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bama, Mississippi, Missouri, Indiana, Iowa, and was formerly in force in Illinois; the provisions protecting navigation and the passage of fish were formerly in force in nearly all the States which adopted the Virginia statute, and are now in force in Kentucky, West Virginia, Mississippi, Missouri, and Nebraska ; and that on navigation is in force in these States and in Indiana.1
$ 612. The principal differences in the Kentucky statute 2 are a provision for further notice to persons not notified and not attending the inquest, and for holding the cause over in court, for them to appear ;3 a provision saving the rights of persons under disability from forfeiture for failure to complete their works in three years;4 an omission of the special Virginia provision for the reversioner when the life tenant fails to complete his works in time; and a new section which invests the Circuit Court with power to revoke the permission and abate the dam, upon the presentment of a grand jury, in case public or private injury results from failure to comply with the conditions imposed.5
$ 613. The West Virginia statute 6 provides that the proceedings shall be according to the general statute on emi
1 See, infra, citations of the stat containing the greater portion shall utes of these States. The fact that a have jurisdiction. By the Act of 1797, spring of water for domestic use will the application in such case was ree be injured is a sufficient reason for quired to be to the court of the county refusing permission to erect a dam. where the proposed abutment would Only a great public necessity will be placed. Dotson v. Sibert, 4 Bibb, justify such an injury. Morgan v. 464. Banta, 1 Bibb, 579; Trabue r. Mack- 3 The Act does not require the lin, 4 B. Mon. 407; McDougle v. Clark, owner of property injured to be sum7 B. Mon. 448; Payne v. Taylor, 3 moned unless he resides in the county, Marsh. 328. A spring-house is pro- or has a known agent. Cowan v. tected as an out-house, within the Glover, 3 Marsh. 357. statute. Willoughby v. Shipman, 28 4 The forfeiture provision does not Mo. 55.
apply to cases where the owner of the 2 Ky. Gen. St. 1879, c. 77. See mill owns the land on both sides of the St. Feb. 22, 1797 —“An Act to re- stream. McDougle v. Clark, 7 B. duce into one the several Acts con- Mon. 448, 452. cerning Mill Dams and other Obstruc- 5 The Kentucky statute does not tions in Watercourses.” 2 Lit. & apply to or authorize the taking of Swig. Dig. Ky. St. 938. The statute lands in cities or towns. O'Bannon v. provides that where the lands lie in Jackson, Sneed, 201. two counties, the court of that county 62 Kelly's St. 1879, c. 91, SS 29–36.
nent domain, for the appointment of commissioners or impanelling of a jury. Their duties are, however, substantially the same as those of the jury under the Virginia Act. All the restrictions imposed by the Virginia Act are retained.
$ 614. In 1812 the Mississippi Territory passed a statute which was in effect an adoption of the Virginia statute then in force, but providing for an inquest by a jury of seven freeholders, and omitting the provisions for the protection of navigation and fish; and this act was the basis of the present statutes in both Alabama and Mississippi.2 These changes remain a part of the present statute of Alabama.3 In 1822 Mississippi adopted a new statute, which restored the protection of navigation and fish, and required a jury of twelve freeholders. These provisions are contained in the present statute of Mississippi. The present statute of Alabama requires the court, on the return of the inquest, to summon the owners of the lands to be affected, to show cause against granting permission; provides for a hearing, and, in effect, a new trial by the court upon the report of the inquest, and “any other evidence”; but if the conditions of the statute are complied with, and none of the forbidden results seem likely to follow, the application must be granted.5
