
    
      The State vs. William Knotts.
    
    1. At common law the owner of the soil is hound to repair any injury or loss the public may sustain in the use of a highway, by any improvement or structure he may make on his land. A mill dam forms no exception to this principle, the owner of which is liable for any injury to a public way by the accumulation of water, whether the excess is vented by a waste-way, or through its insufficiency, by a breach in the dam. In both cases the damage is caused by the dam’s obstructing the natural flow of the water, and thereby giving it a mischievous force.
    
      2. Where the proprietor of a mill dam, during a freshet, for the purpose of saving his dam cut it, and thus the water was thrown into the public road near the dam, the road being thereby injured, he was held guilty of a nuisance on an indictment at common law; and held also, that he was not excused by the allegation that if the dam had not been cut, it would have been broken in another place, and the road injured to as great or a greater degree.
    3. The defendent was bound to provide a sufficient waste-way, by which the'excess of water might have been discharged gradually and without damage.
    
      Before Evans, J. Orangeburg, Fall Term, 1843.
    
      Report of the Presiding Judge.
    
    The defendant was indicted for a nuisance, The facts were these: The defendant owns a mill on Bull swamp; the public road passes along the dam from the east bank to the wasteway, it then descends from the dam and passes below the dam, but near to it, to the western extremity of the swamp. At the great freshet in March, 1841, the water rose so high that the defendant, in order to save his dam, cut it near the western extremity, and thus threw the water into the road below. The effect of which was, that the road was washed into deep gullies and rendered impassable without repairs. As soon as the water subsided and the danger was over, the defendant repaired a small part oí the road by making a causeway with slabs, and avoided the deep washes by making a new way along the adjoining land. He and the Commissioners had some disagreement about it and a bridge over the mill race, and this indictment was instituted. The nuisance complained of was the injury done to the public road by the water thrown into it by cutting the dam. The flood was probably so great, that if Knotts had not cut his dam it would have been broken by the force of the water, and the lower and most likely place for it to break was on the east of the waste-way, where the road is on the dam,
    I charged the jury that if the dam had broken and the road had thereby been injured, the defendant was not liable,
    2. If by the act, and for his benefit, to save his dam, the road was injured by turning the water into it, the defendant was guilty.
    
      It did not seem to me that the fact, that if he had not cut the dam where he did, it would have been broken in another place, and the public road injured to as great or greater extent, was any excuse, but of this I am not very confident.
    The defendant moved for a new trial, on the grounds:
    1. That the nuisance alleged in the indictment, and proved, was caused by a flood, and was inevitable.
    
      2. Because his Honor charged the jury that the act of the defendant in cutting his mill dam, and the consequent injury to the road, rendered him liable; which liability he would not have incurred if the mill dam had been broken by the force of the water.
    
      T. W. Glover, for the motion,
    cited 9 Stat. at Large, 563, sec. 20.
    Edwards, Solicitor, contra.
   Curia, per

Frost, J.

The defendant was the owner of a mill dam, at the eastern end of which is situated the mill. A public road passes over and along a part of the dam; and, descending, is continued along and near it to the rising ground on the west. The dam being endangered by a great flood in the spring of 1841, the defendant, to prevent a breach, cut it towards the west end. The rush of water washed the road into deep gullies and rendered it impassable. For this nuisance to the road, the defendant was indicted at common law, and not under the Act of 1825. The presiding Judge instructed the jury that if the dam had been broken, the defendant would not have been liable, but since the injury was the consequence of his act, in cutting the dam, the defendant was liable. The defendant, assuming that if the dam had been broken by the flood, and the public road injured, he would not have been liable, applies for a new trial, on the ground, that the breach was inevitable, and he was, therefore, not liable for anticipating a breach by cutting the dam. The facts of the case do not require an opinion respecting the liability of the defendant, if a breach had been made in that part of the bank over which the road passes. The general liability of the owner of a mill dam along and near which a public road passes, for any injury to the road by the cutting or breaking of the dam, will be decided, and illustrated in its application to this case, by supposing a breach in the dam, at the place where the defendant cut it. The road was there a short distance from the dam.

The common law, while it protects the rights of the owners of the adjacent lands to the soil and water of a river, renders that right subordinate to the public convenience. 3 Kent Com. 411. In the application of this principle, an owner of the soil and adjacent land of a navigable stream is liable for an injury to the navigation caused by a structure he may erect. Nor would his liability be discharged by shewing that during the continuance of the usual depth of water in the stream, which greatly fluctuated, no inconvenience was experienced. The public has a right to the unimpaired use of the river in all stages of water. So, if by such structure a bar was formed in the stream, it would be no justification of the nuisance that it was not formed by the ordinary current of the river, but had been caused by freshets, particularly if the stream were liable to freshets. In like manner and to as great extent, the rights of the owner of the soil are subject to those of the public in the enjoyment and use of roads. “Thus if a road is so foundrous and out of repair as to become impassable or dangerous or incommodious, the public have a right to go on the adjacent ground; and it makes no difference whether such ground be sown with wheat or not.” Russ, on Cri. vol. 1, 309; and “if the owner of lands not enclosed, adjoining to a highway, encloses his lands on both sides, he is bound to make a perfect, good way, as long as the enclosure lasts ; and is not excused by shewing that he has made the way as good as it was at the time of the enclosure, because, if it was then defective, the public might have gone on the adjacent land.” Russ. 326; Rex vs. Stoughton, 2 Saund. 159, note; Steel vs. Prickett and others, 2 Stark. 469, These authorities are merely cited to illustrate the extent of the subjection of private right to public convenience, and shew that the owner of the soil is bound to repair any injury or loss the public may sustain in the use of a highway, by any improvement or structure he may make on his land. A mill dam should form no exception to this principle. It is built to obstruct the natural flow of the water and accumulate it for the use of the owner, and is subject to frequent overflow and breach unless the excess of water be vented. The owner must be liable for any injury to a public way by such collection of water, whether the excess is vented by a waste-way, or, through its insufficiency, by a breach in the dam. In both cases the damage is caused by the dam’s obstructing the natural flow of the water and thereby giving it a mischievous force. But the verdict may well be supported by the instruction of the presiding Judge, that if the road was injured by the act of the defendant, for his own benefit, to prevent a breach, he was liable ; and that he was not excused by the allegation that if the dam had not been cut, it would have broken in another place, and the road injured to as great or a greater degree. The act of the defendant was the immediate cause of the injury to the road, and completed the offence; and he cannot exculpate himself by speculations or conjecture as to what might have happened if he had omitted the act charged against him. Besides, the defendant was bound to provide a sufficiént waste-way by which the excess of water might have been discharged gradually and without damage. By such means the breach would have been prevented. To permit him to excuse himself by the probability of a breach, is, therefore, to give him a benefit from his neglect.

The motion is refused.

Richardson, O’Neall, Evans, Butler, and Wardlaw, JJ. concurred.  