141 S.E. 108 | S.C. | 1928
January 4, 1928. The opinion of the Court was delivered by This action on the part of the plaintiff, Isaac E. Emerson, was commenced June, 1927, in the Court of Common Pleas for Georgetown County, against the defendants, Harold Kaminski, John J. Young, George F. Parker, J. Harry Gladson, John E. Harrelson, John T. Howard, and Frank J. Byrd, members of and constituting the Board of County Commissioners of Georgetown County, and Harold Kaminski, as chairman of the Board of County Commissioners of Georgetown County, for the sole purpose of enjoining and restraining the defendants from attempting and proceeding to condemn a right of way for a public road over and through the lands of the plaintiff. The plaintiff alleges in his complaint that he is a resident of the City of Baltimore, Md., and is a large landowner and taxpayer of the County of Georgetown, State of South Carolina; that he owns a plantation in Georgetown County, known as Rose Hill plantation, situate, lying, and being between Waccamaw River and the Atlantic Ocean, which plantation, according to the allegations in plaintiff's complaint, is used as a winter home by the plaintiff, "on the upkeep and care of which plaintiff has expended large sums of money for the past several years." Plaintiff further alleges that the defendants, constituting the board of County Commissioners of Georgetown County, on the 30th of May, 1927, caused to be served on the plaintiff a notice of condemnation on said property of the plaintiff, by which the plaintiff was notified of the intention of the defendants, as the Board of County Commissioners, to condemn a portion *48 of plaintiff's said plantation as a right of way for a public highway, described fully in the notice attached to the complaint. The plaintiff further alleges, on information and belief, that it was the intention of the defendants to operate a ferryboat from the City of Georgetown to connect with the western terminal of the right of way that the defendants proposed to condemn, and that the ultimate purpose of the said County Commissioners is to establish transportation connection between the City of Georgetown and Pawley's Island, and further, that the defendants, as the Board of County Commissioners, are about to operate a ferryboat between the City of Georgetown and a point on the Waccamaw River, known as Hagley, and that there is now an excellent highway maintained by the County of Georgetown between Hagley and Pawley's Island. The plaintiff, further, contends that the defendants in the attempted condemnation proceeding are abusing their discretion, acting in bad faith, oppressively, and illegally, in a number of particulars set forth in the complaint; that he will suffer irreparable injury if the defendants are permitted to proceed to condemn the said right of way through plaintiff's said land, and will sustain great damage, and further, that plaintiff has no adequate remedy at law.
Upon the showing made by the plaintiff, his Honor, Judge Shipp, issued an order restraining the defendants as to the matters set forth in plaintiff's complaint, pending the further order of the Court, and directed them to show cause before him why they should not be perpetually restrained and prohibited from any further action in the said condemnation proceedings.
The defendants filed a verified answer to the complaint, and interposed a demurrer, and by way of return to the rule issued, and on motion to dissolve the temporary injunction, the defendants adopted the affidavits and pleadings served on plaintiff's attorneys. The plaintiff filed reply affidavits, *49 and the matter was heard by his Honor, Judge Shipp, on the pleadings and numerous affidavits in the cause, served on behalf of plaintiff and defendants.
After a full hearing, his Honor, Judge Shipp, issued an order dissolving the temporary restraining order which he had issued. From this order of Judge Shipp the plaintiff has appealed to this Court.
The plaintiff's exceptions, consisting of five in number, will not be considered separately, but as a whole, for, as stated by counsel for appellant, the exceptions raise but one question, namely, "Did his Honor, Judge Shipp, err in dissolving the restraining order and in refusing to grant a temporary injunction pending the hearing on the merits?"
Appellant states his position thus:
"Plaintiff does not contend that the defendants have no right to condemn a right of way through his property, but he contends that the action of the defendants in attempting to condemn and establish a right of way through his property at the place located by them constitutes an abuse of their discretion, and that they are acting in bad faith, oppressively, and illegally, and are actuated by ulterior motives. Under the complaint, plaintiff would be entitled to the relief sought upon proof that the defendants were abusing their discretion, or were acting in bad faith, or oppressively, or illegally."
The respondents, in accord with their answer and affidavits served in the cause, contend that the record fails to disclose any abuse of discretion, any bad faith, or ulterior motive, or that they were actuated by any wrongful intent, or that they have acted oppressively or illegally; that, on the other hand, they (the defendants) have acted with an honest purpose and best intention, with a desire to construct a highway for the use of the people of their County, and especially to afford a means of travel and transportation for the citizens and taxpayers of Georgetown County residing in that section *50 of the County known as Waccamaw Neck, being Township No. 7, and afford them a means of reaching the County seat of the County of Georgetown by traveling a distance of about 1 7/8 miles, whereas at present, in order to reach the County seat of this County, they would have to travel by way of Conway, the County seat of Horry County, many miles distant; that this section of the County the proposed road would open up is a rich farming section, rapidly being developed, and the needs of the citizens and taxpayers of that section demand such highway being constructed, and that this proposed highway would afford the much-needed means for transportation, not only for the citizens residing in the section known as Waccamaw Neck, but would benefit a much larger area of the County, and thus enable the County to go forward with its progressive program launched. Such, in brief, is the position of the respondents.
It would serve no useful purpose to enter into a discussion of the merit, force, and effect of the many and lengthy affidavits in the record. Judge Shipp had these affidavits before him, and after a consideration of the same, in connection with the verified complaint and answer, reached the conclusion that they did not support the charges made against the respondents, and thereupon dissolved the temporary restraining order issued by him. In this we think Judge Shipp was right. As we view the case, the showing made by the plaintiff does not entitle him to the relief asked for. The authority of the defendants to institute condemnation proceedings for the purpose of procuring a right of way over and through plaintiff's lands for the proposed highway is not questioned. Neither is there any irregularity in such proceedings shown or alleged; and, after a careful examination of the record in the case, we are unable to find support for the allegations of abuse of discretion, bad faith, oppression, and illegality on the part of the defendants with respect to the necessity or location of the proposed road. Further, *51 it is plain that the plaintiff has an adequate remedy at law for the alleged injury and any damages he may sustain.
The exceptions are therefore overruled. Let the complaint, answer, demurrer, orders of Judge Shipp, and the exceptions be reported.
It is the judgment of this Court that the order of his Honor Judge Shipp appealed from, be, and the same is hereby, affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, BLEASE and STABLER concur.
