
    *Eppes v. Cralle.
    Tuesday, May 1, 1810.
    1. Mills — Verdict—Uncertainty.—What degree of uncertainty and inaccuracy of language is sufficient to set aside the finding of a Jury in a mill case,
    a. Same — Petition to Raise Height of Dam — Subject of Inquiry. — On a petition for leave to add to the height of a mill-dam, the only proper subject of inquiry is, what damages will be occasioned by the proposed addition. It is error, therefore, to direct the Jury to assess such other damages, accruing from the dam already erected, as were not contemplated by the original Jury.
    3. Same — Same—Same—Surplusage.—But an error in this respect should be regarded as surplusage, (the petition for the writ of ad quod damnum having prayed only for such inquiry as the law authorizes,) if the Jury assessed such erroneous damages separately, and the Court did not direct the same to be paid, but only the damages properly assessed.
    
      4. Same — Appeal—Costs—What Included Therein. — On an appeal in a mill case, the party prevailing ought to be allowed, in the bill of costs, the mileage and attendance of his .witnesses summoned to the Court of Error; though the Court determined on viewing the record only, and therefore did not examine the witnesses.
    This was an application for leave to raise the dam of a water grist-mill on Flat-rock creek, in the County of Bunenburg.
    The petition of Richard K. Cralle, presented to the County Court, requested permission to raise his dam “from its present height to fourteen feet and one half,” and prayed a writ of ad quod damnum “to ascertain what additional damages would be done, by overflowing land not condemned by the former Jury, in raising the dam that additional height;” without specifying what the present height was; neither did it mention any other subject of inquiry.
    The Court awarded a writ of ad quod damnum to assess the damages that would accrue by raising the said Cralle’s mill-dam “six inches higher than the present dam, and such other damages, as have accrued in raising the dam the present height, not contemplated by the former Jury.”
    The writ of ad quod damnum conformed to this order; except that, by an apparent mistake of the Clerk, the word “condemned” was used, instead of “contemplated.” In other respects it was in the usual form.
    The first writ not having been executed, in consequence of a fresh in the creek, as appeared by the Sheriff’s return, an alias writ of ad quod damnum was awarded, “according to the prayer of the petition.” This second writ directed the Jury to make the same inquiries with the first.
    In obedience to this writ, a Jury “having been empanelled, ^charged and sworn as the law directs, proceeded to inquire into the several matters delivered them in charge.” Their inquisition then proceeded, “after due consideration theréof, we are of opinion that by erecting the said Richard K, Cralle’s dam six inches higher than its present height, agreeable to the annexed writ of ad quod damnum, it will damage the lands and other conveniences of Francis Eppes to the amount of fifty dollars and fifty cents, and that the lands of William Buford will be damaged to the amount of one dollar. We are further of opinion, that there has accrued damages to the land conveniences of the said Francis Eppes to the amount of one hundred and forty dollars, and that it will damage the lands of William Buford four dollars, which said last mentioned damages was occasioned by the waters overflowing higher than the former Jury contemplated, and have been assessed by us, which we are of .opinion ought to be paid by the said Richard K. Cralle to the said Francis Eppes, in addition to the damages assessed by the former Jury. We are further of opinion that no mansion house, office, garden, curtiledge or orchard will be effected or damaged by the erection of the said mill-dam six inches higher than the present dam, and that no mansion house, garden, office, orchard, curtiledge, or the ordinary navigation, or passage of fish, or the health of the neighbourhood will not be annoyed, ot affected by the raising the said mill-dam to the present height, not contemplated by the former Jury, and in our opinions there will be no other damage to any person or persons whatsoever, except to the said Francis Eppes and William Buford. Certified under our hands and seals this 5th day of October, 1807.”
    On the return of this inquisition, Francis Eppes only was summoned, to shew cause, if any he could, why an order should not be granted according to the prayer of the petitioner; and the parties appearing, the Court, “upon hearing the inquisition and other evidence adduced by the parties,” was of opinion “that the said Cralle have leave to build his dam fourteen feet six inches high.” And the said 260 *Cralle tendered in Court the damages found by the Jury, which the defendant refused to accept, and appealed to the District Court of Brunswick, which reversed the said order, and, proceeding to make such order as the said County Court ought to have made, directed “that the said Richard K. Cralle have leave to raise his dam six inches higher than the present dam, and that the appellee pay to the appellant fifty dollars and fifty cents, and William Buford one dollar, the amount of the damages found by the Jury in their inquisition, which will be sustained by them in consequence of the appellee’s raising his dam six inches higher than the present dam; and that the appellee recover against the appellant his costs expended by him in prosecuting his petition in the said County Court.”
    From which order the appellant prayed an appeal to this Court.
    George K. Taylor, for the appellant,
    made three points; viz.
    1. The petition was for leave to raise the dam “to fourteen feet and one half:” the order awarding the writ of ad quod damnum said “six inches higher than the present ■dam.” This is a fatal variance; for there is nothing in the record to shew what the present height is.
