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(t dents have in due form of faur put in their answer thereto
"which answer it ie "alleged, among otha- things, thai
"taking of theil* lands and ri ,iu of way a? prayed lor, ?all
"a hindrance to the use and enjoyment by respondents of tl
flown highway within the inion! and meaning of the Act af
" said, (]?o. 42.) - And if such ground of objection be madi
"appear by clear and sufficient, evidence produced as true i
"well taken, then, and in such, case, the prayer of tho petit
"must be denied,'as provided in and by section eight of the.
May it please your Honors does not this clearly indicate t
there was no o?hcr matter before Judge Platt than that
hindrance? Whuu. the question came before him subsequently
The Chief J ustiro-The Court does not desire to hear j
further on that /.point. J"dgo Platt's opinion will speak
Mr. Magrath-^Leonie, then, to the consideration of questb
that are really matters of debate. We are before this Court
a motion for a prohibition, and the first thing I have to do is
show your Honors, if you have any doubt on tho subject, tl
the power to ord?>r a prohibition is in .tlfts Court.
In Section 4, virti?le 4 of the Constitution of South Ca
"lina, it is thus'\t(dared: " Tho Supreme Court shall hs
" appellate jurisdiction only , in cases of chancery, and sh
" constitute a Court for the correction of errors at law, une
"such regulations as the General Assembly may by law p
"scribe: Provided; the said Court shall always have power
"'issue writs of injunction, mandamus, quo warranto, habeas e.
"?pus, and such other original and remedial writs as may
"necessary to giv? it a general supervisory control over all o?
" Courts in the State."
It is true the temi "prohibition" is not here to bo found ; t
as that is a wrif .original and remedial in its character, cleai
within the? scope .of this tribunal; the power to use it is
clearly granted in that clause of the constitution as if it h
been expressly mentioned.
In the case of-the State vs. Hopkins,- Dudley's L. R., 107,
was held that -when subordinate tribunals exercise judie
power and err on.the question of jurisdiction, that is ground i
prohibition ; and .so if they orr on the construction of a statu!
tor unless there was some- common controlling power over si
ordinate jurisdictions, it is probable, and we know from exj
rience, that there, .would he nu unitbrmity in decisions."
Judge Willard-Was that a case of an assumption of j ur
diction not possessed, or error as to extent of powers? Ever
thing turns on that. The-difficulty- is in- showing where :
officer misconceives the e'xteut of his right, and fails to exerci
the whole of the jurisdiction.
Mr. Magrath-I shall come to that presently. In the ca
cited it is said whether the right of appeal existed or not, ?
whether the relators availed themselves of it or not, if tl
subject matter was not under their, cognizance, . every step w:
coram nonjudice. Tour Honors will observe that ki tho fifteen I
. section of the same article of the constitution, tho language
very different in relation to the power to issue writs of prol
bition and other remedial and original writs, from that whic
is used in the fourth* section just quoted; "They (referring i
the Circuit Judges) shall have power to issue writs of ma
damus, prohibition, scire facias, and all other writs which ma
be necessary for carrying their powers fully* into effect
"Their powers," the power of each Court; not that goner
supervision which, the constitution intended to give this ti
bunal; but a special power limited to the jurisdiction belong
ingto each Circuit Court in South Carolina. ?.
The learned counsel who opened the -argument yesterday i
behalf of the Columbia and Augusta Railroad Company sai
that your Honors could not proceed under this fourth sectior
that legislation was necessary. He forgot that by the ver
terms of the constitution this Court, in the exercise of thi
power, is set above and beyond the Legislature of tho State
and the Legislatur^ can in no wise affect that grant of po we:
It is a constitutional prerogative of this Gonrtj and belong
to it as much as the King's writ does to thc Ring himself.
