
    THE SELECTMEN OF GLOVER v. GEORGE W. McGAFFEY and Others.
    [In Chancery.]
    
      Mill Dams.
    
    The act oí 1869, “regulating mill and other dams,” did not authorize the committee appointed hy the County Court to make an order, in the first instance, directing the owner to lower his dam; or, one that would have that effect, — as to raise his head-gate.
    Heard on bill, answer, replication and testimony, February Term, 1881, Ross, Chancellor. Decree pro forma for the orators. The bill was brought by the selectmen of Glover and based on the following order; 
    
    
      “ State of Vermont, ) Whereas the assistant judges of Or-Orleans County, ss. ) leans county court in the state of Vermont did on the 27th day of May, 1876, appoint us, the undersigned, commissioners to examine as to the safety and sufficiency of a certain dam and reservoir situated in Glover, in said county, and commonly called ‘ Stone Pond.’ Said dam was owned by G. W. McGaffey, of said town of Glover. Now, agreeably to said commission, we the undersigned having made an examination of said dam, and heard the parties interested in and about the same, we are unanimous in the opinion that said dam is insufficient, unsafe, and dangerous, in the present condition to the property-owners on the stream below, and particularly so to the inhabitants of Glover Village. We therefore make the following order for the time being: That the said G. W. McGaffey shall immediately commence to reduce the water in said pond by raising his head-gate at his flume, not exceeding eight inches, so as to gradually reduce said pond of water down to the bottom of- his said flume by the first day of September next, and then to let said gate be up so that the water naturally coming into said pond may flow out through said flume till further order. The above order is made by the consent of all parties interested.
    Glover, June 24th, 1876.” (Signed and recorded in the towri clerk’s office.)
    The orators prayed that the defendants be compelled to comply with the foregoing order.
    
      W. W. Grout, for the orators.
    
      Poland and F. W. Baldwin, for the defendants.
    
      
       Act ov 1869. Sec. 2. If in the judgment of the committee So appointed such dam is insufficient and unsafe, they shall del ermine and direct what alterations, repairs or additions are required to make it sufficient and safe; and shall give a written direction to tlie owner thereof to make such alterations or repairs within such reasonable time as said committee shall name in said writing; and they shall make a record of their doings, together with such direction as they shall give, in the town clerk’s (ffice in the town where such dam is located; which record shall be admissible though not conclusive evidence in the trial of any issue involving his liability on account of such dam.
    
   The opinion of the court was delivered by

Taft, J.

The statute of 1869 gave the committee appointed by the county judges power to determine and direct what “ alterations, repairs, or additions,” were required to make the dam sufficient and safé. The committee ordered the defendant to raise his head-gate and cease using it. This practically lowered his dam and prevented his securing the amount of water the pond had theretofore held. The effect was the same as the removal of the upper part of the dam. Was this such an order as section 2 of the act of 1869 contemplates ? such an one as the committee had the right to make ? We think not. Raising the gate and keeping it up was not an alteration, repair of, or addition to, the dam, such as we think the legislature had in mind in passing the statute, or that is fairly within the meaning of the words of it. The fair import of the words is, a change in some way of the material structure of the dam, something that will make the dam stronger and not prevent the owner from using it, to secure the usual quantity of water in his pond. The order made was equivalent to one directing the removal of the dam, or a portion of it. That such an order was not contemplated in the first instance we think is evident from the words of the statute ; and we are confirmed in this opinion by the fact that section 3 of the act provides that after an order is made under section 2, and- the owner of the dam refuses or neglects to make the “ alterations, repairs, or additions ” ordered by the committee, the committee are then given the power to remove the dam, or such parts thereof as they may deem necessary to protect the property on the stream below, clearly implying that this was not within the power of the committee in the first instance. This view of the order renders it unnecessary to pass upon the constitutional and other questions in the case, as the act of 1869 is not now in force; for, if not repealed by the act of 1876, it has been since, by the passage of the Revised Laws, among which the provisions of the former act are not included.

The proforma decree of the court of chancery is reversed and cause remanded, with a mandate that the bill be dismissed.  