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title: 'The daily phoenix. (Columbia, S.C.) 1865-1878, January 10, 1869, Image 1',
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BY JULIAN A. SELBY.
"Let our Just Censuro
Attend the True Event."
COLUMBIA, S. C.. TUESDAY MORNING, DECEMBER 1, 1868.
Tri-Weckiy 85 a Year
VOLUME IV- KO 21^.
PUBtilBIIBD DA 11.7 ARD T1U-WKF.KI.T.
EVEIIT WEDNESDAY MORMNO.
BY JULIAN A. SELBY,
. EUITGS A?tS PaoiaiKroR.
Office on Main St., few doora above Taylor.
TERMS INVARIABLY IN ADVA NC E.
DH?V, G months..$4 00 | Tri-Weekly, G moe...$2 GO
Weekly. 6 mont hB.$1 50
Inserted at 75 con tu per square of niuo lines for
the fini Insertion, and 50 cents each subs?quent.
Weekly 75 cents each insertion.
aar A liberal discount made on the above rates
when advertisements are inserted bi', the month.
Ao EN TH . -Hiram Mitchell, Spartanburg; J. It.
Allon, Ohostor;8. P. Kinard, Newberry 0. H.?Jas.
Grant, Union; Julius Poppe, Anderson C. H.
Tiie Columbi? und Augusta Itailroucl.
In our issue of December 18, ultimo, we
published tho opinion of Judge Platt, of
date the 4th December, ultimo, on the pe?
tition of tho Columbia and Augusta Rail?
road Company for tbe condemnation of a
-way over certain lands of the Soutb Carolina
Railroad Company. This opinion concluded
with the following order:
"It ts, therefore, ordetedand determined,
That the petition of the Colombia and Au?
gusta Railroad Company has been presented
in duo form of law; and thot respondents
Lave, in due form of law, put in their answer
thereto, in wbicb answer it is alleged,
among other things, that tho taking of their
lands and right of wa}', a's prayed for, will
be a hindrance to tho usa and enjoyment by
respondents of tbeir own highway, within
tbe intent and meaning of the Act (No. 42)
aforesaid. And if such ground of objection
be made to appear, by clear aud sufficient
evitlenco produced, as true and well taken,
then and in such case the prayer of tho pe?
tition must be denied, as provided in and
by section 8 of the Act aforesaid. But in
the absence of such proof, the order prayed
for will be granted.
"And il is further ordered, That the hear?
ing nf the case, for the purposes above ex?
pressed, be continued before mo at Cham?
bers, in Aiken, on Thursday, the 10th day
of December, instant." .
Wo are now furnished with the further
opiuion of Judge Platt, with his order for
the jury, and with the jury'8 inquisition and
verdict. Those we publish below, as part
of tho history of this interesting and im?
portant case. We understand that the South
.Carolina Railroad Company have given no-,
tico of appeal to tho Circuit Court of Edge
field, whioh will sit in February next; and'
will then move to set aside the verdict as
"irregular, illegal and void."
Ex pur te tho Columbia and Augusta Rail?
road Company. In re, Petition for a jury
to assess compensation over lands and
right of way of, tho Sonth Carolina Rail?
(In continuation of my decision and opin?
ion of 4th Doeomber last:)
Tho counsel did not assemble on Thurs?
day, the 10th, in pursuance of order of 4th
ult., but did appear on Friday, the 11th,
and the case was proceeded with. Respon?
dents presented and filed thoir further and
additional answer to the petition, setting
forth and insisting that the Act aforesaid,
in permitting one company to enter upon
and use the lands and right of way of an?
other company for the construction of its
road, did not apply to companies previously
chartered, but only to such as should be
thereafter chartered; that the word "shall"
in tho 3d line of the 1st section, indicated
tho legislative intent to have its application
confined to companies to be chartered in
the fulnre. I could not acquiesce in this
narrow construction of the Act. and over?
ruled the objection. Too great stress if
often laid upon merely verbal oriticism, in
our endeavors to ascertain the legislative
intent. True it is, the word shall, is, gram?