Nor is there any- analogy between the power given to the Si
preme Court of-the United States, and the power given to thi
Court under tho constitution of* this State, in regard to thi
matter. The judicial power of the Supreme Court of th
United States is exercised under an - Act of Congress, and i
in prohibition by that Act, declared to extend to "thc Di.?
trict Courts proce?ding as Courts of Admiralty and Maritim
Jurisdiction," and these words at once confer and limit th
power. But by thc constitution of this State the power i
given to this Court, and to be exercised when " necessary
to give it (that is fchis Court) a general supervisory cori
trol over all other Courts in the State." Whatever, there
fore, may be the Court, it is made subject to the. su
pervisory control of this Court. And the power so larger,
given, is conferred, hot by the authority of the Legislature, bu
by the constitution, the organic law of the State. I submit
that the power of the Court is ample and its exercise nee
essary, if the case we make out is one to which prohibitioi
ought to apply'.
ff, then, the power of this Court is so elear, the case mad?
out for its exercise is equally so. It is in the record before tin
Court. It presents.?the plaiu Dropositiou that Judge Platt ha
misconstrued the Act ofthe legislature No. 42. That he has mis
construed it in regard to his powers under that Act, in regare
to the subjects properly embraced in that Act, and in regard tc
the protection which he was bound to give to the legal rights o
parties, before he could proceed to condemn and make thou
forfeit to any person or corporation who would make claim tc
them. And the proposition we contend for is, that when ?
person or corporation, before Jrtdge Platt, sitting in Chambers
asks his order, to condemn to its use, an existing franchise oi
privilege, granted to any other person or corporation in express
terms by tho authority of the Legislature of the State, and thc
person or corporation holding and enjoying such pre-existius
franchise oi* privilege, denies that "the Legislature intended tc
divest such franchise orprivilege, and shows that in tho chartei
of the person or corporation claiming, there, are no express
words to support the claim;.nor evidence to sustain any impli?
cation ; before Judge Platt by an order to assess compensation,
can thus initiate proceedings to condemn aud forfeit such pre?
existing franchise or privilege; there must bo a preliminary
trial and decision as to the intent of the Legislature to divest
its pre-existing grant of such franchise or privilege ; and to vest
the same in the person, or corporation making claim^thercto.
We say, and it is not denied, that what is sought to be taken
from the South Carolina Railroad, has been granted to it, by tho
authority of the State itself. That the State has never ex?
pressed its purpose to resume what it has so granted and to vest
the iiame in the Columbia and Augusta ; Railroad Company.
And that before Judge Platt can thus divest the South Carolina
Railroad Company of its legal rights, he must be sure that thc
Legislature so mtended. ; That for tho decision of that question
of intent, a trial and decision preliminary to his condemnation
thereof must be had. And that Judge Platt haR no pow?r
under the constitution and laws of this State, to decide that
question, at bis Chambers ; still less has he power to proceed to
condemn, while he refuses to hear and decide ; and yet in his
condemnation, involve the idea of his having heard and de?
That such a proceeding calls upon this Court for its supervi?
sory control would seem clear; but the authority for its ex?
ercise of such control, is too positive to be neglected.
In the case of Thompson vs. Ingram (14 Adolphus and Ellis
710, 68 English Common Law Reports, 709.) "Action in County
Court, defendant says title in question. The Judge ruled not.
Perciiriam; the Judge had prima facie jurisdiction ; pleadings
would not show title in question*, that would arise upon the evi?
dence ; as soon as it appears that jurisdiction ceases."
Now, your Honors will observe that in this case we are ask?
ing a writ of prohibition for the purpose of correcting by your
exposition of the Act of 1842, thc errors which we claim
appear in the course of the proceedings. We are not asking
you t-> command one thing or another to be done; but to deter?
mine how far the parties in these proceedings have acted ac?
cording to law in the construction of the Act of 1842. That is
the relief wc expect to obtain by prohibition, and that is the le?
gitimate object of a prohibition.
In the case cited the J udge had jurisdiction prim.: facie. The
title did not appear, but as soon as tho title appears in ovidence,
say the English Courts, jurisdiction ceases.
Judge Willard-Do yon take the broad ground that where
ever a proceeding is-instituteel under the Act of 1868, thc asser?
tion of title is sufficient to oust the jurisdiction of the Jud"-e?
