
    
      Pitzer v. Williams.
    
      August, 1843,
    Lewisburg.
    (Absent Cabell, P„ and Brooke, J.)
    Mills — Ad Quod Damnum — Application tor — Ownership of Applicant — Notice*—To Whom Given — Proprietor. — A person owning real estate died intestate, leaving a widow and children; and dower not being assigned to the widow, she continued in the mansion house and the plantation thereto belonging. Under the act in 2 R. C. of 1819, -ch. 235, § 1, p. 225, notice was given to the widow as the proprietor of the land, by a - person desiring to- build a machine useful to the public, and to abut his dam against the said land, that application would be made for a writ of ad quod damnum: and the writ was accordingly awarded, and an inquisition returned. After which, one of the heirs, who resided on the -plantation with his mother, being made a defendant on his motion, moved the court to dismiss the case, upon the ground that notice of the application ought to have been given to him as one of the proprietors; but his motion was overruled. He then offered to introduce evidence to prove that the applicant did not own the land on which he proposed to erect his machine: but it being proved that the applicant was in possession of the land, claiming title to it, and had built a house thereon, the court refused to permit the evidence so offered to be introduced. ■ Held, there is no error in these proceedings. For it was sufficient that the person making the application was in the actual possession and occupation' of the land on which the machine was to be built; and that the person to whom the notice was given was the tenant in possession and appeared as the visible owner.
    At a court held for Alleghany county on the 21st of October 1839, Elisha B. Williams, produced a notice in these words: “Mrs. Jane Pitzer. Being the owner of a lot of land on one side of Jackson’s river, the bed whereof belongs to the commonwealth, and being desirous to erect a carding machine upon the said lot, and to erect a dam across the said stream for working the same, and to abut such dam against 242 your lands upon *the opposite side of said stream, you will please take notice, that on the 21st day of October 1839, I shall make application to the- county court of Alleghany, then to be holden at the courthouse thereof, for a writ of ad quod damnum, to ascertain what damages you will sustain by reason of the premises, and such other matters ■ as are directed by the act of assembly in such case made and provided; and shall thereupon move such proceedings as the law directs, in order to. obtain the leave of said court to erect such machine and to build said dam. Yours &c. Elisha B. Williams. September 29, 1839.”
    It was proved that a copy of this notice was delivered to the said Jane Pitzer on the 8th of October 1839: whereupon the case was docketed and continued.
    On the 21st of January 1840, the defendant moved to quash the notice for error apparent on the face thereof; which motion was overruled; and leave was then given the plaintiff to file his petition, which he accordingly filed in these words:
    “To the worshipful the county court of Alleghany. The petition of Elisha B. Williams respectfully represents, that your petitioner is the owner of a lot of land lying on Jackson’s river at the town of Coving-ton in said county, on which he has erected a carding machine, which has heretofore been in operation to some extent, and has proved greatly beneficial to the public. Your petitioner finds it necessary, in order to the successful operation of said machine, to erect a dam across the river, and to abut the same against the lands of mrs. Jane Pitzer, opposite to his aforesaid lot. He believes that a dam one foot high would be sufficient to answer his purpose, and that such a dam could do no material damage, either to the lands of mrs. Pitzer, or to any of the proprietors of the lands above or below, and that it could not prove a public annoyance in any way. Your petitioner has obtained the consent of the 243 ^president and directors of the James river and Kanawha company according to law, and prays that your worships will award him a writ of ad quod damnum, and that such other proceedings may be had in the premises as the law requires, to authorize him to erect a dam of the foregoing' description.
    Elisha B. Williams.”
    A writ of ad quod damnum was accordingly awarded and issued, and an inquest returned, which set forth that the freeholders viewed the lands proposed for an abutment, and located and circumscribed by metes and bounds one acre thereof, and appraised the same at one dollar; and that they examined the lands above and below, both of the said Jane Pitzer and others, and believed the erection of said dam to the height of one foot, where it was proposed to be erected, would do the proprietors of such lands no damage, by overflowing or in any other manner. They also responded to the other enquiries directed by the statute, in the following’ terms: “The mansion house of no proprietor, nor the offices, curtilage, gardens nor orchards will be overflowed; the fish of passage will not be obstructed; ordinary navigation will be somewhat obstructed, which may be prevented by leaving an opening of eight feet in said dam, which may be closed by a plank or piece of timber, only at such times as it may be needed for navigation; and we are of the opinion that the health of the neighbours will not be annoyed by the stagnation of the water.”
    A summons was awarded against Jane Pitzer, to appear and shew cause why leave should not be given to build the dam; which summons was returned executed.
    In this state of the cause, it was removed by certiorari to the circuit superior court.
    On the 23d of April 184-1, Robert Pitzer applied to be made a defendant in the 244 cause; and it appearing to *the court that he was one of the heirs of Bernard Pitzer deceased, and was living with the defendant on the land upon which, the plaintiff proposed to abut the dam, he was admitted a defendant; but the order provided that the trial of the cause was not to be delayed thereby.