    2. The order made by the District Court should also be reversed for uncertainty. The County Court, notwithstanding their first order, had directed the Jury to assess the damages that would accrue by raising the dam six inches higher than at present, in their last order conformed to the petition, and granted leave “to build the dam fourteen feet six inches high.” The District Court reversed that order, (which was the most correct,) and gave judgment in the language of the inquest, “to raise the dam six inches higher than the present dam;” leaving it uncertain to what height it should be raised.
    3. The first order of the County Court, and the writ of ad quod damnum directed the Jury to ascertain the damages 261 «which a previous Jury had not foreseen and estimated; and this Jury made a return as to that fact. This inquiry the Court had no right to direct them to make, and their having made it vitiates the whole inquest.
    Call, for the appellee.
    The two first points depend on the testimony which is now about to be laid before the Court. The third point relates to mere surplusage, which ought not to have been in the order, but need not be regarded.
    Taylor. The act of Assembly directs the attention ot the Sheriff and Jury to certain points only. The Court here directed another point to be inquired into not authorized by law. Their act is therefore void. So, in the case of official bonds, if not exactly conformable to law, they are void.
    Call. This objection never would have entered my mind; and, I must say, I never knew one of less foundation. I grant, if things ordered by the statute had not been done, the inquisition would have .been void. But here the Court have only done a work of supererogation.
    Where a statute directs bonds to be taken in a prescribed form, I admit that form must be strictly pursued. But no particular form is prescribed for an inquest. The case of a forthcoming bond is therefore similar to this. Where more than the amount of the execution is inserted in the bond, the plaintiff may release the surplus.
    The additional inquiry in this case was for the benefit of Eppes; not of Cralle. The two assessments of damages may easily be severed; being separately found. So far, then, as the jurisdiction of the Court under the act extended, its orders should be supported; and disregarded as to the other part. Both the County and District Court rejected this, and merely proceeded to award the damages for raising the dam.
    «-JUDGE TUCKER. The party was entitled to his action toties quoties for injuries not estimated by the former Jury. In this case the writ of ad quod damnum could legally issue only to assess the additional damages occasioned by rais - ing the dam. I am therefore of opinion, that the inquisition taken upon it was illegal and ought to be quashed.
    JUDGE ROANE was of a different opinion. The party having prayed for what was perfectly legal; and the Court having corrected its own error, (for the last order was exactly conformable to the petition,) no injury was done. The maxim therefore applies “utile per inutile non vitiatur. ”
    JUDGE FLEMING, as to this point, agreed with Roane; observing, that the error committed in the first order was subsequently corrected by the Court.
    Taylor proceeded to mention another point. The Jury have not answered to all the commands of the writ. They have not said whether fish of passage, and ordinary navigation, will be obstructedj or the health of the neighbours injured."
    Call. The Jury, in conclusion, negative all damages to any person whatever. But it greatly depends on the manner of reading this inquisition, to determine whether it answers to the whole command of the writ.
    JUDGE TUCKER. This inquisition is not intelligible to me; and the last clause implies there might be other damages (not ascertained) to Eppes and Buford.
    JUDGE ROANE. I am for looking to substance; and, if satisfied that the meaning of the Jury (though not technically expressed) comes up to the requisition of the law, will be satisfied. I under-263 stand the meaning of the last «clause in the inquisition, though inaccurate and ungrammatical, to be that the health of the neighbours had been contemplated by the former Jury; and that no other damage than (as before mentioned) to Francis Eppes and William Buford, would result. They thus adopt the opinion of the former Jury, as to the health of the neighbours; and say as they did.
    JUDGE FLEMING considered the return of the Jury insufficient; not having answered to the essential parts of the writ of ad quod damnum; viz. to what related to the health of the neighbours, the passage of fish and navigation.
    An order was therefore directed to be entered, reversing both judgments; quashing the inquisition and writ of ad quod damnum; setting aside all the proceedings subsequent to the petition ; and remanding the cause to the County Court for further proceedings. But, on Judge Roane’s suggestion, the Court agreed to reconsider the subject.
    Wednesday, May 2. A second argument took place.
    Call. More precision than was used in this case is not required by the terms of the act of Assembly. The question is about raising a dam, not about an original order to build a mill. The inquiry is only as to the value of additional damages; not as to the original points. But, even if a larger latitude of inquiry be requisite, this inquisition is sufficient. Whether the health of the neighbours will be injured is a mere matter of opinion, not conclusive, but traversable, and amounting to no more than the oral declarations of the Jurors in Court. Evidence may therefore now be received as to this point.
    The degree of certainty required in inquisitions is not as great as in pleadings. Certainty to a common intent is sufficient,  “There are three manners of certainty. 1. Certainty to a common intent; 2. Certainty to a certain 264 *intent in general; and, 3. Certainty to every intent;” which last certainty is rejected altogether. The same certainty is not requisite where a statute is directory only, not prohibitory,  It was the duty of the Sheriff and Jury to make these inquiries; and it shall be intended that they did their duty unless the contrary appear, 
    
