
    Jacob F. Witt vs. Joshua A. Jefcoat.
    Pond Branch is a navigable stream under the Act of 1853.
    Where the owner of a mill-dam erected on a stream made navigable by the Act of 1853, allows one to pass rafts of timber through his dam and slope, he cannot maintain an action at common law to recover compensation; To obtain compensation the provisions of the Act must be pursued.
    BEFORE WITHERS, J., AT LEXINGTON, SPRING TERM, 1857.
    The report of Ms Honor, the presiding Judge, is as follows:
    “ This was a summary process, to recover compensation from the defendant for passing his rafts through the plaintiff’s mill-dam and slope. The claim was resisted on the ground, that the defendant had a right to raft his lumber through the plaintiff’s mill-dam and slope, free of charge, on the grounds, that the stream was navigable under the Act of 1825, and also, that he had acquired a right by use. and prescription. For a description of the stream and its use, and the erection of the mills by the parties, and those under whom they respectively claim, reference is made to the printed report of his Honor, Judge Wardlaw, in the case of 'Jacob E. Witt vs. W. Johnson Jefcoat, Joshua Allen Jefcóat, and John M.'Jefcoat,’ tried at Lexington, March Term, 1856.
    “ A non-suit was ordered on the ground, that Pond Branch was a navigable stream, under the Act of 1825.”
    The plaintiff appealed, and now moved this Court to set aside the non-suit, and for a new trial, upon the ground, that his Honor erred in holding that the defendant had a right to raft through the plaintiff’s mill-dam and sluice, or waste weir. •under the Act of 1825, free of compensation, and that his remedy and right of passage, if any he has, are under the Act of 1858.
    Bauskett, for the plaintiff,
    contended,
    1. That Pond Branch, at the place where his mill stands, or at any point, is clearly not a navigable stream, under the Act of 1825. See Judge Wardlaw’s report — and the State vs. Hiclcson, 5 Bich. 449; State vs. Collum, 2 Spear, 581.
    2. That during the time between the Acts of 1825 and 1853, there was no remedy to entitle the owner of an upper to raft through the dam of a lower mill, on a stream not embraced in the former Act, except by permission. To remedy which see Act of 1853, p. 305.
    3. That no length of time, of permissive use to raft through a dam, not embraced in the Act of 1825, will confer a right, neither before nor since the passage of that Act; certainly nothing short óf the period of prescription.
    4. In this case the defendant’s mill was not built until after 1833; and so late as 1848, the owners of all three of the mills, including this defendant, put in a new erection, and made arrangements in regard to the terms upon which they might raft through the plaintiff’s dam and canal. Judge Wardlaw’s Report, p. 3.
    
      Meeize, contra.
   The opinion of the Court was delivered by

O’Neall, J.

In this case we concur in the judgment of the judge below.

Pond Branch, by the Act of 1853, 12 Stat. 305, became a navigable stream. It was so treated, and considered in tbe opinion of tbe Court in tbe case of tbis very plaintiff vs. W. Johnson Jefcoat, tbis defendant, and another, decided here a year ago. How, after it was thus recognised and decided, at tbe instance of tbe plaintiff, be can expect to claim for toll in passing rafts through bis mill-dam and slope, as a common law right, is difficult to conceive. Eor when a stream is navigable, it is common to every one, who may use it: and waste ways and slopes only excuse, under Acts of tbe Legislature, tbe dams which obstruct tbe stream.

Tbe plaintiff, as tbe owner of a mill dam obstructing tbe stream before 1853, is provided for by that Act, and' under its provision, if pursued; be may get tbe compensation which it provides. Eor to pass the dam tbe means 'are provided by tbe 3d sec. of tbe Act. It declares, “that in all cases, where mill owners shall have erected their mill dams on such streams,” (as Pond Branch,) “antecedent to their use for tbe purposes aforesaid,” (rafting) “ at tbe points at which such mill-dams have been or may be erected, it shall be lawful for all persons, who may desire, to use such streams for tbe purposes of navigation as aforesaid, upon payment to such mill owner of a compensation to be determined by the pen-ties themselves; but if tbe parties cannot agree, it shall be tbe duty of any neighboring magistrate, at tbe instance of any person, desiring to use such stream for purposes of rafting of rafts of lumber and timber, to call to bis assistance four neighboring freeholders, two to be selected by tbe mill owner, and two by tbe applicant, and tbe said magistrate and freeholders shall determine tbe amount of compensation to be paid by such persons desiring to use such stream, subject to tbe right of appeal to tbe next Court of Common Pleas for tbe district in which tbe mill may be situated.”

Tbis is, it is true, a rather one sided provision, for it is alone to be effectually carried out by tbe person desiring to pass tbe mill-dam. Yet I think tbe owner may compel him to give to bim the remedy. Por he has only to give the person wishing to pass his dam, notice that he cannot pass till the compensation be fixed: then if the parties cannot agree, the person desiring to pass his raft through the dam must apply to a magistrate, and the other proceedings will follow.

In this case the defendant, without agreeing to pay any thing, passed his rafts. The plaintiff having suffered it done has no implied right to reasonable compensation. The Act of 1853, only permitted the party to pass his dam under an ascertained compensation either by agreement, or by the decision of a magistrate and freeholders. Having the means in his own hands to enforce his rights and ascertain his compensation, and having failed to do it, he cannot appeal to the Court to do it for him.

The motion is dismissed.

WhitNer, Glover, and MüNro, JJ., concurred.

Motion dismissed.  