*1 to a compensation reasonable for his services. But jealous regard allowance should be made ‘with for the rights all Hyre v. Johnson, concerned’.” 107 W. 524. Va. decree, complained of,
The is reversed in far as herein affirmed; indicated but otherwise and the cause remanded proceedings. part; Reversed in in part; remanded. affirmed City Clarksburg Nathan G. McWhorter (No. 6684) April, 22, Submitted 1931. Decided June Sperry, Steptoe Guiher, Melvin & Johnson, G. M. James in error. cb Capia,n, Deem Moist defendant in error. Howard Litz, President:
Plaintiff, McWhorter, Nathan G-. obtained a verdict and against defendant, City of $450.00 of Clarks- injury (bordering burg, Fork West River County) Harrison a concrete Milford, dam wbicb it tbe West two maintains across river at one-balf This constructed miles below said land. dam was displace in 1922 mill dam stone and wooden *2 gristmill operate built a time. about to erected at the mill, process flouring' sawmill, planing A roller mill, and added This years, operated by power. in later same was water days thirty expira action was instituted than before the less years completion filling of from the con five and flowage rights plaintiff contends for the crete dam. The Virginia at Mill Acts of mill dam were condemned under the used or time of its construction and that was never flowage maintained as a dam. Defendant denies that owners, rights condemned, that the mill were so and asserts condemning maintaining original without dam flowage prescription, flowage rights, acquired general rights further, resulting flowage, and, to of by using flowage condemned, it, nevertheless, rights con storage purposes, dams for to the old and new flowage -extent of the such use the neiv tinue of dam contention of barrier. An additional the old flowage condemned a of court, in the trial .that his and the condemnor for mill would authorize storage purposes, maintain a in title to successors a of To abandoned. establish seems now plaintiff introduced in evi purposes, for mill condemnation County, county of Harrison dence; court order of the an of Jacob 1817, as follows: “On-motion August 22, dated to a dam petition application build Romine, and on his Monongahela River, abut to Fork River of the West across the driving Estlack, purpose of of Thomas lands Estlack machinery, Thomas gristmill a and other application. It is therefore this and consent to waived notice issue, quod directed to the a of damniom writ ad ordered that free-holders, nowise to summon twelve sheriff of this instant, 30th related, upon the said land on the to meet according and make to law same there execute the then and stating: “On return”; order, September an dated writ alias Romine it ordered motion of Jacob sheriff, meet on issue, directed to the to quod damnum ad rHrH month, day Jacob on tbe 20tb tbis then and to there execute according return”; the same lawto and make quod a writ of damnum, ad September dated 19, 1817, figures words and following: “The Commonwealth Vir ginia. To the Sheriff of County, Greetings: Harrison You hereby are you commanded empanel good twelve your lawful freeholders of bailiwick to meet on the lands Jacob Romine instant, River, the 20th on the West Fork you and that then and diligently lay there swear them off by metes and bounds and ascertain the acre value one of land on the River, West Fork the- of Thomas Estlack, whereon the said Jacob Romine wishes to erect an abutment purpose dam for the working water machinery, inquire and to what may be properties done to the of or lands above and below place where dam; the said Jacob wishes erect his said *3 also house, offices, curtilage whether the mansion gardens or overflowed, will be degree pas and whether in and what the sage ordinary navigation fo fish and may obstructed, be neighbors annoyed by whether the health of the will be the stagnation of the water in dam, occasioned said and their quest signed being so sealed, you together made return justices county court”; with this writ before the of our the report empanelled, of freeholders the as follows: “Pur annexed, we, jury, being suant to the writ hereto first the charged sworn according law, day Sep the on 20th of tember, 1817, being premises in mentioned, the the writ in required as the said writ we are to examine what of from in writ result the erection the dam the working aforesaid, for the of a water machinery River in on the West Fork mentioned -the writ aforesaid, the of Jacob Romine in land the said Harrison, of and the abutment of said dam on the lands of in opposite river, Thomas on the of Estlack side said say county aforesaid, passage of upon our oath do that damage neighborhood, fish will that not be obstructed as to stag will annoyed the health the inhabitants of offices, house, water, gardens, of nor mansion nation persons curtilage any person of or overflowed orchard or eight high; of raising the one acre dapn' feet against, will which have to abut said eight lying twenty river and of Thomas Estlack rods on the 1817, $1.00”; deed, rods wide we value at a dated June Lowther Clemans and Jacob Jesse and wife Samuel dis Romine, conveying (by of land courses and two acres County; tances) on West Fork River Harrison assessment 1819, of Jacob taxes to Samuel Clemans and Romine dollars; at for taxes two acres land valued ten assessment Coplin, acres to Samuel Jacob two Clemans and $2,050.00; September 20, 1853, deed, of land at a dated valued con Olphey L. Madsker from Samuel Clemans and wife to veying in the town West Milford two acres of land Property” West Fork River “known Clemans Mill as the oppo river bank of the and “one acre situate on the South “* ** site” thereto and the condemned at the instance same dam”; abutting his mill purpose Clemans for containing chain of title subsequent and several deeds similar recitals. showing acquired it had purpose
