The objection, in this case, to the Charge of the Court, is, that it ought to have been left to the Jury to consider, whether the water and the bridge over it, through which the waggon fell, amounted to a nuisance originally, when the bridge was first erected, and ought not to have been assumed as a fact. Because, if it were not originally a nuisance, it was not one at the time the accident happened for which this action is brought. If this conclusion is correct, I admit the Judge erred in his charge : but it cannot be admitted. It is true, if a bridge is thrown over a mad, where it stands *357¿11 need of it, by an individual, and the road is thereby rendered more convenient for the citizens at large, when that bridge falls into decay, that individual is not answerable for a nuisance ; but that is not a parallel case. in that case, the bridge was not erected for the purpose ©f covering a nuisance of the party’s own creating — in that case, the public are not in a worse situation when the, bridge rots down than they were before. In the present case, the bridge was built to cover and render innocent, the water thrown over the road by the Defendant’s mill-dam. When the bridge falls into decay, it is not as if there was no water under it. Although innocent at first, it afterwards became a nuisance. If no bridge had been erected over it, it would always have been a nuisance. It cannot be a less one when a useless bridge is over it. These remarks are made upon the ground that the bridge was erected ami the mill-dam built since that road was laid off as a public highway. This fact was submitted to the Jury, and they have passed upon it. I therefore think it a matter of no consequence whether the bridge, when originally erected, was a nuisance or not. I think it was one at the time w hen this cause of action happened, and that the rule for a new trial should -he discharged.
For the Defendant it is contended, tiiat if this bridge was a convenient one, that although an individual might ha\e created the necessity for its erection, and in fact erected the present one to obviate the inconvenience created by his act, that the county was bound to keep it in repair, and the individual exempt from liability for private injuries sustained thereby, and I presume also from public prosecution. By the iaw of England, the county is bound of common right to build bridges where necessary, and to repair such as have been built, unless they throw the burthen on another by law, as by tenure or prescription, or by act of *358Parliament, as in cases of some of the turnpike roads'. Allowing that the English authorities establish these pc sitions completely, I do not think that it would follow. ovcn j5ngjan(jy i hiit the individual would not be liable for a private injury such as this ; but if he were not, and if all the consequences of the original wrong were taken from him and thrown upon the county, because the bridge, had been used by the public, I think the case is far different in this country, and that, from the different policy as established by the Legislative authorities of the different countries. By the law of England, if a bridge is necessary, it must be built and kept in repair by some one, by the county, if they cannot shew that some one else is bound, and that by law, as by tenure or prescription, or an act of Parliament; and, therefore, it is no defence for the county to shew, that an individual, a mere wrongdoer, is bound, for peradventure be may not be able; for when by tenure the lands are bound, and prescription is a long acquiescence presupposing an agreement, and the act of Parliament is the law of th© land. In these three cases the county is excused, for they have substituted a responsible person in their stead ; and this is the reason that they have failed in all those cases where they attempted to excuse themselves by shewing that some other person at first erected the bridge; for the bridge must be kept in repair : and should an individual, even for bis own convenience, erect one, and the public use it, this usage is an evidence of its convenience, and therefore the County Court should repair j for the law imposes on the county the erection and repair of bridges in all cases where, necessary, and will allow of no excuse but those before mentioned. This suits the policy of a thickly settled and rich country : want of ability, as it is false in fad, will not be attended to. But our situation is far different; and wretched would be the situation of some countries, particularly new and poor ones, if such was the case.; and the Legislature *359here, lias therefore vested ia the County Court power of laying oft' roads, settling ferries, building and repairing bridges ; and if the law stopped here, perhaps it might be said, that the parties were liable to an indictment if they permitted bridges to be out of repair, or refused to order them to be built where necessary. But the Legis ■ 1 ature did not stop here ; they placed at their disposal, for these purposes, only limited funds, and if they go to the extent of the funds, they certainly are not liable. This is by no means giving up their interest, or, if you will, discretionary powers, which, if they do not inten ■ tionally abuse, Í think they are not liable. I therefore think, that the whole of the argument falls to the ground, and that the Jury were properly instructed in the Court below, and that the Judge below committed no error in not informing the Jury, that if the bridge was used by the public, the Defendant was thereby exonerated. Rule; for a new trial discharged.
Taixor, Chief-Justice, concurred.