#### *White v. King and M’Call.

July, 1835.

riilldams* — Motion to Abate as Nuisance — Case at Bar. —An act of assembly empowers a county court to issue a writ of ad quod damnum, and to give leave to an individual to make a dam across a river which is a public highway, as if it was not a public highway, provided he shall not be entitled to the benefit of the act, unless he make in his dam, and keep in repair, a lock or slope for the passage of fish, boats, &c. and the act constitutes the county court judges of the sufficiency of the lock or slope, with power to abate the dam as a nuisance, if, after three months notice entered of record, the lock or slope shall, in its opinion, be insufficient; the dam is erected by leave of the court; notice is given by two individuals, and entered of record, of a motion to abate the dam as a nuisance, because raised higher than authorized, and because no sufficient lock or slope; and on that motion the county court orders dam to be abated as a nuisance, and the circuit superiour court affirms the order: Held,

1. *Same*— Same—Criminal *Prosecution*— Writ *of Brror**†***—This is a criminal prosecution, and a writ of error lies from this court to the order of the cir. cuit superiour court, affirming order of the county court.

*2. Same*— Same—notion in Name of Individuals —The act does not authorize the proceeding by motion in the name and behalf of individuals, upon notice given by them.

3. Same — Same—Power of Court to Allow Time to Alter Dam. — The county court, adjudging that the dam was raised too high, and that there was no sufficient lock or slope, had authority to give the proprietor reasonable time to reduce his dam to the proper height, and to construct a sufficient lock or slope.

*272The proceedings in this case were founded on an act of assembly, passed in January 1817, entitled “an act concerning James White;” Sess'. Acts of 1816-17, p. 193. The preamble recited, that White was engaged in the erection of extensive machinery for the manufacture of iron, that a dam across Holstein river (theretofore declared a public highway) was indispensably necessary for the purpose, that it was represented that a dam might be erected in such manner as not to obstruct navigation or the passage of fish, by building a lock or slope &c. and that it was the wish of the legislature to encourage the manufacture of iron, an article of the first necessity: therefore, the act (§ 1,) empowered the county court of Washington to grant a writ of ad quod damnum, and, in general, gave that court the same power in the matter, *as if the river had not been declared a public highway, provided White should not be entitled to the benefits of the act, unless he should erect in his dam, and keep always in repair, a lock or slope sufficient for the passage of fish, boats &c. and (§2,) constituted the county court judges of the sufficiency of the lock or slope, with full power at any time to abate the dam as a nuisance, if, after three months notice to the proprietor thereof, entered of record, the lock or slope should, in its opinion, be insufficient for the passage of fish, boats &c.

In October 1833, King and M’Call served a notice on White, that they would, at March term 1834 of the county court of Washington, submit a motion to that court to abate his iron-works dam erected across the north fork of Holstein river, because the same was more than six and a half feet high; and because he did not erect therein, and keep in repair, a lock or slope sufficient for the passage of fish and boats. And they gave him a further notice, that at the November term 1833 of the same court, they would submit a motion to have the first mentioned notice entered of record. Accordingly, at November term, both notices were duly proved; and White being called and not appearing, the court ordered the first mentioned notice to be entered of record, and that it would “proceed, on the first day of March term, to ascertain whether it would abate the iron-works dam aforesaid for the reasons stated in the first notice; and it was further ordered, that White should be summoned to shew cause, why the court should not abate his dam as a nuisance, because the dam was more than six and a half feet high, and because he had not erected in the said dam, and kept in repair, a lock or slope sufficient for the passage of fish and boats, and because he, had, on the contrary obstructed, and still obstructed, the navigation of the river and the passage of fish, the slope erected by him being insufficient for the passage of fish, boats &c. At March term 1834, the motion was continued till the second day of the term, on the motion of King and M’Call, and at their costs; and, on that day, it was continued till the next term, at White’s costs. At * April term, the case was continued at the costs of King and M’Call; and they consented, that White might take an affidavit to be read on the trial. At May term, White moved the court to quash the proceedings ; which motion was overruled. He moved, that a jury might be sworn to-decide the facts in issue; which was also refused. And the court, having heard the testimony and arguments of counsel, adjudged “that the said iron-works dam of White was more than six and a half feet high, and that he had not erected, and kept in repair, a lock or slope, sufficient for the passage of fish, boats &c. and that the dam obstructed the navigation of the river and the passage of fish; therefore, that the dam was a nuisance, and that it should be abated; that White should pay the costs of this motion, and that the commonwealth’s writ be directed to the sheriff, commanding him to abate the dam. But the court added, that it would, had it thought it had the: power, have ordered, that, if White would reduce his dam to six and a half feet *high, and construct a lock or slope, by which fish and boats could pass the river, and which he, in open court, proposed to do, judgment should be entered pursuant to this proposition of White, allowing a reasonable time to perform the same; but thinking it had no-such power, it refused to give time &c.

