48. A Bill concerning Mill Dams and Other Obstructions of Water Courses
Be it enacted by the General Assembly, that when any person owning lands on one side of any watercourse the bed whereof belongeth to himself, or to the commonwealth, and desiring to build a water grist mill on such lands, and to erect a dam across the same, for working the said mill, shall not himself have the fee simple property in the lands on the opposite side thereof, against which he would abutt his said dam, he shall make application for a writ of ad quod damnum to the court of the county wherein the lands proposed for the abuttment are, having given ten days previous notice to the proprietor thereof, if he be to be found in the county, and if not, then to his agent therein, if any he hath, which court shall thereupon order their clerk to issue such writ, to be directed to the sheriff commanding him to summon and impannel twelve fit persons, to meet upon the lands so proposed for the abuttment, on a certain day, to be named by the court and inserted in the said writ, of which notice shall be given by the sheriff to the said proprietor, or his agent, as before directed, if neither of them were present in court at the time of the order made; which freeholders, taken, shall be charged, by the said sheriff, impartially and to the best of their skill and judgment, to view the said lands so proposed for an abuttment, and to locate and circumscribe by certain metes and bounds one acre thereof, having due regard therein to the interests of both parties, and to appraise the same according to its true value; to examine the lands above and below, of the property of others, which may probably be overflowed, and say to what damage it will be of to the several proprietors, and whether the mansion house, of any such proprietor, or the offices, curtilage, or garden thereunto immediately belonging, or orchards, will be overflowed; to enquire whether and in what degree fish of passage and ordinary navigation will be obstructed, whether by any and by what means such obstruction may be prevented; and whether, in their opinion, the health of the neighbours will be annoyed by the stagnation of the waters. And the inquest so made and sealed, by the said jurors, together with the writ, shall be returned, by the said sheriff, to the succeeding court; who shall thereupon order summonses to be issued to the several persons, proprietors or tenants, of the lands so located, or found liable to damage, if they be to be found within the county; and if not, then to their agents therein, if any they have, to shew cause why the party applying should not have leave to build the said mill and dam. And in like manner if the person proposing to build such mill and dam shall have the fee simple property in the lands on both sides the stream, yet application shall be made to the court of the county, wherein the mill house will stand, for a writ to examine, as aforesaid, what lands may be overflowed, and say to what damage it will be of to the several proprietors, and whether the mansion house, of any such proprietor, or the offices, curtilage, or garden, thereto immediately belonging, or orchards, will be overflowed; also whether and in what degree fish of passage and ordinary navigation will be obstructed thereby, whether by any and by what means such obstruction may be prevented: and whether in their opinion the health of the neighbours will be annoyed by the stagnation of waters: Which writ shall be directed, executed, and returned as prescribed in the former case. And 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 dam, but if none of these injuries are likely to ensue, they shall then proceed to consider whether, all circumstances weighed, it be reasonable that such leave should be given, and shall give or not give it accordingly: And if given, they shall lay the party applying under such conditions for preventing the obstruction, if any there will be, of fish of passage, and ordinary navigation as to them shall seem right.
And if the party applying obtain leave to build the said mill and dam, he shall upon paying respectively, to the several parties intitled, the value of the acre located, and the damages which the jurors find will be done by overflowing the lands above or below, become seized in fee simple of the said acre of land. But if he shall not, within one year thereafter, begin to build the said mill and finish the same in three years, and afterwards continue it in good repair for public use, or in case the said mill or dam be destroyed, if he shall not begin to rebuild it within one year after such destruction, and finish it within three years, the said acre of land shall revert to the former proprietor and his heirs; unless at the time of such destruction of the said mill or dam the owner thereof be an infant, feme covert, imprisoned, or of unsound mind, in which case he shall be allowed the same terms for beginning and completing the said mill or dam after such disability removed.
The inquest of the said jurors nevertheless, or opinion of the court, shall not bar any prosecution, or action, which any person would have had in law, had this act never been made, other than for such injuries as were actually foreseen and estimated by the said jury.
It shall be lawful for the owner, or tenant, of any such mill, or of any other grist mill, to take for toll one eighth part, and no more, of all grain of which the remaining part shall be ground into meal, and one sixteenth part, and no more, of that the remainder of which shall be ground into hominy or malt.
No owner or tenant, of any mill, not having fifty acres of land adjoining thereto shall keep any swine uninclosed at such mill, on pain that the same shall be liable to be taken and converted to his own use, by the proprietor or tenant of any adjacent lands, or by any other person authorised by them.
Where the owner of any mill, now standing or licensed to be built, hath by any act of Assembly been compelled to make locks, slopes, or openings for navigation or the passage of fish, the same shall be continued under the conditions imposed by such act, and shall be deemed sufficient in law so long as the dam now standing or building shall remain: But it shall not be lawful to rebuild such dam in future but on enquiry by jury into the obstructions of fish and navigation and the means of preventing the same, and the final order of the court, to be applied for and conducted in the manner before directed in other cases.
It shall not be lawful for any person to erect, or fix, in any watercourse, any dam, hedge, weir, seine, drag, or other stoppage whereby navigation, or the passage of fish, may be obstructed, save only for the purpose of working some machine or engine useful to the public, in which cases the same proceedings shall be had, as are before directed, in the case of a water grist mill, or for the purpose of a water grist mill before provided for: And where any such are now standing, or shall hereafter be erected, or fixed, the owner, or tenant, of the lands adjacent thereto (whether the same were erected or fixed by himself or another) shall cause it to be abated. And whoso offendeth herein shall be deemed guilty of a nuisance.
The bed of all tide waters within the low water mark shall be vested in the commonwealth, and shall not be granted to any, except such part thereof as shall be capable of being reclaimed from the water, and shall be actually reclaimed by the grantee within three years after the passing of this act; in all cases of grants heretofore made, and in all cases of future grants within three years after the date thereof. And the channel of all other watercourses, capable of being navigated by any loaded craft, great or small, shall be open to the citizens of this commonwealth, for the purpose of navigation, notwithstanding the bed thereof shall have been granted to any.1
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 38–9. Text of Act as adopted is in Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xii, 187–90.
Bill presented by Madison 31 Oct. 1785, amended and passed by House 29 Nov. and 1 Dec., approved by Senate 5 Dec. (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 12–15, 54, 64, 68, 71, 132). Text of Act as adopted agrees with Bill as proposed except for the difference indicated below and for the addition of a final clause putting the Act into effect 1 Jan. 1787. See the 1748 Act concerning water mills (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends vi, 55–60).
1. This paragraph is not in the Act as adopted.