
    
      The State vs. Levi Hickson.
    
    An indictment cannot be sustained, under tbe Act of 1825, for obstructing a stream by erecting a mill-dam across it, unless the stream was used, at tlie time and 'place of obstruction, for the purposes of navigation by boats, flats or rafts of lumber or timber.
    
      Before Evans, J. at Barnwell, Spring Term, 1852.
    The report of his Honor, the presiding Judge, is as follows :
    “ The defendant was indicted for a nuisance in obstructing Shaw’s creek. About 1830, the defendant built a mill dam across the creek. His mill, at that time, was the upper one, on any part of the creek, which at that time could be made navigable, or has since been made so. Shaw’s creek is a large stream, with water enough and sufficient depth and width to float rafts of timber, and perhaps rafts of lumber of small size. No attempts had been made either by the public or by private enterprise to open it. No rafts had ever been floated down it above Hickson’s mill, nor was it practicable without the removal of an immense number of logs and large quantities of brush-wood. Below Hickson’s mill was Prothro’s, through whose dams, Hickson, after clearing out the creek above to his own mill, carried his lumber by means of a. slope which he kept up in Prothro’s dam. It was not until within the last seven or eight years that any mills were built on that part of the creek susceptible of being made navigable. Those who built above cleared out the creek and made it navigable. For the owner of the first mill built above Hickson, made a canal with a slope, for which he was paid 2U0 dollars. There are two other mills, the owners of which -pay, by written contract, twenty-five dollars per annum for each saw. These do not complain; but one Piunket, who lives on the creek above Hickson, claimed the right of passing his rafts of ranging timber through the slope without pay. This was refused, and this indictment grew out of the refusal. The indictment was under the Act of 1825, which enacts that no person shall erect any mill dam or other obstruction across any stream used for navigation by boats, flats or rafts of lumber or timber, without sufficient slopes or waste ways.
    
      “ Shaw’s creek is one of the branches of the Edisto. There is a branch of Shaw’s creek called Cedar creek, which empties into it two miles from its mouth. Many years before there was any mill on Shaw’s creek, one Gideon Evans erected a mill on Cedar creek; he cleared out this creek to its entrance into Shaw’s creek, and cleared out that creek to the Edisto. About a year before Hickson’s mill was erected, one Evan Prothro built a mill on Shaw’s creek. The creek was made navigable by him and Hickson, down to the mouth of Cedar creek, and from thence to the Edisto; the stream had previously been worked on by Evans. So that, from Prothro down, the stream was used for navigation before or about the time that Hickson’s mill was built. Above there was no pretence, it was used for boats, flats or rafts of lumber or timber. Two men had bound together some logs, to get into the creek after a deer, and afterwards to search for a place to put a fish trap, but the stream was so obstructed by logs, that they had to take the raft apart and drag them over the logs. A similar attempt, with the same difficulty, had been made by others, with a canoe made by nailing plank together.
    “ My construction of the Act of 1825, was, that streams merely susceptible of being made navigable, but which had never been made so, were not within the Act.
    “ It was also contended for the defendant, that he had erected his dam more than 20 years before this indictment was commenced, which was in March, 1851. The evidence on that point was, that the land was purchased in 1828, the mill was begun in 1829, and that it began to saw in July or August, 1830. Two or three others said it had been built more than 20 years; and one only, and he very doubtingly, said, it was built in 1831-’32. I thought myself there was no doubt that the mill dam had been erected more than 20 years. The jury were instructed:
    
      “ 1. That the Act' did not apply to the obstruction erected by the defendant, unless Shaw’s creek, at the time and at the place of obstruction, was used for navigation by boats, flats and rafts.
    
      “ 2. That presumptions of right from length of time and ae quiescence run against the State as well as against individuals, and if the obstruction had continued undisturbed for 20 years, the defendant had as good a right to continue it, without the free wasteway or slope, as if he could trace up his right to a grant. My own judgment, on both points, was with the defendant, but the jury found him guilty.”
    The defendant appealed, and now moved for a new trial, on the grounds:
    1. Because Shaw’s creek was not a stream used for rafting at the time the defendant erected his mill-dam across it, so as to fall within the provisions of the Act of 1825, under which he was indicted.
    2. Because the defendant’s mill dam, having been in existence and the creek obstructed thereby, for more than 20 years before this proceeding was instituted, (which was clearly proved,) he had a prescriptive right to continue such obstruction.
    
      Owens, Carroll, for the motion,
    cited, on the first ground, 2 Sp. 581; 6 Stat. 268 ; 7 lb. 519, 532; 1 McC. 580; 4 Rich. 68 : and on the second ground, 6 East, 214; 4 Esp. R. Ill; Angel on Water Courses, 77; 2 Bay, 282 ; Best on Presump. 108.
    