1 2 Kelly's St. 1879, c. 79. The pro- to take lands, to enter upon lands ceedings are begun by petition in writ- and waters of others for the purpose ing for the appointment of five com- of erecting booms for the purpose of missioners, four of whom constitute a stopping and securing boats and rafts, quorum for holding the inquest. If a and for a determination of the comjury is asked by either party, a writ of pensation due for such injuries, see ad quod damnum issues. The report Acts of West Va. 1877, c. 121, p. 178. may be set aside, recommitted, or con- 2 Statutes of Mississippi Territory firined. If the petitioner pays into (Natchez, 1816), pp. 345 et seq.; Tuolcourt the amount of damages assessed, min's Dig., Laws of Alabama, 1823, p. although after the report is set aside, 624. he may proceed to take and use the 3 Ala. Code, 1876, part 3, Title 3, c. lands without hindrance, paying into 17, $$ 3555 et seq. court or receiving back the difference 4 Miss. Rev. Code, 1824, p. 336, c. between the amount paid and that of 65: Miss. Rev. Code, 1880, c. 27, the second assessment. The title to $$ 924 et seq. lands condemned vests on confirma- 5 It is the duty of the judge to try tion of the report and payment of the the cause anew. Rushton v. Martin, damages assessed. For a statute in- 42 Ala. 555. That he has no discrevesting boom companies with power tion, see Hendricks v. Johnson, 6
The damages assessed must be paid within three months after the granting of the application; and a failure herein operates as a revocation of the grant. The payment vests a conditional fee of the lands in the applicant, to become absolute on the completion of the works within three years, if begun within one month from the date of the permission. One erecting or enlarging a dam, without authority, is made liable to pay double damages to any one injured thereby, and to prosecution, if the dam proves a nuisance.1
$ 615. The original Missouri statute, passed in 1823,2 was substantially a copy of the Virginia Act then in force. It contained in addition provisions saving the rights of persons under disability, from forfeiture for non-completion of their works; and in case of such non-completion within three years, it authorized any other owner on the stream to build works under the Act, having damages to the former works assessed, and paying them; imposed a penal liability to double damages on persons maintaining dams without authority, and declared such dams nuisances. The present statute 3 is the result of several revisions and amendments of this Act. It describes the procedure minutely, requires the petition to contain a description of the lands to be affected and the works proposed, an abstract of the petitioner's title, and a statement of the residences of the persons affected. Such persons are given permission to file objections to the report and show cause, but the court is not required to summon them before it. The court is given power to prevent the erection of dams which would injure lawfully existing mills, upon petition by the owner of such mills. The privilege of
Porter, 472. The Mississippi statute ficient. Frost v. Barnes, 47 Ala. 279; also requires such parties to be sum- and see Austin v. Helms, 65 N. C. 56. moned to show cause, but invests the 1 Ala. Code (1876), $ 3577. judge with discretion to decide upon 2 2 Rev. Laws of Mo. 1825, p. 587. all the circumstances. Miss. Rev. 3 Mo. Rev. St. 1879, c. 132, pp. Code, 1880, $S 926, 928. It is not 1259 et seq. necessary that the finding should be 4 Mo. Rev. St. 1835, pp. 405 et seq.; unanimous. If their return be signed 2 Mo. Rev. St. 1855, c. 112, pp. 1081 by a majority of the jurors, and other- et seq. wise conforms to the statute, it is suf- 5 This provision gives a remedy
maintaining a dam is to cease, in case the dam should obstruct any improvement of navigation undertaken by the State. On failure of the grantee to complete his works in three years, other owners on the stream may take the benefit of the Act “without incurring any liability on account of backing water on such dam.”
§ 616. The remedy in Indiana is by the writ of ad quod damnum, called “writ of assessment of damages," and the statute 1 is based on that of Virginia. It authorizes the taking of land for raceways; describes the procedure minutely; requires all persons affected to be made defendants; provides that, on objection by the defendant to the report, or plea in bar of the right, issues shall be made up, and the case proceed to trial, judgment, and execution, as a civil case. In case of an application by any person, after having erected his mill-dam, no damages shall be allowed, and the application shall be dismissed, unless the case be such that leave would have been given to build a mill, if the application had been filed before the erection of the mill-dam.?
