Observations on the answer of the 4. other Directors of the Rivanna co.

This answer being corporate, and not on oath, is to be considered, like the bill, as merely parol1 averment, and it’s facts, except so far as supported by proof, are not to be admitted.

pa. 1.   Objection. that an act was passed in 1764. for improving the river; but that nothing appears to have been done under it till the act of 1794.

Answer. every Director knew that the river had been cleared, so as to have been long in use, in fact 30. years, before the act of 1794. no loaded vessel had ever passed from the place where Milton now is until 1764. the sum of £200. was then raised by subscription, the act of that date was procured, and the work was accomplished by Roger & George Thompson on contract. that produced afterwards the settlement, town & inspection of Milton, and from that time our whole produce went down the river. an inference seems intended from this sly affirmation, that nobody but themselves had ever done any thing for the navigation of the river.

2. Obj. that the acts of 1764. 1794. 1805. 1806. are to be considered, not as substitutes the one for the other but as constituting one system, and the provisions of all of them within the rights and powers of the Rivanna co.

Answ. an historical view of these acts was given in some notes which I formerly sent to mr Johnson and mr Peyton to which I now refer for answer to this argument.

4. Obj that if the dam was opened to it’s foundation it would be too rapid for either the ascent or descent of a vessel.

answ. certainly it would; and therefore the jury2 said that the navigation, if it could be effected at all, could only be by a canal or a lock. that lock must be either at the dam, which would let them over the particular ridge of rock on which that stands, or at the mill, which would carry them over all the falls made by the river in it’s passage thro’ the mountain. if at the dam, the fall there is of 6. feet, for which a lock of a single chamber would suffice. and this was their plan when they determined to use the bed of the river, and required me to build the lock. my liability to this we agreed to leave to arbitrators; and in the event of it’s being decided against them, they asked if I would permit them to use my sawmill Canal on the South side of the river. I told them I would, gratis. by entering and passing about 100. yds along that they would be carried over the bed of rock constituting this fall, and might by a single chamber, dug in the solid earth, be let down into the sheet of water below, but there they would have several falls and rapids below amounting to 12. or 14.f. more to get over, by sluices, locks or canals.

The other alternative was, to use the whole of my principal canal on the North side of the river, and place their locks at the mill, where 3. chambers would get them over all the falls and rapids below the dam, as that, by the pond it made, covered all the obstructions above. for it is not true, as the answer says

8. that the part covered by the pond was without obstruction. it was, on the contrary entirely studded with rocks, thro’ the labyrinth of which, if a passage could be found at all, it would have required numerous buoys to point it out. for the whole passage from the head of the pond at the Secretary’s ford to the Sandy falls constitutes the rocky base of the mountain laid bare by the passage of the river at that place.

8.1. Obj. that my agreement to give them the use of my canal was the consideration for their agreeing to the act exempting me from toll.

Ans. in the first place it was no exemption of myself from toll, but of the neighboring farmers from a tax. but this is a libel on the legislature, inasmuch as it implies that they were merchandise in our hands, whose assent we might buy or sell as we pleased. it supposes that they would have waited for the consent of the company to repair the injustice they had been led to commit by their act of 1806. on the misinformation3 of the company. I did not believe nor supposed that I had to buy the justice of the legislature. I knew that nothing was wanting to obtain it but a statement of the whole truth: and altho’ thro’ the instrumentality of one of these defs who was then a representative of the county, the amendment proposed by the Senate in 1813. was laid over by the Representatives for further information, I knew that true information was the only consideration requisite. Besides, look at the agreement as entered by themselves in their own minutes of May 1811. now exhibited, in direct contradiction to that stated in their answer, and in conformity with the statement in the bill, and the total inexecution of a single article on their part, and it will be seen whether they can set up any claim under that agreement. the words in their minutes are these. ‘instead of fixing the locks below the mill-house: and making a reservoir of water in the valley below the mill-door, the Directors are at liberty to fix them above the mills Provided4 they make a reservoir above, by widening part of the canal equal to what would be made by the valley below, and so to regulate the filling their locks as not to check the motion of the mills by too sudden a draught of water from the Canal to the lock.’ this last member of the Proviso is particularly, to be noticed. ‘so to regulate the filling their locks as not to check the motion of the mills.’ they then had well in their minds, altho’ they have loosely expressed it that they were so to regulate the opening of their lock gate, by which was meant that they were so to regulate the level of it’s bottom above that of the canal or forebay, as never to check the motion of the mill: and it is a fact, and I expect to prove it, that the precise difference of level of 2. feet, was agreed to be about a sufficient one and was expected to be observed in fixing the level of the upper lock.

pa. 10. Obj that I pretend that after building the probationary locks they were to be tenants of them at will.

Ans. I pretend to no such thing. I knew that my consent to their going to that expense would entitle them to an equivalent use; and so the bill states and admits. and if yielded to the whole consumption and extinction of that expence, more cannot be of right demanded. but that antecedent consent, after it is revoked, cannot give them a right to commence new works & new expenses. and the readiness declared in their answer to do now in due form what they acknolege they forgot to do formally before, cannot now have effect retrospectively after the consent on my part is withdrawn.

