
    The State ex rel. Blake et al., vs. The N. E. Railroad Company.
    Mandamus is a proper remedy to compel a Railroad Company in making their track across a navigable stream, to pursue the mode prescribed by their charter and nob to obstruct the navigation.
    BEFORE GLOYER, L, AT CHARLESTON, FALL TERM, 1855.
    The report of his Honor, the presiding Judg'e, is as follows :
    “ A rule was granted against T. Pinckney Huger, President of the North-Eastern Railroad Company, to shew cause why a writ of Mandamus should not issue, commanding said Company to remove obstructions placed in New-Market and Var-dell’s Creeks, which are alleged to be navigable streams, and, in the passage of said Creeks by their railway, to proceed according to the directions of the Act incorporating said Company.
    “The North-Eastern Railroad Company was incorporated in 1851, (12 Stat. 129,) “ for the purpose of constructing a railroad from the city of Charleston, to such point on or near the Wilmington and Manchester Railroad, West of the Great Pee Dee, as may be selected,” &c. By an Act passed in 1854 the Company was permitted to extend their road within the corporate limits of the city of Charleston. Within these limits the road crosses New-Market and Vardell’s Creeks. The fifth section of the Act provides that ‘ for crossing rivers or other courses the said Company may, at' their option, either construct viaducts, but so as not to obstruct the navigation of such rivers or water courses, or proper wharves and landing places, and use steam-boats or other suitable boats.’
    “Erom the affidavits submitted, it appears that New-Market and Vardell’s Creeks run from Crooper River up to the high land on the Meeting-street road, which is a public highway; 
      that in them the tide ebbs and flows, and that schooners, sloops and other vessels, have passed beyond the points where the railway crosses. It also appears that the width of New-Market Creek was about seventy-five feet, and Vardell’s Creek forty-five feet; that in both creeks the width has been contracted to fifteen feet, and that the depth of both at low water has been reduced two feet, ‘ by an accumulation of mud or sand caused’ by the erection of said road. The rails of said road pass over these creeks, obstructing their navigation by schooners and sloops, and the respondents have failed to comply with the provisions of the Act incorporating their company.
    “ To the rule served on them the respondents have answered:
    “ 1st. That the said streams are shallow streams, recognized as private.
    “ 2d. That access to the said creeks is cut off by marsh at every point, and there are no landings — a condition incompatible with their use as a public highway.
    “ 3d. That the creeks are neither public highways nor navigable streams.
    “ 4th. That they have not been so used as to fall within the provisions of the Statute law of South Carolina.
    “ 5th. That if the respondents have committed a nuisance, Mandamus is not the proper remedy.
    
      “ Our first inquiry is, are these creeks embraced within the Act of incorporation ? The ‘ rivers or othér water courses’ mentioned in the fifth section of the Act, are such as are navigable; and if New-Market and Vardell’s Creeks fall within this description, the obstruction of them is in direct Violation of the Company’s charter.
    
      “ The General Assembly has not defined what constitutes a navigable river. Some streams, from which the natural obstructions have been removed, are by legislative enactments declared to be navigable, and the owners of mills erected on streams which had been used for the passage of boats, flats, or rafts of timber or lumber, have been required to provide slopes by which such boats, &c., may pass. (6 Stat. 268.) This Act does not embrace navigable streams, but such as have been used by those interested in the lumber or timber business— £ little streams and rivers that are not a common passage for the public.’ Their pbstruction is not prohibited, provided it existed before their use by boats, flats, or rafts of timber and lumber.
    
