On the 1st question which has been made in this case namely whether the property in the bed of the River was in the Plts I have not been able to ascertain a serious doubt. It passed by the grant from the Crown to Peter Jefferson, under whom the Plt claims; The King had the right to grant it; and it is clearly embraced both by the boundaries, and the words of the patent. The acts of 1794, 1805 and 1806 have not divested the Plt of his rights, under his father, to this property, they only transfer to Individuals on certain conditions, and for certain purposes, the right which the publick before had to the qualified use of the water for fishing and navigation; and the consequent privilidge of removing obstructions to that use.

The other questions in the cause present to my mind greater difficulties but to the correct solution of which it appears to me unnecessary to travel into the doctrines of Publick law; our own acts of assembly having laid down the rules which must in my opinion govern this case.

The first which I shall notice is the act of the 21st Decr 1792 1st vol Revd Code Pleasants edition Chap 105. This act which repeals all former acts on the same subject, is prior to the existence of every thing on which in my judgment, can depend the decision of the remaining matters in controversy between the parties, In the remarks which I shall make on this and some subsequent acts—on the inquests of the Juries, and orders of the Court of Albimarle, I shall endeavour to keep in view and to answer all the arguments offered by both parties, without particularly noticing many of them,—I shall also consider this question as depending between the Compt and the Commonwealth. The Commonwealth having by the act of the 30th Decr 1806 transferred to the Defts, for a limited time, & on certain conditions whatever rights and interest it then had in the subject—

By the 14th sectn of the aforesaid act of 1792 it is declared (on the principle I presume, that no one is at liberty so to use his own as to injure others) to be unlawful for any person to erect or fix on any water course (& such water courses and such only could have been intended, when the mischief to be guarded against could happen) any Dam, Hedge, Wier, Saine, Drag, or other stoppage whereby navigation or the passage of Fish may be obstructed, save only for the purpose of working some machien or Engine useful to the publick: in which cases the same proceedings shall be had as in the case of a water Grist mill, provided for in a former part of the act; directs that where any such are then standing, they shall be abated as nuisancies—and affixes a penalty to the erection of any such, in future, or to the permitting to remain any then erected—By the 15th sectn it is made the duty of the County Courts to remove out of the rivers and Creeks within their respective Counties (with the exception of the rivers Meherrin, Nottaway Roanoke, and Rappahannock, above the falls,) Stones, trees stumps, rubbish, hedges, wiers, or stone steps, by which the passage of boats and other vessels, & of fish is obstructed, exempting them only from this duty so far as it cannot be performed without the force of Gun:powder, & authorising them to levy upon their Counties monies sufficient for the purpose—

From the general language of those sections, the nature of the obstructions to be removed, and the generality of the provisions respecting the erection of Mill dams, and dams for other useful machenary, it would seem unreasonable to1 confine them to waters then in use for navigation—They would appear to me to embrace equally such as might be made so, by the exertions of the County Courts under the authority of the 15th sectn or otherwise.2 By the provisions of the law respecting the erection of Dams for water grist mills, it is immeterial what may be the size or character of the stream to be built on, whether navigable at the time or capable of being made so, or not—A Jury is to be sworn to enquire into certain facts, and report them to the Court—These facts, where the applicant, as in the present case owns the lands on both sides of the stream, and3 whether the lands of others, above or below the intended site of the Dam will be probably overflowed by its erection? And what damage they may sustain thereby? whether the mansion houses, offices, curtilages, gardens. or orchards of such proprietors will be overflowed? and in what degree the passage of fish, and ordinary navigation will be obstructed? whether by any, and by what means such obstruction may be removed? and whether, in their opinion, the health of the neighbours will be annoyed by the stagnation of the waters? Upon the finding of the Jury when returned by the sheriff, the Court has to act, and its duties are also defined by the law.—If from the finding or from other evidence, it appears that the mansion house, office, curtilage or garden of any one will be overflowed, or the health of the neighbourhood annoyed, they shall not give leave to build the dam, but if none of these injuries are likely to ensue they shall then (not give leave as a matter of course, but) consider whether all circumstances weighed, it be reasonable to give such leave and give or not give it accordingly and if given shall lay the applicant under such conditions for preventing the obstruction if any there will be, of the passage of fish and ordinary navigation, as to them shall seem right—I hence conclude that since the passage of the act of 1792, at least, no one has a right to erect a dam on any water course, without the permission of Court—

