
    Richmond.
    Nash v. Upper Appomattox Company.
    1. On a motion for a continuance of a cause on account of the absence of witnesses, the facts which it is expected to prove by them, are stated. If it does not appear that the proof of these facts might be material on the trial, the continuance should be refused.
    2. The 9th section of the act, passed the 23d February 1835, entitled “an act to authorize the Upper Appomattox company to enlarge their capital stock, and for other purposes,” Sessions Acts 1834-5, p. 82, embraces the case of a proprietor, whose land is injured by the erection of a dam across the river, to condemn the abutments of which dam no writ of ad quod damnum had been sued out by the company, they having agreed with the proprietors of the lands owning the abutments.
    
    3. There having been no previous writ of ad quod damnum sued out by the company, to assess the damages sustained by a proprietor of land injured by the erection of a dam, it was proper that the writ sued out by the proprietor, should direct the jury to enquire of and assess the damages sustained by him generally, and not limit it to damages which had not been foreseen, estimated and satisfied.
    4. It was not necessary, either in the writ or inquest, that the land injured should have been set out by metes and bounds; and the finding, in the inquest, that the proprietor’s lands had been injured by the overflowing of the waters of the river, produced by the erection of the dam, and that the damages assessed were on that account, was sufficiently specific.
    At the October term 1840 of the County Court of Amelia, upon notice duly served upon the superintendents of the Upper Appomattox company, Abner Nash moved the Court for a writ of ad quod damnum to ascertain the damages that had accrued to his lands by the erection of a dam across the Appomattox river at Randolph's gravel; which dam abuts upon the lands of John Huddleston of Powhatan, and Richard H. Bra-zeal of Amelia. The writ directed that the jury should view the lands of said Nash, which may probably be damaged or overflowed, and to say of what damage it will be to the proprietor. To say whether, in their opinion, the health of any person will be materially annoyed by the stagnation of the waters; to specify such injury, and the probable damages thus arising.
    The inquest was regularly taken, and the inquisition returned to Court, by which it was found that the damages sustained by the said Abner Nash, in consequence of injury to his lands by the overflowing of the waters of said river, produced by the erection of the dam aforesaid, and which said damages have not been heretofore foreseen, estimated and satisfied, is six hundred dollars: And that the said Nash had sustained no damage from loss of health, by reason of the erection of said dam.
    When the cause was called for trial, the defendants moved for a continuance, on the ground that they had summoned several members of the jury who sat on the inquest, to prove that the assessment of damages made by the jury, was made under an impression derived from the agent of the company, (who however was mistaken therein,) that the dam complained of was three feet nine inches high, when in fact it was only twenty-seven inches high; the agent being in Court, and proving that fact. These witnesses being absent, and it being admitted that they were only summoned to prove this mistake, and their materiality as to that fact being sworn to, the Court overruled the motion, and the defendants excepted.
    The defendants then moved the Court to quash the writ of ad quod damnum, for the reason that the said writ was illegal, and upon the face of it informal and otherwise insufficient; there having been no previous writ of ad quod damnum to enquire of damages occasioned by the dam erected at Randolph's gravel, and here complained of, abutting against the lands of Rich
      
      ard H. Brazeal, below the lands of said Nash; the company having agreed with the proprietor of the lands against which the dam abutted: The counsel stating that the company intended forthwith to sue out a writ ac/j clu°d damnum to enquire of damages arising from the erection of said dam. But the Court refused to quash the writ, and the company again excepted. The cause then coming on to be heard, the Court confirmed the inquest, and adjudged that Nash should recover against the defendants the sum of $ 600, the amount of the damages assessed by the jury, and his costs. The Upper Appomattox Company applied to the Circuit Court of Amelia for a supersedeas to this judgment, which was awarded: And the cause coming on there to be heard, that Court reversed the judgment of the County Court with costs; and proceeding to render such judgment as the County Court ought to have rendered, overruled said Nash’s motion for a writ of ad quod damnum, with costs. And then Nash applied to this Court for a supersedeas, which was awarded.
    
