9 Gratt. 94 | Va. | 1852
This was an application on behalf of the appellee, S. M. Galiahue, to the County court of Jackson, under the act of assembly, for leave to erect a dam across Big Sandy creek in said county, for the purpose of working a water grist mill and saw mill. The applicant claimed to „be the owner of the banks on both sides of said creek, at a place specified, and prayed a writ of ad quod damnum for the purpose of erecting such mills and dam on said lands. The writ was awarded, and an inquest taken, which was returned to the court. The appellant, Thomas Mairs, and four other persons named, appeared in court, and upon their motion were admitted as defendants to contest the application ; and they moved the court to quash the proceedings ; which motion was overruled by the court; and the defendants excepted. They also moved the
Several objections have been urged in this court to the regularity of this proceeding, which will be noticed in the order in which they were taken.
The first objection is, that the petition sets forth that the applicant “ owned the banks” on both sides of the creek, instead of alleging that he “ had the fee simple property in the land on both sides of the stream.” The petition in this case was, as it properly might have been, ore tenus; Mead v. Haynes, 3 Rand. 33; and the terms in which its purport and effect are noted on the record should not, perhaps, be the subject of very nice criticism. The terms “ owner of the land,” “ having the fee simple property in the lands,”
It is argued that a river properly consists of water, bed and banks; and that if one own the banks only, he does not own the water or the bed. The act, however, does not speak of property “ in the bed” of the stream, but only in the land on both sides ; and it has long since been decided that where the applicant owns the land on both sides of the stream, the presumption is that the bed of it belongs to him also, and therefore it is unnecessary for him to set it forth in his application. Wroe v. Harris, 2 Wash. 126 ; Neale v. Cogar, 1 A. K. Marsh. R. 589. I think there is nothing in this objection.
The next is, that the petitioner states he desired a writ of ad quod damnum to issue for the purpose of erecting a water grist mill, &c., whereas the statute says, “ when any person desiring to build a water grist mill,” &c. The difference is merely verbal and not material, the party’s intention to build a mill, &c. being sufficiently and plainly expressed.
It is contended that the inquest is defective, and exception is taken both to its frame and structure and to the language in which it is expressed. It may be true that it is not drawn with very great clearness or precision, nor according to the rules of grammatical con
Upon their application for a continuance of L ± r # case, the contestants did not show any sufficient reason to entitle them to it; and if they had, still they had ample opportunity of offering, and perhaps did offer, the testimony of the witness, Dr. Adams, on the trial in the Circuit court; and the want of his testimony on the trial in the County court cannot now be the subject of complaint here.
With regard to the testimony of the physicians and others, touching the probable injurious effects of the erection of the dam on the health of the neighborhood, set out in the second bill of exceptions taken on the trial in the County court, it may be said to be at least very unsatisfactory. But however that may be, the Circuit court afterwards passed upon that question, upon full evidence, and to its opinion upon it no exception has been taken. And as the County court and the Circuit court were both satisfied upon that point, this court can but take it for granted that the proofs showed the health of the neighborhood would not be annoyed.
It is objected that the judgment of the court giving leave to erect the dam, by the provision which it contains requiring the applicant to keep a ferry boat at the crossing of the road, shows that the effect of the dam would be to drown a ford, and that for that reason the leave should not have been granted. And the case of Morgan v. Banta, 1 Bibb’s R. 579, is referred to in support of the position. It is true the opinion of the court in that case was to the effect, that if, on an application to build a dam, it appeared that the neighborhood was already sufficiently supplied with mills, the fact that a public road was likely to be obstructed by it would be a sufficient reason for refusing the application. But it is to be observed that the Kentucky
It is true, exception is taken to the terms in which the duty of keeping a boat is prescribed, and it is urged that it is made a duty merely personal to Gallahue himself, and does not extend to his heirs or alienees. And it is asked, how long is it to last ? And if Gallahue die or alien the property, who is bound ? Again, it is said, that the order of the court does not prescribe the kind of boat to be kept; whether a flat boat, skiff or canoe ; and though it requires the applicant to keep a boat, it does not require him to ferry the public over. It may be questioned whether this is not rather a matter of police regulation, within the
Upon the whole case, I am of opinion that the record shows no error to the prejudice of the appellant, and that the judgment of the Circuit court should be affirmed, with costs to the appellee.
The other judges concurred in the opinion of Lee, J.
Judgment affirmed.