To the honorable John Brown, Judge of the Superior court of1 Chancery holden at Staunton.2

Humbly complaining sheweth unto your Honor your Orator Thomas Jefferson of the county of Albemarle3 that Peter Jefferson father of your orator was in his lifetime seised and possessed as in feesimple of a certain tract of land called Shadwell, on the North side of the Rivanna river, and adjacent thereto in the county of Albemarle whereon he had erected, according to the prescriptions4 of the law, a water grist mill, the water to which was deduced from the river by a canal from a dam across the same about half a mile above the sd mill; which tract of land, with others on both sides of the river adjacent thereto, together with the bed of the river (granted to the said Peter Jefferson by letters patent bearing date the 10th day of Sep. 1755. herewith exhibited No 1.) became the property of your orator,5 on the death of his sd father, which happened in 1757. and by the provisions of his will: that by the great flood, which happened in the year 1771. the sd mill-house was carried away, and it’s dam demolished; and your orator, believing that by a new canal extended ¾ of a mile above the millsite he could draw his supply of water from above a natural ridge6 of rocks, which would render a dam unnecessary, accordingly undertook a new canal, applying to the court for authority for the same, and to rebuild his mill, and getting their order renewed from time to time, during the work: that the undertaking proved to be exceedingly laborious and expensive, immense bodies of rock discovering themselves in the bed of the canal on digging into the same, which required to be removed by the force of gunpowder, sometimes to the depth of fourteen feet: that to these causes of delay were added interruptions by the revolutionary war, almost perpetual absences of your orator, in the public service,7 from home, from the state, and from the continent, during the sd war, and during the period also which succeeded it; & a suit in Chancery which he was obliged to institute to remove a dam newly8 erected below, which overflowed his site; insomuch that altho’ your orator kept employed from 8. or 10. to 15. men, except in the winter months, for more than 20. of the years intervening between the demolition of the old, and completion of the new mill, and consumed additionally immense quantities of gunpowder, iron9 and steel, the sd canal was not completed (and then to the breadth of 5. feet only at bottom) till the year 1807. which quantity of labor and the attendant expences your orator is convinced, from the best calculation he is now able to make, could not have been employed for less than twenty thousand dollars, for the accomplishment of the canal alone, & exclusive of the buildings which have cost him not less than ten thousand Dollars more: that in the year 1795. your orator, flattering himself that he was not very distant from the consummation of his work, had an inquest taken by order of court, which found that,10 your orator not proposing to make a dam, but only to stop some small sluices in the natural ridge of rocks, no lands whatever would be overflowed, nor injurious stagnation of waters produced; that dams below that prevented fish of passage from reaching it; and, from natural obstructions no navigation was practised; ‘but that, if the river be opened for navigation hereafter, the interests of your orator 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 said natural ridge of rocks, or of any stoppage which he should have made.’ as by the sd inquest, to this bill annexed with the order of court thereon,11 as an Exhibit No 2.12 will more particularly appear: that, in the prosecution of the work however, difficulties multiplied, by the increasing quantity of rock, and altho’ your orator enlarged his force, and admitted no intermissions of labor, but during the winter months, ten years more were consumed on it, and the work appeared not yet within any assignable term of accomplishment: concluding therefore that it would be easier to raise a dam 3. or 4. feet high than to sink his canal that much deeper, he applied to the court of Albemarle, in the year 180513 & obtained an order for another Inquest, who attending accordingly, were charged, agreeably to law, to enquire and say on their oaths whether a dam of the height desired would cause the lands of others, or their mansion-house, offices, curtilage, gardens or orchards to be overflowed? whether the health of the neighbors would be annoyed by the stagnation of the waters? in what degree fish of passage & ordinary navigation would be obstructed, & whether by any and14 what means such obstruction might be prevented: but they were neither charged nor authorised by law, nor by their oath, to make any bargains as to these particulars, to bind the public by any stipulations, or to impose any conditions on your orator, but simply to state with truth the facts referred to their enquiry by law: that they accordingly found and stated, as had been done by the Inquest which had acted before them, that no injury would be produced to the property or health of others, that few or no fish of passage were taken as high as this mill, ‘that no navigation was then practised thro’ this part of the said river, natural obstructions preventing the same, that if the river be opened for navigation hereafter, if it be found best to pass thro’ the canal of the proprietor, this dam would 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’: that in the course of the examination one or more individuals of the jury15 suggested the opinion that the most practicable channel of future16 navigation for this part of the river would be the canal of your orator, and expressed a wish that this might be permitted, which was answered on the part of your orator generally and in substance (for at this distance of time he does not pretend to recollect the very words which past, but his general impression only)17 by expressions of his willingness to accomodate the public on this, as on all other occasions, not too injurious; but that no words passed constituting or importing an actual contract, or any contemplation of making a present one; for your orator well knew that, besides the want of authority in the jury to make or to exact any contract on the subject, before such general permission could be given, many preliminary articles and arrangements must be stipulated, and that the settlement of these18 would require something more of consideration and solemnity than mere conversations in the field with a jury, whose formal stipulations even would oblige nobody, because authorised by nobody: that nevertheless when the jury retired in secret to close their inquisition, these individuals persisted, (on what motives will perhaps appear in the evidence)19 in inserting what has been considered as importing an agreement20 on the part of your orator, while others opposed it as none of their business, being21 no part of the duties or authorities committed to them; but these finally acquiesced,22 and these words were entered at the close of their inquisition, to wit, ‘it is further understood by the jury, and agreed to on the part of the sd Thomas [your orator meaning]23 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,’ and the jurors enlarged the height of the dam proposed to six feet, instead of 3. or 4. intended by your orator, who24 took no avail however from this enlargement,25 & raised his dam three feet only on the upper side;26 and that in this form the sd inquisition No 3. was returned and placed on the records of the court and the order given which is thereto subjoined;27 but on inspection of the original, now on the files in the clerk’s office it will be seen that the whole of the inquest preceding those words ‘it is further understood by the jury and agreed to on the part of the sd Thomas’28 Etc is in the handwriting of this Complainant, but that those words, and what follow are in the handwriting of another; whereas, having written the rest of the inquisition for them, and being on the spot and a few paces distant only, it would seem a thing of course that they should have requested him to write this passage also, were it only as a proof of his knolege and agreement to it; and the omission to do this may naturally excite a suspicion that what he knew, he wrote; and what he did not write was either not known, or not agreed to by him: that two years still of labor and expence were incurred29 before the final completion of your orator’s mills, which did not get into operation until the year 1807. thirty six years after the destruction of the original mill; during which whole time their reestablishment was pursued, with no considerable intermissions except a part of the 6. years of your orator’s absence in Europe.