      Bonham, solicitor, and Aldrich, contra,
    cited Hale de Jure Mar. ch. 3, p, 9; 2 Fairfield, 278 ; Ang. on Water Courses, § 537; 10 Johns. R. 236; 13 Wend. 355; 2 Bin. R. 475 ; 2 Ala. R. 436; 3 Stat. 269, Act 1726 ; 7 Stat. 519, Act 1777, § 1; 7 Stat. 538, Act 1785, § 2; 5 Stat. 354, Act 1799, § 1, 2; 5 Stat. 726, Act 1814, § 3; 6 Stat. 91, Act 1818 ; 6 Stat. 219, Act 1823, § 21; 6 Stat. 234, Act 1823, § 19; 6 Stat. 268, Act 1825 : On the second ground, they cited 2 B. & Ad. 667; 10 Mass. R. 70; 1 Conn. 384; Angel on Water Courses, § 254; 4 Mass. R. 522; Jac. L. D. Tit. Prescription; 2 Thom. Coke, ch. 21, p. 202, note f; 4 Mod. 125; 2 B. & C. 910; 5 B. & Ad. 1; 2 Hilliard on R. Prop. 107) 111, 119.
   The opinion of the Court was delivered by

Evans, J.

I suppose there can be no doubt that the public has no right to the soil over which the small creeks and streams flow, and that, whatever may be decided in relation to the large fresh water streams, which by nature are navigable, it is undeniable that Hickson owned the land over which the waters of Shaw’s creek flowed. But Judge Nott has said, I think correctly, that there is nothing in such riparian ownership which prevents the Legislature from declaring it a public highway whenever the obstructions are removed and it becomes fit for use. It was therefore very competent for the Legislature, by the Act of 1825, (6 Stat. 268), to require of all those, who constructed mill dams across any stream used for the purposes of navigation, to make and keep sufficient locks, slopes, or canals, for the use of those Above ; and i can see no reason why the same might not be required, where the stream above has been made navigable after the erection of dams below. It is a police regulation, and, as far as I can see, unobjectionable. It is the taking of private property for public use. In Cates vs. Wadlington, (1 McC. 580,) it is said, the public may use the water for navigation, but this does not prevent the owner of the soil from the use, as far as it is consistent with the public right. But in streams that are merely capable of being made navigable by the expenditure of money or labor, there must be some appropriation by the public before the private right of the owner of thé soil can be interfered with. There are Acts in relation to the navigation of particular streams, but the first, and I believe the only general Act on the subject, is that of 1823, § 21, (6 Stat. 219), which declares it unlawful to erect any dams across any river that the Legislature has ordered to be made navigable, or for the improving of which the Legislature has made any appropriation, so as to obstruct the passage of boats therein. As early as 1777, (7 Stat. 519), and perhaps before, we find legislation as to the navigation of the Edisto and its north and south forks or branches, but there is none in relation to Shaw’s creek, or any of the other tributaries of that stream, nor was any money ever appropriated or used for making any of them navigable. The only law which has any application to them is the Act of 1825. That is in these words, “ 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, slopes or canals, to admit the free navigation of such streams,” &c. This Act came under review in the case of the State vs. Cullum, (2 Sp. 581). There, a mill owner above had cleared out McTier’s creek, and used it to carry down his lumber to the river. The defendant built a mill below, and refused to let the mill owner above pass without paying for the privilege. He contended he was not within the Act, because McTier’s creek was not used for navigation at the passage of the Act of 1825. But it was decided the word used had relation to the time of obstruction. The Court say, at the time of the passage of the Act, the Edisto creeks could not be regarded as navigable, and the Act was intended to prevent their obstruction when they became navigable; then they were highways, and the Act prohibited their obstruction except by leaving slopes, &c. I have no doubt this is the correct construction of the Act, and it seems to me it admits of no other. At the time Hickson built his mill, it is very clear that Shaw’s creek was not a stream used for navigation by boats, flats or rafts of lumber or timber. It had never been used and was incapable of use for these purposes. If in 1830, when he erected his mill without slopes, he had been indicted, could he have been convicted ? I presume not, because the stream was not then used for navigation. It has become so since, but that has been done by private enterprise, and neither Hickson or the Legislature have dedicated it to the public use. If he committed no violation of the law when he erected his dam, I do not see how his continuance of it can be unlawful, as the law now stands in relation to the case. It has been argued, that Shaw’s creek must be regarded as a stream used for navigation and within the Act of 1825, because one Gideon Evans had cleared it out near the mottth before Hickson’s mill was erected. This cannot be the fair constiuction of the Act. The requirement of slopes and canals in the dam, shews that the word used ” applied to that which was above, and not to what was below, and is equivalent to the expression, used at the time and place of erection. Why require slopes to be furnished for those who were below 1 I think, therefore, in any view of the case which has been presented, the verdict was wrong and should be set aside.

On the 2d ground, it is not intended to express any opinion. Questions of presumption are becoming very common. A great deal has been said and written very loosely on the subject, and so much without due consideration, that we are not prepared at this time to express any decided opinion about it.

The motion for a new trial is granted.

O’Neall, FROst, Withers and Whitktee, JJ. concurred.

Motion granted.  