Newspaper Page Text
Mr. Magrath-I do not wish to discuss any olker thau the
w"^S?Ppo1ym tms'case; and it?'relation to it I saya question of
^drancerinvoives the ascertainment of facts, which depend on
S|D;th.e precedent.established by Chancellors of the highest
^puie,.'ti^t. they will generally direct an issue for the trial of
' such'questions in a Court of law competent td decide them.
i(' I come now to look at the charier of thc Columbia and.
Augusta Railroad Company, for it is there that wc find what
^pow?rj'have been given to it. And I desire to call your atten
^ftonto .this-pomf: that by the. Act of 1858, (12 Stat., 596,) this
ut4 coloration is formed for the construction of ? railroaa "on
.K'?A? rhpst practicable routfi, from sonie point in or near the City of
^Columbia, td. the Savanah .River, at or near the Town of Ha m -
'^Durg," etc. In iS63,7^b.eu that^ charter was amended, the
' wm-ds, 'V on t?is'most .practicable route," were omitted, and " as
?^s0t\w^ as VMLti.be practicable" were inserted instead. ;
/^j ^Byt^e. eighteenth section of the charter of 1863 it was pro
. v?d?d : "Thatsaid company shall have the right, when uccessary,
'j',.^ conduct the said road across or along any public road or
.^.^ter coursej. provided said company shall not obstruct any
pnj^e. road without cpns?'ucting another equally as good and as
* i i?&?wffi$ ?te. i.
^ ,rr.SeQtipn 20; ." In the absence of any contract, etc., it shall be
?^tesu^ed. that'ihe land upon which the road may bo constructed
^mthltlie 'space pf sixty-five'feet on each side of the centre of the
.V^aa^lba8'heen.?r?nted.to the company." .
J % ' Septiori 21: ""All. lands not heretofore granted nor appropriated
"*,;Dy taw'tp the .^use of tho "State, within sixty-five feet of the
'^oenfre'of the road/shall vest in tho company." Any grant of I
T?ke'i?Qide] thereafter." shall bc void."
*' .^pw,',may'it please the Court, we submit that the answer to
? the dlaim of the Columbia and Augusta Railroad Company is
iouiid. in its own charter. It will be observed, that according
.j., tbrthe ^amended Act of 1863, there ?3 no location marked, but
j.$he- po-wer to construct is given as between termini only. There
is nd~pxj>ress language nor clear intent of the Legislature to
"delegate to.it without qualification the exercise of eminent
domain, fortunately, for us, the extent of the powers of a
railroad where its termini simply are^given, is a ques.ion that
, 'has passed into legal adjudication, as J. shall presently t.how. j
The. eighteenth section gives the right when necessary to
conduct said road across or along any public road or water
"course; and the twontv-first section, restricts the corporation
frpio acclaim upon any land which has been heretofore appropri
]!>?ted by'thie law to the'use of the State.
N Judge "Wiilard~Is not that clause understood as a virtual
proprietary grant of the State of all lands not otherwise appro?
,"Mr. Magrath-Be It so; but remember that that which is
claimed is that which has been already appropriated. What
i'.ever land a corporation is authorized by charter to take from
? an, individual, ia accepted thenceforth as land appropriated by?
law to the."use pf the State. The Columbia and Augusta Raii
;r?ad Company, however, uiaim that under a general grant or
/..authority to construct a road between certain termini, a righi
Ija.gryei?.to appropriate to itself lands which had been already
..appropriated by law to another corporation: and, theroicre, ??
?uoh to the use of the State. In other words the Columbia an-"*
^.^ugusta Railroad Company claim, what its charter especially
excludes it from claiming.
''^ And now 1 wish to bring directly to your notice the grant
of,the right of way. to the Columbia and Augusta Jfoflroad
J^ompakj for sixty-five feet I submit, that whon a corpo?
ration .goes before the Legislature of South Carolina, asks a
' charter to oonstruct, a.. railroad, and obtains the right to take
sixty-five feet from the oentre of the road, that is a circum?
stance^ which every Court will consider in determining the
question of* the intent of the Legislature as io tho location and
direction of the road. And when the General Assembly of
. this State gave the Columbia and Augusta Railroad Company
th&.power to construct their line, and to take sixty-five feet on
each side of the centre of their road, at the same time declaring
it shall take no property or lands already appropriated to thc
'use of the State; it is not within the power ot that corporation
to say, it will take but twenty feet ; and by that procure the
use of a line upon which it could not go with its grant
of sixty-five feet. Its charter is a oontract between-the State
"and corporation, and the latter could not place the road upon
any. land it was not expressly authorized to take. The
right to locate the road carried with it tho right to sixty?
. flvjo'ieet on eaph side of its centre ; and the right to sixty-five
feet would give the right to tear up the roadbed itself of the
South Carolina Railroad Company. "Wherever the Columbia
and Augusta Railroad Company can locate its line, there its
charter gives it. sixty-five feet from its centre. And if Judge
. Platt'has power to locate the' line of that road, he has no power
to .deny to that corporation any right incident to that lino which
the charter gives. If he has power to locate the line npon the
right , of way of the South Carolina Railroad, it can only be
because it is the right of the Columbia and Augusta Railroad
to have there its line ; and if such is its right, Le cannot iL: a
limit greater than its charter provides.
Your; Honors, haye bad read to you the bill filed bv the
Sou%^Cai*olina .Railroad Company in the case that was before
..?hMip?llor Carroll, jbr the purpose of sho wing that this line was
in controversy in that bill; but the counsel on the other 6ide
i Sayehpt read to you the Answer of the Columbia and Augusta
Railroad Company denying that it was in controversy. Per
mit me to supply tho omission. I read now from the Answer of
the Columbia and, Augusta.Railroad Company:
"Further these d?tendants say and admit that they have
.'/laid ont the line of track,' extending from a point on the
. ?^?harlotte and South Carolina Railroad, within the city limits
^""oX?olumJbia, through the Town of Hamburg, to a point on the
" Georgia .Ba?rpad within the city limits of Augusta. They
"St^te that, the first surveys of said line were made as early
' "^the spring and summer of 1854, under a charter granted by
,c".the Act pf. the General Assembly, ratified on the 20th day of
?8December. A. D. 1853J;but which was repealed by the Act of j
''.the Assemby hereinbefore referred to, ratified on the 21st day
-' of December,-A. JD. 1858, and that the surveys of the present
Vline now being worked upon, were made as early as the fall of
" the year 1863. They admit that they have commenced the
" work of . constructing their railroad track, having commenced
." the grading in the tall of 1863, at Graniieville, near the line of
, "the.railroad of complainants, which connects Charleston and
"Hamburg, and subsequently at sundry points along thi3 line,
"and that they have continued to werk on the same ever since,
.'-(except during a few weeks next after the march of Gen.
german's army through the State.)