The 5th sectn of the act gives to the Court a discretionary power to withhold the permission, but I understand it to be now contended (even admitting that I should be right in this, but which seems, by the argument not to be admitted) that when the Court grants leave to build a dam, they can only impose conditions respecting navigation, in cases where there is actual existing navigation on the stream where the dam is to be erected, at the time of the order of permission—That ordinary navigation means common use, regular established navigation, and that the Court cannot look forward to expected future navigation. This definition of the word ordinary, and its application to the present case, certainly does not well comport with those principles of policy and of law by which in the distribution of common rights, the interest of an individual is to be postponed to that of the publick.—I confess I am not satisfied of its correctness—should it be admitted, it would follow that if the publick had at great expence, progressed so far as to make a stream navigable from its sorce to the ocean, except in one particular spot, which required some additional labour to admit of actual navigation upon it; A County Court in granting leave to an individual to erect a dam, could impose no conditions on him respecting the future expected navigation could not say you shall make a lock or leave a slope—

The consequence would be that they must either refuse leave altogether or grant it to the Publick prejudice—Or that the owner of the bed of the River or stream, might, in opposition to what I consider to be the law, build it without any permission, and maintain it to the great injury of the Publick, until he compelled them to purchase the privilidge of using the stream for the purpose of navigation above and below him—But I think the phrase ordinary navigation is susceptible of a very different construction.4 as well as established and regular navigation, it means, as is admitted usual & common navigation. and these words usual & common ought in my opinion, to be considered here as to the size & situation of the stream, rather than to the actual state of navigation on it. It would have been absurd in the Court to have imposed upon the Compt, when applying for leave to erect a dam on the Rivanna, conditions, & restrictions respecting, ship navigation, such could not be used in the River—such was not the ordinary navigation for which the law intended to provide. The common and usual navigation in such streams is carried on in boats, Batteaus, & Canoes and for such I think the Court had a right to provide, and that it was their duty to do so at least when there was a probability of its shortly taking place—and more especially if the opinion is correct, That after leave has been obtained to build a dam, in the mode prescribed by law, it is not competent for the legislature itself, to destroy the owners right in it, or to impose additional conditions for the enjoyment of that right, except for the Publick benefit; and there by making addequate compensation—

I agree that the Jury has no authority to make any contract.5 Their power & their duty consist in enquiring into, & reporting facts—

I will now notice the Inquest of 1805, and the order of the Court upon it, The Inquest and other proceedings of 1795 I consider of but little importance to the parties. They claim nothing under them; and they have been superseded by the proceedings of the Jury & Court in 1805. I shall therefore only notice them, if at all, for the sake of explaining some ambiguities or omissions in the latter Inquest—This was taken on the 10th of August, 1805 during the continuance of the act of the 30th of Jany 1805 “For clearing the north fork of James River from Milton upwards so as [to]6 admit the passage of loaded boats through the falls of the South west mountains7 or as high as practicable.” This I presume extends as high as the Plts dam.8 The Jury, after noticing the inquest of 1795, and refering to it for certain facts which they suppose to be correct, find, in pursuance of their duty and their charge substantially “That a dam of 6 feet high, erected on the ridge of rocks where the Plt proposed to commence his canal would not overflow the land mansion houses, offices, gardens, curtilages or orchards of any person nor endanger the health of the neighbours and also that certain dams on the river below the one proposed so far prevented the passage of fish, that no provision, during the continuance of those dams, was necessary for their passage through9 or over the one proposed by the Plt; but should those obstructions be removed that it would be proper to oblidge the Plt. so to modify his dam by a slope or sluice, or such other means as the law prescribed as to admit their passage” Now I presume it will not, and cannot be contended unless on the principal that the Plt had a right to erect and maintain his dam, without any permission from the Court, that the Court had not a right to impose this condition respecting the passage of fish on the Plt in granting him leave to erect his dam—

