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Right of Appeal,

does not appear and

In case a decision be

by flowing, or shall claim a right to flow such lands with-
out payment of damages, or for an agreed composition,
the court shall order a trial of the issue which may
be joined by the parties, by a jury at the bar of said
court; or if the issue be an issue in law, shall determine
the same themselves, reserving to each party the liberty
of appealing to the supreme judicial court, as in other
By the same statute, if the owner or occupant of a

sec. 3. mill, notified as aforesaid, shall not appear, or, appearing,

Proceedings in case shall not shew sufficient cause, the said court of common the person notified pleas shall issue a warrant, and such proceedings shall shew cause. be had in all things as are prescribed by the statute of . 1795, c. 74:(1) Provided, that whenever there shall be an appeal to the supreme judicial court, and a determination shall there be had against the respondent, a certifi- lead in the S J. C. cate of such determination shall first be exhibited to said court of common pleas.

The proceedings above referred to, which are to take place, in case the owner or occupant, after notice, does not appear, or does not shew sufficient cause, are pointed out by the statute 1795, c. 74.

By this statute, the court of common pleas shall issue a warrant to the sheriff of the county ; and if the sheriff

Warrant for a jury. shall be interested, then to some coroner of the same county not interested, (such sheriff or coroner to be named by the court,) directing him to summon and impannel a jury of twelve good and lawful men; which jury shall be sworn to make a true and faithful appraisement of the yearly damages done to the complainant by so flowing his lands, and how far the same may be necessary. And the said jury shall try the cause, and their

(1) Upon a complaint made to the court of common pleas by the owner of land flowed, the respondent, if he claim to be wholly exempted from the payment of damages, must plead to issue at the bar of the court: otherwise the sheriff's jury are bound to give some damages. Vandusen v. Comstock, 3 Mass. Rep. 184.

VOL. III. 15

Sec. 2.

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verdict, being returned by the officer to the same court, and there allowed and recorded, shall be a sufficient bar to any action to be brought for any such damages. And it shall be in the power of said court to assess such sum to the officer for his services, as they may judge reasonable.

And when the said jury shall so inquire of the said yearly damages, they shall also inquire, and make return in their said verdict, what proportion of the year the said lands ought not to be so flowed ; and during such portion of the year as the said jury shall certify in their verdict, that the public convenience and the circumstances of the case do not justify such flowing. And the said verdict being accepted by the court, this act shall in no manner authorize the said owner or occupant of such mill, so to flow the said lands of others.

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III. What shall be the measure of the annual damages; and how such damages may be increased or diminished.

The verdict and judgment thereon, duly recorded, shall be the measure of the yearly damages, until the owner or occupant of such mill, or the owner or occupant of such lands so flowed, shall on a new complaint to the said court of the county, and by the form of process before prescribed, obtain an increase or decrease of the said damages. - And the party entitled to any such yearly damages, whether the party to the record, his heirs, executors, adminstrators or assigns, may have an action of debt grounded on such record to recover the same.


Debt lies to recover the damages.

IV. Obligation of mill-owners to give security for payment of the annual damages ; and the consequence of their refusal to give such security.

By the same statute, if any person whose lands shall be so flowed as aforesaid, shall, on his filing his complaint for ascertaining or increasing his damages, or on bring.

Ibid. s, 4.

ing his action of debt as aforesaid, move the said sourt to direct the owner or occupant of such mill, to give security for the payment of the said damages, from time to time, as they shall become due ; and if in that case, the said owner or occupant of such mill, shall neglect or refuse to give such reasonable security as the said court shall order, he shall have no benefit of the act, but shall be liable to be sued, for so flowing the lands of the complainant or plaintiff, in the same manner as though the act had not been passed.

V. The costs.

By the same statute, the party prevailing in any com

Ibid. &. 3. plaint or action aforesaid, shall be allowed his full legal costs, though the damages so assessed, or debt recovered, shall not amount to the sum of four pounds.