Mr. Magrath-No, sir. Your Honor is well aware* that
general propositions are dangerous. My proposition, as I have
already stated, is that where in an application before a Jud"-e
sitting at Chambers, it is made to appear to him that authority
claimed to be derived from the Legislature is in conflict with
authority equally powerful, granted to some other person, and
conferring legal rights sought to be divested; he has no right,
sitting in Chambers, without the authority of the Legislature
and without trial according to law, to determine tho intent
tho L?gislature between tho conflicting grants. Nor has
power, while refusing to hear and deeuie a question of lo,
right, arising between what are alleged to be conflicting A
of thc State Legislature, to set in motion those proceedin
which are provided for cases where legal rights are not in qu
tion, and aro intended to become the evidence of such righ
vested in the person or corporation in whose behalf snch p
ceedings are obtained. No further do I intend to go upon t
general proposition than that, for I desire to argue this case or
upon the question directly involved. I repeat, therefore, ai
proposition of law, that in such cases a question divesting le?
rights, and affecting title to property, cannot, under the ct
stitution and laws of this State, oe determined by a Judge
In Com. Dig. Tit. Prohibition, Letter F, 14, it is said: "P;
hibition will lie if spiritual Courts try custom or prescripts
which are matters triable only by the common law." Also t
same book Letter G, p. 10 : " In a- question of tithes^ if t
parishioner prescribes in modo, the jurisdiction ceases altogether
So in Bacon's Abridg. Title Prohibition, Letter L, 2: " Questio
of freehold and rights, are only triable in temporal Courts, and
ecclesiastical Courts intermeddle with these, prohibition lies."
In our own State, in the case of thc State vs. White, 2 N.
McC, p. 174 : " Prohibition may issue upon a suggestion th
oithor tho cause original or some collateral mattel' arising there
docs not belong to that jurisdiction, but to the cognizance
some other Court." In the very case cited by counsel on tl
other sido yesterday, 3d Richardson's Reports, 113 : "The tri
object of prohibition is to restrain thc usurpation of infer!
tribunals, and compel them to observe limits of jurisdiction, ar
they cannot dispense: with the evidence of witnesses and snbsl
tute therefor written statements." So in Bacon's Abridg., 58'
" If a spiritual Court incidentally misconstrues Acts of Parli
mont contrary to the rule of common law, prohibition lies eve
after sentence. Misconception is a matter of prohibition ratfn
than of appeal." In bur own State again, in the case of tl
State vs. Ridge!!, 2 Bailey R., 560 : "Although parties are wit;
in the jurisdiction of interior Courts,-if the bounds of law ai
transgressed;' prohibition will bc awarded." Where inferie
Courts misconstrue Acts of Parliament, Gould- us. Gapper,
East R., 345, is full to the same point, and exhaustive of tl
question. Lord Ellenborough, the Chief Justice, delivering tl
judgment of the Court, observes : " The objections to grantin
prohibition in this-case are first, that it is too late after sentenc<
second, that misconstruction of a statute is matter of appeal, an
not of prohibition." The first of these objections do not aril
here ; the second is that which we propose to consider, an
which Lord Ellenborough considers in the question as he state
" whether such misconstruction be a ground for-prohibition, (
meroly of appeal." -
It is in the consideration of this question that he most eflec
ually replies to the application attempted to be made to this cae
of Home vs. Lord Camden : u The authority of which," he say
" as to that point, received no confirmation in tho House <
Lords," remembering also that in that very case reported i
1 Hy. Bl., 515, as also in Brymer vs. Atkins, 1 Hy. Bl., 164 an
188, Lord Loughborough and the' other Judges of the Court (
C. B., clearly considered the misconstruction of an Act of Parin
mont as ground for prohibition. In the same case, after adver
ing to the cases of prohibition to tho spiritual Courts, he adds
"Authorities may be found equally strong as to the Courts c
Westminister Hall, interfering by prohibition where statute
have been expounded otherwise than tho Courts of common lai
would expound them." At p. 370 he says of tho number c
cases which ho had reviewed: "The subject matter of all thes
cases, both as they involved the determination of questions c
? temporal nature, and, the construction of statutes, was clear!
within the jurisdictknrof the several Courts prohibited. The;
arc cases in which the judgment given below might hav
been corrected on appeal, and some of them are cases where th
common law Courts have taken upon themselves the construe
tion of Acts of Parliament made respecting subjects peculiar!
relating to the inferior Courts so prohibited ; and have yet evei
in such cases granted prohibitions when such inferior Court
misconstrued these Acts of Parliament."
The authority of this case has never been questioned ; am
whilo it is authority, tho proposition is not to be questioned
that as is said in the case in Dudley, misconstruction of a statut
is matter for prohibition, though thero may be an appeal.
