majority">GGLDTHWAITE, J.

Before commencing the examination of the questions of law, which arise from the record before us, it becomes necessary to determine in what light we are to view the evidence on which the cause was decided in the County court, and which was certified in the record, and acted on in the Circuit court.. The plaintiff in error insists, that the- evidence could alone have been spread on the record by bill of exceptions, and as none was taken, it was improperly certified to the appellate court. On the other hand, the defendant in error asserts, the Circuit court to be a forumr in which this cause was or should have been tried de no-vo; and that to spread the evidence of record, a bill of exceptions should there have been taken. Either of these positions sustained, the consideration of the evidence would be wholly excluded from this court, but the effect on the parties would he reversed. In point of law, neither can be sustained:. The statute of eighteen hundred and twelve, under which these proceedings originated, in giving' the right of appeal, usesphrases which-are peculiar. “If; (are its terms) any person shall think himself aggrieved by the determination o.f the County-court, he may appeal therefrom to the' next Superior court for the district in which the land lies, which court shall .take cognizance of the same, and confirm or se-*495Verse such order, and give such judgment therein as may appear reasonable and right.”

If any one aggrieved by the determination, wishes to take the appeal which is allowed by this act, it must necessarily be taken in term time, when the decision is made; consequently, the court and parties can without difficulty reduce the evidence to writing, and this if certified by the judge, in the absence of all exception, will be presumed to be the whole of the evidence acted on by the County court. Should one party to the case wish to present any matter not in the statement certified by the court, he would present the question by bill of exception, for the consideration of the appellate court.

In no case, however, can a trial de novo be had in the Circuit court, unless the statute giving the right of appeal, expressly directs such a course to be pursued. After the removal of the cause by appeal, errors are to be assigned in the same manner as in other cases, and there is no necessity for making as many distinct assignments on the evidence as there are facts involved.

Having thus settled ,what is before the court for revision, it may be observed, that the investigation in detail of the numerous questions which have been argued, would prevent us from giving to the subject matters of our decision, that connection which is desirable; therefore, we shall first determine the rights of the litigants, as shewn by the facts of the case, and then ascertain if such error exists in the record, as to require the reversal of the judgment of the Circuit court.

The parties are severally the owners of lands in Dallas county, which were purchased by them from the United States a short time before the institution of these proceedings, — Johnson being the first purchaser. A stream of water of such magnitude as to warrant the erection of mills, flows through these lands, but its fall is not great enough within the space owned by both to admit .of more than one mill dam. Johnson owns the land which is situated nearest the source of the stream. Both parties have made application to the County court for *496leave to build a dam and erect mills, and have sued out writs of ad quod damnum. Each one insists that his application was first made, and that thereby he is entitled to a preference. Neither of them was content to await the adjudication of his claim by the County court, but both proceeded and erected dams and mills. The erection of -the dam by Hendricks has caused the overflow of Johnson’s mill. Johnson urges that he acquired a prior right to the ,use of the stream, by reason of his being a prior purchaser from the United States; but it is not perceived that this claim is entitled to much weight, as the right to the use of the water of a stream is common to all the owners of the adjacent lands, and is incident to their possession. It is true, that this right may be separated, so that one may be entitled to the exclusive use of the stream, but this can only be the case by the express or implied assent of those interested in the right.

The United States have no other rights within the several states than as a landholder, and when they grant a portion of their domain, only such rights as are incidental to the land pass to the purchaser. No other right is incidental to the land of Johnson than to use the water of the stream in common with all others, and he can claim nothing on this ground.

By the rules of the common law, all proprietors of lands have precisely the same rights to waters flowing through their domains, and one can never be permitted so to use the stream, as to injure or annoy those who are situated on the course of it either above or below him. Should any one interpose an impediment to the flow of the stream to the injury of others, successive actions on the case would in the course of time compel its removal, or induce an accommodation of the injury. But though the rights of all are thus equal and capable of .enforcement, the position of him who is nearest the source, is certainly preferable to that of one more distant, for an impediment erected on his portion of the bed of the stream, could only annoy and injure those *497above him. This, however, is a mere relative benefit for each proprietor is affected by it, when his right is considered with reference to another, who is yet lower down on the course of the stream. Johnson occupying this relative position to Hendricks, as the owner of lands, would be protected by the common law in the use of any dam which he might choose to erect, if in so doing he caused no injury to Hendricks by withholding the water of the stream from him, and this superior right, resulting as before stated, from position merely, could only be divested by a compliance with the requisitions of the statute; but as this is a subject which will be considered hereafter in connection with the construction of the statute, it will not now be further discussed.

