Columbia Water Power Co. v. Nunamaker

53 S.E. 996, 73 S.C. 550, 1906 S.C. LEXIS 215

Opinions

April 2, 1906. The opinion of the Court was delivered by These actions were instituted for the purpose of determining the right of the defendants to compensation under condemnation proceedings, for the alleged overflowing of their lands, by reason of raising the plaintiff's dam. The condemnation proceedings were commenced on the 25th of February, 1905. On the 12th of June, 1905, the plaintiff brought these actions, and on the same day, upon motion of its attorneys, a rule was issued requiring the defendants to show cause why they should not be enjoined from prosecuting the condemnation proceedings, and for an order in the meantime restraining them.

The defendants made return to the rule to show cause, and on the 22d of June, 1905, his Honor, the Circuit Judge, made an order that the restraining order theretofore granted should be continued until the final decree in said cases, provided the plaintiff entered into a written undertaking in the manner therein set forth.

The plaintiff appealed from this order upon exceptions which will be set out in the report of the case. The sole question is whether there was error in requiring said undertaking.

When the right to institute condemnation proceedings is contested, the proper remedy is to bring an action in the Court of Common Pleas in order that the Court may, in the exercise of its chancery powers, determine such right.Railway v. Ridlehuber, 38 S.C. 308, 17 S.E., 24;Cureton v. Railway, 59 S.C. 371; Glover v. Remley,62 S.C. 52, 39 S.E., 180; Railroad v. Burton, 63 S.C. 348,41 S.E., 451; Riley v. Union Station Co., 67 S.C. 84;Reynolds v. Railway, 69 S.C. 481, 48 S.E., 476. These cases show that such action must be regarded as independent, and not ancillary to the condemnation proceedings. If upon the final hearing of the case the Court should decide that the defendants did not have a right to institute condemnation proceedings, it would then grant a permanent injunction. But the power of the Court to render such judgment, is in no wise dependent upon the fact that a temporary injunction was or was not granted, as a right to a temporary injunction constitutes no part of the plaintiff's cause of action. When the Circuit Judge granted the order of injunction he did not have the power to dispense with the provision of section 243 of the Code, which requires a written undertaking on the part of the plaintiff. Smith v. Smith, 51 S.C. 379.

Appeal dismissed.

April 2, 1906.