
    
      Smith v. Waddill.
    February, 1841,
    Richmond.
    Mills and MiUdams — Ad Quod Damnum — Inquisition— Sufficiency of. — S. applies to the county court for leave to build a water grist mill and dam : upon an ad quod damnum, the Inquisition found, “that the health of the neighbours would be less or as little annoyed as it was possible it should be by the erection of any dam:’’ upon return of the inquisition, W. opposed the grant of leave, objecting that the inquisition was insufficient and defective in regard to the effect upon health, and intimating that if that objection should be overruled, he should offer testimony on that point; the county court overruled the objection to the inquisition, and then refused to hear W.’s testimony, and gave S. leave to build the mill. and dam ; W. appealed to the circuit superior court, which heard the testimony he had to offer, but, without deciding upon it, held that the inquisition was insufficient and defective, reversed the order, directed that the inquisition should be quashed, and remanded the cause to the county court: upon appeal taken by S. to this court, Held.
    1. Same — Same—Same—Same.—That the inquisition was sufficient, and the circuit superior court erred in quashing it, but the county court also erred in refusing to hear the testimony offered by W. and so the orders of both courts ' were erroneous.
    2. Same — Same—Same—Cause Remanded. — That the order of the circuit superior court should be reversed with costs, and the cause remanded to that court, to be there heard and decided upon the evidence and the merits; dissentiente Tucker, P., who held, that the cause should be remanded to the circuit superior court, to be thence remanded to the county court for further proceedings to be there had.
    Smith applied to the county court of Hanover for leave to build a water grist mill on Mataduquin creek in that county, and a dam across the stream, he being the owner of the lands on both sides thereof above and below the place where he proposed to build his mill and dam. The court ordered a writ of ad quod damnum, whereupon a jury was regularly summoned by the sheriff, and an inquisition returned, finding “that the lands of no individual would be overflowed or damaged, either above or below, by the erection of a *falling dam sufficient to hold nine feet of water, save the lands of Smith himself, the applicant; that the water would not overflow the mansion house of any proprietor, or the offices, curtilage or garden thereunto immediately belonging, or orchards; that fish of passage, and ordinary navigation would not be obstructed thereby; and that the health of the neighbours would be less or as little annoyed bjr the stagnation of the waters as it was possible it should be in the erection of any dam.” Upon the return of the inquisition, Waddill, a mill owner and farmer, residing about a mile and three quarters from the site of the proposed mill, appeared and was admitted defendant to oppose the application.
    At the hearing, Waddill objected to the grant of leave to Smith to build the mill and dam, on the ground, that the finding of the inquisition was not certainly responsive to the inquiry propounded to the jury, touching the annoyance to the health of the neighbours from the stagnation of the waters by the mill dam, if erected; and that if it was certainly responsive on that point, the finding was in substance against the applicant. And Waddill’s counsel at the same time intimated, that they designed to offer testimony, at another stage of the cause, upon the question whether the health of the neighbourhood would be affected by the proposed mill pond; upon which the counsel for Smith called on Wad-dill’s counsel to produce their testimony at once; insisting that they ought not to be allowed to try the case by piecemeal, to take the chance of a favourable decision upon their objection to the inquisition, and if they should fail in that, then to offer testimony to shew that the health of the neighbourhood would be annoyed by the stagnation of the waters by the proposed dam. Waddill’s counsel said they relied on the inquisition itself as conclusive against Smith’s application for leave to build the proposed mill and dam; as ascertaining, in effect, that the stagnation of the waters in the mill pond would be injurious to the health of the neighbourhood: and they insisted, that they could not be required to offer testimony in support of the finding of the inquisition. The court, without deciding whether Waddill’s testimony should be then adduced or not, proceeded to hear the objection founded on the inquisition, and overruled the same. And then Waddill’s counsel proposed to introduce evidence to shew, that the health of the neighbourhood would be annoyed by the stagnation of the waters in the mill pond, if the proposed dam should be erected. But the court said it had already decided the whole case, refused to hear the evidence offered, and gave Smith leave to erect his mill arid danl. Waddill filed a bill of exceptions, stating the proceedings at the hearing, and appealed from the order granting Smith leave to erect the mill and dam, to the circuit superior court.
