#### The State ex relatione P. T. Gervais, Jr., and others, *vs.*The City Council of Charleston.

*Nuisance*— Public *Landing*— Injunction—Evidence.

Bill for special injunction to compel the City Council of Charleston to re-establish a public landing, which they had obstructed, or substitute another, equally as good, in its place, dismissed for want of clear and satisfactory evidence that the right existed.

Courts of Equity will not, it seems, grant an injunction to restrain a public nuisance, unless the right be established by clear and determinate evidence.

BEFORE DARGAN, CI-L, -AT CHARLESTON, FEBRUARY, 1858.

This case will be sufficiently understood from the circuit decree of his Honor, Chancellor Dargan, and the opinion delivered in the Court of Appeals. The circuit decree is as follows:

Dargan, Ch. The City Council of Charleston converted White Point into a garden, and, in 1834, extended it to Meeting street, and afterwards to King street, surrounding it, on the side of the water, with a sea-wall, and doing away with liberty of resorting there for a harbor for boats, but leaving a flight of steps on the water side to admit passengers. In 1846, the inhabitants of John’s island and James’ island addressed a memorial to council, complaining of the delay in providing for them a landing on Ashley river, in lieu of that which they had enjoyed at the foot of Meeting street. The City Council, without admitting their obligations, proposed to establish a public landing at the foot of King street, if the islanders would bear half the expense, which they refused, and the subject continued to be pressed upon council, without any settlement, until 1853. In February of that year, the islanders had retained counsel, and through them addressed a communication to the city, demanding, as a *433right, a low-water landing on Ashley river, and, in case of a refusal, requesting a reference to the city attorney for an appearance to a bill or information. The communication was referred to a committee, who, after some delay, reported an ordinance “To establish a place of landing at the foot of Council street,” which was adopted on the 28th of October, in the same year, and is in these words :

“ *Be it enacted by the Mayor and Aldermen in City Council assembled,*That the south end of Council street be, and the same is hereby established as a place of landing for persons and boats, for the use of the inhabitants of the city and the surrounding country.”

The end of Council street is inaccessible, except at high water. A mud flat extends from it to the river. Some years ago the City Council purchased for a street a strip of this mud flat, fifty feet wide, from the end of Council street to the point of intersection with a line drawn from the end of Gibbes street. On some private maps, Gibbes street and Council street are represented as extending to the point, of intersection, but not on the map in the city hall. Mr. Carr, one of the members of council, gave evidence that he looked upon the end of Council street to be, of right, at the-intersection with Gibbes street, but, in fact, terminating at the high land. After passing this ordinance, the City Council hired, for a time, the right of landing at Moreland’s wharf,, for the islanders, but took no further measures to carry out a landing at Council street, or to make a permanent arrange-ment. And the parties not being able to agree, this bill was-filed in October, 1855.

The relators rest their case upon a right confirmed, as. they say, to the inhabitant’s of John’s island and James’ rslandy by the Act of 1733, which is set forth at large in the.bill. The first section establishes two ferries, one over Stono river,, the other over Ashley river, from Gabriel Manigault’s to White Point, in Charleston, or as near thereto as may be.. The fourth reciting that roads and causeways will be neces--*434sary to the ferries, and their *low-water*landings, authorizes the commissioners of roads to lay out good and sufficient landing places to the several ferries hereby established. The ferries were vested for seven years in the grantees named in the Act. There is no evidence of the subsequent use of the ferries. The use of the road to the ferry of Stono is attested by the journal of the commissioners of roads of St. John’s, Colleton. There is evidence of the use of the landing at Manigault’s; and much testimony was taken as to the use of the foot of Meeting street, which is by White Point, as a lauding, prior to 1834.

The relators’ claim is for a public landing, in place of the landing which the City Council have excluded them, from, at the foot of Meeting street. If they were entitled to a public landing at the foot of Meeting street, or elsewhere, the closing of it against them would entitle them to have satisfaction, either by removing the obstruction, or by furnishing another landing in its place. This proposition is too plain to be denied. The city do not claim an exemption from the rule, but found their defence on other grounds. They say, first, that there never was a low-water landing at the foot of Meeting street. And, secondly, that if there was, this Court has no jurisdiction of the question of satisfaction.

