#### The Town Council of Moultrieville *vs.*William Patterson.

The intention of the Legislature, in the several Acts in relation to Moultrie-ville, is not that there should he only one dwelling-house to each half acre lot; but that one erecting a dwelling house should appropriate to his exclusive use no more than a half acre of land.

BEFORE JOHNSTON, OH., AT CHARLESTON, MARCH, 1854.

Johnston, Oh. This is a bill asking an injunction to restrain the defendant, Patterson, from rebuilding a dwelling house upon certain premises on Sullivan’s Island; and it is necessary, to a proper understanding of the case, to examine various regulations passed, at different times, by the General Assembly of the State.

On the 31st January, *1791,*it was *“Resolved,*that such of the citizens of this State, as may think it beneficial to their health to reside on Sullivan’s Island, during the summer season, have liberty to build on the said Island, a dwelling and out-houses for their accommodation; and the person, or persons, so building, shall have the exclusive right to the same, and one-half acre adjoining thereto, (as long as he, she, or they, may require for the purposes aforesaid:) delivering up the same when demanded by the governor or commander-in-chief for the time being: — he, she, or theyhaving the liberty of removing the buildings which they may erect.”

By an Act passed the 17th day of December, 1817, incorporating the village of Moultrieville, it was declared that “ the Intendant and Wardens shall have power, under their corporate seal, to make and establish such rules, by-laws, and ordinances, respecting the streets, *beach,*shores, ways, landing-places, commons, markets, *buildings,*carriages, wagons, carts, *345drays, and police of said town, as shall appear to them requisite and necessary for the security, welfare, and convenience of the said town, or for *preserving health,*peace, order, and good government of the same,” and “affix fines for offences against their by-laws, and appropriate the sums to the public uses of the island: but no fine shall exceed twenty pounds sterling, for any one offence:” and “ shall have full power and authority to provide for the abating or removal of *nuisances,*and enforce the same.”

By an Act passed the 14th day of December, 1819, amending the Act of Incorporation, it is recited and enacted as follows: — “And whereas, the privilege of occupying the said island by the citizens was originally granted by the Legislature under proviso, that each citizen taking a lot for himself should actually build thereon; and it is not just, or proper, that any citizen should appropriate a vacant lot by erecting a mere shed, or by mere enclosure, and thereby prevent others from the privilege which he doth not, himself, actually use; — ■ be it therefore enacted,” “ that no exclusive right to a lot on the said island shall be obtained by any citizen, otherwise than by his actually building a dwelling house thereon: — and if such dwelling house shall be removed or destroyed, the owner thereof shall.have the exclusive right to rebuild, on the same lot, for one year thereafter; and if no dwelling house be built by him within that period, such lot shall again be considered as vacant.”

The sixth section of the Council Corporate Act, passed the 19th December, 1827, is in the following terms: — “ And be it further enacted, that hereafter no person shall erect, or cause to be erected, *more than one dwelling house*on each *half acre lot,*in the town of Moultrieville, on Sullivan’s Island: — and if any person shall build, or attempt to build, *such*dwelling house, such person may be compelled to desist from such building, and to remove the same, by the Court of Chancery. And it shall be lawful for the Intendant, or any one of the Wardens *346of the said town, to execute such order, under the direction of the sheriff of the district, or his lawful deputy.”

Early in 1851, the defendant, Pat,erson, acting for himself and others, enclosed an irregular piece of ground, situated on the south beach, and represented in this diagram by the lines 1, 2, 3, 4, to be used by the parties as sites for summer residences :

*Palmetto Street.*

*West*1 /2j /O BEACH. *Lwp.bne Street.*

Whether lots were laid out to them by the town council, or by themselves, does not appear; but there is a plat before me, entitled, “ Copy plat of a survey made on Sullivan’s Island into lots, by Robert Q. Pinckney,” in which, are laid down, not only the external lines, as I have pointed them out, but dividing lines between the four persons proposing to occupy the premises. But the length or *course*of the lines are not laid down so as to enable me to complete the area of each lot. I have represented the dividing lines in Mr. Pinckney’s plat by dotted lines, 7, 8, 9, 10, 11, 12, in my diagram.

