Aull v. Columbia &c. Railroad

Citations

• 42 S.C. 431
• 20 S.E. 302
• 1894 S.C. LEXIS 63

Syllabus

<p>1. Right of Way — Appeal—-Motion to Dismiss. — A motion to dismiss an appeal from an order refusing to vacate a previous order directing a jury to be empanelled to ascertain the compensation to be paid by a railroad company for a right of way, not determined, as the court was not full; but it seems that such an order is not appealable, as the statute regulating such special proceeding gives no appeal in such case, and as the merits are not affected.</p> <p>2. Ibid. — Ibid.—The right of petitioners to compensation could not be determined by motioh, and hence the merits were not involved; nor could the jurisdiction of the judge to grant any order be questioned by appeal. It might possibly be raised by certiorari or writ of prohibition.</p> <p>3. Ibid. — A railroad company may be proceeded against for compensation for right of way taken by it, not only where the landowner had refused his consent in writing, but also where the road has been constructed without objection, or by the implied permission of the landowner. And a petition which alleges that it was taken without consent is sufficient.</p> <p>4. Appeal Dismissed without Prejudice to the right of appellant to test the right of the petitioners by other proceeding.</p>