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was a copy of the Illinois statute then in force.1 In 1855 the statute was altered.2 A copy of the petition was required to be served by way of notice; the ten days' period of notice was restored; and the clerk of court was required to summon the parties affected to show cause. By the code of 1873, now in force,3 the applicant is required simply to file his petition, describing all lands and naming all owners likely to be affected, whereupon the clerk issues an order including a copy of the petition, to be served by the sheriff as an original notice in beginning an action. A jury of twelve freeholders are then summoned, who are authorized to examine witnesses as well as view the premises, and the further proceedings and principal conditions upon which the right is granted are similar to those in other States in which acts of the Virginia system are in force. The defendants may file written objections to the report, and for proper cause obtain a new jury to re-assess the damages. Either party may appeal to the court where the proceedings are pending for the assessment within thirty days, and appeals are tried and disposed of as in civil causes.4
proving flowage of his land. Hill i\ .Ward, 2 Oilman, 285.
1 Iowa Ter. Sts. 1839, p. 34.3. This was re-enacted in 1843, with additions protecting mills and their appurtenances from diversion or injury, under penalty of treble damages. Iowa Ter. Sts. 1843, p. 437. The present statute provides for single damages. Code 1882, § 1205.
2 Iowa Laws, 1855, c. 92, p. 151; Revision of 1860, Title 11, c. 54, art. 4, p. 211.
• Code 1873, Title 10, c. 1, §§ 11881206; Code 1882, Id.
4 Code 1882, §§ 1114, 1264. It is not necessary that proceedings be had before the work is begun. They may be instituted while the work is in progress. Burnham r. Thompson, 35 Iowa, 421. Hut an action will lie at common law for damages caused by the work before the proceedings began. Watson Ik Van Meter, 43 Iowa,
76. Compare Indiana Statute, supra. The petition need not be verified. Signature by counsel is sufficient. Gammell v. Potter, 2 Iowa (Cole's ed.), 562. Under the later statutes, notice may be given to the defendant after the petition has been filed, provided it is given in sufficient time. Hoag v. Denton, 20 Iowa, 118. Under the former statute notice was required to precede the petition. Gammell v. Potter, 2 Iowa (Cole's ed.), 662. Where the first writ is quashed and a second one issues, no further notice is necessary. Burnham v. Thompson, 35 Iowa, 421. The defendant may plead and prove facts tending to show that the granting of the license would be unreasonable or not for the public benefit; but not niatters tending only to impeach the finding. The finding is conclusive until set aside. Misconduct of the jurors, and interference with them by the plaintiff,
§ 618. In 1824, the territory of Michigan adopted the Massachusetts Act of 1795;1 but in 1828, the portions of the Act relating to flowage, and the remedies therefor, were repealed.2 In 1865, a new statute was passed, which was precisely similar to that of Connecticut, passed in the preceding year.8 In 1871,4 the proviso that the court should add fifty per cent, to the amount of damages found by the committee or jury was repealed. In 1873,5 the act was revised and amended. The new Act more fully resembled that of Massachusetts. It required the hearing of pleas in bar to precede the inquest, and secured the rights of landowners who were not residents of the State, and persons under disability. A case arising under it was determined by the Supreme Court, in 1876,6 but in 1877 the act was held unconstitutional.7
§ 619. The statute in force in Nebraska, which took effect in 1873,8 is an adoption of the principal provisions of the later statutes founded on the Virginia Mill Act. Special provision is made for notice to. non-resident defendants by publication. In a recent case the Supreme Court held that a millowner will not be allowed to increase the height of his dam so as to injure the owner of a mill-site above, who has begun the erection of another mill.9
are grounds only for setting aside the inquest. For an improper assessment, the remedy is either a motion to set aside or the action for damages not provided for. Gammell v. Potter, 0 Iowa, 648. An order of court overruling a motion to set aside the verdict and quash the writ is appealable, though no judgment has been rendered. Burnham v. Thompson, 35 Iowa, 421.
1 2 Mich. Ter. Laws (1824), reprint, 1874, p. 192.
2 Ibid. p. 099 (1828).
» Mich. Laws of 1865, No. 304, p. 651.
* Mich. Laws of 1871, No. 66, p. 67; 2 Compiled Laws, 1871, c. 221.
6 Mich. Laws of 1873, No. 106, p. 486.
• In Fox v. Holcomb, 34 Mich. 298, the case concerned a dam across a navigable stream. The State constitution forbids the damming of such streams, except by authority from the supervisors of the proper county. The court held that permission of court in proceedings under the Act would not dispense with this authority, and that the petition must show that such authority had been obtained.