Possession was taken of this plat of ground, 1, 2, 3, 4, as follows: — by this defendant, Patterson, at A, — by Mr. Owens, at B, — by Mr. Beckman, at C, — and by Mr. Horlbeck, at D.

*347The defendant, Patterson, built the first dwelling house, which he placed at A. At that time there were no buildings, of any description, on any of the lots except a carriage-house and stable on Mr. Beckman’s lot, and some out-buildings on Iiorlbeck’s. In this condition of his premises, Mr. Beckman, in the fall of 1851, sold them to the defendant, Patterson, who immediately erected a dwelling house at C; there was at that time a dwelling house in the course of construction at B, by Mr. Owens. Then Horlbeek built a dwelling house at D. Whether his house or Owens’ was first begun or first finished, does not clearly appear.

This is the order in which the four dwelling houses were put up on the plat of ground 1, 2, 3, 4.

Orignally a dividing line, (now obliterated,) was marked by a fence between Owens and Beckman: and there was a fence line between Beckman and Patterson — a little west of the line 5, 6. No line, or at least, no fence, ever divided between Patterson and Horlbeek.

A fire broke out in December, 1852, and burned down Owens’ dwelling at B, and Patterson’s' at A. Patterson, who had as already stated, become the owner of Beckman’s, thereupon sold it, with the appurtenances, to Owens; who took possession of the dwelling at C, destroyed the fence which had existed between his original lot and that just purchased by him; and, relinquishing to Patterson part of the latter, drew in his fence to a line now agreed on between them and represented by the line 5, 6, — thus enlarging Patterson’s original premises.

Patterson thereupon got timbers together to rebuild his house at A, and this is a bill to restrain him, by the authority of the statute of 1827.

I suppose whatever objections might be made to the jurisdiction of the court, independently of that statute, are completely obviated by its previous expressly delegated authority to it *348upon tbe subject: and, therefore, if the defendant is proceeding contrary to the statute, he must be stopped.

• My doubt is, whether the building which he proposes to put up is an offence against the Act.

I observe in the first place, however, that there is nothing in the case authorizing an injunction independently of the Act of the Legislature itself. Though the Council, by their charter, were authorized to regulate' their internal police, with reference to health, and to define nuisances and prohibit them by penalties, — it does not appear that they have ever exercised their sub-legislative powers in this respect. If they had, it will leave a question, whether their declaring that to be a nuisance, which, in its nature, is not so, would confer any authority upon this court, or make it its duty to restrain it: or render the. party accused, liable, in any court beyond the fine which the council are authorized to lay.

The offence charged on this defendant, does not” appear by any evidence to be a nuisance, even if he had carried his intentions into actual execution. I mean to say, that there is no evidence in the case to show, that the house at A, while it stood, was prejudicial to the health of his neighbors, or that, had he now succeeded in constructing it, the new building would be attended with any such effect, — nor does any witness offer an opinion that it is necessary to the preservation of their health that he should be enjoined. No such thing; on the contrary, the implication from the testimony of Owens and Tlorlbeck, who must have had experience of the effect while the old house stood, is that they, the two nearest neighbors, had no cause of complaint. They say there was no complaint, and that the relations of all the parties were harmonious, which is hardly consistent with the idea that any ground of complaint existed.

Therefore, if the rebuilding of the house at A. under the circumstances, is an offence at all, it is an offence exclusively under the Statute of 1827 : and we must look to that statute for the terms creating it an offence.

*349If tbe original building at A. was not erected in contravention of tbe Act, it was no statutory nuisance, and tbe right to *rebuild*it is secured by tbe Statute of 1819.

By the legislation of 1791, no restriction whatever (relating to the extent of area on which dwellings were to be erected,) was created or declared. No title on the land built on was given. The builder was declared entitled to the privilege of exclusively using half an acre adjoining his residence, for the convenience of a summer residence. No figure was assigned to the half acre, — nor was there anything in the Act fixing the distance between dwelling-houses. If an individual had seated his house on a piece of ground less than half an acre, and surrounded by streets, his structure would not have been unlawful, though his privilege to use half an acre would have been cut down by his own voluntary choice of a location, where it could not be enjoyed. And so, if another individual had built on a strip of land, between two pre-existing mansions, so narrow so as not to allow himself the use of half an acre without infringing on the areas allowed to the prior, settlers, his building would not have been illegal; although he had voluntarily narrowed the privileges he might otherwise have claimed.

