An accidental misplacing of the papers from the Directors of the Rivanna company, which I recieved thro’ you, & the never having been able to find them till yesterday, nor otherwise to know their contents (for I had not read the principal one) must be my apology for not having taken them into consideration till this moment.1 on reading their resolution of the 12th instant it is a subject of sincere regret that I cannot coincide in their opinion that I am bound to erect a lock, & to keep it in perpetual repair, at the ridge of rocks on which my dam rests.2 I regret it the more because I observe it to be an unanimous opinion of the 4 Directors then present, and because it is so possible that my opinion, in opposition to theirs, may be under a bias of interest insensible to myself. however it is so much a law of reason & right that no decision shall be conclusive until the parties interested are heard, and that even opinions, formed before that, should be erased from the mind, & the new as well as former views be candidly weighed together, that I shall avail myself of it on this occasion. and I am the more encouraged to do it by a thoro’ conviction of the disposition of the Directors to require from me no unnecessary or unjust sacrifice, & of their desire to hear every thing & to do only what, on full discussion shall appear to be right.3

They consider my obligation to erect a lock as founded 1. on the principles of Natural law, & 2. on the right of free navigation reserved by the Inquest who were charged with the execution of the writ of Ad quod damnum.

I. Under the 1st head I must observe that I hold the lands thro’ which the navigation is to pass, under a purchase & grant from the crown, comprehending the bed of the river, across which the chain was stretched both above & below; that the bed of the river was estimated as a part of the contents of the grant, for which the same price was paid as for the other parts of the land; that quitrents were paid regularly for it before the revolution; & since that it has made a part in the estimate of my lands, & the same taxes demanded & paid for it as for the other parts. it is therefore as much my property as any other part of what was conveyed by the patent; & that patent grants all the rights which the nation held in these lands or waters, reserving only the Quitrent, & a certain portion of gold & silver mines, & makes the river as much my private water as the spring from which we drink. the grantee then could exercise, over the river, as well as over the soil, all the natural rights of property, by building on it, or in it, whatever he pleased, or using it otherwise as he pleased. he is limited only by the universal principle of not so using his right of property as to injure the equal rights of his neighbor. he must not, by making a dam, overflow his neighbor’s land, nor prevent the passage of fish to him, nor obstruct his ordinary navigation, if the river admits either, nor annoy his health by stagnating the waters. and in order to prevent these encroachments on his neighbor’s equal rights, the law provides that an inquest shall be charged to ascertain these facts. two inquests have been accordingly charged in the present case with these enquiries, & both have found, that no man’s land will be overflowed, no one’s health annoyed, that no fish pass the river, & that it’s natural obstructions admit of no navigation. on this the court have authorised the use of my natural right of laying a dam on my own soil. in doing this therefore I have committed no wrong, & therefore cannot be subsequently subjected to any penalty or damnification whatever, for what I have done. consequently none such can be imposed on me, ex post facto, by any principle of Natural law.

Notwithstanding this grant however, by the nation to individuals, of lands either dry, or covered with water, without reservation, the necessities of society require, sometimes that a portion of the lands shall be re-taken for some public use, sometimes that a public passage shall be opened either over the lands, or along the waters. but the laws have expressly provided in the cases of lands taken, or of roads, that the damage done by the violation of their grant shall be estimated by a jury & paid for. in the case of passing along rivers, no such provision has been made, because, generally speaking, no damage can be done the owner of the river by what is called an innocent passage along it. but, neither in the case of assuming a passage over his lands or over his waters, can they impose on him any new price or burthen, retrospectively. it is sufficient that they assume, whether he will or not, an use of his property, without making him pay also for their assuming it. thus, if it be found convenient to conduct a road across a mill pond, they do not make the owner build a bridge over that pond, & maintain it perpetually. Why? because in making his mill pond he only exercised a natural right, observing all the conditions prescribed by the law, and no ex post facto condition can be rightfully imposed on him. if he had foreseen that he should be forced to build and perpetually maintain a bridge, he would not have made the pond; & having been at the expence of erecting a mill, according to natural & legal right, it is not now a fair alternative to say to him, either build a bridge, or pull down your dam and mill. had the public first possessed a road there, and the proprietor subsequently proposed to interrupt it by a pond and mill, then he might be required to build & maintain a bridge; and if he decides to do it, he does so with a knolege of all conditions. and this distinction is agreeable to natural reason. where two interfering rights exist, that which is first exercised is to prevail, on the principle of pre-occupancy. thus every one has a right to pass along a road, or to stop & occupy for a short time a particular spot in it. others, tho’ possessing originally a like right to the same spot, cannot remove him who, to equal right, adds preoccupancy. every one has equal right to every place in a theatre, a meeting house, a courthouse, at a tavern-table Etc. and whoever exercises his right first, by occupying any particular place, has a right to it, & no other may disturb his possession.

