
    
      The State v. William H. Thompson.
    
    Where a river, up to a certain point, had been actually and frequently used by the public as a navigable river, and was, by virtue of an Act of the Legislature, under the charge of public functionaries, and worked upon by the labor of the public, these circumstances rendered the river, as like circumstances would have rendered a road — a public highway, for the obstruction of which, an indictment lies at common law.
    Where the Statute contains a general prohibitory clause, even if a specific remedy had been given by a subsequent clause, and no mention had been made of indictment, it may well be maintained that an indictment would lie for the misdemeanor contained in a violation of the prohibition. — Bex v, Haines, 4 ‘Term Bep. 405.
    A count for'a misdemeanor at common law, and one for a misdemeanor contra formam statuti, may be joined in the same indictment. — 1 Chit. C. Law, 251.
    Where the criminal act of the defendant was, at common law, a misdemeanor punishable by fine’ and imprisonment, at the discretion of the Court, but, by Statute, it had been subjected to a fine of five hundred dollars, and there was, in the indictment, both a count at common law and one under the Statute, the Court held, that the Statute had enacted a mitigation of the common law punishment — and even if the indictment had been at common law only, that 1 -the provisions of the Statute could not be exceeded by their discretion; therefore, after a general verdict of guilty, they adjudged according to the Statute.
    
      Before Withers, J. at Union, Fall Term, 1847.
    This was an indictment for a nuisance, which consisted in erecting a mill-dam quite across Packolet river, at a point near Swift shoals, and between Grindell’s (or Grindon’s) shoals and the mouth of the river.
    The fact was not at all questionable that the dam had been erected by the defendant, and that it operated as an entire obstruction of the navigation of the stream above its position. Within a fortnight before the trial the dam had been partially taken down, but so much yet remained (mud-sills, &c.) as still to obstruct navigation.
    The indictment contained two counts: one for the oifence as at common law, and another contra statutem.
    
