
    
      The State vs. John P. Cullum. William Toney vs. John P. Cullum.
    
    1. A stream cleared out and used for the purposes mentioned in the Act of 1825, after the passage of the Act, (6 Stat. 268,) which provides that “no person'shall erect any mill-dam or other obstruction across any stream used for the purpose of navigation by boats, flats, or rafts of lumber or timber, without,” &c, is embraced within the meaning of the Act. The term “used,” in the connexion in which it stands, refers the use of the stream which shall give it a public character to the time at which the obstruction is made. The term “used!” being a participle, has a past, present or future meaning, according to the context.
    2. In an indictment under the Act of 1825, (6 Stat. 268,) for a nuisance in obstructing a creek, the erection of the dam was charged, and the exception in the enacting clause negatived, by averring that it was erected “without sufficient locks, slopes or canals, to admit the free navigation;” but it was contended by the defendant, that he had erected a good and sufficient slope for the passage of rafts, and that his refusal to permit the prosecutors to pass through it, was not the offence specified in the Act, or alleged in the indictment. Held, that the words “without a sufficient slope to admit the free navigation,” mean aslope wide enough and deep enough for the passage of rafts, which should at all times be open when needed for that purpose. And the proof being that defendant said the slope was his private property, claimed to collect tolls for passing, refused permission to the prosecutor to pass, and that the slope in his dam was his waste way to preserve it in high water; the allegation in the indictment, negativing the exception in the enacting clause, was sufficient.
    
      Before O’Neall, J. Lexington, Spring Term, 1844.
    In the first of these cases, the defendant was indietd for a nuisance, in obstructing McTier creek, a branch of South Edisto river; and in the second, the plaintiff, the part owner of a saw mill above that of the defendant, on the same creek, brought an action on the case against the defendant, for preventing him from passing with rafts down the creek. The same facts apply to both cases.
    In 1829, or the begining of 1830, the mill belonging now to the plaintiff, Toney, and the defendant, and above the defendant’s mill, was built. There was then no mill on the stream between it and the mouth, except Prothro’s, now Mims’s. The original proprietor of the plaintiff’s and defendant’s mill, Mr. Jones, cleared out the creek and passed one fleet of rafts down it, and over Prothro’s waste-way, into South Edisto. This was done before the defendant erected his mill-dam between the plaintiff’s and defendant’s mill, and that owned by Prothro, now Mims. The defendant put a slope in his dam when he erected it.
    The plaintiff", Toney, and his father, bought the mill from Jones, in August, 1833, and used the creek for rafting, passing over the slope in Prothro’s, now Mims’s, which they put in and kept in repair. At the death of Toney’s father, the defendant became joint owner with the plaintiff, Toney, of the mill, each of them having a saw in the same. ') he passage of rafts down the creek was freely permitted until the 27th of January, 1843, when the plaintiff, Toney, descended the creek with a fleet of rafts ; the defendant, and many persons to assist him, came out on his dam and forbid the passage. The gates on the slope were shut by the defendant, and the plaintiff was ordered not to pass. He accordingly desisted and left his rafts. After this prosecution and the action was set on foot, the defendant informed the plaintiff he could pass until the right was decided by-the court; and accordingly the plaintiff passed his rafts over the dam from that time.
    The Act of 1825, (6 Stat. at Large, 268,) provides that “no person shall erect any mill-dam or other obstruction across any stream used for the purposes of navigation by boats, flats, or rafts of lumber or timber, without sufficient locks or slopes or canals in or around such mill-dams or other obstructions, to admit the free navigation of such streams ; and if any person shall violate die true intent and meaning of this Act, such person shall be guilty of a nuisance, and such obstructions may be abated as other public nuisances are, by the laws of this State.”
    The presiding Judge was of opinion, and so ruled, thatMcTier creek, having been opened and used for rafting before the erection of the defendant’s mill, was within the Act of 1825, and its obstruction was, according to it, a nuisance; and that, although the defendant did put a slope in his dam, yet closing the gates upon it, and forbidding the plaintiff from passing, was the same as if no slope had been placed in the dam; for the free navigation was thereby prevented.
    The defendant was convicted on the indictment.
    The plaintiff in the action on the case, submitted to a nonsuit, with leave to move the Court of Appeals, to set it aside.
    The defendant moved the Court of Appeals in arrest of judgmentin the indictment against him, and failing in that, for a new trial, on the following grounds :
    1. Because McTier creek not having been cleared out or used for rafting lumber, prior to 1830, was not one of those streams embraced in the Act of Assembly of December, 1825.
    2. Because the defendant did construct in the mill-dam in question, a good and sufficient slope for the passage of rafts, and the claim made by the defendant, that the slope was his private property, and the forbidding the prosecutor to pass through it with his rafts, did not constitute the of-fence specified in the Act of Assembly, or alleged in the indictment; and this being the only evidence of the nuisance, it is submitted that the proof did not sustain the indictment.
    3. The verdict is, therefore, contrary to law and the evidence.
    The plaintiff moved to set aside the non-suit in this case, on the grounds:
    1. Because McTier creek is not one of those public navigable streams, for the obstruction of which an indictment will lie as for a public nuisance, and therefore the only remedy for its obstruction is by private action.
    2. Because the plaintiff’ sustained special damages, by reason of the obstruction of the said stream by the defendant, whereby the plaintiff’s rafts were detained for two months.
    3. Because the plaintiff has a private right of way through the defendant’s mill-dam, and the slope constructed therein.
    Bauslcet, for the motion, in the first case.
    
      Caldwell, Solicitor, contra.
    