    In England, there are two kinds of inquests. One is called an office of instruction, or information ; the other an office of intitling. In the former, as much accuracy and certainty are not requisite as in the latter. In this country, the inquisition in a mill case resembles the office of instruction.
    In inquisitions of this kind, whatever is well found shall stand; and a writ melius inquirendum shall go as to whatever is not well found,  Where the inquisition is totally uncertain, I admit that a melius inquirendum cannot issue: but the case is otherwise where it is uncertain as to part only.
    
    In Wroe v. Harris,  it was decided that where an inquisition is general, “that no man will be damaged,” it is sufficient. In this case the inquisition shews, on its face, that the Jury considered every thing that the law directed: the conclusion is general, negativing every subject of inquiry. Where the Jury say that the “ordinary navigation, or passage of fish, or the health of the neighbourhood, will not be annoyed or afEected by the raising the said mill-dam to the present height, not contemplated by the former Jury,” their meaning must certainly be to the present contemplated height, which had not been taken into consideration by the former Jury. But a sufficient answer to the objection is, that the whole case is still open to the Court upon the evidence.
    Taylor, contra. If the inquisition find facts against the petitioner, that finding is conclusive; and such is the constant practice. Other evidence is never admitted to supply defects, but only to traverse .the inquisition.
    ^According to Mr. Call’s own doctrine, if uncertainty appear, the inquisition must be quashed: and this is the very case at bar.
    Wednesday, May 2. Judge Tucker observed that he had nothing to add to his opinion given yesterday relative to two points: but he would now say that the District Court erred in making the present height the standard, there being nothing to shew what that height was: and, if for no other cause, the judgment should be reversed for that. He afterwards furnished the reporters with the following written opinion.
    My opinion, briefly, was, that there were several errors in the proceedings and judgments of both Courts.
    I. That the writ of ad quod damnum was erroneous,
    1st. In directing an inquiry to be made as to what damages would accrue from raising the mill dam six inches higher than the present height, without mentioning what the present height was. And,
    2d. In directing the Jury also to say what other damages have already accrued and been done to individuals, in raising the dam to the present height, ‘ ‘not condemned by the former Jury.” The first of these matters being uncertain and indeterminate ; and the latter, not within the proper objects of this Jury’s inquiry, but the subject of an action, or actions, between the parties.
    II. That the inquisition taken was erroneous,
    1st. In answering to these erroneous matters.
    2d. In not answering in what manner the ordinary navigation, the passage of fish, and the health of the neighbourhood may be obstructed or annoyed by raising the dam. And, therefore, that the said writ of ad quod damnum and inquisition ought to-be quashed, for such uncertainty, &c.
    III. That the County Court erred,
    1st. In giving leave to raise the dam, instead of quashing the writ and inquisition.
    *2d. In allowing the petitioner to raise his dam to the determinate height of fourteen feet six inches, without a previous inquiry into the effects which might be produced by raising the same to that particular height. There being nothing in the writ or inquisition to shew what such effects might be.
    IV. That the District Court erred,
    1st. In giving leave to raise the dam upon these uncertain, insufficient, and erroneous proceedings. And,
    2d. In giving leave to raise the dam to the uncertain and indeterminate height of six inches above the present height, which present height does not appear from any part of the proceedings.
    
      
      See generally, monographic note on “Mills and Milldams” appended to Calhoun v. Palmer, 8 Gratt. 88.
      The principal case was distinguished in Mitchell v. Thorne, 21 Gratt. 174.
    
