Cain v. Hays , 34 Ky. 338 ( 1836 )

Chief Justice Robertson

delivered the Opinion of ¿he Cóurti

This is ah action on the case for consequential damagd arising from the dam of a water grist mill; and the only question presented for corisideration, is, whether the defendant’s plea, sustained by the Circuit Court, is sufficient to bar the action.

Had the plea relied—as, upon first reading, we thought it did—altogether on the fact, that the mill had been authorised by the County Court, in a regular proceeding, according to the statute, it would not have been good; because, nevertheless, any person who had not consented to the erection of the dam, would have a perfect right to maintain a suit for any damage he may have sustained, even though the inquisitors had, as alleged, reported that, in their opinion, he would not be damnified -—(8tji section of an act of 1797, 2 Statute Law, 1215.)

But upon a more careful scrutiny of the plea, we understand it to aver, also, that the plaintiff, being present at the inquisition on the writ of ad quod damnumi. consented to the erection of the dam; and such consent, amounting, as we think, to a license, must be deemed a waiver of all claim to any damages, that might happen to accrue to the plaintiff, in consequence of the erection of the dam.

Wherefore, in this view, considering the plea substantially good, the judgment' thereon in bar of the action,., must baaffirmed.