Again they have found, that owing to the natural obstruction, no navigation was at that time, practised through that part, of the river but if the river should be thereafter opened for navigation, and it should be found best to pass through the Plts canal the dam would be necessary to enable vessels to pass and if it should be found best to open the bed of the river, then a lock would be necessary at the dam. On this part of the finding respecting the future navigation of the river and the means of removing obstructions to it, I think the Court would have had a right to say that a lock, when necessary should be made by the Plt—And the question now is, whether the order of Court imposes on him that duty? For unless he is bound to do so, by the order of the Court granting leave to build his dam, the Rivanna Company cannot compel him, The act of 1806 only conferred on the company, when organised the commonwealths rights over this subject—And I Know of no law, then existing, which would justify the legislature in depriving the Plt of his right in his dam thus legally erected, or of subjecting him to other conditions, in maintaining it, than those imposed by that order. In the act of 1794, for clearing this same river, the legislature reserves to the representatives of Bennett Henderson all the legal right then vested in them for Keeping up the mill dam erected by said Bennett across the said River; expressly declaring that it is neither intended to confirm or impair their rights by that act—

By the 1st sectn of the act of the 13th of Feby 1816 Session acts of 1815 Cha 46 pa 67. a fine is imposed on any one for unlawfully erecting, & keeping up for 24 hours on any navigable water, a mill dam or other obstruction, so as to impede navigation—By the term unlawfully, is clearly intended such as had not been erected in the mode prescribed by law—By the 2nd setn any order of Court, thereafter made, for leave to erect any dam or other obstruction, in any water course, for the opening or extending of the navigation of which any law had before, or should thereafter pass, unless upon such terms as the applicant and the company, when there was one incorporated for the purpose should agree on, is declared void, & the dam is to be abated as a common nuisance—And by the 3rd setn where there was no law for opening the navigation of a water course, and no company with whom the applicant could agree upon terms, the order of the Court granting leave, to erect a dam is not to effect the rights of the Commonwealth, or of any company which it may afterwards incorporate for that purpose, but the Comth or the company may make locks in the dams so erected for the passage of vessels or boats, as if no such leave had been obtained & without making any compensation to the owner. These acts & some others on the same subject, convince me of the legislative understanding of their right to interfere with private property of this Kind—And the last act is prospective in its operation, Indeed it would seem to be clearly Ex post facto & unconstitutional to deprive any individual of such vested rights; or what would be tantamount, to impose on him additional oppressive terms of tenure, unless for great publick purposes, & then only on making him adequate compensation—

If then the Publick, or its representative, the Rivanna Company can compel the Plt to erect a lock at his dam, it must be in pursuance of some previous genl or special law; or of the order of Court—I know of no such law; & the question occures “Has this duty been imposed by the order of Court?”10 That order as it appears in the record (and that probably is the only one ever made) is extremely imperfect, and some what ambiguous,

It is in these words “A writ of Ad quad damnum heretofore awarded by this Court to Thomas Jefferson together with the inquest of the Jury taken by virtue thereof were returned into Court and ordered to be recorded, and on the motion of the said Thomas Jefferson leave is given him to erect his mill and dam, agreeable to said Inquest”—

Now this inquest simply says that, on the happening of a certain event a lock at his dam would be necessary; but says nothing of who is to make it, or keep it in repair—the Inquest goes no farther whereas on the happening of another event a slope or sluice for the passage of fish may be necessary, the Jury find expressly that Mr Jefferson is to make it—The order of Court imposes this condition on him, but not so with respect to the Lock, In order to ascertain as far as possible, the meaning of the Jury upon this point—I have looked into the inquest of 1795, which the Jury in 1805, seem to have had before them, as they refer to it, I there find that the Jury of 1795 use these expressions “That no navigation is at present practised through11 this part of the River, natural obstructions preventing the same; but that if the River be opened for navigation hereafter (precisely so far the language used by the Jury in 1805) the interests of the said 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 said natural ridge of rocks or of any stoppages which the said Thomas may have made” Now is it12 not fair to presume the Jury in 1805 who have so minutely followed the Inquest of 1795 entertained the same sentiments with respect to the erection of locks, which that Jury did respecting the removal of the rocks or stoppages? more especially as they have expressly assigned it as the duty of the Plt to make sluices for the passage of fish, and have said nothing about his duty in erecting locks—. And that the navigation of the canal which was then their principal object, may have produced their silence & indifference on this subject—However this may have been, it appears to me that no such condition has been imposed on Mr Jefferson, by the order of Court; and consequently that the Rivanna Company have no right to require it of him—though they have a right to erect one themselves, without making him any compensation—

The remaining inquiry and in my opinion the most important as well as difficult relates to the Defts right to navigate the Plts canal and the terms on which that right is to be enjoyed? This I think must also depend on a fair construction of the order of Court granting the Plt. leave to erect his dam—