To this order, the circuit superiour court of Washington, upon the application of White, allowed a writ of error; but, upon the hearing, it affirmed the order: and then White applied to this court for a writ of error to the order of affirmance; which was allowed.

Taylor, for the plaintiff in error.

Johnson, for the prosecutors, King and M’Call.

*

MiHdams. — See monographic *note*on “Mills and Milldams” appended to Calhoun v. Palmer, 8 Gratt. 88.

†

Writ of Error. — See generally, monographic *note*on “Appeal and Error” appended to Hill v. Salem, etc., Co., 1 Rob. 263.

*

This, it Is presumed, was the height to which, by the inquisition on the writ of ad quod d amnum, and the order of the county court thereupon, White was authorized to raise his dam. — Note in Original Edition.

MAY, J.,

delivered the opinion of the court. The first question which arises here, is, has this court jurisdiction? In other words, is this proceeding, in its nature, a civil or a *criminal one? •To determine it, we must look to the nature of the act or offence which is complained of, and the judgment rendered, rather than to the mode of proceeding prescribed by the statute or adopted by the court. The act or offence is one injurious to the public-generally, and not to individuals ; it is a nuisance; emphatically, a public offence; and the judgment of the court is for the abatement of that nuisance. It is for the benefit, not of any individual, but of the public: it condemns White to-no remuneration of private injury, but to-the forfeiture of a valuable grant, declared by the law to be indispensable to his iron works, and represented by him to involve a heavy loss. But, it is said, the privilege to White was a grant on certain conditions; and that this, being a proceeding for the' purpose of ascertaining whether he has not lost the privilege, by failing to comply with the conditions, and not being by indictment or information, is, therefore, a civil proceeding. The single condition of this grant was, that he should erect, and keep in repair a lock or slope sufficient for *273the passage of fish, boats &c. Had the law terminated with this provision, what course must have been pursued, to abate the dam, when the condition had been broken? Certainly, a prosecution by indictment or information. Can the abatement of a nuisance become a civil proceeding, merely because a statutory remedy, more simple or more summary has been specially prescribed, or because the nuisance has resulted from the breach of the condition of a statutory grant? Suppose that the second section of the statute, instead of the plenary power, thereby delegated to the county court, had authorized an information to be filed, without any previous rule, and a trial of the case upon process returnable instanter; or that, standing in its present form, it had required furthermore, that the court should imprison the proprietor, until the dam should be abated: would the proceeding have been a civil one? Surely, no. The dam, then, being declared to be a nuisance, and liable to be abated, upon the condition before stated, we are of opinion, that the proceeding for that purpose, in ‘^whatsoever form prescribed, is, in its nature, a criminal proceeding; and, therefore, that this court has jurisdiction.

