Opinion
13550
January 5, 1933.
Before STOLL, J., Williamsburg, September, 1931. Affirmed.
Proceeding by F.W. Thomas and others to lay out a highway or townway across the right-of-way of the Atlantic Coast Line Railroad Company in the Town of Kingstree. From an order affirming an order of the Board of County Commissioners of Williamsburg County laying out the highway, the railroad company appeals.
Respondent's petition to the Board of County Commissioners, omitting formal parts and the allegations of Paragraph 2, and appellant's return were as follows:
The petition of the undersigned respectfully represents:
I. That the undersigned are residents and citizens of the Town of Kingstree, County of Williamsburg and State of South Carolina, and therefore and by reason of the situation of their respective places of business or residence are particularly interested in, and affected by, the facts and circumstances hereinafter mentioned and referred to.
III. That the double track main line of the said railroad corporation traverses the Town of Kingstree, S.C. in a general northerly and southerly direction for a distance of approximately 1 3/4 miles between the corporate limits of said town, thereby crossing certain of the principal streets and thoroughfares of said Town of Kingstree, the two principal crossings being at Main Street and Brook Street; that these said crossings, so your petitioners are informed and believe, have been in existence ever since the right of way for a railroad was first obtained and the tracks laid within the said Town of Kingstree.
IV. That your petitioners, F.W. Thomas and A.J. Rigby, are engaged in the wholesale handling and sale of gasoline, oil, and other petroleum products, and that it is necessary for them to deliver said products daily by truck to the retail trade throughout the county from their respective places of business on the eastern side of the right-of-way of the said Atlantic Coast Line Railroad Company; that your petitioner, I.V. Campbell, owns and operates a place of business on the western side of said right-of-way, where he engages in the handling, sale, and storage of dressed lumber, building material, and supplies; and that all of said places of business are connected by spurs with the main line of said railroad.
V. That all of the three said places of business are located in the immediate vicinity of Kelley Street, the principal east and west thoroughfare in that section of the town, and with its continuation on the east of said right-of-way referred to also as First Street; that your petitioner, S.C. Anderson, resides at the intersection of said First Street and Railroad Avenue; that by reason of the fact that there is no crossing over the said railroad at the point, it is necessary for all trucks and vehicles of the said F.W. Thomas, A.J. Rigby, and S.C. Anderson, and all others like situated, on leaving their places of business or residence, to proceed southward along Railroad Avenue to the Brooks Street crossing, then, if said traffic be directed to North Kingstree or beyond, to turn north again on School Street and proceed along the same to Kelley Street, turning west at the intersection with the latter; that it is likewise necessary for the said trucks and vehicles of the said I.V. Campbell and all parties residing or conducting business in North Kingstree in order to reach a point on the opposite side of said railroad, even though the same be directly opposite from said Kelley Street, to proceed south on School Street from Kelley Street to Brooks Street, turn east, crossing the railroad on Brooks Street, and turn north again on the east side of said railroad to their destination.
VI. That all of said traffic following such route as described must necessarily pass the Kingstree graded school where at all times during the school session there is grave danger of accident and injury to the pupils of said school, particularly the smaller children, from passing traffic, and that the absence of a crossing at Kelly Street results in a far greater volume of traffic along the said School Street and the lower section of Brooks Street than would otherwise be the case.
VII. That whereas the route which would be opened by a crossing at Kelley Street would be from the said railroad westward entirely over paved streets, the said Railroad Avenue is unpaved, rough, and narrow, and traffic thereon is not only disagreeable and uncomfortable, but also extremely dangerous to traffic moving southward along said Railroad Avenue and being required to turn sharply at right angles over said railroad at the Brooks Street crossing.
VIII. That all of the dwellings on the east side of said right-of-way near the intersection of said Railroad Avenue and First Street are frame structures; there being slightly to the north and east of said intersection a number of small wooden dwellings occupied by negroes, and that the inaccessibility of said area by reason of the absence of a railroad crossing in that portion of the town, and the condition of said Railroad Avenue as aforesaid, serves to increase greatly the fire hazard and dangers from conflagrations in that area of town.
IX. That at the time said crossings at Brooks Street and Main Street in the said Town of Kingstree were established, the same were sufficient for the convenience of the traveling public of said town, but that since said time the town has grown and expanded rapidly to the north; that especially since the subdivision by the Kingstree Real Estate Company of a large body of land bordered on the south by said Kelley Street has such extension taken place, many attractive and expensive homes having been erected in said section, and the same has become one of the most desirable residential portions of said town; that the highway which formerly connected Kingstree with points to the north and was formerly located on the east side of said railroad, has been incorporated into United States Route No. 17, known as the Coastal Highway which is located on the western side of said railroad, so that it is necessary for all traffic proceeding northward from the town of Kingstree to leave the said town on the western side of said railroad.