For as before said the Jury had no right to make contracts13 or impose conditions. Their duty consisted in finding facts, and reporting them to the Court, Any thing therefore in the nature of a contract between the Plt and the Jury must be disregarded.14 But relying on the correctness of the principles that the Plt was not at liberty to erect his dam without the leave of the Court, that the Court was not absolutely bound to give that leave and if given they had a right to impose such conditions as appeared to them right, for the purpose of preventing obstructions to fish of passage, & ordinary navigation; & supposing my understanding of term ordinary navigation to be correct, it would follow that the Court, in granting leave to the Plt to build his dam might have required of him, as a condition, the privilidge of navigating his canal as the best means of preventing those obstructions, which that dam might occasion—And the question here is “Have they imposed this condition?” On examining the Inquest of 1795. I find nothing said about navigating the Plts canal & the reason is obvious when the two inquests are comparred. At the time of the first, it was not proposed by the Plt, as the Jury state to raise any dam on the ridge of rocks where it now stands, and where his canal commences—Navigation through15 it would therefore have been impracticable, as we find from the last inquest that a dam, at that place, would be necessary to enable vessels to pass into, & through it—

These different views of the two Juries, respecting this matter, constitute the sole difference in the two Inquests. I have been led into this mode of examining the subject, in order if possible, to discover the meaning of the inquest of 1805 and the order of Court in pursuance of it. That order, as before remarked, is too imperfect to be clearly understood. It refers to the Inquest for its meaning.—With respect to the navigation of the River, the Inquest presents to the Court two views Viz. One along the bed of the River, in which case they say a lock in the dam will be necessary, and another through the Plts canal; and in that case they say a dam will be necessary, in order to enable vessels to pass. If the last clause in the Inquest, Viz “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 said navigation” could be considered as coming properly within the sphare of the Jury’s powers, it would leave less difficulty on this subject, as it would have pointed out a mode for preventing the obstructions which might be occasioned by the erection of the dam, to which the Plt had assented, and it would therefore have necessarily followed, that the order of Court intended to reserve to the Publick the choice of navigating the River or the Canal, as a condition for giving him leave to build his dam—But this clause cannot be considered as forming any part of the inquest; or as constituting an obligation on the part of the Plt—A doubt has however arisen whether the Court might not probably have recd this statement as evidence of a separate and distinct fact (and they had a right to receive other evidence besides the Inquest16) not strictly connected with their duty—and if so, whether after its admission to record, without any objection by the Plt on whose motion the inquest was recorded, it would now be competent for him to falsify, or deny its correctness—But however this may be it is certain the Court had it before them, and were no doubt, influenced by it, and had it in view, in making the order of leave—I must therefore think that the order of Court should be understood as authorising the Publick to choose between the navigation of the bed of the River and the Plts canal and consequently that the Defts, have a right, if they choose to navigate the Canal—But it is said that the company, if they originally had a right to navigate the Canal, have abandoned it.17 I confess I can see no evidence of such an abandonment as can avail the Plt,—It is also said that admitting there was such a contract as is stated by the Jury, it is too vague and indefinite to be carried into execution in this Court—This certainly is correct, and if this was viewed as a contract, and the company was now here asking a specific execution of it, they could not succeed, But this as before remarked, is not considered as a contract but as a condition which the Court had a right to impose; and the company now are, and long have been in the enjoyment of the privilidge—And I consider the question, on this point, now before the Court, to be properly as to the extent of that privilidge, which has not heretofore been defined, as it ought to have been by the Court, when granted—

In doing this it may be necessary to recur to the circumstances at that time, in order to Judge of the intention of the Court,—Mr Jefferson had then at immense expence and labor, dug a canal to convey water to his mill, but which he found he could not convey to advantage without a dam for leave to erect which he made application to the Court,—A writ of ad quad damnum was awarded, and the Jury found that there was at that time, no navigation practised in that part of the river, owing to the natural obstructions but if the river should be opened thereafter, and the publick should chose to navigate its bed, a lock at the Dam asked for would be necessary, or if the Plts canal should be preferred, then the dam would be necessary to enable boats to pass—

A law was then in18 force for opening the navigation of this river of which the Court could not be ignorant; and it became their duty to provide against any additional obstructions to that navigation—And they did so when they say as I understand them that if the Publick shall choose to pass the Plts Canal, he shall permit them; if to navigate the bed of the River, he shall Suffer them to make a lock at his dam.19 That they did not require him to make this lock, may be owing to the circumstance that his dam, by deepning the water above, over a rocky channel, would, facilitate the navigation to an extent benificial to the Publick, equal to the expence which they would incur, in making a lock, over and above the expence necessary to make an opening in the rocks on which it was built—Below the dam over the Sandy falls, it is proved that the bed of the River was extremely rocky and of course would be attended with great expence to make it navigable—