For tending flowage by prescription, adduced evidence 1912 or flouring operation in prove mill ceased that the or plaining mill in 1915 gristmill, sawmill and and the or 1916; repairs made to of the mills no they after had thus ceased dam for their maintenance old authority owner, maintained it, with operation; July municipal purposes from water for dam to store the old 19, 1919, acquired which time December at 31, 1913, to property; thereafter the other mill the dam and title to *4 for muni- dam to store water maintain the old continued to in construction of the concrete dam cipal purposes until the It buildings removed in 1925. 1922; the mill and that permited, to show the cessa- offered, but was not also indicated, became mills, as soon the or abandonment of tion community. in report the common insisting upon claim con- the city is still the If the the flowage rights for mill entitled demnation of storage in title maintain a his successors to and condemnor unhesitatingly owners, liability riparian we dam without given predicated condemn instruction “The tbereon. payment damages for upper assessed tbe benefit the proprietors is upon not the sole miller consideration which the receives flowage, the but there is the consid construct, equip, operate eration that he shall and for public. the benefit of If not, the he does the considera grant for his fails, upper proprietors ought and the to hold in bondage Jones, their lands to him." Gross (Neb.) 122 N. W. point 681. The main error is relied on granting the plaintiff of an instruction behalf of the as follows: Jury plaintiff “The Court instructs the the has a flowing through to himself of avail the and streams along drainage purposes to their ex fullest you by tent and if believe from the evidence that its ponded the defendant has the water of said streams along and plaintiff, ponded the land of the and that said height water the the water said streams has been raised along on and plaintiff the land of as a result thereof raising along plain the water on and said land tiff has interfered with the use of streams to their fullest drainage of his said land reason incident agricultural, farming trucking able use pur thereof plaintiff poses, then such recover herein damages any if shows, as evidence is shown dajm'age evidence, any, if any damages, such shall be included any damages-you plaintiff with find the is entitled if any, if damages, the measure of the whole including damage, any, separate all items of if shall fair value difference market of the entire farm imme diately injury its fair before the value imme market allowing diately injury special benefits, any, after the if any.” general benefits, agree but not ¥e cannot with counsel for this instruction does not direct jury plaintiff against to find for defendant to his its present storage maintenance of the dam, binding as we think it state. does so and therefore ignores prescriptive right. erroneous in that it the defense of “Binding ignore which defense, instructions the theories of scope or narrow its evidence, They are covered bad. *5 phases enough present of the must all material be broad they relate, conflicting must issues to which submit 72 W. Boggess, theories.” Va. Shires v. rights flowage
Is the evidence sufficient to establish offered mill condemnation? The records report of proceeding go further- than the condemnation no jury’s inquisition which does deal with the not judicial records, rights. Discussing proving the method of “If Evidence, Vol. section states: Greenleaf may ancient, and contents lost, record is is its existence recent, or presumed; but it be ancient sometimes be whether any proof proved like loss, after its contents not, by any secondary the case document, evidence, where does better evi nature, disclose existence of other and its of the It not whether the records dence.” is shown irregularly incom carelessly preserved, court were or It having explanation. plete been without records introduced relied will be observed also that the recitals the deeds evi only mill our conclusion that the refer to the site. flowage rights finding warrant dence does not opinion Moreover, were ever condemned. we are of original statutory period for dam for maintenance of the ¡mill purposes mill and their successors to entitled the owners general purposes extent that the its use for continue thereby riparian increased. of the lands was servitude Railway Company Hayden, & Western 121 Va. Norfolk privilege acquired is determined 118. “The of the * * * being And acquired. user while the actual owner) keeps long (the mill within the limits as he changes in acquired, may make such has he which he using rights as Farnham on he desires.” the manner of Rights, section 542. Waters and Water recovery case, plaintiff should With this view of flowage, any, damage additional due to be limited to dam. the new reversed, the verdict set aside The is therefore awarded. a new trial aside;
Judgment reversed; set verdict awarded. trial new *6 Rehearing UpoN DECEMBER 12, 1931. Matter oe Costs Chapter 138, (55-2-11, section 1931), Code 1923 Code provides every that in appellate in an court, case shall costs by party substantially prevail- recovered such court ing. contended behalf of defendant that it to costs because of the judgment reversal of the on an instruc- plaintiff fixing behalf improper damages. an basis of Plaintiff, hand, on the other contends that the instruction for which the was reversed was not intended to de- prive defendant of all defenses to the action and was jury, understood as evidenced its conservative find- ing. Plaintiff upon his cross-assignment relies error, upon improper based for defendant. instruction In view of the fact that the trial court was led into error parties, both clearly and that the evidence warranted ver- dict law as found Court, this we cannot say that party substantially either prevailed, and, has therefore, direct respective defendant bear their costs in this Court and the trial court.
Despina Papadaki Compensation John v. State
Commissioner
(No. 7042) September 2, Submitted September Decided 8, 1931.