To apply this reasoning to the present case. on the lower parts of this river, the public were first in possessing themselves of the actual navigation to which they had a right. adjacent proprietors afterwards wished to build dams across the river, to which they had a right also if they had purchased it’s bed. but, the public having preoccupied the navigation, the adjacent landholders may not disturb it. they must therefore so build their dams as not to obstruct the navigation, & to injure that as little as the nature of the case will admit. on the upper parts of the river again, not naturally navigable, the owners of the bed of the river first exercised their rights of building dams; obeying, in doing this, all the requisites of the law. my occupation particularly dates from about 1754. fifty six years back. after this, the upper landholders wish to open a navigation along this private water. they must so do this as not to disturb the rights previously & lawfully exercised by the proprietors, or at least to do them the least injury the nature of the case will admit. as, in carrying a road over a millpond, the public have no right to require the owner to build a bridge; so in carrying navigation thro’ a milldam previously occupying the position, they have no right to require the owner to erect a lock. these are ex post facto conditions rejected by the principles both of law & reason. in the case of the Appamattoc mills, I believe all the millers were required to make locks. but the millers themselves were among the petitioners asking this. they were in pursuit of a higher interest, that of having a water passage to market. on the Rivanna it is possible the upper mill holders may be willing to make locks; not as a condition which could be exacted of4 them, but as the price of a water passage to market. in the case of the Rappahanoc, now in agitation, it is thought that by doubling or trebling the number of the present milldams, they can have a navigation to tide water. the dams now existing have preoccupied the right, & have also saved to the undertakers one half or one third of the expence of building dams.5 it is not proposed, as I have understood, to impose on them the additional burthen of making locks also. these are to be made by the new undertakers, and must be made with as little injury to the mill owners as the nature of the case will admit.6

In the preceding reasoning I have had no reference to the act of the legislature constituting this company, and giving them a right to open the navigation, because I do not possess the law, nor have ever even seen it. I presume it is like all others of the same kind, giving the company a right to take timber, paying for it, stone, paying for it, to dig earth, paying for it: but never to take it from the proprietor, & to make him pay for their taking it. I imagine certainly the law has not laid the land owners at the mercy of the company to be taxed ad libitum, under the form of building locks, of executing such other works as may be required, or of paying a sum of money in commutation: to throw the expence of making a navigation off of the shoulders of those who are to recieve a toll as an equivalent for the expence, on those of the owners of the bed of the river who are to recieve no return for it.7

Perhaps it may be thought that the legislature, if applied to, would force me to build and maintain a lock. we are never to suppose that the legislature will do an act of injustice. if such an act of power has at any time been exercised, it has probably been at the request, or with the consent, or at least without the opposition of the millholder, or perhaps where he was not owner of the bed of the river. suppose, rather than make a lock and incur perpetual obligation to maintain that and the dam, I should prefer giving up my dam. it will not be said that, the dam being taken off, I should be obliged to make a lock to carry boats over the natural ridge of rocks now under the dam. the company, in that case, would certaintly have to make the lock. will it be said that my dam increases the difficulty? that it puts them in a worse situation than they would have been without it? that it will cost them more now than if I had no mill or dam there? on the contrary it certainly promotes8 their object by giving a dead water navigation for a mile upwards, where the river, being on it’s passage thro’ the mountain, passed perpetually among rocks. nay more, they would be obliged to build this very dam, and to raise it one or two feet higher, to enable boats to pass the shoals of the Secretary’s ford, to which the present dam makes it dead water. and accordingly it was at the request of the jury of 1805. and with a view to this very object, that the blank in the inquisition left for the height of the dam, was filled up with 6. feet, instead of 3. or 4. feet, which was all I asked. this fact will be remembered by the persons who were of the jury. my confidence in the justice of the legislature satisfies me that, on proof of these facts, they would not oblige me to make a navigation for the benefit of the company, when what I have done has not only been legal, but has really promoted the opening of the navigation.

