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Una 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 1869,4 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.6 In Delaware,6 Arkansas,7 Florida,8 and Oregon,9 statutes belonging to the Virginia system are in force, but there are no reported decisions of cases arising under them.
i1 Term. St. 1871, c. 10, §§ 1910- 8 Del. Rev. St. 1852 (ed. 1874), c.
1920. The statute was enacted almost 61, p. 348. A separate Act which has
in its present form in 1777. See Rev. been incorporated with the Mill Act
Laws Tenn. 1809, c. 23, p. 101; 1 provides that the owner of an upper
Rev. Laws, N. C. 1821, c. 122. mill, before voluntarily discharging
2 The appeal is triable de novo in an unusual quantity of water, is bound
the Circuit Court, and is not merely to give notice to the mill-owner below,
for review. Towson v. Debow, 5Sneed, and that for neglecting this duty he
193. shall be liable to double damages.
8 The Act authorizes such taking Ibid. § 3 (Act of 1819). This liability
only for grist-mills. If the petitioner is enforceable by an action on the
has any rights by virtue of a contract case. Mcllvaine v. Marshall, 3 Hav.
with the owner, he must resort to the 1; Ross v. Horsey, 3 Hav. 60.
ordinary remedies at law and in equity 7 Ark. St. 1874, c. 95.
to enforce them, and cannot enforce 8 McClellan's Dig. Laws of Fla. c.
them in proceedings under the statute. 152.
Harding v. Goodlett, 3 Yerger, 41. 9 Gen. Laws, Oregon, 1874, p. 679
* Ga. Laws, 1869, p. 114. (Misc. Laws, c. 37). 6 Loughbridge v. Harris, 42 Ga. 500.
p. 71, N. 6. Add Robins v. Ackerly, 91 N. Y. 98.
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 traversable. 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 uunavigable 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, H. 1. See Robins v. Ackerly, 91 N. Y. 98, questioning Lowndes v. Dickerson, 34 Barb. 586.
p. 336, N. 5. Add Julien v. Woodsmall, 82 Ind. 568.
p. 377, N. 6. As to remedy by information in equity in such case, see Attorney General v. Jamaica Pond Aqueduct Co., 133 Mass. 361.
p. 393, n. 2. See Red River Roller Mills v. Wright, 30 Minn. 249.
p. 398, N. 7. See Kensit v. Great Eastern Railway Co., 31 W. R. 603; Ormerod v. Todmorden Joint Stock Mill Co., 52 L. J. 445.
p. 401, N. 2. See Peter v. Caswell, 38 Ohio St. 518.
p. 418, N. 5. 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; Johhson v. SkiUman, 29 Minn. 144.
p. 550, x. 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. See Watson v. Trougton, 48 L. T. x. S. 508.
p. 581, N. 2. Add 16 Vin. Abv. 509, pl. 10.
p. 582, x. 3. After Marsh v. Trullinger. 6 Oregon, 356, add, See Blood v. Light, 31 Cal. 115.
p. 602, x. 4. (ad Jinem.) 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 Jinem.) See Thornton v. Turner, 11 Minn. 336.
p. 627, X. 2. See contra, that all damages are included in depreciation of value. C. R. I. & P. Railroad Co. v. Carey, 90 1ll. 514.
p. 632, N. 1. (ad Jinem.) That such cost should be considered, instead of permanent depreciation of value, see C. R. I. & P. Railroad v. Carey, 90 11l. 514.
p. 660, N. 1. See Brugger v. Butler, 0 Oregon, 459.
p. 666, x. 3. See Mullett v. Bemis, 100 Mass. 92.
p. 683, x. 2. (ad Jinem.) 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 bav. Olsen v. Merrill, 42 Wis. 203.
p. 698, n. 1. (ad finem.) Add Norris v. Hill, 1 Mich. 202.
p. 714, n. 1. That the statute of limitations on actions for damages does not extend to actions to enjoin or abate, see Cook v. Kendall, 13 Minn. 324; Thornton v. Webb, 13 Minn. 498.
p. 720, n. 1. That allegations must show injuries of such rights, see Norris v. Hill, 1 Mich. 202.
p. 760, 1st column of notes, after "proposition." Add, And see Trustees v. Tuttle, 30 Ohio St. 62; Venard v. Cross, 8 Kansas, 248.
p. 763, 1st column of notes, 4th line from bottom. With Bryan v. Burnett, see Dixon v. Eaton, 68 Maine, 542.
p. 770, N. 2. (ad finem.) So for injuries caused by dams erected to create artificial floods and float logs to market, the remedy is in case. Dubois v. Glaub, 52 Penn. St. 238.
p. 771, N. 3. (ad finem.) So the remedy under the Act does not extend to trespasses. Henley v. Wilson, 77 N. C. 216.
p. 772, N. 2. (ad finem.) See Tiarney v. Smith, 86 111. 391. A reservation in the Act of power of abatement does not exclude equitable jurisdiction therefov. State v. Bell, 5 Porter, 365.
p. 775, K. 1. Add Hooker v. Greene, 50 Wis. 271. But an amendment to the general Act amends such special Act. Id.
p. 784, N. 2. An assessment may be had by certiorari, if omitted from the proceedings. Phillips v. Commissioners, 122 Mass. 258.
p. 794, N. 2. (ad finem.) So on petition to abate water, there is no right to jury trial. But the court may take advisory verdict or report . Cocheco v. Strafford, 51 N. H. 455.
p. 385, 9th line. Omit "and Wisconsin."