
    *Stokes & Smith v. The Upper Appomatox Company.
    December, 1831.
    Mills — Failure to Establish According: to Law — Right as against Public Navigation Company — Case at Bar. —W. being the owner of an island situate in the falls of the Appomatox, a navigable river, applies to the county court for leave to erect a mill on his island, and to condemn an acre of land on the main, belonging to T. for an abutment for his mill dam; the acre of land is condemned, and leave is given to W. to build his mill on his island; W. abuts his dam against the condemned acre, but does not build his mill on his island, but builds it on the mainland belonging to T. below the condemned acre, on a canal conducted from a point above the dam, through T.’s land; and he cuts his canal through, and builds his mill on, T.’s land, with T.’s consent: Hrcd, this mill is not established according to law, so as to entitle W. and those claiming the mill rights under him, and T.’s land under him, to take the water from the river to work the mill, as against the public right of navigation, and a company incorporated by law to improve the navigation.
    Easement by Twenty Years’ Use — ITust Be Adverse.† —The use of the water of a river, or other easement, claimed on the ground of twenty years possession and enjoyment: Held, such possession and enjoyment, to give the right claimed, must be adversary.
    This was an action on the case, brought in the circuit court of Dinwiddie (whence it was removed by consent to the circuit coart of Henrico) by Stokes & Smith, merchant millers and partners, against The trustees of the Upper Appomatox company, (a company incorporated by law for improving the navigation of the river Appomatox) for unlawfully diverting the water of the river from the plaintiffs’ mills thereon situated.
    There were two counts in the declaration. ’The first alleged, that the plaintiffs were the owners of a manufacturing mill, grist mill and saw mill, situate in the county of Chesterfield, near the lower end of the falls ■of the Appomatox, and that they were of right entitled to the use and benefit of the water of the river, as it flowed in its natural channel, for working the machinery of their mills; and charged, generally, that the Upper Appomatox company, by means of a -dam erected across the river, above the falls thereof, diverted into a canal cut by the company, a large *quantity of the water of the river from its natural channel, and from the plaintiffs’ mills, in and to which the water ought of right to have flowed, and so prevented a sufficient supply of the water of the river for working the machinery of the mills, from flowing to the same. The second count, — after setting out (in like manner as in the first) the plaintiffs’ ownership of the mills, and their right to the use and benefit of the water of the river, as it flowed in its natural channel, for working the same, — charged, that the ■company, being incorporated to improve the navigation of the river, and authorized to take and turn into a canal, only so much of the water of the river as should be necessary and sufficient for the purposes of the navigation, did lawfully cut their canal, and did, at first, divert into the canal as much water as was necessary and sufficient for all purposes of navigation, leaving the remainder of the stream, which was abundantly sufficient for the plaintiffs’ mills, to flow in the natural channel of the river, as of right it ought to have flowed, to their mills ; and then, the company unlawfully diverted into their canal a large quantity of the remainder of the stream, and more than enough for the purposes of navigation, and so prevented a sufficient quantity of the water to work the plaintiffs’ mills, from flowing in the natural channel of the river to the same, as of right it ought to have flowed ; by reason whereof, there was not now a sufficient supply of water to work the mills, left flowing in the natural channel of the river.
    The company pleaded, 1. the general issue : 2. that it had, as lawfully it might and ought, diverted into its canal, only so much of the water of the river from its natural channel, as was necessary for the purposes of the navigation : and 3. that the plaintiffs’ mill and mill dam were not authorized and established according to law, being erected without any order of court for the erection of such mill and dam, at the place where their mill and dam were erected, and so the plaintiffs were no wise entitled by law to the use *of the water of the river for their mills. And upon these pleas issues were made up.
    At the trial of these issues, the plaintiffs filed two bills of exceptions to instructions given by the court to the jury.
    I. The first stated, that several acts of assembly, relative to the navigation of the Appomatox, were given in evidence, viz:
    1st. The act of 1762, ch. 16, ^ 4-10 ; 7 Hen. stat. at large, p. 591-4, providing, that every owner of a mill then erected on this river, above Atkinson’s mill (a mill situated on the falls, between the scite of the plaintiffs’ mills, and the head of the company’s canal) should place such locks in their mill dams for the passage of boats, as the trustees therein named should direct, and that any persons, who should afterwards build mills, on the river, either above or below Atkinson’s mill, as the river should from time to time be cleared and made navigable, should, in like manner, place locks in their dams, under heavy penalties for failing to do so; appointing trustees for clearing the river for navigation; authorizing them to receive and collect subscriptions for the purpose; and impowering them to remove all stops and hedges, except such mills and mill dams as were thereby permitted and allowed to be built.
    2nd. The act of 1787, ch. 53, 2 Old Rev. Code, Pleasants’ edi. append. 3, ch. 1, p. 34, appointing trustees for clearing and improving the navigation of the Appomatox, from Banister’s mill (a mill situated on the falls, below Atkinson’s, and above the plaintiffs’ mills) to the highest point practicable, provided they should begin the work as near Banister’s mill as circumstances would admit; impowering them to cut canals where necessary for the purpose of navigation ; authorizing them to receive and collect subscriptions for the work ; vesting all canals and other works in the trustees and their successors, for the use of the subscribers, with power to collect tolls, to compensate them for the improvement; and providing, that all owners of mills on the *river above Banister’s, should place locks in their dams, or on canals cut round them, for the passage of boats ; and if they failed to do so, declaring their mills and dams nuisances, which might and should be abated.
    3rd. The act of 1792, ch. 60, Id. chvS, p. 40, to “explain and amend” the act of 1787 ; whereby, — after reciting that doubts had arisen, whether the trustees would have a right, under that act, to lease or sell any part of the land they might acquire, and any of the water passing through their canals, for water mills and other useful works, — the trustees were expressly authorized [§ 2], to sell or lease any part of the lands they might acquire, and so much of the water passing through their canals, as might be necessary for such mills or other useful works, and as, in their opinion, might be disposed of without prejudice to the navigation. And, reciting that doubts had arisen under the act of 1787, whether the trustees had a right to open the navigation below Banister’s mill, they were authorized [§ 4], to open the navigation as near to that mill, either above or below the same, at such places, and in such manner, as in their opinion would be most for the benefit of the navigation. But it was provided [§ 6], that nothing therein contained should be construed to allow the trustees to make sale of any mill seat, except between Atkinson’s and Banister’s mills.
    
