Seabrook v. Carolina Power & Light Co. , 159 S.C. 1 ( 1930 )

November 12, 1930.

The opinion of the Court was delivered by While agreeing with most of the conclusions contained in the opinion of Mr. Justice Cothran, I do not agree with him as to what I conceive to be one important matter; and, for that reason, I am of the opinion that the order of the Circuit Judge should be affirmed.

In his complaint, with regard to the intention and purpose of the defendant power company to condemn and take for its use a certain portion of the plaintiff's lands, he alleged "that the said threatened acts of the defendant will constitute wanton and illegal trespass upon and irreparable injury to and destruction of the property of the plaintiff." The plaintiff further set up in his complaint that the intention and purpose of the defendant, if carried out, would result in injuring and destroying "much of the most valuable, essential and necessary shade and ornamental trees; it will render the use and occupancy of said home and homestead dangerous and undesirable, and will necessarily spoil and destroy the same"; and that "the proposed location in and over the premises of the plaintiff is unnecessary; * * * and by the exercise of reasonable care and prudence the said defendant can easily detour its proposed line."

The action is one for a permanent injunction. The only matter heard by the Circuit Judge was whether or not he should grant plaintiff an injunction pendente lite, until the case could be heard on its full merits. The plaintiff submitted affidavits of Mr. W.L. McCutchen, Dr. George W. Dick, and many other reputable citizens of Sumter, tending to support the allegations of the complaint which have been quoted. If these allegations are sustained at the proper time, and the plaintiff can convince the Court that the defendant is acting wantonly, as he has alleged, the plaintiff might be, to say no further at this time, entitled to a permanent injunction. On the showing already made, according to the law of this State, the plaintiff was clearly entitled to the temporary injunction.

As it is conceded in the opinion of Mr. Justice Cothran, quoting his exact language, the only way possible, under our law, for the plaintiff, or any other citizen under similar circumstances, to protect himself against improper, unnecessary, unwarranted, or illegal condemnation proceedings on the part of a power company is "to contest the right to condemn by an independent action in the Court of Common Pleas, in equity." The cases cited by him, Columbia Water Co. v. Nunamaker, 73 S.C. 550,53 S.E. 996, and others, fully sustain this rule of our law. The plaintiff has adopted that course, the only one open to him.

Regarding the "necessity," which the law requires of a public service corporation, before it may exercise the right of condemnation, this Court, through Mr. Justice Stabler, recently laid down this reasonable and well-recognized rule:

"It is well-established law that necessity, as well as public use, must always exist in order to warrant the taking of lands, through condemnation, by a grantee of the power of eminent domain. The delegation of the right to exercise that power carries with it the implied condition that it shall be exercised only to the extent found necessary.

"As to what is meant, in this connection, by the term 'necessity,' we find the following in 20 C.J. at page 630: 'Necessity * * * does not mean an absolute but only a reasonable necessity, such as would combine the greatest benefit to the public with the least inconvenience and expense to the condemning party and property owner consistent with such benefit. * * *'" White v. Johnson et al., 148 S.C. 488,146 S.E. 411, 412.

Touching this same subject, this Court, through Mr. Justice Hydrick, had the following to say:

"The necessity for the taking above referred to need not be absolute, but it should be reasonable; otherwise corporations invested with the power to condemn might arbitrarily and oppressively deprive the citizen of his property, when it is not necessary to the public good. 15 Cyc. 632.

"In either event above suggested, unless the injunction is granted, the plaintiff might be deprived of her property, not only without compensation, but she might be deprived of it without authority of law. The case falls squarely within the principle of Riley v. Union Station, 67 S.C. 84,45 S.E. 149, and the cases therein cited." Groce v. Railway Co.,94 S.C. 199, 78 S.E. 888, 889.

In the Riley case, cited in the Groce case, the Court said:

"The only question that can be considered at this stage of the case is whether the plaintiffs have made prima facie showing for the equitable relief by way of injunction. Alstonv. Limehouse, 60 S.C. 568, 569, 39 S.E. 188. It is well settled in this State by numerous authorities that the statutes relating to condemnation proceedings thereunder do not provide the procedure for determining the right to institute such proceedings. The remedy under the statute for determining this right is therefore inadequate. When rights are to be adjudicated, and the statutes do not provide adequate remedy in the condemnation proceedings, the proper practice is for the party asserting such rights to bring an action in the Court of Common Pleas; and the Court, in the exercise of its chancery jurisdiction, will, upon a prima facie showing, enjoin the condemnation proceedings until the right to institute the proceedings under the statute can be judicially determined. In this case the plaintiffs made a prima facie showing entitling them to the injunction, and his Honor the Circuit Judge was in error in not so holding. These views are sustained by the following authorities: Ry. Co. v. Ridlehuber, 38 S.C. 308,17 S.E. 24; Cureton v. R.R. Co., 59 S.C. 371, 37 S.E. 914; R. R. Co. v. Tel. Co., 63 S.C. 201, 41 S.E. 307; R.R. Co.v. Burton, 63 S.C. 348, 41 S.E. 451.