    In the circuit superior court, the testimony of witnesses was admitted and heard; but that court did not found its judgment on the testimony, which, therefore, was not inserted in the record. It held, that the inquisition was insufficient and defective, in not finding, with- certainty, whether the health of the neighbourhood would or would not be injured by the erection of the proposed mill and dam; and, therefore, it reversed the judgment, directed that the writ of ad quod damnum and the inquisition should be quashed, and remanded the case to the county court for further proceedings on Smith’s application. To which order, this court, upon the petition of Smith, allowed him a supersedeas.
    Lyons and R. C. Stanard, for the plaintiff in error,
    adverting to the statute, 2 Rev. Code, ch. 235, § 1, 2, 3, 4, 5,* insisted, that the finding of the inquisition touching the effect of the mill pond on the health of the neigh-bourhood, was well enough. ■ All that was required was, that the inquisition should find, substantially, that the health of the neighbourhood would not be injured. Mayo v. Turner, 1 Munf. 405. And this was substantially found by the inquisition in this case. The plain meaning of the finding was, that if it were possible that any mill pond would not injure the health of the neighbourhood, the mill pond in this case would not.
    The jury seemed to have had some difficulty in affirming, that there could be any mill pond which might not cause disease in the neighbourhood; but they declared their belief, that the proposed mill pond would do as little mischief of the kind as any mill pond could; which was, in effect, to say that this mill pond would not be injurious, unless it should be held, against all experience, that every mill pond must be injurious to the health of the neighbour-hood, so as to render it impossible, under the existing laws, to build any mill and *dam upon a water course, since every dam must more or less stagnate the -waters of the stream. Surely, upon the finding in this inquisition, the court might well hold (in the language of the statute) that injury to the health of the neighbour-hood Was not “like to ensue;” in which case,- the statute authorized the court to grant the leave asked. And if it should turn out, that the jury was mistaken, the statute saved to any party who should be injured, his action for damages; which, if there should be any real grievance, would be an effectual remedy.
    R. T. Daniel and Scott, for the defendant in error,
    contended, 1. that it ought to have appeared-by the inquisition, distinctly and positively, that the health of the neighbourhood would not be annoyed by the stagnation of the waters in the mill pond. The health of others ought not to be in the least degree jeoparded for the profit of the applicant. Anciently, when mills were scarce, no inquiry was directed as to the effect of the mill pond upon the health of the neighbours. Act of 1705, ch. 41; 3 Hen. Stat. at Large, 401; 1748, ch. 26; 6 Id. 55. But afterwards, when the country came to abound with mills, the effect of the stagnation of the waters in the mill pond upon health, was made a primary object of inquiry. 1785, ch. 82, § 1; 12 Id. 188. And all our subsequent legislation manifested the same care to' provide against the possibility of such mischief. They insisted, that leave ought not to be granted to erect a mill dam, if there was the least doubt, whether the mill would produce so cruel a grievance as ill health in the neighbourhood. The inquisition in this case, they said, shewed that the jury had doubts upon the subject; and that was enough to condemn the application for leave to build the mill and dam. But, 2. they maintained, that the county court clearly erred in refusing to hear parol testimony as to the probable effect of the stagnation of the waters in the mill pond upon the health of the neighbours.
    *Uyoná replied, as to the last point, that the county court did not refuse to hear the evidence as in itself improper, but because the party would not offer it at the proper stage of the proceedings, but designedly held it back till he could get the judgment of the court upon his objection to the inquisition; a practice, which, if indulged, would have enabled the party to divide the questions presented by the case; and to have, instead of one judgment on the whole case, as many judgments as he could raise points.
    
