Kilgour v. Ashcom , 5 H. & J. 82 ( 1820 )

Buchanan, J.

delivered the opinion of the court.

The evidence is substantially this, that John Keech died intestate, seised of certain lands in Saint-Mary's county, which, in the execution of a commission issued at the instance of his children, under the act to direct descents, was divided into five parts, one of which was. allotted to Mary -Keech, one of the children, under whom the appellee holds, and another to Samuel Keech, under whom the appellant holds. That there is a mill on the part allotted to Samuel Keech, which was upon the premises, and in operation during the life of John Keech, their common ancestor, the dam of which covers a small portion of the part allotted to Mary Keech, which is the injury complained of in the declaration, and that the mill and dam were, at the time of bringing the suit, iu the same situation in which they were left by John Keech, and had been held and used by him in his life-time. And the question is, whether Samuel Keech, and those claiming under him, have a right to use them in the same way, and to the same extent; and it is clear that they have, The children of John Keech took their respective proportions of their father’s estate in the same condition, and subject to the same advantages and disadvantages under which he held it. The dam is appertinent to the mill, and if John Keech had sold the mill, with all the appertenances, it cannot be contended, that he could have sustained an action against the purchaser for the injury complained of here; and if he could not, it is difficult to perceive on what principles the appellee can maintain this suit against the appellant, who cannot be supposed to stand in a worse situation than the purchaser would have done. Besides, it was the duty of the commissioners, and it must be supposed that they did, in dividing the estate of John Keech, to¡ take into consideration all the advantages and disadvantages attending the respective parts, and that they gave to the part allotted to Mary Keech, an equivalent for the injury and inconvenience occasioned by the mill dam; and she took it accordingly. '

JUDGMENT. REVERSED.