And your orator further states that several acts of assembly having been previously passed from the year 1764. to 1805. inclusive; authorising various schemes and propositions for opening & improving the navigation of the sd river, some by voluntary subscriptions, others by associated companies, all of which had failed in their execution, and become abortive, certain individuals in 1806 proposed that another company and capital should be made up and an undertaking entered into for opening the navigation of the sd Rivanna river from Moore’s ford opposite Charlottesville to Milton,30 a distance of about five miles (from whence downwards navigation was already habitually practised) with the privilege of taking tolls as a reimbursement and profit for the capital to be employed: that for this purpose they petitioned the legislature who accordingly passed ‘an Act incorporating a company to open and improve the navigation of the Rivanna river from Milton to Moore’s ford opposite the town of Charlottesville in the county of Albemarle.’ bearing date Dec. 30. 1806. authorising subscriptions to be recieved for the purpose, incorporating the subscribers by the style & title31 of ‘the Rivanna company,’ giving them power to chuse five Directors ‘to manage the business of the association,’ and giving to the Directors powers to appoint a treasurer, to order payment of the subscriptions, ‘to contract and agree with any person or persons for clearing and improving the navigation of the said river in such manner as they shall think proper’ and to recieve specified tolls; in which act, and a subsequent amendatory act, and in the general principles of law resulting from them, and in no other source, are contained all the rights and powers of this company: that the company from slow progress in the subscriptions of capital, and delays of organisation, did not commence it’s operations32 until the year 1810: that Directors having been then appointed, to wit, George Divers, William D. Meriwether, Nimrod Bramham,33 Dabney Minor and John Kelly esquires, all of them of the same county of Albemarle, and as subscribers, members and Directors of the sd Rivanna company,34 named defendants in this bill, a meeting of the four last named of the sd Directors was had on the35 12th of Sep. 1810. at the sd Shadwell mills, at which they came to resolutions declaring that, if they should chuse to carry the navigation along the bed of the river, your orator must, at his own expence, erect a lock in the sd dam, and keep the same in perpetual repair, and, if they should chuse to carry the navigation thro’ his canal, they proposed that he should appropriate as much money and labor to further improvements of his canal as would be equal to the erection and perpetual repairs of the locks in former case: on which resolutions, claiming right to the labors of the life of your orator, & to the fruits of his heavy and oppressive expenditures before stated, your orator begs leave to observe, that between Moore’s ford and Milton, the limits permitted to the sd company, the obstructions to navigation are so inconsiderable that they would have been easily and voluntarily removed by the neighbors themselves, rather than be subject to a toll,36 excepting only the passage of the river thro’ the South West ridge of mountains, from it’s entrance into them at the Secretary’s ford to it’s last issue from them at the foot of the Sandy falls; thro’ which space of two miles and a quarter, the river exhibits a perpetual succession of rocks and rapids, all of which are compleatly gotten over by the dead sheet of water effected by your orator’s pond, heading at the Secretary’s ford and his canal ending 28. poles below the Sandy falls; for the use of which accomodation,37 very great as it was, and such as the funds of the company could never have effected, your orator asked of them neither compensation nor reimbursement, but such reasonable cautions only as experience might prove necessary to guard his works against interruption or destruction; yet38 these resolutions proposed that in addition to this accomodation,39 your orator should give a still further sum equal to the cost and perpetual maintenance40 of the locks which should let the boats down from his canal into the river; thus requiring the whole difficulties of the navigation to be surmounted41 at his individual expence, while the tolls permitted to be levied to defray the expences of these works would go into the pockets of the company to reimburse monies which they had never expended on them:42 that the authority or legality of43 these resolutions, communicated to your orator by the Secretary of the Directors, in the copy of the same annexed to this bill as an Exhibit No 4. being absolutely denied by your orator,44 a conference with him was requested in a letter from their Secretary of Oct. 10. 1810.45 at which conference the conflicting claims & opinions were discussed, a desire of friendly compromise was manifested46 on both sides, many propositions were exchanged in that spirit, & they separated with a view to commit to writing in due form such articles as their conversation had induced them to hope might be mutually acceded to: that with this view your orator prepared the draught of an indenture, and communicated it to their Secretary, who answered the same by his letter of Nov. 10. 1810. No 5.47 now exhibited, and inclosing the counter draught No 6.48 that while your orator was under expectation that the points of difference were now so nearly approximated as to give hopes they would lead to a conclusion, which altho’ not entirely satisfactory to either party,49 might be preferred by both as a compromise for the sake of peace, he recieved from the Secretary of the Directors, a letter of January 18. 1811. covering50 their resolutions of Jan. 8. 1811. No 7. with a Statement No 8. informing your orator that they had abandoned altogether51 the plan of carrying the navigation thro’ the canal of your orator, and had resolved to open52 the bed of the river; and, still thinking that your orator would be bound to erect and maintain the lock, which would be necessary at his dam, proposed to refer that question to arbitrators learned in the law to be mutually agreed on: that your orator, without delay, in a letter to the Secretary of January 24. No 9.53 expressed his great satisfaction at this abandonment of their views on his Canal, and their adoption of the bed of the river, and that he would chearfully concur in referring to arbitration the decision of the question of his liability to erect and maintain the lock: that being then near his departure on a journey, he would be ready on his return to do what was further54 requisite; and that on his return, he further offered, in a letter to the Secretary of Mar. 3. 1811. No 10.55 to save them56 even the trouble of an arbitration, by removing his dam to it’s foundation in such place, and of such width as the Directors should deem necessary; that thus restoring a sufficient width of57 the bed of the river to the state of nature, in which it was before he built his dam, the residue of his dam58 would be an aid, instead of an obstacle to navigation, by making a deeper sluice, and thus the ground of the proposed arbitration be entirely done away;59 which several papers Nos 7. 8. 9. 10. he annexes to this bill & prays that they may be recieved as Exhibits:

