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m THE SUPREME COURT.
Columbia, S. C., January 29, 1869.
ARGUMENT OF HONORABLE C. Gr. MEMMINGER, OP COUNSEL FOR
May it please thc Court: I should have been somewhat urpriscd at
the heat with which this cause has been argued, if I did not suspect it
to be the result of 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 lund, nor shall we set up a right to one inch of it until
the preliminar)' question to which they refer has been decided by the
Court. So that the whole clamor raised here and elsewhere can, with a
very brief statement, be shown to be utterly unfounded.
Now, what is the question involved ? It is not whether we can make
a railroad to Augusta, or run a road parallel with that of the South
Carolina Railroad from Granitevilie to Hamburg, or go on their land
just as we are permitted to do 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 can be kept alive, the longer
will they continue to make a profit of five or ten thousand dollars a
month. If they lose, it will not be due to the fact that we have
gone on their land, but 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 the yravamen of the case. It will deprive them of
that tax which for thirty-six years they have imposed upon every man
who was obliged to travel over their road to Augusta ; but at the same
time it gives the country another link in that great chain of railroads
which unites New York with New Orleans, and saves every traveller
an abstraction from his purse of a toll on seventy miles of the South
Carolina Railroad. 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 them to say they have hastened this matter to a conclu?
On the 11th of April, 1867, the South Carolina Railroad Company
* filed a bill in this Court, in which they set forth the invasion of their
rights by the Columbia and Augusta Railroad Company, and among
other things they aver as follows : " That the charter of the said Columbia
" and Hamburg Railroad Company impairs the obligation of the contract
" made between the State and your orators, and that the rights, powers
" and privileges granted in said charter are inconsistent with, repugnant
" to, and in derogation of the rights, powers and privileges vested in your
" orators, under and by virtue of the Acts of the General Assembly
"hereinbefore referred to. That the projected track of the said Co
" lumbia and Augusta Railroad, connects points and places already
" connected by the road of your orators, and crosses the track of your
" orators, and runs for a considerable distance (twenty or thirty miles)
" in the general direction of the road of your orators, and on land
"granted to your orators for right of way, and is a competing road."
To that bill 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
The Court will observe that this is one of the very points now
being argued, and what was the judgment ? It is refreshing to read
such a clear enunciation of judicial opinion. The Chancellor says :
" It is contended on behalf of the plaintiffs, that their exclusive
" privilege to establish and maintain railway communication between
" Charleston and Hamburg attaches to every foot of their road con
" necring those places, and that the construction of another road side by
" side and parallel with their road from Granitevilie to Hamburg, a
" distance of ten or twelve miles, cannot eperate otherwise than as a
"palpable invasion of such exclusive privilege; that other routes than
"the one selected may be found by the defendants for their projected
" road, and that its location, as proposed by them from Granitevilie to
Hamburg, is, therefore, unauthorized by their charter. A glance at
" the map will show that Granitevilie is very nearly, if not altogether,
" in a direct course from Columbia to Hamburg. From Granitevilie to
? " Hamburg it is conceded that the only practicable route for a railway
" is that by the valley of Horse Creek. Other routes for their road
" than that by Granitevilie may be found, but they arc attended with
" natural obstacles too formidable to be overcome, save by an outlay of
" capital wholly beyond the means and resources of the defendants. To
" deny them access to Hamburg by Granitevilie and the valley of 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. Are they entitled to pursue it ?"
Now, your Honors observe, that in the judgment of the Court, this
is the only route, and more particularly does the Chancellor justify him?
