Vason vs. The South Carolina Railroad. have paid the money. He must have put himself in a new situation, so that he would be damaged by the transaction, if it were set aside. The law does not make such a sale a legal one; it only declares that an innocent purchaser shall be protected, leaving the defendant in the fi. fa. to his remedy against the sheriff. It is a general rule that, to make an innocent purchaser, requires that the purchaser shall not only have bargained without notice, but he must have paid his money, or done some other act which makes it unjust to set up the rights of the equitable owner. Here the mistake was discovered before any harm was done, and the sheriff did right to refuse to complete the sale; the purchaser paid nothing, received no wrong, and it would be unjust and unfair to permit him to have the land, to the injury of the defendant. As it was never advertised for sale on the day it was sold, the plaintiff, the defendant, and all who would probably have been called, by the notice, to be present, were entrapped. We think, therefore, that the sheriff was right, and we affirm the judgment of the Court, on the ground that the relator had no right to demand the deed. Judgment affirmed. WILLIAM J. VASON, plaintiff in error, vs. THE SOUTH CAROLINA RAILROAD COMPANY et al., defendants in error. 1. The use of steam engines to draw trains of cars over the street railroad, laid down by the Augusta and Summerville Railroad Company, through Washington street, in the City of Augusta, is expressly authorized by Acts of the Legislature of this State, and by the contracts and ordinances of the City of Augusta, and being so authorized, the running of said trains cannot be abated as a public nuisance, under the Revised Code of this State, even though such use "tend to the immediate annoyance of the citizens in general. 2. Whether the Court of Equity will now restrain the unreasonable exer Vason vs. The South Corolina Railroad. cise of said privilege, so as to interfere with the ordinary use of the street by the citizens, as not within the scope of the privilege granted by the Legislature, and whether property holders upon the street, who are damaged by the use of the same, even within the scope of the legislative grant, may recover are questions which cannot be made in a proceeding to abate the use complained of as a nuisance, and upon these questions this Court expresses no opinion. Railroads. Municipal Corporations. Nuisance. Before Judge GIBSON. Richmond Superior Court. June Term, 1870. Vason made an affidavit that locomotive engines, drawing long trains of cars, then were and for a year before, had run on the railway located in Washington street, between Reynolds and Telfair streets, in the City of Augusta; that this was a nuisance "which tends to the immediate annoyance of" and works hurt, inconvenience and damage to "the citizens in general," whose business requires them to pass along or across said street, and who reside in or own houses near to and fronting on said street: 1st. By impeding and obstructing the free and common use of passage along and across said street, by the length and irregular movement of trains of cars. 2d. By shaking the houses, thereby breaking the plastering and filling the houses with dust and smoke. 3d. By disturbing the occupants by the noise of bells and steam, frightening animals drawing vehicles, etc. Said street is but sixty-five feet wide, and is one of the most ancient and populous streets in Augusta, and this running of locomotives, etc., endangers the lives of citizens, and has killed some, and decreases the value of all the property on the street. These trains and locomotives belong to the South Carolina Railroad Company, the Charlotte, Columbia and Augusta Railroad Company, and the Georgia Railroad and Banking Company. And he prayed the Mayor and Council to abate the same, as a public nuisance. Many minor questions arose on the trial, which throw no light upon the opinion. Vason proved the averments in his affidavit by "a cloud Vason vs. The South Carolina Railroad. of witnesses." The defense was, that by Acts of the General Assembly, the Mayor and Council of Augusta had a right to allow said street to be so used, and that it had contracted with said railroad companies, so as to permit such The acts, ordinances of the city, and contracts alluded to, were put in evidence. use. Vason contended that the Charter of Augusta (1798,) gave the City Council no power to grant the right to lay said track in a street, that the Acts relied upon was unconstitutional, because they made no provision for compensation to those injured by such use; that they did not contemplate the using of steam upon the railroad, and if it were contemplated the manner of its use and its results made it a nuisance. These two bars of iron constituting the railroad track, were in the middle of the street, without embankments or excavations, and passage across the street, etc., is only interrupted by the presence of the trains. The City Council