      Patton, for the appellant, and the Attorney General and Cabell, for the appellees, submitted the case on printed arguments.
    For the appellant:
    No other objections to the proceedings are discoverable than those enumerated in the petition of the appellees to the Superior Court. These are,
    First: That the County Court refused to continue the cause to enable the defendants to obtain material testimony. In the bill of exceptions this testimony is stated to be the evidence of several members of the jury who sat upon the inquest to prove that the jury acted under an impression, derived from the agent of the company, (who was mistaken,) that the dam complained of was three feet nine inches, when it was only twenty-seven inches high, which fact this agent, then in Court, proved, this mistake being the only fact proposed to be proved by the jurymen who had been summoned. The County Court was right to refuse the continuance. The testimony should not have been admitted, and could have J . been of no avail. 3 Rob. Prac. 482, Harwell v. Bennett et als., 1 Rand. 282, and cases cited.
    Second: That no previous writ of ad quod damnum had been sued out at the instance of the company. It was on this point that the Superior Court reversed the judgment of the County Court. But the Superior Court obviously erred. The 5th section of the act authorizes the company “to purchase such lands as may be requisite for the necessary lateral canals and locks, and to settle by contract any damages which the works of the company may cause to adjoining lands;” and if this cannot be done, “ then the lands shall be valued, and the damages be assessed by a jury in the manner hereinafter provided.” The 8th section then empowers the company, in order to erect a dam across the river, “if they cannot agree with the proprietor or proprietors of the lands which may be necessary for the abutment, or which may probably be damaged or affected,” to sue out a writ of ad quod damnum, as provided in that section. And the 9th section then provides “ that if any person or persons, owners, occupiers or proprietors of lands, shall sustain any damages from injury to lands, or loss of health, by reason of the erection of said dams, or any of them, which has not been foreseen, estimated and satisfied, such person or persons” may apply for a writ of ad quod damnum, &c. This section certainly does not, in terms, exclude the application by a proprietor, until the company first applies for the writ. Nolis such an intent inferrible from its language. Taking it in connexion with the other provisions of the act, and the reverse intent is perfectly obvious; namely, that either in the case where the company had agreed with the proprietors, or such as they thought interested, or in the case where failing so to agree, they had sued out the writ under the 8th section, and injury should be occasioned to land, or loss of health arise in either case, which had not been foreseen, estimated and satisfied, the proprietor of land, or person so injured, might sue ont their writ of ad quod damnum, &c. under the 9th section. It appears by the exceptions taken by the appellees, (defendants in that court,) to the opinion of the County Court, that the company had agreed with the proprietor of the lands against which their dam abutted, and had erected the same. They doubtless conceived that they had, by contract, discharged all the damages which they could foresee, or were likely to arise, otherwise they had no right to erect the dam ; for, after the erection of the dam, they had no right to the writ under the 8th section, which expressly provides that “ before the said company shall erect any dam,” &c., if they cannot agree with the proprietor, &c., they shall apply for the writ. It is obvious that the 9th section contemplates both cases, otherwise it would be in the power of the company to defeat its provisions in every case, as they have attempted in this.
    Thirdly: That the inquisition is not responsive to the writ or notice, they being for damages generally, and it for such as was not “foreseen, estimated and satisfied.” 'The 9th section requires the writ to “ be directed, executed and returned,” as directed by the 8th section ; and the writ in this case is in exact accordance with this requisition. The inquisition properly shews that the damages assessed, the dam being already erected, had not been “ foreseen, estimated and satisfied.” This objection was not taken in the County Court, nor regarded by the Superior Court, and is not valid to any purpose.
    Fourth: That the writ does not specify the alleged injury. There are two species of injuries referred to in the 9th section, which requires the writ to specify the alleged injury, namely, those “ to land,” and those arising from “loss of health.” The writ in this case specifies that the injury complained of arises from damages that have accrued to Nash’s lands by the erection of this dam. This is all the specification that the statute 1 could have required, or the nature of the case admits of.
    Fifthly: That the jury do not specify or describe the bounds of the land damaged, or in any way ascertain it, &c. Nor was this necessary or practicable. Coleman v. Moody, 4 Hen. & Munf. 1; and Dawson v. Moons, 4 Munf. 535, cited 3 Rob. Pract. 481. The damages to land may arise from its being overflowed, or sobbed, or rendered impracticable of drainage; as well as from the injury done to a whole plantation by the destruction of low grounds, constituting the most valuable part of it, and leaving the rest comparatively valueless. In estimating such damages, the statute does not require any designation of boundaries to the land injured, and it would be impracticable, if required.
    For the appellees:
    On behalf of the appellees, we contend,
    1st. The decision of the Superior Court was right. The 8th section of the act gives the writ of ad quod damnum to the company. The 5th section authorizes the company to acquire the lands necessary for their improvements by purchase, and to settle the damages by contract; and it is only when no agreement can be made, that the writ is authorized. The contract or writ precedes the lawful entry by the company, and the lawful erection of their dam. If the company enter without these preliminary steps, the entry is unlawful, and they may be treated as a trespasser, and subjected to the common law remedies. The act has made no provision for such case, and has given to the land owner no special or summary remedy. In the absence of such provision of the law, it is submitted the Courts cannot supply it. To do this, would be to legislate for the case. The party has an ample and sufficient remedy at common law. But it is not probable the remedy designed was un(3er tp,e gth section. The notice to the superintenr dents shews the dam abutted not on the lands of Nash, but on the lands of other persons. .It does not appear whether the abutment was procured by contract with those persons. The inquisition on- its face shews the assessment was for unforeseen damages.
    If the proceeding was intended to be had under the 9th section, it was irregular, and should have been quashed:
    1st. Because that section requires the Court to order their clerk to issue a Writ specifying the alleged injury.
    Neither the order of Court or the writ specifies the alleged injury. It does not appear whether the damages claimed were for loss of land, or injury to health, or inconveniences from destruction of fordings, or sobbing the lands; or what of the various descriptions of injury which might happen from the erection of the dam, the plaintiff claims. Nor does it appear whether there was any contract, and a claim for damages above the contract, or for entire damages.
    The order for the writ ought to conform to the law, and the alleged injury should be specified. The inquisition gives damages for the overflow of land, not foreseen or estimated. The inquisition should at least have ascertained the height of the dam, the quantity of land that was covered by the refluent water, and its value. Chesapeake Canal Co. v. Hoye, 2 Gratt. 511. In this case, the estimate on the face of the inquisition was for unforeseen damages, and it should have shewn particularly in what the damage consisted, to guard against two contingencies: 1st, a second allowance for damages previously paid; 2d, against a future allowance for the same damages.
    
