
    
      Tarrar & Miller vs. Jacob Nunamaker.
    
    
      Semble, that a private individual is not liable in trespass for abating, as a public nuisance, a fish trap placed in the river, near any island or dam at the head of the Columbia Canal, in violation of the 25th sect, of the Act of 1828, 6 Stat. 368.
    
      Before Whitner, J. at Richland, Fall Term, 1851.
    The report of his Honor, the presiding Judge, is as follows:
    “ The plaintiffs brought this action (trespass) to recover damages of the defendant, for cutting away and destroying their fish traps, which had been constructed and placed in the Congaree river, between the shore and one of the islands. The defendant denied the trespass, and insisted that these traps were a public nuisance, which might be abated by any one, in consequence of their location within a prohibited distance of a public dam, erected for the purposes of navigation.
    
      “ Robert Miller, on the part of plaintiffs, proved the construction of the traps by them, and their location. That they had been cut away and rendered wholly useless. As many as three traps. This fishery had been used by witness many years, (more than ten years) and he had transferred his right to the .plaintiffs. The witness had been a commissioner of fish sluices at this point many years. A fish sluice had been laid out, and these traps were not in it. They were in an old dam erected many years ago, (1821,) for the purpose of feeding a canal. The canal was subsequently extended higher up, and it has been a great many years since the dam was used for any public purpose. There is no dam now. It was first built by the State, and no sluice was left, but a place afterward washed out, and since left as a fish sluice. This fishery was worth from $150 to $200 per annum. Defendant had a fishery some two hundred yards above, and the dam there extended quite across. Afterwards said, defendant had traps there, it was said year before last, but this is not of his own knowledge.
    
      John J. Kinsler. — Knew the traps of plaintiffs, and that they put them in the dam. On one side the dam joined the public land, and the other the island belonging to the witness. In March last, or shortly after, plaintiffs’ fishery was removed, and witness asked the defendant why he cut away these traps, and he said the Superintendent of Public Works had given him permission j again he said he had directed it to be done. In 1834 or 1835 was the last use made of this dam for any public purpose. The canal was extended to Bull sluice many years since. The Saluda Canal had not been used since 1836.— There is no such officer now, and was not in March, as Superintendent of Public Works. The dam was called a public dam. Fish could pass up next the island, and this place had been laid out for sluice by commissioners. In common fishing time fish could pass up. Defendant had traps up the river— some time since seen by witness. Can’t say they were in fishing condition last year. Witness and defendant not now on good understanding.
    