decided that this was not such a nuisance that they should require its abatement, and dismissed the petition at Vason's costs. He carried the matter to the Superior Court, upon all the questions made below. The judgment below was affirmed, and that is assigned here as error. W. J. VASON. JAMES S. HOOK, plaintiff in error. This nuisance is abateable by the Mayor and Council of Augusta: 40 Ga. R., 87; R. Code sec. 4478. It was a public nuisance: R. Code, sec. 2949; 9 Ga. R., 425. Corporations take no power except by express grant: 4 Wheat. R., 626. Act of 1856 did not authorize these contracts. Power to decrease value of easements: 1 Redf. on Railways, 303. The fee of streets is in adjacent land owners: 1 Redf. on Railways, 300, et seq., 314; 2 Bouv. L. Dic., 551; 4 Serg. and R., 108; 4 Bacon's Abr., 408; 1 Bouv. L. D., 586; 1 N. H. R., 16; 1 Conn. R., 103; 1 Pick. R., 122; 1 McCord, R., 67; 2 Mass. R., 127; 3 Rawl's R., 495; 15 John's R., 483; 9 Serg. & VOL. XLII-41. Vason vs. The South Carolina Railroad. R., 33; Adams on Eject., 19-18. A right by law may be so used as to become a nuisance: Cooly's Con. Lim., 544, 547. W. T. GOULD, F. H. MILLER, A. R. WRIGHT, W. HOPE HULL, for defendants. This is a public nuisance, if any, and is abateable by indictment only: 28 Ga. R., 418; 15th 61, 62; 40th 87; R. Code sec. 2946 4478; 2 Gray, 54, 339. Owners of land on street whereof the fee is in the State have no right to institute such actions as this: 8 Dana, 289, 301, 307; 1 Allen, 190; 32 Conn. 579; 33 Miss. R., 128; 3 Bar., 459; 10th 26; 27 N. Y. R., 188. The City Council may grant such use if it do not unreasonably abridge public use of the street: 7 Barb., 508; R. M. Ch. R., 342. If authorized by law, no nuisance: 14 Conn. R., 565; 17th, 372; 8 Gill & J., 479; 4 Cush. R., 63; Railroads have right to use steam if contracts permit them to connect railroads; 12 Ind. R., 552; 37 Bar., 357; Act 21st March, 1864, sec. 9; Act Feb. 20th, 1869; 13th Bar., 646; 8 Dana, 289; 33 Ga. R., 601; Act of 56th Oct., 1870. MCCAY, J. 1. That the use of steam engines to draw trains of cars through Washington street, in the city of Augusta, thus connecting the various railroads entering the city at different points, is authorized by the contracts and ordinances of the city is not disputed. Indeed, it is too plain for dispute. The only question there can be on this point is the authority of the city to do this. It seems to us that this too is very plain. The Act of February 15th, 1856, authorizes the City Council to permit the connection of all railroads in the city, by common tracks, depots, or otherwise, on such terms and conditions as may be fixed by the City Council. The Act incorporating the Columbia and Augusta Railroad Company, authorizes it to construct a road to be used with steam, animal or other power, crossing the Savannah river and connecting with the Georgia Railroad: Provided, the consent Vason vs. The South Carolina Railroad. of the city authorities of Augusta be first obtained. And the Act of October 26th, 1870, in express terms, ratifies and confirms these several contracts and ordinances, by which the City Council has at various times and by various contracts and ordinances, permitted and sold this right to use the street railroad in the manner complained of. But even without this, assuming the chartered rights of these roads to connect through the city, much might be said in favor of the right of the City Council, under its general power over the streets and over nuisances in the city, etc., to allow the connection in this special manner, at least so far as to purge the act, when done, of any quality of a public nuisance, subject to abatement. 2. Without doubt, the use of steam locomotives, puffing, blowing, whistling, clattering and crushing through the streets of a city, or along a public highway in the country, comes within the definition of a public nuisance. It is an annoyance to the citizens in general. It is dangerous to human life, and requires constant care and watchfulness from all who are in the vicinity of it to keep free from damage from it. But there are two kinds of nuisances: public and private. "A public nuisance damages all persons who come within the sphere of its operations, though it may vary in its effects upon individuals. A private nuisance is one limited in its effects to one or a few individuals." Revised Code, 2946. For the latter, the persons injured have a right of action for damages. For the former, no such right exists, unless there be special damages to one in which the public do not participate. Revised Code, section 2947. The reason for this distinction is an obvious one. The public is the redresser of its own wrongs. What the public suffers from, the public may punish, or not punish, at its discretion. There may come more good than evil from it, and the public may see fit to permit it. But a private nuisance stands on a different footing. Each individual injured has his right of redress for the damages he has received. And even as to pub |