South Carolina & Ga. R. R. v. American Telephone & Telegraph Co. ( 1903 )

March 28, 1903. The opinion of the Court was delivered by These two cases were heard together by agreement. The facts are set out in the decree of his Honor, the Circuit Judge, which, together with the exceptions, will be reported. The elaborate and able decree of his Honor, the Circuit Judge, so fully disposes of the questions raised by the exceptions, that we deem it only necessary to add a few words.

The first exception assigns error on the part of the Circuit Judge, in holding that the order of discontinuance of June 17th, 1899, unappealed from, was valid and carried with it the previous order for temporary injunction, inasmuch as the injunction proceeding fell, and every order in it fell also; whereas, the appellants submit that the injunction order of his Honor, Judge Townsend, dated 26th May, 1899, was in the injunction suit, and not in the condemnation proceedings, which were discontinued; which injunction suit was not affected by the discontinuance of the said condemnation proceedings. On the 3d of April, 1899, the defendant, American Telephone and Telegraph Co., filed two proceedings for condemnation, under the act mentioned in the Circuit decree; one against the South Carolina and Georgia Railroad Co., and the other against the South Bound Railroad Co. and the Florida Central and Peninsular Railroad Co. Thereupon, on or about the 2d of May, 1899, the said railroad companies brought suit for a permanent injunction against the American Telephone and Telegraph Co. to prevent it from proceeding under said act. A rule to show cause was issued and a temporary restraining order was granted, and a hearing upon the rule was had on the 20th May, 1899, before his Honor, Judge Townsend. On the 26th May, 1899, Judge Townsend granted an order that the American Telephone and Telegraph Co. and its agents "be enjoined from proceeding or attempting to proceed under the special statutory proceedings set forth and referred to in the complaint herein, and from in any way attempting to enter upon the lands or right of way of the said plaintiffs, or from taking possession of or appropriating to its use the right of way aforesaid, until the trial and decision of this cause upon its merits." The American Telephone and Telegraph Co., on the 17th of June, 1899, obtained on an ex parte application an order discontinuing said causes in the following words: "That said cause be, and the same is hereby, discontinued upon the payment of costs of said cause by the plaintiff, without prejudice and with leave to institute new proceedings, should they be so advised." Notice that this order had been granted was served upon the railroad companies. Thereafter the American Telephone and Telegraph Co. instituted new condemnation proceedings against the plaintiffs in these actions. Thereupon these plaintiffs commenced new actions for injunction, and obtained another temporary order of injunction. The first action for injunction must necessarily have been abandoned or in some way disposed of, otherwise there would have been another action pending between the same parties for the same cause at the time the second action for injunction was commenced. The commencement of the second action for injunction in itself affords evidence that the first action was abandoned or in some manner disposed of, for the law presumes that the second action for injunction would not have been instituted while the first action was pending. If the first action for injunction was abandoned or let fall, the temporary order of injunction was thereby dissolved.Lewis v. Jones, 65 S.C. 157. Furthermore, the objection that the new condemnation proceedings were in violation of the order of injunction in the first action for injunction could only be made in that case. If the new condemnation proceedings were violative of the order of injunction, the Court, nevertheless, had the right to disregard them or to give recognition to them. Reynolds v. Timmons, 7 S.C. 486. For these reasons we concur in the conclusions announced in the Circuit Judge's decree.

The appellants contend that the act under which the condemnation proceedings were instituted was void, among other reasons, because it fails to provide protection for the rights of the Western Union Telegraph Co. That company is not a party to this action, and it will be the proper time to consider its rights when it is a party to an action for that purpose.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.