The opinion of the Court was delivered by
Moses, C. J.So much of the appeal as seeks to arrest the judgment cannot be sustained. It does not appear from the brief that any application to that end was made in the Circuit Court. It therefore comes before us an original and independent motion, which we have not the power to entertain.—Const., Sec. 4, Art. IV. State vs. Bailey, 1 S. C., 1; Floyd vs. Abney, Ibid, 114; Elmore vs. Scurry, Ib., 139.
We must, therefore, limit our enquiry to so much of the appeal as claims a new trial for the alleged errors of law by the presiding Judge of the Court below. So far as the points presented to him as questions of law, or asked to be submitted to the jury as grounds of defence, are identical, or of a like character with either of the causes urged in arrest of the judgment, the defendant will substantially have the benefit of their consideration.
It is denied that the indictment will lie, as the offence, if any, is a private and not a public nuisance. Whether it is the one or the other, depends upon the extent of its existence. If it annoys the community in general, aud not merely some particular person, it is indictable and not actionable.—4 Blk. Com., 167; Rex vs. White, 1 Burr., 337. Where the act is charged as in or near a highway, “per quod the air thereby is corrupted,” it is punishable as a public nuisance.—Rex vs. Papineau, 1 Str., 686 ; Carey vs. Brooks, 1 Hill, 367. If it affects the highway, and extends its hurtful influence so as to comprehend whole neighborhoods, the only remedy is by indictment, though one who has suffered a particular damage, beyond that which the public has experienced, may, in respect thereof, maintain an action.—Bac. Ab., Title Nuisance, D., 2 Ld. Ray, 985. Here the charge is, that the defendant “ did erect, or caused to be erected, *448a certain dam across .Three and Twenty Creek, a common and ancient water-course, by means of which,” &o.
The third count is not very artificially drawn, nor, in fact, is the indictment framed in exact conformity with the most approved precedents, and yet it may suffice. The statement in the said count may save it from the charge of vagueness as to time and locality. The date of the offence is not material, if it is before bill found, and there is enough to inform the defendant of the nature and character of the charge, and of the place which is an incident of it, to enable him advisedly to prepare his defence. If it is stricken out, it is not perceived, in view of the first count, how the defendant could be benefited.
The point taken no way resembles that which was sustained in State vs. Graham, 15 Rich., 310. There the indictment was “ for obstructing a public landing,” and the proof was the obstruction of a public road leading to the landing at a place within one hundred yards of it.
If it was intended on the part of the defence to make any question as to the introduction of testimony to shew sickness and disease in the neighborhood, it should have been objected to at the time. Its admissibility depended on its competency, and this was conceded when no exception was taken at the time it was offered. It, however, can in no manner avail the defendant. To constitute a nuisance, as was said by Lord Mansfield, in Rex vs. White and Ward, 1 Burr., 337, “it is not necessary that the smell should be unwholesome; it is enough if it renders the enjoyment of life and property uncomfortable.”
In Rex vs. Neill, 2 B. & C., 12 E. C. L., 226, it was held “ that to support an indictment for a nuisance, it is not necessary that the smells produced by it should be injurious to health; it is sufficient if they be offensive to the senses.” Independent, however, of the rule sustained by these authorities, it was competent, under the allegation in the several counts of damage, “ to the persons there passing, repassing, dwelling and inhabiting,” to introduce testimony to shew injury to health, as a consequence more prejudicial than any alone obnoxious to the senses, because of its unpleasant odor, and not productive of sickness.
The right to property from long possession, either directly from the operation of the Statute of Limitations, or arising from the presumption of an original cession by grant, cannot be applied to sanction or uphold its use or devotion to purposes not permitted by *449the State, either as affecting its own sovereignty or the rights of third persons. Chitty, in his 1st Volume of Criminal Law, 160, says: “It has been repeatedly held that no length of time can legalize a public nuisance, although it may afford an answer to an action by a private individual and Ch. J. Parsons, in Town of Stoughton vs. Baker et al., 4 Mass., 522, observes “that no laches can be imputed to the Government, and against it no time runs so as to bar its rights.” See also, Hall vs. Richards, 9 Wendell, 315.