The second question is, whether the proceedings have conformed with the provision of the statute? It may well be doubted what particular course was in contemplation of the legislature; for none is distinctly indicated; and it is well known, that very little attention is bestowed by that body, generally, on the details of. statutes of a local or private nature. But we may safely affirm, that it was not intended, that the proceeding should assume the form of a motion, in the name and behalf of private individuals, upon a notice given by them, and admitted to record by the court, without any perceptible motive or object. What possible information could White derive from the notice given, and the orders made at November term, except that two individuals complained of his dam and slope, and that the court intended, at a future day, to investigate the complaint? Suppose, however, that he had taken a different view, and had made such alterations as might satisfy those persons; what could prevent another, who perhaps might disapprove of that change, from taking precisely the same step, at the next term? Every change of plan might leave some one dissatisfied; and, if the court should ever sustain the complaint of any person whatever, the inevitable consequence, according to the judgment in this case, would be the destruction of the dam. Although the county court had been satisfied (as it seems, in fact, it was) that proper alterations might be made, and that a reasonable time ought to be allowed for the purpose, rather than pronounce a judgment which right involve the ruin of the proprietor; yet it is contended, that the notice of two individuals, given and admitted to record three months before, should, without any evidence or investigation whatever on the part of the court, require White to commence altering his slope, at the peril, of having his dam prostrated as a nuisance, and probably his costly and valuable machinery and other works destroyed, if the court should be of opinion, that there was the slightest obstruction to the navigation, at the moment of its action on the subject. ®The intention of the legislature-should be strongly expressed, and the mode of proceeding distinctly indicated, before we should adopt a construction, which would lead to results so harsh. Eor these reasons, we are of opinion, that the proceeding under the notice and on the motion of individuals was illegal.

It is said, however, that although this mode be improper; yet the court made substantially the proper orders, in the first instance, and allowed White the proper time to alter his slope. But it had no power capriciously or arbitrarily to make orders, which were likely to have such important effects on the rights of this individual. It should have had legal evidence to prove that the slope was not in the condition required by law, before any order whatever was made : whereas it is obvious that it proceeded on the belief, that the notice given was the proper initiatory step, and that the first orders made, were merely formal matters, in order to a hearing and decision of the controversy. The plaintiff in error doubtless adopted the same idea : and thus when he ascertained the opinion of the court to be that his slope was insufficient, he discovered at the same moment, that the utter destruction of his dam and works was to be the unavoidable consequence. Considering, therefore, that these proceedings were irregular and illegal from the commencement, we are of opinion, that the motion to quash them ought to have been sustained.

But we are also of opinion, that after the county court had decided upon the insufficiency of the slope, it was competent of it to allow a reasonable tipie for the making of such alterations as would render it sufficient. The statute does not mandatorily direct the court, in all events, to abate the dam, at the instant when, after three months notice, it adjudges it to be an obstruction of the navigation; it gives the court full power, at any time, to do so, if after such notice, it shall be, in its opinion, insufficient. Laws must be construed reasonably and with reference io their subject matter. If after the notice in this case, White had, by proper locks or slopes, obviated all obstructions to the navigation, ‘x‘and immediately before the term of the court, at which the cause was to be decided, a tempest or fresh should have destroyed the works erected for that purpose, will it be contended, that the court had no power, except to complete the destruction which the hand of providence had left imperfect?

When we erect that the legislature designed to confer a benefit on White, for a purpose which it declared its wish to promote ; that a dam or other works erected across any water course, and especially across mountain rivers, would always be liable to occasional accidents and injuries; and that the reparation of them must So a work of time; we cannot but presume, that the legislature designed to confer, as *274indeed their language implies, full power on the county court, to act with a just discretion in the matter.

For these reasons, the orders of both courts must be reversed.

LOMAX, J.,

dissented. He said — -My opinion is, that this court has no jurisdiction in the case; the judgment sought to be reversed, not being a judgment convicting the defendant of any crime or misdemeanour. I think the proceedings in the case essentially civil, not criminal; and if so, they do not fall within our jurisdiction, and any opinion whatever pronounced by this court upon the merits, must be extrajudicial. 1 Rev. Code, ch. 67, 2 26, p. 224.