    On the 24th of the same month, the court, on consideration of the inquisition and the evidence adduced, and all the circumstances, ordered that the said Elisha B. Williams have leave to build the said dam, leaving such a sluice as was mentioned in the inquest of the jury, and providing for the passage of fish; and that he become seized in fee of the acre of land mentioned in the inquisition, upon his paying the valuation thereof and the damages found by the jury, to the several parties entitled, thereto.
    Several bills of exceptions were filed. The first set forth, that before the trial of the cause, the defendant Robert Pitzer proved by testimony, that Bernard Pitzer, the father of the said Robert, was in his lifetime seized of the said land, and that he the said Bernard Pitzer died intestate, leaving a widow, Jane Pitzer, and the said Robert and others his children and heirs: that the widow Jane Pitzer, defendant in this proceeding, continued to occupy the mansion house and plantation belonging thereto, of which the acre of land condemned in this case is a hart, from the death of her husband until the commencement of this proceeding, and still continues to do so: that the said Robert Pitzer, during his minority and after he arrived at the age of 21 years, up to the institution of this application, resided at the same place with his said mother Jane Pitzer, and is still living there by her permission and consent : and that the said Jane Pitzer had never had dower assigned her in the lands of which her husband died seized. Upon' these facts, the defendant Robert Pitzer contended that he was one of the proprietors of 245 the land aforesaid, *and that he ought to have had notice of the application, and also of the other proceedings in the case; and he moved the court to dismiss the case, because he was not made a party at the proper time, and had not had notice of the application. But the court, being of opinion that the said Jane Pitzer, the widow of the said Bernard Pitzer, not having had dower assigned her, was entitled to the possession of the said mansion house plantation, and was the tenant of the said land until such dower was so assigned, (she having actually held it since the death of her husband, and the said Robert only living on it by her consent and approbation) refused to dismiss the case for the cause aforesaid.
    A second bill of exceptions stated, that on the trial of the causfe, the defendant offered to introduce verbal evidence tending to prove that the lot of ground upon which the plaintiff has erected his carding machine had been dedicated by dr. James Merry to the public. But it being proved that the plaintiff had possession of the said lot of land, and had built a house thereon, the court refused to hear the said evidence.
    A third bill of exceptions stated, that the defendant offered a record of a chancery suit decided in the circuit court of Alleghany on the 22d of September 1835, in the name of Hugh Eynch and others against Robert Skeen and others, as evidence tending to prove that dr. James Merry had dedicated the strip of land upon which the plaintiff has erected the said ca"rding machine house, to the public, as an easement, common way, &c. But it being proved that the plaintiff Williams is in possession of said land, claiming title, and has built a house thereon, the court refused to permit the said record to be introduced.
    246 *Other bills of exceptions set forth, that the plaintiff gave in evidence an act of the general assembly of Virginia passed on the 30th day of March 1837, entitled “an act to authorize Elisha B. Williams to erect a wopl-carding machine on Jackson’s river near the town of. Covington in the county of Alleghany,” (Sess. Acts of 1836-7, p. 250, ch. 302,) and also offered an extract from the record of the proceedings of the James river and Kanawha company, in the words following to wit: “Ata stated monthly meeting of the president and directors of the James river and Kanawha company, held in the city of Richmond on Saturday the 13th of April 1839: Resolved that the consent of the company be granted to Elisha B. Williams to erect a dam across Jackson’s river at the town of Covington, of the dimensions and on the conditions stated in the application of William G. Holloway under date of the 9th of April 1839; provided said dam shall not be over one foot in height, and shall in no wise impair the navigation of the river; and provided also that no right or privilege granted by or claimed under this resolution shall continue after the company shall have commenced the construction of the improvement at Covington. Extract from the records. W. B. Chitenden secretary.” The defendants objected to the introduction of this extract, upon the ground, first, that it is not legal evidence; and secondly, because the letter of William G. Holloway therein referred to was not produced, to shew upon what conditions the consent of the James river and Kanawha company to the erection of a dam across Jackson’s river was given. But the court overruled the objection, and permitted the said extract to be read.
    The other facts proved were also stated in the last bill of exceptions; but it is unnecessary to set them forth.
    On the petition of Robert Pitzer, a super-sedeas was awarded.
    *Eskridge for plaintiff in error.
    The fee simple owner of the land sought to be condemned ought to have had notice of the application. The first section of the act directs notice to be given to the proprietor. 