#### THE STATE vs. PEARCE YARRELL.

A proprietor of a mill, who outs a canal across a public road, whereby the passage along the highway is obstructed, and those who are in possession of the mill claiming under him and using the canal, are hable to an indictment for such obstruction, the one for creating and the others for continuing the nuisance. But, if a bridge is erected over the canal, neither is •indictable, simply for suffering the bridge to be out of repair.

Appeal from the Superior Court of Law of Martin County, at the Spring Term, 1851, his Honor Judge Ellis pre■siding.

This was an indictment against the .defendant, in the following words:

MARTIN COUNTY, *)*Fa„ T *t*Superior Court op Law, *s¡ ’*

il The jiirot-s for the State, on their oath present, that, on the first day of September, 1848, there was, and irom thence to the taking oí this inquisition, there hath been, and is now, in the county of Martin, over a water course called the Canal, •a certain common public bridge in a highway in said county, leading from Hamilton to Williamston, used by all the citizens of the State on foot and with their horses and carriages to go, pass, repass, ride and labor at their free fvill and pleasure, and that the said bridge on the day and year and during the time aforesaid, was and yetis, very ruinous, dangerous, broken and in great decay for the want of amending and repairing the same, so that the citizens aforesaid, upon and over the said bridge, on foot and with their hordes and carriages during the time aforesaid, could not, nor yet can go, pass, repass, ride and labor as before the said time they were used and accustomed to do, and still of right ought to do, without great danger of their lives and the loss of their goods, to the great damage and common nuisance of the citizens of the State upon and over the said bridge going, passing, repassing, riding and laboring as aforesaid.

*131“And the jurors aforesaid, on their oath aforesaid, do farther present, that Pearce W. Yarrell, late of the said county of Martin, by reason of his tenure of a certain mill called the Canal Mill and the lands appurtenant thereto,, situate in said county, ought to rebuild, repair, and amend the said bridge, when and as often as it should or shall be-necessary — to the evil example of all others in like cases: offending and against the peace and dignity of the State.

“MOORE, Attor. Gen.”

To which the defendant pleaded, not guilty. On the-trial the State proposed to show, that, many years ago, a,, very small branch which needed.no bridge across it, and' which was not bridged, ran across the higtiway described in the indictment: that in the year 1800, one Williams, built a mill upon the branch, and, in order to supply it witl^ water power, cut a canal across the road and directed the-water from a large stream, which was on the opposite side of the road and crossed the road several miles distant, where it was then and is now bridged: that, the canal brought across the road such a quantity oí water as to require a bridge to make the highway safe and convenient for travel-, lers, and the proprietor of the mill, and the said Williams put up a bridge across the canal, where it crossed the road, as soon as it was cut, and kept up the bridge by rebuilding and repairing it as long as he owned the mill: that the-mill passed from Williams by mesne conveyance to several persons, who held it until the defendant came- into possess-, ion, and that each of them, while in possession, had rebuilt and repaired said bridge as often as was necessary, except the defendant, who came into possession of the mill in 1845»

The defendant objected to the reception of this testimony, but it was admitted by the Court.

The State proceeded to introduce other testimony; and upon all the evidence in the case the jury returned the following special verdict:

The jury find, that in the year 1800, and ever since, there was a certain highway in the County of Martin leading *132from Hamilton to Williamston, which crossed a small branch not requiring a bridge and which was not bridged: That one Williams built a Mill down said stream, on the north side of the road, and, in order to supply it with wafer power, cut a canal across the road at the channel and brought to the Mill across the said highway a large quantity of water, which before that time found its way into a large stream on the South side of the road: That the quantity of water, so brought along the canal, was *so*great, as *to*obstruct trav-elling along the high wajr, and made a bridge necessary at that place, which the said Williams immediately erected and kept np during his life : 'That after his death the mill was owned by one Cloman, who rebuilt and repaired said bridge as often as needed, until his death in 1812, when it was rebuilt and repaired by his representatives, till the mill came, in 1845, by purchase at a sale under a decree of the Court of Equity of Martin County, to the possession of the defendant, or owner thereof, who ever since has continued to own, possess, and use the said mill. And the jury further find, that the defendant, within two years next before the finding of the indictment, allowed said bridge to become out of repair, ruinous and dangerous to be passed by persons travelling over the same, which at all times since it was erected had been a part of said highway. They further find, that at all times since the cutting of the said canal a bridge has been necessary over the same, where it crosses the said highway. They also find, that, soon after the death-of said Cloman, tlie mill dam broke and the mill was not Used for two years, and that said Cloman’s heirs, on whom the mill descended, were infants and continued such ’till after the sale aforesaid and purchase of the same by the defendant. But, whether upon the premises aforesaid the defendant be guilty or not guilty of any offence, as charged in the bill of indictment, they say they are ignorant, and pray the advice of the Court; and if in the opinion of the Court the defendant be guilty, then they find him *guilty;*
      *133and if in the opinion of the Court the defendant be not guilty, then they find him not guilty. Upon this verdict the Court was of opinion, that the defendant was guilty, and pronounced judgment accordingly ; from which the defendant appeitled to the Supreme Court.