I regard the act of assembly of January 1817 concerning James White, as a mere grant, by the legislature to him, of a privilege or franchise, to erect a dam across the Holstein, a public highway, upon condition, most plainly and technically expressed, that the grantee should not be entitled to the benefits of the act, unless he should (if the court should establish his dam) erect therein a lock or slope sufficient for the passage of fish, boats &c. and should constantly keep the same in such repair, as not to obstruct the navigation of said river or the passage of fish &c. A nuisance to the public, in respect of navigation, or of riparian proprietors in their rights of fishery, were consequences (certain, indeed) *of a breach of the condition, for which, independently of that act, White might be prosecuted criminally. But I am at a loss to find that criminal prosecution, and judgment convicting of a crime or misdemeanour, in the record of these proceedings, ascertaining a forfeiture of privileges upon the breach of the condition on which they were granted by the commonwealth.

Upon common law principles, the effect of this condition, if broken, is wholly to annul the grant, whensoever the commonwealth, as the grantor, shall by its proper remedy, claim the forfeiture. Individuals exact such forfeitures by mere entry; the commonwealth by solemn matter of record; 3 Black. Comm. 259. In such cases, she resumes her rights, her original domain, absolutely, as if no such grants had ever been made. Her claim to her original dominion over her stream, — to her uninterrupted use, for the public, of her highway, —is not the vindictive claim of penalty for crime. There is nothing in the act of assembly referred to, which, in terms, forbids the obstruction of navigation or passage offish, or commands the grantee to erect the lock or slope, or to keep the same at all times in repair. The amount of the act is,- — do this, and you shall have and enjoy for private purposes a public stream and highway; if you do not, you shall have no right to them, and the public right shall be restored as it was originally.

If the grantee of the commonwealth fail to perform the condition of his grant, the remedy, at common law, whereby the commonwealth should take advantage of the forfeiture, or, in other words, resume her rights over the thing granted, would be by an inquest of office. See 16 Vin. Abr. 81, and 3 Black. Comm. 259.

By the act referred to, the county court of Washington was substituted by the legislature for the inquisition of office, and constituted the judges of the sufficiency of the lock or slope, with full power, also, at any time, to abate the dam as a nuisance, if, after three months notice to the proprietor thereof, entered of record, the lock or slope should,-in its opinion, be insufficient for the passage of fish, boats &c. Whether the breach of the condition and ^'consequent forfeiture to the commonwealth, were found by inquisition or by judgment of the county court, would seems to be wholly immaterial, and to give no color to change a civil proceeding into a criminal one. Inquests of office, in cases of escheat, it is believed, have always been considered as civil proceedings merely, and the court of appeals has never refused cognizance of them. Can any reasonable distinction be drawn between the character of the jurisdiction exercised in cases of escheat, and exercised in other cases, where, upon any terms, express or implied, the commonwealth claims that her grant of any estate has determined, and that she may resume her dominion over them? Such offices are, in England, returnable into the exchequer and chancery, not into the king’s bench.

That the county court of Washington is empowered to abate the dam as a nuisance, cannot make the proceeding a criminal conviction of White: for how can an act directed to be done in regard to the property forfeited by him, and resumed by the commonwealth, affect him personally, or place him in the condition of one convicted, in a criminal proceeding, of a nuisance?

In looking into the judgment pronounced by the county court, to ascertain the kind of jurisdiction to which it belongs, I have not bestowed jpuch consideration upon the apparent anomaly of a criminal prosecution carried on at the instance and in the name of a private individual. against the defendant, without ever naming the commonwealth as a party, and which does not appear to have received the countenance of her counsel in court. In these proceedings, no fine or imprisonment, one or both of which is the effect of every criminal conviction, has been assessed or imposed. The only point in which this can be supposed to resemble the judgment in a prosecution for a nuisance, is, that it pronounces an abatement of the dam as a nuisance: but even here, there is a difference between the judgment of abatement pronounced by the county court of Washington under the act of a’ssembly, and that which could regularly be rendered as incidental to conviction in a prosecution before the *ordinary criminal tribunals, under the general law. An entire abatement of the dam is the judgment of Washington county court: the usual judgment on an indictment, in addition to fine and imprisonment, would have extended no farther than to command a removal, at the costs of the defendant, of the obstruction to navigation and passage of fish. Thus, where the nuisance was a house built too high, only so much *275•of it as was too high was adjudged to be pulled down. So, where the indictment was for keeping a dye house, or carrying on any stinking trade, the judgment was, not to pull down the building where the trade was carried on, but to inhibit the •offensive trade. So, in the case of a glass house, the judgment was to abate the nuisance, not by pulling the house down, but only by preventing the defendant from using it again as a glass house. 1 Russ, on Crimes 305, 6. In such cases, the defendant is divested of no right, no property is taken from him, no condemnation of the subject itself, but a restraint imposed, so that his use and enjoyment of -it may not be injurious to others. But the judgment, in this case, is not confined to a mere abatement of the obstruction, so as to admit navigation and the passage of fish : it sweeps away the whole dam, divesting ■the defendant of all his rights and reinstating the commonwealth in her original interest in the whole river. The forfeiture inflicted by this proceeding, goes greatly beyond the abatement commanded by the judgment in an ordinary prosecution.