self in this opinion, for he goes on to say :
" In proposing to adopt that route, it has not been shown that the
. " defendants are acting otherwise than in good faith, and because they,
" in truth, regard that route as the most desirable and the best ; had
" the plaintiffs built their road in a direct course from Charleston to
" Hamburg, the coincidence in the tracks of the two roads from Gran
" iteville to Hamburg could not have occurred. In carrying their road
- " to Granitevilie, 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 of the
" parties from Granitevilie to Hamburg, is the result of that very di
" vergence ; when at the date pf its charter to the plaintiffs, the State
" 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
" Granitevilie though pursuing for some ten or twelve miles a course
" almost, if not altogether in the direct fine to Columbia, was built as
" suredly under the powers conferred by their charter and certainly not
" in derogation of any power retained by the General Assembly to au
" thorize 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
u Columbia, passing by Granitevilie, and thence to Hamburg, with a
" concurrent track along the same route, and involving for that dis
" tance an incidental competition between the two roads. As already
" remarked, the plaintiffs' exclusive privilege 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
" stitutes in no sense, and neither in whole or in part a railway com
" munication with Charleston. How can blame be implied to the de
" fendants for proceeding with their road from Hamburg to Granitevilie,
" when in so doing they are pursuing, with slight deviations, the direct
" course to Columbia, and are confining themselves, so far as the route
" of their road is concerned, within the strictest limits of their charter ?"
Such was the decision of the Chancellor, but it was appealed from ;
and in the thirteenth volume of Richardson will be found the final ad?
judication. Tho decision of the Court is in a few lines :
" Whilst, therefore, the Court 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
Now, if the South Carolina Railroad Company were so anxious to
have their rights determined, was not here the place to come ? Could
they not. in the Supreme Court, have made all the questions which
have since been the subject of such frequent contention ? There was
the place, and there the judiciary competent to decide the case, and
why did they not there seek that justice which they are so loudly de?
manding here ? Let them answer. They chose not to ask further aid
of that Court but went outside, filed a new bill, raising one of the very
questions involved in the former case and claimed the right to this pre?
liminary inquiry. In that new bill they asked for an injunction to
stop our proceeding with the construction of the road. AU of that
could have been reached in the other case ; nevertheless, for re-isons
best known to themselves, they passed that by. and now bring us before
this Court with a claim that we are invading their rights and a prayer
that we be enjoined therefrom.
Mr. Justice Willard-Why could they not have moved for an in?
junction in the ol? case ?
Mr. Meinminger-Simply because they have chosen this course. I
know of no other reason, for undoubtedly they have had their choice of
procedure. Yet your Honors have heard the clamor raised by them
on the ground that they were taken by surprise, when in truth their
whole object was to Rlop the construction of the road. Your Honors
granted an injunction holding that it was unnecessary to have a hearing
of all the questions involved in thc case.
Mr. Justice Willard-The intention was to defer all other questions
until that which was decisive of the case could be heard.
Mr. Memminger-There is a bill filed claiming the right at issue,
but it does not matter what happens outside. If upon the hearing of
that bill it is your Honors' opinion that the privileges of the South
Carolina Railroad have been infringed by the Columbia and Augusta
Railroad Company, all the money we may expend upon the road from
that time until the present will be thrown away. The hill as filed is
fa pendent, and it is at our own peril that wc go forward and construct
the road. Should your Honors be of thc opinion that we are wrong,
our work, of course, goes for nothing. When an action for.trespass to
try title is pending, and any purchaser chouses to buy a right of ?no of
the parties, would that affect the title ? Ile may do what he pleases
may make improvement? pendente lite, but he does so with his
open and a full knowledge of his responsibility. If the decisi
against him he loses the whole. We understand that. We d
claim that we can take this land without judgment, but, on the cont
affirm that if it be against us, we shall sacrifice all we may hav
pended upon the land. Yet we take that risk. If the Judges a
fail in duty and be frightened out of propriety because a man ch
to make a road in defiance of law, what is the use of law ? If
Johnston chooses to go on and build his line upon the lands ol
South Carolina Railroad, and your Honors come to the conclusion
he acted without warrant of law, he must take the consequer
therefore, I say, may it please the Court, that it is an idle clamor w
has been raised and one to which we should give no concern.