matically, a verb in the future tense, and its
precise moaning depends very much upon
tho other verb with which it stands associ?
ated and tho context. By reading the entire
Act, it becomes clearly manifest, that said
first section was intended to bu aud ia appli?
cable to all companies, whether chartered
previously or subsequeutly. lu declaring
what corporations may avail themselves of
tho beneficial provisions of the Act, it says:
" Whenever am/ corporation shall he authorized
by its charier to construct a railioai/, tte." In
my judgment, tho true intent and meaning
of the words above quoted, are sufficiently,
clear to justify petitioners in their interpre?
tation of thurn; but such meaning would
have been more happily and more accurately
expressed, if, instead thereof, they had
said thus: "Whenever any corporation shall
bo able to show that it is authorized by its
charter, to construct a railway, &c." If any
doubt remain in regard to it, such doubt
will bo dissipated by tho reading of section
8, which declares that, "No lands or right
of way, which havo heretofore or may here?
after bo procured for the construction or use
of any highway, shall bo considered exempt
from liability to condemnation, but the
right of way over and across and along such
right of way may bo condemned for tho
construction of any other highway." If this
ground of objection wero well tnkon, then
two companies chartered about tho timo of
the passage of this Act, tho one the day
previous to, tho other tho next day after it,
would be differently nffected by it; tho one
1 wonld bo entitled to its beneficial provisions,
tho other not. Surely tho Gonorai Assembly
never intended to legislate thus partially for
the people whom they represent.
In this 8tug<i of thc case, respondents
wero about proceeding to the examination
of their'witncss.scs, (all present,) when it was
suggested by me, that instead of an oral
examination, tho better conrso would be to
have it in writing, in form of affidavits;
that then tho entire testimony would be of
record, in the very words of each witness;
and if ever necessary hereafter to review the
case, such record of testimony could always
bo found and referred to, and therefore
avoid tho wrong which might result to the
one company or tho other, by the failure of
human memory to state correctly hereafter
what tho oral testimony had boen.
This recommendation was approved of by
counsel and adopted; and upon re-assem?
bling next morniug, tho affidavits of tho
following witnesses were read by counsel for
respondents and petitioners respectively,
HENRY T. PEAKE, Gen. Sup't of their road.
?T. E. M?KLET, their Agont ut Augusta.
J. H. BITCKHALTEII, their Superintendent
or Hoad Master.
A. CAUADEUX, Civil Eng. and Surveyor.
CHAKI.ES MAHON, Civil Eng. and Surveyor.
Cou WM. JOHNSTON, President of their
GAVT. JAS. O. MOOIIE, their Chief Eng'r.
Tiros. G. WILLIAMSON, their Ass't do.
W. A. Ginnies, Acting Assi.-daut Engineer.
JOHN M. PENNINGTON, Contractor on sam?
JAS. STILLWELL, Contractor on samo road,
GJ?OKOE A. HALL, Superintendent of t
contract, same road.
JAMES G. GIUHES, Civil Engineer.
JOHN L. BRANCH, Civil Engineer.
Divers maps and profiles were produced
exhibiting the depot lot, nod also the cou?
try between Graniteville and Hamburg, es
pecially indicating the road-bed and righto
way of tho old company, and the interfe
renoo by the new compauy with their land
and right of way, in the construction o
their own road-bed. These maps and prc
files were left with me, and will be by m
filed, as part of thc testimony, in connel
tion with the nfhdavits aforesaid, in th
officor' tho Clerk. Such maps and aflidc
vits constitute tho entire testimony in th
It will be preceived by reading the af!
davits that there aro three distinct kinds an
degrees of interference :
1. The one at Graniteville, upon an
across tho depot lot of ten acres, and o
which the depot buildings are situated.
