(Filed 23 February, 1904.)
LIMITATIONS OF ACTIONS — Nuisance — Agency.
An employee who erects a nuisance in a waterway for his employer cannot be indicated therefor after the expiration of two years.
INDICTMENT against A. J. and T. G. Poyner, heard by Judge W. B. Councill and a jury, at Fall Term, 1903, of CURRITUCK. From a verdict of guilty and judgment thereon the defendants appealed.
Robert D. Gilmer, Attorney-General, and E. F. Aydlett for the State.
Pruden Pruden and Shepherd Shepherd for the defendants.
The defendants were indicted for erecting and maintaining a public nuisance, in that they "did erect, place and put in" Wills Island Lead, a common highway, certain piles and posts, and unlawfully and willfully doth continue said obstructions and impediments, etc. There was evidence tending to show (610) that "Wills Island Lead" is a water way extending from one end to the other of Currituck Sound. That it was navigable and used by the citizens for hunting and fishing. There was also evidence that the stakes and obstructions placed in said water way have remained there until the trial of this indictment, and were put there by the defendants; that they were put there from ten to thirteen years before the presentment or indictment herein; that the work was done by the defendants, who were laborers employed by and under the direction of one Thomas J. Poyner, who was superintendent of the Currituck Shooting Club; that defendants left the employment of said Poyner and said club the same year the obstructions were put in and had not been in the service of either since, nor had they had anything to do with said obstructions.
The defendants' counsel in apt time requested the court to charge the jury: "If the defendants were laborers and employed in the service of T. J. Poyner or other employee, and as such employees and laborers, under direction of the said employee, more than two years before the finding of the bill of indictment in this case, drove said stakes and thereafter had nothing to do with keeping of and maintaining said obstructions, they cannot be convicted, and you should return a verdict of acquittal." The court declined to give this instruction, and the defendants excepted. The court instructed the jury that if they believed the evidence they should find the defendants guilty, notwithstanding the lapse of time since they did the work and ceased their connection with the matter. The defendants duly excepted, and from judgment upon a verdict of guilty appealed.
The indictment is drawn in accordance with the decision of this Court in S. v. Club, 100 N.C. 477; 6 Am. St., 618, and charges a nuisance at common law for placing obstructions (611) in a public highway, navigable water, and for continuing and maintaining the same. If the bill charged the defendants with placing the obstructions in the highway they could not have successfully defended themselves by showing that they did so by direction of their employer. S. v. Campbell, 133 N.C. 640. They would, however, have been entitled to an acquittal because more than two years had elapsed since the commission of the offense. The Attorney-General insists that the indictment is also for continuing and maintaining a nuisance, and that against this offense the statute does not run so long as the nuisance continues. This is undoubtedly true as held by this Court in S. v. Holman, 104 N.C. 861. The present Chief Justice says: "The State was entitled to show the existence of the nuisance at any time within two years before the indictment." In that case the defendants owned the land upon which the milldam complained of was situate, they had control of it and actively maintained it. In this case the defendants, laborers in the employment of other persons, in the discharge of their duty and by their direction put the stakes in twelve years ago. They had no interest in the matter and nothing to do with keeping them there or maintaining the obstruction. During the same year they left the employment. It does not seem that in any proper or legal sense the defendants can be said to maintain the nuisance. The industry of the defendants' counsel has brought to our attention the case of Lyman v. Dorr, 1 Aikens (Vt.), 217, in which the distinction is very clearly pointed out. Rogie, J., says: "When a person in his own right and for his own benefit commits a trespass by erecting a nuisance on another's land it is but reasonable that he should remain liable for the continuing injury. And on the other hand if he committed the original trespass as an agent and for the benefit of another, the continuance should not be regarded (612) as his act, but as that of the principal." It would be a strange result if the law should hold a laborer liable for maintaining a nuisance erected by him in the course of his employment, and by direction of his employer, twelve years after he had quit the service, and had not had any connection with the master. Certainly if a civil action would not lie he could not be indicted and convicted of a criminal offense. The court should have given the instruction asked, and for the refusal to do so the defendants are entitled to a