibition is that thc
"Magistrate and freeholders assumed to decido upon the relation of
"landlord and tenant, as existing between doini McCool and th" relator,
"without receiving such evidence as the relator tillered, and which he
"alleges the Court had no legal right to refuse ; or, in other terms, the
"Court assumed the power of dispensing with such legal evidence as the
"relator bad a righi by law to introduce to show that he was not at thc
1 lime the tenant <-i the applicant, but that he had a right to retain bis
"possession by virtue of his tenancy to others." etc. "There is a with
"difference," says the Court, "between the different modes of bringing
"up cases for review and revision from inferior tribunals to Courts ol'
"superior jurisdiction; anti they ought not tobe confounded from a
"desire to do justice in one forum when it should be applied for in
".another. The true office of a writ of prohibition is, not to enable the
"superior Courts to correct more errors of judgment, as may bo done
"on motions of appeal-where appeals are allowed-or by a writ nf
"certiorari, but to restrain thc usurpations of inferior tribunals, and to
"compel them to observe the limits of their jurisdiction."
The same point is considered again in 4 Richardson, 514. Thc
State vs. Nathans. "The preliminary question which this case presents
is, whether prohibition is the proper remedy." The Court says: "The
"proper modo is by appeal, but where no appeal is given, then the
" injured party is without redress. :;: * * * The inferior Court
" had jurisdiction, and as the appeal will correct any error in the
"decision, ami is the appropriate remedy, tho writ of prohibition ought
" n il to have been granted."
Now, may it please the Court, if you were sitting here as a Court o?'
Sessions you could not grant this writ b vause .Judge Platt is coin ed >d
to have jurisdiction. 1 have read that clause of the constitution which
gives him exclusive jurisdiction in all similar cases. So .Judge Boozer
had jurisdiction over the case. Which of them have erred it is for
your Honors to decide; but that the error was an error of h.w. ami not a
defect of jurisdiction, is so clear, that it would be a waste of words to
press it upon your attention. There are a number of cases in thc Eng?
lish Courts to th" same effect, but it is unnecessary to cucumber your
notes by reference lo them.
1 now ask your Honors to take up the grounds which this suggestion
alleges, ami see how far they have been cleared of difficulty by the
argument I have just submitted. Tho first ground named in support
of the proposition that all the proceedings in the case tire irregular,
illegal and void is that "because the Act of 18G8, No. 42, only declares
..the manner' by which lands or the right td' way over lands may be
"taken, ami does not confer the right to take said lands or right of way."
Judge Platt certainly decided that paint one way or tlui-Othcr. lt lay
within his jurisdiction, and if he made a mistake it will be corrected;
but it is certainly no matter for prohibition.
The second ground is: "Because the right of way sought to he
" condemned in this case is a right of way granted by the State to the.
"South Carolina Railroad Company; that the lands sought to bc con
' " detuned are. lands obtained for the purposes of said road by purchase
?"untie.- powers tn that end given by the Legislature of thc State;
"and that in all cases, where, through the exercise td" the. right ol
" eminent domain it appears that one corporation claims tn invade the
"franchises of another corporation and appropriato them tn its own
.? use, it must appear that the authority for the exercise of this groat
" ?tower is given by the sovereign power, either in express terms or by
" necessary implication, and that no presumption nf such delegation ol
j " authority is derived from the privilege in a charter to construct a
j" road between certain termini."
j Now. I shall presently have occasion to show that the claim made by
i thc South Carolina Railroad Company, that the grant of this land to
j them by the State is one of their franchises or exclusive privileges, is a
j mistake in law. We are not asking to curtail any of the privileges ol
the South Carolina Railroad. We do not propose to take a thing from
them. Wc ata: simply asking to condemn a piece of land owned under
a qualified title. Whether we have a right to take that land or not, i.
u question of law; a question within the competency td' the Circuit
Court, and whichever wai/ the Circuit Court decide it we claim it is a
decision which that Court has a right to make and you cannot interfer?
1 with it by prohibition.
I may as well at ibis stage of the ease enter upan thc discussion ol
that point, which comes appropriately under my second proposition,
namely, th it the. South Carolina Railroad Company h ive no right tn
any preliminary trial. They have filed their bill in ? Court of Equity
: Y\ hen the case comes np there the Court will decide the question ; but
that they have a right tn a preliminary trial before Wi- enter up ni th'
land, we deny. Thc right nf eminent domain of the State can beyond
doubt ho exercised by the Legislature, ami when so exercised 1 sai,
there is an end td'ail question. That baily have a right to deal witl
the subit et matter nf eminent domain just as they pleas-', ami the dis
Unction I thaw is this, that whenever a railroad tn which is given :
cert lin amount til' hmd for a right nf way confines its operations withii
the limits of ?he line secured tn it by the Legislature in its charter
tim right of eminent dom lin has b ?on fully exercised on tint land, and
the railroad has an imqucstion lblo righi under it according to the law
of the State.
