Reporter's Statement of the Case.

II. One Levi Low was formerly the owner of the mill owned by the claimant. At the time of the ownership of Levi Low, to wit, March 15, 1849, the General Assembly of Virginia passed a special act in the words and figures following, to wit:

"1. Be it enacted by the general assembly, that Levi Low, of the county of Monongalia, is hereby authorized to increase the height of his dam on the Monongahela River 4 feet diminishing its height where it terminates in the river to 2 feet: Provided, That said dam shall produce no impediment to the navigation of the river, and shall at any time be abated by the county or superior court of Monongalia as a nuisance should it appear that the said dam does obstruct the navigation aforesaid."

Thomas Hall and Raphael Hoult owned land on each side of the Monongahela River. On February 26, 1827, these two persons, in pursuance of the provisions of the act of the General Assembly of the Commonwealth of Virginia, passed March 2, 1819, entitled "An act to reduce into one the several acts concerning mills, milldams, and other obstructions to water courses," instituted proceedings for the purpose of acquiring the necessary rights, from other property owners, to erect a dam across said river for the purpose of building mills on each side thereof, and on July 23, 1827, the county court of Monongalia County entered an order granting the said Hall and Hoult the right and privilege to erect a dam for the purposes aforesaid.

In Chapter CLXXX of the acts of the General Assembly of Virginia of 1831 appears to be "An act concerning Thomas Hall and Raphael Hoult," as follows:

"1. Be it enacted by the general assembly that it shall be lawful for Thomas Hall and Raphael Hoult, their heirs and assigns, to erect and keep in constant repair a good and sufficient sluice and windlass or crane and other necessary fixtures instead of a lock and slope, at their milldam across the Monongahela River, in the county of Monongalia.'

The said dam was built by claimant's predecessors in interest and has been maintained by claimant for the purpose of furnishing water power to operate said mill. Said dam was an actual impediment to the navigation of the river.

Reporter's Statement of the Case.

III. In December, 1903, immediately prior to the time the United States completed the construction of Dams and Locks Nos. 13 and 14, that portion of claimant's property lying contiguous to the said river was well suited for milling purposes, for which it was then being used, and was worth to him a sum of money in excess of $3,000.

IV. In the years 1901-1903 the United States built two dams with locks across the Monongahela River; one dam and lock, No. 14, is located about 1,000 feet below or down the river from the mill of claimant; the other dam and lock, No. 13, is located about 4 miles below or down the river from claimant's mill. These dams and locks were built in the improvement of navigation of said river under authority of acts of Congress.

V. The immediate effect of the construction of Dams and Locks Nos. 13 and 14 was to back up the water to claimant's mill, submerging the basement, and in times of high water a part of the machinery, and destroying the head of water furnished the mill dam. The mill wheels are the only parts of the machinery which are actually flooded at all stages of

water.

VI. Claimant's said mill was a three-story and basement frame structure, supported by a good stone foundation. The framework was of heavy hewn oak timber, and the siding was of good quality of poplar. The mill was covered by a steel roof. Said mill was equipped with a first-class roller process, including all needful machinery, and had a capacity of about 5 bushels of wheat and from 8 to 10 bushels of corn per hour.

VII. The mill site (or land upon which the mill building abutted) consisted of about three-fourths of an acre prior to the completion of said Dams and Locks Nos. 13 and 14. The backwater from said locks and dams submerged twothirds thereof. The residue, since the completion of said locks and dams, is destroyed by reason of the overflows caused by rises in the waters of said river in times of freshets, rendering valueless for any purposes the entire tract of land consisting of three-fourths of an acre.

It is 3 or 4 feet from the water in the forebay to the bottom of the mill and the water does not reach the ground floor

Opinion of the Court.

of the mill building, and no part of the machinery in the mill building, except that the ground floor is subject to damage in periods of high water only.

The mill building is shown in Exhibits 1 and 2, which disclose its location in the bed of the river, adjacent to and abutting against the banks of the river.

VIII. The milldam, which was about 1,200 feet long, was constructed partly of stone and partly of timber, and extended entirely across the Monongahela River. It was in a reasonably good state of repair in 1903 when Dams and Locks Nos. 13 and 14 were completed by the United States. Said milldam was put in place at a cost of from $1,500 to $2,000.

IX. The water power furnished by means of the aforesaid dam was sufficient to run said mill at full capacity for about 10 months of the year, and the head of water furnished was from 4 to 6 feet.

X. The mill building, dam, water wheels, shafting, and all other mill machinery and fixtures were in good condition and repair before the public improvements were made by the United States. After the completion of Dam No. 14 in November, 1903, all of said mill property, including the use of the milldam, was rendered useless for mill purposes. Steam power could not be substituted for water power, because the normal level of the pool is less than 4 feet below the floor of said mill at low-water stage.

XI. The value of the land submerged and taken was $112.

Mr. Waitman H. Conaway for the plaintiff.

Mr. J. Harwood Graves, with whom was Mr. Assistant Attorney General Huston Thompson, for the defendants.

HOWRY, Judge, delivered the opinion of the court: This is a Bowman Act proceeding for the alleged taking of private property for public use. The cause was first presented without request in the pleadings for judgment. The court met the wishes of the plaintiff in that regard, as it did in the companion case of Barnes, and authorized report directly to the law-making body where proceedings began. But plaintiff was entitled nevertheless to judgment for the

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