February 17, 1910. The opinion of the Court was delivered by About the year 1879, the defendant engaged in gold mining on a stream which flows through plaintiff's lands below. At first the ore was reduced by stamp mills, some four or five years later by crushing or roller mills, the tailings from which were carried into the stream. About the year 1888, the defendant installed what is known as the "chlorination process," which consists in treating the finely pulverized ore with chlorine, resulting from the chemical action of sulphuric acid on chloride of lime. The tailings from this process were also discharged into the stream.
When the stream overflows, this refuse matter is deposited on plaintiff's lands lying thereon, and has proved to be so injurious and destructive to plant life that plaintiff for nearly ten years has had to abandon the cultivation of the lands so affected. This action was brought to recover damages for the alleged nuisance, and to enjoin the continuance thereof.
The defendant interposed the following defenses: (1) A general denial; (2) the statute of limitations; (3) a prescriptive right to discharge the tailings from its mills into the stream; and (4) as against the equitable relief sought: 1st, that the plaintiff has an adequate remedy at law by *Page 5 action for damages; 2d, the balance of convenience, or advantage to the defendant and the public; and 3d, laches of the plaintiff. The presiding Judge submitted to the jury the following issues, which were answered by the verdict of the jury as appears by the answers after each: "Do the acts of the mining company, detailed in the complaint and testified to by the witnesses, constitute a nuisance? A. Yes. Has the mining company used the mine branch in the way detailed in the pleadings and testified to by the witnesses, and in substantially the same way for full twenty years before May 1, 1907, continuously and adversely to the right of the plaintiff? A. No. What was the use of the thirty acres of land described in the complaint, or so much thereof as the mining company rendered unfit for use, if any, worth for the aggregate of six years next before May, 1907? A. $1,262.50 we find for the plaintiff."
Thereafter his Honor refused a motion by defendant to set aside the verdict, and granted plaintiff's motion for "injunction to stop the nuisance complained of and now found to exist."
The first exception imputes error to the Court in excluding the record in the case of W.T. Jones et al. v. Haile GoldMining Company, which was offered as evidence of the establishment of an easement in favor of defendant for the use of the stream in the manner complained of against the owner of lands situated on the same stream below the lands of the plaintiff. The defendant contended that the record should have been admitted under the authority of McDaniel v. Walker, 46 S.C. 43,24 S.E., 378. The record was properly excluded. In McDaniel v.Walker the parties proved title from a common source, and were therefore privies in estate. Here no privity whatever appears. The record offered was therefor res. inter aliosacta.
The next question is whether his Honor erred in not framing the issues submitted to the jury, so that the findings *Page 6 would distinguish between the use of the stream for the discharge of the tailings from its mills before the installation of the "chlorination process," and the use thereof afterwards. In the first place, it does not appear that any request was made by the defendant that the issues should be so submitted, which would be sufficient to dispose of this ground of appeal. But, aside from that, it appears that the stream was used for the discharge of the tailings from the mills, not treated by the "chlorination process," for only about ten years, from 1879 to 1888, or 1889 — a time too short by ten years to acquire a prescriptive right to such use of the steam — and that, after the installation of the "chlorination process," practically all the tailings were affected by that process. To acquire an easement by prescription, it must have been used in substantially the same way for the full period of twenty years, and adversely to the rights of the owner. The time does not begin to run until there is some injury done which would support an action. The plaintiff's testimony was to the effect that no injury resulted to her land from the use of the stream by defendant before the installation of the "chlorination process." Washb. Eas., 4 Ed., 150, 155, 171.
There is practically no difference between the rental value of land and the value of the use of the land. We do not see how defendant could have been prejudiced by his Honor's charging the jury that the plaintiff was entitled to recover, if at all, the value of the use of the land for six years prior to the commencement of the action.
It has been too frequently held by this Court to require further discussion that, when the existence of a nuisance has been established by the verdict of a jury, the party injured is entitled, as a matter of right, to an injunction to prevent its continuance. Threatt v. MiningCo., 49 S.C. 95, 26 S.E., 970; Mason v. Apalache Mills.81 S.C. 554, 62 S.E., 399, 871. *Page 7
Whatever may be the doctrine in other States, under the provisions of the Constitution of this State, that private property shall not be taken for private use without the consent of the owner, the Court could not have considered, in deciding whether to grant or refuse the injunction, the question raised by the defendant as to the balance of convenience, or of advantage or disadvantage to the plaintiff and defendant and the public at large, for the defendant's use of the stream. That question would be pertinent only in an application addressed to the Legislature to give such corporations the power of condemnation.Boyd v. Granite Co., 66 S.C. 433, 45 S.E., 10.
Judgment affirmed.
February 17, 1910.