The important question in this case, has very properly been stated by counsel, as arising out of the construction of the statute. If the act of assembly is to be so construed as to prohibit, by implication, the erection of any mill, or if a mill when erected can be destroyed by one claiming a right under the statute, this case would require no further consideration, as it is clear that at the time of the judgment in the County court, Johnson’s was not a mill established by law. But in our opinion, no such construction can obtain. This, we think, will sufficiently appear from a consideration of the inconvenience which existed at common law in relation to this subject.

It has already been shown that no proprietor could overflow the lands above him by the erection of any impediment in the bed of the stream, without subjecting himself to numerous and oppressive suits, unless he was also 'the owner or proprietor of all the lands on the course of the stream, affected by the reflux of water from that cause. Such being the law, it followed that the instances were rare, in which mills could be erected without subjecting their owners to consequences which might prove ruinous, and the statute was evidently enacted to obviate this mischief, existing in the common law. For this reason, the first act was entitled {< an act *498to encourage the building of public mills, and directing the duties of millers.” It was enacted as early as eighteen hundred and eleven, by the then Territory of Mississippi.* The general provisions of this act are very similar to those of the statute now in force, which was enacted in eighteen hundred and twelve, and which is only an amendment of the former act. Neither the one nor the other contains any provision by which the person acting under it is directly promised any immunity from prosecution or- actions, nor are. the rights of any proprietor to the uses of the stream of water directly divested by these enactments. Yet such must have been the intention of those who framed these acts, for otherwise no conceivable object could be attained by them, and no encouragement would be held out to build public mills, according to the title of the act, if those erecting them were to continue subject to the onerous provisions of the common law. It has been held in this court, that an action for overflowing lands would lie against a mill owner, even where the plaintiff had acquired title to lands injured thereby, after the erection of the mill —Loftin vs. McLemore.†

The checks and restrictions which are imposed on the applicant, directly tend to prove that wThen the statutes are pursued, the judgment of the court is a complete authority to act as soon as the conditions imposed are complied with.

If, then, these statutes confer and divest rights, it becomes important to ascertain the period of time when they are conferred or divested. In order to this, the statutes must be examined; but before proceeding, it is necessary to determine the extent of the prohibition contained in the fourth section of the act of eighteen hundred and eleven.‡ This section followed others which presented a very similar mode of proceeding to that now in force, and provides that “it shall not be *499lawful for any person to erect a mill so as to overflow any other mill,' or create a nuisance in the neighborhood —any thing herein contained to the contrary notxoithstan-ding.” These words, which are italicised, are omitted In Mr. Aiken’s digest, but the effect which they must have in restraining any action by the County court, will be apparent from a slight examination. In conferring benefits, or holding out inducements for erecting public mills, it was not to be anticipated- that a legislature would authorise a direct and palpable injury to others —they therefore provided, that no action of the County court should authorise the destruction of any other mill, and in all cases where such had been erected, no power was given to interfere with it by overflowing it, thus restricting any one who was a proprietor on the stream below, from injuring a mill owner above, but leaving him entirely to the law as it then stood. If by his erection of the mill, any one had been injured, this right of action was not interfered with, nor was the mill owner protected in any other manner than from intrusion from those below. So likewise, no act of the County court could be allowed to authorise or create a nuisance — such could always be abated in due course of law. This section must be construed to have the same controlling operation over the whole act of eighteen hundred and twelve, as it had- over the act of eighteen hundred and eleven, and no judgment or decree of the County court can now authorise the overflowing of a mill, or the erection of a public nuisance. Then, to proceed to the construction of the law as it now stands on our statute book, as connected with the inception and completion of the rights to be acquired under it.

The first section provides the manner of proceeding, when “ any person owning lands on one side of any water course is desirous to build a water grist mill, saw mill, cotton gin, or other useful water works on such lands, and to erect a dam across the same for working said mill, and shall not himself have the fee simple property in the lands on the opposite side thereof, against *500which he would abut his dam; or if he should have lands adjoining others through which it may be necessary to dig a ditch or canal in order to erect such mill on his own lands.” He is to make application to the clerk of the County court for a writ of ad gvcd dam-num, who is thereupon to issue such process, directed to the sheriff, commanding him to summons and empannel seven freeholders or landholders to meet on the lands so proposed by him for the abutment, ditch or canal, on a certain day to be named by the clerk and inserted in the writ, of which ten days previous notice shall be given by the sheriff to the proprietor: by the second section, is pointed out the duties of the jury of inquest. They are to be charged by the sheriff to view the land so proposed for the abutment, and to locate and circumscribe by certain metes and bounds, one acre thereof, having due regard to the interests of both parties, and to appraise the same according to its true value; to examine the lands above and below, of the property of others which may probably be overflowed, and to say what damage it will be to the several proprietors, and whether the mansion house of any such proprietors, offices, curtileges or gardens thereunto immediately belonging, or orchards, will be overflowed: to enquire whether in their opinion, the health of the neighbors will be materially annoyed by the stagnation of the waters, and if it be a ditch or canal proposed through another’s land, then to enquire what damage the same may be to the proprietor, and assess the same accordingly. The third and fourth sections prescribe the manner in which the inquest shall be returned, and how the several persons interested in the land so located or found liable to damage, shall be summoned, to shew cause why the applicant shall not have leave to build the mill and dam; and the fifth section declares that if the person proposing to build such mill and dam shall have the property in the lands on both sides of the stream,, application shall be made in the same manner for a like writ, whieh shall be directed, executed and returned, as in the former case.

