Atlantic Coast Line R. Co. v. Baker

131 S.E. 678, 134 S.C. 106, 1926 S.C. LEXIS 12

• Court: Supreme Court of South Carolina
• Decided: February 3, 1926
• Docket: 11916
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Watts.

This action is brought for the purpose of restraining the defendant from erecting a filling station upon land claimed by the plaintiff as a part of its right of way. On hearing a rule to show cause why an injunction pendente lite should not be granted, Judge Dennis refused to grant the injunction and the plaintiff appealed.

An order was granted by a member of this Court, staying proceedings until the appeal could be heard. The plaintiff has a plain and adequate remedy at law to establish its easement. It does not allege that it needs the easement at present, and if the defendant owns the property, she would have a right to use it, subject to the easement, if the plaintiff has such easement, and until the plaintiff needs the easement.

It is true that the plaintiff was required to commence suit when the property was used antagonistic to its claim, but let the plaintiff establish its right on the law side of the Court. I am not in favor of government too much by injunction, and for this reason do not think the injunction should be granted.

Let the order of Judge Dennis be reported.

Affirmed.

Mr. Chiee Justice Gary and Mr. Acting Associate Justice R. O. Purdy concur. Messrs. Justices Coti-iran and Marion dissent.