Rushton v. Martin , 43 Ala. 555 ( 1869 )

PECK, O. J.

This ease originated in the probate court of Crenshaw county, and was a proceeding in that court, under chapter 3d, page 503 of the Revised Code of Alabama, instituted by the appellee, to obtain permission to erect a dam across “ Capp’s Mill Creek,” a water-course in that county, not navigable, for the purpose of building a water grist mill to grind for toll.

The petition states that the applicant was the owner of the land on both sides of the stream, and, consequently, the proceeding, in the first instance, was ex parte, no notice being necessary to be given to anybody.

Upon the filing of the petition a writ of inquiry was issued to the sheriff, by the judge of probate, as required by section 2486 of the Code.

This writ was executed and returned by the sheriff, by which it appeared that a small part of the land of appellant, Martin, would be overflowed by the erection of the dam, and the jury assessed his damages at the sum of fifty dollars. Thereupon, a summons was issued to him to appear before the said judge, on a day named in said summons, to show cause why applicant should not have permission to erect his dam.

Under this summons the appellant appeared, and was made a party to the proceedings, in pursuance of section 2502 of the Code. A final hearing was had, and the probate judge decreed in favor of the appellee, and granted him permission to erect his dam. From this decree the appellant appeals to this court, and assigns the following errors, to-wit: “ 1. The inquest of the jury does not affirmatively show what the jury was sworn or charged by the sheriff to try, but simply that they were duly sworn.

“ 2. The inquest of the jury, in their finding, is so confused and uncertain, that the court should not have acted on it.

“ 3. The inquest of the jury finds, that the mill dam will probably injure the neighborhood, and notwithstanding this finding of the jury, the probate court established the mill dam.”

There is nothing in the first assignment of error. By looking at the inquest of the jury, it will be seen that it states, the jury were duly sworn by the sheriff, and charged by him, as required by law, before they proceeded to act. This, perhaps, would be held to be sufficient, if there was nothing else in the transcript on the subject, but the sheriff’s return on the writ of venire, shows that the jury were sworn and charged by him, in strict conformity with the requirements of the law.

As to the second assignment, we think the inquest of the jury sufficiently clear and certain to authorize the court to proceed and act upon it; indeed, the only defect we have been able to discover in the inquest, is the omission of the word not, where it speaks of the health of the neighborhood, which, we are satisfied, was occasioned by a mere mistake in writing out the inquest, or in making up the transcript; otherwise, the inquest is full and complete, strictly complying with the law on this subject.

In arguing the third assignment of error, the appellant’s counsel treats the inquest of the jury, as showing that the health of the neighborhood would probably be endangered by erecting the dam, and that where that appears from the inquest of the jury, the application should be denied.

We think the counsel is mistaken in supposing the inquest, all taken together, finds that the health of the neighborhood will probably be endangered by the erection of the dam. It seems to us, in reading the whole inquest in connection, that the jury intended to find, and did, in fact, find, that the health of the neighborhood would not probably be endangered, and that the word not was omitted in the inquest by mistake, or was left out in the same way, in making up the transcript. But whether this be so or not, it will not affect the opinion of the court, in the condition in which we find the transcript in this case.

The appellant’s counsel insists that if the inquest finds that the health of the neighborhood will be endangered, the court must refuse the application. However this may be where there is no contest, we hold, when there is a contest, the inquest does not conclude the court, either in granting or denying the application.

Where there is a contest, section 2495 of the Code says : If it appear to the judge from the inquest, or from any other evidence, that the residence of any owner, or the outhouses, enclosures, garden, or orchard, immediately belonging thereto, will probably be overflowed, or that the health of the neighborhood will probably be endangered, or any other mill or water-works probably overflowed, the judge must not grant the application; but if such results are not likely to ensue, the application must be granted. The decree of the judge states, that on the trial many witnesses were examined, and that it appeared to his satisfaction, that none of these results would ensue, and, particularly, that the health of the neighborhood would not probably be endangered; therefore, the application was granted. We can not review this decree on the merits, for the reason that the evidence does not appear in the transcript.

If the appellant desired to have the said decree reviewed in this court, on the merits, he should have objected to the decree, and set out the evidence in a bill of exceptions . but as this was not done, we are bound to hold the evidence before the judge was sufficient to warrant the decree.—Forrester v. Forrester, 40 Ala. 557; Morgan’s Adm’r v. Morgan’s Distributees, 35 Ala. 303.

We are unable to discover any available error in the proceedings or decree of the court below.

Let the decree be affirmed, at the costs of the appellant.