I now proceed to show that your Honors have nothing to do
this case in its present stage, although you may have much to do wi
in the end. The judgment of the Court must be reached by law
by invention or contrivance; not by short cuts. Your Honors
bear in mind that it is but recently you have taken your places i
that -bench. A new system of jurisprudence has been established,
it behooves you to lay the foundation securely, and to avoid crea
precedents that may work incalculable mischief hereafter. Beean
party cannot make an appeal as rapidly as he desires and applief
some newly invented writ to facilitate his object, you are not necessi
to accede to that request, and permit a process whioh is not cle
authorized by the constitution and the law which are your guide,
attempt made by our friends on the other side reminds me of an i
dent of my early experience. A client once came into my office \
the complaint that a man had run away with some of his negroes
inquired if I could not find a way to catch and bring the man back,
asked where he was. The reply was, he did not know ; but, said
"down in Georgia we have a writ that-is called the comm hogus,
the moment you put it into the clerk's office there is not a IUKI
whom it refers who will not quietly walk into jail, deliver himself
and beg for God's sake to surrender everything that is wanted."
strikes me that it is something like a c?rum bogus which is requ:
But to proceed with the argument, I shall maintain three prop
tions-first, that upon the case made by the plaintiffs this Court cc
not act by prohibition ; secondly, that they are not entitled to a j
liminary trial ; that the preliminary trial is not a matter of right in i
case ; and thirdly, that if such preliminary trial be had, the Colun
and Augusta Railroad Company have a right to condemn the land.
Now, the two last propositions I consider mere matters of instruct]'
Time would be wasted upon such an argument, and I shall, theref?
not touch upon them very elaborately. The first proposition is
question your Honors are to decide. On the case made by this pai
can you issue a writ of prohibition ? Your Honors will perceive t
the constitution of 1868 is very careful in the distribution of powers
the judicial department. Referring to article four, of that instrumc
it will be found that the judicial power of this State is vested in
Supreme Court and two Circuit Courts, namely, " a Court of Comn
'. Pleas having civil jurisdiction, and a Court of General Sessions, w
"criminal jurisdiction only; in Probate Courts and in Justices of t
"Peace." Section 4 declares that (i*he Supreme Court shall hi
" appellate jurisdiction only in cases of chancery and shall constitu?
" Court for the correction of errors at law, under such regulations
" the General Assembly may by law prescribe : Provided, the s?
" Court shall always have power to issue writs of injunction, mam
u mus, quo warrante, habeas corpus, and such other original and rec
" dial writs as may he necessary to give it a general supervisory cont
" over all other Courts in the State."
It will be observed that prohibition is not mentioned in that sectic
In the fifteenth section of the same article, however, the language
as follows: ':The Courts of Common Pleas shall have exclusive j ur
" diction in all cases of divorce, and exclusive original jurisdiction
" all civil cases and actions ex delicto, which shall not be cognizal
" before Justices of thc Peace, and appellate jurisdiction in all su
" cases as may be provided by law. They shall have power to iss
" writs of mandamus, prohibition, scire facias, and all other wr
" which may be necessary for carrying their powers fully into effect."
Your Honors will perceive, therefore, that the power to issue this w:
is not given to the Supreme Court but to the Circuit Court ; and y
are asked to assume jurisdiction only by virtue of the language th
quoted, that "said Court shall always have power to issue writs of i
" junction, mandamus, quo warrante, habeas corput and such oth
" original and remedial writs as may be necessary to give it a genei
" supervisory control over all other Courts in the State."
The first proposition is, that if the writ of prohibition belongs to ti
jurisdiction of the Circuit Court, according to the tlear declaration
the constitution it is denied to the Supreme Court, It is exclusive
the Circuit Court. You can hear it when it conics up but cannot tal
cognizance of it originally; although you have power to issue sui
writs as may be necessary to a general supervisory control over all otb
Courts in the State.
The second proposition I submit is,' that before you can assert a j uri
diction to issue this writ under that article of the constitution the
must be some further legislation. The act to organize the Supren
Court is distinct upon this subject, for it declares " that each of tl
" Justices of the Supreme Court shall have power to administer oath
"issue writs-of injunction, mandamus, quo warrante, habras corpi
" and other remedial writs according to the principles and course i
" common law heretofore existing in the State of South Carolina, whic
" is hereby declared to be of force so far as applicable and no! incoi
" sistent with the constitution."