Mr. Just iee Willard-D> you mean that whore a right is given ii
i general terms any land is equally open between certain punts?
Mr. Meaiuiinger-Any huid on tho location, lu other wuds. 1
mean thu wh ni the comp my his once located its linc, all the land
within sixty-five feet ol'thu line, if such be thu limit, has been sub
jected tn the legisl nive exorcis ! nf the right nf eminent domain.
Mr. .Justice Willard-D.i you deny the jurisdiction of equity t:
determine that there is a mislocation; that is. taking int i account a
particular class nf property where obstruction was unnecessary?
Mr. Mcmmingcr- Ne. sir. Whit ! claim is. that as a gon ?.il rule,
ilhe preliminary trial is for the purpise of ascertaining whether tin
I right of eminent domain has boen exercised. And whenever a Rail?
road Company is given by th; Sin - lind within sixty-five feet of it
I lin.- ol' location the eminent domain is there exorcised, and n > furthoi
preliminary trial is necessary to enable that corporation to enter upan
such lind and pay its condemnation money. Why. whit isa prelimi?
nary trial for ? ls not the State th > prop-r interpretor ol' th . exorcist
ol' eminent tl mi lin ? Ami have you not under its act a clear, straight?
forward solution ol' the difficulty ? There is the ch trier, there is tin
hw. there are the sixty live feet given tn this company. If it b
shown that we an; ti ling some irreparable injury, that w mid constitute
lil special eise; hut if we are within the line provided by the statute
there is certainly ni reason fur a preliminary tlial. I refer ymir
Honors to decisions on this subject which, in my opinion, rom ?vc all the
difficulty in our path. The first is tho case of tho South Carolina
Railroad Company, li Richardson L. lt., 434. The South Carolina
Ita i I road Company changed its Incition and the Court determined tint
the only judge in the matter was the railroad company itself. The
tnt . reis m w is that the State had exercised its emili 'tit dom lin. They
decided in that ease without any preliminary trial tint tho Railroad
Company could take tho land. .Judge Wardlaw alone dissented. That
decision was unquestionably right. Thc nexl casewasth.il of HI ike
in 1> Richards m, ami what dui tho Court do th -re ? Did they overrule
< > j ? j ? .nheimV ease ?
Mr. Justico Willard-They did not exactly overrule it but ruled it
over.
Mr. Mcniminger-I road from Blake's case: "If thc Company
should have entered ?ind tho landowner should desire to controvert thc
j right of entry, because he denies that any of th : land is needed for any
I of tho uses which would justify it< bung taken, he may by action of
trespass, by bill for injunction, or by other suitable proceeding have n
trial of thc right, [f tho land should lie within ono hundred feet of
the track, and thc company should desire to hive the value fixed before
it proceeds with thc work, or to acquire an earlier or a bettor title thin
that which would be presumed uml 'r the hirty-sixth section of th ? Act
of 1835, tho presumption of necessity established by thal section would
prevent all question of right, where there had boen 110 previous con traci
defining a n irrowor sp ice. But where the parcel h more than one hun
tlreti feet from the track, or being within tim one hundred feet, is be
youd lite limits of a previous contract, .*nd tho company miking nppli
cation for assessment is mot by ?1 dental of its right, who shall judge
whether tho parcol is needed for any of tho prescribed uses?"
In other words, when you go within one hundred feet, there is to he
no trial of right, hut when you go outside ?d' one hundred feet who is
to he thc judge as to the necessity of tho pi md for any ol' the pro?
scribed uses ? Tho Legislature gave thc one hundred feet; the emi?
nent domain was exercised, and tho party could take tho land ; bul if
they wont outside ol'ono hundred feet then tho Court say you mav
aver what the law intended for thc road, and that question urns! be ad?
judicated by some Court.
Mr. deslice Willard-You would hardly draw the inference thal tho
South Carolina Railroad Company could to-day claim through the Citv
of Charleston a full ono hundred foci without tho question hising
raised as to the necessity of so doing? I hardly think thal that was
' the i ii ten tien of thc statute.
Mr. Moinuiingor-There ii is. to sp-ak for itself, and it isa just
principle. The Legislature in granting om hundred feet, settled the
question ?d' right, le.. its exercise of eminent domain. When von go
outside of that limit you must establish (he righi hy olle r means.
Mr. Justice Willard-If you construe tho sta ute strictly in regard
to one hundred feel, it se.-ms lo mc that the casi would be involved in
difficulty.
