
    Richards v. Hoome.
    October Term, 1791.
    Mills — Appeal from Order — Record—Ownership of Bed. —Upon an appeal from an order, giving' leave to "build a mill, the record should state that it ap- . peared to the Court granting the order, that the bed of the water-course was in the applicant, or in the Commonwealth.
    This was an appeal from the District Court of Fredericksburg, reversing an order of the County Court of Stafford, giving leave to the appellant to build a mill on Rappahanock- river.
    Warden for the appellee,
    objected, that the record did not shew that the property in the bed of the river was in the commonwealth, or in the appellant, without which, the County Court ought not to have given leave to erect the mill.
    Dee and Washington for the appellant,
    contended, that though the person applying for leave to build a mill, must satisfy the court, that the bed of the river is in himself, or in the commonwealth, yet it is not necessary to state this fact upon the record ; particularly at this day, when an application may be made ore tenus, without the formality of a petition in writing. When in cases of this sort an appeal is prayed, all the facts are examined into de novo in the superior court; so that the statement of this fact upon the record, could not have availed the person petitioning, since he must still have proved it; neither can the omission of the clerk in not stating the fact upon the record, render such proof unnecessary here. If it had been stated, it might have been disproved in this court.
    
      
      Petition for Mill — Ownership of Bed. — It was held in Martin v. Beverley, 5 Call 441, that it is necessary to state in the petition for a mill on navigable rivers, that the bed is in the commonwealth.
      The principal case is cited in Mead v. Haynes, 3 Rand. 37.
      Same — Same.—But a petition for leave to build a mill, where the bed of the stream belongs in part to the petitioner, will be sufficient, upon showing that fact, although the petition itself does not state it, but on the contrary states that the bed of the stream belongs to the commonwealth. Mead v. Haynes, 3 Rand. 33.
      Principal Case Not a Precedent. — In Martin v. Beverley, 5 Call 447, 448, it was said by two judges that the principal case was not a precedent, because the judgment of the court was upon an equal division of the judges. See Home v. Richards, 4 Call 441; Wood v. Boughan, 1 Call 829.
      See monographic note on “Mills and Milldams” appended to Calhoun v. Palmer, 8 Gratt. 88.
    
   The court being equally divided.

The judgment was affirmed.  