      4th. The act of 1795, ch. 35, Id. ch. 6, p. 42, entitled, “ an act to amend and reduce into one the several acts for opening- and extending the navigation of Appomatox river,” by which the present company was incorporated (for nothiag had been done under the former acts) by the name of The trustees of the Upper- Appomatox company. This act appointed trustees ; incorporated them into a company, for clearing, improving and extending, the navigation of the river from Banister’s mill as far up as practicable, so as to have a sufficient depth and width of water for the navigation of boats carrying eight hogsheads of tobacco ; gave the company the usual corporate powers, with authority to receive and collect subscriptions for the work, and to demand *and receive tolls as compensation for the improvement; empowered it [§ 6], to purchase lands by contract through which to cut their canals where necessary, or to have them valued and condemned by a jury, in like manner as was provided by the act for opening and extending the navigation of Potowmac river; and vested the lands so purchased, and, the lands soto be condemned, upon payment of the valuation assessed by the jury, in the company, in fee. And the profits arising from the tolls [§ 10], were vested in the company, to enable it to keep its canals, locks and other works, in repair, and the overplus for the use and benefit of the stockholders. This act also again enacted [§ 12], that owners of mills on the river, above Banister’s mill, should make locks through their dams, or on canals cut around them, and keep the same in repair, with persons to attend them, to let boats pass at all times; declaring all mill dams in case the owners should fail to make such locks &c. nuisances, which might and should be abated at the owners’ expence.
    5th. The act of 1796, ch. 26, Id. ch. 7, p. 46, entitled, “an act to amend” the act of incorporation of 1795 ; whereby power was given to the company, to clear, improve and extend, the navigation of the river from Banister’s mills to tide water, or as near thereto as it should deem advisable and necessary ; and to enable the company thus to extend the navigation, the same powers, under the same regulations, as were given by the act of 1795, were in the company.
    And 6th, the act of 1802, ch. 26, Id. ch. 13, p. 54, providing, that no court should thereafter grant leave to any person whatever, to build a mill or dam on that part of Appo-matox river, which lies between Planters Town [the highest point of the navigation] and the head of the canal cut by the company (meaning the canal cut round the great falls to Petersburg).
    And the company adduced evidence to prove, that the canal it had in fact cut, was, according to the original plan, intended to be 3 feet deep and 16 feet wide, such being proper *dimensions for a canal for boats carrying eight hogsheads of tobacco: that the water of the river was turned into the canal at its head, above the great falls, by means of a dam run across the river for the purpose : that the body of water so turned from the river into the canal, was, at its head, only 3 feet deep and 16 feet wide : that the bed of the canal was so graduated through its whole course, as to have a regular gradual fall of twelve inches to the mile, ■and it is thus conducted to Indian-town creek, about 3 miles 122 poles below the head of the canal: that, at Indian-town creek, the company had constructed four locks, to let the water down from the canal above, to a proper level for the canal below, which was graduated in like manner, and was conducted from the locks, by an aqueduct over the creek, and thence, 1 mile 260 poles, to an artificial basin, 120 feet square, constructed at the upper end of the town of Petersburg, for the purpose of receiving boats, and affording a convenient landing for their cargoes ; at which basin the upper navigation of the river at present ends : that, just below the head of the canal, there was a larg-e waste, so constructed as to discharge back into the river, all the water received into the canal at its head, beyond what was necessary to keep the water in it three feet deep : that, between that large waste and the waste at the locks at Indian-town creek, there were three other smaller wastes, the last of which was one and a half miles above the waste at 'the locks ; and these three wastes were so contrived as to discharge back into the river, far above the plaintiffs’ -mills, all the water diverted into the canal, beyond what was necessary to keep the water therein three feet deep : that, at the said locks at Indian-town creek, there was another waste, so contrived as to discharge all the water in the canal immediately above those locks, beyond what was necessary to keep three feet depth of water in the canal there ; but the water discharged by this waste at the locks, was not returned to the river, but was conducted round the locks, into the canal below them ; such being the method adopted to feed *the canal from the locks to the basin at Petersburg : that the waste at the locks was about 14 feet wide, and the water running over it, in ordinary seasons, about two inches deep on the waste: that there was another waste at the basin, to let off the water from the basin to the river; which waste was 25 feet wide, and the water running over it, in ordinary seasons, only one inch deep on the waste : that, in dry seasons, the water running over the wastes, was not half so deep on the wastes, as at ordinary seasons : that the water discharged by the waste at the basin, passed over a stripe of land, owned by the company down to the river, into which it fell about 100 yards below the plaintiffs’ mills ; and on this stripe of land, were situated the mill seat and the mill, let to tenants by the company, of which, and of the lease of water for working the same, the plaintiffs complained in this action, as injurious to their property,; and that, at dry seasons, there was a great dearth of water discharged over the waste at the basin, for working the. company’s mill there situate.
    And the plaintiffs adduced evidence to support the issues on their part, and in opposition to that adduced by the company ; evidence to prove, inter alia, that the fall or graduation of the canal, of twelve inches in the mile, was greater than was necessary or convenient for the purposes of navigation, and the company thereby acquired, and was enabled to apply to mill power, a much greater quantity of water than was necessary for navigation, or for any other purpose except mill power : and that the surplus of water might be conveniently discharged at a waste, which was placed at a short distance below the locks at Indian-town creek, which would discharge the water above Banister’s, as well as the plaintiffs’ mills ; but the waste last mentioned, has been so constructed by the company as to prevent the passage over it, of much of the surplus water in dry seasons, and to throw all or the greater part thereof over the waste at the basin, whence it was used and applied by the company for mill power.
    *And it was proved, that the supply of water for the plaintiffs’ mills, was drawn from the river at a point below Banister’s mills, and below all the wastes of the company’s canals, except that at the basin : that, at dry seasons, namely, for a considerable time between the 1st August and the 1st October, in ordinary years, there was a scarcity of water for the mills on the river, including the plaintiffs’ mills : and that, during this time, the water discharged over the company’s waste at the basin, was used by it, or under its authority, for mill power, and discharged into the river below the plaintiffs’ mills.
    Whereupon, the counsel for the company prayed the court to charge and instruct the jury as to the law of the case ; and the court gave the following charge and instruction to the jury—
