South Carolina Railroad v. Columbia & Augusta Railroad

Lesesne, Ch.
I concur in the opinion of the Court and orders, except as to the right of defendants to connect Hamburg, and Graniteville by their railroad. I do not think they have that right.

Per Curiam, Dunkin, Ch. J., Wardlaw, A. J., and Glover, J.,
concurring. It has come to the knowledge of this Court that, after the cause was heard and the motion for injunction pendente lite refused, the Columbia and Augusta Railroad Company, the defendants in this case, with previous notice of their intention given to the plaintiffs, the South Carolina Railroad Company, but without the consent of the plaintiffs and against their active resistance, effected a crossing of the South Carolina railroad about a mile from the depot of the plaintiffs in Columbia, and that that crossing has since been used by the defendants for *363transportation required in the construction of their road, and is essential to the successful progress of that construction. The Court is aware of the dangers which attend the ■crossing of one railroad by another, and feels bound, as far as it properly can, to guard against them. Whilst therefore it recognizes the abstract right of the defendants to cross, and affirms the decree of the Chancellor upon the questions considered by him, it will retain the bill and endeavor under it to fix the relative rights and duties of the parties in respect to the crossing, and also to settle all points of dispute between the parties connected with the main subjects, which have been brought under adjudication.

It is therefore ordered that, until a contrary order be made, the defendants shall be permitted to keep in good repair the crossing effected by them as aforesaid, and to use it with extraordinary care in subordination to the rights of the plaintiffs, in the proper enjoyment of their road and right of way, with due regard to the schedules of the plaintiffs and with responsibility for all damages that may come, directly or indirectly, from any misconduct or negligence of the defendants, their agents or employees, in regard to the said crossing.

It is further ordered, that it be referred to the Commissioner for Richland District, to inquire and report a permanent scheme for the crossing by the defendants, and at . their cost, of the railroad of plaintiffs, at the place where the crossing has been effected, as aforesaid; which report shall show how, under what plan, with what contrivances and according to whose judgment, it shall be arranged, under whose superintendence it shall continue, what regulations concerning it and its use shall be prescribed for the conduct of the parties respectively, with a view as well to the public interests as to the rights of the two parties; and what in respect to these particulars is the agreement of the *364parties, or, if there be no agreement between them, their ■ several propositions.

It is further ordered, that the said Commissioner do inquire and report what compensation, if any, shall be assessed in favor of the plaintiffs against the defendants, because of the crossing, temporary and permanent, above mentioned.

Moses and Dawkins, J. J.
We concur in the opinion of the Court and orders, except as to so much thereof as refers to the rights of defendants to construct their road from Graniteville to Hamburg. On that question we express no opinion, for reasons affecting us, not necessary to be here stated.

Inglis, A. J., dissenting.
Being of opinion that the Columbia and Augusta Railroad Company has the right, under its charter, in the construction of the road thereby authorized, to cross the track of the South - Carolina Railroad Company; that the' exercise of this right has been by the General Assembly subjected to no other than the single condition, necessarily implied, that the South Carolina Railroad Company shall not therein be disturbed, in the free and unobstructed use and enjoyment of its own road for the legitimate purposes of the business contemplated by its charter;' that this Court has no authority to impose upon the exercise of the right, terms and conditions, from which the General Assembly has left it exempt; that the case made by the pleadings and evidence in the Court below not only does not show any attempt or purpose of ■the defendant company to exercise this right in any other than a lawful manner, but does show the contrary, and that, *365if, for such use of the plaintiff company’s track and roadbed, as is necessary in effecting the crossing, and thereafter enjoying it for the defendant company’s legitimate purposes, or for any other, cause, any compensation is due, it can be obtained only in tbe mode prescribed in the defendants charter, I am compelled to dissent from so much of the judgment of'the Court as directs inquiry by the Master, with a view to such additional terms and conditions, and to a determination of the right and measure of compensation. I agree entirely with the Chancellor who heard the cause below, in his judgment touching those rights of the parties, plaintiff and defendant, which are necessarily involved in this controversy, under their respective charters, and concur in the judgment of this Court in so far as it affirms his decree in this behalf.

'Munro, J., and Carroll and Johnson, C. C., concurred with Inglis, A. J.

Decree affirmed.