only in cases in which a mill or other other, the court may exercise its dismachinery, or a dam which has been cretion, and grant permission to the erected in pursuance of the Act, is in- one which will cause least damage to jured by the subsequent erection of a individuals. The title of the plaintiff dam or obstruction under the same cannot be placed in issue by one not Act. Arnold v. Klepper, 24 Mo. 273. claiming title himself. Arnold v. KlepThe deepening of the water in the chan- per, 24 Mo. 273. nel of a stream is in itself no ground 1 Ind. Rev. St. (1881), SS 881-900. for damages. Injury must be done to (Code of Civil Procedure, article 30.) land or property to be ground for For the original Act, see Laws of Ind. compensation. Hook v. Smith, 6 Mo. Ter. (1807), p. 194, closely following 225; contra, see Little v. Stanback, 63 the Virginia statute. N. C. 285; confer Johnston v. Roane, 2 This section is new. By former 3 Jones (N. C.) 523. The verdict may decisions it had been settled that one be objected to by any person who con- who erected a mill-dam without first siders himself injured by the building applying for a writ could not afterof the proposed dam, and the court wards avail himself of the statute. must hear the evidence offered if rel- Smith v. Olmstead, 5 Blackf. 37; evant. Groce v. Zumwalt, 4 Mo. 567. Summy v. Mulford, Ibid. 113, 202. See Hunter v. Matthews, 12 Leigh But in Wright v. Pugh, 16 Ind. 106, (Va.) 228. In Hook v. Smith, 6 Mo. the statute was held to authorize the 225, it was held that when conflicting writ in every case where the mill applications are made on the same was erected prior to assessment. The day, or within a few days of each present statute, S 883, pl. 9, author.
$ 617. The first Iowa territorial statute, adopted in 1839,
izes any person injured by a mill-dam at different seasons. Chapman 9. already built, to have the damages as- Groves, 8 Blackf. 308. sessed or the dam declared a nuisance, ILLINOIS. — The Virginia Mill Act as the case may require. A dam was adopted by the Territory of Illiwhich has been enjoined as a nui- nois at an early date (Laws of Indiana sance may be rendered legal by pro- Territory, 1807, p. 194 (including Illiceedings upon the writ afterwards, and nois); 2 Laws of Ill. Terr. 1815, p. a plea to the inquest alleging in bar 456); was re-enacted by the first legissuch former injunction is insufficient. lature of the State (Laws of III. 1819, Peck v. Van Rensselaer, 8 Blackf. 312. p. 265); and, with minor changes, reA person applying for leave to build mained in force until 1872. (Rev. St. a dam acquires the right, under the 1845, p. 378; Gross, Ill. St. 1871, c. permission, only as against those who 71, p. 442. By the revision of 1827, were notified as required by the stat four weeks' notice in writing of the ute, and whose lands the jury find application was required, and notice will probably be affected. The pro- to owners mentioned in the inquest, to ceedings are not a lis pendens consti- show cause. The protection to navituting notice; and actual notice will gation and fish was omitted. Ill. Rev. not bind persons not notified. Lane Laws, 1827, p. 297.) By the Act of 1. Miller, 17 Ind. 58. An appear- 1872 this method of procedure was ance in court and objection to the in- abolished, and that authorized by the quest, on the merits merely, is a waiver statute upon eminent domain substiof notice. Wood 2. Wilson, 12 Ind. tuted. This is by petition, and an 657. Such appearance waives a formal assessment by a jury of twelve freedefect in the oaths of the jurors. holders. (Ill. Pub. Laws, 1871–72, p. Ibid. The assessment of damages is 563; Rev. St. 1883, c. 92. For statute reviewable by the court to which the on eminent domain, see Rev. St. 1883, inquest is returned, and may be set c. 47.) The Act of 1872 requires a aside if too high or too low, and publication of notice of application for another assessment ordered. Chap- sixty days, and personal notice to all man v. Groves, 8 Blackf. 309. The persons interested, whose residences question is for the court. Peck v. are known. Provisions protecting exVan Rensselaer, Ibid. 312. If an issue isting mills and mill-sites were reis raised upon the inquest as to the tained; those protecting dwellings, amount of damages, it must be dis- appurtenances, and gardens were omitposed of by the court before an order ted. There is but one reported case of confirmation is entered. Wood v. in which the statute is shown to have Wilson, 12 Ind. 657. Where a dam been invoked, and then only incidenhad been built before the writ was is- tally. In an action on the case for sued, but damages were assessed with- injury to the plaintiff's mill by the out objection, and the court gave erection of a dam by the defendant judgment on the assessment, and or- on his own land, the plaintiff showed dered that, on payment of damages that he had built his dam by permisand costs, the petitioner should “have sion of court, obtained by proceedings leave to continue his dam, and to flow on the writ of ad quod damnum. The said lands as they were flowed by said court held that, while the defendant dam at the time of said inquest," it was had a right to erect a dam upon his held that the order was not open to own land, he had no right to injure objection by the petitioner for failing the plaintiff; and that the plaintiff to provide for different stages of water could recover nominal damages on