    That a grant of running water to a company, and a grant of a right to carry that wafer through a navigable canal, from one point of a river to a lower point, for the purpose of improving the navigation, conveyed an absolute right to the use of all the water which might be necessary for that purpose. That the right to carry the water through a canal, given to such company, gave no right to stagnate it, so as to injure the health of the people dwelling in the neighbourhood. That, unless vessels were perpetually passing such a canal, there must be always a surplus of water, over and above what was necessary for navigation, and it was the duty of the company to carry off such surplus water, and its right, to carry it off, at the lower end of its canal, unless it was restricted by law as to the point at which it was to be carried off. That this company had a right to sell or lease the surplus water to others, for the purpose of working mills and the like; in other words, that this mill power (as it had been called) so far as it could be given by the surplus wafer, was a necessary incident to the grant of running water, and of the right to convey it by a canal, as aforesaid. That this incidental power was so understood by the legislature, when it granted the charters of the James and Potow-mac *river navigation companies ; for it there recognized it; but fearing lest the companies might abuse their power, by trespassing upon the lands of adjacent proprietors, or by condemning their lands for mill seats, under pretext of carrying their canals through them, it restrained them from uging their water for mill power, except with the consent of those proprietors. That the act of 1787, ch. 53, granted to The trustees of the Appomatox company, the right to sell or dispose of all the surplus water, which might be in their canal, over and above what was necessary for navigation, for mill purposes, and was so understood by the legislature. That, by that act, the trustees could not. let off tiiis water below Banister’s mill; and by the act of 1792, though they were allowed to open the navigation below Banister’s mill, yet they were restrained from selling a mill seat below it. That the act of 1795, ch. 35, incorporating the present company, gave it the same powers as the old company had by the act of 1787, hut did not allow the new company to open the navigation below Banister’s mill: therefore, the power to do so, conferred by the 4th section of the act of 1792, ch. 60, was repealed, by the act of 1795, as coming within its purview ; and with the 4th section, the proviso contained in the 6th section, restraining the trustees from selling any mill seats except between Atkinson’s and Banister’s mills, was also repealed. That, by the act of 1796, ch. 26, express power was given to the company to extend the navigation from Banister’s mills to tide water; and that, the former restriction as to selling mill seats not being renewed, the incidental power of carrying off the surplus water of the canal from the lower end thereof, and selling that surplus water to other purposes, for working mills, and the like, accompanies the power so to extend the navigation. That, for the purpose of improving the navigation of Appomatox river, a just and sound discretion was vested in the present company, by its charter, as to the location of its *canal, and the proper mode of cutting and graduating" it; in the exercise of which discretion, it was bound strictly to keep in view the object for which it was authorized to cut the canal: if it had exercised this authority mala fide, for the purpose of taking from the river, more water than was convenient and sufficient for the commodious navigation of boats carrying eight hogsheads of tobacco, and had, by the graduation of the canal, increased the quantity of the surplus water therein beyond what was necessary for such commodious navigation, so as to increase its own mill power to a greater degree than it would have by a canal judiciously made, then it was liable to an action for damages, by any owner of a mill on the river, whose quantity of water was reduced by such injudicious act: but, if it had exercised its authority soundly, having regard to the nature of the ground, the expense to which it was subject, the distance of the two points between which the canal was to be cut, and the health of the neighbourhood, then no injury was done to any of the proprietors of the mills on the river, for which an action could be maintained. That it was the duty of the jury to decide, whether or not this discretion on the part of the company, had been exercised soundly. That the company had a right to apply the surplus water of the canal to mill power, on its own account, or on account of such persons to whom it might lease or sell the same, so as not to trespass on the lands of other persons, in the use of the water, or letting it off, and a right to let off the surplus water at the basin terminating the canal in Petersburg ; and was pot restricted, by any of the acts of assembly referred to, from establishing mill seats, on any part of the river or canal, except between Atkinson’s and Banister’s mills. And that the plaintiffs had no right to claim redress in this action, for any injury to the navigation of the canal, between the basin and the locks at Indian-town creek, by the use of the water from the basin.
    The plaintiffs, by their counsel, excepted to so much of the above opinion and charge, as affirmed the right of the *company to use water from their canal for mill power, and to discharge the same below their mills, thereby lessening their supply of water, or to discharge any more water from the basin at the end of the canal, to a part of the river below the plaintiffs’ mills, than was necessary to keep the water in the canal and basin, from stagnating- and injuring the health of the neigh-bourhood, provided the surplus water, or the excess thereof beyond the purposes last mentioned, could be conveniently discharged above Banister’s mills; and also, to so much of the said opinion and charge, as affirmed the right of the company to make sale of any mill seat on any part of the river or canal, except between Atkinson’s and Banister’s mills.
    II. The second bill of exceptions set out the evidence adduced by the plaintiffs, to shew that their mills were established according to law.
    It being admitted, that the whole bed of the Appomatox, in that part, is in the county of Chesterfield, the southern water line of the river being the boundary between that county and Dinwiddie ; the plaintiffs exhibited the record of a proceeding in the county court of Chesterfield, whereby it appeared, that Cuke Wheeler, in April 1791, being the owner of an island in the river, not far above the termination of the falls and the head of the tide water, applied to that court, for leave to erect a water grist mill on the island, and prayed that an acre of land on the main, on the northern shore, belonging to John Tabb, should be laid off and condemned as an abutment for his mill dam. Whereupon the county court issued the usual writ of ad quod damnum; in pursuance whereof an acre of Tabb’s land was laid off for the abutment, which the jury valued at £20. and found, that the building a mill, at the place set forth in Wheeler’s petition, would not damage any mansion house or offices, curtileges or gardens, thereto belonging, nor would any orchards be overflowed, nor would fish of passage or ordinary navigation be in any manner obstructed thereby. The inquisition *being returned, and Wheeler producing Tabb’s receipt for the £20. the court, at May term 1791, with Tabb’s consent, made an order, declaring that there appeared no legal impediment or reason why the leave asked by Wheeler should not be granted, condemning the acre of land for the abutment of the dam, and giving Wheeler leave to erect the mill on his island.
    The plaintiffs then proved that Wheeler proceeded, without delay, to erect his mill, not however upon his island, but on Tabb’s land on the main, taking the water from the river above the dam and abutment allowed by the order of the county court, and conducting it by a canal to his mill, which was built some distance below the abutment. And they offered evidence to prove, that the canal was dug through, and the mill built on, Tabb’s land, with his assent and approbation; that the plaintiffs had acquired the title of both Wheeler and Tabb ; and that they, and those under whom they claimed, had been in quiet and undisturbed occupation of the mills, for more than twenty years before this action was instituted.
    The plaintiffs also exhibited the record of another proceeding in the county court of Chesterfield, whereby it appeared, that in 1816, they applied by petition to that court, representing that they were now the owners of the land on the main on the northern shore of the river, and that, for the purpose of raising the head of water for their mills already established, they wished to make a dam from the main acros's an arm of the river, to an island therein belonging to S. Turner, and thence across another very small gut to another island in the river, which was the northern abutment of Mackenzie & Christian’s mill dam (whose mill was situate on the southern shore, on the main) ; and praying leave to erect such dam from the main to Turner’s island, and the condemnation of land on Turner’s island for the abutment. The court issued a writ of ad quod damnum ; an inquisition was taken and returned; the whole of Turner’s island (about 3-4ths of an acre) was, with his consent, condemned *for the abutment; and leave was given to the plaintiffs, to make the dam from the main to Turner’s island, according to the prayer of the petition. The continuation of the dam, from Turner’s island to the island which was the abutment of Mackenzie & Christian’s dam, was made by them and the plaintiffs, uniting in the work for their mutual advantage.