Before we decide whether the relators had such a right as they claim, it is well to see what a public landing is. Wharves, quays and piers belong to *the-jus publicum,*in ports and harbors, and the repair and preservation of them are on .the same footing as the construction and preservation of highways on land: Lord Hale, *de Portibus Maris,*S3. A ¡highway or a wharf may be *free, or*subject to toll. In *the*ihands of a subject, toll is a franchise, and the right of passing without toll a privilege or liberty : *Mayor of London vs. .Lynn,*1 Bos. and Pul., 487. The privilege may be proved <by grant or prescription. In this case, it is in proof that the market stuff or produce of the relators has, time out of mind, .'been brought in boats to the western side of the city and *435landed at the foot of Meeting street, without paying toll. And if the right was claimed on the ground of prescription, there would be a strong case for it upon the evidence. But the Act of 1733, P. L., 137, 9 Cooper, 79, removes the question from the province of evidence to that of authority. The first section establishes, over the Ashley river, a ferry “from Gabriel Mauigault’s to the White Point, in Charleston, or as near thereto as may be.” The fourth section recites that causeways and roads, to the low-water landings at the ferry, will be necessary, and directs the commissioners of roads to lay out good and sufficient roads to such landing places. The evidence of Mr. Rivers and Mr. Burden shows that the mail route from Charleston to Savannah, before the revolution, took this direction. The Act of 1785, P. L., 391, 9 Cooper, 299, authorizes the City Council to continue East Bay street to the extremity of White Point, and it is natural to look for a public landing at the terminus of a public road, when it terminates at the water. It is admitted that, until 1S34, there was freedom of access to the city at the foot of Meeting street, which is understood to be very near or adjoining what was called White Point, and it is proved that boats lay there, and that it was a common resort for the islanders. It is objected that Meeting street was not a low-water landing, but it seems to have been a good landing at half-tide, and the islanders, at low water, used Turnbull’s wharf, alongside, and paid no toll; this usage, therefore, is consistent with the fact, that a public landing, at or near White Point, was established by law. In Judge Evans’ Compilation, sec. 53, it is said that “though the statute of limitations will not run against a public right, and nonuser merely will not destroy the character of a public highway, yet, if it were obstructed and enclosed for twenty years, a legal authority to obstruct it might be presumed.” There was no obstruction of this public landing before 1834, and there is no ground to presume an authority to obstruct since that time, for the relators and City Council have been negotiating ever *436since for an equivalent. If anything is to be presumed, it is that the City Council engaged to give the public as good *a*landing as that which they had closed, if not a better. There is no ground, therefore, to assume either that the relators had no right before 1S34, or that the right has been since relinquished.

But the main point of the defence is the want of jurisdiction. It is said that if the closing of Meeting street against the relators be a wrong, an indictment will lie. This may be true, but it is not enough to oust this Court of jurisdiction that there is a legal remedy. It must be shown that the legal remedy is sufficient. The relief, which the relators seek, is clearly one which the Court of Sessions cannot give. The Court of Sessions is competent to try the question of nuisance, and punish the defendant if convicted. But the remedy which the relators seek is entirely different. The City Council are elected periodically, formerly every year. The persons who are in office one year, are not so again unless re-elected. The judgment of the Court might authorize the relators to break down the sea-wall, but when that is done their object is not obtained. They wish the place put into condition for a low-water landing. They seek not abatement, but construction. And the Court of Sessions has no means of enforcing its judgment, but by fine and imprisonment. The fine and imprisonment, however, fall on the head of those against whom the bill is found, who may or may not be in possession of the means or the power of the council, when the case is tried. Such a remedy is plainly inadequate. In all civil suits the judgment is against the corporation. It would ruin the credit of the corporation, if the only remedy of a creditor consisted in the right of imprisoning the ex-mayor or his aldermen. Where abatement is all that is necessary, the proceeding by iudictment may do, because the work of destruction is so easy, that the prosecutor may very possibly carry that on at his own *437expense. It is very different when the interests of justice call for reparation.

