The opinion of the Court was delivered by
Mr. Justice Jones.
1 This case has been here once before. 46 S. C., 15. The appeal now is from an order granting a nonsuit. The grounds of the motion for non-suit, and the reasons of the Circuit Judge for granting the same, may be seen by reference to the remarks of the Circuit Judge thereon, as printed in the official report of this case. The action is to recover damages for maintaining a dam across the Savannah River, whereby the water is raised in the channel of the river, thereby overflowing and water-soaking, and thus rendering unfit for cultivation about twenty acres of plaintiffs’ land. The suit is not against the original creator of the alleged nuisance, since it is alleged in the complaint that the Augusta Canal Company built the dam and overflowed plaintiffs’ land, but it is against the city council of Augusta, the grantee of said canal company, for the maintenance or continuance of such nuisance. The rule is settled in this State, and by the weight of authority elsewhere, that the grantee of the original creator of a nuisance is liable for continuing the nuisance after notice and demand for its removal. Leitzey v. Water Power Co., 47 S. C., 476. See, also, authorities cited in note to Plumer v. Harper, 14 Am. Dec., 338. In this case, there was evidence to show that plaintiffs gave notice to the defendant and demanded its removal on March 6th, 1894, and again called attention to the matter on March 26th, 1894. The action was commenced May 28th, 1894. The trial was had at spring term, 1897. The testimony introduced by plaintiffs tended to show that, by reason of the maintenance of the dam by defendant, about twenty acres of fertile land belonging to plaintiffs was rendered unfit for cultivation, and that but for the continuance of the dam, these lands would produce thirty-five or forty bushels of corn per acre each .year, that *405one-third of this would be a fair rental per acre for the land, and the average price of corn was proven. It follows that the nonsuit could not be sustained on this ground.
2 The fourth ground of nonsuit presented by the defendant, and sustained by the Circuit Court, is likewise untenable. That ground is, substantially, that the plaintiffs have shown affirmatively that the lands mentioned in the complaint are in as good condition as they were when the plaintiffs purchased the same in March, 1894, and that, therefore, plaintiffs have not shown that they have been damaged by any act of defendant. We fail to see how this evidence could subject plaintiffs to a non-suit. The evidence tended to show that the erection and maintenance of the dam rendered plaintiffs’ twenty acres of land unfit for cultivation, its former use. If the lands were shown to be worthless for cultivation in March, 1894, by reason of the dam, it did not impair plaintiffs’ evidence to show that the land was still worthless at the time of the trial by reason of the same dam. The evidence tended to show that the maintenance of the dam by defendant was the continuing cause of the injury.
3 The third ground of nonsuit sustained by the Circuit Judge is as follows: “Because the plaintiffs have shown that they purchased the land affected by the grievances of which they complain many years subsequently to the infliction of the injury, and with full knowledge of existing conditions, to wit: the construction of the dam and the consequences thereof; thereby, under the law, they took the land cum onereThere might be some merit in this proposition if the plaintiffs had shown that they claimed imder the defendant, or if plaintiffs’ testimony had established that the alleged grievances or nuisance had continued for a time long enough to give defendant an easement to flood the land in question; but the testimony did not even tend to establish either of these conditions. Conceding, for the purpose of discussing this ground of nonsuit, that the plaintiff’s title to the premises *406'is founded alone on the deed by H. H. Townes, guardian* dated March 16th, 1894, and conceding that they had full knowledge of the existence of the alleged nuisance when they took said deed, it by no means follows that they are precluded from claiming damages for a continuance of such grievance. The grantee of land affected by a nuisance not ripened into an easement, may, notwithstanding he purchased with notice, bring an action to abate such nuisance, or for damages resulting from its continuance, since, if the grantor could maintain such an action, his grantee could. If the grantor had the right to have the land relieved of the alleged grievances, the grantee succeeds to such right. We do not mean that the tort to the grantor is assignable by him, and that the grantee could maintain an action for damages done to the grantors, but that the grantee succeeds to the grantor’s right of property, possession and enjoyment, and that, since every continuance of a nuisance is a fresh or new nuisance, the grantee has unimpaired the renjedy to abate or sue for damages accruing to him from such continuance. The proposition contained in this ground of nonsuit is analogous to the view once entertained, that one coming into a neighborhood where a nuisance exists can not complain of such nuisance, but this idea has long ceased to be law. 16 Enc. Taw, 934, and authorities cited.
