
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV., 1806.
    King and Park v. Sanders and Nolens.
    A boat, laying in a navigable stream, in spch a position as to obstruct the passage of other boats, may be lawfully moved, by any means, as a common and public nuisance.
    All the judges present, except Bay, J. Trespass vi et armis. Tried in Darlington District Court, before Wilds, J. It appeared from the report of Judge Wilds, that the plaintiffs were owners of a certain boat, which, by some accident, had got loose from her mooring, in Black Creek, a navigable -stream, which empties into Pee Dee river, and had drifted down to a narrow part of the stream, where she lay, with her broad side across the creek, and her ends firmly lodged against the opposite banks, so as to obstruct the passage of any other boat on the creek, completely.
    The boat was described by the witnesses, who gave evidence on the occasion, to lie in such a situation, and to be so closely wedged between the banks of the creek, that it was impracticable to remove her without the assistance of some extraordinary machinery, and a great number of hands. In this situation she was found by the defendants, who, taking advantage of a swell of the creek to carry their produce to market, were in the act of descending the creek in another boat. After making some slight attempts to remove the plaintiffs’ boat, the defendants proceeded to cut her in two, and by this means opened to themselves a passage down the creek. The boat, thus destroyed, had lain where she was" found by the de. fendants a considerable time, within a short distance of the residence of one of the plaintiffs.
    The defence set up, and insisted on, at the trial, was, that the creek being a navigable stream, and common to all men, was, in legal contemplation, a highway, to obstruct, which, is a common nuisance ; and that the defendants, under the circumstances of the case, were justifiable in abating the nuisance by their own act.
    The judge, in charging the jury, recognized the doctrine relied on by the defendants’ counsel. He informed them that the creek ought to be considered as a highway ; and told them, that the defendants, by law, were authorized to remove or abate any obstruction in the stream, which interfered with, or-hindered their right of passage; and that they were under no legal obligation to use endeavors to remove the nuisance, without injury to the thing occasioning the obstruction, or as little injury thereto as might be, but might abate the nuisance in the way that might best suit their convenience, orbest answertheir purpose, under the pressure of the occa. sion ; and also, that there was no need to prove on the part of the defendants, a wilful placing of the obstruction by the defendants, or a neglect, or want of due care, or caution, on their part, by means of which the nuisance was occasioned.
    The jury having found a verdict for the defendants, a motion was made in this court for a new trial, on the following grounds : 1. That the judge misdirected the jury, in saying to them, that the defendants were not bound to remove the boat, without destroying her, if they could do it. 2. That Black Creek cannot be regarded as a highway, so as to authorize the abatement of a nuisance, of the sort contended for in this case, by the private act of an individual.
    RrciiARDSON, in support of the motion,
    argued, that Black Creek ought not to be regarded as a navigable stream, so as to be entitled to all the privileges of a common highway. That this creek was not navigable in the year 1787, for then an act passed prescribing the manner by which it should be opened. P. L. 434. That in 1791, another act was passed to improve the navigation of this creek, by which any person, or persons, impeding or injuring the navigation thereof, is subjected to a penalty of £5, at the discretion of the commissioners appointed by the act. This act, which points out the method of improving the navigation of this stream, has de-dared the penalty for obstructing it, and prescribed the remedy to be resorted to, in case the navigation should be impeded. This being a positive statute, introductory of a new right, must be construed strictly, and the common law doctrine on the subject of nuisances, does not apply. But even if we should admit that an obstruction in this creek may constitute a nuisance, yet under the circumstances of this case, the obstruction complained of, not proceeding from the wilful act of the plaintiffs, the defendants were not authorized to abate it, although they might have been aggrieved thereby. They might have brought their action, and recovered damages for the private loss, or injury, which they may have sustained in consequence thereof; but a public prosecution, for the public detriment thereby produced, could not be sustained, because the