#### Mulholland v. Brownrigg.

From Chowan.

TV here water was thrown, by the erection of a mil], upon the highway „ end the former proprietor of the mill hud built bridges over tlie water, which, during his ownership, he repaired, and which were also repaired by the present proprietor, who did no other work on the roads, — it was held, that the present proprietor was answerable in damages to an individual who sustained injury by reason of defect in one of the bridges; and that the enquiry was properly left to the Jury, whether the mil! or the road was the more ancient.

This was an action on the case, and the declaration contained two counts. In the first, the Plaintiff complained of tl*>e Defendant for having overflowed with water the public highway, by means of which, the Plain tiff’s goods, contained in his waggon which was pass*350ing, were injured. The second count charged the i>e~ ietKh\nt with having overflowed the public highway by the erection of a dam near thereto, and keeping and mainlining a bridge so rotten and decayed, that the Plaintiff’s waggon, loaded with goods, was overturned oil said bridge, and thrown into the water, whereby the goods became wet and damaged.

On tiie tidal, the facts, as they appeared from the Plaintiff’s testimony, were, that the mill-pond of the Defendant overflowed the public road, and tiiat there were three hollow bridges over the pond; but by whom erected did not appeal-: there was, however, no evidence that any of them were erected at the public expense. The road and mill-pond had, for twenty years, been in the same situation in which they were at the time of trial; and there was no evidence which was first made, unless the fact, that the owner of the mill kept the road and bridge in repair, furnished evidence that the road was the more ancient. The Defendant, at the time of the trial, liad owned the mill five years; and it did appear that the proprietor of the mill, for the time being, and their hands, were in the habit of repairing the bridges and road over the mill-pond, and did not do any other work on the public road ; and that the Defendant had repaired the bridges since he owned the mill.

A waggon, loaded with the Plaintiff’s goods, in passing, fell through one of the bridges, which was not in sufficient repair, into the pond, and the goods were damaged by the water. The stream was not fordable, if there had been no mill-pond; but the bridge which broke, was not over the channel of the stream ; and had there been no pond, there would have been no water on that-part of the road. The Defendant offered no evidence.

‘ The Judge left it to the Jury to say, whether the road or mill was first built, as a fact, and charged, that if the mill was first built, the Defendant was not liable; but if the road was first made, and the mill had occasioned the overflow of that part of the road, under the bridge which *351broke, then the owner of ttic mill was bound to abale the nuisance, or to erect a convenience whereby theciti-xens might pass in safety, if a bridge was erected, and ivas not in sufficient repair, and the Plaintiff sustained an injury in passing it, he was entitled to damages.

There was a verdict for the Plaintiff; new trial refused; and from the judgment rendered. Defendant appealed to this Court.

Hogg, for the appellant.

There should be a new trial, because there was no evidence la the cause that the high way was anterior to the Defendant’s mill-dam: the direct proof is that the road and mill-dam, and bridge, were in the same relative situation on the day laid in the declaration, and twenty years before, it is insisted by the Plaintiff that the Jury bad power to infer that the Defendant’s dam was built after the road, because the owners of the mill repaired the bridge : a Jury have no more or larger power of inference from facts proved, than the Court have on a demurrer to evidence. Let this rule bo applied : this argument assumes that the bridge was built in consequence of the dam, and was as old as the clam. For the sake of the argument, let it bo admitted. The creek, it is found, was never fordable, there could he no road over it without a bridge, and it is found, that there is uo evidence that the public ever built the bridge. The true inference is, that the dam and bridge are older than the road. It was the gravamen of the Plaintiff’s declaration, that the Defendant’s dam threw the water on the public road : the whole of the evidence was on the part of the Plaintiff, and it is matter of law to say, whether if it be all true, with all necessary inferences, it supports the declaration : the law must be the same on a demurrer to evidence or on motion for new trial, as for the law on demurrers to evidence — se^ Fhii. Ero. 217, and cases there cited.

