Threatt v. Brewer Min. Co.

• Decision Date: 31 March 1897
• Citation: 26 S.E. 970,49 S.C. 95
• Parties: THREATT v. BREWER MIN. CO.
• Court: South Carolina Supreme Court

26 S.E. 970

49 S.C. 95

THREATT v. BREWER MIN. CO.

Supreme Court of South Carolina

March 31, 1897

Appeal from common pleas circuit court of Chesterfield county; R. C Watts, Judge.

Action by Miles Threatt against the Brewer Mining Company for an injunction and damages. From a decree in favor of plaintiff defendant appeals. Reversed.

The decree is as follows:

"This cause came on for trial before me at the special term of court in January, 1896, held for said county, and the issues as regarded the alleged nuisance and damages were duly submitted to a jury on the law side of the court. The verdict was in favor of the plaintiff for $1,000 damages. During the progress of the case, it was conceded by counsel that pending this suit, the Brewer Mining Company had been sold out, and a new company organized; that Emanuel Motz was the superintendent and general manager of the Brewer Mining Company, and also the superintendent and general manager of the present company. I think this was also testified to, but am not certain, as I have not the testimony before me. These facts were conceded at various times in the argument of counsel representing the defendant, but they repudiated any suggestion that they represented the reorganized company. On the coming in of the verdict, a motion was immediately made for the injunction craved by the complainant against the defendant, any one claiming under the defendant, pendente lite, to abate the nuisance which had been established by the verdict of the jury. I ordered the case transferred to docket No. 2, in order to properly entertain said motion, and heard arguments for and against the injunction. The jury having established the legal right by their verdict, in which finding I concur, it appeared to me proper to grant the motion, and abate the said nuisance by the restraining order of the court, and that an injunction should be granted, not only against the defendant, but also against any person or corporation claiming under the defendant pendente lite. It would be putting the plaintiff to unnecessary delay in securing protection to his property, rights, and easements and encouraging a multiplicity of suits, to require him to again establish by the verdict of a jury the nuisance as against the new organization, claiming under the defendant. If a court of equity is powerless to grant this relief, and sends the plaintiff back to the law side of the court to re-establish his legal right, then it would be possible for the new organization to sell out, before the verdict in the regular course of procedure could be procured, to a third person or corporation, and so on indefinitely; thus defeating him in procuring the relief which the verdict of a jury has already shown him to be entitled to.

"Before

I had announced my decision, I was requested by counsel for plaintiff to withhold my decision, pending negotiations for a settlement, as they and defendant's counsel had agreed to make this request, which I did; and the plaintiff's counsel having notified the counsel of defendant that, the time given for said negotiations having expired, I would be requested to file my decision in the premises on the 14th April instant, at 12 o'clock m. I therefore now decide to grant the motion, and it is ordered that the defendant, its agents, servants, and all persons or corporations claiming under the defendant, their agents and servants, be, and they hereby are, enjoined and restrained from doing or carrying on the acts and operations, or any of them, alleged in the complaint in this action, and from operating or maintaining any of the works described in the complaint, whereby further injury may result to the plaintiff, his family, home, property, easements, and privileges, alleged in the complaint; and that the nuisance alleged in the complaint be forever abated and stopped; and that the prayer of the complaint, craving an injunction, be granted. Ordered, further, that this decree be forthwith filed in the office of the clerk of court for Chesterfield county, and that said clerk do make and deliver to the sheriff of this county certified copies of this decree, to be served by him upon Emanuel Motz, general manager, or upon any one in the possession, control, or management of the Brewer Mining Company, by whatever name same may now be called."

The defendant, the Brewer Mining Company, excepts to the rulings and charge of the presiding judge, and to his order or decree granting an injunction, and will move the supreme court to reverse the judgments and decree of said court, upon the following exceptions and grounds of appeal:

"(1) Because his honor erred in holding, upon the motion made by the defendant to require the plaintiff to elect upon which cause of action stated in the complaint he would rely that there was but one cause of action stated.