By the additional act, 1797, c. 63, s. 4, if the complainant shall fail to prosecute his complaint in any stage of the proceedings, or the issue joined shall be determined against him, the respondent shall recover his cots, as in other cases.

VI. The right of mill-proprietors to call a meeting; and the notice of such meeting. When any mill, worked by wind or water, the under

Stat. 1795, c. 74.5 5. works or appurtenances thereof, shall want repairs, or to be rebuilt in whole or in part, in the opinion of the major part in interest of the proprietors, it shall be lawful for any one or more of the proprietors thereof, to call a meeting of the whole, at said mill, to consult and agree about repairing or rebuilding the same in whole or in part.

The form of this notice is prescribed by the act; and my be seen in the appendix.

Which notification, signed by one or more of the pro- lbid. proprietors, or a true copy thereof given to any other proprietor, or left at his place of last or usual abode, not

See Append. No. 8.

more than thirty, nor less than ten days before the day of said meeting, shall be deemed sufficient notice, and may be proved by the testimony of any disinterested witness, who gave or left the same, or saw it done.

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VII. Liability of those who neglect to attend such meeting; or of those, who, attending such meeting, refuse to agree with the major part, in interest, of such proprietors, for repairing or rebuilding a mill.

If any proprietor so notified shall neglect to attend the said meeting, or refuse to agree with the major part in interest of the proprietors of such mill, for rebuilding or repairing the same, in whole or in part, so as to make the same serviceable, or to pay his part of the charges of doing the same, the rest of the proprietors, being the major part in interest, may cause the same to be done, and shall be reimbursed and paid such sum or sums as they, or any of them, shall advance thereon, beyond their respective proportions, with interest for the same in the mean time, out of the said mill, or the profits thereof; and, to recover the same, it shall be lawful for those who shall so advance beyond their respective proportions, jointly or severally, to have their actions against each one who shall be deficient: Provided, that nothing in the act contained, shall be construed to make void any particular contract made, or to be inade, for the repairing or rebuilding any mill or mills.(2)

VIII. How far minors, femes covert, tenants for life, for years, in tail, mortgagor or mortgagee, are deemed proprietors within the act.

By the same statute, where any part or parts of such mill shall, at the time of such notice and meeting, be

1 bil. 7.

(2) The only remedy against a part owner of a mill, who re. fuses to repair, is by reimbursement out of the profits: and this remedy does not lie against his heirs or assigns.

Carver v. Miller, 4 Mass. Rep. 559.

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held and possessed by any minor, feme-covert, lenant for years, in dower, by curtesy, for life, in tail, mortgagor or mortgagee, then the guardians of such minors, legally appointed, husband of such feme-covert in her right, such tenant, mortgagor or mortgagee in possession, shall be deemed, for all the purposes of the act in so repairing or rebuilding such mill, the proprietor or proprietors thereof; and such guardians, husbands, or persons having in possession such limited estates therein, shall be notified, vote, and contribute accordingly. And all advances so made by them respectively, for and on account of such minors, heirs of such married women, those in remainder or reversion, or the other party in the mortgage if not adjusted and paid by agreement, shall be recovera. ble in a special action on the case with interest.(3)

IX. Duty and fees of millers.

By the same statute, every miller shall be provided with scales and weights, to weigh corn, grain, and meal, to and from the mill, if required, and if he shall neglect to keep such scales and weights, or refuse so to weigh corn, grain, and meal, when required, he shall be fined, for each neglect or refusal, not exceeding five dollars, to be recovered with costs, by action of debt by the party suing to his use, before any justice of the peace of the county wherein the offence shall be committed.

Ibid. s. 8.

(3) Where a tenant for life of part of a mill agrees that liis co-tenant shall repair, and reimburse himself out of the profits of the mill, the profits are not answerable after the death of the tenant for life.

Carver r. Miller, 4 Mass. Rep. 559.

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