That your orator thus liberated from the embarrasments which had threatened his Canal and mills, and from pretensions which tended to poison his title to his own property, determined immediately to carry into execution and at his own expence60 what he had always intended sooner or later to do, that is to say, to widen his canal so as to enable those above who should chuse to have their grain manufactured at his mills, to bring it in boats to the mill-door, which he accordingly undertook, and, with a strong force accomplished without much delay,61 taking down also62 a massive work of stone which constituted his pierhead at the entrance of the Canal, with an arch & bridge over it of stone, because the gate was too narrow, and the arch too low to admit a boat loaded with grain, blowing the opening of the rock to it’s necessary width, and rebuilding the pierhead in the same massive form, with an arch high enough to admit loaded vessels;63 and thus gave to his customers from above, and to himself for what wheat he should purchase,64 a safe navigation from the Secretary’s ford to his mill: and, still to increase it’s conveniences, being now become proprietor of the land adjacent to the Milton falls on the South side of the river and about three quarters of a mile below his mill, while the lands adjacent to the sd falls on the North side were the property of Thomas Mann Randolph esq. he in conjunction with the sd Thomas M. opened a practicable and safe sluice through the sd Milton falls to the sheet of water adjacent to the town, so that a safe navigation was now compleated for whatever should come to his mill, as well as what should issue from it,65 to the town of Milton from whence the navigation downwards had been long in use.66

And your orator further shews that the sd act of assembly establishing the sd Rivanna company had authorised them to place their toll-house at Milton, and to exact toll from whatever should pass that toll-house; that this was67 nearly a mile below the locks of the great falls if established at their lower end68 at your orator’s mill, and a mile and three quarters below them if established69 at your orator’s dam; that it consequently subjected to toll all the produce of the adjacent country, above & below, which should be brought in waggons to your orator’s mills, or to any other landing within that space, and be water-borne from thence, all the produce of the farmers above, which, without entering their locks, should be sent to your orator’s mill to be manufactured on account of the owner, and all your orator’s own grain, whether raised or purchased, which, in like manner, without entering their locks, should pass along his own pond and canal, to and from his own mills: which toll might as reasonably have been levied on whatever passed along roads, or other rivers, thro’ the whole state: that a bill being introduced into the House of Delegates70 at the ensuing session of 1812–1371 to amend the former law in other particulars, your orator wished that this flagrant injustice, of which the legislature could not have been aware, should also be amended, and he applied to the Delegates72 of the county, and Senator of the district to have it done; that the sd Directors, on behalf of the sd company being opposed to this (as is declared in the letter of their secretary of Nov. 10. 1810. No 5. in these words ‘an exception is next made to any produce, other than of your own lands adjacent, passing by water to your mill toll free’) the bill passed the lower house without this correction, and an amendment inserting it being proposed73 from the Senate, it was suffered to lie over74 unacted on; that in the course of the ensuing year the sd Directors taking the subject into more mature75 consideration, agreed that the legislature should be requested to pass the sd bill as amended by the Senate, restraining their right of toll to what only should pass thro’ their locks, and saving moreover all private rights; and the bill was accordingly so passed.76