      “ Samuel Kennerly. — Knew the traps of plaintiffs. Defendant’s traps were two hundred yards above plaintiffs’.— Fished last year. Don’t think they were in fishing condition this year. Defendant sends fish to Columbia. Has a fishery still higher up. Thought Jake Nunamaker had an interest in the fishery next above plaintiffs’, but never heard Jake say so.
    “ Jacob Rife. — Heard Kinsler ask defendant about taking plaintiffs’ traps out, and he said he was authorized to do so by the Superintendent — witness was standing not-far off.
    “ Robert Miller, recalled. — Said the traps were cut away in February, 1851. There was a sluice in the dam. Witness had traps in before any sluice was opened, though the sluice was opened before defendant put his traps in above. Janies Tar-rar and W. H. Miller united in this fishery', having first obtained permission of witness.
    “Plaintiffs closed their testimony, and defendant’s counsel moved for a nonsuit, because there was no proof of trespass by defendant, and because it was a common nuisance which any one had a right to abate, (A. A. 1827, 6 Stat. 340, sec. 3.)
    “ Defendant’s motion being refused, David Friday, on part of defendant, said there was a dam built, but could not remember the time. When first erected, there was no sluice— but one was shortly after directed, he understood, by public authority. A sluice was opened on the Saluda side, for passage of fish, some time after, but could not say how long.— There were some traps not far above. When last seen, two years since, they were much shattered. Defendant has a fishery at Bull sluice. The dam at which plaintiffs’ traps were, was built in 1821, or about thirty years ago. This witness, with others, some eight or ten years ago, designated a fish sluice next the island, which was opened, and has remained open ever since.
    “I submitted to the jury the enquiry whether the injury complained of by plaintiffs was traced by the evidence to the act of the defendant, and if not, that the verdict should be for the defendant. If resolved against the defendant, I held an obstruction to the free passage of fish or to the navigation of this stream a public nuisance. That the erection of fish traps was not, of itself, such an obstruction and nuisance. That the regulations adopted by the Legislature, by the Act of 1827, were of force, but whether applicable to this case, depended on the facts. If a sluice had been designated by the proper authority for the passage of fish, and had been left open, then, on that ground, there existed no well grounded objection to the act of the plaintiffs. That, on the other ground, whilst the Legislature had restrained the erection of traps within eighty yards of public dams erected by public authority in aid of navigation, yet if in this case the jury were satisfied from the testimony that the dam in question, although originally erected by the State, had been long since abandoned, gone into decay, and was in no way used in navigating this stream, then the mere erection of a trap within eighty yards, or on the very site even where a dam had been once built, was not ipso facto an indictable offence, and hence the act of the plaintiffs was not an indictable offence within the concemplation of the Act of the Legislature. The law looked to the injury resulting from obstruction to passage of fish, and hence forbade the erection of traps within eighty yards of public dams erected, designed and used for purposes of navigation. That the mere erection of a dam in former times, and used for a time for the purposes designed, did not so consecrate the spot as that private individuals were forever debarred the acquisition and enjoyment of private rights, when the purpose was clearly abandoned by the public, and the dam no longer used, or it might be no part remaining, These propositions were all resolved against the defendant.
    “ As to the damages, the jury, in conformity with the request of defendant’s counsel, were instructed, that they must look to the value of the property injured or destroyed, as authorized by the testimony, derived either from direct proof or from some knowledge of the article and its known value, and not from some mere conjecture of value, or some supposed consequential damage, to which they might add such amount as they deemed reasonable, by way of punishing the defendant, &c.
    “ The jury found for the plaintiffs one hundred and sixty-two dollars and fifty cents.”
    The defendant appealed, on the grounds,
    1. That the defendant was not guilty of a trespass, in cutting out the traps, they being a public nuisance.
    2. Because his Honor erred in charging the jury that the case did not come within the provisions of the Act of 1827, in relation to fish sluices.
    Arthur, for the motion.
    
      Black, contra.
   The opinion of the Court was delivered by

Whitner, J.

It will be perceived, as well by the report as the grounds of appeal, that this case, on circuit, turned mainly on a just construction of “ An Act to prevent obstructions to the passage of fish up the several rivers of this State,” and still more especially of the third section of that Act. (See A. A. 1827, 6 Stat. 340).

The appeal invited a review of the interpretation this Act then received.

On the very threshold of the argument made in this Court, the counsel, now representing, for the first time, this defendant, brought to view subsequent legislation bearing directly and far more conclusively on the question raised in the defence, to wit, whether the traps of the plaintiffs were a public nuisance.

The Act referred to is An Act concerning the Public Works of this State,” passed in 1828, (6 Stat. 368). The 25th section provides — “ that the whole bed and channel of the river, below the Broad river dams at the head of the Columbia Canal, to the distance of fifty yards below the islands with which the said dams are connected, together with the spaces between the said islands, and between the main land and the said islands, shall be cleared of all fish traps, dams and other devices for catching fish; and the commissioners of fish sluices for Broad river are hereby authorized and required to cause these limits to be designated ; and every trap, dam or other device for fishing, erected, or to be erected, within the limits so ordered to be cleared, be, and the same is hereby declared to be, a public nuisance, and may be abated as such.” The case was heard by myself on the circuit, and although it is true that this Act was in no way alluded to by counsel, and being entirely local in its character, I am free to admit, the particular section above referred to was wholly overlooked; and although it is equally true that no ground of appeal specifically raises the question presented by this section, yet the Act is a public Act, and forms a part of the law of the case. The omission or oversight of the counsel, or the Court, should not prejudice the party, as long as his rights are within the reach of remedy.

The testimony heard in this case, compared with the localities referred to in this Act, shew, plainly, that its provisions are directly pertinent to the .very question involved. The case, in fact, upon this view, is wholly different from that submitted to the jury, but as there may be yet other questions raised likewise under this Act, and upon which a reference may yet be necessary to a jury, the ends of this investigation may not be satisfactorily attained otherwise than by another trial.

The motion for a new trial is, therefore granted.

O’Neall, Evans, Wardlaw, Frost and Withers, JJ. concurred.

Motion granted.  