*Attorney General,*for .the State..

Biggs, for the defendant, submitted' the following argument.

1st. A private individual at common law cannot bebound to repair a highway except in respect of some consideration and not merely by a general proscription. *Austin’s case*1 Ventr. 189 ; *R.*and *St.*Giles, Cambridge 5 M. and S. 260.

2nd. All public bridges are *prima facie*repairable at common law by the inhabitants of. the County. *R.*vs. *Inhab. of Salop,*13 East 95, and other authorities cited in *Roscoe on Criminal Evidence,*page 295.

3rd. Although a private individual cannot, by erecting a bridge, the use of which is not beneficial to the public,, throw upon the County the *onus*of repairing it, yet if it become useful to the County in general the County is bound to repair it. *Glasburne Bridge case,*5 Bun. 2594. The acquiesence of the public will be evidence that it is of public utility; *Roscoe on Criminad evidence,*296.

4th. *Ratione tenuros*implies innnemoriality, 2 *Saund*158 d. (n.) Aud therefore upon an indictment against an individual for not repairing by reason of the tenure of a mill, if it appear that the mill was built within the time of the legal memory, the defendant must be acquitted. *Hayman’s case,*Mo. and M-. 401 (a) 22 E. C. S. 11. 341.

Although an act of repairing may be *prima facie*evidence of liability, yet in this case the defendant never repaired, and here the mill was built within the time of legal memory.

*134It is submitted however, that a private individual in this State, in consequence of our Statutes, is not bound to build or keep in repair a bridge across a public Road, *ralione tenures,*except as provided for in the 24th section of I04lh Chapter of the Revised Statutes, and this case does not fall within that Statute, because the defendant's mill is not situate on the public Road and the Bridge complained ol is not attached to his mill dam.

Williams, no doubt, could have been indicted for cutting the Canal across the road, but after he built the Bridge and the public acquiesced and used the bridge, it became a part of the public Road, and although Williams and Cloman kept the bridge in repair, the liability to repair was not thereby thrown upon the defendant. He has never assumed or acknowledged the liability. It is admitted he is not liable under the Statute, for this is an indictment at Common law.

Pearson, J.

The defendant, without doubt, is liable t® indictment for obstructing the public highway, by means of the Canal, which he uses and takes benefit of for the purpose of supplying water to turn his mill. The original proprietor of the mill was guilty of a nuisance in cutting-the canal; and the defendant is guilty of a nuisance in *continuing to use it.*

It may be, that, if he is indicted for the nuisance, he may-attempt to excuse himself by proving, that for more than twenty years he and those “whose estate' he has” have had the benefit of this *easement or*privilege, but it will appear* that the enjoyment of this privilege had a condition annexed thereto, to wit: that a bridge should be kept up over the canal, so that the .public should sustain no inconvenience or hindrance by reason of the highway being cut across. Tha excuse will not avail, unless he proves that this condition has been complied with.

*135The indictment charges, that the defendant, being the owner of the mill, was bound to repair the bridge, “ *virlute tenurca*.” Our late very able Attorney General followed an English form, and did not devote to the subject the degree of care which he usually bestowed upon every question. In this State, we are all tenants *in capita,*and our tenure is that of free and common socage, yielding lealty, doing suit to Court, and paying such taxes as the “ General Assembly” may, irom time to time, assess. The land, upon which the mill is situated, was, in all probability, granted long before the mill was built and the canal cut; so the repairing of the bridge could not have been a *condition of the grant.*

When the canal was cut, there may have been an express license for so obstructing the public highway, granted by the County Court, upon condition that the bridge should be built and kept in repair, or this may be presumed by a usage for more than twenty years, in the absence of such a contract expressed or presumed. The proprietor of the mill, who cut the canal, was guilty of a nuisance in so obstructing a public highway, and the defendant, who continues to use the canal, is guilty of the like nuisance. *Rex v Slaughter, 2*Saunders, 158, 9, note; *King*v *Kerrison,*1 Maule, and Selwin, 526.

The judgment must be reversed, and, upon the special .verdict, there must be judgment for the defendant.

Pee Cueiam. Judgment accordingly.