I Mr. Mennninger-Rut ile- Aol furnishes a principle we can work
j upon lt gives us thc law, and th ? great obj eel of ?ll law is lo lix a
J rule, lo make it ?dear ol' judicial or any other discretion ; lo administer
justice by certain well-defined rules. 1 Tero is a rnie that is plain and
palpable. There are reasons for it. and it can apply lo every case, es?
pecially lo IIK? ono wo are now considering, because your lion us will
seo plainly that (his m ilter o!' preliminary (ri d is really a matter which
concerns (he obstruction of our railroad, lt is only by enterprise, in?
dustry and perseverance ibu the Columbia and Augusta I (ail road
Company have been enabled to obtain credit enough to carry on their
work, and to impede lb.dr pr??gr 'ss at (his stage of (ho eas?' would prac?
tically injure th U credit and w uk an nmounl ol' injury which would re?
quire, perhaps, years lo repiir.
I coin" now to the third p .?ni. and say (bal even iftherc were such a
?(rial.and it was now in progivss before your li? mors, yon would have to
I give judgment for the Colombia and Augusta Riilroad Company, which
I is pressing nothing bul its rights, all hough (ho partie-, bv calling this
I one hundred feel a righi ol' way and franchise, have created a confusion
?d' ideas in (he case. This one hundred feet is land owned by them
under the statute. The Acl ol' 18:;:}. to be found in the S St ilutes,
IIS 1. says : .Thal in the absence of any contract, it sh ill b . presumed (bat
" the land upon which tho said road or any of its branches now is. or here
'. aller may be constructed, together with a space of ono hundred led
.. on each side of (he centre of said road or roads, has been granted to (he
" said company by (he owner or owners thereof; ami the said company
j *. shall have good right and title to the same, and shall have, hold and
"enjoy tho same, unto them and their successors, so long as the same
" may bo used only for the purposes of said road, and no longer."
Lithe case of Blake, Justice Wardlaw, after quoting thc foregoing
passago of thc Act ol' 1835, says : " Here is. in the absence ?d'? contract
?. defining a smaller space, a declaration ol' (he legislative judgment, that
.. one hundred feet on oaeh sole shall liol be considered excessive for the
.. uses of the road ; here is a saving of thc right of the owner to the rc
.. nriindcr, aller the purpose for which the prescribe?! space wis granted
.. has ?'eased lo require ii ; b oc is only a qualified fee vested in the
"company; and hore is a necessity imposed upai tho landowner ofac
" knowledging thc company's right to take by himself making appli?
cation for assessment, if he would not bc forever bured from both
'. laml and compensation."
Then, again, it is declared that this is ti bise fee. lt is so as long as
thal company uses it f??r thc purposes of the road, but no loiig?ir.
Now. may i( please your Honors, is (here n >( III express reservation
in the grantor nf that land, that he can use the land which is not used
by thc road? Independent of the right of ominen! domain, is it not a
condition that i!' 1. the State, grant you land to he used for the pur?
poses ?d' your road, and if you d > not so use it I am at liberty to enter
iipm the same when 1 pleas.?? Her.', now. for six and thirty years,
i the South Carolina Railroad Comp my have been in possession of this
land. They have never used a fo rt of it. They did liol disturb a
particle ol' the soil. There it lies and they will not need ii to (he day
?d' (bc inillcnium, although granted for purposes ol' (he road. Now,
may not the State confer up ?ii another corp iratioii tho right reserved to
itself in this exercise <.!' tho right ol' eminent domain? lt is n >t ( iking
away anything. It is merely using tint which has not boen used for the
same purpose. We have all travelled to and from Charleston fre?
quently, and seen two railroads, the Northeastern and South Carolina
Railroad lying side hy side, without disturbance; and whit possible
disturbance can they make unless they become belligerents?
Really, may it please the Court, il seems to nie that the South Caro?
lina Railroad has had its own way s > long-that it is impatient of con?
tradiction, and HIV friends ?ire astounded that Mr. Johnston should
propound any questions here whatever. Suppose they owned in fee
simple and absolute, does that ?-over their land as with an ir.'/fx? ls a
corporation protected differently from an individual? Vol their propo?
sition is that because they hold this property it is protected from con?
demnation. Suppose y?)lir Honors owned (li it road, and il had ?'onie to
i you through your ancestors for five hundred years, would it be free
i from condemnation ? Your Honors know that if I were to bringan
' action to try title, the first thing I would show would b . a grant from
i (In1 State, or something equivalen! (o it. Now they have only a grant
ol' a bise fee; yet my land, were it even a grant ol'a fee simple, eui be
i taken, while around theirs is thrown a shield.. That, surely, is not law,
. and it would be monstrous if it were so.
