6 Mo. 225 | Mo. | 1840
Opinion of the Court delivered by
Hook, and Smith each, on the 20th day of March in the year 1839, presented a petition to the circuit court of Saline county for leave to build a mill dam acrosá Lamine river in said county of Saline, and in each case a jury was directed to view the premises and make their return to the court.
The jury assessed damages, on Hook’s petition, to the amount of ten dollars by inundation of the land of Smith.
In the case of Smith’s petition, the jury returned that no land would be inundated, and that no injury would be done to any body by the erection of his dam.
Hock filed objections to the erection of a dam by Smith, and Smith also filed objections to the erection of a dam by Hook.
The court overruled the objections made-by Hook to the erection of a dam by Smith, and made an order that Smith have leave to erect a dam ten feet high across the river; and refused permission to Hook to build a,dam.
In I he bill of exceptions is this statement.
It was known by the judge of the court, and so stated by him, that the petition of Smith was presented, and the older made for the writ prior in point of time, on the day the court made the order in each case for a writ of ad quod dam-num. It was proved by the objector, Il-ok, that upon the erection of a dam by the applicant Smith as prayed for, it would overflow the site prayed for upon which to erect his dam, and render such site of no value to him; that it yras '
On the side of Hook it is contended, that his site being the-highest up the stream, and Smith not being able to raise a dam as high as the order of the court permits him, without overflowing the site of Plook, his petition ought to have been, postponed to that of Hook.
It is obvious that either Smith or Plook must yield his pre-tentions to the privilege of building.
If Smith’s pretentions must yield to those of Hook, because he is higher up the river, some one immediately above Hook might claim the preference of Hook, and so on to the head of the river: nobody could have a mill, if it were an objection that another, whose site would be overflown by the lower dam, wished to build; for it must be recollected, that skill ar¿d capital can make a site/or a mill on any river.— But the Law makes no account of damage done to one owning the bed of the river, because the water is deepened in the channel by the erection of a dam below. It is when the banks are overflown, and the adjoining lands are inundated, that damages are allowed to the owner of those lands.
Ey .the finding of jury it appears, that the dam petitioned for by Hook would cause the water to inundate the land of Smith, which in law is esteemed an injury; whereas the dam petitioned for by Smith only deepens the water in the channel which the law accounts no injury. Supposing each mill site of equal value to the public, this was reason enough to justify the court in granting the petition of Smith and in refusing to grant that of Hook.
\ make no account of the circumstance that Smith’s petition was filed a few hours before the other, or even a few ¿}ayg would have been a matter of indifference in my view,
Both cases were considered by the court at the same time, and very propeily at the same time.
The damage assessed to Smith by the jury, on Hooks petition, is so very small, that had the court decided in Hooks favor, I should not have been disposed'to disturb its judgment. But the court having decided in favor of Smith, by the erection of whose dam no injury is done to any body by inundation, 1 am of opinion, that the decision of the court ought to be affirmed. In this case Judge Napton does not sit, and the other Judge differing in opinion from me, the judgment of the circuit court is affirmed in each case,