      But even if these views are wrong, still we contend the County Court erred in refusing a continuance. The matters set forth in the affidavit for continuance were material to the justice of the case, and the Court erred in overruling the motion and giving judgment.
    
      
      See the opinion of the Court for the provisions of the statute.
    
   Daniel, J.

delivered the opinion of the Court.

This Court is of opinion that the County Court of Amelia did not commit any error in refusing, at the December session 1840, to continue the cause at the instance of the appellees. It does not deem it necessary to decide whether it would have been competent for the company, on the trial of the cause, to introduce members of the jury to prove that they had, whilst engaged in ascertaining the damages, been led into a mistake by the agent of the company, as to the height of the dam ; inasmuch as there is nothing in the record from which it appears, or can be inferred, that such mistake probably had any influence on the minds of the jury in determining the amount of damage sustained by the appellant, by the erection of the dam. The inquest was taken after the erection of the dam ; and the jury upon their own inspection, assessed the damages sustained by the appellant in consequence of injury to his lands by the overflowing of the waters of the stream. In an effort to set aside the inquest on the ground of a mistake in the jurors in a matter of fact, it would have been incumbent on the company to prove that such mistake was of a character at least, likely to have had weight with the jury in making up their verdict, and in a motion for a continuance of the cause, founded on the absence of witnesses by whom the company alleged they expected to prove the mistake, the Court had necessarily to decide, not only on the competency, but the probable materiality of the testimony. As it is not made to appear that such testimony was at all material, this Court cannot undertake to say that the company was in anY degree injured by the absence of their witnesses.