11. 12.
13. 14. Obj. that the public have a right to the navigation.

Answ. I must refer for answer to this to the same Notes referred to in the 2d objection, as having been formerly sent to my counsel.

pa. 12. Obj. that the omission in the patent of the courses & lengths of the lines along & across the river, proves they were not actually run, & did not of course include the bed of the river.

Answ. I appeal to the universal practice of surveyors to refute this presumption. where a survey includes the bed of a river, and has the river in some part for it’s boundary the Surveyor is obliged to run the courses and distances of it’s meanders and crossings to enable him to plat it: but he never enters those numerous courses & distances in his certificate; but supplies them by the phrase ‘thence along the meanders of the river and across the same to such a tree, or to pointers Etc on the opposite bank’ and these courses not being specified in the certificate, cannot be stated in the patent. I believe I might challenge the production of a single instance of a patent specifying courses & distances in such a case. I certainly never saw one.

pa. 15. Obj. that the defs had a right to abate my dam as a nuisance.

Answ. an erection authorised by law, under forms specifically designated and observed, and finally sanctioned by the court, to whom that final sanction is given by the law, cannot be a Nuisance.

pa. 16.5 Obj. the jury is sworn to enquire ‘in what degree fish of passage & ordinary navigation will be obstructed, whether by any and by what means such obstructions may be prevented.’

Answ. were it admitted that the term ordinary navigation means future navigation, that which is to be ordinary a century hence, and not that actually and ordinarily now practiced,—yet the jury is not also authorised to bargain on behalf of the public for the means of preventing the obstruction, for purchasing the land and canal thro which it is to pass, employing workmen to do it Etc. where the jury find as in this case ‘that no navigation is at present practised thro’ this part of the river, natural obstructions preventing the same, that if the sd river be opened for navigation hereafter, if it be found best to pass through the Canal of the sd Thomas, this dam will be necessary to enable vessels to pass, & if it be found best to open the bed of the river, then a lock would be necessary at this dam.’ all this is proper & within their charge. but when they go further and say that ‘it is understood by the jury, and agreed to by the sd Thomas that the canal shall be used as an improvement in extending the navigation from Milton upwards, if that shall be adjudged the best course for the sd navigation.’ in this they go beyond their charge, and the specific terms of their oath. in pretending to make a bargain for the public without any authority, they usurp a function not confided to them, they bind the public to nothing, nor consequently furnish an obligation, on one side, as a valuable consideration for an obligation on the other. their finding therefore is mere parole assertion, and their pretended agreement with me is a nullity in law.

pa. 16. Obj. that the court is authorised ‘to lay the party applying under such conditions for preventing the obstruction, if any there will be, as to them shall seem right.’

Answ. but it is only where the jury find that the dam will be an obstruction, that the court is authorised to impose conditions. here on the contrary the jury find expressly that the dam would be no obstruction, but on the contrary an aid to the navigation. because whether that should be by lock or canal, this dam would be so much done towards it. this then is not the case in which authority is given to the court to impose conditions. and accordingly they imposed none. their order gave leave to build the dam absolutely, & without any condition imposed. and what right have we, by inferences and implications, to interpolate into the record, conditions which they knew themselves unauthorised to impose as that would be,6 in direct opposition to the finding of the jury ‘that the dam would be no obstruction but an aid to the navigation.’

pa. 20. Obj. that their consent to relinquish tolls to me was a consideration for the use of my canal; but they acknolege that they forgot to give it formally, that no tolls however have been required.

Answ. they have unlucky memories, for they forgot to perform any other article of their agreement. considerations forgotten can hardly be valuable ones.

pa. 5. Obj. They say ‘they offered to assist in widening the Canal & that they afterwards did widen it’

Ans. this will be proved a mere untruth. but suppose it true, that they offered, & that they did widen the canal. they do not say, nor can they possibly prove that their offer was accepted, & that my consent was given to their widening it, and the fact is that I not only never consented, but was constant in the determination not to permit them to do any thing towards the widening of the canal, or any thing of use to me, which might be set up as a consideration, or give them any shadow of right to claim the use of the canal. and if they could even prove that they had widened against my consent, they would only prove that they had committed a trespass, and not that they had acquired a right. a right cannot be acquired by doing a wrong.

pa. 13. Obj. ‘every act that has been passed for the opening or improving of rivers & creeks, conferred power to individuals or corporations to remove all obstructions.’

Ans. We may say that this assertion is bold at least. in support of it they quote the two cases of Appamatox & Slate river. they might have added those of Willis’s & Cape Caphon creeks, and especially, and as more signal, that in 1813. of the Monongalia river, where the owner of a mill dam is required to erect and maintain cranes ‘to give effectual aid to boats ascending the river.’ one step more is only wanting to shew to what this precedent leads, to wit, to require the farmer to unhitch his horses from the plough, and geer them to the passing waggons ‘to give effectual aid to them ascending the hills adjacent to their farms.’ but as one swallow does not make a summer, so neither do these few instances where the legislature has been misled by partial information, or justified perhaps by the consent of all parties, prove that they act generally on this principle. possessing only the 2. vols of Pleasant’s Revised code & the Sessions acts from 1812. downwards, I have been able to examine during that period only the laws for clearing rivers.

