
    *Humes v. Shugart.
    July, 1839,
    Lewisburg.
    (Absent Brooke, J.)
    Mills — Application—Interference with Subsisting Privilege. — After a county court bas granted leave to one applicant to build a mill, if application be made by another to build a mill lower down upon the same stream, and the party whoiirst obtained leave shew that the dam for the second mill would be several feet higher than the fall between the two millseats, and would, if built, destroy the privilege previously granted to him, the court, in the exercise of a sound discretion, ought to refuse the second application.
    Same — Same—Same.—Though the leave first given to build a mill be granted while a prior application to build lower down upon the same stream is pending, yet if the order granting this privilege remain in full force, unreversed and not appealed from, and it be shewn that the privilege so granted would be destroyed by allowing the other, that other ought not to be granted.
    Zachariah Shugart, the owner of land on one side of the middle fork of Holston river in the county of Smyth, desiring to erect a dam across the stream for the purpose of working a saw and grist mill and other machinery, gave notice to William Byars guardian of John Irons junior, the owner of the land against which the dam would have to be abutted, that he would apply to the court of Smyth county for a writ of ad quod damnum. Application being made pursuant to the notice, the court, on the 19th of July 1832, awarded the writ, to be executed on the 30th of that month. The jury impanelled under this writ laid off an acre of land for the purpose of the abutment, which they appraised to 7 dollars 50 cents. They were farther of opinion, that if a dam of nine feet high were built, it would overflow a part of the lands of John Irons junior, añ infant, and William Humes, and they assessed the damage to 46 cents. Upon the return of the writ and inquisition, *an order was made directing Byars, as guardian of John Irons junior, and William Humes to be summoned. On the 24th of November 1832, Shugart, Byars and Humes being fully heard, the petition of Shugart was dismissed: whereupon he appealed to the circuit court.
    The circuit court reversed the order of the county court dismissing the petition, and, proceeding to give such judgment as the county court ought to have given, ordered that the inquisition and all the proceedings thereon be set aside and annulled ; that a guardian ad litem be appointed for the infant John Irons junior, and that, after making such appointment, a new writ of ad quod damnum should be awarded.
    A copy of the decision of the circuit court being produced to the county court on the 24th of October 1833, it was accordingly ordered that William Byars be appointed guardian ad litem of the said John Irons junior. And thereupon a writ of ad quod damnum was awarded, to be executed on the 18th of November 1833. The inquisition was taken on the 18tb and 19th of that month. The jury laid off an acre of land for the abutment, and appraised that acre, “and what is overflowed of John Irons junior,” to 13 dollars 8 cents. They were of opinion that if a dam of 8 feet 9 inches high were built, it would overflow a part of the land of said John Irons junior and William Humes, and they assessed the damage to Humes to 8 dollars. Upon the return of this inquisition, Byars, as guardian ad litem of John irons junior, and William Humes were ordered to be summoned. On the 22d of March 1834, divers witnesses being sworn and examined, the petitioner, Byars and Humes fully heard, and all the circumstances weighed, the county court ordered that Shugart have leave to build the mill and dam, and that he become seized in fee simple of the acre of land located, upon his paying, to the respective persons entitled thereto, *the valuation of the said acre, and the damages which the jury assessed for overflowing the lands of the said John Irons junior and William Humes. Whereupon Byars, as guardian ad litem, and Humes appealed to the circuit court.
    In the circuit court, the appellants gave in evidence a transcript of the record of an order of the county court, made the 25th of October 1833, granting leave to John and William Humes to build a dam. Their application had only been made the 24th of that month. But they were stated to be the owners of the land on both sides, as well as the bed of the stream. And the writ awarded on the 24th was directed to be executed on the 25th. The inquisition was taken accordingly. The jury found that the land on both sides of the river belonged to the said John and William Humes, and were of opinion that if a dam ten feet high were built, it would not overflow the lands of any other person.
    The river was surveyed by Charles Id Taylor, who made a map which was exhibited in court, and the correctness of it being deposed to by him, it was part of the record. The point designated on the map as No. 1, was admitted to be the place to which the proceedings of the county court on Shugart’s petition applied. The point to which the order in favour of Humes applied was No. 2. From No. 1 to No. 2. the distance was only 68 poles, and the fall 3 feet 9 inches. Humes had, however, an equally good or better seat at No. 6. which would be unaffected by Shu-gart’s dam ; the fall from No. 1 to No 6, being 13 feet 1 inch.
    The evidence of the witnesses examined in the circuit court was spread upon the record. One of them, William H. Holt, a builder of mills, well acquainted with the various mill-seats on the river belonging to the parties, deposed that Shugart’s dam of 8)4 feet would wholly destroy the millseat at No. 2, worth, in his opinion, 1000 dollars. Thomas Ochiltree, another millwright, ^deposed that six or eight months previously, he had offered Humes, for the seat at No. 2, 100 dollars per foot for an eight feet dam at that place, with sufficient land adjacent for a mül-hóusc, and timber sufficient to construct a mill; which offer was refused. Holt, being reexamined, deposed that the two seats at No. 2, and No. 6, would each be unaffected by a dam at the other — that valuable mills or other machinery might be erected at both, and operate without injury to each other.
    It is not deemed material to state the evidence of the other witnesses. The statement concluded as follows :
    “All errors existing in the record subsequent to the judgment of the circuit superior court of law and chancery of Smyth county, reversing the judgment of the county court of Smyth, and sending the cause back to that court for further proceedings, are waived in open court by the appellant and his counsel.
    “It was stated by "the witnesses Holt and Ochiltree, that if the appellee Shugart should be confined to a dam of a height that would only throw back the water a!s far as his land extended up the river, his seat, in that event, would in their opinion be worth nothing.
    “It is agreed by the parties that Taylor’s map referred to by the witnesses, with the indorsements thereon, is evidence in this cause. ”
    The circuit court was of opinion that there was no error in the judgment of the county court, and affirmed the same.
    On the petition of Humes, a supersedeas was allowed.
    M’Comas and Sheffey for plaintiff in error.
    Johnson for defendant in error.
    