      
      Mills and nilldams — inquisition. — The principal case is cited In foot-note to Mairs v. Gallahue, 9 Gratt. 94 ; Varner v. Martin, 21 W. Va. 546. See monographic note on “Mills and Milldams” appended to Calhoun v. Palmer, 8 Gratt. 88.
    
    
      
      The statute provides, that upon application made to a county court, for leave to build a mill, and to make a dam across a water course for working- such mill, the court shall order a writ of ad quod dam-num. commanding- the sheriff to summon a jury of twelve freeholders to meet at the place proposed for the mill and dam; that the jury shall be sworn and charged to examine the lands above and below, and (among other things) to say. “whether, in their opinion, the health of the neighbours will be annoyed by the stagnation of the waters;" that the inquisition of the jury shall be returned to the court; and that, “if, on'such inquest, or on other evidence, it shall appear to the court, that the mansion house of any proprietor, or the offices, curtilage or garden thereto immediately belonging, or orchards, will be overflowed, or the health of the neighbours be annoyed, they shall not give leave to build the said mill, and erect the said dam; but if none of these injuries are like to ensue, they shall then proceed to consider, whether, all circumstances weighed, it he reasonable that such leave should he given, and shall give or not give it accordingly,” &c. But that “no inquest, and no opinion or judgment of the court thereupon, shall bar any public prosecution or private action, which could have been had or maintained if this act had never been made, other than prosecutions and actions for such injuries as were actually foreseen and estimated upon such inquest.” — Note in Original Edition.
    
   TUCKER, P.

I am of opinion, that the inquisition, in this case, finds, with sufficient certainty, that the health of the neighbourhood will not be annoyed by the erection of the proposed mill dam. In the present universal conviction of the deleterious influence of the stagnation of water in mill ponds, it is probable no twelve men could concur in a verdict, declaring the entire and absolute freedom from such influence of any mill pond whatever. It is moreover scarcely probable, that such could have been the meaning and intention of the statute itself. So to interpret the statute, would be at once to repeal it; for it would establish a condition upon the leave to build a mill, that would be impossible : and thus, one of the daily blessings of life would be denied, from the idle apprehension of a remote and often only a casual injury. We should be denied bread, for fear that, in some season or other, the means which give it to us might bring ill health. This could not be a judicious interpretation of the statute, even if its own terms did not negative any such rigorous construction. That it does not, however, require the absolute impossibility of annoyance to health to be affirmed, appears from the language of the 5th section, that “if none of these injuries are like to ensue, the court shall proceed to consider whether, all circumstances weighed, it be reasonable to give leave, and shall give or not give it accordingly.” *It is only necessary, that the court should be assured by the inquisition, or otherwise, that the health of the neighbours is not likely to be annoyed. This, I think, is substantially found bjr this inquisition, which declares that “it will be less or as little annoyed as it is possible to be in the erection of any dam.” — This construction of the statute is the less objectionable, as the right of no person to abate the nuisance (if it shall be one) or to recover damages for injury to health, will be barred or impaired by the inquisition of the jury or the judgment of the court. Eor, no such injury having been foreseen and estimated, a prosecution or an action will lie for any person who shall sustain detriment from the stagnant water in the mill pond. And thus, while the convenience of the public is consulted on the one hand, no injustice is done to individuals on the other.

The county court, then, rightly overruled Waddill’s objection to the inquisition and refused to quash. But it erred in refusing to hear the testimony he offered. The circuit superior court ought for that error to have reversed the order of the county court; but it erred in quashing the inquisition as insufficient and defective. The orders of both courts, therefore, must be reversed, and the cause remanded to the circuit superior court, to be sent back to the county court for further proceedings.

The other judges concurred; and an order was entered to the following effect — That the circuit superior court, though right in reversing the order of the county court, yet erred in quashing the inquisition; therefore, the order of the circuit superior court was reversed with costs. And this court proceeding to make such order as the circuit superior court ought to have made, held, that the county court rightly refused to quash the inquisition, but erred in refusing to permit the introduction of the testimony which was offered by Waddill; therefore, the order of the count32 court was also reversed with costs. *And it was ordered, that the cause should be remanded to the circuit superior court, to be thence remanded to the county court, and there further proceeded in.

Uyons afterwards moved, that the order of this court should be so varied, that the cause should be remanded to the circuit superior court, to be there fully heard and decided, instead of directing that it should be remanded from thence to the county court, and the proceedings resumed in that court.

