THE STATE OF ALABAMA VS BELL, 5 Port. 365

GOLDTHWAITE, J, On the trial of this case in the Circuit Court of Sumter county, several questions were reserved by the presiding Judge, for the consideration of this Court, which will be examined in the order they are placed in the record. First, — It is insisted that the Circuit Court of Sumter, has no jurisdiction of the particular offence; because the Judge of the County Court, is author-ised by the terms of a private act of the Legislature to remove the nuisance complained of. The act referred to by its first section, “authorises Richard and Stephen Yarborough to erect a saw and grist mill, on

section four, township eighteen, range two, west, on the Sucarnochee river, in the county of Sumter,” The.second section, enacts, “that the said Yarbo-roughs, shall open in the dam across said river, a good and sufficient lock, to admit the passage of keel boats and other water era ft, which lock shall be of the width of fourteen feet or more, if required, for the admission and passage of such boats and other water craft, as may be desired to navigate said river.” The third section, enacts, “that if the said Yar-boroughs shall fail or refuse to erect such lock or locks, and other necessary conveniences, for the passage of boats and other water craft, as aforesaid, the said mill shall be deemed a nuisance and therefore removed as such.” The fourth

section provides for the manner of ascertaining any private injury, which may be sustained, and points out a mode, by which damages for the same, may be assessed.

And .the fifth and last section, enacts, “that if it shall be ascertained that the health of the people of the town of Livingston, shall'be materially injured or endangered, by the erection of the mill hereby authorised, that then and in that case, the power and authority, herein given to construct such mill, shall be subject to revocation, and "the Judge of the County Court of Sumter county, shall have power, and it shall be his duty, upon the application, in writing, of any three citizens of said town, to cause á jury, to be impan-naled and sworn, to inquire and determine, whether or not, in their opinion, the erection of said mill does materially injure or endanger the health of the inhabitants of said town of Livingston,.and if such jury, upon enquiry into the facts, shall find that, in their opinion, the health of the people of said town, has been, or is likely to be, materially injured by the erection of such mill, it shall be the' duty of said Judge, upon the finding of such jui’y, to cause the dam of said mill, to be abated as a nuisance; provided, the owner of such millj shall have at least ten days previous notice, in writing, of such intended application.” It cannot be contended, that any provision of the «act recited, expressly takes away the jurisdiction of the Circuit Court, which must otherwise be exercised over this, as well as over other criminal offen-ces, by virtue of the powers conferred by the sixth

section of the fifth

article of our Constitution; but it is urged that such is the implication arising from the third- and fifth sections. On looking into the third, it will be found not to touch this question; as it seems to provide, that the dam shall be deemed a nuisance, unless a lock of a particular description is left for the passage of boats, &c. This

section does not, by implication,- divest any tribunal, of jurisdiction, but leaves that to be exercised in such manner as previously was designated by law. The third count of the indictment is framed with technical accuracy, to present the very question, which arises on the construction of this section. If the Yarboroughs had proceeded in every other respect according to the act, and no injury, public or private, had ensued — the omission to provide the means, for the public to pass through the dam, would, of itself, be a nuisance, which should be abated.

The fifth section, when examined, will be found to give no aid to the position assumed. It neither confers, or assumes to confer, any criminal jurisdiction. It simply provides the mode, by which the privilege granted by the first section, shall be determined to be at an end; and for the resumption, by the State, of all its rights, of which one, not the least important, is to abate the existing nuisance.

The right to abate a public nuisance, is said to be common to every citizen of a community, because all may be injured by it; and if the law has made it the duty of a named officer, to abate such a nuisance, when ascertained in a particular manner, — no inference ought thence to be drawn, that it was the intention of the law, to abolish all other modes of abatement. Such a construction, -would, in all cases, insure the escape from justice of the individual erecting or continuing the nuisance.

If the position contended for, be correct, no one would be responsible, either civilly or criminally, for, any nuisance, which grew out of the erection of this mill. The act certainly prescribes no punishment for the offender, and he might laugh to scorn, all attempts to reach him criminally, through any jurisdiction vested in the County Court.

It may be true, by the grant of the privilege in the first section, and the restraints which are imposed on the resumption of it, by the fifth, that an individual might not be guilty of an offence in erecting or continuing the mill, until the time, when the privilege should, be revoked, in the manner pointed out by the section, last refered to.— This was a matter, resting on the evidence in the cause, and if the inquisition had not been made, the defendant might have been entitled to his acquittal; but no question has been raised on this point, and we must presume the jury were satisfied with the evidence, submitted to them, that the defendant had contiuued the nuisance, as stated in the fourth count of the indictment, after it had become unlawful, or that the inquisition, mentioned and provided for in the fifth section, had been made.

The next, and perhaps the only difficult, question, arises on the statement of the Court below, “that the copies of maps were adducd as evidence to prove that the river Sucarnoehee, was a navigable stream, it appearing on the copies of said maps, that the sectional lines did not cross said river, and that the copies were proved by a witness, who had compared said copies with the original maps of survey.” We have been, and still-are, at a loss to perceive, how this description of proof was deemed necessary to be resorted to, as the fact could perhaps have been more satisfactorily established, if it existed, in almost any other way, but the point was not the sufficiency, but the legality of this species of evidence, to ascertain the fact, then in issue.

To make a navigable stream, three circumstances must concur. First — The stream must have sufficient width. Second — Sufficient depth, and Third — A freedom from insurmountable obstructions. The Court must intend, that the copies of the maps, introduced in evidence, were the public surveys made in pursuance of law. These maps, if accurate, must necessarily shew the width of any stream, when the

section lines do not cross the river, and on which fractional sections are, (in consequence of the lines not crossing,) obliged to be made. These fractional sections are always made on nayigable streams, though we do not understand the fact to be otherwise, on many streams which, are not navigable. This view of the case would indicate that the surveys might be legal evidence to establish the width of a river, which is one of the facts from which its capability for navigation, might be legally inferred, and being thus legal in its character, its sufficiency was matter of consideration alone for the jury.

But it is urged that the copies which were introduced, were not the copies from the original maps, but from the land office maps, in the office of the register. To this we can only answer, and refer to the record, which states them to be copies, proved by a witness, to have been compared with the original maps. To intend otherwise, would be to violate all rule, and however the fact may be, we must determine from the record.

That sworn copies are admissible in evidence., has already been decided by this Court. (Hamner vs Eddins, 3 Stewart 192.) The only remaining question is, whether the defendant is not entitled to be discharged from the indictment, as he is shewn to have possession of the premises, which are alleged to be a nuisance, not in his own right or by virtue of any claim, but merely as the overseer or agent of another, The duty which every individual owes to the State, of which he is a citizen, and the community, of which he is a member, is certainly paramount to any obligation,' imposed on him by his voluntary service and obedience to another.

To permit an agent or servant to excuse himself for an infraction of the criminal laws of the State, because of his agency or servitude, is a principle which can have no authority, from reason, for its support. Human laws must necessarily attach immediately on those, who do, or omit the act; and although the director, instigator, aider and abettor, can in most cases be also reached by the same law, the actual offender can in no case avoid the consequences of his unlawful act or omission.

The fact which is now attempted to be introduced, as a legal bar to this indictment, might well be urged, as a circumstance to mitigate or reduce a fine or other punishment, when discretionary; and would no doubt receive sufficient attention from a jury, the only proper tribunal, to judge of the effect to be given to such an excuse. The Court are. unable to discover any error in the action of the Court below, on the questions referred to us, and the judgment rendered must be affirmed.