And your orator further states that all the propositions which had been formerly exchanged between the parties as preparatory to a contract for yielding to the sd company a qualified right of using his canal, having fallen to the ground by the abandonment of that negociation, and become null and unobligatory as if never made; and a more careful reexamination, and trials of the bed of the river having convinced the Directors that to effect a passage along that was beyond the competence of the company’s funds, and induced an abandonment of that measure also, & of the arbitration proposed;77 and your orator having now moreover widened his canal78 so as to make it compleatly navigable for loaded boats, for the benefit of his customers and himself, the Directors79 returned to the wish of being permitted to avail the Company of it for their navigation also, for which nothing was now necessary but to80 make the locks, and a short cut into them from your orator’s canal: that your orator being sincerely disposed to accomodate the Company by any sacrifices not too injurious to the works to which he had devoted so much time, labor and expence, readily concurred with them in a new effort to devise means of effecting this: that in proceeding to details, the spot in which81 the locks should be placed produced some difference of opinion, among the Directors themselves, as well as with your orator: that your orator was very anxious that they should be placed below his mill, where a capacious hollow formed by a spring branch offered a reservoir,82 which being filled by the water running in waste thro’ the night, and that also which was furnished by the spring,83 might have gone far towards, and perhaps sufficed for,84 discharging the boats of the day, and threatened85 so little danger to the mills, that your orator offered to release them from all responsibility for any damage which might be produced by the destruction of the locks, if placed there: that a majority of the Directors, and he believes all of them, except the defendant William D. Meriwether,86 concurred in these views, and ordered the locks to be placed there accordingly; but that the defendant William D. Meriwether, to whom the plan and87 execution of the work was to be confided, insisted with strenuousness that they should be placed above the mill, in the narrow spit of land between the canal & river, composed of a loose sandy mould of little resistance against water; and pressed it so perseveringly, that the other Directors, yielding to his urgencies, rescinded their order: that the business between your orator and them was thenceforward88 carried on by verbal conference only,89 and without writing: that your orator had become sensible that time and actual experience would be necessary to develope the inconveniencies and injuries actually produced90 by the navigation of his canal, and which should be guarded against by specific contract; and the Directors, as he supposed, were willing to avoid a definite and formal explanation of their liabilities; but that it was perfectly91 expressed and understood that your orator was to let them have the use of the canal and surplus water only; that in times of low water, when there should not be enough for both the mills & locks, the mills were to have the preference, and to continue uninterrupted in their operations; and that for this purpose it was agreed that the bottom of the upper lock gate should be made two feet above the level of92 the forebays of the mills; or, instead of that, that a bason should be dug below the opening to the locks, of such capacity93 that it’s contents should be sufficient to keep the mills going during the passage of boats;94 and on this general understanding the Directors went on building their locks, and your orator acquiesced in their doing so, and gave the greater part of the timber for their construction, without any specification in writing95 of conditions in detail, or any mention, even in conversation,96 of the term of time they should continue, each party trusting to a reasonable conduct in the other: that the bason which was made was found in experience to suffice for the mills but a few minutes only, that the bottom of the upper lock gate, instead of being made two feet higher than that of the forebays, is in fact twenty two inches lower: that the bottom of the third or lowest chamber, which should have been below the level of the river water at it’s tail, so that boats might float out or in on the dead water of that level at all times, was made considerably higher, thereby forming, at low tides, a dry shoal between the tail of the lock, and the dead water of the river, insomuch that for a boat which has descended into the 3d lock, a great re-supply of water from above is necessary to form a wave sufficient to float it over the shoal into the water of the river below, thereby occasioning a great waste of water, and a much greater with the return-boats, for which the gates of all the chambers must be thrown open, & the whole current of the canal drawn thro them to furnish a stream on which the ascending boat may ride up into the lowest lock, a most unreasonable abuse certainly of the use of the water indulged to them, and at times when least to be spared:97 that the works were so leaky as to let as much water pass thro’ them habitually as would turn a pair of mill stones; and moreover there being no keeper to the locks, the boatmen often opened them without consulting98 the miller, whose first notice would be a cessation of the motion of his mill:99 that this state of things being considered as merely probationary, and leading to a100 developement of the provisions which would be necessary in future and101 formal contracts for a fixed term, it was submitted to with little complaint and the miller, in dry seasons, when applied to by the boatmen, generally stopped his mill, and gave them the benefit of the water for the passage of their boat: that the locks commenced operation in   and continued until the summer of 1816. when, having been built of green timber, they had so far gone to decay that the sides of the chambers had bulged inwardly from the pressure of the earth in which they were incased, and the uppermost particularly102 so much as not to admit a boat: that their condition being now such as that no partial repairs could probably continue them practicable more than another year, when their entire rebuilding would become necessary and perhaps103 of more permanent materials;104 and as the company would by that time have had the whole benefit of their expenditures by the entire rotting and disappearance of the subject on which they had been employed so as105 (in the absence of all valuable consideration of the part of your orator as the price of his permission) to remove all claim founded on106 any expences which that permission had led them to incur, your orator thought it a fit occasion to bring to a pause the loose and indefinite course hitherto pursued, and to come to a107 written and formal agreement of the specific interests, powers and obligations of each party in future:108 that he therefore wrote the letter of Aug. 25. 1816. No 11. requesting a meeting and conference with the Directors: that a meeting was accordingly had,109 at which the defendants George Divers, William D. Meriwether, Dabney Minor and John Kelly attended: that your orator stated to them the inconveniencies and injuries with which the use of his canal for the purposes of navigation had been attended,110 the entire inefficacy of the bason constructed, the want of a proper111 difference of level between the entrance of the upper lock, and of the forebays, the irregularities of the boatmen in drawing off the water in dry seasons for their boats, and leaving the mills in inaction, the great addition to the expenditure of water, in low tides, & when least to be spared, occasioned by the error in the level of the lowest chamber, the habitual waste of water from the leakiness of the works, their present ruinous state of endangering their being broken up, and with them the spit of land separating the canal from the river, and, without expressing or entertaining an idea of refusing to continue to them the use of the canal under just regulations, he requested to know what they would propose112 to do? that this question was answered by the def. William D. Meriwether, by asking in return what he (your orator) meant to do? would he repair the locks? would he rebuild them? would he raise and maintain his dam so high as to give at all times a sufficient volume of water for both the locks and mills? all of which interrogatories113 being answered negatively the sd William D. Meriwether declared peremptorily that your orator was bound to erect and permanently maintain the locks, that he had granted to them the use of his canal, which implied a grant of the water also, without which it would be useless, and that when there was water sufficient for the locks only,114 or for the mills, the locks were entitled to the preference, and the mills were to stand still. your orator could not but be astonished and confounded115 at the high & peremptory tone and compass116 of this assumption over his property; and altho’ the other defs present did not confirm the dogmas117 of their colleague, but acknoleged the preference of the mills in the right to water, and that the surplus alone was what they had understood to be yielded to them, yet considering that the said William D. Meriwether was to be, as he had been, their Executive agent, fearing the efficaciousness of his perseverances, and expecting an uneasy time under his hands, and the more so as he would deem himself in the exercise of rights, and your orator as recieving water by indulgence only, your orator retired from the meeting, in the persuasion that he ought no longer to trust the condition of his title to the fugitive remembrance of verbal conversations, and indefinite understandings; and much less that, on such ground and with such a prospect, he ought to enter on a new term of undefined indulgence in the use of his canal; and the Directors, as he learnt afterwards, proceeded118 to resolutions for temporary repairs only, and such as may perhaps continue119 the sd locks practicable another year: and he takes occasion here to do justice to the conduct and dispositions of the other directors in these transactions, and to declare that they have120 been on every occasion moderate, candid, and friendly;121 he charges them with no frauds, no combinations or confederacies, which the usual style of application to this honorable court122 seems to have supposed necessary to give it jurisdiction; he is persuaded123 that their proceedings have been the result of opinions honestly entertained, and pursued from a sense of duty to the company for which they act; and believing the assertion of no falsehood necessary to authorize this honorable court to interpose between the conflicting124 claims of it’s suitors, he charges only that these claims and proceedings of the sd Directors and company125 are contrary to equity and good conscience, that they are injurious to your orator, and126 properly, and only relievable in this honorable127 court, which alone hath power to quiet the title of those whose property is menaced and clouded128 by adverse pretensions, to be brought forwards perhaps at a future day, when129 the death of parties and witnesses, or other circumstances, may have occurred unfavorable to right and truth, and injuring, by doubt, in the mean time, the sale or other disposition of the property.130