      “ The water in New-Market and Yardell’s Creeks flows and reflows, and they are, therefore, strictly arms of the sea. In them are no natural obstructions, and they have been navigated by schooners sloops and other vessels, and seem to-be such water courses as the Act contemplates, and the obstruction of the navigation of which it forbids. Lord Hale (Pe Jure Maris, Cap. III.) says: There be some streams or rivers that are private, not only in propriety or ownership, but also in use, as little streams and rivers that are not a common passage for the King’s people. Again, there be other rivers, as well fresh as salt, that are of common or public use for carriage of boats and lighters.” Prima facie, a stream where the water flows and reflows, and where no obstruction exists to the free navigation by schooners, sloops and other vessels, is publici juris, without reference to its use. If, however, it were necessary to establish a use by the public, to give character to these water courses, the evidence shews that wood and brick have been transported in vessels at points beyond the line of railway. To these points, therefore they must be regarded as navigable streams, and are embraced within the provisions of the fifth section of the Act. If the respondents’ road has obstructed the navigation of these creeks, which the Act forbids, such obstruction is a public nuisanee. The width of both has been contracted and their depth of water diminished, and the viaduct which crosses them prevents their navigation by any vessels with' masts. This is certainly such an obstruction of the' navigation as is expressly provided against. The mode of crossing navigable rivers or water courses is left to the option of the company, provided, they shall not thereby interpose obstacles to the navigation.
    “ The last inquiry suggested by the answer of the respondents is, whether a writ of mandamus is the proper remedy. The removal and abatement of a public nuisance is generally effected by indictment, which affords, in most cases, an ample and a satisfactory remedy; but it does not follow that a mandamus will not be issued where an indictment may be sustained. The cases referred to in the argument, show that the remedy by mandamus has been adopted to compel a corporation to do its duty to the public and to individuals. In its form, the writ commands the performance off some act or duty therein specified, the execution óf which is consonant to right and justice. (3 Steph. Com. 681.) Although railways have become important for public travel and transportation, yfet they are private corporations enjoying large privileges, and should strictly comply with the provisions of their charters. The public is interested in their successful operation, and their usefulness should not be impaired by any unnecessary restraints; but they must not be permitted to abuse the powers granted, and should be held to a strict performance of the duties enjoined. If the nuisance be abated by a removal of the track of the road or the piles which sustain it, the public would suffer in the temporary delay in destroying the connexion: whereas, the remedy by mandamus does not destroy the road or delay its operations, but commands the company to fulfil its duty to the public, by pursuing the directions prescribed by their charter for crossing rivers and water courses.
    “The remedy by mandamus has been often used in England, in cases not unlike the present; The Eastern Counties Railway Company obtained an Act of Parliament for making a railway from London to Norwich and Yarmouth, and it appearing doubtful if the Company intended to extend their road to the points indicated, a mandamus was issued, calling upon them to complete the whole line of road, pursuant to the provisions of the Act. {Reg. vs. Eastern Counties Railway Company — 1 vol. Railway and Canal Cases.) Lord Denman, O. J., delivering the judgment of the Court, says : — “ This interference is occasioned by inferior Courts or persons refusing to proceed in some course prescribed by law, and not in consequence of any misapprehension or error in their course, provided they have entered upon it. And accordingly, if it had appeared that the Company were substantially complying with the terms of their "undertaking, there would have been at once a satisfactory answer to the application.” The writ, in this case, was issued at the instance of stockholders; but it has also been granted to command a railway company to increase the height of a bridge erected by them over a public carriage road, according to the provisions of their Act of Parliament. (Tapp, on Man. 243.) The remedy by mandamus will embarrass the Company less in the progress, completion or use of their road, than an indictment to abate and remove the obstructions complained of. The result of an indictment would be the punishment of the Company by fine, and this might not afford to the public the relief which is sought, to which they are entitled, and which the Railroad Company are required by the provisions of their charter to afford. It is no objection to this mode of relief, that the relators have another remedy, especially when that remedy is not so convenient, complete and beneficial. (Tapp, on Man. 24.)
    “ It is, therefore, ordered that a writ of mandamus issue, commanding the North-Eastern Railroad Company to construct viaducts, or proper wharves and landing places, and to use steamboats or other suitable boats, at their option, for crossing New-Market and Vardell’s Creeks, so as not to obstruct the navigation of said creeks; and that they remove forthwith the obstructions placed by them in said creeks.”
    The defendants appealed, and moved this Court to set aside the order granting the mandamus, on the ground, inter alia.
    