2 R. C. 225, ch. 235. That the term proprietor, as here used by the legislature, is synonymous with owner, is evident from the 4th section, which provides for the case of an application to abut a dam upon a rock or island, and directs that the owner of such rock or island shall have like notice of the application for such writ, and of the execution thereof, as is required to be given to the owner of land on the opposite side of a stream. Id. p. 226. The owner or proprietor of land is he who has the absolute dominion and property in the land. Neither of these terms is ever used to convey the same meaning as tenant in possession. Again, the 6th section declares, that if the party applying obtain leave to build the said mill, machine or engine, and erect the said dam, he shall, upon paying to the several parties entitled the value of the acre located and the damages, become seized in fee simple of the said acre of .land. The proceeding then is one by which the applicant seeks to acquire, and by the judgment of the court does acquire, the fee simple property in the acre of land condemned; and being of this character, the legislature must have designed that the fee simple owner of the acre should have notice of the proceeding. The court is bound so to construe the law as not to encroach upon any of the established rights of the citizen. It would be against common right and the principles of magna charta^ to take away the property of the fee simple owner without giving him notice to appear and defend. Were the legislature to pass a law authorizing the property of one man to be taken from him and given to another, without compensation, and without notice to him of the proceeding, the court would be bound not to carry it into effect. The 248 supreme court of South ^Carolina, in the case of Bowman and others v. Middleton, 1 Bay 252, set aside, as against common right and the principles of magna charta, an act of assembly which took away the freehold of one man and vested it in another, without any compensation, or previous attempt to determine the right.
    If, according to a just and reasonable construction of the act, notice of the application is to be given to the fee simple owner of the land, the court ought to have dismissed the case for the failure to give such notice. Eor the proceedings ought to conform strictly to the act of assembly. All laws which interfere with private rights, and authorize proceedings unknown to the common law, ought to be strictly complied with. The necessity of notice has been adjudged by this court in the case of Bernard v. Brewer, 2 Wash. 76.
    The other points presented by the bills of exceptions, he. submitted without comment.
    Hudson and Peyton for the defendant in error.
    Under the first part of the first section, authorizing a person owning lands on a watercourse to apply for leave to build a mill, it has been adjudged to be sufficient that a party is in possession as visible owner. Woodv. Boughan, 1 Call 329. In a summary proceeding of this kind, the court cannot go into the question of title, or make any enquiry as to any future or expectant interests which persons may have in the land. The law, therefore, only requires that notice should be given to one in possession. Notice even to an agent is in some cases sufficient, by the express provision of the act. A fortiori, notice to a tenant in possession, who is himself interested, will suffice. A notice to such particular tenant will in general be notice to the remainderman. If the remainderman wishes to be formally made a party to the case, the court will give him leave to appear, for that purpose, at any stage of 249 the proceedings. See *Wingfield v. Crenshaw, 3 Hen. & Munf. 256. On the other hand, if he should not appear and make himself a party, his rights will not be affected by the proceeding. This is manifest from the 9th section of the act; 2 R. C. p. 228.
    Here the appellant, upon his motion to dismiss the case, has introduced evidence of his title, in opposition to the inquest of the jury which found the title to the land to be in mrs. Jane Pitzer. Upon questions of this kind, the court can only look to the inquisition. Anthony &c. v. Eawhorne, 1 Iveigh 1. If the appellant, after making himself a party, could have maintained any motion upon the evidence which he introduced, it could only have been a motion that the inquisition should be quashed and a new writ awarded; not a motion to dismiss the case.
    But all objections to the proceedings were cured when the appellant went to trial upon the merits. Bernard v. Brewer, 2 Wash. 76; Coleman v. Moody, 4 Hen. & Munf. 1.
    II. The case of Wood v. Boughan, 1 Call 329, is an authority against the point made by the second bill of exceptions.
    III. Extracts from the books of a public corporation (such as the James river and Kanawha company) the records of which cannot be conveniently removed, are evidence, without requiring the presence of the officer who made the entry; at least where the statements are adverse to the interests of the company. Hodgson v. Fullar-ton, 4 Taunt. 787; Auriol v. Smith, 18 Ves. 198 ; Esp. on Ev. 66S. But another answer to the objection taken in the fourth bill of exceptions is, that the obtaining the consent of the James river and Kanawha company was altogether a work of supererogation.
    Eskridge in reply.
    The defendant Jane Pitzer, to whom notice was given, 250 was merely the tenant of the *land at the will of the fee simple owners, having no fixed or permanent interest in the same. If deprived of the possession of the acre in question, the heir, in assigning her dower, would compensate her by giving her lands of equal value. She was not, therefore, the proper person to contest the application. But if it be considered that she was a proper person to have notice, still the heirs of Bernard Pitzer the fee simple owner, having a greater and more direct interest in the contest, ought also to have had notice.
    The counsel for the appellee are wrong in supposing that the 9th section of the act would preserve to the appellant his private action, unaffected by the inquest and the proceedings had in the case. The jury are required to ascertain the true value of the acre of land; that is, its actual value to the fee simple owner, or its actual value as a fee simple. And in ascertaining its value, they necessarily ascertain the injury which will result to the fee simple owner of the land. They therefore estimate that injury ; and the rights of the fee simple owner are consequently not protected by the 9th section.
    The cases relied upon on the other side, to shew that all objections to the proceedings were waived when the appellant went to trial upon the merits, do not apply; because here the objection was taken in due time, and the appellant did not go to trial upon the merits until after the objection had been overruled. There is no ground for saying it was eyer waived or abandoned by him.
    