    It appeared, by a map laid before the jury, that this new dam was some distance above the dam made by Wheeler, and that the water drawn from the river for the use of the mills at present, was taken out above the new dam, and thence conducted by a canal to the mills.
    Whereupon, the court, on the motion of the counsel for the company, instructed the jury, that, under the order and proceedings of the county court of Chesterfield first above stated, Wheeler had no right to build’ his 'mill where he did build it, on the land of Tabb, or on any other land but his own, and no right to take water from the river for the mill he built on Tabb’s land ; that no consent or act of Tabb could authorize Wheeler, under the order of the county court, to build his mill and cut his canal on Tabb’s land, and to take water from the river for the use of the mill so there built; that, therefore, the mill was not established according to law, so as to entitle Wheeler, or any claiming under him, to draw water from the river, by means of his dam, for the use of the mill; and that, upon the pleading's in this case, the plaintiffs could not recover damages for any ■injury done by the company, in diverting the water of the river, by means of its canal- and works connected with it, from the plaintiffs’ mills thus built without any authority of law. To which opinion and instruction the plaintiffs excepted.
    There was a verdict for the defendants, and judgment accordingly ; to which this court, upon application of the plaintiffs, allowed them a supersedeas.
    I.
    Johnson, for plaintiffs in error,
    upon the points presented by the first bill of exceptions, contended, that the ^charter of The Upper Appomatox company, did not, and could not, give the company a right to divert the waters of the river from their natural channel, even for the purposes of the navigation, to the injury of the owners of mills upon the river, whose rights to the use of the stream for working their mills, had been previously acquired from the commonwealth, under the general law of the land : that though the public had a right to the use of the Appo-matox, as of all other rivers, for the purposes of navigation, yet the plaintiffs in this case, under the order of the county court of Chesterfield of May 1791 (supposing that order and the proceedings under it regular) acquired a right to the use of the stream for their mill, paramount to the public right to the river for the purposes of navigation, and paramount, of course, to the rights granted to this company, to improve the navigation, since this company claimed its charter under the act of 1795 : for, that the general statute of 1785, ch. 82, 12 Hen. stat. at large, p. 187, concerning mill dams and other obstructions ■of water courses, and all the subsequent statutes on the same subject, delegated to the county courts, full authority to grant leave to individuals to build dams across any stream, navigable or innavigable, for the purpose of raising a head of water to work mills ; and empowered the county court to ascertain and determine, whether or no ordinary navigation would be thereby obstructed, and if it would, to lay the party under such conditions for preventing such obstruction, as to the courts should seem right; and these statutes proceeded on the principle, that the grantees of the mill rights, erecting mills which were of public use and convenience, performed a meritorious service to the public, which was a valuable consideration for the grant to them of the privilege to use the water. For these propositions, he cited Crenshaws v. The Slate river company, 6 Rand. 245, which, he insisted, was directly in point. In the present case, the county court of Chesterfield did ascertain and deckle, that the building Wheeler’s dam would not in any manner obstruct ordinary navigation, and granted him the privilege without any condition.
    *Stanard and Heigh, for defendants in error,
    said, there was an obvious distinction between Crenshaws v. The Slate river company, and this case : Slate river had never been declared a navigable stream, and the legislature had never passed any act to assert the public right to that stream, for the purposes of navigation, much more any act expressly declaring and providing, that all mill rights should be subordinate to the public right of navigation, until long after the mills of the Crenshaws had been established according to law ; whereas, with respect to the Appomatox the legislature had, expressly and repeatedly, asserted the public right to the stream for the purpose of navigation, and had provided that all mill rights granted to individuals, should be held in subordination thereto, before any leave was granted by the county court to Wheeler, under whom the plaintiffs claim, to build any mill and dam upon the river. This distinction between Slate river and the James and Appomatox, was carefully stated by Green, J., in his opinion in The Slate river com-, pany’s case, Id. 268. Besides the several acts stated in the bill of exceptions, they referred to the act of 1745, ch. 18, 5 Hen. stat. at large, p. 375, and 1752, ch. 40, 6 Id, p. 291, to shew, that even thus early, the grant of any mill rights, that could at all interfere with the navigation of this river, or the improvement thereof, was inhibited. These early acts on the subject, indeed, were not set out in the bill of exceptions ; but they were public statutes, of which the court would take judicial notice ; for they were statutes concerning all persons generally, though in respect of a particular thing. 6 Gwill. Bac. Abr. Statute F. p. 374 ; Striblingv. Bank of the Valley, 5 Rand. 138, 148, 169,188. Then, putting the authority of The Slate river company’s case out of the way, it was impossible to find an objection to the charge given by the circuit court to the jury, stated in the first exceptions.
    II. The general question presented by the second exceptions, was, Whether the mill that was in fact built by Wheeler *on the main upon Tabb’s land, with his consent, under colour of the order of the county court of Chesterfield of May 1791, granting him leave to build a mill on his own land in the island, was a mill established according to law, for the use of which he acquired, by that order of court, a right to draw water from this navigable river, the bed and the stream whereof belonged to the commonwealth? And this question led to a minute examination of the provisions, the principles and the policy, of the various statutes concerning mills and mill dams, which are referred to in a note upon the title of the revised statute of 1819, 2 Rev. Code, ch. 235, p. 225.
    But Johnson contended, that the plaintiffs’ legal right to their mills, and to the use of the water of the river for the same, could not be inquired into, in the collateral way, in which it was attempted to be drawn in question here. And if it might, and if their right was originally imperfect, yet they and those under -whom they claimed, having enjoyed the use of the water for their mills, without interruption and without question, before the charter to The Upper Appomatox company, and for more than, twenty years since the date of the charter, and before the commencement of this suit, such possession of itself sufficed to give them a right to the use of the water as an easement.
    To this it was answered, 1. that the twenty years uninterrupted enjoyment of the water by the owners of these mills, was not stated in the bill of exceptions : it was only stated there, that they had been in quiet and undisturbed occupation of the mills for more than twenty years before the commencement of this suit, not before the company completed its canal, basin and waste at the basin, which was an interruption of the use of the water by the plaintiffs for their mills, and the very interruption they were now complaining- of. 2. That the possession of such an easement, in order to give title to it, must be an adversary one; Coalter v. Hunter, 4 Rand. 58. Here, the use of the water for Stokes & Smith’s mills, never became adversary to the rights of the ^company or of the public, till the company’s use of the water became adversary to their’s ; that is, not till the company had completed its canal, basin, and waste there. Neither was it conceivable how any use of the water below the head of the company’s canal, by which it drew its supply of water from the river, could be adversary 'to the company’s use of the water. And 3. That mill rights of this kind, being only acquirable in Virginia by order of court, and the pi'ecise title of Stokes & Smith appearing by matter of record, there could be no room to presume a grant to them from any length of possession and enjoyment. There was no attempt to inquire into the plaintiffs’ mill rights in a collateral way; they were directly put in issue by the pleadings.
    
