Court of Appeals of Kentucky.

Cain

v.

Hays.

Oct. 6, 1836.

A person, injured by the erection of a milldam without his consent, may recover damages therefor, notwithstanding that the mill was duly authorized by law, and that the inquisition were of the opinion that he could sustain no damages.

Mr. Owsley for plaintiff; no appearance for defendant.

CHIEF JUSTICE ROBERTSON delivered the opinion of the Court.

This is an action on the case for consequential damage arising from the dam of a water grist mill; and the only question presented for consideration, is whether the defendant's plea, sustained by the circuit court, is sufficient to bar the action.

Any person injured by the crection of a mill (without his consent,) may recover damages, notwithstanding the mill was duly authorized, and although the inquisition were of opinion that he would sustain no damage; but his consent to the erection of the dam, will amount to a license, which may be pleaded in bar of the action.

Had the plea relied--as, upon first reading we thought it did--altogether on the fact, that the mill had been authorized 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--(8th 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 damnum, 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 be affirmed.

Ky.App. 1836.

Cain v. Hays.

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