. "They admit that they art prcising turwai d the completion of their said road ; that
?the griding of their roadbed has bees nearly wholly ci mulcted throughout the entire
" extant of the load; that they are now constructing ana have nort completed o costly
''bridge of stone and iron across tho Cougaree. * - They also admit that tte traek
"of their railroad in .passing between thc points from and to which tho same is au
" thorized to be constructed, does pass over tbe track and lands of the South Carolina
"Railroad Company, and the same must of tteeemsity pass over the said track or over
"the track of tho tireen ville and Columbia Railroad Company.
. "Purthor answering, those dcleudar .s deny that the timur granted to them by the
"General Assembly, does in any manner impair the obligation of any contract made
"between the State of South Carolina and the complainants ; they deny that the
"rights, power* and privileges granted in thc charter to these defendants are in any
"wanner hwonsistentwith, repugnant to, or in derogation of the rights, powers and
"privileges vested ia the complainants, under and by virtue uf the Acts of thc General
"Aimmtity' referred to; they deny that the projected track of the Columbia and Au?
sgast? Railroad connects points already connected ly any railroad of the oomplain
* 'ant* which is projected by, or as to which the prohib.tion mentioned in thc obartor ol
"the complainants, or in any of the amendments or alterations thereto applied. * *
w* . . * And these defendants aver thu: in nothing which they nave already
"dose towards the construction of their contemplated railroad, and in nothing which
"they propose to do, or whioh in any event will bc necessary to bc done in rct'ercnoe
".thereto, will there be any interference with, or inf ting ment of Ute chartered right*,
"potoere and privileges belonging to the complainant*, or aug obitruction in die Juli
''enjoyment-by the ootnplaxnam* of their right of uxig, or of any oilier franchise or exclu
" tin privilege, granted to orpoweetud by them."
Thus they said that thoy did not intend to invade any corporate right,
franchise, or privilege of the South Carolina Railroad Company, and wero
believed; tor .Chancellor Carroll says, in his decree, they did not intend to
do ?o; and yet they now come into Court and ?av that what was chwed
-upon them was true; that what they declared,"was'not true; and that
although they induced the Chancellor to decree to the contrary, they did
intend to do what was alleged ; what they denied ; and what the Chancellor
said they did nrt intend.
In that oase reported in 13 Richardson, the Chancellor says, in express
terms : The corporate rights of th? plaintiffs, as deiived by the charter,
willmot be invaded by the projected road ot the defendants"." Yet your
Honors have listened to labored argument 'JU prove tliut they did intend 6o
io invade; that they had tbe right so to invade ; and that the Court alarmed
such right. To this bold assumption one ol' your Honors bus already given
rebuke : which, if it has been unheeded, may now with great propriety be
"An examination of the case," says Mr. Justice Willard, " in conjunc
" tion with the pleadings in the case, shows that the exact questions drawn
"in issue in that ease,-were-first, the right ot' the d?tendants to connect
M Columbia and Hamburg by a railroad ; second, the right to connect Gtan
"iUville and Hamburg by buch means of communication ; and third, their
" right to cross complainauts' traek near Columbia. The necessity or rijjht
? of laying defendants' ri?ht of way over that ol' the complainants, or over
"any landa ooutrolled by inem, except as involved in the right of crossing
it complainants' track near Columbia, was not presented in the pleadings,
"or considered by the Court -Waite the general-looation of the defei
" dante' lino in its bearings upon the complainants' claim to an exclugn
,l privilego was considered, its precise and definite location, as interferiD
" witn their proprietary rights, does not appear to have been before th
" Court, except in it* relation to the crossing near Columbia."
And; so it is. Ko other question was raised than as stated by Judj
Willard in bis synopsis of the case. "Where, then, ia their charter, is tl
power ol' the Colutnuiu and Augusta Railroad Company to enter-upon i
present claim? Ko where, and it never did venture to make that claii
until the p&?age of the Act of 1868, p.nd the particular section eight 1
which I have so olten adverted.
We have now reached a stags of the argument where lt appears estai
lished beyond successful contradiction,' that there has been' no adjudicatio
by any Court of the question of proprietary right as between these corpi
rations : that it is still open aud undecided ; that the presumptions of a rigl
in the Columbia and Augusta Kailroad Company to invade the propriet?r
rights of ihe South Carolina. Kailroad Company, are not sustained by tb
express language of the Legislature or any implication--; but, notwitl
standing this, that these rights have been drawn in question in othe
Courts without being there dooided ; and because of their failure to exerois
proper jurisdiction, are now likely to be.lost, unless this Court arrests a
further proceedings by prohibition, and brings the" case back to itt prop*
I hav brought before the Court the charter of ' the Columbia an
Augusta Kailroad Company ; the admissions- of that corporation ; and th
Act No. 42. I will now proceed to. show you what has been adjudged i
cases of acknowledged authority, in which like question? haye arisen. -
In the case of the While iii ver Turnpike Company vs. Vermont Centn
Railroad Company, (American Railway Cases, 1, 288 ; 21 Vermont Li., 690;
" Defendants' Act ol incorporation does not tn'terma empower them to la
" out their, road along, etc., but. to construct it from some point * : * *
? to a point.. But lt not being shown that there was any othe
"practicable route, or that the route adopted waa unsuitable or improper^ w
'" think it is to be taken that the road waa properly located ia the valley t
" White River ; and from the evidence it must also be taken thut it wu
M located in the proper place in that valley, unless Us location has irivade
"the legal rights of the plainUjf.'} (The question here was of a highway
the charter imving givwn a right " to cross any stream, road or way,
etc., and power to thu company to construct their road, across or upon th
same.) And the Court tuen added that which would seem too plain lc
urgument, but which in this casa has been unheeded, that "some triDunal i
a question of right must necessarily be provided."
In the case of me Booton Water Power Company vs. Boston and Woi
cester Railroad Company, (1 Amer. B. cases, 2t?tf, ?8 Pick. R., 8b0, p. 828.