      
       Mills — Ownership oí Land. — The principal case is cite’d in foot-note to Wood v. Boughan, 1 Call 329. See monographic note on “Mills and Milldams” appended to Calhoun v. Palmer, 8 Gratt. 88.
      Upper Appomatox Company — Powers Granted to. —In C. & O. R. Co. v. Rison, 99 Va. 30, 37 S. E. Rep. 320, it is said, the act incorporating the Upper Appo-matox Company did not expressly grant the water, yet this court, in Stolcesv. Upper Appomatox Co., 3 Leiffh 318, construed it as a grant of the water.
      Eminent Domain. — See what is said in The Tucka-hoe C. Co. v. The T. & J. R. Co., 11 Leigh 74, where the principal case is cited. See monographic note on ‘‘Eminent Domain” appended to James River & Kan. Co. v. Thompson & Teays, 3 Gratt. 270.
      Presumption — Twenty Years’ Adverse Use of Water of a Stream. — Por the proposition that, the adverse use of the water of a stream, which use has continued for a period of twenty years, is sufficient ground for presuming a grant, the principal case is cited and approved in Cornett v. Rhudy, 80 Va. 714. To the same effect the principal case is cited in Boyd v. Woolwine, 40 W. Va. 289, 21 S. E. Rep. 1022, citing also Rogersonv. Shepherd, 33 W. Va. 307. 10 S. B. Rep. 632; Coalter v. Hunter, 4 Rand. 58. See monographic note on “Adversary Possession” appended to Nowlin v. Reynolds, 25 Gratt. 137.
    