"There is another reason why the temporary order of injunction should not have been refused. The plaintiffs' action was brought solely for obtaining an injunction, and the refusal to grant the temporary injunction practically disposed of the case without a hearing upon the merits. In Cuddv. Calvert, 54 S.C. 457, 32 S.E. 503, the Court uses this language: ``It seems to us, where, as in this case, the action is brought solely for the purpose of obtaining an injunction, and where, if the facts alleged in the complaint are found to be true, a proper case for injunction would be presented, it is error to dissolve a temporary injunction upon a mere motion heard upon affidavits, as that would deprive the plaintiff of his legal right to have the facts determined in the mode prescribed by law instead of by affidavits — a most unsatisfactory mode of eliciting truth. Indeed, the practical result in a case like this would be to dismiss the complaint upon a mere motion heard upon affidavits, without any opportunity being afforded the plaintiff to have the facts upon which he bases his claim for relief determined in the mode prescribed by law. For if in this case the injunction should be dissolved, there would be nothing to prevent the issue of bonds before the case could be heard on its merits, and if the bonds passed into the hands of innocent holders without notice, as they might and probably would do, then the controversy would become absolutely useless. If, therefore, the facts alleged in the complaint can be established upon a trial on the merits, where the witnesses can be subjected to examination and cross-examination, then we do not think it can be denied that the plaintiffs would be entitled to the injunction prayed for. The authorities cited by appellants in their argument sustain the view we have taken. 2 High on Inj. (3d Ed.), §§ 1509, 1511, and 1512; Seabrookv. Mostowitz, 51 S.C. 433, 29 S.E. 202.' See, also,Oil Co. v. Ice Co., 62 S.C. 196, 40 S.E. 169."

I am inclined to agree with the view of Mr. Justice Cothran expressed in another case, somewhat similar to the one at bar, when he used this language: "It appearing that the action is for the sole purpose of an injunction and that a temporary injunction, that is, an injunctionpendente lite, is essential to the assertion and preservation of a legal right, if established as alleged in the complaint, it follows that the refusal of such injunction was error of law. [Citing cases.]" Atlantic C.L. RailroadCo. v. Baker, 134 S.C. 106, 131 S.E. 678, 681. See, also, the recent case of Cooke v. State Highway Department,155 S.C. 63, 155 S.E. 228, where we refused to interfere with the order of the Circuit Judge granting a temporary injunction, for the reason that the plaintiff made a primafacie showing which entitled her to such injunction, pending a determination of the cause on its merits.

The cases of Hutchison v. York County, 86 S.C. 396,68 S.E. 577, 578, and Emerson v. Kaminski, 143 S.C. 36,141 S.E. 108, cited by Mr. Justice Cothran in support of his view on the question of "necessity," do not conflict with the view I hold. If they have any direct, or indirect, bearing on the question I am discussing, it is my opinion that they sustain the position I take. I refer to them briefly.

In the Hutchison case, plaintiff sought to restrain a board of county commissioners from proceeding to condemn a right-of-way over her land for the purpose of constructing a public highway. The application for an injunctionpendente lite was refused by Hon. Ernest Moore, then acting as special Judge. The opinion of the Supreme Court adopted the reasoning of the decree of the special Circuit Judge, wherein the injunction prayed for was refused. But Chief Justice Jones, speaking for this Court, was careful to distinguish between the rights and powers of "a mere quasi-public corporation, organized for private gain" (and such is the defendant in this case) and a "strictly public corporation," such as a county. The distinguished Chief Justice, referring to what had been held in Riley v. Union Station (second appeal), 71 S.C. 482, 51 S.E. 485; 110 Am. St. Rep. 579, said this:

"From this it appears that in order to prevent a merequasi-public corporation, organized for private gain, authorized by law to condemn land, from proceeding to condemn what it decides to be necessary, it must be shown that there was abuse of discretion or bad faith in the location and selection of property to be condemned.