Wherefore, your petitioners pray that the said County Board of Commissioners for Williamsburg County, in the exercise of the right and authority granted to them by the statutes of the State of South Carolina, lay out a highway or townway across the right-of-way of the said Atlantic Coast Line Railroad Company so as to connect the eastern end of Kelley Street with the western end of First Street, and furnish a direct route for traffic moving east and west across said railroad in North Kingstree.
RETURNNow comes Atlantic Coast Line Railroad Company by way of return to the petition and order herein, without waiving but specifically objecting to the jurisdiction of this tribunal, and alleges:
I. That it denies that it has any information sufficient to form a belief as to the truth of the allegations contained in paragraphs IV, V, VI, VII, VIII, and IX of the petition herein.
II. That it admits that the double track main line of said railroad traverses the town of Kingstree, S.C. in a general northerly and southerly direction, and that it crosses certain of the principal streets of said town, the principal crossing being at Main Street and Brooks Street, and that such crossings have been in existence since the right-of-way for a railroad was first obtained and the tracks laid within the said town of Kingstree, but denies each and every other allegation in said paragraph contained.
By way of further return to said petition, it is alleged:
I. That the right-of-way of the Atlantic Coast Line Railroad Company is crossed at three points within the town of Kingstree by streets of said town within a distance of approximately 2,600 feet; one of said crossings being situate approximately 900 feet south of the Main Street crossing, and another, the Brooks Street crossing, being situate approximately 1,500 feet north of the Main Street crossing, which said crossings are entirely adequate to take care of and accommodate the citizens of said town and the general public in crossing such railroad; that the point at which the petitioners desire an additional crossing is situate only 600 feet north of the Brooks Street crossing, and the streets which such crossing would connect are not main thoroughfares of said town, but are merely secondary avenues of traffic, and the Atlantic Coast Line Railroad Company is informed and believes that such crossing is not desired by, or necessary for, the benefit of the traveling public at large, and would not benefit the public at large, but that same is desired only for the personal use and benefit of the petitioners herein, and that neither the public convenience nor necessity require such additional crossing.
II. That it is the policy of the Atlantic Coast Line Railroad Company and of the authorities of the State of South Carolina to eliminate as many grade crossings as possible, rather than placing additional crossings; the State Highway Department of the State of South Carolina in laying out and paving United States Route No. 17 having changed the location of such highway materially in order to eliminate every crossing possible.
III. That should the crossing prayed for in the petition herein be made, there would be four crossings within the town of Kingstree within a distance of not more than threefourths of one mile, thereby greatly increasing the hazard of the operation of trains of the Atlantic Coast Line Railroad Company through the town of Kingstree, and would also cause great annoyance to the residents of the town, in that it would be necessary, in order to comply with the State law, for the whistles of trains operating through said town to blow almost continuously as long as such trains were passing through the limits of the town.
IV. That the placing and constructing of the crossing prayed for in the petition would cost the Atlantic Coast Line Railroad Company approximately $800.00, and the maintenance of such crossing would cost such company yearly, approximately the sum of $75.00, which said sums are entirely out of proportion to the benefit which the residents of the town of Kingstree and the public at large would derive therefrom, and it would be unjust and unreasonable to require the Atlantic Coast Line Railroad Company, under existing financial conditions, to expend such sum for the personal benefit of the petitioners herein, and especially so where there are other crossings which may be used by the petitioners without material inconvenience to them.
Wherefore, the Atlantic Coast Line Railroad Company prays that the petition herein be dismissed.
Messrs. F.L. Willcox and J.D. O'Bryan, for appellant, cite: Railroad Commission to regulate manner of street crossing tracks: Sec. 8434, Code 1932; 97 S.C. 77; 166 U.S. 266; 41 L.Ed., 979; 147 S.C. 433; 13 R.C.L., 188. Power in Legislature to fix limit of compensation where private property taken for public use: 128 S.C. 293; 159 S.C. 481; 102 Wn., 348; 150 S.C. 302; 221 U.S. 636; 55 L.Ed., 890; 163 S.E., 137; 95 S.C. 268.
Mr. M.L. Meadors, for respondents, cites: As to appeal: 35 S.C. 569; 40 S.C. 276; 27 S.C. 9; 70 S.C. 178; 70 S.C. 554; 73 S.C. 292; 79 S.C. 198; 87 S.C. 267; 112 S.C. 390; 155 S.C. 54; 34 S.C. 160; 86 S.C. 217; 116 S.C. 193.