      Griffin Sj' Boozer, for the motion, in the second case.
    
      Bausket, contra.
   Curia, per

Q’Neall, J.

The first ground of appeal on the part of the defendant, Cullum, makes the question whether McTier creek is within the Act of 1825. The Act declares that “no person shall erect any mill-dam or other obstruction across’ any stream used for the purpose of navigation by boats, flats, or rafts of lumber or timber, without,” <fec. What is meant by this term, “used,” in the connection in which it now stands'? It plainly refers the use of it which should give it a public character to the time at which the obstruction was made. If, at that time, the stream was used for the purpose of navigation, in any of the modes pointed out by the Act, the defendant, by the words of the Act, was prohibited from obstructing it. This will be more plain, perhaps, by stating facts which led to the passage of the Act. At that time the enterprize of the people of the Edistoes had been aroused, and they were beginning to build mills on small tributaries of these two great rivers, and open them out by pássing down with rafts, and removing the obstructions in the way. The Act was intended to encourage this spirit, by preventing the enterprize from being defeated by some churlish or revengeful man, who, as soon as the creek was opened, might, on his own land, throw a dam across it, and thus deprive the mill owner above of the value of his mill, and the fruits of his active industry. Were it not for the Act of 1825, this would be the case with almost every one of the rafting creeks of the Edistoes ; for, generally, they could then in no point of view be regarded as common law navigable streams. Since the Act of 1825, they have become highways. The term “used” is a participle, and may have a past, present or a future meaning, according to the sense of the context. In giving it the construction which I have done, we do not, therefore, violate any grammatical use of it.

The second question is, whether putting in a slope in the dam wide enough and deep enough for the passage of rafts, but refusing to permit the gates upon it to be lifted, or to allow the prosecutor to pass his rafts through it, is a compliance with the Act.

The Act, after prohibiting the erection of a dam, as I have already stated, goes on to say, “without sufficient locks or slopes or canals in or around such mill-dams or other obstructions, to admit the free navigation of such streams; and if any person shall violate the true intent and meaning of this Act, such person shall be guilty of a nuisance, and such obstructions may be abated as other public nuisances are by the laws of this State.” The Solicitor, as he was bound to do, has negatived the exceptions in the enacting clause, after charging the erection of the dam, by averring that it was so erected without sufficient locks, slopes or canals, to admit the free navigation. The intention of the Act is plain, that when a dam was made across a stream, like McTier,- used for rafting, a sufficient way of passing rafts should be provided, which should at all times be open for their passage. Where the intent is plain, it is to have effect, unless some rule of law should forbid. I admit the rule of construing a penal statute is strictly ; but much of the ancient strictness is relaxed, as may be seen by refering to the cases arising under our Acts prohibiting trading with slaves without a permit. The rule of reason is the one now adopted. The words in a statute are to be construed to support the intent, if that be plain, and the words will admit of such a meaning. What is meant by the words, without a sufficient slope to admit the free navigation 7 Do not they mean to say to the defendant, you may put your dam across McTier, if you will put in a slope wide enough and deep enough for the passage of rafts, and which shall at all times be open when needed for that purpose 'l I think, take all the words together, every one will say the question suggests the obvious meaning. This being so, are not the allegations in the indictment sufficient 1 Remember, the nuisance is the dam. The slope is an exception in favor of the defendant, found in the enacting clause. The Solicitor negatives it by saying that the slope was not sufficient to admit the free navigation. No doubt that sufficiently negatives the exception. If it had been that there was no slope in the dam, it would have been quite sufficient to have said “without a lock, slope or canal.” ’The words, sufficient to admit the free navigation, pointed the defendant sufficiently to the fact, that the State intended to en-quire whether his slope did admit the free navigation. This was enough, for it apprized the defendant of the matter to which his answer was expected. Did the proof sustain the allegations 1 It is clear it did ; for about the dam blocking up the entire course of the creek, there is no doubt. That was a nuisance, unless the defendant, in good faith, had provided a lock, slope or canal, sufficient to admit the free navigation. The State went on to shew he had not. The proof was, the prosecutor descended the creek to the dam, the gates were down. The defendant came out, with a force to assist him, and said this slope “is my private property.” You cannot pass it. He had previously informed the prosecutor, by letter, that unless he paid toll, $1 per raft, he could not pass the slope. When it is remembered that this slope is the defendant’s toaste way, necessary for the preservation of his dam in high water, by letting it off, there can surely be no difficulty in saying the defendant did not make a sufficient slope to admit the free navigation ; for the defendant said, it is my private property, and claimed to collect tolls. This shews that it was not of that public character contemplated by the Act. It was not common to all who chose to pass by it. The free navigation of McTier was obstructed by the defendant’s, dam, and therefore his slope was not sufficient. This is giving effect to the meaning, and not sticking upon the precise letter. The first and third grounds of the plaintiff’s motion, in Toney vs. Cullum, are disposed of by the remarks made in the State vs. Cullum. As to the third ground, we think the case not a suitable one to consider it. Neither the attention of the court nor the counsel was directed to the question of special damages. No proof was heard. It seemed to be conceded, if McTier was a public highway, that the plaintiff could not recover. The nonsuit was submitted to, on the proof in the case of the State vs. Cullum, in which the prosecutor, Toney, the plaintiff, was the main witness. His proof, as to the question of public right, was conceded to be true; and my understanding was, if Cullum got a new trial, that then the nonsuit should be set aside in Toney’s case. Further than this we will not now go.

The motions in both cases are dismissed.

Richardson, Evans, Butler and Wardlaw, JJ. concurred.  