7 Ryerson v. Brown, 35 Mich. 333; ante, § 214.
8 Neb. Compiled Sts. 1881, c. 67, p. 355.
» Seeley v. Bridges, 13 Neb. 547.
§ 620. The statutes of Kansasi and Minnesota2 closely resemble each other. Their peculiarity is in prescribing an order in which the different amounts of damages assessed shall be paid. The assessments are made by three commissioners, and the method of review is by appeal to the court appointing them, upon which issues are made up and the case is tried and heard as a civil case, with the right of further appeal. Actions at common law for damages are limited to be brought within two years from the erection of the dam,3 and the courts are authorized to suspend proceedings in any action at law begun after the institution of statutory proceedings, until such proceedings are determined.
§ 621. The North Carolina statute4 differs from those of other States in prescribing two sets of proceedings. The first is begun by petition by the owner or projector of a mill to obtain permission to build the mill and dam and to acquire the land on the opposite side of the stream. The petition is
i Kansas Compiled Laws, c. 66.
2 Minn. Sts. 1878, c. 31. Rights acquired under the statute date from the beginning of proceedings. If at that time the petitioner has to any extent made improvement of the power with the bona fide intention to use it as a water-power, it is a "power previously improved," under § 16 of the statute. Miller v. Troost, 14 Minn. 305. An appeal from the award of the commissioners brings up to the District Court only the question of the propriety of the damages assessed. Therefore, a motion to set aside the order appointing commissioners, is not entertainable by the District Court. The appeal lies only after the entry of judgment. Turner v. Holleran, 11 Minn. 253. The petitioner cannot, after appeal and judgment, object to judgment in favor of an owner, on the ground that a mortgage on his interest, which existed prior to such proceedings, has been since foreclosed, and such owner's interest divested. It will be presumed in such case that damages were as
sessed on the basis of the mortgagor's interest only, and if the party instituting the proceedings omitted on the trial to prove the existence of such mortgage, he must excuse his omission before he can be relieved from the effects thereof. Siman v. Rhoades, 24 Minn. 25. The Act must be strictly complied with to give rights thereundev. Akin v. Davis, 11 Kansas, 580. The right of flowage acquired under the statute, does not include the right to flow a highway. Venard v. Cross, 8 Kansas, 248.
3 In Thornton v. Turner, 11 Minn. 336, it is held that until damage is occasioned the statute does not begin to run. See Eastman v. St. Anthony Co., 12 Minn. 137,143. This provision does not extend to actions to abate or enjoin a nuisance. Ibid. Cook v. Kendall, 13 Minn. 324 ; Thornton v. Webb, 13 Minn. 498.
4 Tourgee's Code, with notes, 1878, Part II., c. 5. See Battle's Code, 1873, c. 72. For the original Act, see Act of 1777, 1 Rev. Laws of N. Car. 1821, c. 122.
open to objection or answer, issues of fact being tried by a jury;i 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 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.
i Jones i>. Clarke, 7 Jones, 418. See Sumner v. Miller, 04 N. C. 088.
a 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 a 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 v. 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. Cav. 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 v. Harris, Phil. 1.rfiw, 322. /.. In Proci eciings to Recorer Jinma,jes. — The act causing injury is a tort. The statute has not changed its charactev. 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. Howeott v. Coffield, 7 Ired. 24. The mill-owner cannot escape liability by conveying his mill away. 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 v. Johnson, 5 Ired. 333. Injury to the health of his family, or healthfnlness 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 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, l'ugh 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 c. Stowe, 4 Jones, 516, Little c. 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 >>. lioane, 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, 0 Mo. 225. Possession alone is sufficient ground to support a petition for injuries done under the Act. Pace v. Freeman, 10 Ired. 103. A liiense by the plaintiff's ancestor is no bar to the complaint. It died with the ancestov. Bridges v. Purcell, 1 Dev. & B. 492. So twelve years' delay is no bav. 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, 0 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. 130. A description
§ 622. Tennessee at first adopted the original North Caro
of the mill in the petition, as a public mill or a mill for grinding for toll, is sufficient. Little v. Stanback, 03 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 v. Clark, 7 Jones, 418. As the statute forbids an injury to dwelling-houses, such injuries cannot be included in the inquestof damages. Burgess v. Clark, 13 Ired. 100. 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. 270, accord. If the dam is altered or taken down, this will be ground for reducing the annual damages on a writ of audita 1piecela. Gillet c. Jones, 1 Dev. & B. 330. (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 earlycase held that the jury, on appeal, must meet on the premises. Andrews v. Johnson, 1 Law Repos. 212. 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. .