Garrett & Smyth v. Bailey ( 1844 )

The Court.

—This is a remedy specially provided by act of assembly, and the party resorting to it must bring himself within its terms. He must show the court by his petition, and if these preliminary facts be denied, by proof, that the dam of which he complains was erected within six years. This is a restriction imposed by the law itself. The grant of this writ is not of course, neither is this proceeding ex parte. The petition states that a dam has been erected within six years, to the damage of the petitioner. He ought to prove this at least prima facie, to show that the court ought to entertain jurisdiction.

The petitioners then proved that Samuel Bailey had put an upper piece on his mill-dam, from four to six inches thick ; and that from this or from some other cause, the water had been more, backed on the upper mills than formerly.

2d. But the case now presented is not a case that would come under that law if the court had jurisdiction. It was a law to discourage the making more mills and the -erection of more new dams, and has reference only to such erections. It does so in terms, and from its object. Can it be said that a law giving a summary remedy' for the erection of new mill-dams, shall be applied to damages done by" a small increase in the size of an old dam which has been in the peaceable occupation of the defendant for seventy years and upwards, and all the time used as a mill. There is no proof of making a dam within six years; and no proof of even an increase of the dam within that time.

Wales and Clayton.

—This act is a beneficial statute. It is entitled “ An act for the encouragement of mill owners, &c.” It was designed to protect upper mill owners against lower mill owners backing water upon them. As such beneficial statute it is entitled to a liberal construction in furtherance of the object and advancement of the ’remedy. The act provides for no notice to any person; Samuel Bailey has no right to appear and make any defence to the issuing the writ. Unless secured by law he has no such right. What is our petition l We assume that we have a right to amend it under the constitutional provision, at any lime pending a cause; and this case is hardly yet commenced. As amended, it sets out as the grievance that the complainants have been injured by an addition to the respondent’s mill-dam. There is prima facie proof of this. Such proof as the court would require as preliminary to the issuing of the writ. The jurisdiction of the “ County Court of Common Pleas,” was transferred to the Court of Common Pleas, and and that to this court.

Rogers, in reply.

—The act so far from being such as is to be construed liberally, falls within that class of statutes which are to be construed most strictly. It provides a new mode of trial; not known to the common law; and a new and highly penal mode of judgment, which may extend to the pulling down and abating the respom dent’s mill-dam. The act in its terms and plain meaning has reference to mill-dams newly planted; originally made ; and not to additions to old and established mill-dams. The want of jurisdiction is not answered by authority; only by statement and assertion by one counsel; and attempted ridicule by the other. The County Court, of Common Pleas was a court of county jurisdiction. The Court of Common Pleas was a court of general jurisdiction. Amend the law as they require, according to the act of 1832, and the'jurisdiction would be in the “ County Superior Courtthere being no such court.

Wales and Clayton, for petitioners. Rogers, jr., contra.

Court.

—From the meaning of this act of assembly of 1773, taken in connection with the previous acts, it was evidently intended to apply to mill-dams recently erected, or made for the first time to the injury of previous mill owners; and was never intended to apply to the rights of ancient mill-holders backing water by the raising mill-dams already erected. The act is in derogation of the common law, and must receive a strict construction. In its terms it applies to the erection of new dams, and it repeals previous laws for facilitating the erection of such dams. Many cases have occurred in the State for violating mill rights by backing water; some of which have been conducted and defended by the ablest counsel in the State, and no resort has heretofore been made to this mode of remedy. Considering the complainants’ petition as amended, therefore, it states a case, in our opinion, not within the law; as it stood it is not supported by any proof whatever of the erection of a dam by the respondent, within six years. In either case the petitiqn must be dismissed.

Petition dismissed.