These volumes furnish laws respecting 18 rivers and creeks making up the great part of those in the state. viz.

1.	Roanoke upper company 16. c. 50.		11.	Tuckahoe cr. 13. c. 36.
2.	Nottoway. 12. c. 39.		12.	Rivanna river. 05. c. 25. 06. c. 55. 11. c. 26. [or 75] 14. c. 39
3.	Meherrin 11. c. 77.		13 —	Rappahanoc, 11. c. 74.
4.	Roanoke & Meherrin canal. 12. c. 113.		14 —	Potomak. 95. c. 13.
5.	Staunton. 14. c. 50.		15 —	Occoquan. 16. c. 56.
6.	Norfolk & Pasquotank canal. 87. c. 1.		16 —	Shenandoah. 02. c. 22. 14. c. 37.
7.	Norfolk & Curratuck. 14. c. 38.		17 —	Kanhaway.
8.	James river.		18.	Middle isld cr. 12. c. 122. 13. c. 101.
9.	Buffalo of Appamattox. 13. c. 35.
10.	Buffalo & Tye rivers.

In not one of these 18. rivers is the owner required to make a lock. in 8. instances out of the 18. where canals are necessary, they permit the company (if unable to agree with the owner amicably) to call a jury to delineate the grounds (not exceeding a certain breadth) necessary for a canal, and to settle all damages to the owner.   these are Roanoke, Roanoke & Meherrin canal, Norfolk & Pasquotank canal, Tuckahoe, Rappahanoc, Potomak, Occoquan & Shenandoah.

But they are to use the water for navigation only the rest belonging to the owner of the bank:7 they are not to use it in waste, nor to use it at all so as to stop the owner’s mill, and where there is no dam already built the owner may build it if he chuses, and it is only where he declines that the company may do it. see Roanoke, Roanoke & Meherrin canal, Norfolk & Pasquotank canal, Tuckahoe, Rappahanoc, Occoquan & Shenandoah. and in Tuckahoe creek they are never to use the water but when it runs over the dam, unless they raise the dam 3.f. when they may use the surplus they produce by that, nor to do any thing below which may reflow the water on the owner’s wheel; the opening of their lock shall not be in the dam, nor is any boatman to land any where but at a lock.

In the case of Middle island creek where (from misinformation probably) they had been surprised into an act of injustice in a law previously past injuring an individual, Wm McCoy ‘proprietor as the corrective act states, of a mill on the sd creek, previous to the passage of the former act,’ they direct the court of Ohio to ascertain the damage the mill would sustain, & to levy it on their county. and the court, on pretence of want of timely notice, having failed to execute the law, they pass another act 13. c. 101. enforcing it.

And in minor branches, capable of little & short navigation, they give authority to make voluntary contracts only, to manage their own affairs, & sometimes give no power expressly, leaving them, as so many individuals, to proceed under the general law of the land this is the case particularly with the Nottoway 12. c. 39. Meherrin 11. c. 77. Norfolk & Curratuck canal 14. c. 38. 16 the Rivanna 05. c. 25. 06. c. 55. 11. c. 26. [or 75.] 14. c. 39. & the Kanhaway.

Yet say these respondents, not indeed on oath, yet under the sanction of their corporate seal, that ‘every act that has been passed for the opening or improving of rivers and creeks, conferred power to individuals or corporations to remove all obstructions’

It was time indeed that these anomalous proceedings should cease; that the English law, so little suited to our geographical circumstances, should be changed and made what it ought to be for the common good. this was done by the general law of 16. c. 46. which has now settled these questions in a general result, to wit, that in running streams, navigable, or capable of being made so, the public has a right to use the water for navigation, the riparian proprietor for all other purposes. and that where mill dams have been erected lawfully and before navigation commenced, the expense of passing them shall be the burthen of those who are to be benefited by it. dams therefore erected before navigation was ordinarily practised thro’ their site, are under the protection of this law, and those who have an interest in passing them must themselves furnish the means of doing it: and dams built where navigation is ordinarily practised are subject to have conditions imposed by the court.

On the whole, this inquisition of the Jury, and this answer manifesting the claims of the defendants shew the value of protecting laws against the avidity of men grasping, with right or wrong, at whatever they can catch. an individual happens to possess the lands on both sides of the main falls of a river, where passing thro the base of a mountain, it presents successive cataracts for more than 2. miles. he wishes to avail himself of the upper one of not more than 3.f. height, by a dam on it of equal height to draw off water to a mill. No, say these respondents, you shall not, unless you will give a compleat navigation thro all the cataracts below that, of 20.f. in height, & 2 miles in length: and I wonder they did not say to the mouth of the river; for their principle would have carried them that far. so when Colo Byrd, who owned the lands from Westham to Richmond & Manchester, on both sides of James river, asked leave to draw water to his toll mill on the river side, No, the court should have said, unless you will give a navigation thro’ the whole falls of James river.