    3. That if the respondents have committed a nuisance, mandamus is not the proper remedy.
    
      Martin, for appellants,
    cited Bac. Ab. Mandamus; Tapp, on Man. 243, 5, 20; Bac. Ab. Highway; G-oldsly’s case, 2 Grat. 575; People vs. Brooklyn, 1 Wend. 318; State vs. Bruce, 3 Brev. 264; State vs. Watson, 2 Sp. 97; Carey vs. Brooks, 1 Hill, 365; Ang. on Wat. Courses, 159, 214; Warren vs. Webb, 1 Taunt. 379.
    
      Mitchell, Elliott, contra,
    cited Bac. Abr. Mandamus; Grant on Corp. 159; 2 M. & S. 30; 2 B. & Aid. 616; Tapp, on Man. 243, 244.
   The opinion of the Court was delivered by

Glover, J.

The appellants have abandoned all the grounds in support of their motion except the third which submits that if they have committed a nuisance mandamus is not the proper remedy.

It is not necessary for the decision of this question to trace the writ of mandamus from its first institution to the present time, and to inquire how far it has been enlarged' as a remedial process to advance justice and right. Its earliest application seems to have been suggested in aid of that clause of Magna Charta which declares that “ JSFulli negabimus aut differemus justiciary vel rectum,” (10 Mod. 48). There, never has been any disposition to abridge the use of the writ of mandamus in cases where it is applicable as a remedy either by the action of the courts or by the legislature.

The general doctrine so earnestly insisted on by the appellant’s counsel, that where there is a specific legal remedy, the writ will not be granted, or if granted, will be quashed, is fully sustained by reason, and by the authorities to which the Court has been referred. But this general rule has been restricted to cases where the specific legal remedy is equally convenient, complete and beneficial.

The writ of mandamus has always been regarded as an appropriate remedy to enforce the performance of duties by artificial bodies. In the case of the King vs. the Bishop of Chester, (1 T. R. 396,) Buller, J., says, “It is peculiarly the duty of this Court to see that the powers created by the king’s charter are properly exercised.” How far an indictment is a specific remedy, vías considered in the case of the King vs The Commissioners of Dean Inclosure, (2 M. & Sel. 80.) The Commissioners had neglected to obey an order of the Sessions directing them to set out a road as a public road, and it was held that indictment would not be a specific remedy, that is, such as the case demands, for it was a proceeding in poenam for the past, and not a remedy for the future. It is admitted that if indictment be equally convenient, beneficial and effectual, and such as the particular case demands, the Court will not grant the mandamus. King vs. Screven and Wye Railway Company, (2 Barn. & Al. 646.) This is not the ordinary case of an obstruction placed in a highway which may be abated as a nuisance by indictment; but the obstruction of a highway by a railway, and in the free use of both the public interest is involved. It is therefore important, that in the application of a remedy, public travel and transportation should not be stopped or checked, either on the highway or railway. “ It ought to be the concern of a court of justice to take care that whilst they are granting a remedy to one, they do not at the same time expose others to great inconveniences, and likewise that the remedy be such as may prove effectual.” (10 Mod. 48.) The relators do not require that the railway shall be destroyed? but that the corporation shall exercise the powers granted in the manner prescribed by their charter,- — not that they shall he punished by fine or otherwise, but that they shall do their duty to the public. This is a reasonable request, and cannot be enforcéd by indictment without exposing the Railway Company to great inconvenience, and in the end it would not prove such a remedy as the .case demands. Corporate bodies must be compelled in the performance of their duties to discharge their public obligations.

This Court is of opinion that a writ of mandamus is an appropriate remedy to compel the defendants in crossing “ rivers or other water courses,” to pursue the mode prescribed by their charter. The other grounds having been abandoned, the Court has not considered the questions which they suggest. Since the writ of mandamus was granted an Act has been passed by the General Assembly, and has been brought to' the notice of the Court, which declares, “ that the existing structure of said railway at the points of intersection of said road with the creeks known as New Market and Yardell’s Creeks, is hereby declared to -be lawful, and the said Company is hereby authorized to cross said creeks without draw-bridges or other provision for the navigation of the same.” This enactment necessarily supersedes the writ. It is therefore ordered, that the motion be dismissed, and that all further proceedings on the writ be restrained.

O’Neall, Wardlaw, Withers, Whitner and Munro, JJ., concurred.

Motion dismissed.  