*3522dly. Because the Court in the charge usurped the l)rov''MCe of the Jury in passing on the facts. The Judge affirmed, that unless the Defendant did let off the water, or keep the Bridge in repair, that it was a nuisance in him. Now, that in law it is a nuisance to throw water on the public road, or if it be the duty of any one to repair a bridge, that the omission to do so is a nuisance, cannot be denied: but that it is the province of the Jury to find the truth and sufficiency of the facts, to prove the throwing of the water or the omission, is equally clear. If the presiding Judge be dissatisfied with such finding, he may award a new trial, but he can in no case, find himself. In the case before the Court, the presiding Judge did leave it to the Jury to find whether the dam or road were first made, whether the water was taken off or the bridge repaired, and relieved them from further en-quiry, by telling them that if the first fact existed, and the other two did not, that “ a nuisance existed.” This part of the charge was against the act of 1796 — (N. R. Ch. 452) — Bank of Newbern v. Pugh, (Hawks's Rep. 198, per Henderson Judge.)

But the Judge erred in the Law: ho instructed the Jury, that if the Defendant erected a bridge in the highway, it was his duty to repair it. The Judge seems to have considered, that the Defendant had a right to erect the bridge, and that if he kept it in repair, there was no nuisance : or if it was not in repair at any time, that he should be excused from liability by drawing off the water. The enquiry, therefore, of the Jury, was directed to the time at which the Plaintiff alleged an enquiry. It is settled by the highest authorities, that an individual for his own profit, may deepen any stream in which he has a property, and if the ford or highway of the public be injured, that the individual shall be excused by erecting a “ bridge” “ useful to the public,” and that the county shall repair said bridge. In every such case the enquiry is, whether the bridge be of “ public utility/' *353that Is, whether the passage be more convenient than before the bridge ivas erected, and whether the expense to the couníy be not greater than the convenience. The criterion, iberefore, of a nuisance, is whether it be of public inconvenience j for it is strange that the public should complain of a benefit. The enquiry in the case of a bridge always relates to its first erection j if it be not a nuisance in the builder, then it cannot become so : the use and repair are thrown on the public : and it surely cannot be contended that it is a nuisance to deepen or widen water under a public bridge, whether built by the public or an individual. vVhy should it be ? the soil is in the citizen, and the passage in the public. The pro ■ perty of the soil remains to the citizen, to be «sed as be ¡shall think proper, so that he does not impair* or interrupt the right of passage. The deepening* or widening water under a bridge, by the erection of a dam, cannot do this ; and in the case beforewhe Court, it is found the injury resulted from the bridge being* out. of repair.

The true enquiry touching the erect ion of a new bridge in the public highway is, does it contribute to the public convenience by making the passage of the citizens more easy ? Woes it provide against public expense by being built in a substantial manner ? if it does, the public must repair, and the individual who built, no matter what motive of private interest be might have, incurs no obligation either to the public or to individuals, who can claim only on the proof of a public inconvenience and private injury. It is absurd to suppose that the public duly to repair, can consist with the right to compel an individual to do so. If an individual build a bridge for Ms own profit, in the highway, and if it be of public utility, the county shall repair by Common Law — (2 Inst. 701, 703) — The King v. West Riding of York, (5 Burr. 2596) The Queen v. Com. of Wilts, (1 Salk. 359) — The King v. West Riding of York, (2 East, 342) — The King v. Com. of Kent, (2 Maule & Sel. 513.) In all these cases, the party erecting bad a private end, but as the bridges were *3540f public utility, the county were held liable to repair. ^ie conse(lucnce is unavoidable, that the individual who built was not liable to repairs, and had committed no nuisance.

The act of Assembly of 1784, ch. 227, JV*. R. and the stat. of Henry VIII, ch. 5, are in affirmance of the Common Law, and prescribe the mode only of repairing by the county.

To apply these authorities to the case: If the Jury had been directed to enquire whether the bridge was a nuisance in its erection : it was o.ver a stream not fordable— bad stood twenty years and longer in a very public road— the owners of the mill liad been excused from labour on the public road — all these seem to point unerringly to its public convenience. But at any rate, the Defendant, who comes in as a purchaser of the mill only, and can be charged with a continuance at most, of a nuisance, has a right to have it ascertained. At present, the verdict finds only the existence of a nuisance at the day laid in the declaration : the liability of the Defendant was affirmed by the Judge. With all humility it is submitted, the county was liable. But at least, it remains to be determined by a Jury, whether the county or the Defendant were liable, and this according to the authorities, by ascertaining whether the bridge or its first erection was a common nuisance, or a public convenience.