Hooking to it as a civil proceeding concerning the public property, such a result is readily explained; but looking to it as a criminal prosecution for punishing the offender, according to some prescribed sentence of the law, it is wholly unprecedented. To find any law to warrant such a result, we must ascribe to the legislature the purpose of making change in a criminal proceeding, by a mere private act of assembly concerning James White; an act which the judges would not be bound, ex «officio, to notice,- — making a change in the criminal law, which could have no application to a single individual in the commonwealth but White, in regard to 'x'his dam across Holstein river; and for that single object, conferring summary and final criminal jurisdiction upon the justices of Washington county. To give such a construction to this act of assembly, seems to me most unreasonable.

The circumstance that the county court of Washington must, in rendering its judgment, have passed upon the very same matter which establishes the offence of nuisance, is of no consideration. For the same may be said of recoveries on bonds, frequently directed by law, with condition not to do acts declared to be criminal, and of recoveries of penalties in qui tarn actions and informations. The jurisdiction which enforces these pecuniary forfeitures collateral to the crimes, has never been confounded with that which prosecutes and punishes the crimes themselves. The distinction between these jurisdictions was alluded to by judge Roane, in the case of Bedinger v. The Commonwealth, 3 Call 471, where he applies a criterion, to distinguish from criminal cases, the civil cases in which appeals may be taken to the court of appeals. The latter, he says, are wherever the direct object of the proceedings is the discussion and decision upon a civil right, whatever may be the form of the proceeding. For example, some in-formations may be included under this distinction, such as informations in the nature of qui tam actions for penalties, which (in common with actions of debt) lie for penalties &c. and all other kinds of proceeding, whatever may be their form, the direct object of which is to assert a right of a civil nature, and which are deemed proceedings of a civil nature. The reason why he, as well as all the other judges in that case, disclaimed jurisdiction, was, that in its shape and its substance, it was a prosecution directly for crime, and the incapacity to hold the office then in question, was a part of the punishment prescribed for such an offence. The distinction alluded to has been maintained by the court of appeals in several cases since, in all of which that court has manifested the "Utmost caution not to invade the criminal jurisdiction. But none of the cases in which jurisdiction has been disclaimed by that court, can furnish any authority for regarding the present *case, otherwise, than as one of civil cognizance. The case of the Attorney General v. Broaddus, 6 Munf. 116, was decided to be a criminal prosecution, and therefore not within the jurisdiction of the court of appeals. A judgment declaring the nullity of an incestuous marriage, might, perhaps, under some circumstances, be regarded, so far as it operated merely upon the marriage, as a civil proceeding. But the law which instituted the proceeding, and declared such marriage to be a misdemeanor, directed, that the court should proceed to give judgment, and to declare the nullity of the marriage, “and moreover might punish the parties by fine &c.” The proceedings thus directed, although in the court of chancery, could not be mistaken. Punishment of crime was the direct object of the information, and the nullity of the marriage was one of the penalties. In Dance’s case, 6 Munf. 348, the majority of the court declined to lay Dance (the clerk of the court of appeals) under a rule to give bond with security as a clerk, or to express any opinion as to the obligations to do so, imposed by a law which was enacted after his appointment, or to express any opinion as to what might be the consequences to him, should he fail to comply with its requisitions. Had that court laid him under such a rule, a failure on his part to comply with it would not necessarily involve a contempt of the court; because the clerk, with the utmost reverence for its authority, might be unable to give the security required; he might, in the honest, independent maintenance of his rights, also insist, and in that case was insisting, that the iaw was unconstitutional, as being a violation of his vested