"Supposing the Legislature ha* a full and constitutional authority to poe
" an Act empowenug defendants to lay out their railroad over tho lan
? v od by piuintitfe, nave they in /act granted Hu power f This must dc
" pend upon the construction of the Act of incorporation applied to tb
S" subject, matter both ol tho contemplated railroad and the existing works o
?? the plaintill's. lt ia, therefore, a question bearing upon the presumed es
" tent of the Legislature. Il may be fairly argued that though there is n
" limitation of the power of the corporation in terms, still, if Uu Legit
" tature had already appropriated a portion af th? landa lying between ih
"termini io another important public use; and especially if the constru?
" lion contended for, would wholly or in a- great degree, defea
>< such other important public use, it is not to be presumed that the Legis
" lature meant mus to extend the power, and BO a limitation might be eu
" g.'btted by reasonuble and necessary implication upon the generality c
? the Act. . .
P. 82u : "So if a power were given in general terms to lay out a turnpik
M or railroad between termim definitely expressed, such general powe
.j ou^ht not to be so construed as to take an arsenal, fort, State house o
" laud already appropriated to a highly important public use, which woul
11 be defeated by such construction. It would be a question of legislativ
.' intent, and it could not be presumed that the Legislature intended tha
" tnt cowar conferred by them should have suoa an effect, unless it wer
" uuoquivocally expressed."
So in tue carie oi th? inhabitants of Springfield vs. Connecticut Rive
Railroad Cocnoany (1 Amanean R. casca, 572, i Cuan. R., OS:) ?'As n
?? company or perdus huve authority to lay out a railroad, except so far a
" such power :a eonftrred by the Legislature, the Court are of opinion tba
" by a grant of power by a legislative act to lay out a r?ilroud betwee:
1 " certain termini, wilora the precise course and direction are not proscribe!
' " but left to thc corporation to be located between the termim, no authorit,
I 4 is given prima jacte to lay such railroad on and along au existing publi
1 highway, longitudinally ; or, in other words, to take the roadbed of euc,
" highway as tn?track of their railway; * * * * * the two uses ar
u almost, if not wholly inconsistent with each other. * * * * Had i
" been intended that railroad companies, under a general grant should hav
" power to lay a railroad Over - highway longitudinally, whioh ordinaril;
" is not necessary, we thinir. that would have been done in express termi
II accompanied with fuli legislativo provisions for maintaining such bar
" riers and modes of separation as would tend to make the use of the sam
" road for both modes of travel, consirteut with the safety of the traveller
" on both. The absence of any such provision affords a strong in:erenc
" thut under general terms, it was not intended such a power should b
Again nt pi 679 : " But when iff is the intention of the Legislature t
II grant a power to take land already approi Hated, to another public wt
" such intention must be shown by express wc. .A or by neoestary implica
au ut page 680 : " In tho present case lt it manifest that there are n
? words in the Act which give the d?tendants authority. * * * If the;
?< have the power, it niu.-t arise ?rom tho application of the Act to tu
" subject mutter, so Unit the railroad could not by re* onable lntendmen
" be laid on any other line. * * * If, to the minds of reasonable mej
" oonversant with the subject, another line could have been adopted be
" tween the termini without taking the highwuy, reasonably sufficient t
? accommodate ult the interests concerned, unu to accomplish the objeot
" for which the grunt WHS made, then there was no such necessity us u
u warrant the presumption that the Legislature intended to authorize tb
u taking of the highwuy."
So at p. 6S0 : " Whether tho laying of this railroad over Front street wa
" uecessary-that is, reasonably necessary, in order to accomplish the o bj ec
II contemplated by the Legislature depends upon the application of the Ac
" to the localities ; and thu wurrunts and requires evidence to establish, th;
" facts." (in this case it wu? referred to three commissioners of skill ant
experience to report.)
Aguiii, in I'hutcher vs. Dartmouth Bridge, (18 Pickering R., 601.) "i
corporation is not authorized to take privute property without -the consent o
the owner unless it appears by express words or necessary implication. 1
is not lo be presumed that such u power was intended to be granted unlea
the intent to do so can be clearly discovered in the Act itself."
Your Honors cleurJy see how, with any regard to the precedents thus es?
tablished, Judge Platt and Judge Boozer hau within their power the adop?
tion of proceedings which would secure all rights of ell parlies; willi'
out pr?judice to any. In the case of the ?emp. vs. the London anc
Brighton Kuilroad Company, 1 Rog. R. and C. cases, at p. 871, th?
Lord Chancellor says : " Jiy only duty is to ascertain what are the lega
and cquitubla rights of the parties. 1 am not called upon to point out u
the company the must convenient mode ol' executing the works and exercis?
ing the powers which the Act of Parliament has sanctioned. It appears tc
me thut the situution in which the V. Chancellor's order leaves the matte:
is most injurious to both parties : for instance the company are lett in the
dark as lo what may be the construction of their parliamentary powers, and
they muy go on und iinish Uie new road according to their own views of th?
Act, und incur uh the necessary expense, without any" clue or notion whether,
wLen it is finished, it will be a sufficient substitution for the old road. On
tbe'othur hand, tho plaintiff may then hud that it is not in his power tc
apply for thu intervention of the Court in sufficient time to raise the ques?
tion whether he is or is not entitled to the protection of tho Court When?
ever the company are ia a condition to deul with the present road, their pro?
ceedings will, no doubt, be so rapid, that before this Cou?t could interpose,
the road will huve lost its original character, and be in a state rendering it
impossible to restore it to its onginul condition. * * * I am told thal
there are other modes of proceeding-other remedies which thc pluintitf may
adopt, and therefore it is submitted to me that this Court ought to refuse tu
exercise its j urisdicuon. !\ ow i consider that there cannot be a more useful
exercise of the jurisdiction of the Court than in interfering to ascertain the
rights between parties circumstanced as in this case. 1 look at the great
powers which ure ncces&uily given io those ooinpanies: the vuriety of in?
terests '??*h which tho*e powers may interfere, if not strictly exercised
according to the provisions of tho Ad: the necessity of immedmto interpo?
