
    Tymannus vs. Williams.
    Where the State sells a privilege, it cannot complain of the necessary consequences of its exercise.
    In 1837 the Legislature of the State of Tennessee passed a la,w to dispose of the public lands lying in the Ocoee District. This act provided for the entry of the land for stated terms of time, at stated prices, giving the occupant the preference for given terms, at the stated prices. The 6th section provides, that if any occupant shall notify the entry-taker, that he has in his possession any quarter section of land upon which is erected a mill or iron' works, it shall be the duty of said entry-taker to appoint two disinterested persons to value said quarter section of land in its uncultivated state, or without regard to the improvements thereon, and said occupant shall have the right of entering the same at the said valuation price within three months from the opening of the office.
    
    
      At the passage of this act, Williams was in possession of a quarter section of land in the Ocoee District, on which he had erected a valuable mill at a cost of about $4,000. The dam caused the water to overflow a spring on the vacant land lying-above the mill.
    Williams addressed the following petition to the entry-taker, to wit:
    “Luke Lea, Esq., Entry-Taker of the Ocoee District:
    Sir: As assignee of Gilbert W. Dearing, an occupant in the Ocoee District, I have in possession a quarter section of land, described as the north-west quarter section number one, in the second fractional township and fourth range, west in said district, upon which there was erected a saw mill at the time of the passage of the “act to dispose of the lands in the Ocoee District,” which mill is now on said quarter section of land, and in operation. You will please, in conformity with the sixth section of said act, “appoint two disinterested persons to value said quarter section of land in its uncultivated state, or without regard to the improvements thereon,” so that the necessary preparation may be made to enter the same by the opening of the land office, on the first Monday in November next.
    Respectfully, yours, &c.
    SAMUEL WILLIAMS.
    Ross Landing, Hamilton County, Oct. 2d, 1838.”
    The Entry-Taker appointed commissioners, who reported as follows:
    “Luke Lea, Esq., Entry-Taker of the Ocoee District:
    Sir: We have proceeded to examine and value “in its uncultivated state, or without regard to the improvements thereon,” the north-west quarter of section numbered one in the second fractional township, and fourth range, west of the Basis line in the Ocoee District, upon which there was erected a saw mill at the time of the passage of the act to dispose of the lands in the Ocoee District, and which we do value as follows, to wit, thirty-five acres at three dollars per acre, and one hundred and twenty-five acres at twelve and a half cents per acre; making the value of the quarter sectionin its unimproved state, one hundred and twenty dollars sixty-two and a half cents. Given under our hands, the 12th day of Nov. 1838.
    JNO. COWART,
    JOHN E. TAYLOR.”
    Williams paid the value as ascertained to the Entry-Taker, and entered the land and obtained a grant.
    Tymannus entered the quarter section of land lying above, with the spring overflowed thereupon, and having obtained a grant from the State, filed his bill to abate the dam of Williams.
    This bill was filed in the Chancery Court at Cleveland, and a decree was entered in the case, which was as follows: 1
    “Be it remembered, that on this 8th day of September, 1845, this cause came on to be heard, on the bill, answer, pleadings, and proofs, in the cause, before the Hon. Thomas L. Williams, Chancellor, &c., and he being satisfied, that it appears from the pleadings, and proof in the case, that complainant is owner, and has a legal title to the west half of the south-east quarter of section one, fractional township two, and range four west of the Basis line, in Hamilton county, Ocoee District, and that on said land there is but one lasting spring of water from which complainant draws his supplies of drinking water, and that South Chickamauga creek runs through said land; and it further appearing to the satisfaction of the Chancellor, that the respondent erected a dam across the aforesaid creek, below complainant’s spring, which dam has caused the water of South Chickamaugacreek, above said dam, to back up, overflow, and drown complainant’s spring. The Chancellor is, therefore, pleased to order and adjudge, that Samuel Williams, the surviving partner of George & Samuel Williams, do proceed to lower the said dam, so that the back waters from the same shall not overflow complainant’s said spring, and that the said S. Williams pay all the costs of this cause, for which an execution may issue,” &c.
    The defendant prayed and obtained an appeal from this decree.
    
      Rowles, for complainant.
    
      Van Dylce, for defendant.
   Reese, J.,

delivered the opinion of the court.

The defendant in 1837, was an occupant, at the time of the passage of the act of that year, ch. 1, of a quarter section of land, upon which he had erected a valuable mill, at a cost of upwards of $4000; and having by virtue of the last clause of the 6th section of said act, a priority of entry, caused the entry-taker, in pursuance to said clause, to appoint commissioners to value the same, who made their valuation, and thereupon the defendant procured an entry and grant for the same. Above the said mill on another quarter section, then vacantand unoccupied, there is aspringofwateruponthemarginof the creek, very little elevated above the current of the creek, which at the same time of said valuation, entry and grant, was covered by the back water from the dam of the defendant. The said spring is so low, or so near the creek, that it is necessarily covered by any water available at the site below; and in fact there is no mill site there, if said spring must not be covered by back water from the dam. The assignor of the complainant afterwards, and while the said spring was so covered over by the back water from the defendant’s dam, became a settler and occupant upon the quarter section including said spring, and has assigned to the complainant, who having procured title from the State, has filed this bill to enjoin the defendant from the use of his mill dam; in effect to abate the same upon the sole ground, it may be said, of the spring in question; for,, although, other-grounds have been stated in the bill, they are not satisfactorily made out in proof. What, then, are the rights of -the parties upon this ground of complaint? Are they other or different from what they would have been, if the complainant had been, instead of the State, the sole riparian owner at the time of the erection of defendant’s mill, and had sold and conveyed to him the mill seat with the mill constructed, and the dam also backing the water over his spring, and years afterwards had filed this bill to abate the dam on the ground of the spring above, would he have been permitted to succeed in such a purpose? We think not. And yet we take it, that as strong a case, at least, against the relief complainant seeks, is now before us. The State was the great and sole riparian owner, the entry-taker, through his commissioners, valued the quarter section upon which the mill and dam were erected, as a mill site, and the money was paid to the State. The defendant could not cause the commissioners to value the quarter above; with regard to it he had no priority. The mill was built and the lands in the general neighborhood were probably enhanced in price to the State by the expenditure of the defendant in erecting this much needed manufactory; could the State, when the grant issued, have filed a bill to abate the dam on account of the spring, and have succeeded? We think not. The quarter was valued, entered and granted for a special purpose; that purpose being the construction of mills, to the end, of these being profitably carried out. Could the State, without wrong, retain the price of the valuation and destroy the thingfor which the amount was given, upon the ground that its beneficial use of the quarter above was diminished; a fact known to the valuers at the time of the valuation, or which might have been known to them. Does the subsequent occupant settler, or his assignee, stand in a better attitude; and is he clothed with greater equities than the State? Does he not, under the circumstances of the. case, take his land cum oneril

We are of this opinion, and, therefore, reverse the decree of the Chancellor, and dismiss the bill.  