16 Ala. 214 | Ala. | 1849
It is contended that this suit is improperly brought in the name of Stein, who does not sue as an informer. By the 4th section of the act of the 20th December 1820, entitled “An Act to incorporate an Aqueduct. Company in the city of Mobile,” it is provided, that if any person shall obstruct or injure the waters of Three Mile Creek (on which this saw-mill is situated) by logs, bushes, earth, or other materials, between its source and the place where the water is taken for the use of the city, he, she or they, for every such of-fence, shall forfeit and pay the sum of twenty dollars, to be recovered by action of debt, &c. — one half of which shall go to the city of Mobile, and the other half to the informer. The plaintiff entered into a contract with the city authorities, on the 26th December 1840, by which he became the lessee of the ^ water-works for the term of twenty years. This contract wa| submitted to the Legislature of the State, and by the act of the 17th January 1841, was ratified and confirmed, and all the rights, powers, privileges and immunities that had been granted to the Mobile Aqueduct Company and the city of Mobile by the act of 1820, were granted to the plaintiff, to be by him enjoyed during the term of his lease. In addition to the act of 1841, the plaintiff by the act of the 4th of February 1846, is authorised to sue for all dues, demands, forfeitures, &c., to which he may be entitled under the contract entered into between him and the city, before any Justice of-the Peace of Mobile county, or any court having competent jurisdiction.— Under this contract and these several acts, it is clear that the plaintiff is entitled to all the rights and benefits granted and confered by the act of the 20th December 1820, and is entitled to one half of any forfeiture incurred under the 4th section thereof if such forfeiture be sued for by a common informer. He occupies the place and stead of the city during his lease, is possessed of all the rights that had been previously confered on the city in reference to the water-works, and, if a forfeiture is recovered by a common informer, entitled to the half that
The counsel for the plaintiff in error, however, has urged that to enforce the penalty of this act against the defendant will compel him to abandon the use of his mill or alter its structure at considerable expense, and thus private property will be taken or destroyed for the public good, without compensation. The whole error of this argument consists in not reflecting on the strict rights of the defendant. He had the right, by virtue of his title to the land, to use the water, but not to abuse it to the injury of others. By his act he not only uses it, but, as the evidence shows, injures its quality. This he had no right to do; he obtained no such right by virtue of his grant to the land, nor has he derived any such right or authority from any source having power to grant it. He there
We see no error in the judgment, and it must be affirmed.