#### Anthony and Another v. Lawhorne.

January, 1829.

(Absent Co Alter, J.)

Mills* — Application for Right to Build —Trial of Title to Land. — Tj. owning lands on both sides of a stream, asked leave of court to build a mill upon and dam across it ; it was found by Inquest, on an ad quod damnum, that lands In the possession of A. of the value of 35 dollars, would be overflowed; the court, on a hearing, being of opinion, that these lands belonged not to A. but to L. himself, granted *Tj.*leave to build his dam without paying any damages to A. Held, error ; for the right in the lands could not be thus collaterally tried.

Same — Same—Procedure When Title Doubtful. — In such case, leave should be granted, only on condition, that L. pay A. the damages assessed by the jury; and L. might build bis dam, at his peril, without paying them, and then defend A.’s action against him, on the ground that the lands overflowed are his own, and thus put the title directly in issue.

Continuances.† — Under what circumstances, it is error to refuse a continuance.

Lawhorne made application to the county court of Bedford, for leave to erect a water grist mill on Back-Creek in that county, he owning the land on both sides of the stream. The county court awarded him a writ of ad quod damnum. The jury, in their inquest, found, that about three acres of land, in the possession of Anthony and Lancaster, which they purchased jointly of the representatives of William *Leftwich, would be overflowed by raising the dam proposed by Lawhorne nineteen feet high ; and assessed the value thereof to 35 dollars. The writ and inquest being returned, the county court summoned Anthony and Lancaster to the next court, to shew cause, if any they had, against Lawhorne’s application. The record did not state, that the summons was served on those parties, or, in express terms, that they appeared. At the next term, the court made the following order: “On the motion of Isham Lawhorne, for leave to erect a water grist mill on Back-Creek, on hearing, it is the opinion of the court, that the said mill be established, the dam to be nineteen feet in height, without the payment of any damages by the applicant : it appearing to the satisfaction of the court, that the said Anthony and Lancaster in the report of the jury mentioned, or either of them, have no manner of title to the land, or any part thereof, which will be overflowed by the erection of the said dam, but that the said land belongs to the applicant.” From this order, Anthony and Lancaster appealed to the circuit court of Bedford.

The parties appeared at the first term of the circuit court, and on the first day of the term; and the appellants asked a continuance, upon an affidavit, stating that they had summoned two witnesses whom they deemed material, and who they believed were then in attendance, but that another material witness, one Lee, whom they had not summoned, but who had promised to attend, was absent. The court postponed the hearing till the third day of the term, to give the appellants an opportunity to take Lee’s deposition. It was taken accordingly. On the third day, the motion for a continuance was renewed, on the ground of the absence of one of the first mentioned witnesses, named Graves, who had been regularly summoned, and who was material ; and it was stated on oath, that, when the motion was made on the first day, Graves was one of the witnesses then alluded to and supposed to be in attendance, but that it was afterwards ascertained that he had been prevented from attending by the *illness of his wife.

The circuit court denied the continuance, because on the first motion, Lee’s affidavit was agreed to be taken by consent, as removing all objections to a trial during the term, and it was not disclosed by the appellants that they might not be ready after they should obtain the same. To this opinion the appellants filed exceptions, setting forth the facts as above stated.

The circuit court then affirmed the order of the county court; and the appellants appealed to this court.

The cause was argued by Johnson for the appellants, and Leigh for the appellees,

upon two points : 1. Whether the motion for a continuance was rightly overruled by the circuit court, or not? 2. Whether it was competent to the county court, in a summary proceeding like this, to try the title of the appellants, to the three acres of land, which the jury in their inquest had found to be in their possession?

*

Mills and Milldams. — The principal case is cited in Pitzer v. Williams, 2 Rob. 252; Upper Appomatox Co. v. Hardings, 11 Gratt. 5 ; Keystone Bridge Co. v. Summers. 13 W. Va. 492. See monographic note on “Mills and Milldams” appended to Calhoun v. Palmer, 8 Gratt. 88.