And your Orator131 says therefore that So it is, may it please your honor that132 the sd Directors, sometimes pretend133 that the upper inhabitants have by the principles of law, both natural and civil,134 a right of passage along all navigable waters; whereas, your orator, without appealing to strictness of law, because as willing as they are desirous that the upper inhabitants should have the benefit of an innocent passage along the river, asserts that when streams, not naturally navigable, are proposed to be made so, it is to be at the expence of those to be benefited by it, and not by the prostration of the rights of the riparian proprietors,135 no law, natural or civil, imposing on these136 the burthen of making navigable the watercourses in or adjacent to their lands:137 that the portion of the Rivanna which passes thro’ the base of the South West mountains neither was, nor is yet, naturally navigable, that part of it only being even now navigable which is made so by your orator’s mill dam; that, owning the bed of the river, and the lands adjacent on both sides by purchase and grant from the king, the organ of that time for the exercise of this national function,138 (with no other reservation but of certain mines, if any, and of a quitrent) your orator did what he had a lawful right to do, in laying down a dam on the bed of the river, observing at the same time all the preliminary requisitions of the law, and that no ex post facto burthen or139 condition can be imposed on him; but that those whose interest it is to make that part of the river navigable, and especially those who are to recieve a toll for doing it,140 must do it at their own expence of locks, sluices, or other means, doing to your orator’s dam the least injury possible; and for the soundness of this doctrine he appeals to the law of Feb. 13. 1816. c. 46. entitled ‘an act to prevent obstructions in the navigable watercourses within the Commonwealth,’ which, altho’ it takes away Common-law rights in running waters, grantable by the law, and granted by the king (tidewaters alone being unsusceptible of grant) and altho’ it declares itself prospective only, yet your orator is willing that it shall act retrospectively on his case, because he thinks it’s restrictions salutary for the public, and such as ought to have been provided at a much earlier date. by this act, whose object is to reduce to uniformity and sound principle a practice which had been various unsettled, and not always strict in right, as to141 streams not naturally navigable, but capable of being made so, it is declared that whenever dams are made across such, they shall not impair the public right to the use of the water for the purpose of navigation, but that it shall be lawful for the public to insert locks in the dams, and to use the water necessary for navigation without making any compensation for it to the owner of the dam; plainly shewing that the locks are to be inserted at the expence of the public, or of those individuals, few or many, acting as if they were the public:142 but your orator denies that any law, natural or civil, gives to one individual a right to enter another’s land, to dig a canal thro’ it for the purposes of navigation, or to take possession of one dug by the proprietor himself for his own purposes, and much less so to use it by making locks or other constructions of his own, as to destroy or endanger the constructions or uses for which the proprietor made it; and he adds that if instances of authorising143 canals thro’ the private freehold of a citizen can be quoted within this commonwealth they are extremely few, on occasions of the first magnitude, by authority of a law made in each special case, providing ample indemnification to the proprietor, and generally indeed presenting to him some advantage which procures his consent to this violation of his property.*144