While the long possession may confer a right to the land flowed, and all the proprietory incidents which follow the title to property, it can not be set up as a bar to the abatement of a nuisance on behalf of the public. A right to violate the law is not to be presumed as allowed by the,State itself, for this would he inconsistent with the very purpose for which it was created, and would involve an absurdity too violent to be entertained even for a moment.
The points thus made for the appellant, which we are at liberty to consider, have been examined and determined ; it remains only to enquire whether the charge of the presiding Judge, as to the acts of the defendant, on which his liability depended, was in conformity with the rules which are to be applied as the law of the case. It is recognized as a fundamental principle, necessary for the safety and protection of society, that no one, in the use of his property, shall injuriously affect the rights of others. While this is admitted, how far and to what extent the limitation is to operate on the consequences which may accrue to third persons from the lawful use of one’s property, often presents an enquiry to be determined by nice aud delicate discrimination. One is supposed to be capable of foreseeing the consequences of his own action, and must, therefore, be responsible for any wrong or damage which results from it; hence there is no doubt as to his liability for the natural and proximate results of a legal act, which is the source of injury to another. A distinction is made between an act in itself lawful, and one that is forbidden, whether malum in se or malum prohibitum, and they will not be both subject to the same rules in regard to their effect in reference to the rights of others.
While it is true that the defendant would be liable if his obstruction of the creek, by his pond and dam, was in itself the cause of the injuries complained of, yet, if the consequences are to be attributed to the acts of others, so affecting his property that it becomes a public nuisance, it would not appear consistent with justice or propriety that he should be held to responsibility.
*450The mere erection of the mill and dam on his own land was no nuisance; and if results, though injurious, yet not proximate and direct, followed, because set in motion by the acts of others, either in cutting the ditch, which, by the accumulation of sand, choked the channel and raised it higher than the adjacent banks, thus forcing the water over the edges of the ditch or banks, and collecting it in pools or holes, or from the increased cultivation in the neighborhood, it would seem that the consequences are to be referred to an agency operating on the property-of the defendant, for which he should not be liable, because not employed by him. They were not proximate or direct, in the legal sense in which those terms are understood. He must be held accountable for the unlawful effects which naturally or directly proceeded from his acts.
In civil actions fixed and adjudged rules have been adopted. On the criminal side of the court the authorities are few, and none that we have examined of express bearing on the question we are now considering. One is held liable to an action for a private nuisance, arising out of the use of his own property, because in such use he has infringed upon the rights of others. A conviction lor a public nuisance proceeds upon the same principle applied to the public, and not to individuals. In civil cases, however, a defendant is not responsible for results, except such as are natural, proximate and direct.—2 Green. Ev., §§ 256, 635; Whatley vs. Murrell, 1 Strob., 389 ; Harrison vs. Berkley, Ib., 548; Carey vs. Brooks, 1 Hill, 365.
In the case before us, the presiding Judge did charge “ that the defendant should be acquitted if the jury should be of opinion that the timber in the bottom, above the dam, was killed either by the ditch or by the natural filling up from the cultivation of the lands above, or from both combined,” or “if the ditch or dead timber above the dam was the cause of the ‘smells and stenches’ complained of.” We think, however, that he should have gone further and instructed them that if, in their opinion, the dam, in itself, or conjointly with the pond, was the cause of the alleged injuries, the defendant should be convicted; but if other causes, to which he did not contribute, and which did not arise from his agency, so affected the dam and’ pond, or either, as to produce them, then they were too remote to be ascribed to his act, and the verdict should be in his favor.
The motion for a new trial is accordingly granted.
Willard, A. J., and Wright, A. J., concurred.