But it is very questionable whether an indictment would lie in this case at all. The right of the relators to a public landing, is not inconsistent with the right of the city to change the landing. There is no doubt that a highway may be changed, if upon a writ of *ad quod damnum*it be found that the new way-is as-beneficial to the public as the old. 1 Russell, 452. The same is the law as to ports and passages. Hale de Portibus, 87. Considering the'large powers vested in the city, it may well be doubted whether it is necessary for the city government to have resort to any preliminary measures to authorize them to make a change over public property, where no private rights are invaded.

The very name *ad quod*damnum, is well nigh obsolete, and nothing is more common than for such changes to be made by tacit consent. If an indictment had been preferred against the City Council in 1S34, it is far from clear that it would have been considered a proper remedy. At all events it is much easier to presume a license to substitute a new landing for the old, than to presume a surrender of their rights by the public for nothing.

It is agreeable to reason to presume in favor of legality where the act is not plainly illegal. It is not favorable to a corporation invested with high civil faculties, to reject a benignant construction in order to take the character of a wrong-doer. If this case had been instituted recently after the occlusion of Meeting street, there is no doubt the city would have taken credit for the inteution of giving the rela-tors an accommodation fully equal to what they were depriving them of. We do not need an *ad quod damnum*to persuade us of this. The-city has admitted the obligation from time to time in various ways: by dedicating the foot of King street to the use of the islanders; by proposing to repair at joint expense; by the ordinance for establishing the end of *438Council street as a landing; and by paying an annual sum to the owner of Moreland’s wharf, for the license of the rela-tors to pass.

But why is it said that chancery has no jurisdiction in this case. If the question of nuisance merely is to be tried, the Court of Sessions is the proper tribunal; and if the objection was confined to this, that no decree should be made against the City Council, without affording them an opportunity of trying, at law, their right to stop up Meeting street, there would be some authority for it. But the rights of the parties growing out of questions of nuisance, afford many occasions for the jurisdiction of this Court. If all depended on the question of nuisance or not, it would be fair to give the city an opportunity of trying it at law. Yet in cases of purpresture and nuisances to ports or harbors, the criminal view of the question is so little resorted to, that the books hardly furnish a precedent for an indictment for suffering a public landiug to be ruinous, and the most usual course for redressing such evils seems always to have been by decree or order emanating from chancery. Hale, 87. And it is not only by injunction, but by decree, to pull down erections already made, that chancery interferes. Eden on Injunctions, 223.

The difficulty of jurisdiction being removed, the justice of the case depends on the right of landiug at White Point. If the relators were entitled to a low-water landing there, and the city had the right to make a change for a new landing, they are bound by contract. If they made the change without authority, then they are bound by the obligation that arises from the right of the party, who is wronged, to demand satisfaction. I shall, therefore, declare the relators entitled to a low-water lauding at the foot of Council street. The decision of the right will, in all probability, lead to a compliance by the city. If the City Council, however, on being called upon, shall refuse to proceed to make the landing, or evade the diligent performance of the duty, an order will be made *439directing one of the masters to inquire what will be a reasonable sum for the cost of the work, and the relators will be at liberty to contract for such work and raise the money by process against the defendant.

Let the city pay the relators’ costs, and comply with their rights as declared in this decree.

The respondents appealed on the grounds:

1. Because the islanders never had by right, or in fact, any low-water landing at the foot of Meeting street, or anywhere else: nor was there ever at any time any wharf or head projected to low-water mark for their use.

2. Because the Act of 1783 did not establish a permanent public landing, but it established a ferry in certain individuals for a limited time: And if there was a place of landing incident to the ferry, it ceased with the ferry privilege from the expiration of the time limited, or from *nonuser,*or from noncompliance with the conditions of the grant.

3. Because the city charter of 1783 which vested in the City Couucil “any vacant low-water lots fronting any of the streets,” operated as a repeal of any ferry or landing privilege that may have been previously established by Act of Assembly, or by any user or prescription.

