#### *Hunter v. Matthews.

January, 1843,

Richmond.

mils and nilldams -Judgment—Validity of.*—A judgment granting leave to the proprietor of the lands on both sides of a stream to erect thereon a mill and dam, is valid and sufficient, though the record floes not set forth to whom the bed of the stream belongs, and though the owner of the land which the inquisition finds will be overflowed had no notice of the time of making the application for the writ of ad quod damnum, or oi the time of executing the same.

Same--Same—Same—Ownership of Damaged Land.— Where, upon an application to a county court for leave to erect a mill and dam, the inquisition iinds that a certain quantity of land not belonging to the applicant will be overflowed, and assesses damages to the proprietor, it is erroneous for the judgment granting' leave to erect the mill and dam, to provide, that upon payment of the damages so assessed, the land overflowed shall become vested in the applicant in fee simple: and upon appeal to the circuit court by the proprietor of theland. that courtmust reverse the judgment with costs, though the appellee himself suggest the error and move that it be corrected.

Same—Jury of Inquest—Communication with—Setting Aside Inquisition.—The jury impaneled under a writ of ad quod damnum awarded on an application for leave to build a mill, having found difficulty in agreeing upon the damages to be assessed for the overflowing of certain land, it is announced by the sheriff that they are not likely to agree in a verdict; whereupon the applicant requests that the jury will make another effort to come to an agreement, saying the business is a tedious and troublesome one, and he is willing to pay whatever damages they may think reasonable. A juror then states, that the other jurors wish to assess an amount of damages which he himself thinks too large, and that he is unwilling to concur with them, unless the applicant will consent to pay the damages; and he puts the question to the applicant, whether he is .willing to pay the amount (naming it) which the other jurors have fixed upon? The applicant replies that he is; and this i uror thereupon concurring with the others, the inquisition is completed. The communications aforesaid take place openly, before the sheriff and all the jurors, as well as other persons assembled; though the owner ol the land to be overflowed is not present at the taking of the inquisition. HíüjD, this is not such an interference of the applicant with the jury, as to make it proper to set aside the inquisition.

On the 9th of August 1841, the county court of Campbell, on the application (ore terms) of Washington *Hunter, “setting forth that he is the owner of the land on both sides of Archer’s creek in the county of Campbell, where he proposes to erect a water grist and saw mill *and*dam,” made an order that a writ of ad quod damnum be awarded him, returnable to the next term of the court, the jury to meet on the 19th day of the sad month of August.

The writ of ad quod damnum was accord*318ingly issued, and an inquisition taken in the usual form: whereby it was found, that the applicant might erect a dam across the creek at the place proposed, of the height of 22 feet, and that the health of the neighbourhood would not be annoyed by the stagnation of the water, but that five acres of the land of Edwin Matthews would be overflowed; for which damages were assessed to the amount of 239 dollars 81 cents.

At the return of the writ and inquisition, it was ordered that Matthews be summoned to shew cause why Hunter should not have leave to build the mill and dam. The summons being issued and served upon Matthews, he appeared at December term 1841, and was entered defendant to the application. The cause was continued from time to time until April term 1842; when Matthews moved the court to quash the writ of ad quod damnum, on the grounds, 1st, that neither the writ, nor the record awarding it, stated that the land at the bottom of the stream across which it was proposed to erect the dam belonged to the applicant or to the commonwealth; and 2dly, because the defendant had no notice of the time of making the said application. He also moved to quash the inquisition, because he had no notice of the time when the same was taken. The court overruled both motions, and the defendant filed a bill of exceptions to the opinions overruling the same. Whereupon, on consideration of the inquisition, and on hearing the examination of sundry witnesses on behalf of the plaintiff and defendant, and all circumstances being weighed,” *the court ordered, that Hunter have leave to build his mill and dam pursuant to the inquisition; that he become seized in fee simple of the five acres of land therein mentioned, upon his paying to the defendant the sum of 239 dollars 81 cents, the valuation thereof found by the jury; and that he recovered against the defendant his costs about his,motion expended.

