
    Hamilton vs. Adams.
    Mill case. Case 72.
    Error to the Oldham county court.
    
      Mills. Record. Error.
    
    Apnlioant leave to erect a mill dam own sil! e°l and on one side of ‘he stream own’fibbed of the si it, a m or (ho title t<> th™Co\nmon wealth.™1* n Record of the county court thafappiu cant for erection of a mill (Run has such title to the land on whirh the dam is proposed to be erected as the law requires him to have.
    April 23.
   Judge Underwood,

delivered (lie Opinion of the Court.

The Legislature have thought proper restrict the privilege of erecting mill dams and dams for other water works, to those who own the land on one or both sides of the stream where it is ProPosed to erect the dam. The applicant for leave to erect a mill datn, must likewise own the bed of the stream, where he owns the land on one side only, or to rmist be in the Commonwealth, The record of the county court must show that the applicant had such title as authorized the erection of t^ec^arn' anf' ^ it do not it is error. Hamilton was summoned to show cause against the erection of the dam. the inquest returned having stated that he would sustain a trifling injury. He appeared and objected to the erection of the dam, because Adams had no title. The court, notwithstanding his objections, gave leave to erect the dam, without requiring Adams to exhibit any title. In this the court erred. If Adams failed to exhibit a title in fee, as required by law, his application should have been rejected. It is stated in the order granting the writ-of ad quod damnum, that Adams was the owner of the lands on both sides of the run on which it was proposed to erect the dam. But as this order was exparte, and made before Hamilton was summoned to show cause, it could not include him. Upon his appearance he had a right to call in question the title of Adams. This he did, and it seeinsthe court, without investigating the title, gave leave to build the dam. For this cause the order and judgment of the county court, granting leave to erect the mill dam, is reversed and set aside, and the cause is remanded for new proceedings, upon the inquest already before the county court. If it shall appear that Adams hath title to the lands on both sides of the stream, the county court will then give leave to erect the dam Should this be the -conclusion of the court, they should state in the order granting leave to erect the dam, that it was proved, that Adams had title in fee to the lands on both sides of the stream. Tf their opinion is again excepted to, they should cause the title papers to be incorporated in the bill of exceptions, together with all other evi•dence given by either of the parties.

Monroe, for plaintiff; Crittenden, for defendant.

Hamilton must recover his costs in this court.  