*501The sixth section then provides, that if on such in- • quest or other evidence, it shall appear to the court that the mansion house of any proprietor, or the offices, cur-tileges or gardens thereunto immediately belonging, or orchards, will be overflowed, or that the health of the neighbors will be materially annoyed, they shall not give leave to build such mill and dam, but if these injuries are not likely to ensue, leave shall be given as aforesaid.

The statute does not contemplate the exercise of any discretion by the court: if the proceedings are regular, and none of the injuries named in the statute are likely to ensue, the application must be granted. The statute-does not appear to have provided for the determination of conflicting claims in relation to the appropriation under the statute, of the same water power, and we must therefore determine from the terms used in .the several sections, on what conditions the rights are to vest.

The first section is explicit, that any person owning the land on one side, ■ may make the application; and the fifth prescribes, the same form shall be pursued when the applicant is the owner of the lands on both sides. If none of the matters appear by the inquest or other evidence, which authorises 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. From this it results, that'the first applicant acquires an inchoate right to the privileges which are conferred by the statute ; and pro-, vided he proceeds in the case with reasonable diligence, he is entitled to a decree establishing his mill — if any-supposed adverse rights exist, they are such as can be. compensated by the damages to be assessed'by- the jury of inquest, or by the court, on proper evidence. The ■ second section authorises the jury to ascertain the lands above and below, of the property of others which wili probably be overflowed, and to say what damage it -will be to the several -proprietors. The next section contemplates that these proprietors may become parties to the ease at this stage of it, and if the jury of inquest has *502not properly determined the damages, it is a subject which may be corrected by the court on the evidence offered, or it might be made the subject of an issue, and investigated before a jury under the act of eighteen hundred and twenty-one, section six* And even in cases where the jury of inquest have ■ entirely omitted to name a land proprietor as injured, by reason of which no process would issue, we consider that such an one would be entitled under the equity of the statute, on propounding his interest, to litigate the questions with the applicant, provided it was done at any time previous to the final decree.

But although the application may thus give an 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. The seventh section of the act, declares “ if the party applying obtain leave to build said mill and dam, he shall, upon paying respectively to the several persons entitled to receive the same, the value of the acre so located, and the damages which the jurors find will he done by overflowing the lands above or below, or both by the canal or ditch, — become seized in fee simple of the said acre of land, and as much as may ■ be necessary for such ditch or canal; but if he shall not, within one year thereafter, begin to build the said mill, and finish it within three years,” the right to the land shall revert, &c.

The statute, it will be perceived, prescribes no time within which the damages assessed shall be paid; but as we have hitherto determined, in'a case between the same parties, at January term, eighteen hundred and thirty seven†— no right is perfect until the judgment is rendered and the damages are paid. If the party applying for leave has, without waiting for the determination of the proper tribunals, proceeded to erect his mills, he *503must rely alone on bis common law rights; and any one injured by the ere-ticn, has all the common law remedies.

The conclusion to which we have arrived, with respect to the potential form of the application, in conferring an inchoate right, requires us to scrutinize the evidence on which the parties severally rely to bring themselves within the description of prior applicants. The cleric of the County court testifies that Hendricks applied for leave in the last week of September, eighteen hundred and thirty-three, and Johnson on the ninth of October following. A writ of ad quod damnum, was issued in favor of the first, on the first day of October, eighteen hundred' and thirty-three, and in favor of Johnson, on the nintli day of October following. These writs were neither of them prosecuted to effect; the inquest returned to the first was quashed, and no return appears in the record to that of Johnson — they may therefore be entirely laid out of view. Other writs were sued out by the parties; — both were issued on the same day,.but that of Hendricks first in point of time, in which, however, the time of executing the inquest was left blank. This was afterwards filled up on the same day, and after Johnson’s writ had issued, perfect in its form.