Gaston, contra.

If the highway be older than the mill-pond, the owner of the mill is answerable for the injury sustained by the Plaintiff. The overflowing of a highway must be admitted to be a nuisance, and the continuance of it is a new nuisance ; thus, when a nuisance was erected by a devisor, and kept up by a devisee, the latter was held to be responsible — (Cro. Car. 231 — 2 Leon. 129.) If one encroach on the highway, and his heir, on its coming to him, doth not remove the encroachment, the heir is guilty of a nuisance — (Rolle’s Jib. 137.) So of a lessee, in regard to a nuisance of lessor conti*355nued by lessee — (_Cro. .'/as. 373 — 2 Salk. 460.) A damage, su tained in consequence of an unlawful act or* omission of an individual, gives an action to him injured, against the individual in fault — (5 Rep. 73 — 4 Ibid. 18 — •

Ld. Hay. 486 — Russel v.Men of Devon, 2 Term R. 667.

IJut it is contended, that a bridge having been erected over the part of the highway overflowed, the reparation of this bridge belongs to the county, and not to the owner of the mill. For this, are cited several authorities: the true principle to be collected from them is, that though a benefit conferred by a public benefactor, shall not bind him to the perpetual keeping of it up, yet where an act is done by -an individual for Ms benefit, (even if lawful) on him is the perpetual obligation to prevent the consequences from being injurious j and an omission of the care, necessary for tliis purpose, is unlawful. Occupiers of lands adjoin. jug the highway, are bound to cleanse the ditches by which their lands are protected, and for an obstruction of the highway, occasioned by negligence to do this, are indictable — {Hawkins’ Rook i, eft. 76, §5 —Bacon, “Highway E” — S Chilty, 567.)

A proprietor of lands adjoining a highway, fences them in on both sides of the roa !, he is bound to keep the road in repair, because lie has taken away from passengers, the opportunity which they before had of taking a circuit when the road was out of repair— Gro. Car. 366 — » Hawkins’ Book 1, ch. 76, §6.

If a man break up & highway, and thereby render a bridge necessary, which he erects, the original obligation is not destroyed, the original liability is not gone; but he is always bound to repair the bridge, while the necessity for it remains — (1 liolle’s M. 368, cited and explained in 2 Mast, 350- — Vide 1,3 East, 220 — -14 Mast, 317.

Hogg, in reply.

The case cited from Rolle, will be found at length in 2 Maids & Selwtjn, 513, and was a case where Defendants (private individuals) were liable by prescription, on a grant of lauda from tire Queen, on *356condition to repair a bridge. The cases from 13 East, and 14 East, SI7, turn on the construction of private acts of Parliament, granting tolls on improvingna-vjgaj.jon 0f rivers by incorporated companies : tiicy are authorized to deepen fords on leaving bridges : this word leaving was construed in 13 East, to be a continuing condition : they had a right to take tolls, and to discontinue the bridges, so that they could not become those of the public : botii cases recognize the Common Law liability of the county, to repair a bridge of “ public utility” erected by an individual | and they are both express authorities to shew that where an individual is liable, the county is not. It would seem to be incontrovertible, that where the county is, the individual (who built) is not.

Hawkins, Book 1, ch. 76, §5 and 6 — The authorities cited in these sections seem to be doubted by Hawkins. The analogy between them and the case at bar, is by no means very strict, especially in sec 5, which was an indictment for not scouring a ditch of Defendant, whereby the water was kept on the highway — It does not appear but that the water was brought to the highway by the ditch — To sec. 6, Hawkins, in the margin, puts a quere — • If the principle found in these sections of Hawkins, cannot be reconciled with the decisions in King’s Bench,cited for the Defendant, they must be considered as invalidated.

Hall, Judge.

