Kennerty v. Etiwan Phosphate Co.

Citations

• 17 S.C. 411
• 1882 S.C. LEXIS 75

Syllabus

<p>1. After issue joined by answer and reply the action may be dismissed dn defendant’s motion if tbe complaint does not state facts sufficient to . constitute a cause of action.</p> <p>2. An original action on tbe equity side of- tbe court for injunction to restrain a corporation from throwing off gases to tbe injury of plaintiff’s person and crops, will not lie — there having been no judgment in the court of law establishing the existence of such private nuisance and measuring the damages.</p> <p>3. The exception to this rule is found only in extreme cases, as where the thing itself is shown to be a nuisance per se, or where the mischief is irreparable and not capable of compensation in damages.</p> <p>4. In compromise of an action pending at law and for valuable consideration, plaintiff released defendant from all claim or right of action on plaintiff’s part for damages, past and future, resulting from the operation of defenddnt’s works, and covenanted not to sue for damages arising from this cause. Held, that this prevented a suit in equity for injunction as well as an action at law for damages; and, moreover, that there can be no injunction without a legal right to damages.</p> <p>5. Such release and covenant operated to estop plaintiff from doing what he bound himself under seal not to do.</p> <p>6. Neither erroneous advice, nor error of judgment by plaintiff as to the future effects, nor the suggestions of defendant, one or all, would invalidate this covenant.</p>