rights, which, upon the fundamental law of society, the legislature had no power to disturb. These or similar grounds would be admitted to excuse the clerk, for contumacy to the court in failing to give the required security; and the rule, so far as the authority of the court was affected, would be useless and nugatory; but so far as such rule might involve the clerk in a disobedience of the lawq in a misbehaviour either private or official, the court of appeals could have *276no cognizance of the offence. It could be tried and punished only in the general court. To enter a rule, *would have implied that obedience to that rule was due, and that a disobedience of it was punishable; and the very act of entering such rule, would be declaratory to the general court, which would try the disobedience, of the opinion of the court of appeals, having no cognizance of the misbehaviour, upon a question of deep import as to the authority of the statute. That statute had not injoined upon the courts any agency, by rule or otherwise, to carry the law into effect, and it would seem to be gratuitous in them to interfere for that purpose. These are the grounds upon which it would seem, the court of appeals declined to take any cognizance of a case involving the clerk in a charge of misbehaviour. In a matter of mere discretion, it forbore to institute any proceedings, which would involve it in the responsibility of deciding upon questions of law of grave import, in anticipation of the judgment of that tribunal, which alone could authoritatively decide upon them, in the case that would arise out of the proceedings it would be instituting. That case, therefore, decided nothing touching the present matter. In the case of The Commonwealth v. Scott, 4 Rand. 143, the court of appeals dismissed the appeal, upon the ground that the information filed in the chancery court, on behalf of the commonwealth, under the 2nd section of the statute to prevent the circulation of notes emitted by unchartered banks (declaring that the capital' stock of the company, unlawfully issuing those notes, should be held in trust for the benefit of the commonwealth) was a criminal proceeding, over which that court had no appellate jurisdiction. A proceding in chancery, claiming, by way of trust for the commonwealth, the forfeiture of the property of the defendants, in consequence of a breach of a penal law, and directly as a punishment thereof, was not distinguishable from a criminal prosecution in any other shape. What shadow of pretension was there to legitimate the claim of the commonwealth to private property in the absolute possession and enjoyment of its owners, unless it were forfeited for crime? and what other purpose could there have been for the information, directed by the_ statute, but to prove the crime, that ^'entitled the state to the forfeiture? The claim of the commonwealth rested upon the criminality of the conduct of the company, and the information was the proceeding whereby their guilt was to be established. No definition can be given of criminal jurisdiction, if that case was not clearly embraced within it.

Wide is the difference between those cases, and one in which the commonwealth seeks to resume her domain, from which, in the events which have been proved, she had never parted; property which she had never absolutely alienated. The defendant is divested of his qualified rights, not because he is an offender, but by virtue of his contract by which he acquired them, and the condition upon which he held them. He would equally have been divested, whether the reservation to the commonwealth was in the shape of a condition against the commission of a nuisance, or in the shape of a condition to erect a lock or slope of any described character, or of a condition for the payment of money, or the doing or not *doing any*other act, the most remote from criminal liability.

Por these reasons, I cannot regard this proceeding in the county court of Washington, otherwise than as a mere inquest of office, or a substitute for the same; the recorded violation of the condition upon which the grant had been made by the commonwealth, which record was necessary, upon common law principles, to reinvest her with her dominion in a subject granted upon condition, with the same effect as an entry for condition broken, made by the grantor or his heirs, in the case of a private conveyance. It has, to my view, no feature of a prosecution or sentence for crime, and therefore does not fall within the jurisdiction of this court.

Orders of both courts reversed.