Although prohibition ia the King's prerogative writ am
issues properly out of the K. B. for the furtherance of justice, i
may in England in some cases issue from tho Chancery : thi
Common Pleas, or Exchequer directed to the Judge and partie
in any inferior Court. 3 Bl. Comm. 112. And in the case o
Wadsworth vs. Queen of Spain, 7 E. L. and Eq. M., 355, it i
expressly ruled that "if the record fully discloses the error int<
which the inferior Court bas fallen, after there has been ni
excess of jurisdiction, a prohibition, and not a writ of error, ii
tho appropriate remedy."
May it please your Honors, we do not stand here to ask you
by anticipation to decide thc question of right; but that you wil
not quietly sit and see our legal rights buried and destroyed bj
proceedings which have been had in thc other Courts; when i
is in your power, by prohibition, to enable us to go before i
competent tribunal, try all the questions of right involved in thi
case, and if necessary come regularly before you by writ of error
Judge Willard-:Ha.ve you any authority going to show thai
a misconstruction of statute is ground for prohibition as bctweer
Courts proceeding under the common law?
Mr. Magrath-I submit that all the cases cited show thal
where any Court, in a matter of common law jurisdiction, is not
proceeding according to the course of common law, prohibition
Judge Willard-Taking the .spiritual Courts, und tho Courl
of Admiralty as a type of Courts not proceeding according to
the course of common law. can you find any instance whore
prohibition is allowed to a Court proceeding according to thc
course of common law, upon misconstruction of tho statute ? In
other words, was not this authority allowed, to shut out thc
subtile introduction of ecclesiastical and civil law in these
Mr. Magrath-Undoubtedly; it was intended that tho King't
Courts should be protected as against thc Pope's Courts; and in
this and also in the supposed aggressions ot thc Admiralty, pro?
hibition was at 'first most actively employed. But the remedy
afforded in relation to these Courts was found useful in any
other Court which ? misconstrued an Act of Parliament, and
therefore did not properly exorcise its jurisdiction.
Aa was said" in Nathans" case, the Courts of South Carolina
have found occasion to enlarge tho relief afforded by prohibi?
tion ; and your Honors cannot cxcludo from view thai according
to the constitution, the authority conferred upon this tribunal
is designedly made most extensive for a supervisory control over
i:all other Courts in this State;" a power ut least as groat and
extensive as that conferred upon any similar Court in ' the
United States. The languago is emphatic. "The Supreme
Court shall always (that is at all times and in any stage of the
proceedings).have power to issue writs of injunction, etc.. and
such other original and remedial writs as may be necessary to
give it a general supervisory control overall other Courts in the
State." Now, if profiibition is a mode whereby this super?
vision may be accomplished, and of that there can bc no doubt,
then, according to the constitution, this Supreme Court is bound
to exercise that power whenever an inferior Court may appear
to it not to have proceeded according to law.
The true question of the case then comes up, has there been a
proceeding which is not according to law?
This brings us to the consideration of Act No. 42. Now,
the Court will allow me to observe, that striking out the
eighth section, the statute almost wholly conforms to the pre?
existing legislation in the State on the subject; the only dif?
ference being that instead of application made as formerly
to the Court, and tho valuation made by commissioners, it
is now provided that tho application shall be made to the
Circuit Judge, and tho valuation shall be made by a jury. But
it is no whore said that such application shall be made at
Chambers; and unless so said, we shall presently show it can
only be made in Term.
In tho first section of tho Act, it is said " that whenever any
person or corporation shall bc authorized by charter to construct
a railway, canal, turnpike or other public highway in this State,
such person or corporation before entering upon any lands for
thc purpose of construction, shalL give to thc owner thereof (if
ho be sui juris) notice in writing that thc right of way is re?
quired over said lands for such purpose." Observe now the
phraseology, while I read the eighth section: "That no lands
"or right of way which have heretofore or may hereafter be
" procured for the construction or uso of any highway shall bo
"considered exempt from any liability to condemnation, but
!! the right of way over said land, and across or along such right
"of way, may be condemned for the construction of any other
i: highway; Prodded, that in the construction of such othor
" highway, there be no hindrance to the use and enjoyment of
??''??' r " ,
" the highway for which such lands or right of way wore pi
.'Viously procured; and in nil: such cases, notice of the app
'.cation for a jury shalt bo served upon tue President of tl
" corporation whose landa.or right of way shall be required, i
"upon any director or local agent of the corporation."