The Legislature, therefore, have directed the form, and you cann?
assume that under the constitution a writ of prohibition is necessary I
keep a supervisory control over other Courts of the State ; and consi
quently that it may be issued without further legislation. But the mot
important proposition is, that this writ of prohibition is not necessar
and does not come within the description of this Act of the Legislatur
Now, may it please your Honors, necessity is shown in various way;
but I think the absence of necessity is conclusively shown in one wa;
When you demonstrate that certain things have gone on in a certai
manner without the interposition of a certain other tiling for hundred
of years, you prove that that latter thing is not at all necessary. An
I defy counsel on the other side to find a case in which in an Appei
Corni a writ of prohibition ever originated. In all the books froi
King Edward, the Confessor, down to this time, no case can bc foun
in which a writ of prohibition has issued from this Court, It alway
issued from the Court below. I go further. There are States in thi
Union where thc power to issue was expressly given to this Court. Ii
the laws of Massachusetts the power is given to the Supreme Court of th
State to issue writs of prohibition to all inferior Courts for the further
auce of justice, k; but no case," says Mr. Nathan Dane, in his Treatis
on the Law, " is recollected in which this power has ever been exer
cised." He adds, (6 Dane's American Law, 336 :) " And but on:
" case is at present found in which a prohibition has issued in any o
" thc United States; that was in Pennsylvania ; a case much considered
" In that case this writ was issued to the District Court. The casi
il was a libel for damages on account of a capture of a vessel as a prizt
" by a belligerent power, which vessel was alleged te be neutra
" American property, the vessel having been carried infra pnesidia, oi
" place of safety, belonging to the captors."
Your Honors are also doubtless aware that in England no such writ
ever issued; for Lord Coke, during the heat of controversy with thc
Courts of Admiralty never claimed such an authority as between thc
Courts of common law jurisdiction. He only claimed to exercise this
authority over the Courts administering maritime and canon law.
You have, therefore, two facts, namely, that in England no writ ol
prohibition ever issued from Appellate Courts, and in the United
States in two States where the power to issue the writ existed, no writ
of prohibition has ever issued from the Supreme Court of one, and in
the other it was only issued in a case of admiralty. Yet your Honors
are urged to grant this writ in the present instance on the ground that
you have necessarily a supervisory control over other Courts in the
State, and for no other good and substantial reason ; this in the face of
the testimony of hundreds of years that such a writ is not necessary
for any such purpose.
But more than that ; the Legislature has provided how you may
keep your supervisory control over inferior Courts. Section 2 of " an
Act to regulate appeals and writs of error to the Supreme Court," page
14, Stat, 1868, says : i; Final judgments and decrees in civil and
" criminal actions in the Circuit Courts, brought there by original pro
" cess, or removed there by appeal from any inferior Court or jurisdic
tion, may be examined and reversed, or arrimu d in the Supreme Court
" upon writ of error." That is the principle ; that is the form ; but if,
perchance, there happens to be a case for which the writ of error is not
a sufficient and speedy remedy, the law does not allow you to legislate
and make a new writ. Your Honors are perfectly aware that under
that article of the constitution which gives Congress the power to
regulate commerce, it has been decided that what they omit to regulate
is as much a part of thc regulation as if it had been actually enacted.
In other words, what is left out is as much a part of the regulation as
that which has been embodied in it.
Now, when the legislative authority of South Carolina undertook to
direct how this Court should have supervisory control, it prescribed a
writ of error, and this provides the mode.
Now. I submit to the Court, that there is another reason why this writ
should not be granted. From thc argument of the gentlemen on the
other side, it is obvious that they conceive there is no other remedy.
They are under a great mistake. The appropriate and proper remedy
i.s the very one which they have invoked, namely, an injunction, and I
think there is something in your Honor's opinion to that effect (re?
ferring to Mr. Justice Willard.) This is one of those cases in which a
decree is necessary. You want to define the rights of both pa
You cannot get at the question in any other way. Mr. Justice W
says : " Another ground is when the party complained against pro!
"to act by public authority and enter upon and to a certain e:
" use the land of third persons and exceeds his authority, it is he
" be a peculiarly proper case for the interposition of a Court of Eqv.
That is the law. And the South Carolina Railroad Corporation
invoke the aid of the Court of Chancery. But suppose that Cou
granting or dissolving the injunction committed an error-did
one ever hear of a writ of prohibition on that ground? You
appellate jurisdiction in chancery and can correct all its errors here
ri mere delay be a sufficient ground, then it would authorize a pro
tion for everything objectionable, more especially in this case, where
are not allowed to appeal until the final judgment and decree.
