Rosamond v. Carroll County

Smith, J., delivered the opinion of the court. The nuisance complained of is a contingent one for which successive recoveries may be had. It is unnecessary for us to decide whether a party can in one suit recover all damages, present, past, and prospective, sustained and to be sustained, from a nuisance of this character, for the reason that the declaration upon which appellant’s former recovery was had did not seek to recover prospective damage. It is true that it alleged that the land was permanently damaged, but that simply meant that the damage then accrued was permanent — that the reduction in valúe of the land was [703] permanent. The land might be permanently damaged by each .successive inundation. Appellant’s former recovery, therefore, is not a bar to the present action. This cause comes to us on an appeal from a decree of the chancellor overruling exceptions to affirmative matter set up in an answer as a bar to the relief prayed for. Exceptions to an answer lie only to an insufficient discovery, or to scandal and impertinence, and not to the legal sufficiency of matter set up therein as an affirmative defense to the relief prayed for. I Pleading & Practice, 898; 16 Oye. 315; Puterbaugh’s Chancery Pleading & Practice (5th Ed.) 143; Bower Barff Rustless Iron Co. v. Wells Rustless Iron Co. (C. C.), 43 Fed. 391. No objection on this point, however, has been made by counsel for the appellee, and we will not in this instance raise the point ourselves; The decree of the court below is reversed, and the cause remanded. Reversed and remanded.