Are the matters referred to in the first section, by a just co
struction of that statute the same as are referred to in the eigh
" Railway, canal, turnpike or other public highway," are d:
tinct terms used iu the one section ; and "any highway," is tl
only term used in the other section. Now, will any one sho
an authority where a law relating to " highway," has been co
construed a law relating to "railway?" .
"A dedication of land to the use of the public as a highwa
is not the dedication of it, to the use of a railway." (1 Re
field, p. 303.)
The question has exercised the Courts of New York, wheth
a general power to cross " a road " would include the power i
cross "a turnpike," and it has been decided by them in both way
It bas been decided by tho Supreme Court of New York that
did not include a right to cross a turnpike, and decided in tl
Court of Errors that it did include such right. ?
The Utica and Schenectady Railroad Company had tl
right to purchase the Mohawk turnpike and use it as a highwa;
but no authority to uso it for a railroad. The Court held thi
the corporation could erect an embankment to its own injui
as owner of the turnpike ; but was liable in damages to the ai
joining proprietor. (Mahon vs. Utica and S. Railroad Company
Lalor, 156.) Here was a remarkable case in which a railwa"
company having bought a turnpike, proceeded to use it for tb
purposes of a railway, but the Courts held that although it wt
dedicated to the use ofa highway, it did not by its transfer becora
entitled to the privileges of a railway.
The General Railroad Act, New York, 1850, gives a railroa
corporation power to construct its road "across, along, or upo
any stream, highway, plank road," etc., and adds as a'conditio
that it shall restore the stream, highway, etc., to its former state
but I challenge the counsel for the other side to find a case i
the books of New York, in which a railroad corporation eyer hs
ventured under that grant of power to assert its right to crol
another railroad. What means "highway?" I refer to Bouvie,
in title "Highway."
Again, " highway " is a term applicable to all great roads leac
ingfrom town to town, markets and public places, and denotes
way common to all travellers." (Harding vs. Medway, 10 Me
460, 3 Kent's Com., 525.) Can a railway then be considered
public road? Gr is a general law relating to.public roads,
law relating to "railways?" I think, may it pleaso your Honor
there can be no doubt on these points.- -
No case has been found in which one railroad has interfere
by any general law relating to roads with the privileges "of anothc
railroad ; it must have the authority of a special statute. You
Honors will bear with me while I quote from 2 American Rai
way Cases, pp. 154-5, Bradley vs. N. Y. and N. H. R. R. Co.- " Th
defendants, although acting in and under an authority derive
from the State, do not act, properly speaking, in its behalf, o
as its agent or representative, nor with a special "reference t
the benefit of the public, as is the case when roads or othe
public improvements are made under tho immediate directio:
and superintendence of the State, or its agents constituted fo
that purpose, and for the gen?al accommodation and benefit c
the community; but under a special grant of power deemed t
be acquired from the State for a valuable consideration, and fo
the promotion of their own direct and private advantage.
And, therefore, iu the judgment rendered in that case, th
learned Judgo says, tho question between thc two railroad com
panies " becomes one not between an individual and the State
but merely between one individual and another, and dependim
on the extent and qualifications of the charter of tho defend
ants, and the obligations imposed upon them by that instru
mont." (P. 155.)
In the samo case, the Court spoaks of a general law of the Stat
of Connecticut regulating highway's, and declares tho opinion tba
it was competent for the Legislature of that State to have made ;
similar law in relation to railways. Not that thc law regulatinj
" highways " was applicable to " railways ; " but that a law niigh
be made which would regulate "railways." Is it necessary ti
carry demonstration further byr legal argument than to shov
that in all tho States where regulations have been mad
touching highways, in not one of them has the regulation beei
extended to embrace the case of a railway*?
By reference to the 19th section of the 4th article of th'
constitution, it will be seen that " thc qualified electors of cacl
t; county shall elect three persons for tho term of two years
"who shall constitute a Board of Couftty Commissioners, whicl
"shall have jurisdiction over roads, highways, ferries, bridges
"and in all matters relating to taxes, disbursements of money
" for county purposes," etc. Here is a constitutional regulatioi
similar to that which is to he found in the Northern States ; bu
will your Honors say that this clause, ovidently taken from om
of their constitutions, shall receive a construction and involv*
a power beyond that which it ever has had elsewhere?