"But we are dealing now with a strictly public corporation which seeks merely an easement over plaintiff's land for strictly public use. The danger of oppression or spoliation of private property for gain is very slight, if any. Hence there is greater reason in this case to require a showing that the public officers are about to abuse their discretion or act in bad faith, or oppressively, in changing the location of the old road.

"The statute, Section 1343, Civ. Code 1902, as well as Act Feb. 26, 1902 (23 St. at Large, page 998), authorizes the County Board of Commissioners to 'open new public roads and widen or change the location of old public roads where, in their judgment, such change would be for the material interests of the traveling public. They may obtain the right-of-way by gift or purchase, or they may condemn the land therefor and assess the compensation and damages therefor as hereinafter provided.'

"The statute thus plainly confides the matter of determining the necessity for the new road or alteration of the old road to the judgment and discretion of the Commissioners, and the complaint shows that the commissioners have determined that the proposed change in the old road will be material for the interests of the traveling public."

The appeal in the Emerson case was from an order of Circuit Judge Shipp dismissing a temporary restraining order which enjoined a Board of County Commissioners from condemning a right-of-way over certain lands. Upon the authority of the Hutchison case, supra, and another case along that line, Judge Shipp concluded the temporary injunction should be dissolved. This Court affirmed his order.

The granting or refusing of a temporary injunction, as held by this Court upon numerous occasions, is largely within the discretion of the Circuit Judge hearing the cause; and, if the Circuit Judge holds that the temporary injunction should be granted, to protect the rights of the parties pending a hearing on the merits, this Court will rarely interfere with the exercise of the discretion allowed a Circuit Judge, under the law, and especially so when his holding was based on facts. In both the Hutchison andEmerson cases, the Judge's discretion was exercised against the injunction. Here, Judge Wilson, in the exercise of his discretion, granted the injunction on the prima facie showing made. His order did not state the reasons for his action. We must assume, however, that he based it upon the showing of the plaintiff that there was no "reasonable necessity" for his lands to be taken, if there was a prima facie showing to that effect, and the record before us discloses that there was.

Neither do I think that the statutes referred to by Mr. Justice Cothran (Sections 5015-5024, Vol. 3, Code 1922) are broad enough to make the defendant here practically the sole judge of the "reasonable necessity" for the taking of lands for its purposes, as I apprehend the distinguished Justice holds. If they are construed to have that meaning, the construction would run afoul with the constitutional provision as to taking the property of a citizen without due process of law. These statutes confer the right of eminent domain upon certain public service corporations, but that right is to be exercised only according to "the law of the land." "The law of the land," as shown by the decisions of this Court to which I have called attention, gives the citizen the right to have the question of "reasonable necessity," when a corporation seeks to take his property for its purposes for private gain, passed upon by the Courts of justice. If a citizen has the doors of our Courts shut in his face because a powerful corporation is holding the key to the lock, under some statutory enactment, that enactment must give way, for the citizen, just as the corporation, has left yet some rights under our Constitution. The right of the citizen must be passed upon by the Courts in the proper manner. He is entitled to a full hearing. Given that, if he is right and the corporation wrong, let the law protect the citizen's right. If the full hearing shows the citizen wrong and the corporation right, let the corporation have its judgment, and let the citizen have at least the reflection that the Courts of his country gave him a hearing.

There are numerous other authorities in our State not necessary to cite here to sustain the right of the plaintiff, under the showing he has made, to have this case, on the question of "reasonable necessity," submitted to the Court for proper determination.

I can conceive of a case where this Court, on appeal, might hold that a plaintiff has made no showing whatever entitling him to an injunction pendentelite. But this, under the affidavits submitted to the Circuit Judge, does not come within that conception. I prefer not to enter upon a discussion of the facts as disclosed in the affidavits of the parties on the question of "reasonable necessity." If my view that the interlocutory injunction should be upheld, pending a full hearing on the merits, meets with the approval of a majority of the Court, the case may come back to this Court on appeal, after a full hearing in the lower Court, and I desire to be as open-minded as possible, if I am required hereafter to make a determination as to all the facts of the case. At this time, I may properly say this much: That beautiful, stately, and protecting shade trees, around and about the home of a citizen should not be wantonly destroyed for even the great object of building a power line, unless it clearly appears that the law of "reasonable necessity" demands such destruction. A man oftentimes may more easily replace his dwelling house than he can the shade trees which protect that dwelling from the heat of the day.

A majority of the Court agreeing with the views expressed in this opinion, it is adjudged that the order appealed from be affirmed.

MESSRS. JUSTICES STABLER and CARTER and MR. ACTING ASSOCIATE JUSTICE GRAYDON concur.