The objection, in this case, to the Charge of the Court, is, that it ought to have been left to the Jury to consider, whether the water and the bridge over it, through which the waggon fell, amounted to a nuisance originally, when the bridge was first erected, and ought not to have been assumed as a fact. Because, if it were not originally a nuisance, it was not one at the time the accident happened for which this action is brought. If this conclusion is correct, I admit the Judge erred in his charge : but it cannot be admitted. It is true, if a bridge is thrown over a mad, where it stands *357¿11 need of it, by an individual, and the road is thereby rendered more convenient for the citizens at large, when that bridge falls into decay, that individual is not answerable for a nuisance ; but that is not a parallel case. in that case, the bridge was not erected for the purpose ©f covering a nuisance of the party’s own creating — in that case, the public are not in a worse situation when the, bridge rots down than they were before. In the present case, the bridge was built to cover and render innocent, the water thrown over the road by the Defendant’s mill-dam. When the bridge falls into decay, it is not as if there was no water under it. Although innocent at first, it afterwards became a nuisance. If no bridge had been erected over it, it would always have been a nuisance. It cannot be a less one when a useless bridge is over it. These remarks are made upon the ground that the bridge was erected ami the mill-dam built since that road was laid off as a public highway. This fact was submitted to the Jury, and they have passed upon it. I therefore think it a matter of no consequence whether the bridge, when originally erected, was a nuisance or not. I think it was one at the time w hen this cause of action happened, and that the rule for a new trial should -he discharged.

Henderson, Judge.

For the Defendant it is contended, tiiat if this bridge was a convenient one, that although an individual might ha\e created the necessity for its erection, and in fact erected the present one to obviate the inconvenience created by his act, that the county was bound to keep it in repair, and the individual exempt from liability for private injuries sustained thereby, and I presume also from public prosecution. By the iaw of England, the county is bound of common right to build bridges where necessary, and to repair such as have been built, unless they throw the burthen on another by law, as by tenure or prescription, or by act of *358Parliament, as in cases of some of the turnpike roads'. Allowing that the English authorities establish these pc sitions completely, I do not think that it would follow. ovcn j5ngjan(jy i hiit the individual would not be liable for a private injury such as this ; but if he were not, and if all the consequences of the original wrong were taken from him and thrown upon the county, because the bridge, had been used by the public, I think the case is far different in this country, and that, from the different policy as established by the Legislative authorities of the different countries. By the law of England, if a bridge is necessary, it must be built and kept in repair by some one, by the county, if they cannot shew that some one else is bound, and that by law, as by tenure or prescription, or an act of Parliament; and, therefore, it is no defence for the county to shew, that an individual, a mere wrongdoer, is bound, for peradventure be may not be able; for when by tenure the lands are bound, and prescription is a long acquiescence presupposing an agreement, and the act of Parliament is the law of th© land. In these three cases the county is excused, for they have substituted a responsible person in their stead ; and this is the reason that they have failed in all those cases where they attempted to excuse themselves by shewing that some other person at first erected the bridge; for the bridge must be kept in repair : and should an individual, even for bis own convenience, erect one, and the public use it, this usage is an evidence of its convenience, and therefore the County Court should repair j for the law imposes on the county the erection and repair of bridges in all cases where, necessary, and will allow of no excuse but those before mentioned. This suits the policy of a thickly settled and rich country : want of ability, as it is false in fad, will not be attended to. But our situation is far different; and wretched would be the situation of some countries, particularly new and poor ones, if such was the case.; and the Legislature *359here, lias therefore vested ia the County Court power of laying oft' roads, settling ferries, building and repairing bridges ; and if the law stopped here, perhaps it might be said, that the parties were liable to an indictment if they permitted bridges to be out of repair, or refused to order them to be built where necessary. But the Legis ■ 1 ature did not stop here ; they placed at their disposal, for these purposes, only limited funds, and if they go to the extent of the funds, they certainly are not liable. This is by no means giving up their interest, or, if you will, discretionary powers, which, if they do not inten ■ tionally abuse, Í think they are not liable. I therefore think, that the whole of the argument falls to the ground, and that the Jury were properly instructed in the Court below, and that the Judge below committed no error in not informing the Jury, that if the bridge was used by the public, the Defendant was thereby exonerated. Rule; for a new trial discharged.

Taixor, Chief-Justice, concurred.