sition: tiie injury to both parties if there be not a jurisdiction constantly
open by which their respective rights may bo ascertained ; and then it
appears tome that this is, ol all others, a situation of things in which this
Court ought to exercise that jurisdiction. w * The course I.havo alwuys
adopted ia cases where tue question turns upon a legal right, is to put the
parties io a situation to try as quickly os possible that legal right ; and to proUct
the property to bc aJlocted uutii tho logai right be ascertained. * * I have no
power, and if I had 1 should not exercise it, to deprive one 'party of what he ls
entitled to, beoause it ls inconreniont to another party. Tho aouipany may or may
not have taken proper measures to cecuro to themselves those powers whioh are
necessary for the ?alie of convenience in carrying their works into atteot.: if they have
not, it is their ?niriortun*. These companies procure ample powers to be bestowed
upon them ; but it not unfrequently huppens that in the course of new works they
find they Lavo not powers sulhuent ior ponocting all they contemplated. WLen that
is the case they must either mako what bargain thoy oan irita tho persons whose
:'guts are adverse to them; or they must apply again to Parliament to have their
powers enlarged. 1 do not sit in this Court to enlarge those powers, but to keep
ooth parlies within tho htaits which the Legislature has prescribed."
So too in Weou M. Tho Manchester and Leeds R. K. Go., 1 Rng. C. and R. oases, p.
.13?. Thc Lord Chancellor says : " It ia extremely important to watch over tho in?
terests of those whose propony is oiTooted by these companies, to tako caro that the
company sholl not, by aay misrepresentation they may moko, (if they have made
any,; oe permitted to exerciso powers beyond those which the Aot of Parliament
gives them. Th? powers given to these oompaniea are so large and frequently co
injurious to the interests ol individuals, that 1 think it is the duty of every Court to
keep them most strictly within thoso powers : and if there be any reasonable doubt
as to the extent of their powers, they must go elsewhere and get enlarged powers;
but they will get none from mc, by way ol' coustruotion of the Act."
With a vory slight variation of terms and no ohaage whatever in spirit, the Lord
Chancellor there recognized the same condition of things which exists here. But in
the some way that thu Columbia and Augusta Railroad Company, while waiting the
decision of the Chancellor, dotcrmiued to cross tho track at Columbia; in the same
way that while the motion for injunction waa pending before Mr. Justice Willard,
they increased their force and pressed forward their undertaking; so will that cor?
poration continue to operate; and if protection is not giren to those rights whioh
are now presented before your Honors, clear, positive and well defined bylaw; when
the time oomea in which they ore to be established, as they must be, by the deoisiou
of soma Court of competent jurisdiction, they win not be worth the breath wasted in
When your Honors are told that delays ore sought by us for the purpose of killing
off this enterprise in its very cradle-where is the proof? Did we not pray Judge
Platt to order a jury at ibu earliest moment for th? thal of tho case? Have we not
asked to be allowed to come to a trial before Judge Booler on thc merits of the case;
and let the controversy be settled ? How have we been met? On the motion before
Judge Willard xor a preliminary injunction, ho overruled tho plea in bar interposed
by the Columbia and Augusta Kailroad Company; but the plea in bar still stands
upon the record. When wo go before Judgo Boozer, it is urged upon him that the
question is not to bc decided upon its merits, but upon the edooc of Ute ordor of Judge
flatt; rejecting from that order every qualification which Judge Platt had inserted.
If, upon thc hearing ol tho bill, thc plea shall bc overruled, then will come time
to answer; and thus^it is that months must elapse before the merits of the case can
oe heard. In the meanwhile tue Courts aUow tne work to go on, end we are charged
with impeding, and in a captious spirit, the progress of me work, while there has
been no impediment which ingenuity can suggest, that has not been interposed to
?ive time to this corporation to complete the work of construction, and escape from
the discussion and decision of its right to have what it claims.
What did the Lord Chancellor do in th: case of the London and Brighton Kailroad
Company ? " My predecessors have established (he said) the authority of thia Court
to interfere in these oases, and I eertaUJy feel it my duty not to repudiate a juris
i diction, the cxerciso of whioh I believe to be most essential to the interests of tl
j numberless persons who aro in some way or other affected by these groat' wort
which aro now so universally being carried on throughout the country. I have onl
thorefore, to oonsidcr what aro the legal and equitable rights of the parties."
Your Honors seo in tho papers bofo re yon bow this course submitted to Jud/
Boozer, well and wisely to adopt, was deliberately ignored-the precedent, in lil
casos^of the ablest. Judges iu the United States.and Great Britain, bot in the sligh
cst degree regarded; and by his dissolution of.the injunction granted by Mr. J. Wi
' lard, this corporation is now occupying soil, their right to which has sot been dete
mined. The ordorOf Mr. Justice Willard, granted upoit a full view of tho aase, ac
after consideration of the large questions of equity and legal rights involved, hi
been interpreted by Judge Boozer, and most improperly so, as confined to a narro:
isolated, single point : and by making the proceedings in Aiken and proceedings b
fore him dovetail with each other, in a manner that we are bound to be li ero cou!
never haye been intended by Judge Platt, because plainly contradicted by tbe lei
guage of Judge Platt ; a result has been attained that could not have been reache
by a fair application cf legal principles to all the questions between these corpori
uons by any other tribunal in the State.
. In this co era oo t iou, I o ann ot pass over a caso which I submitted to Mr. Ju
tice Willard in the argument before him, and which really puts the matter i
issue so strongly before the Court, and pr?sents so plainly the proper conduct of n
Courts in like casos-that comment is unnecessary. I refer to the case of the Mai
chester IL Company cs. the Great Northern R. Company, reported in 12 English La
and Equity Reports, p. 216. In that case two Acts of Parliament gave two differ?
companies the right to purchase compulsorily the same plat of land. The compan
junior in date, obtained the land and built their road. The company senior in dal
olaimed its right, and gave notioo of their intention to summon a jury to assess tl
purchase money and compensation for the land in question. Upon application 1
thc V. Chancellor, an injunction was ordered until the opinion of a*Court of La
could be had upon a question of low "of no little consequence : what is the effect <
two Acts of Parliament relating to a special subject and conferring thc sams right o
different parties ?" * * * " It is no light matter to chango or interfere with th? is j;
possession in a case of this nature." The same question is in this casa. Here als
are conflicting olaims under an Aot of the Legislatofo. ' Here is an a '"chango," and
claim to intorfero?with " the logal possession. 'But it is considered a "light matter.
May it please your Honors,1 a ease cannot be found where a railroad or any o th,
corporation ' has been authorized to proceed with its work pending the questlo
whether it bad a right to do so.