2. Between Graniteville and Hamburg (1
for 1 ?4 miles over respondents' right of wa^
and parallel with their track, fifty feet dil
tant from it; (2) for 2 miles, in like manne:
commencing about three miles from Savai
uah River and extending to or near t
3. At "Dead Fall," over land claimed t
respondents as their right of way (althoug
distant moro that 100 feet from their roai
bed) near to tho corporate limits of Hun
burg. This land was obtained by them f<
the special purpose of supplying earth ft
their railroad uses, and where for conven
enae of getting and loading such earth, th?
have constructed a "back out." Petitioner
road-bed lies between respondents' trac
and this, their aforesaid earth supply, pr
venting them, as they insist, from any a
cess to it; but petitioners say in reply I
this, that although their road-bed is,
that point, upon a little higher grade thc
that of respondents, they will so constru
it as always to permit them, by a slight e
tension of their "back out," to cross the
track, and get their needed supply of earl
os heretofore, so that although somewh
inconvenienced, they will never be binden
Tho testimony of the witnesses on bo
sides had reference to the three kinds ai
degrees of iutcrfereuce abovo described
each witness thus discriminating and par
cularly describing the kind aud degree
hindrance, or no hindrance at each of tho
points of collision. The whole mass
affidavits (fourteen in all) possess this o:
feature of similarity: their apparently u
shakable belief iu the facts stated by thu
and in their opinions formed thereon,
in the confident and emphatic manner
which they express themselvos. But i
similarity terminates here.
Tho five first abovo named, all agree
declaring their belief that petitioners' ro
can never be constructed on the line adopt
for its track, without serious- hindrance
the uso aud enjoyment by tho other co;
pany of their road; and that irreparal
injury must inevitably be thereby inflict
upon them. Most of them give thoir r<
sons for snch belief, and state where a
how tho mischief will bo done.
The last niuo witnesses abovo named
agreo in declaring their confident belief tl
respondents can never be hindered in t
uso and enjoymeut of their highway by t
construction of the other road; but, on I
contrary, they will at some points bo nm
I benefited by it; specifying particularly tho
and the 2 miles aforesaid, where by
having petitioners' road-bed between their
track and the high ground beyound both,
nud Hie track complained of being elevated
some feet above their own, tho new road
will catch nil the washings from that high
ground, and which must be disposed of by
that company, and thus tbo old compuny
bo relieved of that expensive aunoyunce,
from which they have so long suffered.
All these nine witnesses admit that the old
compauy niav be inconvenienced, and may
.be subjected to some, money outlay at
"Dead Fall;" and that like inconvenience
and vexation may bo caused at Orangeville,
by the laying of this opposition road-bed
across their depot lot; but insist that no
hindrance will be thereby occasioned to the
legitimate uso end enjoyment by respond?
ents of their own road.
But after all, tho apparently opposite
opinions thus expressed by tho witnesses,
may be more seeming than *real discor?
dances. When, on tho ono side, respond?
ents' witnesses say there will be "hindrance
to the uso and enjoyment of their highway,"
they may not mean tho Highway itself, but
hindrance to the uso of certain facilities in?
cident to it; hindrance to certain other usen
for which tho lands were procured; or . to
the construction of additional facilities,
which they mny perohanco hereafter need:
or hindrances which only exist as ajjprehen
sions of future biudrance.
On the other band, when petitioners' wit
nesses say there will be no hindrance, thoj
may mean no hindrance to tho highway
itself-to the railroad, as distinguished fron
the facilities or incidental privcleges of tin
franchise. They concur with tho othei
witnesses in stating that in somo of tbes<
incidental matters, not only inconvenience!
will bo occasioned, but oven hindrances wil
unavoidublj* occur; but they deny that thon
will be any hindrance io the ase and enjoy
vient of tile railroad, as a highway for trave
It must bo borne in miud, that all th
foregoiug testimony was given while th
petition (unamended as now) claimed fo
their road-bed, and for their own exclugiv
ase, a width o? 50 feet-all of it within rc
spondents' right of way-not only en rom
from Orangeville to Hamburg, but alao tb
like 50 feet aoroea the depot lot at GrauiW
Counsel now proceeded to argue the cns?
