Bisher v. Richards. power, it seems reasonable that there should be some mode in which such a result might be accomplished. It is claimed on behalf of the defendant in error that the right of the public is in this respect absolute and unqualified, and that the owner of the land and mill has no right, himself, to make the improvement, however reasonable and convenient, or to require it to be made by those representing the public. This, it is argued, results from the condemnation of the land for the right of way, or its dedication for that purpose, and that any such consequence must be considered as having been in view at the time of the condemnation or dedication. The owner of the land, it is claimed, has either received, or might have received, and has waived payment for a damage and injury of this description. Practically, we suppose difficulties of this kind very rarely occur. If, for example, the crossing of a stream be originally by a ford, and the convenience of the public demands a bridge, and one is constructed by the proper authority, and then a corresponding improvement is made by the erection of a mill, and in such use of the water the stream is deepened at the point where there was originally a ford, it would hardly be regarded as an obstruction, or any interference with the right of the public. The bridge becomes a highway, and according to the rule of the common law it would become the duty of the county to keep it up and in repair. It would be the mode of exercising *the right of way adopted [501 by the public, and the deepening of the stream would be no interference. Suppose the progress of improvement was greater in the other direction, and the owner of the land desired to use his fall of water, and to accomplish this purpose, the erection of a bridge, as a mode of passage across the stream, became necessary, might he erect it, at his own cost, and offer it to the public as the mode of exercising the right of way, instead of the ford? It appears to be the rule of the common law, as shown by numerous authorities, that the circumstances of a case may be such as to make the exercise of such a right, on the part of the owner of the water-power, reasonable and proper, and one which it would not be proper for those representing the public, under all circumstances and in every case, to refuse to permit. The common law professes to be founded in reason, and certainly the mode of the exercise of many rights turns upon the inquiry-what is reasonable? An inquiry for the answer to which Bisher v. Richards. the common law has provided its peculiar and practical tribunala jury. The purport of a number of authorities appears to be, that any person may erect a bridge over a stream crossing a public highway, if it be of public utility. If it be built in a slight and incommodious manner, it may be treated as a nuisance. If not so treated as a nuisance, and it be really for the use and benefit of the public, then the charge of its repair is thrown on the county. 6 Mod. Cases, 400, page 307; 1 Salk. 359; 5 Burr, 2594; 2 Blackf. 685; 2 East, 342; 2 M. & S. 513; 3 B. & Adol. 147. The right of the owner of land, through which a road passes and crosses a stream of water, to build a bridge for the public, with a view to the use of his waterpower, appears to have been tacitly or expressly admitted in a number of cases. The only doubt or inquiry in such cases has been, whether the cost of the subsequent repair shall be borne by the millowner or the county. In the case of the King v. Inhabitants of 502] Kent, 2 M. & S. 513, where a person had erected a *mill and dam for his own profit, and thereby deepened the water of a ford, through which there was a public highway, but the passage through which was at times inconvenient to the public, and the miller erected a bridge over it, which the public used, it was held the county, and not the miller, was chargeable with the reparation. It is said in a case decided in New York: "A bridge built by an individual over a public highway, that is useful to the public and generally used by them, or if in the course of time it has become useful, and is used by the public, must be kept in repair by the public; as should a patriotic person build a bridge, at his own expense, over a public highway, it would be more than unjust to compel him also to keep it in repair. Even should he derive a benefit or convenience individually, still, as it would be a great accommodation to the public, it ought to be repaired by the public." Heacock v. Sherman, 14 Wend. 58-60. Similar remarks are made in a case in New Hampshire. State v. Campton, 2 New Hamp. 513. In another case in New York, where the distinction was recognized as to the question of a liability to repair, that the bridge was exclusively for the use of the miller, it being over a ditch which he had dug in the surface of the ground for a race-way, it was said: "The defendant. certainly committed no trespass in digging the ditch. It was on his own soil. The only right adverse to his was one to have a common highway for the purposes of travel. All the public could require Bisher v. Richards. was that he should make and keep the road as good as it was before he dug the ditch." Dygert v. Schenck, 23 Wend. 446. There seems to be some conflict in the authorities as to the cases in which, by the erection of a bridge, the burden of its repair can be cast upon the public. The point has been regulated, in England, by a statute, which, by implication, admitting that a private person might build a bridge upon the public highway, provides that its repair shall not devolve upon the public, unless built under the supervision and direction of the proper officer. 