Tho rights claimed by railroads, whether as against indi
viduals or against a State, are matters that receive a stric
construction; therefore it is that a right to run "across i
road" is not a right to run "along" a road, and you canno
run "along" for the purpose of running "across." This poin
is distinctly made in the case of Smith 47, Maine R., 35, (1 Red
field, 246-note.) The case of the Richmond Railroad Com
pany vs. the Louisa Railroad Company, reported in 13th How
ard, 71, familiarly referred to as a case which establishes
the right of one road to cross another, establishes nothing
more than the right of the Legislature by express enactment tc
authorize it to do so ; and in that instance there was a specia
grant in words to carry tho road to a given point, unless thc
Richmond Railroad would consent to certain terms.
In' the case of tho West River Bridge vs. Dix, (6 Howard
507,) tho question related to a highway, the Act of Vermont ol
1839, declaring that " whenever thoro shall be occasion for ?
new highway, tho Courts shall have power to take any rca
estate, easement or franchise of any turnpike or other corpora
tion." It was a question between bridges, but tho righi
given by the Legislature to that special corporation, was like
wise given in the cases of the Boston and Lowell Railroad vs
Salem and Lowell Railroad, (2" Gray R., LJ and thc Lowell and
Lawrence Railroad ri. Boston and Lowell Railroad, (7 Gray, 27/
Judge Willard-Do you take tho position that tins right ol
crossing can only exist by grant in express terms, and car
never arise by necessary implication ?
Mr. Magrath-Not at all. I maintain that n grant may be by
express words or by necessary implication ; but that in eithci
mode if questioned it must be proved.
Now, your Honors will find that neither according to the de?
finition of the term "highway," nor by any case to be found in
the hooks, has a right given by a Legislature to u highway, been
considered a right that could be claimed by a railroad. Authorities
on this subject of the most pointed characteraro before me, andean
be produced, if the Court desires. But this is not all. 1 have shown
that in relation to highways, the constitution has provided a
special jurisdiction for their regulation, and that jurisdiction
does not embrace cognizance of questions ofa railway. I may
go further, and say that in all of the Slates of this Union, thc
Legislatures ever have been most cautious in framing rules for the
preservation of property and life, in cases of railroads; and yet
your Honors aro called upon in the present instance, when there
does not appear in the statutes any regulation whatever, or any
body empowered to make a regulation concerning parallel lines
of road, to presume that that which elsewhere has been a matter
of the most careful legislation has been studiously avoided err
carlessly ignored by tho General Assembly ol"South Carolina.
This brings me to notice a somewhat collateral point-the
crossing of the bridge at Colombia. How was that crossing
made? Does anybody know ? To this clay can anybody tell
by what authority? While the motiun for an injunction was
pending before the Chancellor, while the question as io the
right of the Columbia and Augusta Railroad Company, was yet
undecided in tho mind of tho Judge, thc rails were laid, thc
cars were run over, and thc Court of Errors passed judgment
not upon tho question of the right to build the road, but upon a
road already built; ignoring tho decision in one of the best
considered cases in England, where it was held that unless the
right was distinctly given to cross a road, it could not be en?
forced compulsorily under the charter. The Clarence Railroad
Company vs. the Great North of England Railroad Company,
4 Q. B. R., 46.
We concede that lands or rights of way are liable to condem?
nation, but the condemnation must be by the authority ol' thc
Legislature in express terms, not by thc assertion of its claim hy?
the Columbia and Augusta Railroad Company. Your Honors
will observe that while we thus announce a proposition which
tends to r,he maintenance of order, and the preservation of tin;
right of property, the other side rest on a proposition
which ignores all right of property, and subjects it to the
mere assertion of a claim by an individual or a corporation.
i , i, . _ in " . . . y:
The question is not whether the State reserves to iie?ttiti
sovereign power in the oxorcise of eminent domain to'ttf en?
forced in special cases ; but whether it has oast that power forte
to bo claimed and exercised at will by any person or corpora?
tion; having*no other or higher power than the mere granit of
a right to construct a railway, canal, turnpike or other public
highway? Can you believe that the Iiegifllature^in?enep? to
dispense this great authority in a manner so trifling and' dan?
