
    Wood v. Boughan.
    [Monday, May 14th, 1798.]
    Petition for niil — Trial of Title — Quaere.—If in a petition for a mill, the Court can try the title of the parties to the lands, without the intervention of a jury?
    Same — Issue Directed — Effect.—If the Court direct an issue íd such a case, to try the title, it will not he error, because, it is still open for discussion on the merits.
    
      One question in this cause was, whether the District Court erred in directing an issue, on the appeal from the County Court, to try the title, of. the petitioner to the lands whereon he desired to erect his mill, -and reversing the judgment of the County Court in conformity to the finding of the jury?
    Randolph, for the appellant.
    The law gave no authority to impanel a jury in such cases. Eor, the act directs a jury for special purposes only; which is a proof that they are not to be summoned in ordinary cases. As, therefore, the 330 title is *not one of those enumerated purposes, it is a fair presumption that it was not the intention of the Legislature that there should be a jury with regard to that point. The practice would involve this preposterous doctrine, namely, that a jury might be summoned to review ' the judgment of the County Court: Which being a matter of law, it exclusively belonged to the Court to decide it.
    Warden, contra.
    The District Court have decided upon what was before them. They thought that the title consisted of facts, as well as law, and, therefore, that a jury (who are the proper triers of all matters-of fact-) .ought ■to decide the question. It is probable that the counsel agreed to make up the issue; and where any doubt about facts' occurs, a jury ought to be impanelled, according to the spirit of the bill of rigRts. The direction for a jury was consequently right, in order to ascertain the title; and after that, the Court could judge, upon the other circumstances, whether the petitioner, his title being established,- ■ should have leave to build a mill. ■ ■ ■
    Washington, on the same side. Although the Court are not bound to direct an issue, yet I do not think that it is error in them to have done it, as it was used merely to inform the conscience of the Court; and the verdict is only to be considered as- an evidence of the title. But, by joining issue, the parties on both sides have virtually consented.to the order. It will be said perhaps, that being the order of the Court it could not be resisted, but I answer, that the party should have excepted to the opinion of the Court, it is not necessary that the express consent should áppear on record, for the act of the parties may amount to it. An exception is constantly taken to the opinion of the Court in all cases, of interlocutory orders; " and when omitted, the party is considered as waiving the objection. In the case of forthcoming . bonds, judgment is to be rendered on motion and no jurjr is necessary. Yet, in a case where non est factum was pleaded to a bond 331 of this kind, and issue taken» ^on-.f he plea, to be tried by a -jury, i-t did not occur to the Court, that the order for a jury was erroneous. Although the judgment was reversed upon a ground that rather maintained the propriety of a jury; for, it--was determined that the Court • below erred in rendering, judgment against the sureties until it, was decided whether it was the bond of the principal or not. Such an issue in the case of mills, is tike an issue directed by a Court of Chancery; and in practice it is not unusual for the High Court of Chancery to direct an issue to ascertain a fact; on an appeal from a County Court. So, in this case the Judges of the District Court, sitting to decide on the circumstances, might direct an issue to determine a particular fact concerning which any doubts arose.
    Randolph, in reply.
    The joining issue and neglecting to except, was not any consent, nor operated as a waiver of the objection; because, decency directed that he should submit after the Court had ordered it. It was the duty of the Court to decide the .question; and they could not depute the authority to others. Their decision upon the title would not have been conclusive; but an ejectment would have lain afterwards: Which obviates the argument drawn from the bill of rights; because the party would have been divested of his property, by the decision.
    
      
      Wills — Ownership of Land. — The law expressly says that the party applying to build a mill, must own the land oh which he means to build. Stokes v. Upper Appomatox Co., 3 Leigh 335, citing Wood v. Boughan, 1 Call 329; Wilkinson v. Mayo, 3 H. & M. 565. See also, Pitzer v. Williams, 2 Rob. 251; Keystone Bridge Co. v. Summers, 13 W. Va. 188. See monographic note on “Mill and Milldams” appended to Calhoun v. Palmer, 8 Gratt. 88.
    
   PENDLETON, President.

Delivered the resolution of the Court as follows:

The first question -that occurs is, whether the act of Assembly authorises this Court, Upon this summary proceeding, to enter into a contest about the title of the. parties? or, whether the words of the act, owning lands on one or both sides of the run, are not satisfied by the petitioners . being in possession as visible owners? leaving any person claiming title to pursue the legal remedy for asserting it, since it could not be prejudiced by the proceeding. , •

1 It is probable that the latter was .the intention of the Legislature, or they 332 would have provided ‘'some .mode for .conducting the trial; and not have left an enquiry, which might prove very important, to have been decided by the Court, without the necessity of a jury, con» trary to the spirit of our judiciary system; and, by which, in a suit about an acre in this summary method, the title to a large tract might be involved.

The ownership, therefore, is rather supposed, and accordingly the subsequent enquiries are directed to other objects. Probably if an enquiry into the title be proper, it is a case omitted and ought to be supplied by the Legislature. Our present impressions are, that this mode is improper under the act, without consent of the par-: ties; but, we give no opinion, because, in this case, as in Home v. Richards, the enquiry seems to have proceeded from consent of parties; for, although no consent is stated, there is no compulsory order to introduce it.

The directing of an issue by jury in the District Court we do not consider as error: ,Eor, although we still approve of the decision in Home v. Richards, that the Court were not obliged to direct such issue, yet they might at their discretion adopt this ordinary constitutional mode for their better information; since the case upon the -merits was left open for their discussion. This power is justly assimilated to that of the Chancellor, in directing issues to satisfy his conscience. In neither, is the verdict conclusive.

Upon the merits we have very little doubt; the supposed conflict between the titles derived to old Boughan from Holt’s patent, and that of the appellant under Boughan’s own patent, seems to have no influence, since Boughan in 1705, when he purchased from Holt, appears to have been conscious that his title did not extend beyond the Walnut at H. or red A, and, therefore, in the same year, he purchased of Harper, claiming under the other patent, the five acres: the location of which is the dispute at present, and which, upon the whole proceedings, there is little difficulty 333 in deciding. The ^appellant’s location O, P, Q, R, the Surveyor states to be a mere protraction without paper or evidence to support it; and the appellee’s location red A, B, C and D, appears to agree with the natural descriptions, as testified by the witnesses.

Upon the merits, therefore, the judgment of the District Court is affirmed.  