and I was not surprised at witnessing tl)
excited zeal and earnestness manifested b
respondents' cotiusel in tho advocacy au
.deleuce of their clients' rights, for I bud n<
brought my own mind to tho conviction t
tho possibility of their losing 50 feet <
their right of way, and especially throug
their depot lot, at Grauiteville, withoi
being necessarily hindered in their uso ac
enjoyment, Seo., as provided againt in se
8 aforesaid. I therefore felt it my duty 1
interrupt tho discussion, by declaring I
petitioners the determination my mind bj
come to, not to graut the order prayed fo
so long as they insisted on 50 feet for thc
road-bed. First, I had become couvinci
that at somo points, it must work such
hindrance as tho law had forbidden; ai
secondly, that, according to my coustru
tion of the Act, although it would tolera
and permit the ucual width for their rig
of way over hinds generally, through wbii
they required to pass, the General Asseuib
never intended to give them such right
way when they begged the privilege of Ia
ing their road-bed along and over the reg
lar and usual right of way of another coi
pany, and that too for miles, and al
through and over their very depot lot; tb
in my judgment, tho Act 42 iu nllowi
any interference at all with tho right of w
of another and older company, intended t
thing more than to give the right of passa
over it, and to permit the taking of so mu
of their right of way as might be needed 1
tho construction of their road bed a
nothing more; that surely the Legislate
never intended to justify so extouoivo
encroachment upon tho vested right
another company, as that claimed u
prayed for in this petition.
I int ?hunted to the couusel that if th
should express a desire to amend their pe
tion iu that respeot, I would pormit tin
to do so; but otherwise I must decline gm
ing tho order prayed for.
Soon thereafter they presented th
amended petition, as it now appears,
ducing their claim from 50 feet to mer
sufficient width for construction of th
roadbed, not only at Grauiteville, I
throughout the entire route. Counsel tL
proceedod with their discussion, Warn
and earnestly as before; insisting, on 1
ouo sido, that oven now it would work I
hiudraucu complained of; and, on tho otb
that all former grounds of complaint w
now obviated by such amendment of pi
Most of tho difficulties in my own mi
wero dissipated; but still I hud ling
ing doubts iu rogard to tho bindra
question at two points, tho ono at "D<
Fall," and tho other at the Granitev
Depot lot; and wishing to avoid the po
bility, so far as I could, of doing injusl
to either company, I claimed tho rigb
further reflection upon and consideratiot
tho caso iu its various aspects and dearin
My mind bas now become quieted'in
settled conviction, that no such bindra
as that contemplated in and forbidden
tho Act aforesaid, will ever be caused by
tho construction of tho Columbia and Au?
gusta Railroad over and upon tho right of
way of the South Carolina Railroad Com?
pany. Inconveniences will bo occasioned,
sumo injuries done, and some money expen?
ditures for tho repairs of such injuries; but
all thoso will be made good to them by the
compensation verdict of tho jury as required
and ordered in and by tho Act.
Tho last lingering doubt which troubled
my mind was whether such road-bed could
be laid through and upon tho dopot lot
without becoming a hindrance. If tho ori?
ginal 50 feet claim had been persisted in, it
certaiuly could not. Its reduction to merely
sufficient width for tho road-bed gives it a
different aspect. Tho grades of tho two
roads there aro tho same, both on same level
with tho lot itself; so that petitioners'track,
when laid and in practical use, will work no
real hindrance or any serious detriment to
respondents. It may, and probably will,
causo 'them some vexatious inconvenience,
by compelling their freight carts and
waggons to cross over this unwelcome, in?
trusive track, iu their daily iugress to, and
! egress from, tho depot. This is rather an
auuoyancc than a hindrnnce. In the
crowded city of New York, similar incon?
veniences and so-called hindrances are expe?
rienced. In almost every busiuess street
tho cartmeu and truck-drivers are compelled
to cross tho truck of some city railroad
company. It somowhat incommodes them,
and excites angry feelings, and causes much
hard swearing among the drivers, but the
owners of thoso trucks aud cartB havo never
yet complained of such railroad tracks as a
nuisance, or us a real hindrance to the suc?
cessful prosecution of their business. So
here at Graniteville, the employees of
respondents, in and about their depot, may
become angrily excited by being compelled
daily to seo and to cross over this track
(which they may deem an opposition track)
in their very depot lot; but, in my judg?
ment, respondents will never find a hin?
drance to the legitimato use of their own
road. Their own road-bed, aud the track
constructed thereon, will not be invaded 01
disturbed by thu construction of the othei
road; nor will their passenger or freighl
trains ever be delayed, much less hinderet
by it. True it is, they may be annoyed b}
the occasional whistle of a rival company,
so near to their own track, but no greater 01
more alarming "hindrance" to their use ant
enjoyment need ever bo apprehended fron
such close proximity.
