Bill in Chancery on the Henderson Milldam
[24 Sep. 1795]
To George Wythe Judge of the High Court of Chancery of Virginia humbly complaining Sheweth your orator Thomas Jefferson of the County of Albemarle, that he is and upwards of thirty years1 has been seized2 by devise from Peter Jefferson his father of a tract of land in the said County on both sides of Rivanna river and including the bed thereof on the north side of which river and on the said lands was a water grist mill erected by his said father under Authority from the Court of the County And standing when your Orator succeeded to the Estate: That the said mill together with the dam on which it depended for water after remaining 16 or 17 years was carried away by the extraordinnary flood which happened in the year 17713 and your Orator believing that by extending his Canal about ¾ of a mile above the mill4 he Could draw his supply of water from above a natural ridge of rocks which would render a dam unnessary, accordingly undertook the said work, but it proving a very heavy one, the public troubles which soon and long afterwards prevailed, and the public Calls on your Orator to be absent from the state and from home, interrupted and prevented the progress of the work, so that though your Orator obtained due Authority from the Court for rebuilding the said mill and the work was repeatedly resumed dureing the short intervals of his return to and stay at home,5 it has never yet been entirely finished, but in the Course of these several renewals of labour, the new part of the Canal of about 1100 yards in length has been dug to about ¾th of its sufficient depth as he Conjectures, and that, as nearly as he Can now estimate partly from his own recollection and partly from that of others about 6000 single days labour have been employed on it; exclusive of the raising by gun powder about 12000 Cubical feet of a rock too hard to be removed by any other agent and too vainy to be removed by that but to uncommon disadvantage: that having lately determined to go on with and Complete the said work, he has applied to the County Court of Albemarle for a renewal of his authority to do so, and the said Court having ordered a Jury as directed by law in Cases where, as in the present one the petitioner holds the lands on both sides of the stream through the whole Course of the works proposed and of the reflux of the water, and for some distance above and below them the jury have found the inquest a Copy of which is annexed as an exhibit to this bill.6
And your Orator further sheweth that dureing the time of his absences aforesaid towit in the year 1780 when he was Confined by public duty to a [residence in Williamsburg] after he had done the greater part of the work aforesaid and while the order of Court hereto annexed as an exhibit for rebuilding the said mill, was in full force7 a Certain Bennett Henderson holding the lands next below him on the South side of the said river, undertook to erect a mill on the lands of the said Bennett and to make a dam across the river at a place Called the mountain falls, abuting on the opposite side on the lands of Thomas M Randolph, which he accordingly did of his own authority, without having obtained from the Court their permission according to law, as appears8 by the Certificate of the Clerk of the said Court hereto annexed, and without notice given to your Orator, or any one authorised to act for him, as required by law, which would have enabled him to have shewn the injury he should sustain thereby and to Contest before the Court the building of said mill, in the manner it is built; And so little regardful was the said Bennett of law or justice that he entered on the lands of your Orator in his absence without his knowledge or permission or that of any person having authority from him and carried from the bank opposite to your Orators mill site the stone destined and reserved by your Orator for building his own mill house, and with the said stone the said Bennett erected his dam—that tho the said mountain falls afforded between the upper and lower land lines of the said Bennett and within the extent of a few perch a fall of water sufficient to have worked a better mill, yet the said Bennett so placed his mill as to avail himself as your Orator has been informed and believes of little more than half his fall and then erected a dam of such height that the back water which had not formerly approached within 20 poles of your Orators mill below, (its level being just so much lower than the bottom of his wheel as to leave it clear in its motion, except9 in Considerable swells in the river) was raised about 18 inches or two feet above its former level, and was made to flow about 28 poles10 above his said mill so that it would have drowned his wheel at Ordinary times if rebuilt of the same diamiter, or have obliged him to11 lessen its diamiter and lose so much of the benefit of his fall of water, and moreover it drowned and rendered impassible a ford at your Orators mill, at which his Customers from the south side of the river usally passed over to his said mill: that floods and other accidents had since sensibly worn down the said dam of the Defendants and lessoned in a small degree the injury to your Orator: that the said Bennett Henderson has departed this life without will leaving the Defendants John, William, Sally, James, Charles, Isham, Bennett, Hilsborough, Eliza, Frances, Lucy and Nancy Crawford Henderson his children heirs and parceners of his said lands and the said Jno. hath taken out administration of his estate: That your Orator from an unwillingness to have any Contest with neighbours had hitherto taken no steps to obtain redress of the injuries done him but the said John has been lately not only repairing the said dam with a view to grind for Country Custom as heretofore, but as your Orator is informed and believes proposes to raise it two or three feet above its former level in order to fit her the better for the manufacture of flour, a degree of injury to which