But the Directors further pretend that they have acquired a right to the use of your orator’s canal by contract between one of the juries and himself, alledging in express words ‘that146 the jury granted him the right to build a dam, and that the right of improving & using the canal was one consideration with the jury in granting him the right to make a dam.’ but 1st147 your orator utterly denies that he held or derived the right to make a dam from any jury, any court, or any other existing functionary: he affirms that the original purchase and grant from the crown gave him that right, that the exercise of it has been so far only laid under restraint by the law as that he was not permitted to overflow the property or annoy the health of others, or to obstruct ordinary navigation, that is to say, navigation ordinarily practised at the time; but these facts being previously & negatively ascertained by the oath of a jury, and their correctness satisfactorily reported to a court, (for which the law had made provision) the restriction was thereby ipso facto removed, and he became free to exercise his original right, in virtue of the grant from the crown and not from that of the court or jury: that the only authority given to the jury was to speak the truth as to these facts, to enquire and report if, by the dam proposed, the property of neighbors would be overflowed, or their health annoyed, if there was any ordinary existing navigation practised which would be obstructed, and by what means it might be prevented; and, when they had found these facts, they had fulfilled all they were sworn or authorised to do, they were functi officio, and if they found anything further, it was beyond the limits of their commission and authority, impertinent and nugatory; that the sd jurors were not charged or empowered to say whether a navigation could be accomplished hereafter, or by what project or means it could be accomplished; they were not made brokers or parties as well as jurors,148 to make bargains for the ground thro’ which it would pass; for the materials to be employed, or with workmen to do it, all of which were equally beyond their competency, and that if they took on themselves these offices, it did not bind the public, nor consequently the other party, as the law admits of no unilateral contract, the obligation on one side being the consideration which constitutes obligation on the other; in fine that the condition they are alledged to have made149 was as nugatory as any other they could have exacted,150 however foreign to their charge, or irrelative to it’s subject.

And your Orator 2dly denies that the Inquisition151 relied on furnishes any legal testimony of the contract alledged; because the jurors were sworn to speak the truth as to particular facts only, specially stated in their oath, to wit, whether property, health, or ordinary navigation would be injured? and this contract imputed to the jury, and the consent to it,152 not being among the facts to which they were specifically sworn, it stands as a mere voluntary declaration, not made under the obligation of an oath, never sworn to in any way, and is therefore legal proof of nothing.153

3dly your orator insists that had the jury been authorised to make a contract for the public, that which is imputed to them154 would have been merely nude, and155 void, for want of consideration; for if the enlargement of the canal was to be the consideration, then the contract has failed by non-performance on their part, and their absolutely declining to close the contract into which that stipulation might have entered;156 and that element of the bargain withdrawn, he defies ingenuity itself to point out one cent of advantage he was ever to recieve in consideration of the great inconveniencies and injuries to which he was to be exposed: that the freedom to build a dam which was your orator’s right, and no grant from the jury, was not viewed by themselves157 as a valuable consideration to your orator, but for the interest of the navigation158 more than for his, appears by their proposing and taking the extraordinary159 height of 6. feet instead of 3. or 4. which was all your orator desired, needed, or used: and160 would it be said that the mere finding the truth of facts by the jury could be a valuable consideration to your orator? would the jury say (as the Exhibit No 5. says for them)161 that they made that finding the condition of your orator’s consent? would they, if interrogated, say that without that consent, they would have sworn that the property of the neighbors would be overflowed, their health annoyed, or that there was then a navigation ordinarily practised which would be obstructed? in other words, that they would have perjured themselves if this consent had been refused? or, would they not have found the truth, such refusal notwithstanding? and if so, how could this finding of what they could not deny or withold, be a consideration or condition as urged in the sd Exhibit?162 or, if it could be so, and were it true that so corrupt a sale of their oath was made by the jury, or so corrupt a purchase of it by your orator, would not the turpitude of such a contract have been such as that this court would not sustain,163 much less inforce or protect it?164 but this corruptness of the transaction, had it been intended as a bargain, proves it not so intended; as does the character of the jury, most of them known at this day as men of truth, probity, and pure honor, incapable of a bargain of which their oath was the price, and acquiescing under the earnestness of others for this insertion solely from viewing it as a conversation, manifesting indeed the wishes of some of the jury; and general willingness of your Orator but not as an actual grant on his part, in barter for an oath on theirs; an imputation which ought not to be presumed or believed on words susceptible of a different and an innocent meaning.

Your Orator 4thly165 insists that had such a contract been intended,166 which he expressly denies, it would have been so unconscionable, that on that ground alone no167 court of equity would have given it countenance or effect; for that if ever there were a case in which a168 locus penitentiae should be indulged to the frailty of human nature, it would have been in the case of an exaction so unwarrantable, of169 a contract so unguarded, so contrary to what a reasonable man should make, or a just one accept, and much less what the public would exact, to the oppression and ruin of a single individual for the benefit of a company; their rule of action being that benefit and burthen must go together, and not that all the burthen shall be thrown on one, and all the benefit go to others.

