
    Neighbor Windham vs. G. W. Rhame.
    Damages— Case — Public Nuisance.
    
    In an action on the case for obstructing a public way, vindictive or punitive damages, beyond the amount of the plaintiff’s actual loss, may be given.
    BEFORE WARDLAW, J., AT CHARLESTON, MAY TERM, 1857. •
    The report of his Honor, the presiding Judge, is as follows:
    
      “ Action on the' case for special damage done to the plaintiff by the defendant’s obstruction of the way from a public road to a public landing on Wadboo river.
    “ The public right to the landing, and to the way from the road to the landing, was shown by evidence of long continued use by everybody that pleased, and of repeated acknowledgments by various proprietors of the land which includes and surrounds the landing and way. The defendant acquired this land by purchase, in 1853, and there was evidence of his declarations and of circumstances, which went to show that he knew well, and had assented to, this public right in land covered by the conveyance to him.
    “ The plaintiff’s land extended from three-quarters of a mile to one and a half miles from the landing, and he was used to cut wood on his land, and to ship it to market from this landing. In-1855 he hauled to an old field, the point of his land nearest to the landing, fifty cords; he hauled two loads to the landing; when he came with the third load, he found that the defendant had obstructed the way between the public road and the landing, and forbade his passing. He threw this load by the road side. The two loads which he had deposited on the landing, the defendant took and sold, saying that they were his, as he had forbid plaintiff from hauling to the landing. The remainder of the fifty cords lay useless in the old field, and is now much deteriorated. It was never worth more than one hundred and fifty dollars at the landing.
    “ I held that the peculiar damage which the plaintiff has sustained in the loss of his wood, over and above the damage which all the community had suffered from a public nuisance, would sustain his private action :
    
      “ That in estimating damages, so far as reparation was intended, the jury was bound to confine itself to the actual loss, and could not consider profits prevented or other such speculative loss.
    “But that in actions on the case, punitive damages might be found in the sound discretion of the jury,' if evil motive or unworthy conduct, deserving punishment, had been established against the defendant. I submitted the motive, and conduct of this defendant to the consideration of the jury.
    “ The verdict was for plaintiff five hundred dollars.”
    The defendant appealed and now renewed in this Court, his motion for non-suit, on the ground, that the damage proved in this case was not of the character which will sustain a private action.
    And failing in that motion then he moved for a new trial, upon the grounds:
    1. That his Honor charged that the jury had the power to find a verdict for vindictive or punitive damages, whereas, it is respectfully submitted, that in private actions for damages by a public nuisance, the verdict must be limited to the actual damage.
    
      2. Because, even if tbe law in sucb case, permitted a verdict for vindictive damages, there was no proof of malice or evil motive or other matter, to warrant the verdict in this case.
    Pressley, for appellant,
    cited McDowell vs. Murdoch, 1 N. & McC. 237; Duncan vs. Marhley, Harp. 276; • Wilhes vs. Hungerford & Go., 29 Eng. C. L. R. 281; Myers vs. Malcolm, 6 Hill, 294; Stallings vs. Corbett, 2 Sp. 612 ; 4 Denio, 461.
    
      Iiayne, contra,
    cited Sedgw. on-Dam. 35, 38, 551; 2 Wils. 205 ; State vs. Pettus, 7 Rich. 390.
   The opinion of the Court was delivered by

GloveR, J.

The special injury alleged by the plaintiff, consists of the loss and deterioration in value of several cords of wood, caused by the defendant’s unlawful act in obstructing a public road. It is conceded, that whoever sustains a particular injury from a public wrong, beyond that suffered by the rest of the community, may maintain an action — consequently the motion for a non-suit was abandoned at the hearing, and the argument was confined to the motion for a new trial, on the ground of error in the charge. The jury were instructed, that in actions on the case, punitive damages might be found in the sound discretion of the jury, if evil motive or unworthy conduct, deserving punishment, had been established ágainst the defendant.”

The form of action furnishes no certain rule by which damages may be measured. In actions of contract the motive of the defendant is not generally an element which enters into the estimate of damages, but in actions of tort, a large discretion is allowed to the jury if the act be wilful or the intent malicious. The general rule adopted in injuries to person, character or property, whether the action be trespass or case, is that all the attending circumstances, showing a malicious motive, may be given in evidence, and damages may be awarded not only to recompense tbe plaintiff- but to punish the defendant. In actions on the case where the act complained of was the result of negligence, exemplary damages are allowed; — as where injury arose from the defect of a bridge which the defendants were bound to repair, (Whipple vs. Walpole, 10 N. EL E. 130.) If personal property is maliciously injured or destroyed, in an action of trespass, the extent of relief is not limited to the actual loss, and in one case for beating a horse to 'death, where smart money was given, the Court said, “We should have been better satisfied with the verdict if the amount of the damages had been greater and more exemplary.” (Woert vs. Jenkins, 3 Johns. 56.)

Whether the relief is sought in trespass or case, for injury to personal property, all the surrounding circumstances that give color to the act and explain the motive, are admissible in evidence to ascertain if the act be the result of accident or negligence, or of deliberate and evil purpose, and, if from malfeasance, an amount beyond the pecuniary loss should be given, by way of punishment. In cases of tort to the person or character, damages must depend in a great measure upon the motive and degree of aggravation, and “ the verdict is generally a resultant of the opposing forces of the counsel on either side, tempered by such moderating remarks as the judge may think the occasion requires.” (Mayne on Law of Dam. 12.)

The injury to the plaintiff’s property whs caused by the deliberate act of the defendant in obstructing a public way, and by the conversion, subsequently, to his own use of so much of the wood as he had enclosed by his fence on the public landing. From the attendant circumstances his wanton conduct may be reasonably inferred — and if the plaintiff had endeavored either to re-possess himself of his property, or to assert his right to the use of the way by abating tbe nuisance, otherwise than by due course of law, the consequences probably would have been' a breach of the peace. Had th'e defendant acted on a mistaken opinion of bis right to the land, it would have weakened the presumption of a malicious purpose; but he both knew and had assented to the public right.

Where a nuisance is not abated, after one verdict, the jury may give punitive damages in a second action brought for the continuance of the nuisance, upon the ground, that from his failure to abate it, after verdict, it is presumed that the defendant’s original act was wilful, and from which an intention to continue the nuisance is inferred. If from the circumstances that give character to his act, his motive can be ascertained, in the first action, the plaintiff is entitled to such enhanced damages as will afford complete redress by a prompt abatement of the nuisance.

The plaintiff has set out his special damage, and we are of opinion that the evidence was properly admitted to show the defendant’s motive, and that the jury was not limited to the actual pecuniary loss. There was evidence from which the defendant’s wanton purpose may be inferred, and the amount of the verdict does not appear to exceed the bounds of wholesome example.

The authority of Hamilton vs. Feemster may be relied upon in support of this opinion, (4 Eich. 73.) That was an action on the case, and the charge was that if the evidence satisfied the jury that Feemster had taken up and caused to be committed to jail, as a runaway, the plaintiff’s negro, knowing he was not a runaway, and had done this act malevolently with a view to harass, vex and insult the plaintiff, they might give an amount of damages beyond that specially set forth in the declaration.” The damages were punitive and the charge was approved.

Motion dismissed.

Wardlaw, Whitner and Münro, JJ., concurred.

Motion dismissed.  