The counsel on tho other side say they do not ask your Honors to do anythini
only that they may not bo restrained from finishing their road, and they will ar
counter al' the poriL Why it is the first time In my knowledge since the proposltlo
- tras m.^o-ro tbe Lord Chancellor of England and rebuked by him, that in a pat
before a bonsh of Judges; before tho question of legal rights is determined ; the
should wink at a trespass ; by negation empower a corporation to go to work upo
"tho land of another; and reserve the decision as to its right to do so until son
future time. The proposition then was considered to deserve the.rebuke which !
But I come to the last point I intend to make before your Honors, and that is.thc
without a show of legal authority, these proceedings have reached a stage where th
right? of the South Carolina Railroad Company are not only endangered, but; may I
lost, unless this Court interferes and protects them. A jury- has been impanelled uz
der an order , most extraordinary, because most unquestionably in direct oonflU
with the constitution. In Act li, Section 3, the constitution declares, "no right <
way shall be appropriated Td the ase of any corporation until full compensatio
therefor shall be first made, * * which compensation shall bo ascertained by
jury of t..v&lvo men, m a Court of Record, as shall be prescribed by law." Has th
compensation boen so ascertained? Was Judge Platt in his Chambers, a Court <
Record? Was the jury as impanelled a Court of Record? Is tho constitution
law ? . ' .
By a-jury of twolve men, not "in a Court of Rec-rd," drawn by order of Jucbj
Platt, In Cniaimbers, by tho Clerk of the Court in vacation, an amount of oompens;
tion has bisen' assessed. And this is said to be according to law I
What will be the result unless there is an interference by your Honors ? The A<
?oys " that, upon the payment of the compensation thus ascertained by a jury, tl
" right of way over said lands, or the use of said lands for tho purposes for wbic
" the same were required, shall vest in the person or corporation who shall hold tl
"charter.of such highway so long as the same shall be used for such highway an
.' no longer ; but tho foo in such lands subject to such special uses, shall remain i
" the owner thereof, and nothing herein contained shall be construed to confer upo
" such person or corporation any right in or power over the lands so oondemne*
" other than such as may be within the particular purpose for which such lands wei
" condemned." ?. '?
If, so foi* as thoy have gone, taese proceedings are in conformity, with the laws <
South Carolina, then the right which those parties claim has already been vested i
the Columbia and Augusta Railroad Company. And there is no denying this coi
elusion unless they can be reaohed by the supervisory power of this Court
unless tho authority of this tribunal is applied to the very foundation of this pr<
ceeding ; and by the correction of it protect the rights of the South Carolina Railroa
Company ; until the divestiture thereof in the language of Mr. J. Willard is " und?
the sanction of a Judioial act"
Judge Willard-Can you not reaoh lt by a writ of error?
Mr. Magrath-Not so. The writ of error is from what? Not the question <
legal right ; but the compensation. Section four of tbs Aot No. 42, says : " Tnt
" from the verdict so rendered, it shall be the right of either party to appeal to tl
" first term of the Circuit Court next ensuing in the county giving to the opposii
" party fiftoon days notice of such intended appeal, with the grounds thereof an
" upon tho hearing of such appeal, if tho Court shall bo satisfied of tho reasontbi
.' su?oicncy of the grounds, an issue shall bo ordered in which the appellant sha
.'? bo the actor, and the question of compensation, sholl be thereupon submitted to
i* jory in open Court, whose Terdiot shall le final and conclusive, unless on wr
" of error, a now trial shall be ordered by the Supreme Court."
The writ of error allowed by tho Act, is not from the assessment of compensatio;
mode by the jury, drawn under the order of Judge Platt From that jury, an appei
is given to the first term next ensuing: and if the Court I suppose by that is nieai
the Judge, sholl be satisfied of the sufficiency of the grounds, an issue sholl be order?
.and another trial shall be had. It is from tho verdict in this second trial, that
writ of error is provided. But if the Judge chooses not to be satisfied, there is n
second trial, and thei eforo no writ of error.
Judge Willard-But if they should finish construction they could not run a loee
motive upon the road. Use and construction are two different things.
lir. Magrath-The idea that tho Columbia and Augusta Railroad Company cithi
cannot, or will not run a locomotivo whenever the last rail may bo laid; ur that the
would bo enjoined by Judge Booaor; is very unfounded. The oo'unsel on tho oth<
sido would not taite tho trouble to come to Columbia and argue such a question. Th?
is no authority to bc foufld that if they have a right to construct the road, they coane
ruu their trains upon it? And if they aro able to occupy the right of way of tb
.louth Carolina Railroad Company, without show of right, under tho circumstances c
th ie case, or. d construct theroon. the roadbed; it would bo diffioult to know in wht
Court they would be enjoined from running their oars. Por they oannot construe
unless they have tho rignt ; the Act discriminates between an entry for location an
an entry for tho purpose of construction j and determines that construction fallo w
compensation, and oompousation is supposed to include the legal right But if it i
meant that alter tho Columbia and Augusta Railroad Company has completed i:
roadbed, that this Court will consider whether it can then run its trains, no betti
reply can bo made than was given by the Lord Chancellor of England ; and to wbic
I nave already referred.
The Cniaf Justice-How was it under the former statute ? Did not a corpora?o
have a right to go on and run a locomotive?
Mr. Magrath-If the corporation had the right to build the road ; its right to ru
its train has never been questioned.
Judge Willard-A railroad company, as I understand it, bad a right to enter upo
the bind without proceeding. It was then in the power of either porty to ascertai
the compensation and have >t adjudged.
Mr. ?Lagrath-Under the charter of all these railroads, it was at first held, tbs
choy could enter at pleasure ; subject only to the obligation to make compensatio!
The mischief of such a rulo was for years, the subject of a struggle in the Courti
.inti it was set asido in Blake's case ; and that ease has since been recognized as th
law. lu that case, Judge Wardlaw speaking for the Court, says that " the mere ai
.ertion of the company, that a parcel ia .required," is not conclusive; if not conclu
sive, " there must be some trial f that " payment of adequate compensative is far ii or.
justifying thotakingof land without oonsent of theownerinon improper case;" an
that ii tho " landowner should not traverse the propriety of the oocasion, " (for tho in
?erference of thc Court in tho summary proceedings,) "or its cxietoncc, these matter
will be admitted as alleged ; but il'he should traverse, a preliminary trial and decisioi
by tbs Court must be had."
