From Robert Hanson Harrison
Aprill 5th 1770
I am of Opinion that by the Common Law, you cannot divert the natural course of the Run by cutting of a Race through your own Land; It being stated by Mr Washington that thereby J. Barry would be deprived of Water Necessary for his Cattle &c.—as on the Authorities—1 Bar Abridgement 45.54. Carth. 117. Com. 69. 5 Mod. &c.1
I also am of opinion that was a Jury by an order of Court founded on a petition preferred by you, agreable to the Directions of the Act of Assembly made in 1748 ch. 26 (Vid. the Act) to report that Introducing a Race thro. your Land, would deprive J. Barry or the person Intitled to the Land from Necessary water, that the Court would Reject your petition; and should they not do It, that Barry might maintain an Action upon his Case against you for any Damage or Injury Sustained by means of your diverting of his water; and that for every new Injury which would probably happen once every year, he might maintain a new action2—I must therefore Advise you to obtain his consent by an Instrument of Writing for that purpose—If you should, you will still be Subject to the same Inconvenience from the Heir at Law or person Intitled to The Land after Barry’s death unless you can procure his or ⟨her cons⟩ent then or now, If of full age, as no Agreement of Barry can bind longer than his life he being Tenant by the Curtesy only. I am Sir Yr Most Obedt H. Servt
Rob. H: Harrison
1. For GW’s dealings with John Barry, see George William Fairfax to GW, 12 Mar. 1770, n.1. The legal authorities that Harrison is citing probably are: Bar Reports; Thomas Carthew’s Reports of Cases adjudged in the Court of King’s Bench, Sir William Blackstone’s Commentaries on the Laws of England, and William Style’s Narrationes Modernae, or Modern Reports (1646–55).
2. Harrison is referring to “An Act concerning Water Mills,” passed in the October 1748 session of the general assembly (6 Hening description begins William Waller Hening, ed. The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619. 13 vols. 1819–23. Reprint. Charlottesville, Va., 1969. description ends 55–60).