January 5, 1933. The opinion of the Court was delivered by
This case is on appeal to this Court from an order of his Honor, Judge Philip H. Stoll, affirming an order of the Board of County Commissioners of Williamsburg County, laying out a highway or townway in the Town of Kingstree, said county, across the right-of-way of the Atlantic Coast Line Railroad Company, so as to connect certain streets of the said town; and, further, ordering and requiring said railroad company to forthwith construct and thereafter maintain "a safe and adequate crossing, not less than twenty (20) feet in width, of durable material, so as to furnish a means of passage for vehicles across the tracks and right-of-way of said railroad company at that point, the portion of said crossing between the tracks and adjacent to the rails to be of uniform height with the tops of the same."
In its appeal, the appellant states that its exceptions raise three questions, which we will consider in the order presented by counsel.
Question No. 1. "Has the Board of County Commissioners jurisdiction to lay out and establish a highway or townway of the Town of Kingstree across the right-of-way of the Atlantic Coast Line Railroad Company in the Town of Kingstree, and to require the Atlantic Coast Line Railroad Company to construct and maintain in such location a grade crossing to be used as a means of passage for vehicles across the tracks and right-of-way of said Railroad Company within the limits of the Town of Kingstree."
Section 8434, Civil Code 1932, which is relied upon by respondents as authority for the action of the Board of County Commissioners, reads as follows: "A highway or townway may be laid out across a railroad previously constructed when the County Board of Commissioners adjudge that the public convenience and necessity require the same; and in such case, after due notice to the railroad corporation, and hearing all parties interested, they may thus lay out a highway across a railroad, or may authorize a city or town, on the petition of the mayor and aldermen thereof, to lay out a way across a railroad in such manner as not to injure or obstruct the railroad."
We are unable to agree with the appellant in the contention that the authority to lay out the crossing in question, highway or townway, as it is referred to, rests with the Railroad Commission. In our opinion, the above section of the Code gives to the Board of County Commissioners authority to act in the matter. According to our view, Section 8269, Code 1932, to which appellant refers, does not repeal or supersede Section 8434. Section 8269 is not clear in meaning. That section reads as follows: "The Railroad Commissioner is empowered and required to regulate and control by special order in each case the manner in which any street, street railway, or other railroad track and to regulate the manner of constructing culverts under any railroad so as to effect proper drainage of adjacent territory, may cross any railroad track."
Apparently there is something omitted necessary to make its meaning clear. This section was before the Court in the case of Richards v. Southern Railway, 97 S.C. 77, 81 S.E., 314, 315. Two of the respondents in that case were the Southern Railway Company and the City of Columbia. The City of Columbia demurred to the petition "for insufficiency, on the ground, among others, that the order of the Commission [Railroad Commission] was without authority of law, in so far as it required the city to do any part of the work or bear any part of the cost thereof." The Court, in effect, held that the section under consideration did not authorize the Railroad Commission to make the order in question, in that case, in so far as it affected the city; but the Court further held that the section empowered the Railroad Commission "to regulate and control the manner in which any street may cross any railroad track," referring to its control over the railroad company. In that case there was no question involved as to the right of the street to be laid out over the railroad, for the crossing in question had already been established; but the question was with reference to the same being in a dangerous condition, and the proceeding was instituted for the purpose of requiring the railroad company to maintain the same in a safe and proper condition. In the case at bar, the crossing over the railroad track had not been established at the time the action was instituted, and the action was instituted for the purpose of having the crossing laid out and established.
Under our view, Section 8434 is applicable to the facts of this case, and under it the Board of County Commissioners is authorized to proceed, in the manner that they did proceed, to lay out and establish the crossing in question. In our opinion, Sections 7367, 7368, 5812, 5813, and the other sections of the Code referred to by appellant, are not applicable to the facts of this case. Under Section 8434, the Board of County Commissioners had authority to lay out the crossing in question or to direct it to be done by the Town of Kingstree; but the Town of Kingstree, having not filed a petition asking to be authorized to lay out the crossing, but having joined in the petition of the petitioners in the first instance, who were citizens of the Town of Kingstree, asking that the crossing be laid out by the Board of County Commissioners, there was no necessity for the Board of County Commissioners directing the town to lay out the crossing. In any event, the town is the only one to object, and, having joined with the other petitioners, no question arises in this respect.