"(2) Because his honor erred in overruling the motion of the defendant to require plaintiff to elect upon which cause of action stated in the complaint he would rely, and in further holding that the plaintiff had stated but one cause of action, when the plaintiff had stated in his complaint at least seven alleged causes of action, to wit: First, a cause of action in making his home unpleasant to himself and family, by filing his dwelling with fumes from burning sulphurets and noxious effluvia engendered and set free in the atmosphere by the roasting process, this being a cause of action for rendering his air foul and impure over and around his residence by means of the roasting process; second, a cause of action for destroying the fertility of about eight acres of rich bottoms or rich bottom land, so that no vegetation or crops will or can grow thereon, by reason of depositing detritus and tailings charged with deleterious chemicals and substances in Little Fork creek, to be carried by freshets onto plaintiff's land, this being a cause of action for destroying the fertility of a part of plaintiff's rich bottom lands; third, a cause of action for injuring and poisoning the waters of Little Fork creek, so that his stock could not drink the same, by turning into said creek detritus and tailings and deleterious chemicals and substances, this being a cause of action for rendering his water foul and impure as it flows over his land; fourth, a cause of action for killing or driving the fish from Fork creek, by reason of the impurities or poisonous, deleterious chemicals placed in said creek, this being an alleged injury to his alleged personal property; fifth, an alleged cause of action for the obstruction of two neighborhood roads, this being a cause of action to his alleged right of way; sixth, a cause of action for rendering the atmosphere over his roads and farm unpleasant and offensive to himself, family, and laborers, by reason of the sickening stench arising from the accumulations of detritus or tailings, and the deleterious chemicals and substances contained therein, this being a cause of action for rendering the air over his farm and rights of way foul and impure, by means of detritus, tailings, and poisonous chemicals; and, seventh, a cause of action for filling up his ditches with detritus and tailings, this being an action for injury to his improvements.

"(3) Because the complaint did not state facts sufficient to constitute a cause of action for damages on account of injury to fish or fishing rights, and his honor erred in allowing any evidence to be offered to prove this alleged cause of action, after objection was made.

"(4) Because his honor erred in allowing plaintiff to offer any evidence to show that he had sustained damage by reason of the fish in Fork creek being killed or driven from the stream, when there was no allegation in the complaint that the fish belonged to him, or that he had reduced them into his possession or brought them under his control.

"(5) Because neighborhood roads are public roads, and for their obstruction the remedy is by indictment, and an action for damages for such obstructions cannot be maintained at the suit of a private individual, unless he alleges and proves some special injury to himself by reason of such obstruction. The plaintiff in this case did not allege any special injury to himself by reason of such obstruction. The complaint did not state facts sufficient to constitute a cause of action for this alleged injury, and his honor erred in allowing evidence to be offered to sustain it, over the objection of the defendant.

"(6) Because his honor erred in overruling the defendant's objection to the following evidence given by the witness W. L. Sowell: Q. Did you notice the road where it crossed through Mr. Threatt's plantation,--where it crossed over that Fork creek? A. Yes; there were two roads--Q. You say you crossed these roads through Mr. Threatt's plantation? A. Yes, sir. Q. Did you cross there at any time when this débris, this matter from the mine, was accumulated in the roads? A. Yes, sir; I passed there. Q. In what condition did you find the road? A. I found it a little bad to travel. It would be washed up in the banks, so it would be bad to get out with a buggy or wagon. Q. How did that stuff affect the horses in traveling? A. When it was first washed up there, where it was wet, it would bog. It was very boggy and sticky. The horse could hardly get his foot out. And, when it was dry, it was harder. Right after the freshet until it could dry, it seemed to suck. It was hard to get the horse's foot out of it. Q. How deep in the road was it? A. I do not know how deep. I never passed there when it was very deep. I passed there a time or two when it was, may be, a foot or less deep. Q. Did you ever see anybody throwing it out of the road? A. I never saw anybody throwing it out, but I saw where it had been thrown out.'

"(7)

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