†

Continuances. — See monographic *note*on “Continuances” appended to Harman v. Howe, 27 Gratt. 676.

GREEN, J.,

delivered the opinion of the court. The only question upon the merits., is, Whether it was competent to the court, in this collateral way, to decide upon the question of title between the parties, and, in consequence of deciding that the land in question belonged to the applicant, to give him leave to build the mill without paying the damages assessed by the jury ?

This, I think, is decided clearly by the terms of the statute (2 Rev. Code, c. 235), which provides, that when one owning the lands on both sides of a stream, wishes to build a mill, he shall, without any previous *10notice to the owners of the land above or below, apply for a writ of ad quod damnum ; upon the execution of which the jury shall be charged, amongst other things, to examine the lands above and below of the property of others, which may be probably overflowed, and say to what damages it will be to the several proprietors ; and that, upon the return of such inquest, the proprietors or tenants of the lands so found liable to damage, shall be summoned, &c. And thereupon the court, if certain *specified consequences will not follow the erection of the dam, shall consider, whether, all circumstances weighed, it be. reasonable, that the leave to build the mill should be given or not, and shall give or not give it accordingly; and if given, shall lay the party applying under such conditions for preventing the obstruction of .fish of passage, and ordinary navigation, or for preventing any impediment to the convenient crossing of the water course, as to them shall seem right. And, thereupon, the applicant, upon paying to the several parties entitled, the damages which the jurors find will be done by the overflowing of the lands above or below, shall be authorised to proceed to erect such mill and dam.

From this summary of the provision of the statute, it appears, that, in cases in which leave is given to build a mill, the court is only authorised to impose conditions to preserve the passage of fish and ordinary navigation, and to prevent obstructions to the passage of the stream ; and here its discretion ends. It has no power to vary, by enlarging or abating, the amount of the damages assessed by the jurors, nor to determine whether they are to be paid or not, nor to whom they are payable. The statute, notwithstanding the leave given by the court, imposes upon the applicant, the duty of paying, to the persons entitled, the damages so assessed, as a condition upon which such leave is to be effectual for protecting him against the action of the person actually injured. Coleman v. Moody, 4 Hen. & Munf. 1.

If the court had given leave to build the mill, omitting to say any thing as to the damages, the applicant would have had his election to pay them, and thus avoid any question as to his right to erect the dam, or to build it without paying them, in which case, if sued by the appellants, he might have defended himself effectually, by shewing that they were not entitled to the damages assessed, because the freehold was in him. And thus the question of title would have been fairly tried, in a regular way, without any embarrassment. But the court having pronounced a judgment affirming *the title to be in the applicant, and therefore authorising him to build the dam without paying any damages, this judgment might be relied on by him, as a defence to an action by the other parties, either as establishing his right to the land, or as entitling him to build the dam without paying the damages. Whether he or the other parties were entitled, and whether this defence would or would not be available (and I incline to think it would not), it was improper in the court to. give this judgment upon a point not within the scope of their authority, and thus to interpose an obstacle to the assertion of the appellant’s rights against the appellee, in an action for the .nuisance done to thelands in their possession, and to which they claim title.

Upon this ground, I think, that the judgments both of the circuit and county courts should be reversed. And if there were nothing more in the case, this court now giving such judgment as the circuit court ought to have given, would give judgment that the appellee should have leave to build this mill, with a dam nineteen feet high, leaving him to pay the assessed damages or not, as he shall be advised. But we have not the evidence upon the merits, which the appellants alleged they had in their power, and which they were prevented from offering to the cir-, cuit court, in consequence of the refusal to continue the cause : in which, I think, the circuit court erred, the affidavit being sufficient to entitle the appellants to a continuance.

Both orders should therefore be reversed, and the cause remandedjto the circuit court, to be there heard upon such evidence as the parties may adduce, and to be disposed of as may thereupon appear proper.,'