Your Honors will find that this matter underwent examinatioi
England in the very famous case of Home vs. the Earl of Cam
The King's Bench issued a prohibition to the Prize Court. The
ceedings came up and the Judges gave an opinion which was discu
in the House of Lords. That covers the whole of this case. A ?
deal of error is laid at the door of Judges Platt and Boozer, but i
the errors committed are errors of law and are the subject matte
appeal to this Court where your Honors have to pronounce upon
whole question finally. It may be a matter of some delay, but eventi
the justice of the case must be determined here. As I said be
however, this is not the method. I refer your Honors to a very <
decision on this subject, which will be found in the case of Leonarc
Richardson L. R, p. Ill,) and I will take the liberty of reading -\
is there better said than I can say it myself. On page 113 the C
observe : " The ground taken for a writ of prohibition is that
"Magistrate and freeholders assumed to decide upon the relatioi
" landlord and tenant, as existing between John McCool and the reli
"without receiving such evidence as the relator offered, and whicl
" alleges the Court had no legal right to refuse ; or, in other terms,
" Court assumed the power of dispensing with such legal evidence as
" relator had a right by law to introduce to show that he was not at
" time the tenant of the applicant, but that he had a right to retain
"possession by virtue of his tenancy to others," etc. "There is a i
"difference," says the Court, "between the different modes of brin'
" up cases for revieiv and revision from inferior tribunals to Court
"superior jurisdiction j and they ought not tobe confounded froi
"desire to do justice in one forum when it should be applied fo
" another. Thc true office of a writ of prohibition is, not to enable
"superior Courts to correct mere errors of judgment, as may be d
"on motions of appeal-where appeals are allowed-or by a wrii
" certiorari, but t : restrain the usurpations of inferior tribunals, anc
"compel them to observe the limits of their jurisdiction."
The same point is considered again in 4 Richardson, 514. !
State vs. Nathans. " The preliminary question which this case prese
is, whether prohibition is the proper remedy." The Court says : " '.
"proper mode is by appeal, but where no appeal is given, then
" injured party is without redress. * * * * The inferior Cc
" had jurisdiction, and as the appeal will correct any error in
"decision, aud is the appropriate remedy, the writ of prohibition ou
" not to have been granted."
Now, may it please the Court, if you were sitting here as a Coun
Sessions you could not grant this writ because Judge Platt is concei
to have jurisdiction. I have read that clause of the constitution wh
gives him exclusive jurisdiction in all similar cases. So Judge Boc
had jurisdiction over the case. Which of them have erred it is
your Honors to decide ; but that the error was an error of law, and n<
defect of jurisdiction, is so clear, that it would be a waste of words
press it upon your attention. There are a number of cases in the E
fish Courts to the same eft?ct, but it is unnecessary to encumber y<
notes by reference to them.
I now ask your Honors to take up thc grounds which this suggest
alleges, and see how far they have been cleared of difficulty by I
argument I have just submitted. The first ground named in supp
of the proposition that all the proceedings in the case are irregul
illegal and void is that " because the Act of 18G8, No. 42, only deda
...the manner' by which lands or the right of way over lands may
"taken, and does not confer the right to take said lands or right of wa
Judge Platt certainly decided that point one way or the other. It
within his jurisdiction, and if he made a mistake it will be correcte
but it is certainly no matter for prohibition.
The second ground is: "Because the right of way sought to
" condemned in this case is a right of way granted by the State to t
" South Carolina Railroad Company; that the lands sought to be ci
" demned are lands obtained for the purposes of said road by purchi
" under powers to that end given by thc Legislature of thc Stai
" and that in all cases, where, through the exercise of the right
" eminent domain it appears that one corporation claims to invade t
" franchises of another corporation and appropriate them to its o
" usc, it must appear that the authority for thc exercise of this gp
" power is given by the sovereign power, either in express terms or
" necessary implication, and that no presumption of such delegation
" authority is derived from thc privilege in a charter to construe
" road between certain fain ?ni."
