South Carolina Railroad v. Columbia & Augusta Railroad , 34 S.C. Eq. 339 ( 1867 )

Per Curiam, Dunkin, Ch. J., Wardlaw, A. J., and Glover, J.,

concurring. It has come to the knowledge of this Court that, after the cause was heard and the motion for injunction pendente lite refused, the Columbia and Augusta Railroad Company, the defendants in this case, with previous notice of their intention given to the plaintiffs, the South Carolina Railroad Company, but without the consent of the plaintiffs and against their active resistance, effected a crossing of the South Carolina railroad about a mile from the depot of the plaintiffs in Columbia, and that that crossing has since been used by the defendants for transportation required in the construction of their road, and is essential to the successful progress of that construction. The Court is aware of the dangers which attend the ■crossing of one railroad by another, and feels bound, as far as it properly can, to guard against them. Whilst therefore it 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 adjudication.

It is therefore ordered that, until a contrary order be made, the defendants shall be permitted to keep in good repair the crossing effected by them as aforesaid, and to use it with extraordinary care in subordination to the rights of the plaintiffs, in the proper enjoyment of their road and right of way, with due regard to the schedules of the plaintiffs and with responsibility for all damages that may come, directly or indirectly, from any misconduct or negligence of the defendants, their agents or employees, in regard to the said crossing.

It is further ordered, that it be referred to the Commissioner for Richland District, to inquire and report a permanent scheme for the crossing by the defendants, and at . their cost, of the railroad of plaintiffs, at the place where the crossing has been effected, as aforesaid; which report shall show how, under what plan, with what contrivances and according to whose judgment, it shall be arranged, under whose superintendence it shall continue, what regulations concerning it and its use shall be prescribed for the conduct of the parties respectively, with a view as well to the public interests as to the rights of the two parties; and what in respect to these particulars is the agreement of the parties, or, if there be no agreement between them, their ■ several propositions.

It is further ordered, that the said Commissioner do inquire and report what compensation, if any, shall be assessed in favor of the plaintiffs against the defendants, because of the crossing, temporary and permanent, above mentioned.