The meaning of the legislature in the earlier *Lets*is palpable. If a citizen choose to build a summer residence, he was entitled to appropriate the exclusive use of half an acre, (perhaps in any form or figure,) of land adjoining his building, including its site; and as no other citizen could encroach upon these premises, he might, in virtue of his building, claim a lot of half an acre. He could claim no more; but it depended upon himself alone, whether he would claim an entire half acre, or put up with less. If. one entitled to half an acre submitted to another person to build within a distance which restricted his occupancy on that side, it was an offence to him alone, and his consent or acquiescence, would -waive his right to complain. Mr. Patterson having taken up the four lots in conjunction *350■v^ith those who are to occupy the contiguous lots, they must be held to have assented not only to the limits and location of his lot, but to the effect which his location produced thereon.

His building at A. was no offence against the Act of 1791, properly construed. The question remains, whether it was an offence against that of 1827 ? It is not, unless that Act obliges every builder to own a lot of half an acre. My opinion is, that it does not. While he may put up *one*dwelling-house on his lot, (the size of which is left to himself,) he is not enti tied to put up *two*or more. This is the meaning of the Act. The intention being evidently to give a right to a summer residence to every person who might choose to build one for his own usé; it was at the same time considered just that he should not abuse this privilege by erecting other residences,' not for his own use, but to let out for profit. It seems that the Act of 1791 had been abused by putting up sheds instead of substantial residences; an abuse which was remedied by the Act of 14th December, 1819; a further abuse in a different form was probably guarded against by the Act of 1827.

To this view, it has been objected, that the Act of 1827 positively forbids the building on any lot of less than half an acre. This is not my reading of that Act. The Act, it is true, speahs of “ each half acre lot.” Does this necessarily require that each lot shall be of the extent of half an acre ? I think not. This Act has tacit reference to the Act of 1791. That Act gave the maximum to which each builder might claim: and it being probably supposed that every claimant would lay out his premises to the best advantage, the lots when afterwards spoken of are spoken of as half acre lots. This accounts for the language of the Act of 1827. Its intention was simply to say, that the owner of a lot, (as defined by the Act of 1791,) should not put up more *than one*residence upon it.

There is a view, apart from what I have said, which affects the right of the Town Council to complain, provided it be a *351fact, that they laid out these lots as laid down in Picimey’s map. This is not a proceeding by way of information, nor is the attorney-general a party. The defendant is not proceeded against for a purpresture upon public grounds, but for an offence, in the nature of a nuisance, against parties suing,— against private parties. A nuisance must be a damaging act: whereas, a purpresture, whethér injurious or not, is a public offence. But suing as a mere corporation, for an injury, the council cannot complain of buildings put up on a lot, of whatever extent, granted by themselves for that purpose.

But suppose I am mistaken in all that I have said, still at the time that Mr. Patterson put up the original building which he now proposes to reconstruct, he committed no offence; and if he did not, he has expressly the right of rebuilding it. At that time the putting up the house he constructed, left half an acre between him and any other building. It may be, that the building put up *at 0.,*was an offence. I think it was not. But suppose it was, it by no means follows, that the wrong recoiled upon the premises at A., so as to render the lawful structure there, (or its reconstruction,) unlawful.

It is ordered that the bill be dismissed; and that any order of injunction which may have been granted under it be dissolved and set aside.

The complainants appealed on the grounds:

1. That the intention of the legislature, as manifested in the series of Acts in relation to Moultrieville, was, that there should be only one dwelling for each half-acre space, and that the defendant, in building upon a lot of less than a half acre, was violating the law.

2. That neither by any previous act of his own, nor by any act of the Town Council, had he obtained an exemption from the application of the remedy prescribed by the statute.

*3523. That the prayer of the complainants should consequently have been granted, and a perpetual injunction issued.

Petigru, for appellant.

*Yeadon,*contra.

Pee, CüRiAM.

"W e concur in the decree; and it is ordered that the same be affirmed, and the appeal dismissed.

JOHNSTON, Dargan and WARDLAW, 00., concurring.

*Decree affirmed.*