That no injustice can possibly result t<
respondents, and no prejudice to theil
rights, is manifest from these two consider
ations: 1. That after petitioners shall havi
ascertained the quantum of compensation
and havo paid or tendered it, they mus
necessarily go back to the.Court of Equity
iu order to get the injunction removed; am
before they can ask its removal they mus
.show not only that they have tendered th
compensation, but that they have "acquire
tho right," (as provided in Judge Willard'
injunction order.) Their suit in Equity
now pending on the Equity side of th
Court of Common Pleas of Richland Coun
ty, embraces the whole issue as to "right,
aud every point must necessarily bo adjudi
cated npon when they apply for leave t
proceed with their road. 2. From the vei
diet which the jury may reuder under m
order, there is given an appeal which wi
bring the matter again before me while prt
siding in court, and I can then determiu
whether my judicial action now is resultin
to tho prejudice of respondents. If th
rights of both purties shall not then hav
been adjudged in said equity snit, it will b
within my discretion, as a Judge, to cot
tiuue the case from term to term in order t
prevent injustice, and to continue it uut
the qnestious of right shall be decided. ]
is, therefore, not only in tho power of th
Court of Equity lo prevent tho injustic
which respondents fear may be the result (
my order as a prejudic ilion of their questio
of right, but equully withiu my own pow<
to prevent such injustice, by refusing t
allow the case to bo tried on appeal ant
those questions shall bo decided.
It is therefore ordered and determine
that tho prayer of petitioners bo grantee
Tho order lo tho Clerk of Commou Plea
of Edgefield County, will bo issued accon
ingly. Z. PLATT,
Judge of Second Circuit.
AT CHAMBERS, December 17, 18GS.
On hearing tho petition in this case, it
ordered that the same be tiled in the offii
of tho Clerk of tho Court of Common Plea
for Edgefield County.
Ordered further that tho said clerk tl
proceed (according to the provisions of tl
Act of tho General Assembly of tho Stat
No. 12, ratified OD tho 22(1 Septembe
1808.) to einpa miel a jury of twelve to assc
the compensation to bo paid by tho pel
tioners to tho South Carolina Ruilroi
Company, for a way over the lands ai
right of way of tho said South Carolit
Railroad Company, that is to say, (1) ovi
tho lot at Graniteville Station, described :
a lot of ten acres, on which is situated tl
depot at said Graniteville Station; (2) ovi
tho right of way of 100 feet appurtenant I
the said South "Carolina Railroad botwee
the said Graniteville Station and tho poii
near Hamburg, known as tho "Dead Fall
and (3) over the lauds which lie outside
tho 100 feet right of way, but within tl
200 feet claimed by the .said South Carolina
Railroad Company at that point.
Ordered further, that in tho rendering of
their verdict, tho said jury shall discrimi?
nate between the amouuts that shall be as?
certained by them for a wny over the said
several parcels respectively.
My decision and opinion of this dato is
part and parcel of tho foregoing order.
Judge of Second Circuit.
AT CHAMBERS, Decernbor 17, 18G8.
