Atlantic Coast Line R. Co. v. Baker, 131 S.E. 678

Atlantic Coast Line R. Co. v. Baker

131 S.E. 678 | S.C. | 1926

Lead Opinion

February 3, 1926. The opinion of the Court was delivered by This action is brought for the purpose of restraining the defendant from erecting a filling station upon land claimed *113 by the plaintiff as a part of its right of way. On hearing a rule to show cause why an injunction pendente lite should not be granted, Judge Dennis refused to grant the injunction and the plaintiff appealed.

An order was granted by a member of this Court, staying proceedings until the appeal could be heard. The plaintiff has a plain and adequate remedy at law to establish its casement. It does not allege that it needs the easement at present, and if the defendant owns the property, she would have a right to use it, subject to the easement, if the plaintiff has such easement, and until the plaintiff needs the easement.

It is true that the plaintiff was required to commence suit when the property was used antagonistic to its claim, but let the plaintiff establish its right on the law side of the Court. I am not in favor of government too much by injunction, and for this reason do not think the injunction should be granted.

Let the order of Judge Dennis be reported.

Affirmed.

MR. CHIEF JUSTICE GARY and MR. ACTING ASSOCIATE JUSTICE R.O. PURDY concur.

MESSRS. JUSTICES COTHRAN and MARION dissent.

Concurrence Opinion

I concur in the opinion of Mr. Justice Watts, solely for the reason that the plaintiff has a plain and adequate remedy at law to establish its right. Should the plaintiff, on such issues as may be raised, establish its right to the strip of land in question, either in fee or as having a right of way, the loss of the erection of a building of a permanent nature upon it will fall upon the defendant; and while the plaintiff has alleged that the defendant is insolvent and will not be able to respond in damages, the nature of the situation, as disclosed by the affidavit, does not show such a threatened irreparable injury as would warrant the granting of an injunctionpendente lite. *114

The order staying the proceedings should be dissolved, and the case heard on its merits.

Dissenting Opinion

It appearing that the action is for the sole purpose of an injunction and that a temporary injunction, that is, an injunction pendente lite is essential to the assertion and preservation of a legal right, if established as alleged in the complaint, it follows that the refusal of such injunction was error of law. Alderman v.Wilson, 48 S.E., 85; 69 S.C. 156. Lumber Co. v. Tilghman,55 S.E., 337; 75 S.C. 221. Ragsdale v. R. Co.,38 S.E., 609; 60 S.C. 681. Jones v. Atlantic Coast L. Corp.,75 S.E., 698; 92 S.C. 418. Strom v. American Co., 20 S.E., 16; 42 S.C. 101. Seabrook v. Mostowitz, 29 S.E., 202; 51 S.C. 434. Cudd v. Calvert, 32 S.E., 503; 54 S.C. 457.Darlington Oil Co. v. Ice Co., 40 S.E., 169; 62 S.C. 196.Riley v. Union Station, 45 S.E., 149; 67 S.C. 84.Childs v. City, 70 S.E., 296; 87 S.C. 566; 34 L.R.A. (N.S.), 542.

The Reporter will append the statement in the case, the complaint, the order of Judge Dennis, and the exceptions.

The judgment of this Court should be that the order appealed from the reversed.

MR. JUSTICE MARION concurs.