STANARD, J.,

delivered the opinion of the court upon the motion — That the former order should be set aside, and an order to the following effect entered in lieu thereof: That the inquisition was sufficient, and the circuit superior court erred in quashing it, and ought to have proceeded to hear and determine the case upon its merits: That the county court erred in refusing to hear and decide upon the testimony, offered by Waddill, to shew that the health of the neighbourhood would be affected by the erection of the mill dam; but, as the appeal from the order of the county court carried up all matters of law and of fact involved in the case, the proper mode of correcting that error of the county court by the circuit superior court, was to receive that and all other proper evidence in relation to all matters in controversy, and to give its judgment on the merits; which, it was presumed, would have been the courts of the circuit superior court, if it had decided (as this court thought it ought) that the inquisition was sufficient. That, therefore, the order of the circuit superior court should be reversed with costs, and the cause remanded to that court, for a new hearing and decision there upon the merits.

TUCKER, P.

I cannot concur in the proposition to set aside the former order, and to enter that now proposed. *1 am of opinion, that the cause must go back to the county court for further proceedings, and that we cannot direct it to be retained in the circuit superior court.

The case stands thus: Smith applied for leave to build a mill. A writ of ad quod damnum was issued, and an inquisition was found, and returned. Waddill, who opposed the application, moved to quash it, which the county court refused. He then offered evidence to prove, that the health of the neighbourhood would be injured. The court would not permit this evidence to be introduced; and he excepted. The court then proceeded (without, it seems, hearing any evidence) to give the leave asked for. Waddill appealed. The judge of the circuit superior court reversed the ■order of the county court, not for its refusal to hear the evidence, but because he considered the inquisition defective. And he remanded the cause to the county court for further proceedings, setting aside the former proceedings up to the petition. This court has decided, that he erred, and that the inquisition was sufficient. But it has also decided that the refusal of the county court to hear evidence, was also erroneous; and thus the orders of both courts must be reversed.

In this state of things, I am of opinion, that the cause should go back to the county court: 1st. because it is sufficiently manifest, that that court has not heard the case upon evidence: it excluded the evidence, and Waddill excepted to that exclusion: and therefore, the circuit superior court, in going into the facts, will not be proceeding as an appellate tribunal, but originally. 2ndly, Waddill has a right to have the judgment of the county court upon the facts, that tribunal being peculiarly fitted to judge, from all the circumstances, whether it is advisable to grantor to refuse the leave. 3rdly, The statute requires, that in reversing the judgment of the circuit superior court, we shall give such judgment as that *court ought to have done; which is easy enough, if we have only to correct the error of law upon the face of the judgment; but if the circuit superior courtis to proceed to investigate the facts, it is impossible to say, a priori, what that judgment is ultimately to be or ought to be. 4thly, Pursuing the direction of the statute, the judgment to be entered must be, that the order of the county court be reversed with costs; and either that the cause should, according to the usual course of the court, be sent back to the court which committed the error sought to be corrected; or it must be sent for further proceedings to the appellate court (for such the circuit superior court is in relation to this matter, though it is empowered to examine into the whole cause de novo). Now this, I think, would be not only an anomaly, but it would produce difficulty and incongruity. The order of the county court would be now reversed with costs. Suppose the circuit superior court goes into an examination of the facts, and finds, upon that enquiry, that it was right to give leave to build the mill: then, upon the whole matter, the order of the county court is right, and it must be affirmed with costs. Here, then, the same order is first reversed and costs adjudged to Waddill; and then it is affirmed and costs adjudged to Smith. These incongruities seem to me unavoidable, and I am therefore unwilling to pursue the course which leads to them. To avoid these consequences (I presume) the order is presented in its present form. It proceeds upon the idea, that the circuit superior court pronounced judgment of reversal prematurely: that there should have been no reversal for the error in law', until the matter of fact had been enquired into. But this mode of proceeding would have done injustice to Waddill. The county court would not hear his evidence on the merits. He excepted and appealed. Had he not reason? And whether upon a future hearing of the facts he should succeed or not, ought he to pay the costs of an appeal, *taken for the purpose of procuring a fair hearing which had been denied by the county court? I think not. Upon a super-sedeas or appeal from an error in law in a mill case, the party injured is entitled to reversal and costs, if he can shew error, although upon the merits the case may ultimately be decided against him. I think, therefore, the circuit superior court was bound to reverse the order, and send the cause back to the county court; and if so, this court should render the same judgment. _  