If the Holliday case (182 S.C. 510, 189 S.E., 885, 109 A.L.R., 1496), decided anything at all, it settled these points: (1) Although ordinarily a different form of proceeding is the proper method of testing the right of condemnation, yet under the peculiar circumstances existing the right to condemn was properly before the Court for determination in that proceeding; (2) the right of the county to condemn did not exist. The county made no pretense of claiming to justify any step taken by it, including its entry upon land admittedly the property of the plaintiff, except under the authority of the condemnation statute, and since the Court, after very full consideration of the question, expressly held that the *Page 286 condemnation statute did not afford any authority, it followed as an inevitable consequence that the entry of the county was without authority and in law a trespass, the gist of which is any unauthorized entry on the land of another, 63 C.J., 895. While the Court did not in express words designate the county as a trespasser, yet having held that it had entered upon and occupied the land of the church, and exercised dominion over it, without any authority of law, necessarily the county was adjudged to be a trespasser, whether so designated or not. It is the facts and circumstances rather than the epithets applied to an act which give character to the act. Furman v. A.C. Tuxbury Land Timber Co., 112 S.C. 71, 99 S.E., 111.
Nevertheless, and despite this former adjudication and final judgment of the Court in relation to the rights of the parties, in a proceeding between the same parties involving the same land, the majority opinion in this case in effect holds that the county is not a trespasser but has rightfully entered upon the land under the authority of the condemnation statute, which the Court has previously held afforded no authority. In the former case the Court held that the county was estopped to deny the right of the church to have the right of condemnation determined in that proceeding, and then, after very full consideration of the question, decided the right asserted adversely to the county, yet now the Court in effect holds that the church in turn in a subsequent proceeding between the same parties involving the same strip of land is estopped to assert that the right was determined in the former proceeding.
In the former proceeding the condemnation statute was held to be inapplicable. It, therefore, of necessity passed out of the picture, and it is now wholly irrelevant. If the county is a trespasser on land admittedly the property of the plaintiff, a matter definitely settled by the former opinion of the Court, it is difficult to comprehend why the Court is without authority to interfere by injunction to prevent the continued and repeated trespasses alleged in the complaint in *Page 287 this case. Even if the road has been practically or even wholly completed, a circumstance apparently deemed of some importance in the prevailing opinion, it cannot affect the right of the church to have continued and repeated trespasses upon its property prevented by injunction. If a person unlawfully trespasses upon the land of another by entering thereon without authority and building a house, it would seem obvious that the owner of the land would have a clear right to injunction to prevent continued and repeated unauthorized entries upon the land for the purpose of using the house. There does not seem to me to be any justification for contending that a person who unlawfully places a structure upon the land of another by that act alone acquires such a right to continue to maintain the structure, and to freely and repeatedly enter upon the land for the purpose of using the structure, that the Court is without power to interfere by injunction, yet, as it seems to me, the majority opinion has attained a precisely similar result.
In other words, as I interpret the prevailing opinion, if one unlawfully gets into the possession of the lands of another, then such one may hold the fruit of his trespass, but must answer in a suit for damages for the unlawful taking of the lands.
In addition to the complaint alleging a cause of action for injunctive relief, it is attempted therein to state a cause of action in tort for damages for trespass, but such action is not maintainable against the county and the State Highway Department even under the case of School Districtv. Marion County, 114 S.C. 382, 103 S.E., 767; and there has not been such a taking of the property as will support an action for damages. Of course, under the holding in the prevailing opinion, there has been a taking of the property in the first degree.
On account of the great respect entertained for the views and learning of the writer of the prevailing opinion and the Justices joining therein, it is always with regret and some misgiving when I find myself out of accord with their views, *Page 288 yet the result attained by the majority opinion in this case appears to me to be so inconsistent with the former judgment of the Court in the Holliday case that I am unable to bring myself to concur, and I, therefore, dissent.