Matthews appealed from the judgment to the circuit superior court of Campbell. In that court no evidence was adduced by either party as to the ownership of the bed of the watercourse. There seemed to be no controversy on that point. But on the questions, whether the amount of damages assessed to Matthews by the inquisition was sufficient and whether the health of the neighbours, particularly the health of Matthews and his family, was likely to be annoyed by the stagnation of the waters in the mill pond, numerous witnesses were examined on both sides; and there was great discordance in their testimony. This court, it will be seen, was of opinion that upon the whole the evidence justified the finding of the inquisition and the judgment of the county court in those particulars. The only part of the testimony which it is material to set forth related to still a different matter, and was to the following effect.

John Rosser, the deputy sheriff who took the inquisition, being examined as a witness for the appellant Matthews, deposed, that after the jury had agreed (which they did without difficulty) upon the damages for overflowing the land of Matthews, they differed in opinion as to the damages which ought to be awarded him for stopping up his road, and attempted to come to an agreement by putting down the amount which each juror was willing to assess, and dividing the aggregate of all the assessments by twelve. When the result was ascertained, which the witness thinks was something upwards of 80 dollars, Eariss, one of the jurors, said he was not satisfied ; that the damages were too low. * After some conversation among the jury, they concluded that they could not agree upon a verdict, and leaving the place where they had been consulting, came up to the rest of the company some 40 or 50 yards distant. Witness announced that the jury would not probably agree upon a verdict. Hunter then remarked, that he should be much pleased if the jury could agree upon a verdict, as it was a tedious and troublesome business; that he was willing to pay whatever damage they might agree upon: and he requested the jury to retire again, and make another effect to agree. The jury did accordingly retire, and again attempted to come to an agreement by the same method as before. On this second trial, the aggregate of their estimates divided by twelve amounted to something upwards of 100 dollars. After this result .was ascertained, David Pugh, another of the jurors, refused to concur in a verdict for that amount of damages, saying it was too high. The jury thereupon returned to the company, and Pugh stated in the presence of Hunter, that the jury were not likely to agree unless Hunter was willing to pay the amount of damages which the eleven other jurors wished to assess; that he himself (Pugh) would not sign a verdict for more than 100 dollars for the road, unless Hunter would consent to pay it. Hunter said, he was willing to pay any damages which the jury thought fair and reasonable. Pugh then asked him if he was willing to pay the sum (naming it) which the other jurors had agreed upon? He said that he was. Pugh thereupon concurred with the other jurors, and the inquisition was completed; the damages for overflowing the land and for the road being added together, -and the aggregate inserted in the inquisition. Hunter did not interfere with the jury in any other way than as above mentioned; and every thing said or done by him on the occasion was public, and in the presence of the sheriff and the whole jury. ^Testimony in substance the same with that of the deputy sheriff was given by two other witnesses examined for Matthews, of whom the juror Eariss was one. Fariss, proved also that Matthews was not present when the inquisition was taken.

On the 27th of April 1842, the parties ap*319peared in the circuit court, and it being suggested by the appellee Hunter, that an error was made in the form of the judgment and order of the county court, in providing, that on the payment of the damages which had been assessed by the jury of inquest to the appellant Matthews, for the five acres of his land to be covered by the appellee’s proposed pond, the said five acres of land should become vested in fee simple in the said appellee ;* ‘ ‘on the motion” (the record states) of the appellee by counsel, that error is now corrected by this court.” The court then proceeding to consider the case upon the evidence adduced and the arguments of counsel, delivered the following opinion and judgment:

“The court is of opinion that the interference on the part of the appellee Washington Hunter, and the remarks made by him to the jury of inquest on the day on which they met to execute the writ of ad quod damnum, and the influence thereof on the jury, and the conduct of the jury, which are disclosed and set forth in the evidence, vitiate the verdict and all the subsequent-proceedings had in pursuance of said writ of ad quod damnum; and without considering any other question in the case, or intimating any opinion whatever on the merits of the controversy, it is therefore considered by *the court, for the reasons above stated alone, that the judgment of the county court be reversed and annulled, that all the proceedings in that court, back to the awarding the writ of ad quod damnum, be set aside, and that the appellant recover against the appellee his costs about his appeal in this behalf expended, and his costs about his defence in the county court expended. And it is further ordered that the motion of the appellee Hunter be sent back to the county court for further proceedings to be had therein.”

