HENDRICK VS JOHNSON, 5 Port. 208

GOLDTHWAITE, J. This is an action on the case for obstructing Johnson, (the plaintiff below,) in the use and enjoyment of a mill, owned by him, and situate in Dallas county. The obstruction complained of, was caused by damming up the stream on which Johnson’s mill was placed, and forcing the water back on the wheels and machinery.

The action was commenced on the first of April, eighteen hundred and thirty-four, and tried on an issue formed on the plea of not guilty, at the Spring term, eighteen hundred and thirty-five, of the Circuit Court of Dallas county, when a verdict was found, and judgment rendered for Johnson. On the trial, Hendrick (the defendant below,) offered in evidence the record of certain proceedings had in the County Court of that county, on his application for a writ of ad quod damnum.

This record shows that Hendrick applied to the County Court for leave to erect a mill and dam, and on the twenty-second of November, eighteen hundred and thirty-three, a writ of ad quoddamnum was issued, under which an inquisition was made by a jury, on the twenty-ninth of the same month, which ascertained that by the making of the dam, as contemplated by Hendrick, the water of the stream would be forced back, and raised on Johnson’s dam, more than one foot, and proceeded to assess his damages by reason of the same, at nine hundred dollars.

The writ and inquisition were returned to the February term, eighteen hundred thirty-four, of the County Court, when Hendrick appeared and applied for a summons to issue to Johnson, to shew cause, &c.' under the statute. — (See title Mills and.

Millers — Aikin Dig. 324.) On the return of the process awarded, Johnson appeared and contested the right claimed by Hen-drick, and at February term, eighteen hundred and thirty-five, a judgment was rendered by the County Court, by which it was determined that on the payment to Johnson by Hendrick, of nine hundred dollars, so assessed by the jury, under the writ of ad quod damnum, he should have leave to erect a mill or mills, and to build a dam across the stream on which Johnson’s mill was placed, which dam might be made nine feet seven inches high.

From the judgment, each party prayed an appeal to the Circuit Court, which was granted, and is presumed to have been pending when the trial was had below. The evidence thus offered, was not admitted— Hendrick then offered to shew by the records of the County Court, and the evidence of its clerk,, that he was the first applicant for any writ of ad quod damnum, and that he had first obtained this writ. This also the Court refused to admit. And these refusals to permit the evidence thus offered, to go to the jury, are now assigned, as error.

It is not easy to perceive what influence these proceedings could have had on the trial of this cause, as it is certain that a perfect right could not be acquired by Hendrick, until the judgment of the Court was had on his writ of ad quod damnum; and no judgment was rendered on the same, until long after the institution of this suit.

Indeed if he had have obtained permission to erect a dam, prior to the commencement of the suit, no right could have accrued to him, under the judgment, before he had paid to Johnson the damages awarded to him, as the payment is a condition annexed to the grant of right, which must be complied with, before the right is complete. This question has been thus decided on a similar statute in Kentucky.

Whether Johnson had obtained the permission to erect a dam across the water course, does not appear, neither is it stated that he had a prescriptive right, if indeed such a right could be had^but this inquiry is perhaps immaterial, for however the law may be, as to the right of any person to erect a dam, without the leave of the County Court, on an inquisition, ascertaining that the erection would create no nuisance, — we are clear that a tort feasor cannot object in an answer to a suit for damages, caused by a nuisance, that he has only injured and obstructed the plaintiff in the enjoyment of a right which he had no authority to exercise.

If the de-fence in this case had been the abatement of Johnson’s dam., as a public nuisance, the inquiry would properly arise; but in the present action, we are clear that it was^wholly immaterial for the jury to consider, whether Johnson had erected his mill, with or without authority. The only question raised by the issue was, whether the plaintiff had been injured by an illegal act of the defendant, and this having been decided, and this Court being of opinion there is no error in the action of the Court below, the judgment is affirmed. HOPKINS, C. J. not sitting; 3 Marsh 37.