
    *Kownslar v. Ward.
    October, 1820.
    Milldams — Application to Raise — Necessity for an Inquest. — It is asnecessary, that an inquest should be had as to injuring the health of neighbours, obstructing navigation &c. on an application to raise a mill dam already erected: as to construct it originally.
    Same — Same—Imperfect Verdict — The verdict in such case responding only to the damage done a contiguous owner, by flooding his land; and not to the health of neighbours &c. is imperfect; and the inquest will be quashed.
    Kownslar owned the land on both sides of Mill Creek in Berkeley; he had a mill on it already, and wishing- to raise the dam, (which had been erected according to law,) obtained a writ of ad quod dam-num, which was issued in the usual form, requiring the sheriff to summon a jury to inquire of damages; whether the health of the neighbours would be injured &c. The sheriff returned, that a jury being summoned and charged as aforesaid, upon their oaths said, that Kownslar should be at liberty to keep his dam at the present height, and that the damages to Ward will be $300, by backing the water; and nothing was said in the inquest, as to any other requisitions of the writ. It was not found, whether navigation would be injured; the passage of fish obstructed, the health of neighbors injured &c. on the return of the inquest, Ward appeared as defendant in the county court, which on hearing the evidence granted Kownslar leave, to continue his dam, on paying Ward the $300 awarded him. Ward appealed to the Superior court: there Ward objected to the judgment, because the damages were inadequate: the jury not considering the injury done to a mill seat he had above Kownslar’s ; he offered evidence to support this objection. *Kownslar objected to the evidence being heard; because it ought to have been introduced in the county court, on a motion to quash the inquest. The evidence was admitted, to which Kownslar excepted.
    The Superior court reversed the judgment, for inadequate damages; and remanded the cause to the coqnty court, with directions to set aside the inquest, and to award a new writ. Kownslar appealed.
    Eeigh for the appellant.
    The county court is properly the police of the vicinage, and having better knowledge of the facts, their judgment should not be disturbed on matter of evidence, without strong and manifest cause.
    The Act of Assembly prescribing the mode of raising dams, directs an inquest to be had of the damages only, and not of the health of neighbours &c. () The words of the statute shew, that the order will be made, unless the jury find, that the health of neighbours will be injured, or that some one of the evils to be avoided will ensue.
    Eppes v. Cralle,() if a conclusive authority, is certainly against the appellant: but is it conclusive?
    Wickham, contra.
    If damages only, were to be inquired of, in any subsequent inquest, the statute would be evaded, by raising the dam a given height at first, and then adding to it at pleasure.
    Judge Pendleton said in Home v. Richards () that the court before which witnesses appear, is the best judge of weight of evidence, but surely, that was not to grow into an abstract rule of law, to disqualify the judgments of intermediate courts.
    *The statute requires, that the inquest should respond to the whole wrjt, and this answering only to part, must be quashed.
    
      
      Milldams. — See monographic note on “Mills and Milldams" appended to Calhoun v. Palmer, 8 Gratt. 88.
      The principal case is cited with approval in C. & O. Canal Co. v. Hoye, 2 Gratt. 524, and distinguished in Mitchell v. Thorne, 2i Gratt. 174.
    
    
      
      (a) 2 Rev. Code, 228, and 2 Rev. 227, § 5.
    
    
      
      (t>) 1 Munf. 258.
    
    
      
      (c) 2 Call, 507.
    
   ROANE, Judge.

The court is of opinion that according to the true construction of the 8th Sec. of the act concerning mills &c., () it is as necessary on an application to raise a mill-dam previously erected, that the inquisition should respond to the requisitions of the law, in relation to the health of the neighbourhood, -the overflowing of mansion-houses, orchards &c., and the obstruction of the passage of fish, and ordinary navigation, as it is in the case of an original application: and this not being done in the case before us, (which in event, might have deprived the County court of the power of going into the investigation of the merits,) the court is of opinion, that the said inquisition is defective, and the judgment founded thereupon, erroneous. On this ground, and not on that taken by the Superior court, on which we give no opinion, the judgment of that court quashing the inquisition, and reversing the proceedings up to the petition is affirmed. 
      
      (d) 2 Rev. Code, p. 228.
     
      
      Cabbi.i, absent.
     