gerous-throwing it upon the confmunity to be' used;' or
abused by anybody? Has the power of eminent Romain ia
all history ever been so carelessly given out? And if it^ be.
claimed as is done in the present instance, ' where"Wjtom
limitation? I cannot express the true idea Of the maimer ia
which the Courts of tbs State should regard Iniflfaffli?foa,
better than in the language of Judge Winard. '"'*f4m^*5B
featly the object of section 23, article 1, to engraft u? S?
laws of this State, a feature elsewhere now generally re?
garded as important for the protection of rights of prat?rty
namely: that persons and corporations; au thorneedtbput in ex.'
ercise the extraordinary powers of the eminent domain, should
enter upon the lands of others, either with their consent^ or
under the sanction of a Judicial act determining the rightful char?
acter and proper limitations of such authority/' Voak
nothing more than your retiing shall be applied to this ??l||f^
May it please your Honors, can any safer rufe be laid' down 7
Suppose that section eight of tB% Act of 1868 ia by "forced
construction made to apply to railroads, can you find a better
guide by which to aclminister that act than is given t^thtfp&B.
guage of Mr. Justice Willard. ? But can you find that'eafejpard
recognized or adopted in an-/ p*~- of the proceedings Wthil
case? Not so. Where can yon if-td the '"sanction orfed??ial
authority for the claim ma* ?o by 1 he Columbia and ATi^sta
Railroad Company, to its exercise r( the eminent dom^t^ A
Judge, at Chambers, refusing; io U?T the defence hfs^S^pxg
legal right^ conferred by grax frorr- the State ; yet co?&?pSng
the same right, and vesting ?. in Other. A jtrJry ?btfjpS^ra''
according to the law of tbr. land . pplicable to' cases^Jlew
questions of freehold are coi.?ornee*/ i>ut selected by the C? erk,
and accompanied by the Clo.k, an'" making the con?emnpwii
contrary to any prescribed oi idcoji? tzed legal mods. ~ 'r
Judge Willard-The question i? my mind isVh?^r
remedy you seek is not lodged in tne Court of Equity. ' tinder
the new law, there is a transition and one giving rise to'an
interesting question. The Circuit Judge is now cloth^t'jrit?i
general power; he holds the Court of Equity, and ean therefore
entertain both proceedings. Is not his position precisely *nj&
gousto that of the Judge under th?' grevions'.'synt?m/'wlwpU'
judged not only legal .matters, but certain matters of Equity
growing out of the case? ''
Mr. Magrath-There "was a remedy in equity. M^rj.WiL
lard gave us the remedy: and when he made bis orcL?r?or?he
injunction it was prot?ction, up to that point where we had .a
right to ask it. Mr. J. Willard made his order of force until
thc right of the Columbia and Augusta Railroad Company had
been "duly acquired;" that is the right "lawfully acqiiirOd "
But Judge Boozer considers it thus acquiredj because Judge
Platt bas ordered a jury to assesB compensation ;fbr;^Eb^*^?
demnation of the right; and Judge Platt ordered w^nr^to
assess compensation, oecause no injury could'be done thereby,
as Judge Boozer in hearing the motion to disaplve4ti8%^ffiC
tion, would hear and decide all the questions in' the casel ; ; ;i
And admitting that section eight applies to ra?roadsftn?/Vtfre
proceedings which, if adopted, would grve'protop'tio?j'.'buib;^^
have not been adopted, because the Judge has notj^n'?^f?
construo the Act as we think your Honors wiU <eon^^B^tj.
The difficulty has been that Judge Platt considerecf?Ka?'w?
Legislature gave him power to condemn, but' no poVer tc^ln
quire whether, in a given case, it intended to condemn^
I recur-to the language ofthe Act: "But the right' of
I way over said land, and across or along such rigHt of V?y, may
be condemned for the construction of any other' hi^^sy*'. pro?
vided, that in the construction of such other highway} thwre^ne
no hindrance to the use and enjoyment of the highw?y?br
which such lands or right of way were previously 'nrocq&o1."