      
      Condemnation Proceedings — Notice—Construction of Statute. — The "tenant of the freehold” to whom notice must be given in beginning proceedings under the statute for the condemnation of lands for public purposes, means the “tenant in possession appearing as the visible owner.” For this proposition the principal case is cited and approved in Board of Supervisors v. Gorrell, 20 Gratt. 511; Hope v. N. & W. R. Co., 79 Va. 288: Keystone Bridge Co. v. Summers, 13 W. Va. 488. The principal case is also cited in this connection in Carpenter v. Garrett, 75 Va. 134. The principal case is cited in Bridge Co. v. Comstock, 36 W. Va. 275, 15 S. E. Rep. 73. See Coleman v. Moody, 4 H. & M. 1. See monographic note on “Eminent Domain” appended to James River & Kan. Co. v. Thompson & Teays, 3 Gratt. 270, and monographic note on “Mills and Milldams” appended to Calhoun v. Palmer, 8 Gratt. 88.
      Same — Same—Proprietor.—It was held in Pitzer v. Williams, 2 Pot. 241, that a widow to whom dower had not been assigned, and who continued in the possession of the mansion house and plantation thereto belonging, must be considered as proprietor of the land in the meaning of the statute respecting writs of ad quod damnum; and a motion by the heir, who resided on the land with his mother, to dismiss the proceedings because notice was not served on him as one of the proprietors of the land, was overruled.
      Same — Statutory Requirement That Fee Shall Be Taken. — The principal case is cited in Roanoke City v. Berkowitz, 80 Va. 622.
    
