From Daniel Call
Richmond Octr. 13th. 1799.
Inclosed is a copy of the decree of the Court of Chancery in your suit against Henderson, which in several respects is contrary to what I thought would be right, but found it impossible to procure any other.
Amongst other objections to it you will perceive that as the order of abatement is in the alternative, either that the dfts shall abate or permit you to do it, the latter will most probably be preferred by them, which will throw the expence of the abatement on you, contrary to justice; because he who erected the nuisance ought to be at the expence of pulling it down.
Another inconvenience from this alternative order is that it may create disputes and differences betwixt you relative to the bounds of the antient level; an inconvenience which it would have been extremely easy to avoid by merely directing the dfts to abate. Because if they had failed to do so, the line might have been ascertained, on a motion for an attachment against them for not performing the decree of the Court. This I observed to the Chancellor, but could not prevail in the attempt to get it altered.
You mention in your last letter that some of the dfts are infants. This fact is not mentioned in any of the proceedings; and as it would have been necessary to have undone several things already transacted in the cause, in order to have introduced it, I thought it would have destroyed all your hopes of a speedy decision if any notice had been taken of it. If however you are anxious upon that head I presume the Court would open the decree so as to enable you to take the regular steps against them.
I wonder you did not take the testimony of the other witnesses whom you speak of. But as it is omitted it appears to me that it would be prudent to compel the dfts to come to an early resolution whether they will perform the decree or not according to your notion of what is the true antient level. Because if any dispute should arise upon it, that will be furnishing an opportunity of perpetuating their testimony.
You ask that I will give you instructions relative to the manner of executing1 the decree. This is a compliment to my knowledge which it does not deserve, and your own better judgment and greater information will suggest more upon the subject than I can tell you. But if any hints that I can give will be of any use to you I chearfully offer them.
I think then that the dfts, or those in the immediate occupation of the Mill, should be served with a copy of the decree and that they should be required to pull down the dam to its antient level. If they refuse or neglect2 I think you should offer to have it done yourself; and if they submit you must, in ascertaining the antient level, in some measure depend upon your own judgment if you and the dfts cannot agree upon it. But care should be taken not to reduce it below the antient level, or to commit any other injury not necessary in order to effect the abatement.
The question you ask relative to the stone is very abstract and would admit of very subtle reasoning. The biass of my mind is that it would be decided to be yours and that you might take it away if you could clearly distinguish it. But it would perhaps involve you in more difficulty and embarrassment than you would like to be exposed to, were you to attempt to ascertain your own. For you do not state that it was all taken from your land, but that it was mostly got from thence. You might therefore be extremely puzzled how to ascertain your own from that of the dfts; and although there are some old doctrines of the law which might help you a little, yet from the long disuse of them, it is difficult to say what degree of respect would be paid to them by our courts and juries. In this state of uncertainty it appears to me, that the most adviseable plan would be to bring some action at the common law for the injury, or a Bill in Equity for an account of the Stone. The latter perhaps would be preferable, as it has all the advantages of an action at common law, at the same time that the enquiry is more calm and less subject to be influenced by the heats and animosities of a neighbourhood.
If the dfts will neither abate the nuisance themselves or permit you to do it, affidavits of the refusal, and of the true bounds of the antient level, had better be taken and sent down with a notice to the dfts who refuse that you will move the court upon some day of the next term, for an attachment against them for not performing the decree of the Court or permitting you to do it.
So if the dfts should refuse to permit you to take down the dam to what you suppose was the antient level, similar affidavits should be taken and a similar notice given and transmitted against the sitting of the court. which perhaps will drive the court to the necessity of having the level ascertained by the Surveyor of the County and abated by the Sherif.3 A point which it would be very desireable to bring the case to. Especially as it would probably occasion a full investigation and put an end to any future litigation.
I have now gone through the several parts of your letter which seemed to require an answer, and am afraid I have been tedious; but I did not know how to comprize in fewer words what I had to say. You will therefore be good enough to4 excuse the length of the letter, as well as the blots and5 erasures; for the Court of Appeals being now in Session I have not leisure to copy. I am Sir Yrs very respectfully
RC (MHi); at foot of text: “The Honble. Thomas Jefferson Esquire”; endorsed by TJ as received 17 Oct. and so recorded in SJL.
1. Word interlined in place of “performing.”
2. Two words interlined.
3. Call here canceled a sentence.
4. Preceding four words interlined.
5. Preceding two words interlined.