Rut 1 go further. I say that if that land were granted to (hem for
! their exclusive uso, which it is not, it is still subject to condemnation.
The other side have argued very justly, that when you go to take a
;" (liing for which an exclusive righi is given, you must show a grant
, j either express or implied. Now the p us ni who drew the Act of IStiS
i j seemed to bo advised of that law. lu the old law there was something
. I which gave th nm a claim to protection, ?uni lita! is precisely what
I the Act ?>i iSt'iS bas removed. The language is as plain as the sun in
s th?' heavens. The Ac! ?d' IStJS says: .. That no linds or r'ejrbt ?d' way
I "which hive heretofore, or may hereafter be procured for the consrfuc
,' " tion or use of any highway, sh ill be considered exempt from liability
i I .? to condemnation." The Legislature recognized tho law that where
- there ht an express grant, there must he legislative authority to inter
i 1?re willi it; hence this explicit and ?lear provision which repealed the
i lold law th it. has been cited and relied iq? m. Still the rights of corpo
. j rations under former statutes are respected, and parties are forbidden
I t?i iuvnd ' their privileges or destroy them ; for (be Act continu"- : " Pro
r j" vitia!, thal in the construction of such other highway there heno
I ''hindrance to tho use and enjoyment of the highway for which such
i i "lands or right ol'way were previously procured." Judge Platt, (herc
I fore, decided right. lie says to this party you claim to have an excep?
tion il case ; if so, thc Court of Chancery is tho place for you ; but I
[ shill go OH with the other branch of the case which cannot be tried in
- equity, ami shill ascertain wdiat. those lands are worth, and require you
I tender the am ?nut of compensation. I am really ni a loss to seo any
i eui;.- for inveighing against such a judgment. Could be say I will
t wail here quietly until Judge Boozer does certain things? No. But
I he says I will do what I have to do, and it shall stand subject bi what
\ m line claimed as an exception il case in the Court of Chancery,
. which will t ike cognizance of the milter ami end il. is liol thu what
? it ought to be? What is the hann d m . ? Why, lb .! we h ive entered
> forthe purp is" ol' construction. Now. I submit t > tim Court, that that
. statute recognizes tho distinction thal has always existed in our State
i with reference to ibis matter. We always distinguished bel ween the
? right of property and the righi tu enter for construction. In every
. charter np to the time the recen I constitution wis framed, railroad
? companies were authorized i ? ?oiler for the purp ?se of construction,
? and the question of compensation was left io b- subsequently dutcr
I mined. Hut entry for the purp is.. ?d' construction -.' ive no lille lo the
; land. Now, when the constitution was ratiliad. it was supposed thal ibis
i would work hardship upon tin- proprietors of the land. I h iv. a case
now ponding in Colleton District, involving an original entry of the
Savannah Railroad.
'fie- Chief Justin*-Rut die case ?d' Blake Ls not. deform i n (dj I pre?
sume you refer to th'lt.
Mr. Meinminger-Thal is the one I refer to. The constitution
cune in and said, before y??ll lippropriale you shall pay thu landholder.
Theil followed this Act No. 42, which provided thal there should be a
1 valuation by commissioners or a jury, and thai whatever verdie! they
returned, thc m in sy was to be p.iid subject to an ?pp -ai but in n > case
ol' au appeal w.i< tlu progress of tho work of ciiiistructioii i > bc slaved.
While the appeal was pending il was ?den- (he railroad could have no
title to thc laud, although the statute gave the pirty powor to cuter.
Formerly ii wa< unnecessary to pry th . m moy until tho lin d decree.
Now. \ submit lint is precisely what your Honor intended in your
decree, when in granting tho injunction you said: " li is ordered, thal a
: "writ ?d' injunction ?I > issue enjoining the defeudiiits, etc.. bul thal thc
. said wrii b' issued by tho Ciel!, of the Conn of Common Plea- for
Richland County, with liberty io th left ml mts tu move for tho disso
.. Itltion ?d' the injunction at any lime oeforc tho bearii"/ ?d' the case, on
"proof th it they have duly acquired lb" right to cuter for the purpose
' "of construction up m the premises."
i Your Honor drew the sam?' distinction which is recognized hythe
? law, ami. therefore, determined thal whatever delay there might bo, if
1 we could show thc right to ?uiter, the injunction would bo dissolved, lt
was n it possible to try that question until tho hearing of tho case, yet
. the injunction was allowed to bo dissolved before thc bearing, which T
. submit to your Honor was a wise decision, since it took away from the
parties the power to imp-de tho progress of this railroad by tho litigar