The Plt’s canal affords a safe & easy navigation beyond these fall’s and was evidently looked to as a great improvement in extending the navigation through them, To enable boats to pass this Canal a dam was found necessary; and this the Plt proposed to build, at his own expence; indeed not for the Publick, but principally for the sake of conveying water to his mills—Under this view of the case what could have been the extent of the conditions, which the Court meant to impose on him? or of the privilidge which it intended to reserve to the Publick, for granting him leave to build this dam? Was it that he should surrender to the Publick his valuable private property—the fruits of 30 years labor, and of immense sums of money? That he should permit them to take the absolute possession of his Canal, & appropriate to themselves the uncontroled use of the water passing through it to the mills (leaving to him only such surplus as they might not happen to want) by which they might be rendered entirely useless, and the Plt’s object in erecting them, & digging his canal, as well as in building this very dam be wholly defeated?—That they should be at liberty to weaken the banks of his Canal, & endanger both them & his mills, by the erection of such locks as they might find necessary? And all this for the simple priviledge of permitting him to build a dam, which according to this view could be of but little, or very uncertain profit to him: and without any compensation for, or security agt damages—

The abserdity & unreasonableness of such conditions would have shocked the Court, & every one else—And the permission to build, on such terms, would have been properly considered by the Plt, an insult, on his understanding; and the conditions would have at once been rejected of him.—

As I have considered the order of Court of 1805 the foundation of the right of the Publick to navigate the Plts Canal, I have thought it proper to look to the then existing state of things in order to ascertain the probable meaning & extent of that order—The Court, in granting it could not have been influenced by any subsequent transactions—and if any agreemt between the Plt, & the Defts, has since taken place on the subject, it must be distinct from, & independent of that order; and can neither lessen nor extend the original views and intention of the Court in making it—On this view of the case it would appear to me impossible to carry the intention of the order farther than the language of the Inquest will oblidge you to carry it, Viz “That the Plts canal, if he is permitted to build his dam, shall be used as an improvement in extending the navigation from Milton upwards; if that shall be adjudged the best course” This would certainly imply the right to erect locks, if necessary and to use the water in the Canal, so far as the publick interest required, without distroying or materially injuring the Plts prior right, or his original object in making his Canal, & building his dam—It conveyed a secondary not a primary right,—and cannot be supposed to give to the Publick even this secondary right, without making to the Plt a fair and adequate compensation, for any accidential or unavoidable injury which he might thereby sustain, and this is most reasonable, both as it respects the present Defts, and the Publick—The Defts have the right of demanding & receiving toll till all their expences incurred in compleating the navigation of the River, as well as the interest on these expences, are fully repaid—

Their rights then revert to the Publick, who have equal power to reimburse themselves—Whereas the Plt, for the Simple priviledge of erecting his dam, & thereby aiding the navigation of the River, may be subjected to immense injury, without recompense, unless the Defts, during the continuance of their rights, and the Publick afterwards, should, be bound to protect hi[m] against great & irrepairable injury: & to compensate him for such as are accidental, & unavoidable, though both are drawing profit from his labors & his property—

But the Defts deny that the Plt, has sustained, or is in danger of sustaining any material injury, in consequence of their use of his Canal; and contend that they have given him a sufficient compensation for that use, and for any additional injury which he may sustain thereby; And the exemption from tolls both on his own produce, & that of his customers at his mills, as evidenced by the act of the 30th of Jany. 1814, is referred as a proof—

This is denied by the Plt.—who assigns defferent reason for that act, and also alledges greater damages than the Defts are willing to admit—

The proof now before the Court is not sufficient to enable it to decide between them either as to the extent of damages actual or probable; or of compensation—or of their respective rights to the water in the Canal, according the principles of this opinion—

Perhaps this can no where, & in no manner, be so well decided as by commissioners either appointed by the Court or chosen by the parties, who can make enquiries and observations on the spot—

In order therefore to enable the Court to make such final decree as may be just between the parties, as well respecting their rights in the use of the water, as the compensation to be made, or which has been made to the Plt for any injury which he may sustain by the Defts’ use of it, or of his canal