Here .wo havo made a traverse. The Court in South Carolina has said, in such eas
" trial and decision by the Court must be had." Tho trial and decision we havo ask*
for. The trial is denied ; the decision evaded.
Thi6 was Blake's case ; and the rule was established which should bs followed h
this ORSO, to wit : that where the parties whose property was sought to be acquired bj
a, company, traversed the oocasion for the application to the Court for rle inter
terence that wa? a preliminary question which bad to be settled, and the parties eoul<
not go on until thc decision was made.
In the case of Blake it was well said : " The Court owes it to itself thea to look to tb
propriety ol' the occasion for exercising tba apeoial duties committed to it, when tha
propriety is denied ; not rashly to assume as true what is denied, or as inoontro
vertible what might well be tried; nor by considering those duties ministerial whicl
may well call loi th judioial functions, to subject all that it does to injunction *anc
iuiphed reproof, because it will not itself make those investigations whioh partiel
may procure to bo elsewhere made." ?
I know that elsewhere, and indeed before this Court, tho ingenuity of counsel luu
been taxed to give to this plain language, this wholesome rule, a construction that ii
not warranted by its terina or its spirit. But suoh an effort requires no rpply. It ii
safer for the counsel on the other side to ignore it altogether, than attempt to prevent
Its application by an effort to obscure its moaning..
Your Honors will find that if the construction whioh Judge Wardlaw says is in?
correct bc insisted on as notwithstanding still the law of this State, that rase
also rules that prohibition is a mode by which the question can be heard. Accord?
ing to thc caso in Rialto, prohibition ia a proceeding which this Court has newer tc
adopt. But if your Honors are prepared to say that ail that has been done nos uecui
proporly done, then prohibition is not our remedy, and Blake's case is not law.
lhere are three modes by which this question of right when it arises, and
whenever it does arise it is essential, may be decided : first, by proceedings in equity
according to the rule followed in 13 Richardson, and where the Chancellor hiinsoii
entertains jurisdiction of the question: secondly, whore the Chancellor follows thc
example of the Lord Chancellor of England and direct an issue to bo made in a
Court of law for tho purposo of determining the legal question : or thirdly, whare thc
Judge may do what according to the oase of Blake, tho Circuit Judge before whom
tho application is made has the power to do. Now, if we could have induced Judge
Platt to oidor this caso lo be tried before a jury, I undertake to say without hesita?
tion that the wholo issue would have been decided without delay. The oounscl on
the other side doaied his power to make any such issue, and he yielded to the argu?
ment that ho could divest a right, but could not try tho question whether he had thc
right to do so.
Judge Willard-.Tho difficulty seems to havo arisen ?rom drawing all th j equitable
matters into a different Court from tho legal matters.
Mr. Magrath-The oquitablo matters and the legal matters were In different
Courts, but in the samo jurisdiction: both were in tho Circuit Courts of the
?tate: and if tha bill for Injunction was filed and properly filed In Richland
County, where thc Columbia and Augusta Railroad Company had its pleoo ol
business : what diiSculty oouid bo occasioned because the Columbia and Augusta
Railroad Company filed a petition in Edgefield or BarnwoU County? If the Judgo
in Edgetied or?Barnwcli was asked to forfeit a right, which the Judge in Richland
was then trying, or rather was supposed to be bound in the opinion of tho Judge ot
Edgcfiold or Barnwell to try and decide ; wad he not bound by comity as weil as by
law, to wait then thc result of that trial before he would oondemn? WOB it not to
all intents and purposes the name os if he had both motions before himself? Do not
Judges take notice of proceedings in the Courts of each other? When these pro?
ceedings relate to the same matter are they not bound to do so ? And if, as Judge
Platt says, his proosedings were to depend on Judge Boozer's trial of all the ques?
tions in the oase, (hen should not his proceedings wait for that trial and decision ?
But 1 have already Bhown how Judge Platt condemns, professing to wait for J?dge
Boozer's decision of bis right to do ao : and Judge Boozer finds in the condamne tion
of Jud,je Platt the deoision of the right, which was referred to bin. Judge PIntt
decides because Judgo Boozer is to decide : and Judge Boozer decides because Judge
Platt has alroady decided. Judge Platt says my opinion is part of my order : aud
Judge Boozer holds that the opinion is no part ot tho order, although it is so ex?
When Mr. Justice Willard made bis order for an injunction in this case he gave
the defendants leave " to move for its dissolution," " at any time before thc hearing
ot the oase : on proof that they have duly aoquired a right to enter for tho purpose of
construction upon the premies claimed by the complainants." And Judge Boozer
*rulos that bocauso Judje Platt has given au order for a jury to assess compensation,
therefore tho Columbia and Augusta Railroad Company have duly acquired "the
right to enter :" although Judge Platt declared, that " after petitioners shall havo
ascertained tho qmi<tm of compensation and have pr.id or tendered it; thoy
must necessarily go book to the Court of Equity to get the injunction removed : and
before they can ask its removal, they must show not only that they have tendered
tho compensation, but that they have acquired the right" * * " Their suit in
equi y now ponding on the equity side of the Court of Common Pleas of Riculand
County, embraces tao whole issue as to 'right,' and every point must necessarily be
adjudicated upon whoa they apply for leave to proceed with their road." No lan?
guage caa be more plain ; and words are wo: s J than wasted in comment. But io far
from the faot that the bill filed in Riordand District was a difficulty with Judge
Platt in his consideration of the petition for a Jury to assess compensation in Edge
field ; it did not in any wise interfere with the power he had : and really suggested
the duty, as I submit which under the oiroumstenoes was or should havo been
imperative: to direct upon the petition o? the Colombia and Angosta Railroad1
! Company and tho return and answer of the South Carolina Railroad Company: an
issue to be made up between these two corporations at tho ensuing term of tho
Court, for tho trial of the question of this" right of the Columbia and Augusta
Railroad Company, to have what it is claimed. And when Mr. Jos tic e. Willard, in
his. order, refers to the dtdj acquiring a right before the hearing of.tho case by
Judge Boozer: it is suoh a proceeding that he hod rn his mind, for thia Aidgo
Platt had ample authority. ' . .' V
. Aot No. 67, passed 26th September, 1868, aeol?re?Whet-'"itshall be competent for
any Judge of the Circuit Court, upon reasonable notice to the parties in the clerk's of?
fice or at Chambers, and in vacation as well as in Term, to make, direct and award all
snob'process, commissions and Interlocutory orders, rules and .other proceedings,
whenever tho same are not gran table of course according to the' rales-ana practice of
the Court." ' . :
Jndge Willard-That has relation to actions at law.. <S?. '?
