
    Criswell against Clugh.
    • The erection of a mill-dam across a navigable stream of water, by the owner of the land through which it passes, is not a public nuisance to which the common law remedy of abatement may be applied. If it be wrong, the appropriate redress must be sought for by means of the provisions of the act of the 23d of March 1803.
    WRIT of error.
    This was an action of trespass by John Clugh against Robert Criswell and others, for tearing down his mill-dam in Toby’s creek. The defendants justified themselves on the ground that the stream was a public highway, and the dam was illegal. The only question which arose in the cause was, that conceding the dam to be illegal and therefore a nuisance, had the defendants a right to abate it 1 The court below (Shippen, president) was of opinion, and so instructed the jury, that the act of the 23d of March 1803 afforded the only remedy by which the wrong occasioned by the erection of the dam could be redressed ; and that the defendants were trespassers in tearing it down. This opinion was the subject of the assignment of error.
    
      Thompson, for plaintiff in error.
    
      Pearson, for defendant in error.
   The opinion of the Court was delivered by

Sergeant, J.

The act of the 23d of March 1803, confers the privilege of erecting dams, for mills and other water works, on persons owning lands adjoining navigable streams of water, and, at the same time, provides a remedy in case the navigation is thereby obstructed, or the passage of fish impeded. Commissioners are to be appointed to view the dam, and compare it with the provisions of the act, and to make report; and the court may thereupon direct a bill of indictment to be sent, and, on conviction, fine the offender, and compel the payment of damages. They may, also, direct the supervisor of the highway to remove the obstruction in such manner as to bring it within the limitations and provisions of the act. By section three, a proceeding before a justice, or the court, is prescribed for the recovery of damages by persons obstructed, damaged or delayed.

There are convincing reasons why the remedy pointed out by the act should be pursued, and not the common law remedy of abatement as a public nuisance.

The erection of the dam is not in itself a nuisance; the act permits it, and grants the use of the water, provided there is no interference with the navigation and the passage of fish. It is, therefore, by an excess beyond the limit prescribed, that the law is violated, and the appropriate redress for such mischief is not utterly to demolish and destroy the dam, but to remove that excess, and adapt the erection to the design of the law. This the act provides for by requiring the previous inspection of three commissioners; and by directing, in case of conviction, that the supervisors of the highway, public officers, acting with impartiality and upon their oaths of office, shall remove the grievance, by making the dam conform to the object of the act, at the cost of the owner. The common law remedy of abatement for a public nuisance does not, therefore, apply to the case of a dam erected under the authority given by this act; but the course of proceeding pointed out by the act must be pursued. The directions of the act of the 31st of March 1806 lead to the same conclusion; for it directs, that in all cases where a remedy is provided or duty enjoined, or any thing directed to be done by any act of assembly, the directions of the act shall be strictly pursued; and no penalty inflicted, or any thing done agreeably to the provisions of the common law in such cases, further than shall be necessary to carrying such act into effect. In the act of 1803 there is a remedy provided, and an ample one, both for the public and individuals; and the common law remedy of abatement is not necessary to aid the execution of the act, but on the contrary directly defeats the object and design of it. In Brown v. The Commonwealth, 3 Serg. & Rawle 273, this act received a similar construction. It was held, that an indictment at common law would not lie for erecting a dam on a navigable stream, to the obstruction of the navigation.

Judgment affirmed.  