Your Honors will mark the limitations to the exercise bfthe
right-the right of way "over" said land; and the right of way
"across" or "along" such right of way. What is the demand
made ? " The said Columbia and Augusta Railroad Company
require the right of way in, along and OVEB the right^'of ,Way
and lands, now claimed by the said South Carolina Railroad
All of these words, may it please the Court, have attached to
them fixed, precise and technical meanings; but distinctions
elsewhere recognized, seem to have had little weight m-&is"'difl
I have shown your Honors that the right " to cross ""?'road
does not involve the right to go "along" for the purpos?'of
crossing; it involves a simple right to cross directly. The Act
of the Legislature says " over said land;" and "acrosVor.along
such right of way;" and the rule of construction ?s^lt?ict.
Suppose this eighth section was drawn with speoial referenoe,
to the case of the Columbia and Augusta Railroad ; I do
not know whether it was or not; whether the purple was
general or special, who was its author or by what tights it wa?
drawn, but we may suppose anything-what right could've
claimed by that road ? Chancellor Carroll says, m his decree,
"the right to run parallel with tho South Carolina-\Railroad
from Graniteville to Hamburg ;" the Chancellor said th?Fwas
their right. If they claimed more under Aot 42, they co^ld
only claim tho right to go "across" or "along" and notff*tfpbn"
any existing right of way.
Then, howover, comes the proviso : " Provided, that in the
construction of such other highway there be no hindrance .to
its use and enjoyment of the highway for which such lana's or
right of way were previously procured." Suppose there' is a
hindrance, who tries it? Who has authority to try it?' ' If you
confine the operation of this eighth section to the question of
a highway, you have in the nineteenth section of the fourth
article a tribunal established for the purpose of understanding,
directing and controlling that question- but in a question of
hindrance between railroads, who is to decide that point ? Not
the County Commissioners, for they have no authority. "?T?io
ihen ? The Judge before whom tho application is made?VV^ere
is the authority ? Hindrance is a case made in the proviso.;r ?t
is, therefore, a case taken but of the general provisions ?i^tiEe
Act. If, therefore, there is no special provision made f?rj ito
trial, it must be tried according to law and in Term. But, seri?
ous as are these objections, they are not regarded ; and the ques?
tion of hindrance.is assumed as one which, without any special*
authority, the Judge alone has a right to decide-, and secondly,
that having such right, ho can entertain the question out of
Term time. Your Honora are aware that in the Medical Col
lege case, the Court of Appeals determined that a Judge in
vacation could not entertain a motion for a certiorari except .
in Term time, unless by authority of an Act of the Legislature.
Nor can you point me to tho law in South Carolina by^ which a
Judge in Chambers is authorized to decide a question mvolving
tho divesture ol' legal rights? And if that question of legal
right involves matters of fact, resulting from testimony, the
power of a J udge at Chambers to decide it, is no where to'-'be
found. What is hindrance ? Is it not a question of f?ot?| $!be
constitution expressly provides that "Judges shall not even
charge juries in respect to matters of fact;" and yet the propo?
sition has been maintained on the other side, that although a
Judge shall not express an opinion upon a question of faotl)efore
a jury, he can, without authority, sitting at Chambers :d?ter?
mine that very question. In tho case reported in 1 American
Railway Cases, 576-the inhabitants of Springfield vs. the Conn.
River Railroad, Chief Justice Shaw bold that the Vermont Aet
of 1849 did not give jurisdiction to thb Commissioners to decide
whether the railroad was laid down, or located in conformity
with thc grant of power given in the Act of incorporation.
Judge Willard-Those were Commissioners to ascertain com?
Mr. Magrath-As in this case is the jury, yes ; as suoh and
without other power they could not decide a question of loca?
tion, and certainly, therefore, not a question of conflicting
claims. May it please the Court, I have only brought to your
attention the most prominent of this class of cases, and there is
enough in them to justify your Honors in excluding from this
case altogether the consideration of the eighth section, as a
section applicable to railroads. Those cases, at least, go far. aa
to show that thc power authorized to determino the location of
a railroad, is not the power to determine thc right of location ;
and under our laws and decisions, it is submitted in the tlyrd
place that when the question of hindrance does occur, it is not
a matter to bu decided by a Judge at Chambers. . ..
Judge Willard-Is thero not a distinction between a.. hin?
drance of a general character, which might present a question of
equity, and hindrance as a special question? Might there not
be man}' questions relating to these two roads only triable in a
Court of Equity ? aud yet may not a special question of bin- .
drance arise in reference to land sought to be condemned which
i could properly come before a Judge at Chambers ?