4. Because the erection of such a solid and permanent obstacle to the enjoyment of the easement claimed, as the battery or sea-wall, without hindrance or protest from the islanders, would have operated as a release or extinguishment of the right if'the same had ever existed.

5. Because the landing at the foot of Council street is as good a high-water landing as the islanders ever had.

6. Because, if the islanders ever had a right of landing at the foot of Meeting street, it has been lost by *nonuser*or discontinuance.

7. Because the remedy of the relators, if they have any, is at law: and this Court is without jurisdiction in the premises.

*Porter,*City Attorney, for appellant.

*Petigru,*contra.

*440The opinion of the Court was delivered by

Wardlaw, J.

We are with defendant on most of the grounds of appeal. The jurisdiction of the Court of Equity in the matter of controversy, called >i'n question by the 7 ground, need not be generally contested: for it is sufficient to determine that it should not be exercised under the circumstances of this case. Judge Story, Eq. Jur., 924, *a,*says, that Courts of Equity will grant an injunction to restrain a public nuisance only in cases where the fact is clearly made out, upon determinate and satisfactory evidence: for if the evidence be contiicting, and the injury to the public doubtful, that alone will constitute a ground for withholding this extraordinary interposition. He cites the case of *Earl Ripon vs.*Hobart, Coop. Sel., Ca., 333, 3 Mylne & Keene, 169, in the course of which Lord Brougham says : “It is to .be always borne in mind, that the jurisdiction of this Court over nuisance by injunction at all, is of recent growth, has not till very lately been much exercised, and has at various times found great reluctance on the part of the learned Judges to use it; even in cases where the thing or act complained of was admitted to be directly and immediately hurtful to the complainant.” Lord Eldon seemed to think there was no instance of injunction to restrain nuisance, without trial, *Att'y Gen. vs.*Cleaver, 18 Ves., 211, and see 3 Meriv., 687, 685, and although this cannot now be maintained, still his doctrine has not been modified beyond the extent indicated by Chancellor Walworth, 6 Paige, 563, “If the thing sought to be prohibited is in itself a nuisance, the Court will interfere to stay irreparable mischief, where the complainant’s right is not doubtful, without waiting the result of a trial.” It may be further remarked, that the remedy sought by the plaintiff is to compel the City Council to pull down the Battery, a permanent obstruction erected at White Point, on the waste at the foot of Meeting street, or alternatively to build up a landing at low-water, at the foot of Council street, and the Chancellor has decreed for the rela-*441tors, that the Council shall make the landing at the foot of Council street, and if this be refused, that the relators may contract for the work, and raise the money by process against the defendant. Now, the proper office of an injunction, is to inhibit or restrain some act not rightful, proposed to be done, and it is not according to the course of the Court to direct the defendant to proceed actively — to perform some particular act, such as to pull down blinds, 1 Ves., 543, to fill up a ditch, 1 Ves., Jr. 140, or to repair banks, 10 Ves., 192, although the same result may be obtained sometimes by inhibiting opposite conduct. Eden on Injunc., 238, 9. But we recur to the point of the insufficiency of the plaintiffs’ proof.