4 We come now to what we understand is the principal ground upon which the nonsuit was sustained, viz: “That the plaintiffs can not retain the benefit of any contract, and at the same time be relieved from any burden or any consequence which flows from the contract.” The defendant, for a defense, relied on a contract made with H. H. Townes, sr., as trustee for Sallie V. Townes, by the Augusta Canal Company, October 18, 1873, and a deed by Townes, as trustee, same date, conveying to said canal company three 36-100 acres of land whereon the abutment of the dam was constructed by said canal company. By said contract, Townes, as trustee for Sallie V. Townes, granted leave for the construction of said dam, and discharged the *407said canal company, its successors and assigns, from any and all damage, &c., that may be caused to said land by the erection of said dam and the abutment and walls, from overflow and in any other manner. On the other hand, the canal company stipulated that H. H. Townes, as trustee of Sallie V. Townes, “shall be allowed to draw from the water of said canal company to his mill, now erected on said land on said Savannah River, water equal to thirty horse power, and also navigation through said canal with his boat to transfer cotton and other produce and supplies to and from the city of ■ Augusta free of toll.” In establishing this title to the land in question, plaintiffs offered evidence to show that said land was part of a large tract of land willed by John Jones to Sallie V. Townes for life, with remainder in fee to her children, the plaintiffs; that, therefore, Sallie V. Townes had only a life estate in said lands; that she died September 19, 1877. At the time of the deed and contract by Townes, as trustee for the life tenant, plaintiffs were infants of tender years, W. G. Townes having been born April 2d, 1871, and H. H. Townes, jr., having been born September 2, 1872. The dam is alleged to have been built in 1873 or 1874. In the former hearing of this case on appeal, 46 S. C., 36, Mr. Justice Pope, delivering the opinion of the Court, said: “Now, granting that Henry H. Townes, when he claimed to act as trustee for his wife, Mrs. Sallie V. Townes, and made a contract with the Augusta Canal Company, whereby he stipulated that the said company might build' the dam across the river, and also stipulated for thirty horse power of water to run his mill, &c., had no legal power to make such contract so as to bind his wife, or to bind the plaintiffs. Mrs. Townes afterwards would have been able to confirm the unauthorized act of her trustee. Grant that, even if she did or did not confirm such conduct of her trustee, and such a contract could not, of itself, be made to operate upon the rights of these plaintiffs, who did not receive these lands through her, but as purchasers under John Jones’ will, yet it vyas, and is now, in their power to make that contract *408effectual. This may be done directly or it may be done indirectly; it might have been by a deed or other solemn contract; again, it might have been done, not by a deed or other solemn contract, but, just as effectually, by conduct. When the plaintiffs held on to the benefits under the supposed deed between Henry H. Townes, as trustee of his wife, Sallie V. Townes, and the Augusta Canal Company, by holding fast to the use of the thirty horse power of water power, with which to propel their mill and machinery, furnished by the dam, constructed under such contract, they tied themselves, hand and feet, so to speak. The law wisely says you shall not receive the benefits of a transaction, and at the same time refuse to bear the burdens incident to such a transaction * * * There was was no testimony in the case which showed that these plaintiffs did not still cling to these water privileges, but the testimony was to the contrary. This being so, it was error in the Circuit Judge to refuse the motion for a nonsuit.” The other members of the Court concurred in the view that there was error in refusing the motion for nonsuit. It will be noted that in the foregoing opinion the Court’s view of the testimony offered by plaintiffs was, that it established that the plaintiffs held on to said water privileges after attaining their majority, with no testimony tending to establish the contrary. In other words, the fact that plaintiffs held on to the water privileges acquired under the contract by Townes, as trustee, was undisputed in the evidence. The plaintiffs were, therefore, liable to be held estopped, as matter of law, from seeking to relieve themselves from the burden of a contract, the overflow of their lands, while holding on to its benefits, the water privilege. An estoppel in pais is a mixed question of law and fact. When the facts relied on to create an estoppel are admitted, or undisputed, or ascertained by the proper tribunal, then whether such facts create an estoppel is a question of law for the decision of the Judge; but when the facts relied on to create an estoppel are disputed, then the case must go to the jury, under proper instructions from *409the Court as to what constitutes an estoppel, leaving it to the jury to determine whether the evidence establishes or not the facts necessary to create an estoppel. On the trial now before us, the facts relied on to create an estoppel were disputed. The evidence offered by plaintiffs tended to show that they objected to the use of such water privileges by their father; that they repudiated the contract made by H. H. Townes, as trustee; that they had never received a cent from the use of the water power, &c.; that such use as was made of the-water'power by their father, H. H. Townes, was for his own benefit, and against their objection; that while -they permitted their father to live on and use their tract of land without accountability, they did not authorize his use of the water power. It was error, therefore, to hold, as matter of law, under such state of the evidence, that plaintiffs were estopped, and to nonsuit plaintiffs. The question of estoppel should have been submitted to the jury, under proper instructions. If it was sought to show that plaintiffs had ratified the contract made by Townes, trustee, by accepting its fruits after they arrived at the age of majority, that question, under proper instructions, should have been submitted to the jury. If it was sought to show that H. H. Townes, sr., in using said water power and gin was acting for plaintiffs, as their agent, after they reached majority, it would be necessary to show that Townes, sr., was their agent, and that the use of said gin and water power; and the receipt of the proceeds thereof, was within the scope of his agency, and those questions were for the jury, under proper instructions.
