The defendant, without doubt, is liable to indictment for obstructing the public highway by means of the canal, which he uses and takes benefit of for the purpose of supplying water to turn his mill. The original proprietor of the mill was guilty of a nuisance in cutting the canal, and the defendant is guilty of a nuisance in continuing to use it.
It may be that if he is indicted for the nuisance he may attempt to excuse himself by proving, that for more than twenty years, he and those "whose estate he has" have had the benefit of this easement or privilege; but it will appear that the enjoyment of this privilege had a condition annexed thereto, to wit, that a bridge should be kept up over the canal, so that the public should sustain no inconvenience or hindrance by reason of the highway being cut across. The excuse will not avail unless he proves that this condition has been complied with.
The indictment charges that the defendant, being the owner of the mill, was bound to repair the bridge, "virtute tenurae." Our (135) late very able Attorney-General followed an English form, and *Page 99 did not devote to the subject the degree of care which he usually bestowed upon every question. In this State, we are all tenants in capite, and our tenure is that of free and common socage, yielding fealty, doing suit to court, and paying such taxes as the "General Assembly" may from time to time assess. The land upon which the mill is situated was in all probability granted long before the mill was built and the canal cut, so the repairing of the bridge could not have been a condition of the grant.
When the canal was cut there may have been an express license for so obstructing the public highway granted by the county court upon condition that the bridge should be built and kept in repair, or this may be presumed by a usage for more than twenty years, in the absence of such a contract expressed or presumed. The proprietor of the mill who cut the canal was guilty of a nuisance in so obstructing a public highway, and the defendant who continues to use the canal is guilty of the like nuisance. Rex v.Slaughter, 2 Saunders, 158, 9, note; King v. Kerrison, 1 Maule. Selwin, 526.
The judgment must be reversed, and, upon the special verdict, there must be judgment for the defendant.
PER CURIAM. Error.
Dist.: Hall v. Morrow, 47 N.C. 468; Kornegay v. Collier, 65 N.C. 71.
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