open to objection or answer, issues of fact being tried by a jury; but if granted, a commission of three freeholders is appointed by the court, whose duties are like those of commissioners under the Virginia Acts (omitting the inquest of damages to lands not taken, and of injuries to navigation and the passage of fish). The court has discretion to permit either the petitioner or the opposite proprietor to build the mill. The second series of proceedings is in the nature of an action by persons whose property is injured by the dam, to recover compensation, and is begun by summons and complaint, upon which issues of law and fact are tried and determined as in civil actions.2 If the mill-owner is insolvent or 1 Jones . Clarke, 7 Jones, 418. See Sumner v. Miller, 64 N. C. 688. 2 The former statute required a petition (see Mumford v. Terry, 2 Law Repos. 425), a hearing of the petition, including a trial by jury, if necessary; the appointment of ી second commission, to inquire, summon, and hear witnesses, and report; a hearing of objections to the report; and on appeal, a trial by jury, of issues made on the report, before reaching judgment. The assessment was to be of annual damages, and to be binding for five years, unless the dam and flowage should be altered. The payments for each year were collectable by execution to be sued out on the judgment rendered on the report. See Gillet r. Jones, 1 Dev. & B. 339. If the annual damages were found to exceed twenty dollars, the judgment was binding only for the year preceding. Battle's N. Car. Code, 1873, §§ 13-18. After the expiration of the five years, the damages for the ensuing year were recoverable only by a new petition. William v. Canaday, 11 Ired. L. 106. The present statute contemplates the assessment of annual damages, and limits the effect of a finding of above twenty dollars to the preceding year, but has repealed the five-year limit of § 15 (Code of 1873, c. 72) without fixing any other limit. a. Proceedings to Condemn. - The defendants have a right to appeal from an interlocutory order appointing four freeholders. Minor . Harris, Phil. Law, 322. b. In Proceedings to Recover Damages. The act.causing injury is a tort. The statute has not changed its character. Wilson v. Myers, 4 Hawks, 73. The liability for an act by several is therefore joint and several, and survives against the survivors. Ibid. It was formerly held that the liability did not survive against the heir. Fellow v. Fulgham, 3 Murph. 254. But the executors are liable for their testator's act under the statute. Howcott v. Coffield, 7 Ired. 24. The mill-owner cannot escape liability by conveying his mill away. t. Purcell v. McCallum, 1 Dev. & B. 221. Only one whose land is injured can maintain an action under the statute; but he may recover for any injury resulting from the overflowing of his land. Waddy . Johnson, 5 Ired. 333. Injury to the health of his family, or healthfulness of the property, resulting from such cause, is ground for recovery. Ibid.; Gillet v. Jones, 1 Dev. & B. 339. But such injury must result from the inundation of his own land. The plaintiff the judgment cannot be collected, the court has power to order the abatement of the dam or of the portion causing the injury as a nuisance. § 622. Tennessee at first adopted the original North Caro cannot recover for such an injury resulting from other parts of the millpond, and is confined to his allegations. Bridges v. Purcell, 1 Ired. 232. An intermittent injury, by flowage at certain seasons, is ground for recovery. Pugh v. Wheeler, 2 Dev. & B. 50. Where flowage is shown, the land-owner is entitled to nominal damages, though no actual damage is shown. Wright. Stowe, 4 Jones, 516; Little v. Stanback, 63 N. C. 285. The land-owner is entitled to have the question whether the flowage was an injury submitted to the jury; benefits which the land may have received from such cause are immaterial. Kimel v. Kimel, 4 Jones, 121. The land need not be overflowed to constitute an injury. A prevention of drainage is an injury. Johnston v. Roane, 3 Jones, 523. So the raising of the stream within its banks is an injury. Little v. Stanback, 63 N. C. 285. See contra, Hook v. Smith, 6 Mo. 225. Possession alone is sufficient ground to support a petition for injuries done under the Act. Pace v. Freeman, 10 Ired. 103. A license