      
      See monographic note on “Mills and Milldams'’ appended to Calhoun v. Palmer, 8 Gratt. 88.
    
   PARKER, J.

The appellant Humes having first obtained leave to build a mill at the point No. 2, in the map annexed to the record, (the parties admitting that *to be the place to which the proceedings of the county court on the appellant’s petition apply) and it being manifest, upon the proof, that a mill erected at No. 1, with a dam 8 feet 9 inches high, would destroy the privilege to build at No. 2. I think that the court ought, after granting leave to Humes, to have refused leave to Shugart, in the exercise of a sound discretion. The first order in favour of Shugart had been reversed and annulled by the superior court, and the case remanded to the county court for further proceedings. It was therefore as if it never existed, except that it might have been a reason with the county court for delaying a decision upon Humes’s application, until a final decision upon Shugart’s. But the court made the order giving leave to Humes on the 25th of October 1833, and that order was in full force, unreversed and not appealed from, when the order in favour of Shugart was made on the 22d of May 1834, from which the appeal was taken to the superior court, where the order was affirmed. In my opinion, the court ought to have reversed that order, not only on account of its interference with the privilege previously granted to Humes, the owner of the land on both sides the stream, but because the destruction of a valuable millsite owned by Humes at No. 2, proved to be worth from 800 to 1000 dollars, ought to have been taken into the estimate of the jury in awarding damages to Humes, notwithstanding he was the proprietor of another seat for water machinery higher up the stream at No. 6, as good or better than the one at No. 2.

The only difficulty in the case is, that the appellant is stated to have waived “all errors existing in the record, subsequent to the judgment of the circuit court reversing the first judgment of the county court and sending the cause back for further proceedings.” The object could not have been to waive the error of the superior court in affirming against the evidence which *it was then hearing. The waiver was probably made before the witnesses were examined, and was intended to apply to the proceedings as they appeared on the record of the county court. After this entry, some evidence appears to have been taken, and some admissions were made for the purpose of bringing the case fully and fairly before this court; and it would be absurd to suppose that the appellant or his counsel intended to waive all errors in a proceeding he was about to appeal from. This entry, therefore, ought not to stand in the way of deciding the cause upon its merits ; and upon those merits, I am of opinion that the order of the county court in favour of Shugart ought to have been reversed, and his petition dismissed with costs, and consequently that the judgment of the superior court affirming that order ought to be reversed.

But this judgment is not intended to prevent any new proceeding on the part of Shu-gart, to erect a dam which will only throw back the water in such manner as to leave the privilege granted to Humes unimpaired and unaffected.

STANARD and CABELA,, J., concurred.

TUCKER, P.

I concur entirely in that part of the opinion of my brother Parker which respects the merits of the controversy. I have some doubts yet remaining as to the effect of the waiver of error, since it would seem to waive all errors in the county court, and of course the error of that court in giving leave to Shugart to build his mill. I have no doubt it was an inadvertence, and therefore the more readily surrender the objection.

Judgments of both courts reversed, and petition of appellee dismissed.  