    
      
       See charters of those companies. 1 old Rev. Code, Pleasants’ edi. append, ch. 3, § is, ch. 1, § 13, pp. 444, 451.
    
   CARR,-J.

If the instruction given by the circuit court to the jury, stated in the second bill of exceptions, was correct, that is decisive of the case. Was it correct?

Two preliminary objections were taken to it ; 1. that the plaintiffs, and those under whom they claim, had been in quiet possession of the mill for more than twenty years ; and 2. that the legality of the erection, could not be questioned in this collateral way. To the first, two answers present themselves : 1. that this is a public right; Crenshaws v. The Slate river company : 2. that the twenty years possession must be adverse ; Coalter v. Hunter. The occupation of these mills on the stream below, could in no way affect the Appomatox company in their use of the water taken into their canal far above. As to the other objection, that we cannot inquire here, whether the order of court authorized the building the plaintiffs’ mill; it must be recollected, that this case stands on ground very different from that of The Slate river company. The Appomatox had long been declared by law a public highway, and the rights of the riparian possessors, with respect to building mills &c. rhodified and restricted. For the particulars on this point, I refer to my brother Green’s remarks in The Slate river ^company’s case, 6 Rand. 267-9. The Appomatox company, under a public law, had erected their works, dug their canal, and taken out the water : for this, the plaintiffs, as millers, bring this action for an injury done to their mills : the defendants plead the very fact, that the order of court did not authorize the erection of this mill, and that therefore it is no legal mill; the plaintiffs take issue on this plea. Could it be wrong under this state of the pleadings, for the defendants to ask, or the court to give, instructions, as to the law of the subject ?

But were those instructions right ? Wheeler, owning the island, moved for leave to build a mill on it, and not owning the opposite shore, moved to condemn an acre for an abutment for his dam: he got this acre condemned, and leave to erect his mill on his island. Did this authorize him to build the' mill on the opposite acre, condemned for his abutment ? or on a canal taken out on the north side of the river, and away below that acre ? I say, clearly no. The words have a distinct and definite meaning, and to that they must be confined. Suppose Wheeler, owning the island, had moved the court to condemn.an acre on the opposite side, to build his mill on, meaning to abut his dam on his island; could the court have done it ? where is the authority ? The law expressly says, that the party applying to build a mill, must own the lands on which he means to build it. Wood v. Boughan, 1 Call, 329 ; Wilkinson v. Mayo, 3 Hen. & Munf. 565. A mill is a great public benefit,' — a mill seat a valuable property ; and to him who owns this, the law has given power to have an acre on the opposite shore condemned, to enable him by means of his mill to subserve the public interest. The very words of the law are “any person desiring to build a water grist mill, or other machine, or engine useful to the public and, indeed, nothing but the public interest could justify the strong handed measure of taking from a citizen his own property, whether he will or no. But if one own the land where the mill is to be built, he owns the mill seat; and it is his privilege to ^condemn the acre opposite, not the privilege of the opposite owner, to condemn his mill seat. The county court, therefore, in this case, neither meant to give, nor had power to give, or to sell, to Wheeler, ■an acre of Tabb’s land, to build his mill on. If, then, under this order, Wheeler had built his. mill on the condemned acre ; I should have said he had no authority to do so. But it is worse than this: under the order to build on his island, he has taken water out, on the north side, by a canal cut though the land of Tabb, for some distance below (we are not told, whether a quarter or a half mile, ora mile) and has built his mill on this canal. If this is justified by the order, there is no locality at all about it. There is the dam to be sure, where the order designates ; but the race may be as long, and the mill as far off, as you please. It must be observed that the inquest says, a mill built at the place set forth in the petition, will not damage any house, overflow any offices, or cause any of the other mischiefs which the law guards against, but says nothing of the effect upon the property or health of the citizens, of carrying this water through the canal to the mill where it was actually erected. We all know how often lands are injured by carrying water through them, and how often a canal affects the health of those living near it. Do not these considerations alone shew, that a scite which was never viewed, and a canal that was never contemplated, by the jury of inquest, cannot be authorized by its report ? I say, then, that the proceedings of the county court, did not authorize the digging this canal, and building this mill where it stands; and that the instruction of the circuit court on this point, was correct. I think the judgment should he affirmed.