Now, I shall presently have occasion to show that the claim made
the South Carolina Railroad Company, that the grant of this land
them by the State is one of their franchises or exclusive privileges, ii
mistake in law. We arc not asking to curtail any of the privileges
the South Carolina Railroad. We do not propose to take a thing frc
them. We are simply asking to condemn a piece of land owned und
a qualified title. Whether we have a right to take that land or not,
a question of law ; a question within thc competency of the Circe
Court, and whichever wai/ the Circuit Court decide it we claim it ia
decision which that Court has a right to make and you cannot interfc
with it by prohibition.
I may as well at this stage of thc case enter upon the discussion
that point, which comes appropriately under my second propositic
namely, that the South Carolina Railroad Company have no right
any preliminary trial. They have filed their bill in a Court of Equil
When the case comes up there the Court will decide the question ;\b
that they have a right to a preliminary trial before we enter upon tl
land, we deny. The right of eminent domain of the State can beyoi
doubt be exercised by the Legislature, and when so exercised I si
there is an end of all question. That body have a right to deal wi
thc subject matter of eminent domain just as they please, and the di
tinction I draw is this, that whenever a railroad to which is given
certain amount of land for a right of way confines its operations with
thc limits of the line secured to it by the Legislature in its charte
the right of eminent domain has been fully exercised on that land, ai
thc railroad has an unquestionable right under it according to the la
of the State.
Mr. Justice Willard-Do you mean that where a right is given i
general terms any land is equally open between certain points ?
Mr. Memminger-Any land on the location. In other words,
mean that when thc company has once located its line, all the lau
within sixty-five feet of that line, if such be the limit, has been sui
jectcd to the legislative exorcise of thc right of eminent domain.
Mr. Justice Willard-Bo you deny the jurisdiction of equity 1
determine that there is a mislocation; that is, taking into account
particular class of property where obstruction was unnecessary ?
Mr. Memminger-No, sir. What I claim is, that as a general rul<
the preliminary trial is for the purpose of ascertaining whether th
right of eminent domain has been exercised. And whenever a Rai
road Company is given by the State land within sixty-five feet of il
line of location the eminent domain is there exercised, and no furthc
preliminary trial is necessary to enable that corporation to enter upo
such land and pay its condemnation money. Why, what is a prelim:
nary trial for ? Is not the State the proper interpreter of the exercis
of eminent domain ? And have you not under its act a clear, straight
forward solution of the difficulty ? There is the charter, there is th
law, there are the sixty-five feet given to this company. If it b
shown that we are doing some irreparable injury, that would constitu?
a special case ; but if we are within the line provided by the statut
there is certainly no reason for a preliminary trial. I refer you
Honors to decisions on this subject which, in my opinion, remove all th
difficulty in our path. The first is the case of the South Carolin;
Railroad Company, 2 Richardson L. R., 434. Tho South Carolin:
Railroad Company changed its location and the Court determined tha
the only judge in the matter was the railroad company itself. Tin
true reason was that the State had exercised its emineut domain. Thej
decided in that case without any preliminary trial that the Railroac
Company could take the land. Judge Wardlaw alone dissented. Tha
decision was unquestionably right. Thc next case was that of Blake
in 9 Richardson, and what did the Court do there ? Did they overrule
Mr. Justice Willard-They did not exactly overrule it but ruled i
Mr. Memminger-I read from Blake's case: "If thc company
should have entered and thc landowner should desire to controvert the
right of entry, because he denies that any of thc land is needed for auj
of the uses which would justify its being taken, he may by action o:
trespass, by bill for injunction, or by other suitable proceeding have ?
trial of the right. If the land should lie within one hundred feet o:
the track, and thc company should desire to have thc value fixed before
it proceeds with the work, or to acquire an earlier or a better title 'har
that which would he presumed under the thirty-sixth section of the Aci
of 1835, the presumption of necessity established by that section woulc
prevent all question of right, where there had been no previous contracl
I defining a narrower space. But where the parcel is more than one hun
I dred fret from the track, or being within tho one hundred feet, is he
yond thc ???nits of a previous contract, and the company making appli
cation for assessment is met by a denial of its right, who shall judge
whether the parcel is needed for any of the prescribed uses ?"
