46 Ky. 448 | Ky. Ct. App. | 1847
delivered the opinion of the Court.
This appeal brings upan order of the County Court of Christian county, granting to Isaac Clark the privilege of erecting a mill and dam on the west fork of Red river, upon his paying ten dollars, the value of an acre of ground, the property of McDougle, condemned by the inquest; and also $7 50 assessed by the inquest as damages to be occasioned by the overflowing of three-fourths of an acre of McDougle’s land. ■■ -
The grant of this privilege is opposed by McDougle on two principal grounds : 1st. That the proposed dam will entirely destroy a spring'on the margin of the creek, á few yards only above it, the use of which he claims to be important to the occupants of his adjacent farm ; and, 2d. That it will entirely destroy the use of his own dam. and mill situated within one hundred yards above th© proposed scite of the new dam. Pie insists that these certain consequences of the exercise of the privilege granted to Clark, either constitute an insuperable objection to the grant, or require, as a pre-condition to its operation, that he himself, should be compensated for the injuries which they imply, the entire omission of which compensation, is alledged to be an important error in the proceeding, even if the privilege should have been grant-
It appears that when the jury acted under the writ of ad quod damnum, the place claimed as a spring was covered by the creek, which was then flush, and it does not appear that McDougle, who lived in the State of Tennessee, and at some miles distant from the premises in question, had any notice either of the application or of the holding of the inquest, until after the writ was returned. These facts are only important as tending to show that the interests, of McDougle may not have been fairly presented to the jury, or fully considered by them, and thus to free the question as to the extent of the injury done to him in respect to his spring and dam and mill privilege, from the weight of any inference which might be drawn from the silence of the inquest in relation to it.
The principal question in the case is, whether the failure of McDougle, for near two years, to commence the re-building of his mill, and his declarations previous to Clark’s applying for the privilege, importing that he did not intend to rebuild, authorized the County Court to disregard.entirely, both his claim of privilege and his dam and mill, as they actually existed before and at the time •of granting the .privilege to Clark. The 6th section of
But it is said in effect, that the dam and mill of Mc-Dougle, besides being of little or no value, exist without any right on his part, and do not answer the public requirements, and that, consequently, their actual existence
But we have not been convinced and do not admit that McDougle’s present mill, though not commenced until more than one year after the old one had been burnt, nor until after Clark’s application had been made, is to be regarded as existing against or without right, and as not being entitled to the protection of the law. A privilege had been granted for erecting the mill and dam as early as 1811, and although they may not, in fact, have been erected nearer than half a mile from the point designated in the grant, they were, in fact, erected or commenced in 1811, and have continued ever since, until the mill was burnt, (with some injury to the dam and forebay,) in the spring of 1844; and in March, 1846, the small mill was erected, which has been in operation since. The application of Clark was made in February, 1846; the writ of ad quod damnum was returned in March, when a summons against McDougle was ordered, which does not appear to have been executed until April; and at the May Court the order was made granting to Clark the privilege to build a mill.
Whether the mill was originally built under the order of 1811 or not, its legality, after a continued enjoyment of 33 years, must be assumed. The mill undone of the abutments of the dam, were on the land owned by the party who erected them, and the dam was extended
Th.e; 14th section, of the statute declaring as the consequence of a neglect for more than, one year to re-build a mill, the 'reverter; of the condemned acre of land to its former, owner, does not literally apply to this state of case, because Mc-Boug.le owned' five acres on which his d'am abutted' on the one side, and near 300'acres on the other., • And this provision can have no other operation in such-a case, but that which is clearly indicated as its object, viz:, to authorize the County Court, in-obedience to t-he public exigencies, and in view of all' the circumstances of the case, to grant the privilege to-another, if the previous grantee unreasonably neglects the service which is the real consideration of the grant.. The- same section imposes the same- forfeiture of the condemned acre, in case'of a failure to, commence the mill in the first instance in one year, and' to complete it in three, or to keep it in.good repair afterwards. But surely this would not authorize the Court,, without regard to other circumstances, to-grant the privilege to another, with the effect of destroying, not only the first privilege, but whatever may have been done and'expended under it. The Courtis to act reasonably and with discretion, in view both of the-public necessity or convenience and of the private injury; and .although the fact that a man has. an advantageous site for a mill which he has never attempted to appropriate in that, way, and that it will be destroyed by granting the privilege to another, is entitled to no considera
In the present case, the remaining dam of McDougle, though requiring repair, is not in such a condition as to be without value, or useless in the preparation of a useful mill, casual declarations importing a disinclination to incur himself the expense of re-building, indicating the apprehension that the former mill had been burnt down to injure hirn, but implying a continued assertion of the right, and an expectation that the mill would be re-built, are not evidence either of a waiver or of an entire disregard of the public interests, which, as we have said, do not imperiously require a mill at that place. The fact, that up to the commencement of the present proceeding, his purchase of the property made in-1842, was not completed by conveyance, and probably not by full payment, and that the title remained in the infant heirs of the former owner, whose right is saved by the statute, may form some excuse for the delay in commencing or providing for the re-building of a proper mill. And this proceeding itself, which threatened to destroy the entire value of his privilege, and of whatever he might attempt to do under it, accounts for and excuses the character of the slight structure and inefficient machinery which was hastily put together in March, 1846, and which being in truth nothing more than a makeshift to preserve his right, should not be regarded as a compliance with his duty and the objects of the statute, but only as evidence of his intention to comply, and thus to preserve his privilege. We
Without laying any stress upon the circumstance which as it is argued, should have prevented Clark, in consequence of his connection with the title and the purchase of McDougle, from attempting to defeat his privilege, we are of opinion, for the other reasons advanced herein, that his privilege and his property connected with it, could not properly be disregarded when this application was granted, and that they at present, constitute such an obstacle that the privilege should not have been granted to Clark, without making compensation to McDougle, at least to the extent of the actual value of his present mill and dam, But as by the present decision, McDougle’s privilege will be established, we are of opinion, that in analogy to the requisition and in accordance with the object of the statute, it will be incumbent on him, in order to preserve his privilege, to proceed in good faith, within a year after this case returns to the County Court of Christian, to put his dam and mill in such a condition as will be substantially serviceable, and will promise to meet the wants of the public. The present mill is not of that character.
With respect to the spring, we need only say that although the evidence with regard to its use and quality is very contradictory, and although we are inclined to the opinion that it is a seap from the dam above, and is little better than the water in the creek by its side, and has not been habitually relied on for domestic purposes, it is still of some value as a spring, and its loss should have been •compensated in -establishing the mill below it,
But upon the whole case, we are of opinion that under the existing circumstances, the grant of the privilege to Clark, upon payment of the two sums named in the order, was unreasonable.
Wherefore, the said order granting leave to Clark to build a mill and dam below and near McDougle’s darn, is reversed, and the cause is remanded with directions to overrule his application.