I think then I may conclude that no principle of natural law subjects me to the obligation of building a lock, and that no municipal law has given retrospectively to the company, and for their private emolument too, such a power over me. for if the public are to have the use of the navigation, it will be only9 on paying a toll to the company, as a reimbursement and profit on the capital & labor they will have employed in accomplishing the work. it is exactly the case where, according to the maxim of law, the benefit & burthen must go together. if they are to recieve the reimbursement, they must not exact the expenditures from others.10

II. Let us proceed to the right reserved by the Inquest. I think that recalling the attention of the Directors to the text of the Inquisition, they will see that the reservation of a right to the company to make an opening in the dam, or in the natural ridge of rocks on which it was built, leaves it expressly to be made by them, & not by me. my original purpose was to build no dam; but to be satisfied with the fall of water the natural ridge gave me, taking the water from above that by a canal of sufficient depth & width to furnish the supply of water. there was a gap or two in the ridge of 12. or 15.f. width only, which I should have filled with loose stones. this would not have been above a day or two’s work. on this ground the Inquest of 1795. was taken: and the Jury after saying that natural obstructions prevent the navigation, add ‘but if the river be opened for navigation hereafter the interest of the sd Thomas ought to be postponed to that object, and those authorised to open the river should be free to make their opening, in any part they think best, either of the sd natural ridge of rocks, or of any stoppage which the sd Thomas may have made.’ can words be more express? that ‘those authorised to open the river,’ that is ‘the company,’11‘shall be free to make their opening.’ surely this is not saying that I shall make the opening. the injustice of making me open a bed of rocks which were the great obstacle to a navigation in which I had no interest, would have been too glaring to have been proposed, much more to have been agreed to by the jury, or submitted to by me. and I dare appeal to the memory of such of the jurors as are now living among us to declare that no such proposition was made by any one.

Finding, in the prosecution of my work, that there was more rock to remove in the canal than I had expected, and that it would be cheaper to raise a dam of 3. or 4.f. high than to sink the canal that much deeper, I concluded to make such a dam; and for that purpose, in 1805, obtained another inquest. their words authorize an irresistable inference in my favor. after saying, in the very words of the former inquest, that natural obstructions prevent the navigation, at present, they add ‘that if the river be opened for navigation hereafter, if it be found best to pass thro’ the canal of the sd Thomas, this dam will be necessary, to enable vessels to pass; and if it be found best to open the bed of the river, then a lock would be necessary at this dam.’ they do not say here that I am to make the lock: but in another case, where they thought the burthen should be mine, they say so in express terms. ‘that since the erection of milldams below the mill of the sd Thomas, few or no fish of passage have been taken as high as this mill: and that so long as those dams remain, no provision need be made by the said Thomas for the passage of fish, thro’ or over his dam: but that, if the dams below should be removed, or so modified as to admit the passage of fish to the dam proposed by the sd Thomas, then he ought to be obliged to modify his dam also, by a slope, sluice, or such other means as the laws prescribe.’ and at the request of one of the jurors (I think it was 12Henry Williams) assented to by me,13 these words were inserted, ‘it is further understood by the jury, and agreed to on the part of the said 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.’ thus, in the case of a passage for fish, which they thought I ought to make, they say so in express terms, and with perfect correctness; because the upper inhabitants had occupancy of the benefit of fish of passage before my original dam was erected. but, in the case of navigation, they only say, if the canal be used ‘this dam will be necessary’; if the bed of the river be preferred, ‘a lock will be necessary.’ but they do not say that I shall widen the canal, or build the lock. where they thought that I ought to do the work, they impose it on me as a condition, to wit, in the case of fish: but in that of navigation they imposed no such condition on me.

I trust then it is evident that the right reserved by the inquests was only that those authorised should be free to make a passage, the first Inquest, in express terms saying it should be done by others, and the second, by a strong inference implying it should not be done by me.14

Will it be said that the reservation of a right to make an opening in the dam, gives a right to throw down the dam, & to blow up the foundations, so that vessels may pass thro’ on the sluice of water? localities render it impracticable to pass in this way. if they could pass, it would still be against law. this would be to take away the right of the first occupant; to give a preference to a second, over a first exercise of right; to reverse all the principles of law governing interfering rights. but the law is consistent. it requires, in the exercise of all rights, that they shall be so exercised as to do, each to the other, the least injury possible. builders in a town may deposit their materials in the street opposite the building, leaving room for carriages to pass. a carriage has no right, in that case, to drive over their materials. waggoners have a right to encamp in the road, leaving room for other carriages to pass. these have no right to drive over their baggage. a road in a lane is impassable by mire. the common law allows you to open the adjacent fence, putting it up again, and to pass over the adjacent grounds, where the least injury will be done, & doing the least injury possible. the company have a right to a passage thro’ my dam. they must use that right so as to do me the least injury possible, that is, they must always close the dam again as soon as they have past, which can only be done by lock-gates.