Question No. 2. "Does the testimony in the record sustain the findings and holdings of the Board of County Commissioners to the effect that public convenience and necessity require the establishment of such crossing, or, on the contrary, is there not a total absence of any testimony tending to show that public convenience and necessity require its establishment, and does not all the testimony show to the contrary?"
In response to the rule issued by the Board of County Commissioners, the respondent, Atlantic Coast Line Railroad Company, appeared before the commissioners and all the testimony offered by the parties was taken by the board. After a full hearing of all the testimony, "and viewing the site of the proposed crossing and approaches to the same," the board stated its findings to be "that the public convenience and necessity require that said crossing be established, and that the said railroad company will sustain no damage to its property thereby." Based on that finding, the Board of County Commissioners issued the following order (quoting pertinent portion):
"Ordered, pursuant to the authority in us vested by the Statutes of the State of South Carolina, that a highway or townway be and the same hereby is laid out and established forty (40') feet in width, across the right-of-way of the Atlantic Coast Line Railroad Company in the Town of Kingstree, County of Williamsburg and State of South Carolina, so as to connect the Eastern end of Kelley Street of said town, on the West of said right-of-way, with the western end of First Street of said town, on the East of said right-of-way, and that it be and is hereby further
"Ordered that the said Atlantic Coast Line Railroad Company be and it is hereby required to forthwith construct and thereafter maintain at said point above designated, a safe and adequate grade crossing, not less than twenty (20') feet in width, of durable material, so as to furnish a means of passage for vehicles across the tracks and right-of-way of said railroad company at that point, the portion of said crossing between the tracks and adjacent to the rails to be of uniform height with the tops of the same."
On appeal to the Circuit Court, the Circuit Judge, his Honor, Judge Stoll, approved the finding, holding, and order of the Board of County Commissioners, and issued an order accordingly. A careful study of the record in the case convinces us that there was probative testimony upon which to base the finding of the board, and we think that his Honor, Judge Stoll, properly sustained the board in its finding. We may add in this connection, that as to the questions of fact involved in the case, this Court is bound by the finding of the county board, approved by the Circuit Judge, for there is supporting evidence upon which to base the finding, and under the recognized rule such finding is not reviewable by this Court. Green v. County Commissioners, 27 S.C. 9, 2 S.E., 618. Tinsley v. Union County, 40 S.C. 276, 18 S.E., 794. Stacy v. Machine Works, 70 S.C. 178, 49 S.E., 223. James v. Northwestern Railroad, 70 S.C. 554, 50 S.E., 504. Jenkins v. Southern Railway, 73 S.C. 292, 53 S.E., 481. Wilson James v. A.C.L. Railroad Company, 79 S.C. 198, 60 S.E., 663. A. E. Leather Goods Company v. Sentz, 87 S.C. 267, 69 S.E., 390. Dingle v. Northwestern Railroad Company, 112 S.C. 390, 99 S.E., 828. Ward v. A.C.L. Railroad Company, 155 S.C. 54, 151 S.E., 904.
Question No. 3. "Are the order of the Board of County Commissioners for Williamsburg County laying out and establishing a highway or townway within the limits of the Town of Kingstree 40 feet in width across the right-of-way of the Atlantic Coast Line Railroad Company so as to connect the eastern end of Kelley Street and the western end of First Street, and the order of the Board of County Commissioners of Williamsburg County requiring the Atlantic Coast Line Railroad Company to forthwith construct and thereafter maintain a safe and adequate grade crossing not less than twenty feet in width so as to furnish a means of passage for vehicles across the tracks and right-of-way of the Railroad Company at that point, a taking of property of Atlantic Coast Line Railroad Company without due process of law in violation of Section 17, Article 1 of the Constitution of the State of South Carolina, and of the Fifth and Fourteenth Amendments of the Constitution of the United States, in that such order and such requirement when affirmed and approved by the Judge of the Court of Common Pleas, amount to taking private property of the Railroad Company for a public use without just compensation, and to depriving the Railroad Company of its property without the due process of law?"
The above-stated questions were not raised in the lower Court, and therefore, following the well-established rule, will not be considered by this Court.
While we have not discussed herein all of the questions presented in appellant's brief, we have duly considered the same.
The exceptions are overruled, and it is the judgment of this Court that the order and judgment appealed from be, and the same is hereby, affirmed.
NOTE. — There will be incorporated in the report of the case the petition presented to the Board of County Commissioners, omitting formal parts and the allegations of paragraph 2; also the return, omitting formal parts.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and BONHAM, and MR. ACTING ASSOCIATE JUSTICE W.C. COTHRAN concur.