    The Legislative history of this stream, so far as the same was made known to the Court, and appertained to the question m this case, was as follows:
    In 1788 (7 Stat. 558,) a charter was granted to certain persons, to be known as “The Company for opening the navigation of Broad and Packolet rivers,” the first from Friday’s ferry, on the Congaree, the last from Grindon’s shoals; by locks, canals, or by any other means, with power to take tolls, &.C., and with stringent provisions for the punishment of those who should injure the work.
    In 1801 (7 Stat. 576,) the charter was repealed, it being then recited that the same had been relinquished to the State by a majority of the Company. It was directed that six commissioners, three to be appointed by the Governor and three by such of the Company as retained their shares, should choose a seventh, and that board were to enquire and report to the Legislature whether the resumption of the charter would be injurious to the stockholders retaining their shares, and how much would indemnify them. In another section (the 3d,) certain commissioners were nominated to “ superintend and contract for the opening of the aforesaid rivers and were authorized to draw upon the public treasury for a :sum not exceeding $10,000, “ towards defraying the expense that may arise in making the said Broad and Packolet rivers navigable.”
    In 1813 (9 Stat. 467, sec. 28,) the several boards of commissioners for opening the navigation of Broad and Packolet rivers, were to call out hands liable to work on roads within •one mile of said rivers, to work thereon, not exceeding six days in the year, under the same sanctions as enforced their duty on the highways. And by an Act in 1814, (5 Stat. 726,) such hands were exempt from duty on the high roads; and the commissioners were empowered to remove fish-dams or traps, impeding or in any manner obstructing the navigation of Broad and Packolet rivers.
    In 1823, (6 Stat. 234,) $4,000 were appropriated for Broad and Packolet rivers.
    In the same year (6 Stat. 219, sec. 21,) it Avas enacted ■“ That it shall not be lawful for any person to keep up or erect any dam across any river Avhich the Legislature has •ordered to be made navigable, or for improving which the Legislature has made any appropriation, so as to obstruct the passage of boats thereon; and in case any dam now erected or hereafter to be erected, shall not be immediately taken down and opened when required by the superintendent of public works, the same shall thenceforth be regarded and taken to be a public nuisance, and shall and may be abated as such. And the person erecting or keeping up the same, shall, on conviction thereof, be fined at the discretion of the Court, in a sum not exceeding $500, for the use of the navigation of the river, where the said nuisance exists.” In reference to this Legislative provision, the second count in the indictment was framed.
    The question .that arose upon it, was, whether the action of the superintendent of public works was not a condition precedent to an indictment and conviction.
    The Circuit Judge says — ■
    Although I did not regard the question as free from doubt, I held the safer opinion to be, and so instructed the jury, that the action of the superintendent was not an essential prerequisite to indictment and conviction; but it might have been intended that the action of that officer should protect a private person in abating a public nuisance — -such action being sufficient evidence in that behalf. In the first clause of the section, the defendant’s conduct was declared to be unlawful, and I thought it best to consider this basis sufficient for the prosecution. If the Legislature should abolish the office of superintendent, the construction contended for in behalf of the defendant would render the whole clause utterly nugatory. And I supposed it wiser and safer, in view of a considerable public interest, to resolve a doubt in this case in favor of the prosecution ; else, if we mistook the true view, and a verdict should be thereupon rendered for defendant, I feared the State would be remedyless, as it was probable he could plead it in bar to another prosecution for the same nuisance, and I did not see how the State could appeal from the finding.
    It will, of course, be understood that the superintendent . never made any requisition in regard to the dam in question; at any rate, we had no evidence of it.
    In respect to the count at common, law, I confess I had not any clear conception of the manner in which the jury ought to be charged. The idea of the Solicitor was, that no matter how Packolet became navigable, if it were in fact so, it was indictable to obstruct it, as at common law. But it occurred to me that, although this might be true, in a case where the Legislature had simply declared that a particular stream should be held and taken to be a public, navigable 'river, yet that there was no such broad declaration in regard to Packo-let. Regarding the count at common law as one parallel to such a count framed in England, touching an obstruction in the Thames, (for example,) within the limits of tide-water, according to English law, I supposed this count should be taken and considered as independent of any statutory provision; and, therefore, 1 advised the jury to enquire whether Packolet river was a public, navigable stream. If so, the defendant might be convicted on that count. Then the enquiry was, what tests should be applied to the determination of that question? I suggested such as occurred to me at the time. The best was, had it in fact been navigated by .the public whenever they had occasion so to do, and as soon ? — for I did not think that the navigation of a stream running back to a period indefinitely remote, would be requisite in this country to give it the character of a public, navigable stream, for our history commenced far within such a period, and there must be streams that would have such character even when the first boat was launched upon them, else there would have been a period in the range of our history when the Mississippi or the Hudson would have been excluded from that position. Was Packolet as much a navigable stream as Broad river, and was this last a public, navigable river ? — which 1 took to be the case. How long had Packolet been navigated? One witness said he had been living on the river for thirty-one years: it had been navigated above the point where the obstruction was, ever since he could remember. He navigated it every year, up to Grindon’s shoals, from 1835 to 1845. That he carried from two to three hundred bales of cotton. Another witness said that boating had been carried on ever since his recollection, as high up as Grindon’s; which was considered the head of navigation on Packolet. Joseph Hughes had carried, in the season of 1824-5, from two to three hundred bales of cotton from Grindon’s shoals. Major Sims had known from three to four hundred bales carried from said shoals; and for twenty years they had been regarded as the head of navigation.
    I also expressed the opinion, that the appropriation of money by the. Legislature, to facilitate navigation, ought not to extinguish the common law character of a river as a public highway for navigation; else we might not have, perhaps, a single such river in the State. I could conceive that Broad river might have been such a stream, even in the hunter age, provided it was capable for and was navigated by the canoes of that day. And if the advancement of the age induced the Legislature to apply means that should render it capable of sustaining steam-boats or pole-boats, it did not appear that the stream would lose its primary dignity on that account.
    Since the trial, I observed the following doctrine was propounded in the case of Ex’rs. of Cates v. Wadlington, 1 McCord, 580, to wit: That the English rule as to a navigable stream being confined to. the ebbing and flowing of the tide, is not applicable to this country, and though we have no Act defining what is a navigable river, or whether any of our rivers are so, yet that cannot be so considered, the natural obstructions in which prevent the passage of boats of any description.
    Supposing the reverse of the proposition to be true, it did not appear on the trial whether the natural obstructions in Broad and Packolet rivers were such originally as to prevent the passage of boats of any description.
    