In other words, when you go within one hundred feet, there is to be
no trial of right, but when you go outside of one hundred feet who is
to be the judge as to the necessity of the parcel for any of the pre?
scribed uses? The Legislature gave the one hundred feet; the emi?
nent domain was exercised, and the party could take the land ; but if
they went outside of one hundred feet then the Court say you may
aver what the law intended for the road, and that question must be ad?
judicated by some Court.
Mr. Justice Willard-You would hardly draw the inference that the
South Carolina Railroad Company could to-day claim through the City
of Charleston a full one hundred feet without the question being
raised as to the necessity of so doing ? I hardly think that that was
the intentien of the statute.
Mr. Memminger-There it is, to speak for itself, and it is a just
principle. The Legislature in granting one hundred feet, settled the
question of right by its exercise of eminent domain. When you gc
outside of that limit you must establish the right by other means.
Mr. Justice Willard-If you construe the statute strictly in regard
to one hundred feet, it seems to me that the case would be involved in
Mr. Memminger-But the Act furnishes a principle we can work
upon. It gives us the law, and the great object of all law is to fix a
rule, to make it clear of judicial or any other discretion ; to administer
justice by certain well-defined rules. Here is a rule that is plain and
palpable. There are reasons for it, and it can apply to every case, es?
pecially to the one we are now considering, because your Honors will
see plainly that this matter of preliminary trial is really a matter which
concerns the obstruction of our railroad. It is only by enterprise, in?
dustry and perseverance that the Columbia and Augusta Railroad
Company have been enabled tcfobtain credit enough to carry on their
work, and to impede their progress at this stage of the case would prac?
tically injure that credit and work an amount of injury which would re?
quire, perhaps, years to repair.
I come now to the third point, and say that even if there were such a
trial, and it was now in progress before your Honors, you would have to
give judgment for the Columbia and Augusta Railroad Company, which
is pressing nothing but its rights, although the parties, by calling this
one hundred feet a right of way and franchise, have created a confusion
of ideas in the case. This one hundred feet is land owned by them
under the statute. The Act of 1833, to be found in the 8 Statutes,
384, says : " That in the absence of any contract, it shall be presumed that
" the land upon which the said road or any of its branches now is, or here
" after may be constructed, together with a space of one hundred feet
" on each side of the centre of said road or roads, has been granted to the
" said company by the owner or owners thereof; and the said company
" shall have good right and title lo thc same, and shall have, hold and
" enjoy the same, unto them and their successors, so long as the same
" may be used only for the purposes of said road, and no longer."
In the case* of Blake, Justice Wardlaw, after quoting the foregoing
passage of the Act of 1835, says : " Here is, in the absence of a contract
M defining a smaller space, a declaration of the legislative judgment, that
" one hundred feet on each side shall not be considered excessive for the
" uses of the road j here is a saving of the right of the owner to" the re
u mainder, after the purpose for which the prescribed space was granted
"has ceased to require it; here is only a qualified fee vested in the
" company ; and here is a necessity imposed upon the landowner Df ac
" knowledging the company's right to take by himself making appli
" cation for assessment, if he would not be forever barred from both
" land and compensation."
Then, again, it is declared tbat this is a base-fo?v^It is so as long as
that company uses it for the purposes of the road, but no longer.
Now, may it please your Honors, is there not an express reservation
in thc grantor of* that land, that he can use the land which is not used
by the road ? Independent of the right of eminent domain, is it not a
condition that if I, the State, grant you land to be used for the pur?
poses of your road, and if you do not so use it I am at liberty to enter
upon the same when I please? Here, now, for six and thirty years,
the South Carolina Railroad Company have been in possession of this
land. They have never used a foot of it. They did not disturb a
particle of the soil. . There it lies and they will not need it to the day
of the millenium, jdthough granted for purposes of the road. Now,
may not the State confer upon another corporation the right reserved to
itself in this exercise of thc right of eminent domain ? It is not taking
away anything. It is merely using that which has not been 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 by side, without disturbance ; and what possible
disturbance can they make unless they become belligerents ?.. ." ,
Really, may it please the Court, it seems to me that the South Caro?
lina Railroad has had its own way so long that it isimpatient of con?
tradiction, and my friends are astounded that Mr. Johnston should
propound any questions here whatever. Suppose they owned in fee
simple and absolute, does that cover their land as with an xgis ? Is a
corporation protected differently from an individual ? Yet their propo?
sition is that because they hold this property it is protected from con?
demnation. Suppose your Honors owned that road, and it had oome to
you through your ancestors for five hundred years, would it be free
from condemnation ? Your Honors know that if I were to bringan
action to try title, the first thing I would show would be a grant from
thc State, or something equivalent to it. Now they have only a grant
of a base fee ; yet my land, were it even a grant of a fee simple, can be
taken, while around theirs is thrown a shield. That, surely, is not law,
and it would be monstrous if it were so.