   ALEEN, J.

It is contended that though the notice to mrs. Pitzer might have been insufficient, yet as Robert Pitzer has appeared and contested the application on the merits, the objection taken by him to the insufficiency of the notice cannot avail him. The case cited in support of this proposition does not sustain it. In *Bernard v. Brewer, 2 Wash. 76, the court decided that notice to the proprietor should appear in the record, and reversed the judgment for that cause. The judges in delivering their opinions say, that if they could be satisfied from the record that the party appeared and contested the motion on the merits of the case, he could not afterwards avail himself of the want of notice in the first instance, to defeat the order; because a defence made on the merits would have amounted to a waiver of the objection. The reason assigned shews that the objection here would have been well taken, if no sufficient notice had been given. The objection was made at the first appearance of the party, and it was not until it had been overruled, that he contested the case on the merits. He cannot be said to have waived an objection which he made at the earliest opportunity, by contesting the case on the merits after the court had overruled the objection. This brings us to the main question, was the notice sufficient? Mrs. Pitzer was the tenant in possession of the plantation, of which the acre sought tobe condemned was a part, and had continued in possession from the death of her husband. She was a tenant of the whole under the law, though her tenancy could have been terminated at any time by the assignment of dower. The law requires ten days previous notice to be given to the proprietor of the land, if he be found in the county, and if not, then to his agent therein, if any he hath. The term proprietor, as used here to designate the party to be notified, as well as the term owner, where the law speaks of the applicant, are somewhat indefinite as to the precise extent of the interest held in the land. In regard to the latter phrase, though the question was not expressly-decided, the court in the case of Wood v. Boughan, 1 Call 329, strongly intimate, that the act does not authorize a contest in this summary proceeding about the title of the parties, and *that the words “owning lands on one or both sides” are satisfied by the petitioner’s being in possession as visible owner. In Coleman v. Moody, 4 Hen. & Munf. 1, the inquisition having found that lands of Thomas Rowlett deceased would be overflowed, a summons issued to Coleman as executor and trustee of Thomas Rowlett deceased. It was objected, that the law required the summons to issue against the proprietor or tenant, and that Coleman did not appear to be such. However, as he had appeared and contested the application on the merits, the court considered it too late to raise the objection that he was not legally summoned. In Anthony &c. v. Lawhorne, 1 Leigh 1, the inquest found that lands in the possession of A. would be overflowed, and assessed the damages. The court gave leave to erect the dam without the payment of the damages ; it appearing that the lands belonged not to A. but to the applicant. This judgment was reversed, because the right to the lands could not be thus collaterally tried. Judge Green, in delivering the opinion of the court, says, that where leave to erect a mill is given, the court is only authorized to impose conditions for preserving the passage of fish &c. and has no power to determine whether the damages are to be paid or not, or to whom they are payable. The statute, notwithstanding the leave given, imposes upon the applicant the duty of paying to the persons entitled the damages sp assessed, as a condition upon which such leave is to be effectual for protecting him against the action of the person actually injured.

These are all the authorities . having any bearing upon the question under consideration ; and none of them expressly decides what extent of interest in the land will satisfy the requisitions of the law. On looking at the first, second and third sections, it seems to me that it was the intention of the legislature to designate the tenant in possession as the proper party to be ^notified in all cases. The 1st section requires notice to the proprietor of the land proposed for the abutment. When the inquest is taken, and it is found that lands above or below, of the property of others, will be injured, the jury are required to say what damage it will be of to the several proprietors; and on the return of the inquest, summonses are to be issued to the several persons, proprietors or tenants of the lands so located,-or found liable to damage. The word tenants here applies as well to the land located and condemned, as to the land found liable to damage; and the use of it in this connexion shews that the terms proprietors and tenants were intended to designate the same interest, — a possession as visible owner or tenant. The 6th section provides, that upon paying respectively to the several parties entitled the value of the acre located and the damages, the applicant shall become seized in fee simple of the acre of land, &c. And it is argued that this provision shews the necessity of construing the term proprietor to mean the fee simple owner; otherwise his estate might be divested by a proceeding to which he is no party. This, it seems to me, is the necessary consequence of the construction which I give to the statute. And no such injustice is done as has been supposed. No man’s property should be taken without just compensation. The law provides the mode by which that compensation is to be ascertained, leaving it to the applicant to pay to the party entitled, at his peril. Unless this were so, land for public improvements, or other necessary public purposes, could not be condemned 'where the owner was unknown; and thus enterprises of great utility might be arrested for this cause. This law itself merely requires notice to the proprietor or his agent, when found in the county: but the land of any person may be condemned, no matter whether he be found within the county or not; and. when it is so condemned, and the money is paid to the . *party entitled, the applicant becomes seized in fee simple. This proves, that in the contemplation, of the legislature it was not essential that the true owner should be a party to the proceeding by which he is divested of the fee for purposes of.this character: that where notice can readily be given, it should be done: but whether it be given or not, a just compensation should be secured to him.

I think, therefore, that notice to the tenant in possession, appearing as the visible owner, was sufficient; and that the court was right in overruling the motion to dismiss the proceeding.

For the same reasons, X think the court was correct in refusing to hear parol evidence of a dedication to the public, by a former owner, of the ground in possession of the applicant. It appeared that the applicant was in the actual possession and occupation of the property; and this is sufficient.

The other objections taken in the court below have not been pressed in the argument, and may be disposed of by remarking that it was supererogatory to introduce the order of the James river company. The order giving leave to erect the dam must be taken as subordinate to the rights of the company under their charter and the general law. On the merits, the court was clearly right in granting the leave to erect the dam.

The judgment should be affirmed.

The other judges concurred in the judgment of affirmance.  