Macon v. Owen

GOLTHWAITE, J. 1. The relative righls of different proprietors of the soil to the use of water flowing by the same [119] stream, through their respective domains, was considered by us in the case of Hendricks v. Johnson, 6 Porter, 472. In the case now to be examined, it appears that the plaintiffs occupy a position on the stream more favorable than is possessed by the defendant, inasmuch as they are nearer to its source. The former have, therefore, a right to a remuneration for the damages they have sustained by the act of the latter, in overflowing their mill, unless this right has been divested in the manner allowed by the statute. The defendant insists that such is the effect of the proceedings had in the Orphans’ Court of Macon county, on the writ of ad quod damnum, sued out at his instance. We think, however, that no right whatever, has been vested in him; and for two reasons: first, the inquest of the jury and the judgment of the Court, is entirely too indefinite. The inquisition returned with the writ, certifies that the jury examined a mill shoal, according to the order granted, and gave him leave to erect a set of mills on number seven, of township nineteen, of range twenty-five, in Macon county. The judgment of the Court is not more definite. It is perfectly clear that this grant, if avail-ble at all, gives to the defendant the privilege of erecting his mills at any plaee on the creek, within the compass of one mile, as that is the length of a section of land. We do not consider the statute as authorising the Orphans’ Court, to make so indefinite a grant. The 4th section of the act of 1812, which prescribes the mode to be pursued, when the applicant for the writ of ad quod damnum, is the owner of the land on both sides of the stream, refers to the first and second sections of the same act. These, when examined, are found to contain precise directions, with respect to the location of the abutments for the mill, where the applicant is not the owner of the lands on both sides. The jury is to view the lands proposed for the abutment, and to locate and circumscribe by certain metes and bounds, one acre thereof, having due regard to the interest of both parties. Ai-kin’s Digest, 324. We have already held, in the case before cited, that the act referred to, not only confers, but also divests rights ; and it is in many cases, of much importance, that the precise location of the mills proposed to be erected, should be ascertained, as otherwise, collisions might frequently happen [120] between contiguous proprietors, especially, when the descent of the stream is great within a short distance. The location then, in our opinion, should be ascertained, either in the inquest or by the judgment of the Court, with sufficient certainty of description, to enable a surveyor to find it. Second. The proceedings at the instance of the defendant, were commenced, by issuing the writ on the 7th day of September, 1836. This writ was returnable to the then next stated term of the Orphans’ Court, but was not then returned, nor was any further proceedings had on it by the Court, until the first Monday of February, 1837. In the mean time, the plaintiff's had proceeded without delay, and after the defendant might be presumed to have abandoned his application, by reason of his delay in prosecuting his writ. We entertain no doubt that the prior application, if prosecuted without delay, would have conferred the right; indeed, it was so determined in the case oí Hendricks v. Johnson, before cited; but here, the defendant voluntarily abandons his writ, and can have no claim now to be considered as having first appropriated the statutory right. It may be remarked, that the inquest taken at the instance of the plaintiff's, designates the location of their mills at the lower shoal on the creek, in the south half of section six. This leads to the conclusion that the Circuit Court erred in instructing the jury that the right of the defendant was superior to that of the plaintiffs. For this error, the judgment is reversed, and the case remanded.