5 There is another question touching estoppel. In establishing their title to the land in question, after proving their title under the will of John Jones, plaintiffs, anticipating defendant’s defense, introduced the deed- of Henry H. Townes, sr., as guardian of plaintiffs, to H. A. Shaw, dated July 8th, 1882; then the deed of H. A. Shaw back to H. H. Townes, as guardian of plaintiffs, dated June 21st, 1892, and then the deed of H. H. Townes, as *410guardian, to the plaintiffs, dated March 14,1894, conveying ninety acres of the original tract willed to plaintiffs by John Jones, which ninety acres covered the land injured by the dam. The deed from Townes, guardian, to Shaw purports to be in pursuance of a decree of the Court of Equity in a cause to which the plaintiffs, then infants, were parties, seeking a change of investment in their behalf, and the deed recites the receipt of $1,500 as the consideration. The deed contains these words: “Together with all and singular the rights, members, hereditaments, and appurtenances to the said tract of land and islands belonging or in any wise incident or appertaining, and particularly the water power and water privileges incident or appertaining thereto.” The Circuit Judge held that the last clause, “and particularly the water power and water privileges incident or appertaining thereto,” conveyed to Shaw the water power and water privileges which was then established under the contract made by Townes, trustee, with the canal company; and that by reason of the conveyance by Shaw to Townes, as guardian, and by Townes, as guardian, to plaintiffs, that plaintiffs were in under a new title, and could claim only such water power and privileges as were conveyed to Shaw, and no more, and on this ground he nonsuited the plaintiffs. In other words, that plaintiffs are estopped by these deeds to claim damages for the overflow of their land by reason of the said dam. If the Circuit Judge is right in this, then he erred in refusing plaintiffs the right to show that the consideration of the deed from Townes, as guardian, to Shaw, was never, in fact, paid, and thereby to show that the order of the Court of Equity had not been complied with; that such deed was void as to the plaintiffs, then infants, and, therefore, no estoppel could arise therefrom against the plaintiffs. Where the Court has made an order of sale, the terms of the order become the law of the case, “the condition oh which the authority is to be exercised, the non-performance of which will destroy the power.” Bailey v. Bailey, 9 Rich. Eq., 395. Notwithstanding the Circuit *411Judge, when called on to rule, excluded all evidence as to whether the $1,500, as consideration of the deed to Shaw, had been paid, yet the defendant’s counsel, on cross-examination of W. G. Harris, at folio 474 of the case, brought out evidence tending to show that the $1,500 had not been paid; and, moreover, there was some testimony to show that H. H. Townes, sr., was all the time, from the date of the deed to Shaw, in 1882, up to the date of the deed from himself, as guardian, to the plaintiffs, in 1884, in possession of said gin and water power, as shown at folio 565 of the “Case” by the following question and answer: Cross-examination of H. H. Townes, sr., by Mr. Sheppard: “Q. All the time after your wife died, and up to the maturity of these boys, you continued the operation of the farm and gin as a public gin? A. Yes, sir.” Mrs. Townes died in 1877, and the plaintiffs arrived at maturity, respectively, in 1892 and 1$93. So it did not appear in the evidence that Shaw ever had any possession of said gin and water power under said deed. It may have been that possession was never delivered because the consideration was never paid. But, besides this, how could the said water power, as established by the canal company for the benefit of Townes, as trustee, for Sallie V. Townes, his successors and assigns, be appurtenant to the estate of the then infant plaintiffs, when they had not consented, and by reason of tender years of infancy could not consent. It is true, the Court of Equity, on a proper showing, might have taken steps to affirm the contract made by Townes, as trustee, with the canal company, as one to the interests of the infants to continue, but there was no evidence of such proceedings.
6 But, finally, only parties and their privies can take advantage of an estoppel. 7 Ency. Eaw, 23. Shaw is not asserting an estoppel against the plaintiffs, nor is Townes, as guardian, by reason of said deeds. The defendant is not privy to the deeds now being considered, and cannot assert an estoppel against plaintiffs by reason of recitals therein.
*412The order of nonsuit is reversed, and the case is remanded for a new trial.