From the view we shall take of the record evidence, it will be unnecessary to determine how far parol evidence is admissible, to shew the time at which such an application is made; but as it is clearly so in the case of two records or papers which are quasi records made on the same day, we prefer to rest our decision on this point.

The act does not require that any act should be performed by the applicant after making the application. The issuing of the writ is the duty of the clerk, and it cannot be allowed that an error committed by him shall have the effect to prejudice the right of a party. If the writ had have been quashed for the reason that the blank described was in It when issued, yet the fact of his having made the first application, would support any new *504w?. it which might he sued out by him within a reason-ab)e time after the quashing of the first writ.

Another reason which affords a most conclusive answer to this objection, is this: that it was wholly unnecessary to nsert any day in the writ for the execution of the inq.ue:t, when the application was made by one who was (he owner of the lands on jboth sides of the water com se, and the applicant did not seek for the condemnat.on of lands belonging to another, for an abutment, ditch or canal. The only reason why, in such cases as seek a condemnation, a day is required to be inserted, is, that the sheriff is required to give the proprietor of the lands sought to be condemned, ten days notice of the time when the inquest is to be made. Hendrick, then, became entitled, by his application, to all the rights which the statute intended to bestow, unless some of the causes were then existing, which are contemplated by the act as reasons for denying the application. The inquest, when returned, established that no mansion house, &c. would be overflowed, and although no judgment of the County court could authorise, him either to overflow another mill, or create a nuisance, yet these matters could also be enquired into by that tribunal, and, if established, would be decisive against the applicant.

The learned judge who decided this case on the Circuit, seems to have considered the evidence as very clearly establishing, that the erection of the dam by Hendricks did overflow a mill erected by Johnson, but did not advert to what is equally clear, that it was begun and erected after the application of the former. Without entering into the inquiry, how far Johnson, who never attempted to obtain leave for his contemplated erection, could protect himself under the plea that he had bona fide begun the erection before any application made by another, we are clear that in the present case, he is without such a defence; for the evidence of two witnesses shews, that his mill was not begun until the day on which the first writ of Hendricks was issued. If *505he afterwards proceeded to defeat the right thus acquired by his opponent, with a knowledge of the application, he is entitled to no commiseration; and if he acted ignorantly, he is without excuse, for the records of his county would always have informed him of the intention of Hendricks to obtain the leave of the proper tribunal to erect his mill and dam. On the other hand, if Hendricks, without the authority of law, has proceeded with an erection which has caused injury to Johnson, the latter has his remedy, but it is not here that relief can be given.

So far as the evidence tends to show any damage to what is termed the old mill of Johnson, we are satisfied that the weight of it is against the position; but should subsequent developements establish the fact, it is one for which there is ample remedy, as no judgment rendered in this case could in any way affect his right to remain undisturbed in that mill.

The objection to the rejection of some part of the evidence given by the witness Ritchey, would be entitled to much weight, if it had in point of fact been rejected, but it all appears in the statement of the evidence set out in the record. It does not appear to have been excluded, nor was the witness rejected. The evidence is before us, and, when considered by the court, is outweighed by that of several other witnesses testifying to the same matters. We have not therefore deemed it important to enquire whether he was so interested as to be an incompetent witness.

The evidence before the County court in reference to the damages sustained by Johnson, was directed solely to the inquiry of the value of the mill. It appears not to have been made a question whether any damage was done to his lands by reason of overflowing them. As the erection of the mill by him was after the application made by Hendricks, it was not a subject matter of compensation under the statute, and no damages should have been allowed to him.

Although from the general principles which we have *506laid down, we might now announce our judgment orf the whole case, yet we prefer, in order to settle the practice under this statute, to state, that a plea in abatement cannot be sustained to a writ of ad quod damnum; it is wholly an ex parte proceeding, until the return of the inquest, when any one interested in the subject matter may appear with or without process served on him, and contest the claim. If defects appear in the writ or inquest, they can be reached by a motion to quash ths same, which if done, other process could be awarded, and on its return, the cause could proceed to final judgment, when an appeal could be had hy any one previously before the court.

It is not conceived necessary to- make a particular application of the questions decided, to the several points raised in tile assignment of errors' in either court; it is sufficient to announce, that all are covered by what has been said.

Our judgment is, that the decree of the Circuit court be reversed, and we proceed to render such decree as we think that court should have done.. We reverse the decree of the County court, so far as it adjudges any damages to be paid to Johnson by Hendricks, and in all other matters it is affirmed. The costs of the Circuit court and of this court, are decreed against the defendant in error.

Laws of Ala. 622.

2 Stew. 133.

Aik. Dig. 324, s. 2

Aik. Dig. 251, s. 27.

5 Porter, 208.

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