    As to the Statute of Limitations, I saw no application of it. The continuance of the nuisance, existing, as it did, at the time of the warrant, was an indictable offence as much as the creation of it.
    I. had no doubt the counts might be joined, and so I think the counsel will conclude, if he will examine 1st Chitty’s Criminal Law on that subject.
    The verdict was a general one of guilty: the punishment at common law would be fine and imprisonment; that under the statute is fine only, and not beyond a maximum. Though I have not been called upon to decide the motion in arrest of judgment, based upon this circumstance, I invite attention to the questions: 1st, • Has not the statutory-provision superseded the common law punishment, whenever a party is convicted of a nuisance to Packolet river? £d, May not the State determine on which count the judgment will be demanded ? , As to this, vide Chitty’s Grim. Law, vol. 1, p. 255, citing 4 East, 179.
    The defendant appealed, and moved to arrest the judgment, and for a new trial, on the following grounds, viz.
    
      In Arrest of Judgment.
    
    1st. Because the two counts in the indictment cannot be blended.
    2d. Because there is a general verdict of guilty, and the Court cannot sentence the defendant under both counts of the indictment — the one at common law, and the other under the statute.
    
      For a new,fried.
    
    1st. Because, from the c'ase made by the evidence, the defendant is not guilty, either under the common law count, or the count upon the statute, under which he is indicted; and the Court erred in charging the jury that they might convict him under either count.
    2d. Because the verdict is contrary to law and evidence, and the prosecution was barred by-the Act of Limitations.
    Herndon, for the motion.
    Dawkins, Solicitor, contra.
    
   Wardlaw, J.

delivered the opinion of the Court.

It appears that, above the dam erected by the defendant, Packolet river had .heretofore been actually and frequently used by the public as a navigable river, and that it was, by virtue of an Act of the Legislature, under the charge of public functionaries, and worked upon by the labor of the public. These circumstances, independent of appropriations made by the Legislature, rendered the river, as like circumstances would have rendered a road — a public highway, for the obstruction of which an indictment at common law lies. The first count of the indictment was then good.

The second count, too,, seems free from objection. The Act of 1823, under which it is framed, provides a remedy, under the action of the Superintendent, to effect a speedy abatement of a nuisance, from the continuance of which the public might suffer much; and no doubt was intended, among other purposes, to guard against the disputes and breaches of the peace, which might arise from private individuals exercising, in doubtful cases, the high power of abating what they deemed a nuisance, without the judgment of a responsible officer. But no punishment to the wrong doer might result from this remedy. That was to follow his being convicted “of erecting or keeping up the dam” — an offence in which the action of the Superintendent is no essential ingredient; more especially, if the erection of the dam has followed the order or appropriation mad.e by the Legislature. The statute contains a general prohibitory clause, and even if a specific remedy had been given by a subsequent clause, and no mention, been made of indietment, it might well have been maintained that an indictment would lie for the misdemeanor contained in a violation of the prohibition.—Rex v. Haines, 4 Term Rep. 405. Without doubt, a count for a misdemeanor at common law and one for misdemeanors contra for mam statuti, may be joined in the same indictment. — See 1 Chit. Cr. Law, 251. But after a general verdict of guilty, if the punishment be diverse of the two misdemeanors, which judgment shall follow ? Although the eounts here allege the of-fences as separate and distinct transactions, yet the Court knows that the allegations are only various statements of the same transaction; and the general verdict has established that all the circumstances exist which are embraced in either statement. The criminal act of the defendant, accompanied then by all the circumstances which have been found, was at common law a misdemeanor, punishable by fine and imprisonment, at the discretion .of the Court; by statute it has been subjected to the penalty of a fine “ not exceeding $500, for the use of the river where the nuisance exists.” The statute has enacted a- mitigation of the common law punishment, and even if the indictment were at common law only, the provisions of the statute cannot be exceeded by the discretion of the Court. The judgment must be according to the statute. The motion is dismissed.

Richardson, J. ON e all, J. Evans, J. Frost, J. and Withers, J. concurred.

Motion dismissed.  