
    Whitworth & Wife v. Puckett.
    January Term, 1846,
    Richmond.
    (Absent Brooke, J.)
    1. Mills— Erection — What Petitioner Must Show.- -On an application for leave to erect a mill or other machine, the petitioner must shew he has proceeded in the mode prescribed by law to suit his particular case.
    2. Same* — Same—Proceeding under Wrong Statute-■ Effect. — If the party applying for leave to build a mill, owns the land on only one side of the stream, the proceeding should be under the 1st, 3d and Sd sections of the act 2 Rev. Code, ch. 335; and if in such case he proceeds under the 4th section, the Court should quash the writ and inquisition.
    3. Same*-^-Same — Hore Laud Overflowed Than Jury Estimated — Effect.—If it appears upon the hearing of the case before the Court, that a greater quantity of the land of the adjoining proprietors will be overflowed than the jury estimated, the inquisition should be quashed, and a new writ directed to issue.
    529 *4- Same* — Same—Court Cannot Alter Damages. —The Court had no authority to increase or diminish the damages to the adjoining proprietors, assessed by the jury.
    5. Same* — Same—Rights of Applicant in Land Overflowed. — The applicant for leave to build a mill or other ma chine, is not entitled to the ownership of the land overflowed by the erection of the dam, upon paying the damages assessed by the jury.
    At the August term of the County Court of Dinwiddie, in 1843, William D. Puckett presented to the Court a petition, setting forth, “that he was the owner of a tract of land on Hatcher’s run creek, whereon he was desirous of erecting a grist mill.” Whereupon a writ of ad quod damnum was Swarded, returnable to the next Court. The inquisition taken upon this writ was quashed, as were several others of a subsequent date. Finally, an inquisition was returned in May 1844, by which the jury ascertained that Thomas Whitworth and EJliza his wife would be damaged 24 dollars, by the overflowing ol seven acres of land above the dam proposed to be erected.
    On the return of this inquisition to Court, a summons was issued to Whitworth and wife, to appear and shew cause, if any they could, why the leave should not be granted to build the mill and dam agreeably to the inquest of the jury. Whitworth and wife appeared, and opposed the building of the mill and dam ; but the Court overruled their objections, and made an order that Puckett have leave to build the mill and dam, agreeably to the prayer of the petition; and that he become seized in fee simple of the land found liable to be overflowed, upon his paying the valuation thereof to the parties entitled thereto. And it appearing to the Court, that the jury erred in their estimate of the quantity of land found liable to damage, it was ordered that Puckett should pay to Whitworth and wife the price of five and a half acres, in addition to that mentioned in the inquisition, at the same rate. Prom this order, Whitworth and wife appealed to the Circuit Superior Court for Dinwiddie county.
    *On the trial of the case in the Superior Court, it appeared that Puckett was the owner of the land on one side of Hatcher’s run, where he desired to build the mill and dam, and Whitworth and wife owned the land on the other side; that formerly there had been a mill and dam at the same place at which Puckett proposed now to build them, but that they had been permitted to go down and become useless as a mill more than seven years before Puckett’s application was made to the Court. And it appeared that the dam would cause twelve acres and a half of land to be overflowed, instead of seven acres. After hearing the evidence, the Superior Court reversed the order of the County Court; and made an order that Puckett have leave to build the mill and dam, agreeably to the prayer of the petition; and„that he become seized in fee of the land found liable to be overflowed, upon his paying the valuation, according to the finding of the jury, to the parties entitled thereto.
    To this judgment of the Court Whitworth and wife excepted; and applied to this Court for an appeal, which was allowed.
    David May, for the appellants.
    Joynes, for the appellee.
    
      
      See monographic note on "Mills and Müldams ” appended to Calhoun v. Palmer, 8 Gratt. 88.
    
   ALLEN, J.,

delivered the opinion of the Court.

The Court is of opinion, that although under the authority of Meade v. Haynes, 3 Rand. 33, as the application for leave to erect a mill or other machine may be ore tenus, no form is necessary, if the peti-*» tioner shews, at any stage of the proceedings, that the circumstances of his case justify his claim for leave to build the mill, it is still incumbent on him to shew that he has proceeded in the mode prescribed by law to suit his particular case. Where the petitioner owns land on one side of a water course, the bed whereof is the dividing line between *the lands of himself and any other person, the proceeding should be in conformity with the 1st, 2d, and 3d sections of the act 2 Rev. Code, ch. 235, for condemning one acre of land, on which to abut his dam. And if, on a proceeding under the 4th section of said act, it should appear that the petitioner did not own’the lands on both sides of the stream, and that he should have proceeded under the 1st, 2d and 3d sections of the act, as aforesaid,, the Court should not grant the leave to erect the dam, but should, quash the writ and inquisition. The Court is further of opinion, as it appears from the evidence in this case, the petitioner owned the land on one side of the stream only, the application for leave to erect the dam should have been overruled, and the inquisition quashed; and that the circumstance that a mill formerly stood at the same place, is not of itself, sufficient to justify the presumption that the petitioner was the owner of the acre formerly condemned for an abutment, if it ever had been condemned. Ror, as the milt had been rendered unfit for public use for several years before the application was made, the presumption, in the absence of all proof, would' be that the acre condemned had reverted to-the former owner, under the 6th section of said act.

The Court is further of opinion, that from the whole evidence, confirmed by the judgment of the County Court, it sufficiently appears that a greater quantity of land, the property of the .plaintiffs in error, would be overflowed than the jury estimated; and though the plaintiffs in error would have a right of action for any injury done to the land, not embraced in the estimate of the jury, when such omission and direct injury is made to appear in opposition to the finding of the jury, and the leave asked, the inquisition should be quashed and a new writ directed, instead of turning the proprietors round to a new action for this specific injury. The Court is further of opinion, that it was erroneous to direct *that the appellee should become seized of the land found liable to be overflowed; and that it was also erroneous in the County Court to allow for the additional damage, as the power to estimate and assess damages is confided to the jury alone.

Therefore it is considered that the judgment and order of the Circuit Superior Court be reversed and annulled; and that the plaintiffs in error recover of the defendants in error their costs, &c. And this Court, proceeding to give such judgment as the Circuit Superior Court ought to have given, it is further considered that the judgment and order of the County Court granting leave, &c. be reversed and annulled, with costs to the plaintiffs in error in the Circuit Court; that the writ and inquisition be quashed, and the cause remanded to the County Court, to award a new writ, and for further proceedings.  