Mr. Magrath-And this whole proceeding involved that It was a petition ad?
dressed to the Jndge, asking the Court to do a certain thing. Was he-without pp wot?
to satisfy himself as to his right? Was it different in fact from a motion made to
arrest and set aside & judgment because of fraud or any other matter;:and does any
one doubt that apon such an issue it would' nof b- in the power of judge Platt to
order an ?sue totry the question ? -When, we said to-him, therefore, it is competent for
your Honor to retain this petition until the next term of your Court,, then -near at
hand, and order an issue upon the questions raised .bj theipetition, were we'outsldo
of the law? Were we' introducing any novel practice or requesting anything un?
reasonable? 7et the application was stoutly resisted, and the argument pressed
upon Jndge,Platt that ne was acting in a purely ministerial oapoclty,>and had
nothing whatever to do with this matter except to write his name.ot the.end of
th? order. Doubtless he jielded to the pressure upon him not to disregard con?
siderations addressed ' to him with such urgency, and earnestness.' It mast be
obvious to any one who reads-his decision-or who wu .before Jndge Platt in the
various disputations in this matter, that ha then intended nothing more than to
Sut thi) Columbia and Augusta' Railroad Company in suoh a condition that if they
id establish their lego! rights they would be subject tono further In torrup tion or
delay. Nor did he then Intend by anything he said or did- to prejudge the question
against the South Carolina Railroad. \tVt.) ': .' ? '.' '
Unfortunately the result hw been different .The Colombia, and Augusta Bailroad
Company have treated that order of Judge Platt ; in a manner which I om boned to
suppose he did not anticipate. . And I trust, they -haver could have obtained it, had
they declared to him that it would be .os it has been made, of itself, foundation for a
motion before Judge Boo xor, to dissolve the injunction j and this .accomplished
they would then press on the work of construction leaving all questions of right to
be determined, when-perhaps after the completion of their enterprise-H would be
idle to discuss them. -'j vii.
May it please your Honors, I did not intend to trespass*) much on the. time of the
Court, but you ore aware that large interests are Involved in the case ; but even
larger ls tho value of the legal principals whioh are to be molntotoed or rejected.
In a case, in all respeots so important, we were bound folly, to present for your con?
sideration the points upon whioh we rely. *
CHARLOTTE J?TD SOUTH OAHOLLX A RAILROAD' COMPACT, \
President1* O?oe, Columbia, 3. C., Oetober 21*, 1888.. j
WI J.MA&BATH, Esq., ' .? .??,
Prudent South Carolina Railroad Company, Charleston, S. C.:
DRAR SLR : X wrote to yon more than a fortnight since proposing certain terms for
the use of the track of the South Carolina, Railroad fro m l^ran? te ville to Aa gusta.
In your acknowledgment of this letter you state that you do not believe the Execu?
tive Committee will aooeed to' the terms proposed. The Columbia and Augusta
Railroad Company will- soon, be running its trains to Graniteville, and in its behalf
I now otter to pay to the South Carolina Railroad Company all the receipts of its
trains between Graniteville and Augusta, and MC? vena from freights and passengers
fer the ase of its track between "those points-the South Carolina Railrocd Oem
pony furnishing the necessary wood and water.
Very respectfully, WM. JOHNSTON, President.
,, . " . - - - (/HAKMTOK, October 23d, 1868.
MB. W. J. ??AQP.ATB, I^etider.t South. Carolina Railroad :
DEAS SIB r I cannot see that Mr. Johnston offers this company anything more
than they now have, and this does not amount to one-third of the interest of the
coat of the traci between Graniteville and Augusta, saying nothing of the privileges
of crossing the Savannah River and connecting tracks in Augusta. .-Nothing is
said in this ?aper of the schedules the Columbia and Augusto Railroad Company
propose to run. I think lt would be muoh better for us to'tarn our traok over to
them if they will keep it up and .furnish us with .woad and water, etc, and give
them ali th? earnings between Graniteville and Augusta.
'. Very respectfully, H. T. PEAKS, Qetneral Superintendent.
CHABIESTOB,24th October, 1*8$.
WM. JoHWSTOif, Esq.. President:
Du AP. BIB: Your letter of 21st instant, submitting for the oom i deration of this
company certain proposals for the as? of their track, property and privflegM
between th??r Graniteville station and the City of Augusta, and m the latter ploet,
hos been laid before the Executive Committee.
. Your previous communication was acted on at a session, on Wednesday lott) of the
Board of Directors. Their answer, through th? Secretary, is doubtless with you
The committee feel constrained to deonne again this, (as three days ago the Board
of Directors felt compelled to decline a somewhat similar proposition,) os the ground
of its litter insufficiency. .
And here this reply might end; but it has come to the knowledge of thc Boord that
impressions to some extent prevail that the Colombia and Augusta Railroad Com?
pany have frequently and persistently approached them with fair and reosoafble
proposais for the use and enjoyment of their valuable and costly property and privi?
leges above riferred to, and they regard this os a proper occasion for the correction
of all such erroneous impressions. Tho Board deny that they have at all been
approached with any proposals that could be regarded fair or reasonable, such as
a sody representing vid nable interests could for a moment entertain. What have
boon the proposals of the Columbia and Augusta Railroad? What is the ono
that originates this correspondence ?-and this, at least may be said of it it is
'.ho most reasonable yet received. What, we repeat, is their last proposition?
Nothing more or ' less than to obtain from the Sooth Carolina Railroad the free
uso and enjoyment of about (12) twelve miles of their track, an expensive bridge,
acpots,-and I*ud in tb? City of Augusta, the privileges. alon? connected with whioh
wore only obtained from tue City of Angosta at a cost of $260,0001 And whit is
oner*d in compensation therefor f Absolutely nothing.
