
    *Mayo v. Turner.
    Thursday, October 11, 1810.
    Mill-Case — Verdict—Conclnsiveness.—The finding of a Jury, In a mill-case, that “probably the health of cei tain families who live near the pond will be annoyed by the stagnation of the water,” is conclusive against the petitioner.
    On a petition of John Mayo to the County Court of Hanover, for leave to erect a water grist-mill, the Jury, on the writ of ad quod damnum, found that “it is probable that the health of the families of Eewis Turner and of William Ragland, who live near the pond, if the mill is erected, will be annoyed by the stagnation of the waters.” The County Court, “after hearing witnesses, and weighing all the circumstances,” decided that leave should not be granted to build the mill; and that decision was affirmed by the District Court, upon inspection of the record, without hearing evidence; whereupon Mayo appealed to this Court.
    Peyton Randolph, for the appellant,
    on the authority of Home v. Richards,  contended that the District Court ought to have heard the evidence of witnesses, and not to have determined the cause on inspection of the record only, whéreby the appellant was precluded from offering testimony which might have produced a different decision.
    Wirt, contra,
    relied on the 5th section of the act of Assembly,  as conclusive for the appellee, and said there was nothing against him in the case of Home v. Richards.
    Friday, October 12.
    
      
      MUI-Case — Verdict — Conclusiveness.-In Leigton v. Maury, 76 Va. 875, the principal case was cited as. holding, that if In the opinion of the jury of incmest, the health of the neighbors will not be annoyed by the erection oí a milldam, a person supposing himself to be aggrieved thereby may appear as a contestant, and contest the finding of the jury by their evidence. If, on the contrary, the jury reports that the health of any part of the neighbors will in its opinion be aifecled, or will probably be affected, this is conclusive; no evidence can be adduced to controvert it; for the law says that in such case, the court shall not give leave to build the mill and erect a dam. Miller v. Trueheart, 4 Leigh 574, citing the principal case.
      See further, monographic note on “Mills and Mill-dams” appended to Calhoun v. Palmer, 8 Gratt. 88.
    
    
      
       2 Call, 507.
    
    
      
       1 Rev. Code, p. 198.
    
   The Judges pronounced their opinions.

JUDGE TUCKER.

The only question in this case is, whether the inquest of the Jury finding that the health of certain persons in the neighbourhood, of whom the appellee’s family were a part, will be annoyed by the erection of a mill-dam, &c. be conclusive against the petitioner; or whether it be competent for him to examine witnesses to impugn that finding.

**The second section of the act concerning mills, after directing several distinct matters to be inquired of by the Jury, concludes with a direction that they shall certify whether in their opinion the health of the neighbours will be annoyed by the stagnation of waters.

The fifth section enacts, that “If, on such inquests, or on other evidence, it shall appear to the Court that certain inconveniences may result, or the health of the neighbours be annoyed, they shall not give leave to build the mill and dam.

. From hence it appears to me that if the opinion of the Jury be affirmative, (as in the present case,) that the health of the neighbours will be annoyed, the same is conclusive against the party applying to build the mill: but that, if it be merely negative, a person supposing himself likely to be aggrieved thereby may controvert such opinion of the Jury by other evidence; and if, by such other evi- enu' , it shall appear to the Court that Lie health of the neighbours will be annoyed, they are bound by the terms of the law not to give leave to build the mill.

JUDGE ROANE

was of the same opinion, and observed that the finding of the Jury was substantially that the health of the neighbours would be injured.

JUDGE FLEMING.

It is the unanimous opinion of the Court that the judgment be affirmed.  