State v. Rankin

• Decision Date: 07 August 1872
• Citation: 3 S.C. 438
• Parties: STATE v. RANKIN.
• Court: South Carolina Supreme Court

3 S.C. 438

STATE v. RANKIN.

Supreme Court of South Carolina.

August 7, 1872

The Supreme Court cannot hear a motion in arrest of judgment, as an original motion. It must be made, in the first instance in the Circuit Court.

To cause a whole neighborhood to become sickly, by erecting a dam across a stream, thus causing the water to stagnate and corrupt the air, is a public nuisance, for which an indictment lies.

So also, it is a public nuisance, and indictable, if the pond without causing sickness, produces smells and stenches, which render the enjoyment of life and property in the community uncomfortable.

If a mill pond, which has existed for seventy years, becomes a public nuisance by corrupting the air, causing disagreeable smells and sickness, the owner may be indicted.

One is not guilty of a public nuisance unless the injurious consequences complained of are the natural, direct and proximate cause of his own acts. If such consequences are caused by the acts of others so operating on his acts as to produce the injurious consequences, then he is not liable.

BEFORE ORR, J., AT ANDERSON, JAN. TERM, 1872.

This was an indictment against George W. Rankin for a public nuisance.

The indictment contained three counts. The first charged that George W. Rankin, on the first day of January, in the year of our Lord one thousand eight hundred and seventy, at Anderson Court House, in the County and State aforesaid, injuriously and knowingly did erect, or cause to be erected, a certain dam across Three and Twenty Creek, a common and ancient water course at Anderson Court House, in the County and State aforesaid, by means of which the water flowing in the creek was stopped, dammed up and flowed back in and upon the surface of large tracts of adjoining lands, by means whereof the mud, wood, leaves, brush, and the animal and vegetable substances and other filth, collected and brought down the channel of said water course, by the natural flowing of the waters, there became and were, during all the time aforesaid collected and accumulated in large quantities in the channel of said water course, and on the lands overflowed, as aforesaid, and the said mud, wood, leaves, brush, and the animal and vegetable substance, so there collected, as aforesaid, became, and were, and still are, offensive, and the waters became, and are, corrupted; and by means whereof divers nauseous, unwholesome and deleterious smells and stenches did arise, so that the air was, and still is corrupted and infected to the great damage and common nuisance of the good and worthy citizens of this State, there passing and repassing, dwelling and inhabiting, and against the peace and dignity of the same State aforesaid.

The second count charged that George W. Rankin, being possessed of a certain mill dam at Anderson Court House, in the County and State aforesaid, with their appurtenances, situate near and adjacent to the dwelling houses of divers of the good citizens of this State, did on the first day of January, in the year of our Lord one thousand eight hundred and seventy ***, and on divers days before and since, unlawfully and injuriously permit the water of the mill pond to overflow the adjacent lands, as well of others as his own, by means whereof the land so overflowed was rendered and kept marshy, and filled and covered with noxious weeds and putrid vegetation, whereby the air became corrupted and infected, to the great damage and common nuisance of the good and worthy citizens of this State, there dwelling and inhabiting, and against the peace and dignity of the same State aforesaid.

And the third count charged that George W. Rankin, on the first day of January, in the year of our Lord one thousand eight hundred and seventy ***, at Anderson Court House, in the County and State aforesaid, unlawfully and injuriously a certain and ancient water course, called Three and Twenty Creek, with earth, gravel and other materials, did obstruct, and stop up, by reason whereof the rains and waters that used to flow through the said water course, did overflow the adjacent lands and remain and became putrid, stagnant and noxious, and did send forth unwholesome and infectious damps, fogs and smells, whereby the air was greatly corrupted and infected, to the great damage of the health and the endangering the lives of the good citizens of the said State, there inhabiting and dwelling, and against the peace and dignity of the same State aforesaid.