    
      
       5 Co. 56. b. Knight’s cases, 4 Resol, 1 Tidd’s Prac. 136, 2 Salk. 469, 5 Co. 121, a., Long’s case.
    
    
      
       2 Sid. 144.
    
    
      
       1 Hale’s P. C. 416.
    
    
      
       1 Hale’s P. C. 415, 2 Salk. 469.
    
    
      
       Vaughan’s Rep. 341.
    
    
      
       2 Wash. 126.
    
   JUDGE ROANE

was of opinion that the order of the District Court should be affirmed. He thought the return to the writ of ad quod damnum substantially good. It appeared also sufficiently from the proceedings that the present height of the dam was fourteen feet; and that granting leave to raise it to fourteen feet six inches, (according to the petition), or six inches above its present height, '(according to the order awarding the writ of ad quod damnum,) was, in fact, the same thing.

JUDGE FLEMING.

I have examined the cases cited yesterday by Mr. Call, and cannot perceive their application to the 'case now before the Court. He properly observed that there were in England two kinds of inquisitions, where the crown is concerned — one of instruction, or information, and the other of intitling; and, if there be any analogy between them and the one before us, this is analogous to the office of, intitling; which, his own authorities say, requires accurate certainty.

The writ of ad quod damnum, in the present case, (omitting what has been adjudged surplusage,) required the Jury to meet on the land of Richard K. Cralle, where he has erected his water grist-mill, and examine the lands above 267 *and below, of the property of others, which may be probably overflowed by raising the said Cralle’s mill dam six inches higher than the present dam, and say what damages will be to the several proprietors ; and to say Whether the mansion house of any such proprietor, or the offices, curtilege or garden, thereunto immediately belonging, or- orchards, will be overflowed; to inquire whether, and in what degree, fish of passage, and ordinary navigation, will be obstructed; and whether, in their opinion, the health of the neighbourhood will be annoyed, by the stagnation of the waters?

The Jury, after taking notice of their charge, proceed to say, “We are of opinion that the erecting the said Richard K. Cralle’s dam six inches higher than the present height, agreeable to the annexed writ of ad quod damnum, it will damage the lands and other conveniences of Francis Eppes to the amount of SO dollars and SO cents; and that the lands of William Buford will be damaged to the amount of one dollar.” And (omitting here what they say respecting damages, and inconveniences, not contemplated by the former Jury, as irrelative to the point under consideration) they proceed to say, “We are further of opinion that no mansion house, office, garden, curtilege, or orchard, will be affected or damaged by the erection of the said mill dam six inches higher than the present dam, and, in our opinion, there will be no other damages to any person or persons whatsoever, except to the said Francis Eppes and William Buford;” implying, however, that there may be other damages to those two persons: but the great defect seems to be, that they are quite silent, and have made no particular answer, respecting the passage of fish, the obstruction of navigation, nor the annoyance of the health of the neighbourhood, in consequence of the dam being raised six inches; which was given them in charge by the said writ.

But Mr. Call argued, that the general finding of the Jury, that, “in their opinion, there will be no other damages to 268 *any other person or persons whatsoever, except to the said Francis Eppes and William Buford,” comprehended those three latter subjects of inquiry, and rendered any special finding, with respect to them, unnecessary.

As well might he have argued that a general finding, that no damage nor inconvenience would accrue to any person or persons whatsoever, in consequence of raising the said dam six inches higher than the present dam, (without specifying a single subject of inquiry,) would have been a sufficient compliance with, and execution of, the said writ.

But the counsel further observed, that, by the fifth section of the act concerning mills, other evidence than the inquest might, and ought to be resorted to. True; but for what purpose? not to aid the inquest but to contradict it; and to prevent the Court giving leave to build, or raise, a mill dam, if it should appear to the Court, from such other evidence, that the Jury had been mistaken on any one subject of their inquiry. I am, upon the whole, of opinion, that the judgment of the District Court is erroneous and ought to be reversed, and the inquisition quashed.

By the majority of the Court, the judgments of both Courts were reversed; all the proceedings subsequent to the petition set aside; and the cause remanded to the County Court for further proceedings. 
      
      
        Note. In this case the mileage and attendance of a number of witnesses, summoned to the Court of Appeals, was ordered to be taxed in the bill of costs, and recovered by the appellant against the appellee; though no witnesses were examined; the Court having determined on a view of the record only. — Note in Original Edition.
     