Tne STATU OF SOUTH CAROLINA, I
COUNTY OF EDQEFIEXD. \
An inquisition, held at Granitoville Sta?
tion, in tbo County and State aforesaid, on
tho 2d day of January, Anno Domini 1869,
by thc undersigned, drawn and empaneled
as a jury, (pursuant to tho provisions of an
Aot of tho General Assembly of the said
State, ratified tho 22d day of September,
A. D., 1868, entitled "Au Act to declare the
manner by which tho lands or the right of
way over tho lands of pcrsou:} or corpora?
tions may be taken for the construction and
uses of railways and other works of internal
improvement,") and charged by tbe order
of his Honor Z. Platt, Circuit Judge of the
Second Circuit of the said State, to asses
the compensation to be paid by the Colum?
bia and Augusta Railroad Company for a
way over the lands aud right of way of the
South Carolina Railroad Company:
The said jury, being first sworn faithfully
and impartially to determino tho question
of compensation submitted to them, and
having inspected thc pre?ases, and taken
testimony in reference to tho construction
of the proposed railroad, and tho quantity
of land which is required therefor; and
having considered tho question of compen?
sation, irrespective of any benefit which tho
South Carolina Railroad Company may de?
rive from the proposed railroad, and with
respect alone to the quantity and value of
the lands required, and to the special da?
mage which the South Carolina Railroad
Company will sustain by reason of the con?
struction of tho said proposed highway
j through tho said lands, do assess the com
i pensatiou to be paid by the said Columbia
and Augusta Railroad Company, for a way
over the lauds and right of way of the
said South Carolina Railroad Company,
that is to say:
1. For a way over tho lot of the said
South Carolina Railroad Company at Gran
iteville Station, we asses tho compensation
itt (for twelve and one-half feet from centre
each way making 30,000-43,560 of an acre)
fifty dollars; it being understood that the
construction of the said Columbia and Au?
gusta Railroad through said lot will be
practically at grade, except that portion iu
rear of agent's bouse which is useless for
all purposes as far as locating side tracks
aud conveniences around a depot-yard.
2. For a way over the right of way of the
said South Carolina Railroad Company,
between Grnniteville Station and the
"Dead Fall," near Hamburg, wo asses the
compensation at (thirty feet from centre
each way) fifty dollars, it being understood
that the construction of tho road-bed of
the Columbia and Augusta Railroad will be
ut no point nearer than fifty feet from its
centre lino to the centre line of tho Sooth
Carolina Railroad track.
3. For a way over tho lands of the South
Carolina Railroad Company at tho "Dead
Fall," we assess tho compensation ut (thirty
feet from thc centre each way,) ten dollars, it
being understood that the Columbia and
Augusta Railroad Company will permit the
South Carolina Railroad Company, to extend
I a sido track at that placo across tho track of
I tho Columbia and Augusta Railroad, and
I that the construction of the lutter railroad
at that poiut shall bo at such grade as to
make au extension of the side track practi?
cable, and that the cost of the construction
and tile keeping up of such crossing shall
be borne by the said Columbia and Augusta
Aud to tho foregoing verdict, we. the
jurors, do hereunto set our hands:
JAMES A. DOZIER, (Foreman,)
THOMAS W. OARWILE,
ARTHUR A. GLOVER.
FREDERICK L. SMITH,
MICHAEL A. MARKERI1.
CHARLES A. OHEATHAM,
GEORGE W. WISE.
WILLIAM F DURISOE, Sn.
A. MI NICK.
GIBBES & THOMAS,
H EA // ESTA TE A GENTS,
COIiVMRIA , s . c .
rill IK undersigned have determined ID form a
_|_ juin.( ss parin? rshlp, under th? above name,
for the purchase and sale, on commission, of
HEAL ESTATE an 1 oilier property. Tho present
low prices for real estate, in thc South, offers
great inducements for tho investment of Northern
capital; and wc propoBS to heep complete and ex?
tensivo lists of property for sale, und to furnish
reliable information to tho buyer and aollcr
making no charge, except where nales are effected.
Advertising, when authorized, will be done Ubi tally
and on tho hist toi ms. Wo call?n our friends
throughout the State to furnish UH with u.vuruto
descriptions of any property they have to sell, with
price, terms, Ac. We have now, and aro continu?
ally receiving, inquiries after property that csu bc
purchased. JAMES G. GIBBES,
JOHN P. THOMAS,
WADE HAMPTON GIBBES,
NOY 19 Columbia, 8. C.