But I go further. I say that if that land were granted- to them for
their exclusive use, which it is not, it is still subject to condemnation.
The other side have argued very justly, that when you go to take a
thing for which an exclusive right is given,!you must show a grant
either express or implied. Now the person who drew the Act of. 1868
seemed to be advised of that law. In the old law there was something
which gave them a claim to protection, and that is precisely what
the Act of 1868 has removed. The language is as plain as the sun in
the heavons. The Act of 1868 says : " That no lands or right of way
" which have heretofore, or may hereafter be procured for the construc
"tion or use of any highway, shall be considered exempt from liability
" to condemnation." The Legislature recognized the law that where
there is an express grant, there must be legislative authority to inter?
fere with it; hence this explioit and clear provision which repealed the
old law that has been cited and relied upon. Still the rights of corpo?
rations under former ?tatg?es are respected, and parties are forbidden
to invade their privileges or destroy them ; for the Act continues : " Pro
" vided, that in the construction of such other highway there be no
" hindrance to the use and enjoyment of the highway for which such
" lands or right of way were previously procured." Judge Platt, there?
fore, decided right. He says to this party you claim to have an excep?
tional case; if so, the Court of Chancery is the place for you; but I
shall go on with the other branch of the case which cannot be tried in
equity, and shall ascertain what these lands are worth, and require you
tender the amount of compensation. I am really at a loss to see any
cause for inveighing against such n. judgment. Could he say I will
wait here quietly until Judge Boozer does certain things ? No. But
he says I will do what I have to do, and it shall stand subject to what
you have claimed as an exceptional case in the Court of Chancery,
which will take cognizance of the matter and end it. Is not that what
it ought to be ? What is the harm done ? Why, that we have entered
for the purpose of construction. Now, I submit to the Court, that that
statute recognizes the distinction that has always existed in our State
with reference to this matter. We always distinguished between the
right of property and the right to enter for construction. In every
charter up to the time the recent constitution was framed, railroad
companies were authorized to enter for the purpose of construction,
and the question of compensation was left to be subsequently deter?
mined. But entry for the purpose of construction gave no title to the
land. Now, when the constitution was ratified, it was supposed that this
would work hardship upon the proprietors of the land. I have a case
now pending in Colleton District, involving an original entry of the
The Chief Justice-But the case of Blake is not determined ; I pre?
sume you refer to that.
Mr. Memminger-That is the one I refer to. The constitution
came in and said, before you appropriate you shall pay the landholder.
Then followed this Act No. 42, which provided that there should be a
valuation by commissioners or a jury, and that Avhatcver verdict they
returned, the money was to be paid subject to an appeal, but in no ease
of an appeal was the progress of the work of construction to be stayed.
While the appeal was pending it was clear the railroad could hav^ no
title to the land, although the statute gave thc party power to enter.
Formerly it was unnecessary to pay the money until the final decree.
Now. I submit that is precisely what your Honor intended in your
decree, when in granting the injunction you said : " It is ordered, that a
" writ of injunction do issue enjoining the defendants, etc., but that the
" said writ be issued by the Clerk of the Court of Common Pleas for
" Richland County, with liberty to thc defendants to move for the disso?
lution of thc injunction at any time before the hearing of the case, on
" proof that they have duly acquired the right to enter for the purpose
il of construction upon the premises."
Your Honor drew the same distinction which is recognized by the
i law. and. therefore, determined that whatever delay there might be. if
. we could show the right to enter, the injunction would be dissolved. It
was not possible to try that question until the hearing of the case, yet
? the injunction was allowed to be dissolved before the hearing, which I
- submit to your Honor was a wise decision, since it took away from the
? parties the power to impede the progress of this railroad by the litiga