I feel thoroughly persuaded that the Directors, reconsidering this case, & yielding to the justice & candor which have rendered them so worthy of the discretionary power entrusted to them, over the property of others, will see, in the preceding observations, what are the real limits of their discretion, as prescribed by law & Natural right.

 

The question, you were instructed to propose to me, Whether, if the Directors finally chuse to make use of the Canal, I would give towards improving the navigation, what the building of a lock would cost? is evidently grounded on the supposition that I am bound to make the lock, for which this commutation is proposed. if I am not so bound, as I think I have proved, then it is asking Whether, after making the dam, and the Canal, I will not also make the lock at the end of it? or, in other words, Whether I will not make a compleat navigation over all the falls occasioned by the passage of the river through the mountains, as the price of having built a mill on my own soil? the very statement of the question in it’s true terms shews what should be the answer. these falls are nearly everything the company has to get over; all other obstructions above being trifling in comparison with them. now their difficulties all lie between the Secretary’s ford, where the river enters the mountain, and the lower end of my canal, where it’s obstructions end. the backwater of my dam, and the Canal, taken together, give a sheet of dead water thro’ this whole distance of a mile and a half, covering all the difficulties above the dam, and leading by all those below, to the natural navigation commencing at the mill. nothing remains now to be done, but to obtain greater breadth of water in the canal, and to make a lock at the end of it. can it be thought a duty in me to do the rest of this work because I have done the first part? this would be very different from merely placing the Company in the situation they would be in, in the natural state of things, with my dam taken away, and the Canal shut to them.15

It may perhaps be said that I have done all this for my own benefit only. and for whose benefit was I bound to do it? but a truer answer is that the farmer recieves as much benefit from the establishment, as myself. the work of the labourer is worth his hire. if the mill recieves a toll, she prepares, in return, the farmer’s grain for market. law and usage have settled the toll as an equivalent for the service she performs. burn all the mills and see whether the farmer was not benefited, as much as the miller, by their erection.—this very enterprize of opening the river, is it for the sole benefit of the company? they indeed are to recieve a toll to repay their labour & expence. but the farmer will recieve more than an equivalent, by the use of an easy water passage for his produce to market. the work then is at least as much for his benefit as for that of the company.16

I sincerely wish this enterprise to be accomplished; because I believe it will be of great advantage to the upper landholders. and if the dam & canal I have made besides yielding something towards my reimbursement, can benefit the transportation of their produce, as they do it’s manufacture; if the embarrasments to my mills, & other neighboring property, (which will be unavoidable with all the good dispositions & care of the Directors) shall produce accomodation to the upper landholders, or if any other reasonable sacrifices of my interests can further theirs, they shall be chearfully yielded. it is indeed with extreme regret that I appear, even for a single moment, an obstacle to this enterprize. but it is in appearance only; for I am confident that my works so far from adding to the obstructions of navigation along the river, have, on the contrary, if that of the canal be adopted, half accomplished the enterprize. I am indeed unwilling to incur a perpetual obligation to make and maintain a lock & dam, because unavoidable failures might happen on my part and place me in default towards the public; because it would constitute an incumbrance on my mill, which would in effect be a transfer of a corresponding proportion of it’s value, & not an inconsiderable one, to the company, without right, & without equivalent; because the form & the effect of such obligations present unpleasant aspects, whichever way they are viewed; for, is the obligation to be merely personal, and to die with myself, or is it to descend on all my representatives? numerous and scattered as they will be in time, how bring such a body into action for all the little repairs of a milldam or lock? is it to be a lien on all my lands? but they too in time will be parcelled into many hands. is it to be on the mill only? but what is the mill, and what it’s boundaries? and am I formally to mortgage these possessions as security for performance of the obligations? view any of these alternatives, with the lawsuits in their train, and say whether a prudent man would be willing to incur them himself, or to entail them on his posterity: and whether blame can be imputed for his declining to embark in them, and for his retiring behind the rampart of strict right.17

Still I am sensible that a formal grant of some rights and liberties to the company will be necessary on my part; such as to make a lock, to use and raise the dam, widen and navigate the canal, a site for their lock, for their tollhouse, the use of the banks and ways adjacent. the simplest form for this will be that of a grant on my part, & of such covenants on theirs, by way of consideration, as the circumstances of the case will render just. all this I shall be ready to concert and execute with the Directors, whenever they think proper: and in all things in my power, and at all times, give them freely and liberally all the facilities and accomodations which their own convenience, or the interests they transact may render acceptable.