of the statutes authorizing the overflowing the lands of others, for the encouragement of the erection and support of mills, an inchoate right to the privilege of flowing, according to the provisions of the statute, is acquired by commencing a dam. But unless the work is proceeded in to complete the dam, and a mill in connection with it, the party does not become entitled, as mill-owner, to the privilege in question. No person can avail himself of the privilege of a mill-owner merely by erecting a dam; and the question is a proper one for the consideration of the jury, whether there is a bonâ fide intention to erect, without unreasonable delay, a mill to be operated by the water raised by the dam.1

§ 493. Under the first section of the Statute of Alabama, which is explicit, that any person owning the land on one side of a watercourse, may make the application for building a mill; and under the fifth section, which prescribes that the same form shall be pursued when the applicant is the owner of land on both sides; if none of the matters appear by the inquest or other evidence, which authorizes the Court to decide against the application, the leave must be granted, and as to all other matters, they become questions of compensation, and must be determined as such. It is held, that from this it results, that the first applicant acquires an inchoate right to the privileges which are conferred by the statute; and provided he proceeds in the case, with reasonable diligence, he is entitled to a decree establishing his mill. Where one begins the erection of a mill and completes it, after the application of another, for the writ of ad quod damnum, and for the purpose of

1 Hatch v. Dwight, 17 Mass. R. 289.

defeating the right acquired by the application, he is entitled to no consideration if his mill be overflowed, and to no redress against the party who was proceeding lawfully to obtain a confirmation and establishment of his mill. But although the application may thus give the inchoate right to him who first applies, it can only be made complete and operative by the judgment rendered in the case, and not even then, unless every condition required by the judgment is complied with.1

§ 494. In Fitch v. Stevens,2 in which the action was founded on the Revised Statutes of Massachusetts, it appeared that in the spring or summer of 1836, Stephen Stevens built a dam on his own premises, but never erected a mill upon it; that in 1837, the plaintiffs instituted their complaint against him for flowing their lands in consequence thereof; and that afterwards, in 1838, Jonathan C. Stevens, the defendant, built a saw-mill on his own land, about half a mile below the dam in question, and drew water from the pond raised by it, by means of a trench, for the driving of his mill. The Court held, that, upon these facts, the complaint for flowing was prematurely brought, and that an action would have well lain at Common Law. "And however," said the Court, "it might have been, if the dam and mill had been built at the same time, though by different persons, yet here no intent was proved on the part of Stephen Stevens to erect a mill at any time; none was erected on his land, and the space of two years actually intervened between the building of the

1 Hendricks v. Johnson, 6 Port. (Ala.) R. 472.

2 Fitch v. Stevens, 4 Met. (Mass.) R. 426.

3 See Appx. p. i.

dam by Stephen, and the erection of the mill by Jonathan C. on his own land. We come to the conclusion, therefore, that Stevens was not liable, at the time of the filing of the original complaint, to be proceeded against under the statute, and that if he had pleaded in bar to the process, he would, under the facts as now presented, have prevailed in his defence. And whatever might have been the decision, if the complaint had been filed against both Stephen and Jonathan C. after the erection of the mill, as the case now stands, we consider the proceedings void as against the present defendant, because Stephen Stevens neither built nor occupied the mill; and it is open to the defendant to take the objection that the original party was not liable, and that he is not bound by the verdict and judgment against Stephen, being neither party nor privy to it." 1

§ 495. Under the Statute of Virginia, after a County Court has granted leave to one applicant to build a mill, if application be made by another to build a mill lower down upon the same stream, and the party who first obtained leave, shows that the dam for the second mill would be several feet higher than the fall between the two mill sites, and would, if built, destroy the privilege previously granted to him, the Court, in the exercise of a sound discretion, ought to refuse the second application.2

1 In 1841, it was expressly enacted by the legislature of Massachusetts, that no dam shall be thereafter erected to the injury of any mill site on the same stream which shall have been occupied as such by the owner thereof, provided such owner shall, within a reasonable time after commencing such occupation, complete and put in operation a mill, for the working of which the water of such stream shall be applied. Supp. to Rev. St. of Mass. 184.

2 Hulmes v. Shugart, 10 Leigh, (Va.) R. 332.

7. How a Mill once used becomes abandoned.

§ 496. Although a riparian owner has no right, under the statute, to flow back to the injury of an existing mill of another above, yet if the mill and mill site above are abandoned and left unoccupied, the rule does not apply. And the owner of a mill privilege on which a mill has formerly stood, but on which no mill is actually standing, is entitled to an action against any one, who, by erecting a dam below, renders the site useless for the purpose of erecting a mill; unless the owner has abandoned it with an intention to leave it unoccupied.1 It may be impossible always and at all times, after a mill has been erected and the statute has attached to it, to keep the water flowed to the requisite height, and to keep the mill in constant operation; the dam may be carried away by floods, the mill destroyed by fire, or both become dilapidated with age and wear. In all these cases, it may be necessary to take away the remains and rebuild. But it would be wholly inconsistent with the nature of the right granted, and with the objects and purposes of such a grant, to hold, that because the dam is temporarily removed, parties holding lands on the stream above or below are remitted to their original rights, and the statute right of the particular mill is extinguished. Therefore, some time must be allowed to the mill-owner to repair his dam and replace his mill; but, when no time is fixed by law, it must be a reasonable time, and what that is, must depend upon the circumstances of the case. If

1 Hatch v. Dwight, 17 Mass. R. 289; Hodges v. Hodges, 5 Met. (Mass.) R. 205; Fuller v. French, 10 Met. (Mass.) R. 359.

all the circumstances bearing upon the question are admitted or proved, it must be deemed a question of law to be decided by the Court.'

§ 497. An express declaration by the owner of a mill site which has been occupied by him, that it is no longer his intention to keep up the mill, accompanied with corresponding acts, such as removing the dam and mill, and giving notice of such intention to those whose lands he has flowed, and to whom he has paid damages, will be deemed an abandonment and extinguishment of the privilege.2

$498. If the owner of a mill site cease to use the same for an unreasonable length of time, the privilege is thereby lost; and the entire and continued disuse of such mill site for twenty years, is strong primâ facie evidence of a non-user for an unreasonable length of time; and unless rebutted by clear and satisfactory proof, it is conclusive.

3

§ 499. Where a mill-owner suffers his mill and dam to go to decay, and ceases to flow the land until a highway is made across the land, it is an abandonment; and he cannot, by granting his mill privilege and right to flow, authorize his grantee to overflow such highway by means of a new dam on the site of the old one.*

8. Claim for Damages waived by Parol, &c.

§ 500. The claim of a complainant, under the statute,

1 Opinion of Shaw, C. J., in French v. Braintree Manuf. Co., 23 Pick. (Mass.) R. 216.

2 French v. &c., ub. sup.

3 Ibid.

Commonwealth v. Fisher, 6 Met. (Mass.) R. 433.