And your Orator 5thly insists that had a contract been intended by these loose conversations, and informal transactions, it could have been but inchoate170 and preparatory, and was never so far matured and particularly detailed in it’s specific and necessary articles,171 as to be capable of being carried into execution, or of having the deficient articles supplied by any rules of law, or necessary inferences from the general172 article agreed on; that it would have been as if two persons had formally agreed on the building of a house, the one for the other, without settling the articles of materials, size, form, time or price, an agreement which no court would undertake to supply or carry into execution, but would dismiss the parties to finish their173 bargain for themselves, and not trouble a court to do it for them:174 and had that understanding and agreement, which the jury loosely express, been meant by them as a serious assertion that they had actually made a bargain175 ‘that the sd canal should be used as an improvement in extending the navigation,’ which your orator, in vindication of their character insists is a misinterpretation of their words and meaning,176 how loose, how indefinite, imperfect and inexecutable177 such a contract would have been, your honor has seen by the repeated and ineffectual, altho’ earnest efforts made between the Directors and your orator to supply and compleat the articles so as to reduce them to a perfect, from being merely an inchoate, incipient contract; such as, for example, who should give the 2. or 3. feet additional width to the canal, then wanting,178 to enable boats to enter and pass it? (which your orator’s experience had proved would be a serious undertaking) what indemnification was to follow on179 the suspension of the mills during that operation, and during other interruptions?180 who, on the introduction of a greater volume of water, than was necessary for the mills, was to maintain the bank of the canal next to the river, which was low and weak thro’ a considerable extent? who was to fix the spot where the locks should be located, so as not to endanger the destruction of the narrow spit of land between the canal and river, and it’s being carried off entirely, should the locks be broken up by high waters? how was the burthen of repairing & tightening the dam, and of cleansing the canal, from time to time whenever necessary,181 to be divided between the two parties sharing the benefit of the waters? which party was to have a preference, during the dry season of the year, when there would not be water enough for both the mills and the locks? and at all seasons of the year, when the increased population and produce may perhaps182 occupy the locks thro’ the whole year? what were to be the attendance and regulations at the locks to prevent contraventions of right by disorderly assemblages of watermen? and what was to be the term of these stipulations? were they to be at will? for years? or in fee simple? could these deficient articles be supplied by any rule of law, by any inference from the general stipulation alledged, or by the maxims or functions of any court? and does not the want of these essential provisions sufficiently evince that no present contract could be under contemplation, where all the articles183 which were to compose it were omitted, and prove also the wisdom and carefulness of the law which, for the passing of property, or exchange of covenants, requires184 apt words, and certain ceremonies, to prevent impositions, misunderstandings, and unintentional, from being construed into, intentional acts?185 and for the conveyance of an interest in real estate particularly, requires that it shall be by deed in writing, naming both parties with their particular designations, using fit words of conveyance, expressing the duration of the interest, whether for term of years, for186 life, or perpetual inheritance or succession, that it shall be indented, signed, sealed and delivered by the party granting, acknoleged by himself in court, or proved by witnesses sworn to the very acts of signing and delivery, and recorded within a limited time; the absence of every single one of which unequivocal evidences of intention, so familiarly known as requisites to all the parties, is unequivocal evidence of the absence of all intention to convey a real interest, which, whether it should be a tenancy in common, or whatever other estate, known or unknown to the law, would still be a realty, requiring the forms of real conveyance.187

6thly your orator insists that had a real contract been contemplated by the jury, on behalf of the public, it would not have devolved, either by inheritance or purchase, on this Rivanna company, who are not the public, but a mere company of private individuals, incorporated by law on the turnpike principle of furnishing capital, and making a good highway, in consideration of a toll to be levied for their reimbursement and profit: and if their prospects are in the event disappointed, if their highway accomodates too few to justify their too sanguine calculations of reimbursement and profit, then they have made a bad speculation; but should this be made good out of the lands of others which lie in their way? if their funds were originally inadequate, should they be allowed to use the property of others as a supplement? the law has only authorised them to open the bed of the river, and this too, in express words, by private and voluntary contracts; but not by impressment, or188 seisure, without voluntary agreement: in compensation for their labor and expences, it gives them a right to a toll to be added to their inheritance, but not to take the inheritance of another, and add it to theirs; for such the channel of their navigation, and your orator’s canal if made a part of it, will become by law:189 and if the officiousness of a jury could have given a colour of claim, or a ground of action to the public,190 the legislature has not assigned this right of action to this Rivanna company; it has not transferred to them as private prosecutors, a litigious bargain, pretended to have been made on one part, but denied on the other: on the contrary, it has scrupulously, & by express words restrained them to such contracts as themselves should make, neither binding nor benefiting them by those alledged to have been made by others. if this right to an Use in the Canal became the property of a company on it’s establishment191 by law, is it of the company of 1805? of that of 1806.? or of that which is to succeed them192 on their failure? is the Use in that case to be sold, as their private property, for their private benefit, & liable to be suppressed at the caprice of the purchaser? what is the law regulating it’s transmission? and is it for these uncertainties that your orator is to be despoiled of his property?193

And lastly it has been pretended on the part of the Directors that your orator ‘granted to them the use of his canal, which implied a grant of the water also, without which, it has been said, it would be194 useless’ and thus gave them an exclusive use of the water; as if permission to another to enter our house implied a permission to195 turn us out of it; a pretension self-convicted by it’s own absurdity.