plaintiffs w'ere guilty of no intentional wrong which could be construed into a misdemeanor; nor any neglect of duty which the common good required. Every nuisance must be malum in se; but the accidental drifting of the boat, and its lodging where it did, was not malum in se, and imputable to the plaintiffs; therefore, they were not indictable; and not being indictable, the boat was abateable as a nuisance. Bac. Abr. But, at all events, this principle ought to be attended to, that in removing or abating a nuisance, by the private act of the party aggrieved, he ought to take care to do as little injury to every one who may be concerned, as the nature of the case will reasonably admit of. This principle was not adverted to, and recommended by the judge in his charge ; and it was not shewn by the defendants, that they did make use of those means, which were in their power, to remove the boat without destroying it. If the plaintiffs were guilty of any neglect, in suffering the obstruction to continue so long as it did, yet, as this was not a point left to the consideration of the jury, it ought not to weigh with the court on the present motion.
    WitheRspoon, against the motion,
    insisted that Black Creek having been opened, and rendered navigable, pursuant to the acts of the legislature, which had been quoted, had been used as a public highway, and that it was common to be used by every citizen who might claim a right to navigate the same. The right of passage on this stream was an easement, common to every one who chose to exercise it; and, therefore, to obstruct, or impede this right, was a common nuisance ; and whether the nuisance was created by design, or occasioned by accident, or neglect, makes no difference aa it regards the right of the party aggrieved, or annoyed by it, to abate it. That, although it may be necessary, in order to support an indictment for a common nuisance, to prove, not only that the thing was detrimental to the public in general, or that the neglect to do something which the common good required, was productive ofi or tended to, effect general mischievous consequences, but also, that the party indicted, wilfully committed the act, or wilfully neglected to perform what the law required of him; yet, it does not follow, that it is not lawful for a private person, annoyed by a nuisance, public or private, to take away or remove the same, whether the nuisance may be ascribed to wilful commission, or wilful omission, or otherwise. The law is clearly otherwise; “ and the reason why the law allows this private and summary method of doing one’s self justice, is, because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy, and cannot wait for the slow progress of the ordinary forms of justice.” 3 Bl. Com. 5, 6. And if this be the true reason for allowing this summary redress, how inconsistent would it be to require the injured party to ascertain, before he should ven*ur6 a^a^e nuisance, whether it was occasioned by wilful commission, or gross neglect. This private right of doing one’s s.eW justice, extends to private nuisances, which are not indictable, &S W6^ aS t0 cornmon nu*sances which are. See Bac. Abr. Tit. Nuisances, Let. c. 7 ; and in justifying the removal of a nuisance, the party need not show that he did as little damage as need he ; for any one may lawfully destroy a common nuisance. Salk. 458. The penalty prescribed by the act of 1791, does not take away the common law right to remove a nuisance. The remedy pointed out by the act is cumulative ; there being no negative words.
    
      Note. Every man may abate a common nuisance. Bra: Nuisance. 2 Salic. 45S. Feoffee may abate a nuisance, as well in the hands of a feoffee, as in the hands of the fortfeasor himself. 5 Co It)], 6. A common nuisance may be abated, or removed, by those persons who are prejudiced by it. See Itj Vin. Abr. 40. And they are not compellable to bring actions. But a thing erecting cannot be lawfully abated, on the pretence, that it will become a nuisance. J2 Mo. 5X0. One may enter on the land of another to deject a nuisance. 9 Rep. 55. 2 Salic. 459. Yelv. 142.
   Teezevant, J.,

delivered the opinion of the court. That Black Creek being a navigable stream, it was a nuisance to obstruct the same; and that the defendants were lawfully authorized to remove the obstruction. That it did not appear from the report of the evidence given at the trial, that the defendants might have removed the obstruction by any other means, less injurious to the plaintiffs, than those they employed, even if it were necessary to use that precaution, which the law does not seem to require ; and that it was immaterial how the nuisance came to exist, whether from wilful design, or negligence, or otherwise, as the injury operated to the defendants was the same, whatever might be the cause of the nuisance.

New trial refused.  