CABELE, J., concurred.

BROOKE), J.

The merits of this case depend on the pleadings, and the several instructions given by the circuit court to the jury, at the trial. The two material issues joined involve *the inquiries, 1st, Whether The Upper Appomatox company, under the acts of 1795 and 1796 incorporating- it, and the several acts referred to in the first bill of exceptions, was authorized to take the water of the river for the purpose of navigation, and also to use the surplus water incidental to the use of it for navigation, for milling purposes ? and 2ndly, Whether Wheeler, under whom the plaintiffs claim, built and established his dam and mill, in pursuance of the order of Chesterfield court ?

The Appomatox, it must be premised, had, before the order of Chesterfield court authorizing Wheeler to build his mill, been declared a navigable river by law. This feature of the case takes it out of the decision of this court in the case of Crenshaws v. The Slate river company. I think the instruction of the judge to the jury, which belongs to the first inquiry, was perfectly correct. It was, in substance, that the rights of this company, under the several acts referred to, were paramount to the rights of the plaintiffs under the order of Chesterfield court. The jus publicum in the navigation of the river, expressly granted by those acts to the company, for the legitimate purpose of facilitating its navigation, gave to the company, for that object, all the water of the river necessary for the purpose, and also all the surplus water incidental to the use of it for navigation, for milling purposes. Though our institutions and laws are justly tenacious of private rights, yet the ruling principle of them is, that, when private rights come in conflict with public, the former must yield to the latter ; in which event the legislature alone is competent to make compensation. The public right to the navigation of the rivers of the commonwealth, cannot be weaker, than the public right to a highway on the land ; and it will be found, on an examination of our legislation on that subject, that the right of way on the land, has uniformly been asserted, notwithstanding the grant of the land, in the broadest terms, and that without compensation to the proprietor, until a very late period, when by statute the writ of ad quod damnum was provided in that *case. Nor should I think it material, but for The Slate river company’s case, whether a river has or has not been declared navigable by law. The common law on the subject, as understood in England, mixed up, as it is, with the prerogative of the crown, is not to be so understood here. Its peculiar beauty is, that it adapts itself to the rights of parties, under every change of circumstances. So far as it recognizes the prerogative of the crown, it was abolished by the revolution; and, even where that is not the case, it is not always applicable to the same objects here, as in England ; as was said by some of the judges of this court, in the case of Lightfoot v. Colgin, 5 Munf. 42 ; Findlay v. Smith, 6 Munf. 134. Therefore, even the grants of the crown before the revolution, are not now to be interpreted, as before, when the prerogative was in full force here. The public right to a way on the water, or the land, is a trust to be administered by the government for the community at large; never to be destroyed, but to be so administered as to facilitate the enjoyment of it by the public ; as it was administered by the charter incorporating this Appomatox company. It cannot, in its nature, be the subject of a grant to an individual or corporation but for that object, since it cannot be enjoyed as private property in any other mode. I know, that there are rivers and streams in England, in which individuals have a property by grants from the crown, as to which the public right to a highway on them, has ceased to exist. Eord Hale, in his tract de jure maris, p. 8, 9, is not very precise, when he says, there be some streams and rivers that are private, not only in propriety and ownership, but in use, as little streams or rivers that are not a common passage for the king’s subjects. He does not tell us, how these little streams or rivers became private property. We can only infer, that they became so by force of grants from the crown ; especially, as he tells us also, that there be other rivers, as well fresh as salt, that are of common or public use for carriage of boats and lighters, and these, whether they are fresh or salt, whether they flow and reflow or not, 'x'are, prima facie, publici juris. However this may be by the common law in England, I think the doctrine which gives private property in rivers, has no application here, for the reasons before stated. In considering this point, I can perceive nothing in the grants under our legislation, that authorizes the distinction, taken by Hale, as to the streams and rivers of this commonwealth ; nor do I think the broadest of our grants can be so construed. Even the patents under the act of 1705, in which the form of grant is given, and in which rivers, waters, marshes &c. are specified, ought not to be so construed as to deprive the people of this commonwealth of the jus publicum in the navigation of our rivers. In 3 Kent’s commentaries, p. 333, it is said the doctrine was asserted in the state of Jersey, that the soil of its navigable rivers, and the waters also, was private and not public property, that passed in fee simple from the original proprietors under royal patents to the present occupiers and grantees ; that the title was originally in the king, by right of discovery, according to the public law of Europe ; and, upon that foundaiion, that the proprietors of land on rivers and waters, navigable and innavigable, have, immemorially, exercised the right to the soil, and to several fisheries; but this claim was decided to be subject to the jus publicum in the navigation, and also to the regulations of the legislature for the protection and passage of fish. And this too, under a grant to the duke of York from the crown, as comprehensive in its terms as it could well be, even broader than the grants under our land law of 1705, the form of which has been since changed by statute. But, in the present case, we have no such grant before us. And how it can be inferred, from the several statutes concerning mills, that the public right in the navigation of the rivers and streams, on which mills are by those statutes authorized to be erected, passed to the mill owners, I cannot perceive. One of the earliest of those statutes, the act of 1734, ch. 2, 4 Hen. stat. at large, p. S3, 4, expressly and carefully guard the right of way over mill dams. I think, there is nothing in *the statutes authorizing the county courts, upon application to them, to grant leave to erect dams, and to build mills ; on the contrary, the charge prescribed by them to be given to the jury, who are to estimate damages &c. requires, that they are to inquire, whether navigation will be obstructed, or the passage of fish; and provides the remedy in such cases, by directing slopes &c. And, though 'mills are a great public convenience, yet as that convenience, is of an intirely different character from the jus publicum in a highway, the latter, on the construction of the statutes, ought not to be made to yield to the former.