by the plaintiff's ancestor is no bar to the complaint. It died with the ancestor. Bridges v. Purcell, 1 Dev. & B. 492. So twelve years' delay is no bar. Griffin v. Foster, 8 Jones, 337. On the other hand, one injured by a mill need not wait till the expiration of the first year before bringing his action. But the past damages will be confined to the time during which the injury has existed. Cochran v. Wood, 6 Ired. 194. It was not necessary in proceedings to recover damages to serve a copy of the petition. A written notice of intention, served ten days before filing the petition, was sufficient. Cox v. Buis, 12 Ired. 139. A description of the mill in the petition, as a public mill or a mill for grinding for toll, is sufficient. Little v. Stanback, 63 N. C. 285. The jury appointed to try the issues on the petition for damages had formerly no right to assess the damages; that was the province of the commission. On appeal, the issues on the allegations must be submitted to the jury before the damages are inquired into. Jones. Clark, 7 Jones, 418. As the statute forbids an injury to dwelling-houses, such injuries cannot be included in the inquest of damages. Burgess v. Clark, 13 Ired, 109. The verdict is conclusive on damages up to the time when the verdict was rendered. Beatty v. Conner, 12 Ired. 341. The signatures of a majority of the commission to the report were sufficient to make it valid. See Frost v. Barnes, 47 Ala. 279, accord. If the dam is altered or taken down, this will be ground for reducing the annual damages on a writ of audita querela. Gillet v. Jones, 1 Dev. & B. 339. (See accord. Massachusetts and Wisconsin cases; supra, on Massachusetts Act.) But a temporary or accidental washing out of the dam will not be ground for reducing the damages. Beatty v. Conner, 12 Ired, 341. Irregularities previous to the verdict are no ground for dismissing an appeal. The trial must be had at bar in the Superior Court. Harper v. Miller, 4 Ired. 34. An early case held that the jury, on appeal, must meet on the premises. Andrews v. Johnson, 1 Law Repos. 272. On appeal the Superior Court may permit the sheriff to amend his return of the verdict, so as to set forth that they were sworn on the premises. Harper v. Miller, 4 Ired. 34. lina statute of 1777;1 and this statute with only minor changes is still in force. In its present form it provides for the condemnation of the acre upon the opposite side of the stream on which to abut the dam, but makes no reference to compensation for flowage or other damages to lands not taken. The proceedings are begun by petition, upon which a summons issues to the proprietor of the acre; and at the same time a commission of four freeholders is appointed to lay off and value the acre and report. The court may in its discretion permit either the plaintiff or the opposite proprietor to build the mill. An appeal lies from the order of the County Court to the Circuit Court.2 The statute contains the Virginia clauses protecting dwellings and their appurtenances, and other mills.3 § 623. In Georgia an Act was passed in 1869,* extending the provisions of an Act authorizing a railway company to take lands, to all persons desiring to build mills and dams; but it was shortly after held unconstitutional.5 In Delaware, Arkansas,7 Florida,8 and Oregon, statutes belonging to the Virginia system are in force, but there are no reported decisions of cases arising under them. 6 11 Tenn. St. 1871, c. 10, §§ 19101920. The statute was enacted almost in its present form in 1777. See Rev. Laws Tenn. 1809, c. 23, p. 101; 1 Rev. Laws, N. C. 1821, c. 122. 2 The appeal is triable de novo in the Circuit Court, and is not merely for review. Towson v. Debow, 5 Sneed, 193. 8 The Act authorizes such taking only for grist-mills. If the petitioner has any rights by virtue of a contract with the owner, he must resort to the ordinary remedies at law and in equity to enforce them, and cannot enforce them in proceedings under the statute. Harding v. Goodlett, 3 Yerger, 41. 4 Ga. Laws, 1869, p. 114. 5 Loughbridge v. Harris, 42 Ga. 500. 9 6 Del. Rev. St. 1852 (ed. 1874), c. 61, p. 348. A separate Act which has been incorporated with the Mill Act provides that the owner of an upper mill, before voluntarily discharging an unusual quantity of water, is bound to give notice to the mill-owner below, and that for neglecting this duty he shall be liable to double damages. Ibid. § 3 (Act of 1819). This liability is enforceable by an action on the case. McIlvaine v. Marshall, 3 Har. 1; Ross v. Horsey, 3 Har. 60. 