The case on which the appeal was heard, is as follows:

The defendant was indicted for erecting and keeping a public nuisance, namely, a mill-dam and pond on Three and Twenty Creek, in Anderson County. The indictment contained three counts. The first charged that the defendant " did erect or cause to be erected a certain dam," & c.; the second charged that the defendant " being possessed of a certain mill-dam, & c., did permit the waters of the mill-pond to overflow the adjacent land," & c.; and the third charged that the defendant " unlawfully, a certain ancient water course with earth, gravel and other materials, did obstruct and stop up," & c. The defendant pleaded not guilty. The testimony showed very clearly a successive and continuous ownership, possession and use of the mill-dam, and valuable mills, for a period of over seventy years by the defendant's grandfather, his father and himself; that the pond of water was wholly upon the defendant's own land, and the head of the mill-pond, or dammed water, was eighty rods distant from, and within, the defendant's line, crossing the stream above; the dam had always been of the same height, and located on the same site; it was renewed in 1859, and made a close dam; prior to the re-building it had become rotten and decayed, and leaked so that the water was wasted, and at times was insufficient to propel the machinery. It was urged before the jury, on this proof, that much of the sand and mud which came down the stream passed through the dam and escaped, prior to its being rebuilt, and that after the new dam was built there was no escape of the mud, gravel and sand coming down the stream, which caused an accumulation of debris at the head of the pond, and flooded and overflowed the bottom land above, and caused the " stenches, smells," and sickness above the head of the pond. In the opinion of witnesses, the quantity of land covered by the water of the mill-pond was ten or fifteen acres, and had, probably, in the lapse of years, diminished; and that now, as heretofore, the water of the stream had a fall of about eighteen inches, and flowed in great part in the old channel, from the defendant's line above, to the head of his mill-pond. No dead timber immediately around the pond, but willows and swamp growth.

Three and Twenty Creek is formed by the junction of three streams, uniting at different points above the defendant's land, and varying in distance therefrom from a half to one mile. The creek is represented as creeping and sluggish below the dam, in its entire length, with few falls, and they of slight elevation. In A. D. 1860, the riparian proprietors, above the defendant's land, combining together, cut a ditch, beginning at a short distance above the defendant's line, and at a spot where a log for passing, known as the " foot log," crossed the creek. The ditch was commenced and sunk in the channel of the creek, to a depth of, perhaps, one foot below the old bed at the starting point; was ten feet in width, and extended in a straight line up the creek, without conforming to its windings, though occasionally sunk in the bed of the stream, for the distance of two miles or more, running up the different branches.

After the cutting of the ditch, the sand collected at its lower end, at the " " foot-log," which is now covered by sand, and, in time, accumulated so that the channel, at the end of the ditch, in which the water had formerly flowed, became choked, and higher than the adjacent banks. The water was thus forced over the edges of the ditch, or banks, permeated the adjacent low grounds, and collected in spots in small holes, or pools. The entire descent of the water, from Conner's Bridge to the forks of the creek (a half mile,) was nearly nine feet; from the forks of the creek to " foot-log" (one-fourth of a mile,) from six inches to one foot; and from the " foot-log" to pond (one-fourth of a mile,) one to one and a half feet.

The low grounds adjacent to the ditch became wet (sobbed,) and unfit for cultivation. Gradually they were covered with vegetation; the timber upon the uncleared bottoms, on both sides of the ditch, died, fell and rotted upon the low grounds, and, at some spots, lay in the ditch. This condition of the low grounds extended up the creek, and smaller streams, far above the defendant's land, for a distance of two and a half miles, and within one-half mile of the residence of a party (Dr. Earle) whose family, and tenants residing on his place, and several families in the same neighborhood, adjacent to the said stream, increasing annually for several years, were alleged to have been afflicted with malarial disease.

The defendant had no agency in cutting this ditch, nor in any way consented thereto. He refused permission to the proprietors of the lands above to extend the ditch through his own land-the eighty rods lying between his line, and the eddy water of the pond-giving as his reason for the refusal, it would " fill his mill-pond with sand."

It was in proof that the proprietors above, before cutting the ditch, consulted men of scientific knowledge of such matters, and were informed the ditch would not accomplish their purpose, nor drain the low grounds. They acted, however, against this opinion, and cut the ditch.

The charge by the State aga...