Tbs Columbia and Angosta Company, for these valuable properties and privileges,
simply propose to give to tb? South C?Alina Railroad Company. th? earn?
ings (oollectioss) from freight and passage of their own trains between Graniteville
and Augusto. And what are these earnings ? Not such proportion of the entire
earnings of that company as would be indioated by the relation which the distance
between Groniterille and Auguste bears to the whole length of the lin? between
G rani te v iii o and Columbia, bat simply isueh portion of the business (now .don?
between tho two points is question by the trains of tho South Carolina Railroad
without the help of the Colombia and Augusta Rood) os. might find its way toto
tho trains of the Columbia and Augusta Rood. Con this be ?ailed a reasonable
But there ls another view in whioh this matter should be regarded. Under such
an arrangement what is the direct immediate gain to th? Columbia, and Augusto
Road? This: that company ls saved tho construction of twelve miles'of rood
through a rough country ; the construction of a long and costly bridge, and, to some
extent, the purchase of land In Angosta; expanse of depots ; in a word, the expendi?
ture of at least $3c 0,000.
Now this sum at Bevan per oent. wiU entail upon the Colombia and Augusta Com?
pany an annual charge for interest alone of about $26,000, and w? might justly add
a heavy in or case even on those large figures, for wear and-toar oe rails, eta.
Tot for lt this company is offered some-it is difficult to say what-portion of their
owu business, a businoes built up by them, and wklph, to tay the least; R dosas good
a chance of retaining as tho Columbia and Augusts. Railroad Company has bf taking
away from thom-for it is not to be supposed that this company will quietly sit
down and allow its interests to bo transferred to a competitor without sach efforts as
would moke success profitless. , "
Now to put an ena to the statements oat of which hov? sprang the impressions Sa?
faried to In the commencement of this lotter, and to test'the sincerity ot the Colum?
bia and Augusta Railroad in connection with arrangements at Graniteville, this
I company, having yielded opposition between Colombia and Graniteville, bot retain?
ing and intending to maintain opposition to the construction of a railroad between
Gi anile ville and Augusto, and under its agreement with the City of Augusta to its
entry therein-believing such rood not enly a gross violation of their charter, bot to
result In great Injury to the interests of Charleston--proposes to submit the entire
?oestion of the connection at Graniteville, nae of timk and privileges, terms and oon
itione of same, to a joint committee, to consist of-three Directors of each of the two
companies, to meet at earliest day practicable ofter the acceptance of tills proposal,
the said committee to hare full powers from both roads to treat of all matters at
issue in this connection.
Representing, as the Board does, a very large pecuniary investment the property
of a great number of individuals, who cannot be reached without difficulty and delay,
proceedings In th? dlreotion of this suggestion, it,is.evident most be conducted with
scrupulous regard to th? interests of the stockholders.
(Signed; .... W. J. MAGRATH, President.
CHARLOTTE ARD SOOTH CABOUHA RAILROAD COH?ANT, >
v President's O?oe, Columbia, S. C., November 9th, 1868. j
W. J. MAGRATH, Eta., President South, Carolina Railroad Company :
DEAS SIR : Your favor dated October 24th, 1868, was received Thursday lost by
me ot Charlot to-a copy of your communication was first seen on fil? as a portion
oi yjur affidavit in the case now pending in Charleston. Differing entirely from
your construction of my last letter, and as to the extent and value of the oonaldcro
tious offered your company In the various propositions submitted, also as to the ex
ilusivo rights and franchises claimed for the Sooth Carolina Railroad Company, and
dissenting entirely as to the cost of constructing a BOW Railroad from Graniteville
lo Augusta, and that the South Carolina Railroad hos a right to claim any business
as belonging to it; yet, with a desire to adjust ail of the. subject matters in contro?
versy, th? Colombia and Augusta Railroad Company cheerfully accepts yoar propo?
sition " to submit the entire question of the connection at Graniteville, use of track
and privileges, terms and considerations of tho some, to a joint committee, to consist
of three Directors from each of the two companies, to meet at the earliest day practi?
cable after the acceptance of this proposition, the sold committee to have full
powers from both roaas to treat of ali matters in this connection." While your pro?
position is accepted, it is suggested that a bettor ampire would have been the selec?
tion of two or more experienced railroad gentlemen, free from prejndioe or bias da
account of matters In controversy.
Tho committee of three will be appointed from the Directors of tho Columbia and
Augusta Railroad Company this week-by Friday-and will be ready at any tim?
thereafter to meet your committee.
Very respectfully youri, WM. JOHNSTON,
President 0. and A. R. ? do.
CHARLOTTE AMP SOOTH CAROLINA RAILROAD CO?TAIT, )
President's Office, Charlotte, N. C., November loth, 1868. j
Wu. J. MA GRATH, Esq., President South Carolina Railroad Company :
DEAB SIB : I am pleasod to announoe to you that upon a conference with th?
Directors of the Columbia and Augusta Railroad Company, a committee of confer?
ence has been appointed by this company to confer with a similar oommittee from
the Direction ol the South Carolina Railroad Company, to adjust the differences be?
tween the two companies, according to your proposition. This oommittee of three
will be ready to meet with th? oommittee In behalf of the South Carolina Railroad
Company, whenever it may suit their convenience. -,
I would suggest, for the convenience of both parties, that they meat ia the City of
Columbia-a terminal point to both roads-and as early as practicable.
Very respectfully, WM. JOHNSTON, President.
SOUTH CAROLINA RAILROAD COMPACT, J .
President"* Office, Charleston, S. C., 2bth November, 1808. j
WM. JomtST05, Esq., Pr?sident. Colombia: ?jj
DEAB SIB : Your letters of 0th and 19th Instants have been received. At this
moment I only notioo that portion of the letter of 9th, in which you say: "Dif?
fering entirely from yon in yoar construction of my last bitter." Bot you do not
state what you consider the proper construction
In answer to '-ours of 10th, I beg to say, that Messrs. George A. Trenholm, Henry
Gourdin and Louis DeSaussure hove been appointed th? oommlttoe to meet the
three Directors of the Columbia and Augusta Road. They will be glad to enter upon
the subjects referred to in past communications, as soon as your committee aro pre?
pared to meet them in Charleston.
I would respectfully suggest that at least forty-eight hoars notice be given them to
avoid any disappointment which the absence of any on? of them may occasion. y
Very respectfully, _ '
r W. J. MAGRATH, President.
CP TO THIS DATE NO ANSWER HAS BERN RECEIVED NOR ANY HO
TICE OP THE PROPOSED MEETING GIVEN BY THE PRESIDENT; O? THE
CHARLOTTE AND SOUTH CAROLINA RAILROAD.
Charleston, February itt, 1869. . . .