L. & D. Groce v. Zumwalt, 4 Mo. 567

Statement of the case, and opinion delivered by McGirk, Judge. In June, 1836, Zumwalt filed his petition in the Saint Charles circuit court to have a writ of ad quod dammutn issued to condemn certain grounds, and to have leave to build a mill and mill dam. The petition states that Zum-walt owned the land on both sides of the stream, and that he wishes to build a dam eight feet high.

The writ was issued to the sheriff, who executed the same by summoning a jury, who returned their verdict as follows: 1st. “We, the jury, do certify that we have viewed said mill seat, arid do not consider any damage will be done by said mill dam. 2d. “Neither do wc consider said stream navigable. ad quod damnum ma)' be objected who^rm^ionsTdor himselfinjuredby Rebuilding of the fhePc008uerdtta bound to hear the testi-mony offored.

The verdict of a iiirv. rn » writ nf 3d. “Neither do we consider that the- health of said neighborhood will be injured.” The.petition alleges that the petioner owns the land on both sides of the stream where the dam is proposed to be erected, but it does not show how far up the stream his land extends.

When the jury’s verdict was returned into court, the Groces appeared, and offered objections to the leave to build the mill* They offered to' prove that they owned the land on both sides of the stream a short distance from the place where the dam was proposed to be erected, and that there was only eighteen inches fall in the stream from the place of erecting the dam to their line, consequently the water on their land would be six feet six inches, by which their own mill seat would be .destroyed, a good spring covered up, and a building site destroyed, besides other injuries to the land.

The court refused to hear the testimony — .overruled the .objections, and gave leave to build the mill dam, The only question for the consideration of the court whether the party who may consider himselt injured by the building of a dam, has a right to make objections? This writ of ad quod damnum is founded on the slat-ute respecting mills and mill dams; Revised Code, 405, 6, . 7. The first

section of the act provides for cases when the person proposing to erect the dam is owner of the land on both sides where the dam is proposed to be erected. ‘ The second

section puts the case where he is the owner only on one side at that point. The eighth

section requires the jury in that case, to inquire of the value ' of one acre- on the opposite side, and directs the sheriff to summon the owner. In such case, the law no where provides that any other owner in any other case shall be summoned. This is, in my opinion, a mere omission.— But notwithstanding this omission, it seems to me the legislature did not intend to exclude other owners from appearing voluntarily and making objections. The first duty of the jury by the seventh

section was, to inquire what damage will ensue to each proprietor by reason of inundations consequent upon the erection of the dam? They have said generally, “no damage, or rather we do not consider any damage will be done by said mill dam.” . The fact that a dam, eight feet high would throw water six and a half feet on other people’s land, must have been •concealed from them, otherwise they never could have found upon their oaths, that no damage would be done to any body. It might be, that as they found no improvements there', they thought they had no right to inquire about it. The second duty or point of inquiry is, will orchards, gardens, &c. be injured? The' thirteenth

section provides, that “if upon a view’ of the inquest returned by the sheriff, and other evidence, if any such shall be produced, it shall appear to the court that the mansion house of any proprietor, or out houses, curtilage^, or gardens thereto belonging, or orchard, will be overflowed, or the health of the neighborhood will be materially annoyed by the stagnation of waters consequent upon the erection of such dam, the court shall not permit it.” I am clearly of opinion, that the equity of this thirteenth

section embraces more than is contained in the words. For, by the seventh section, the jury are to inquire in the first instance, what injury will be done to all sorts of proprietors by the waters overflowing?— This embraces uncultivated lands, mills already existing, mill sites, tan yards, meadows, and corn fields. Can it be supposed, that when in the thirteenth section, the legislature enumerates the mansion house, the out houses, curtilages, gardens and orchards, and the health of the neighborhood, they intended to leave unprotected all other cases that might properly be embraced in the first duty of inquiry ?

I think not, and conclude that wild lands unimproved, mill seats, tan yards, and corn fields, are to be protected, as well as mansion houses, orchards, &c.— and that these things are within the equity and spirit of ihe thirteenth section. Therefore, the proof ought to be received. The judgment of the court below is reversed5 the cause is remanded for further proceedings.