your Orator Can no longer forbear opposition for he expressly12 Charges that every inch which the water of the said river has been or shall be raised above what was its ancient level, at the joint boundary of your Orator and the Defendants before the erection of either mill13 is and will be so much taken from him, and is, and will be so much to the detriment of his mill seat, and takes and will take from him so much of the fall of water which taking place entirely within the lands of your Orator, and where the bed of the river is his by the purchase of his ancestors and the public grant to them, is as much a part of his right as the lands within which the falls happens and is and was a valuable part of the purchase and grant; that the right to the said fall of water has been further fixed in your Orator and his ancestors by prior use and occupation, and tho an interruption of the use has taken place for some time thro’ the accidents of floods, of Civil troubles of wars and other unavoidable necessities, yet it has never been abandoned by your Orator, but on the Contrary hath been kept up by efforts renewed from time to time by your Orator with great expence and labour14 evidenceing your Orators Continual Claim and determination to preserve and to use for himself the whole benefit of his own water fall; that the same Could not be justly taken from him nor encroached on, nor have the Defendants any right in law or equity to take or to keep them, but the Continuance of their said dam above the ancient level of the [water] at the joint boundary between your Orator and the Defendants, and the raising it still higher as has been proposed and begun by them or some of them is Contrary to equity and right.
And your Orator further sets forth that there is now living a Certain Thomas Morgan who was employed as miller for your Orator at his said mill from about the 1766 or 1767 till her destruction in 177115 and has Continued to live ever since on the lands adjoining to the said mill who is better acquainted than any other person living with the ancient level of the water at or about the said mill, and at the joint boundary of your Orator and the Defendants and with the highest point below the said mill to which the water reflowed before the erecting of the defendants dam, that the said Morgan is near or about ninety years of age as he himself stated, and as your Orator believes from strong Circumstances16 and is extremely weak and infirm and not likely to live to the trial of any issue whatsoever which may be thought necessary for the final settlement of your Orators right, and that the benefit of his evidence which might be lost to your Orator by his death before his examination Could not be fully supplied as he believes by that of any other person living.
In Tender Consideration whereof and for as much as your Orator is most properly and effectually relieveable in the premises in this Court, within whose province it pecularly is to Cause a discontinuance of the injuries now existing, to prevent a renewal and aggravation of them, and to preserve to him the benefit of the testimony before mentioned: And to the end that the said Defendants may on their Corporal oaths true and perfect answer make to all and singular the premises as specifically and fully as [if] the same were here again repeated by way of interrogatory and more especially that they may declare whether the mill of your Orator was not erected prior to theirs? whether a great part of your Orators new Canal was not dug before the erection of their mill?17 whether this mill was not erected without legal authority and especially without any notice given to your Orator as aforesaid as required by law to enable him to establish a true state of his rights, whether the back water before the erection of this dam approached within a Considerable and what distance of your Orators mill tail and wheel, whether their dam as it has stood heretofore did not raise the water Considerably and how much at the mill tail of your Orator and for some and what distance18 above it? Whether it has not rendered it necessary for your Orator to raise the bottom of his wheel in rebuilding and Consequently to loose so much of his fall? whether the whole of the fall so to be taken from your Orator does not take place entirely and far within the lands of your Orator? And not the smallest part of it adjacent to their lands? whether it has not also drowned and rendered too deep for use the ford at your Orators mill? whether they or some and what of them have not begun to repair their said mill dam, and do not propose to raise it still higher than it was and to overflow still more the mill site of your Orator? whether the facts set forth with respect to the said Thomas Morgan are not true? for these purposes your Orator prays that you will be pleased to grant to him the writs of this Court of Subpoena and Injunction to be directed to the said John, Wm., Sally, James, Charles, Isham, Bennett Hilsborough, Eliza, Frances, Lucy and Nancy Crawford Henderson, children heirs and parceners of the said Bennett Henderson deceased and to each of them their agents and others Concerned in the premises 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 premises and to abide such decree as shall be therein made, and in the mean time enjoining them immediately and perpetually to desist from further proceedings to raise and reflow their back water on the said mill seat of your Orator and Commanding them to abate and draw down so much of their dam already erected as raises the water above its antient and natural level as it stood before the erection of either mill, at the joint boundary of your Orator and the Defendants And to authorise your Orator to take in due form and de bene esse the deposition of the said Thomas Morgan and to preserve the same of record in this Court in perpetuam rei memoriam and granting to your Orator such further and other relief as to this Court shall seem agreeable to equity and Your Orator as in duty bound will ever pray &c.