So that, on the whole, with respect to this pretended contract, your orator denies that it was ever made, or intended by the parties; and insists that had it been made in the form pretended, it would have been void, as without authority, without proof, without consideration, unconscionable, imperfect, absurd, and untransferred to this company.196

In tender consideration of which proceedings, pretensions, and claims of the sd Directors, and to the end that they and every of them may, on their corporal oath true and perfect answer make to all & singular the premisses as specifically and fully as if the same were here again repeated by way of interrogatory, and more especially that they and each of them may, in their separate and distinct answer, separately & distinctly say, each for himself, whether the Rivanna river, in it’s passage thro’ the base of the South West ridge of mountains, that is to say, from the Secretary’s ford to the foot of the Sandy falls, or of the falls next above the mills of the Complainant is navigable along it’s bed for loaded boats or batteaux? whether it does not present thro’ that whole passage a continual succession of rocks & rapids, except where the same are covered by your orator’s mill pond? whether such navigation was ordinarily practised, or in what degree, before the erection of the Complainant’s mill-dam, and particularly at the times when the two inquests of 1795. and 1805. found that it was not? if it would be practicable were the sd mill dam away, as affirmed in the document197 called a Statement No 8. why was it not practised, and why did not the sd Directors persevere in their purpose of using it? that they may state what was the condition of the river, and what the amount of loading at the times when the sd document affirms that loaded boats of flour and tobacco passed down in safety? how many passed within their knolege or belief, and198 did they pass without unlading, and did the boats return that way199 either loaded or empty? that they may say whether, in their opinion, the expence of removing obstructions in the remaining parts of the river, within their limits, would not be very trifling in comparison with that between the Secretary’s ford, & foot of the Sandy falls? whether the pond and canal200 of your orator do not furnish a dead sheet of water, and safe, and sufficient navigation from the Secretary’s ford to his mills, and are not the mills below the Sandy falls? were not the sd dam and canal made by your orator, and at his sole expence? did the Directors or their agents employ any, and what labor on the dam or canal, which could be of any advantage to the sd mills? did not they the Directors agree at one time to fix the bottom of their upper lock-gate two feet, or how much, above the level of the201 bottom of the entrance into the forebays of the sd mills, and afterwards to make a bason of such capacity as that it’s contents should supply working water to the mills while boats were passing thro’ the locks? was the bottom of the said gate fixed in the level agreed on, or was a bason, adequate to the purpose agreed on, ever made? that they may declare whether, after abandoning the first negociation with the Complainant for the use of his canal, and their second purpose of using the bed of the river, they entered into any contract with him, written or verbal, for the use of his canal? what was that contract? and for what term of time? whether the Complainant granted them the water in preference to the wants of his mills?202 that the def. William D. Meriwether may say whether he did not, at the meeting of the Directors of Aug.    1816. declare the paramount right of the locks over the mills in times of scarcity, substantially as herein before stated? and the sd defendants George Divers, Dabney Minor, and John Kelly may say whether he did not make that declaration in their presence and hearing? that the sd defendants may declare whether the Complainant ever recieved any and what compensation or consideration from them for the use of his canal? that they may state when the locks came into operation, what is their present condition, how long they suppose they will continue practicable without fundamental repairs, or entire rebuilding? and whether their funds are adequate to that rebuilding? that they may say whether if the locks should be torn away by high waters, or fall in by decay they will not be likely to extend the chasm they will leave to the canal itself, and endanger the entire destruction of much of it’s bank?203 that they may declare whether the sd Peter Minor in the bill named was not their Secretary, and authorised to attest transmit and recieve communications on their behalf? and that they may set forth the204 names of the individuals who205 are legal members of the sd Rivanna company, entitled to it’s emoluments and liable to it’s responsibilities.

And for these purposes your Orator prays that this honorable court will grant to him a writ or writs of subpoena, to be directed to the sd Rivanna company, and especially to206 the sd George Divers, William D. Meriwether, Nimrod Bramham, Dabney Minor and John Kelly, subscribers members, and Directors of the same,207 and to each of them commanding them to be and appear in this court on a certain day and under a certain penalty therein to be named, then and there to answer the premisses, and to abide such decree as shall be therein made; and further that it may be decreed that the claim of the sd Rivanna company, their Directors, agents and all others to hold and exercise any right of navigation, or other use in the canal of your orator, under the authority or finding of the Inquest of Aug. 10. 1805. or under any other authority whatsoever, is without foundation in law or equity: that in consideration nevertheless of the expence the sd company have incurred in building and keeping the sd locks in repair, & of the consent of this complainant, they be permitted to continue the use of the same for navigation, as far as the surplus water, not wanting for the mills of the Complainant may be competent thereto until the 1st day of July 1818. or such other day as this court shall think reasonable, from which time the sd Complainant and his heirs shall stand seised in their exclusive right to the sd Canal, and it’s water, and their title to the same be for ever quieted against all claims of the sd company, their Directors, agents, or other persons whatsoever, which have arisen previous to the date of the decree, and that the sd claims shall thenceforward be perpetually enjoined. And so far as your orator’s consent may be deemed necessary, he does hereby expressly208 consent that they shall continue to use his canal on the same grounds as heretofore during the limited term which this court shall think reasonable as aforesaid; feeling every disposition, even thereafter, to yield the same accomodation, [for] the tran[spor]tation of produce, under reasonable regulations;209 his object in the present bill of complaint being to establish his clear and undivided right in his property, that the indulgences to others in a participation of the use of it may be voluntary on his part210 and subject to the regulations he shall find necessary to prevent injury and destruction to his mills, and that in the disposal of the same to his family hereafter he may be assured that he will be giving them lands and not lawsuits for their future subsistence: and further to manifest that he has no wish to embarras the defendants in their duties,211 or to impair their funds, which he supposes have nothing to spare, by expences foreign to their primary object, he takes on himself to defray the legal costs which shall be incurred by them in the present suit in this honorable court: and, asking such further and other relief as to this honorable court shall seem agreeable to equity and good conscience, he will, as in duty bound, ever pray Etc

Th: Jefferson