On the petition of Hunter, a supersedeas was awarded to the judgment of the circuit court.

Cooke, for the plaintiff in error,

maintained that the interference of Hunter with the jury of inquest, as shewn by the evidence, was in no degree improper, and did not warrant the judgment of the circuit court. Upon the merits, he said, the evidence greatly preponderated in favour of the application.

Garland, contra,

insisted that the inter-, ference of Hunter was improper, and that the judgment was sustainable on that ground. But however that might be, there was another ground on which the circuit court might properly have made the very same disposition of the cause. The petitioner had neither stated in his application, nor offered any evidence to shew, in whom was the title to the bed of the watercourse on which he proposed to erect his dam. Unless the property of the bed were in himself (wholly or in part) or in the commonwealth, the leave he asked could not properly be granted. This was an essential ingredient of his title, and ought to appear on the record. Richards v. Hoome, 2 Wash. 36; Home v. Richards, 4 Call 441; Martin v. Beverley, 5 Call 444; Mead & others v. Haynes, 3 Rand. 33.

He submitted, without argument, the other objections taken in the county court to the writ and inquisition. *Upon the evidence, he said, it was most probable that the millpond would injuriously affect the health of Matthews and his family, and that the damages awarded to Matthews were insufficient. Under such circumstances, the application ought not to be granted.

Cooke,

in reply to the objection that it did not appear to whom the bed of the stream belonged, cited and relied upon Wroe v. Harris, 2 Wash. 126, as directly in point to the present case. In the cases cited by the defendant’s counsel, the applicants did not own the lands on both sides of the stream. According to the opinion of judge Green in Mead & others v. Haynes, and the universal practice of the country, no form is necessary in making the application to the court; it may be made ore tenus, and the applicant may shew, at any stage of the proceedings, that the circumstances of the case justify his claim for leave to build the mill.

*

“Mills and Mllldams- Erection of Dam—Eminent Domain—Constitutionality of Statute.—See *foot-note*to Mairs v. Gallahue, 9 Graft. 94. The principal case is cited in Varner v. Martin. 21 W. Va. 546. See mono graphic *note*on “Mills and MiHdams” *appended to*Calhoun v. Palmer. 8 Gratt. 88; monographic *note*on “Eminent Domain” appended to James River *&,*Kan. Co. v. Thompson & Teays. 3 Gratt. 270, and monographic *note*on “Constitutional Daw” appended to Commonwealth v. Adcock, 8 Gratt. 661.

*

2 Rev. Code, ch. 235, § 6, p. 227, provides, that “ if the party applying- obtain leave to build the said mill, machine or engine, and erect the said dam, he shall, upon paying respectively to the several parties entitled, the value of the acre located” (see Id. § 2, p. 22fi), “and the damages which the jurors find will be done by overflowing the lands above or below, become seized in fee simple of the said acre of land, and be authorized to proceed to erect such mill, machine or engine, and dam.’’—Note in Original Edition.

The judgment of the court of appeals was as follows:

The court is of opinion that the judgment of the said circuit superior court is erroneous ; therefore it is considered that the same be reversed with costs. And this court proceeding to give such judgment in the premises as the said circuit superior court should have given, it seems to the court here that the county court erred in deciding that the plaintiff should become seized in fee of the land overflowed, upon payment of the damages found by the inquest : therefore it is further considered that so much of said judgment as directs that the plaintiff should become seized in fee of the land overflowed be reversed and annulled, and that the residue thereof be affirmed; and that the defendant recover against the plaintiff his costs by him expended in the prosecution of his appeal in the said circuit court.