Tr (ViU: Carr Papers); 19th-century transcript, part of record of TJ v. Michie in the hand of George Carr, with several words omitted by copyist supplied in brackets from Dft; undated, but assigned on the basis of subjoined attestation in Carr’s hand, dated 24 Sep. 1795, of Thomas Bell as justice of the peace, who attests that TJ appeared before him and swore that the allegations in the bill of complaint were true to the best of his knowledge; at head of text: “Exhibit No. 2.” Dft (MHi); undated, but begun before 22 Sep. 1795 (see note 8 below); consists of heavily emended text entirely in TJ’s hand; significant variations from Tr are recorded in notes below; endorsed by TJ: “Henderson John & al. in Chancery”; note below endorsement by TJ:
|“Saml. McGehee||were the persons who took stone from my seat, with Henderson’s people.”|
In response to TJ’s bill of complaint—which noted that Bennett Henderson was required by a 1748 act to have obtained from the court their permission before building his mill (Hening, description begins William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of Virginia, Richmond, 1809–23, 13 vols. description ends vi, 55–60)—George Wythe, judge of the High Court of Chancery, issued writs … of subpoena and injunction to the Henderson heirs. First, on 10 Oct. 1795 the Court granted an injunction “To restrain the defendants their agent and attorney and all other persons from further proceeding to raise and reflow their backwater on the mill seat of the plaintiff on the Rivanna until the further order of this court” (PrC of Tr in MHi; entirely in TJ’s hand, including certification by clerk of the court Peter Tinsley; letterpressed perpendicularly on verso of subpoena described below). As TJ had requested, on 10 Oct. 1795 the Court also authorized “the examination of Thomas Morgan de bene esse” (Tr in ViU: Carr Papers; 19th-century transcript, part of record of TJ v. Michie in the hand of George Carr); for Morgan’s Deposition, see TJ to the Heirs of Bennett Henderson, 7 Nov. 1795. On 12 Oct. 1795 the Court issued a subpoena to the sheriff of Albemarle County ordering him to summon the children and heirs to appear in the High Court of Chancery in Richmond on the first day of the next court to answer the bill brought against them by TJ (PrC of Tr in MHi; entirely in TJ’s hand, including Tinsley’s certification).
1. Preceding four words interlined in Dft in place of “a long time.”
2. Dft here adds “in fee simple.”
3. Digit reworked from “2” in Dft.
4. In Dft TJ first wrote “by digging a new canal ¾ of a mile in length” and then altered it to read as above.
5. In Dft TJ here canceled “since that time, and was in the course of them about three fourths completed.”
6. In Dft TJ here canceled “and made a part of it. The said court granted your orator a renewal of his authority to rebuild his mill as will appear by the [their] order of the said court a copy whereof is likewise annexed to this bill.”
7. Passage “after he had” to this point lacking in Dft.
8. Dft here reads “is proved,” which is interlined with the remainder of the clause in place of “your Orator has understood and believes (tho’ he does not undertake to affirm the fact particularly having no other authority for the same but the common fame of the neighborhood).” TJ made this revision on the basis of John Carr’s letter to him of 22 Sep. 1795.
9. In Dft TJ interlined the passage from “just so much” to this point in place of “his backwater flowed up to the which formerly did not reach within a considerable distance of your orator’s mill, nor reach the bottom of his wheel but.”
10. Preceding word and figures interlined in Dft in place of “an hundred yards.”
11. Next to this word in margin of Dft TJ wrote “safe use.”
12. Preceding sixteen words interlined in Dft in place of “and, as your orator is informed and believes […] to repair the same, whereas your orator expressly.”
13. Preceding eighteen words interlined in Dft in place of “natural level at the joint boundary of the plaintiff and defendant.”
14. Preceding two words lacking in Dft.
15. Digit reworked from “2” in Dft.
16. Preceding three words lacking in Dft.
17. Dft lacks this question.
18. Preceding four words interlined in Dft in place of “a hundred yards.”