This Court is also of opinion, that the writ of ad qU0Cj, damnum was properly sued out at the instance of i l j the appellant. The proceedings in this case were had under an act of Assembly for the improvement of the Appomattox river, passed the 23d February 1835, and entitled “an act to authorize the Upper Appomattox Company to enlarge their capital stock, and for other purposes.” Sessions Acts 1834-5, page 82. The 8th section of the act provides, that the company, before they shall erect any dam across the said river, if they cannot agree with the proprietor or proprietors of the lands necessary for the abutments, or which may be probably damaged or affected, shall make application to the Court of the county wherein the lands are, for a writ of ad quod damnum, which Court shall, thereupon, order the writ, requiring the proper officer to summon a jury to meet upon the lands required for the abutment, or which may be probably damaged. The jury, upon a view of the lands required for the abutments, are to locate by metes and bounds, what may be necessary therefor, and to appraise the same according to its true value; to examine the lands above and below, which may be probably damaged or overflowed; to say of what damage it will be to such proprietors; to say whether the health of any person or persons will be annoyed by the stagnation of the waters, and to specify who will probably sustain such injury, and the probable damages thus arising. The inquest is to be returned to Court and entered of record; and the company on paying to those entitled, the value of the lands located for the abutments, and the damages assessed and costs of the inquest, shall become seized in fee simple of the lands used for the abutments, and authorized to erect the dams.

The 9th section provides, that if any proprietor shall sustain any damage from injury to lands or loss of health by reason of the erection of the dams, which has not been foreseen, estimated and satisfied, such proprietor may, upon application to the County Court, after giving ten days notice to the company, obtain a writ of ad quod damnum, in which writ the clerk, by order of the Court, is to specify the injury. The writ is to be directed, executed and returned, as before directed in the 8th section. The jury are to enquire of and assess the damages, and the proprietor suing out the writ is to have judgment against the company for his damages assessed and costs.

By the 8th section, it was the object of the Legislature to provide a cheap and summary mode, in advance of the erection of the dams, for the ascertainment and assessment of all the damages likely to flow therefrom; and by the 9th, to provide a like summary mode of ascertaining and assessing all the damages, which, after the erection of the dams, might be found to result therefrom, and which were not foreseen and estimated before. The 8th section confers upon the company the right and makes it their duty to embrace in the writ of ad quod damnum all the proprietors who may probably sustain detriment from the erection of the dams. If the company fail to embrace in the writ sued out at their instance, any of such proprietors, or if it fail to sue out any writ, in neither event have the proprietors any right to commence proceedings under the provisions of the 8th section. Prior to the erection of the dam, that right appertains exclusively to the company. The right of the proprietors to commence 'proceedings does not arise till after the erection of the dams; and is secured by the 9th section. If under a writ sued out at the instance of the company the damages of certain of the proprietors are assessed; and after the erection of the dams, such proprietors are found to sustain further damages not foreseen and estimated in the inquest • had-under such writ, such cases would come clearly within the provisions of the 9th section. So if the company, in suing out their writ, should wholly pretersome of the proprietors whose lands would probar r L bly be injured, in such cases also, it is plain that such pretermitted proprietors would, after the erection of the dam, have a right to the writ: Nor is any good reason perceived why the remedy given by the 9th section should be confined to these two classes of cases. There is nothing in the terms of the act requiring us to give to it such a construction as would exclude from its operation the cases where the company, having agreed with the proprietors of the lands owning the abutments, should fail to sue out any writ for assessing the damages to the lands of the proprietors above. The 9th section was intended as a counterpart to the 8th; and with the exception of the provisions relating to the abutments, is co-extensive with it; giving the remedy therein provided, not only to the proprietors whose damages may have been assessed under a writ sued out by the company, and who assert a claim after the erection of the dams, for unforeseen damages, but also to those who may have been omitted in such writ, and still further to all the proprietors, where the company may have failed to sue out any writ. To construe the act otherwise, and hold it as applying only to the two first mentioned classes of cases, would be to leave it entirely in the power of the company, by failing to issue any writ, to drive all the proprietors to their actions; whilst the manifest object of the Legislature was, that none of them should be compelled -to resort to the expense and delays attendant upon the ordinary suits.