On the second head of inquiry, I concur with judge Carr. I think the defendants had a right to question the authority of the plaintiffs, or of Wheeler, under whom they claimed, to erect their dam or mill under the order of Chesterfield court; the more especially, as the defendants had a right to dispose of the surplus water for milling purposes, which would be materially affected in value, by the mill of the plaintiffs. I think the judgment must be affirmed.

TUCKRR, P.

I am of opinion, that the instruction given by the circuit court upon the trial of this cause, as set forth in the second bill of exceptions, was erroneous. That instruction was vital to the plaintiffs’ action, though it determined but a single insulated question, not affected by the various interesting matters, which have been evolved in the discussion here, and very probably, were fairly before the circuit court.

The action was brought by the plaintiffs in error, to recover damages for a diversion of the water of the Appomatox from their mill, by the defendants. To support the allegation in their declaration, they produced the record of proceedings in the county court, giving leave to build the mill in question, and to erect their dam for its use. It was proved, that the mill was forthwith erected, and has been quietly occupied for twenty years, by the plaintiffs and those under whom they claim. But the plaintiffs, or those under *whom they claim, having built the mill house and dug a mill race to it, on the lands of Tabb, on the main land opposite to Wheeler’s island, instead of on Wheeler’s island, as authorized by the order of the county court, the circuit court, on the motion of the defendants, instructed the jury, that, under the order of the county court, Wheeler had no right to build his mill on-any other land than his own, and to take water from the river for such mill; that the mill in question, was, therefore, not legally established, and so the plaintiffs were not entitled to recover.

Although I think it clear, that an order to build a mill on a particular scite, does not authorize the erection of the mill house at a spot so essentially variant as neither to possess the advantages, nor to avoid the mis-chiefs, which the county court may have had in contemplation, in authorizing the establishment ; yet, upon mature reflection, I very much doubt, whether that question can be collaterally inquired into in this case; and, even if it may be, I am of opinion, that the defendants should have shewn, that the departure from the strict interpretation of the order of court, was so material a departure as to deprive the plaintiffs of the use of the privilege which had been granted them. No such evidence was adduced; on the contrary, the acquiescence of twenty years very strongly evinces, that the change of scite of the mill house, was not considered as material, or as injurious to any one, or inconvenient to the neighbourhood. The question would have been very different, had it appeared, that the dam was not erected where the county court authorized it, or that it had been abandoned, or that a new and unauthorized dam had been erected elsewhere. For the location of the dam is, indeed, required by law to be ascertained, but not the' scite of the mill house. The dam is not only, as to this matter, the principal, and the mill house the ac-cessary, but it is, moreover, as far as appears in this case, the only matter with which the defendants had any thing to do. Had their canal been so located, as to have required the removal of the house, then it might have *become a question whether the plaintiffs had had a right to build a mill house there. But, in the case as it appears in this record, the location of the mill house was not a matter in which they had any concern. The question between the parties, is, merely, whether the plaintiffs had a right to have the water running to their dam ? If they had, and the defendants had diverted it, without lawful authority or superiour right, they are responsible.

Nor is the instruction supported by the pleadings. The plea is th%t the mill and dam were not erected according to the order, and the essential part of the plea, in reference to this contest, is that the dam was not so erected. If that had been proved, then indeed the court might have instructed the jury, that the plaintiffs were not entitled to their action ; but the mere proof as to the mill house, did not sustain the plea, and the instruction was therefore improper.

If I am right in this opinion upon the second bill of exceptions, it is unnecessary to go into an examination of the various questions submitted by the other. For, although it is true, that this court will affirm a judgment notwithstanding an erroneous instruction, against the plaintiff, provided it appears that upon the whole matter the plaintiff is1 not entitled to recover, yeti do not think the facts are sufficiently stated to enable this court to pronounce definitively upon the rights of the parties. I am, therefore, of opinion, that the judgment should be reversed and the cause sent back for a new trial.

Judgment affirmed.  