It would be very tedious to scrutinize, in detail, the particulars of evidence; and we shall express our conclusions on the facts, in general terms. There is not a tittle of proof, that the inhabitants of James island or John’s island, in right or fact, ever had a landing at low-water mark at the foot of Meeting street or of King street. No wharf or head projected to low-water was ever erected at the foot of either street; although, possibly, if we may rely on vague tradition, the necessity of such structure was superseded anciently by the bluff at White Point, until this bluff was swept off by the great hurricane in the summer of 1752. There is evidence that the inhabitants of the islands landed at high tides, or half tides, and for a long time, at the foot of oue of the streets named — but at low-water they were accustomed to go round to East Bay. The strongest testimony as to the use of a landing on South Bay is, that of K. Burden, who deposes: *“*My father used one of these landings on South Bay for his small island opposite, and for his plantation on Burden’s island, from 1768, about nine years; and from his plantation alone until the enemy took Charleston in 1780. He died in May, 1785. He used one or other of these landings on South Bay till the time of his death: my mother used one of them during life, and her children and child*442ren’s children have continued the use up to the present time. I have used Council street as a high-water landing frequently, but frequently had to go to South Bay at low tides. The foot of Meeting street was considered a public landing, but Gibbes’, McKenzies’, and the foot of King street were also used.” Now, this demonstrates that no use had fixed on a definite spot, nor was exacted and yielded as a right: and that the whole was probably merely permissive and vague, springing from the sentiments of good neighborhood, and tfie desire of inviting custom on the part of the city authorities. We may conjecture, that the use, such as it was, had its origin in the Act of 1733, 9 Stat., 79, establishing two ferries, -one called John’s Island ferry, and the other the James Island ferry — but this Act was limited in its duration to the term of seven years, gave right of toll to individuals and imposed duties on them, and fixed the landing on the Charleston side very indefinitely — “to the White Point in Charleston, or as near thereto as may be.” Then the 5th section of the Act of 1783, the charter of the city, 7 Stat., 99, vested in the corporation, “ any vacant low-water lots fronting any of the streets,” and of course merged and extinguished any easement in them not granted by the State, or afterwards acquired by grant from the city, or adverse use for twenty years. *Thomas vs. Daniel, 2*McC., 354. It was adjudged in New York, that the public have not the right to use and occupy the soil of an individual adjoining navigable waters as a public landing and place of deposit of property in its transit; although, such user has been continued for more than twenty years with the knowledge of the owner, 20 Wend., 111; 22 Wend., 425. Whatever may have been the right of the islanders as to the foot of Meeting street before 1834, this has been apparently abandoned or extinguished by the *nonuser*of the right by them for more than twenty years, and their acquiescence until the filing of their bill, October 19, 1855, since 1834 in the erection by the City Council then of the battery, a per*443manent and solid sea-wall or structure, presenting an absolute obstacle to their enjoyment of the supposed easement. The same term of twenty years, necessary to raise the presumption of the grant of an easement from enjoyment, will raise the presumption of its release or extinguishment, in case of nonuser, especially if this be entire and complete, and caused by an obstacle defeating its exercise, erected by the owner of the soil: 3 Kent, 9 ed., 585; *Taylor vs. Hampton,*4 McC., 96; Evans’ Road L., sec. 53. It is not claimed by the bill, that the relators have acquired any right to a landing at the foot of King street as a substitute for the landing at the foot of Meeting street: and, in fact, in a few years after 1834, less than twenty, the battery was extended over the waste fronting King street. Some negotiations ensued between the islanders, through their counsel, aim] the City Council, which resulted, so far as we know, in no other recognition of the right of the relators, than that contained in the Ordinance of October 28, 1853, that the south end of Council street be established as a place of landing for persons and boats for the use of the inhabitants of the city and of the surrounding country. This Ordinance must be interpreted according to the fair import of its terms; for there is nothing in the circumstances under which it was passed, to point the application of it to anything not within its popular acceptation: and the canons of construction allow us no greater latitude. A landing at the end of Council street means a landing in the existing state of the water and highway: and the words cannot be legitimately extended to include, by implication, any obligation on the part of the Council to prolong the street, or erect a wharf accessible in all conditions of the tide. The proof is, that Council street terminates before reaching Gibbes street, and that it was never contemplated to extend it beyond the point of intersection with Gibbes street: that at its present termination, there is a good high-water landing, and that the extension of the street to low-water mark would involve heavy expenses, *444and intrusion upon private estate. On the whole, the rela-tors have not satisfied us, by determinate and clear evidence, that they had ever, or anywhere, legal right to a low-water landing, dr to a much better lauding than the foot of Council street now aifords.

We may regret this controversy, but it is our function to determine lawful rights on issues properly made, and not to give pragmatical and unauthoritative advice.

Ordered, that the decree be reversed, and the bill be dismissed.

Johnstone, J., concurred.

*Decree reversed.*