The 9th section, as before stated, requires the County Court to order the clerk to specify in the writ of ad qtiod damnum, the nature of the injury complained of; but this Court is of opinion that there is no such failure to do so, as gives to the appellee any just cause of complaint. If there had been an inquisition in the case of the appellant’s lands, before the erection of the dam, it would have been proper, and perhaps necessary, so to frame the writ sued out at his instance, after the erection of the dam, as to shew that the damages to be estimated, had not been previously estimated; and also to specify the injuries, in order that the jury might be confined in their enquiry, to the subjects proper for their inquisition ; and the company saved from the hazard of being subjected to the payment again, of damages already satisfied. But in this case there had been no previous writ. All the damages, therefore, that it would have been proper for a jury to enquire of and assess, under a writ sued out by the company, it was proper for the jury in this case to enquire of and assess, under the writ sued out by Nash. The writ, therefore, properly assumed the form that would have been proper for one sued out, previously to the erection of the dam.

The Court is also of opinion, that it was not necessary, either in the writ or the inquest, that the land injured should have been set out by metes and bounds; or that there should have been any more exact specification of the injuries complained of, and for which damages were assessed, than has been observed. In order to ensure that certainty and completeness, which it is desirable should be found in the proofs to be furnished by the records of judicial proceedings, it would perhaps have been well, if the Legislature had required that the writ, inquisition and judgment should so particularize the injuries complained of, as that, in any subsequent controversy between the parties, there would be no difficulty in ascertaining, by a reference to them, the identity of the subjects embraced, or intended to be embraced, by them. In the absence of such provisions, there is no propriety in holding the parties to the observance of any greater precision in the specifications of the injuries, in the proceedings under review, than would have been deemed sufficient in the proceedings of an action at law brought by the proprietor to recover damages. In such action it would be no good cause of objection to the declaration or to the verdict, that there ° 1 was a failure in either to set out the lands injured, by metes and bounds, or to specify with any great degree of particularity the injuries sustained by the proprietor. The want of precision and exactness in the pleadings and proceedings, would in such case be more likely to result in inconvenience to the plaintiff than to the defendant. The judgment would be a conclusive bar to any further suit for damages that could, by fair construction, be regarded as embraced in such declaration and verdict; and in any new action claiming further compensation, it would be incumbent on the plaintiff to shew that it had not been already awarded to him. So here, if Nash should hereafter issue another writ, he could not recover without first shewing that the damages claimed in it were not foreseen and estimated in the inquest, in this case.

The writ in this case directs the jury to view the lands of the proprietor, which may probably be damaged or overflowed; and to say what damage it will be of to the said proprietor; to say whether, in their opinion, the health of any person will be materially annoyed by the stagnation of the waters; to specify such injury, and the probable damages thus arising. And in the inquest the jurors say, that the damages sustained by Nash, in consequence of injury to his lands by the overflowing of the waters of the river, produced by the erection of the dam, and which said damages have not been heretofore foreseen, estimated and satisfied, is six hundred dollars. And they further find, that Nash has sustained no damage from loss of health, occasioned by the erection of said dam. Here is all the certainty that would have been required in the writ, declaration and verdict in an action of trespass or case brought by Nash i for the recovery of damages; and the Court does not feel called upon to subject the proceedings in this case to a more rigid scrutiny, or a harsher criticism than it would have been proper to apply to the like proceedings in the supposed action just mentioned.

This Court is therefore of opinion, that the County Court did not err in giving judgment for the appellant on the inquest for the damages therein assessed; and, consequently, that the judgment of the Circuit Court reversing the same, is erroneous. This Court doth therefore reverse the judgment of the said Circuit Court with costs ; and proceeding to give such judgment as it ought to have rendered, doth affirm that of the County Court, with costs and damages according to law.

The judgment of the County Court not bearing interest, the judgment of this Court was for damages at the rate of six per centum per annum, from the 1st of April 1841, the date of the judgment of the Circuit Court reversing that of the County Court, to the time when a copy of this judgment should be delivered to the clerk of the Circuit Court.  