7 Ark. St. 1874, c. 95. 8 McClellan's Dig. Laws of Fla. c. 152. 9 Gen. Laws, Oregon, 1874, p. 679 (Misc. Laws, c. 37). APPENDIX. Add Robins v. Ackerly, 91 N. Y. 98. p. 71, N. 6. p. 81, N. 3. Relief against exhorbitant wharfage cannot be had in the United States Circuit Courts, upon the allegation that the wharfage was intended as a duty of tonnage, the alleged intent not being tra versable. Transportation Co. v. Parkersburg, 107 U. S. 691. p. 82, N. 6. A State may impose a license fee, either directly or through one of its municipal corporations, upon ferry-keepers who live in the State, for boats which they run and use in conveying passengers and goods from a landing in the State across a navigable river to a landing in another State. Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365. p. 123, N. 4, and p. 143, N. 1. Compare Ravenswood v. Fleming (W. Va.), 28 Alb. L. Jour. 295. p. 161, N. 2. The same is held of a several fishery. Neill v. Devonshire, 8 App. Cas. 135. p. 189, N. 4. Add McKensie v. Mississippi Boom Co., 29 Minn. 288; Weaver v. Mississippi Boom Co., 28 Minn. 534. p. 193, N. 4. Add Backus v. Detroit, 49 Mich. 110. p. 198, N. 1. Add White River Log Co. v. Nelson, 45 Mich. 578; Buchanan v. Grand River Log Co., 48 Mich. 364. p. 246, N. 5. See accord., Escabana Co. v. Chicago, 107 U. S. 678. p. 330, N. 4. A riparian proprietor upon an unnavigable stream is entitled to compensation only for land taken, and not for the value of his right of fishery in the stream, when a town, which is authorized by the legislature for that purpose, makes improvements for the preservation and taking of alewives in a great pond and the waters connected therewith, of which his stream is a part, the act providing for the payment of all damages "sustained in any way by any persons in their property, in carrying into effect this act," and that any fishery so created should be the property of the town. Cole v. Eastham, 133 Mass. 65. p. 333, N. 1. See Robins v. Ackerly, 91 N. Y. 98, questioning Lowndes v. Dickerson, 34 Barb. 586. p. 336, N. 5. p. 377, N. 6. Attorney p. 393, N. 2. p. 398, N. 7. Ormerod p. 401, N. 2. p. 418, N. 5. Add Julien v. Woodsmall, 82 Ind. 568. As to remedy by information in equity in such case, see Water, when severed from land, and artificially stored, is private property and the subject of larceny at common law. Ferens v. O'Brien, 11 Q. B. D. 21. p. 531, with § 324, as to oral license to flow land. See 28 Alb. L. J. 144, 165; Johnson v. Skillman, 29 Minn. 144. p. 550, N. 5. A statute which forbids the discharge of polluting matter into any stream used as a source of water supply by any city or town, prevents the acquisition of a prescriptive right to foul a stream as against the city or town so using the stream. Brookline v. Mackintosh, 133 Mass. 215. p. 564, N. 5. p. 581, N. 2. See Watson v. Trougton, 48 L. T. N. s. 508. p. 582, N. 3. After Marsh v. Trullinger, 6 Oregon, 356, add, See Blood v. Light, 31 Cal. 115. p. 602, N. 4. (ad finem.) An agent maintaining a dam for his principal, and not himself having possession or control, is not chargeable for injuries caused by such continuance of the dam. Brown Paper Co. v. Dean, 123 Mass. 267. But on an indictment for maintaining a nuisance, such agency is no defence. State v. Bell, 5 Porter, 365. p. 620, N. 2. (ad finem.) See Thornton v. Turner, 11 Minn. 336. p. 627, N. 2. value. See contra, that all damages are included in depreciation of C. R. I. & P. Railroad Co. v. Carey, 90 II. 514. p. 632, N. 1. (ad finem.) That such cost should be considered, instead of permanent depreciation of value, see C. R. I. & P. Railroad v. Carey, 90 Ill. 514. p. 660, N. 1. p. 666, N. 3. See Brugger v. Butler, 6 Oregon, 459. See Mullett v. Bemis, 100 Mass. 92. p. 683, N. 2. (ad finem.) Injuries to the plaintiff by his own dam cannot be shown in bar or mitigation. The doctrine of contributory negligence does not apply. Clarke v. French, 122 Mass. 419; Brown v. Dean, 123 Mass. 254. So the plaintiff is entitled to free navigation though he himself obstructs the stream. Such obstruction cannot be shown in bar. Olsen v. Merrill, 42 Wis. 203. |