1 Harr. *Dig. [503 2148; 3 B. & Adol. 147. So upon the construction of the road laws of a state, the same result, clearly provided in England, has been held to follow. Sampson v. Goochland Justices, 5 Gratt. 241. And we are not prepared to say that the same rule might not be required under our statutes regulating the construction of roads and bridges. It would appear to be a proper inference, from the authorities which have been cited, that where such a change, as has been stated, in the mode of crossing a stream becomes proper and reasonable, the owner of the water-power can not, by deepening the stream, devolve upon those having charge of the road the immediate necessity of building a bridge, however reasonable and proper it may be that a bridge should be built at public expense. It was so decided in a case somewhat similar to the present. Monmouth v. Gardiner, 35 Maine, 247. So far as the rights of adjoining proprietors of land through which a current of water flows may afford any analogy to the present case, it would appear that a temporary inconvenience or interruption which a reasonable use by one proprietor causes to its use by another, is not a ground of just complaint. What would be such a reasonable use is necessarily, in most cases, a question of fact depending on the circumstances. These circumstances have been stated to be such as "the width and depth of the bed, the volume of water, the fall, the previous usage, and the state of improvement in manufactures and arts." 13 Met. 156-158. Of course, the circumstances as between the owner of the land and the public having a right of way would differ; but it may be remarked that the state of improvement has called, and may call, for an application of the principle of a reasonable use on the part of the public. If the construction of a railway and the planting in the soil of a telegraphic post are deemed reasonable, it might be urged that an improvement in the use of water-power, requiring Bisher v. Richards. 504] a change in a ford or the erection of a bridge, might render such change or erection a reasonable and proper act on the part of the owner of the soil. In view of these principles, and the authorities which have beent cited, we feel justified in coming to the conclusion that the evidence disclosed in the second bill of exceptions ought to have been re ceived. If this evidence had satisfied the jury that a slight change in the banks of the stream or in its bed would have enabled the plaintiff in error to use his water-power and preserve his mill, and this change, both in being made and when made, would not interfere with the right of way, but obviate the former difficulty, the inference might have been drawn that the refusal of the defendant in error was unreasonable and capricious; and after such refusal, and during its continuance, the jury might, with propriety, have withheld damages of the character and description claimed. The damages claimed and allowed were, at best, of an uncertain and indefinite nature. They were the damages sustained by the public. They must be very difficult to estimate or compute, resting really in the discretion of the jury. It does not follow from this view of the evidence that the conduct of the defendant in error would afford an answer to a claim on the part of any person for a special and particular damage resulting from the deepening of the ford. In what form permanent relief might be obtained by the plaintiff in error, and the right, if it should exist, to make the desired change might be enforced, we are not now called on to decide. Indeed, we do not think a case presenting such a question is likely to arise; for we are inclined to believe, in the language of the counsel for the plaintiff in error, that "the real want of the public is a bridge across said creek at that ford;" and had the plaintiff in error proposed to build a safe and substantial bridge for the use of the public, it is not likely that any objection would have been interposed. As the judgment must be reversed for the error which has been 505] pointed out, we do not think it necessary to extend this opinion by any comments on two other propositions which have been presented. As to them we find no error in the rulings of the court. We think that the county road described in the petition was so established or dedicated, and it is immaterial which view is taken, as to give to the public an undoubted right of way, and that this right of way was not merged in the state road laid out over Knox County Bank of Mt. Vernon v. Doty et al. the same ground. The two might well co-exist for the use and accommodation of different classes of the traveling public. The defendant in error represented and brought his action in behalf of those interested in the county road. For the error in the rejection of evidence as shown in the second bill of exceptions, the judgment must be reversed and the case remanded to the court of common pleas for another trial. BRINKERHOFF, C. J., and SCOTT, SUTLIFF, and PECK, JJ., con curred. THE KNOX COUNTY BANK OF MT. VERNON v. STEPHEN DOTY AND OTHERS. The taking of a judgment upon a warrant of attorney, without filing the original warrant or a copy thereof, is an irregularity, for which the judgment may be set aside upon motion, at the same or at a subsequent term, the motion having been filed at the first term and regularly continued. If such motion was made at the term when judgment was entered, by one of two or more several debtors, and continued to a subsequent term, it may be so amended at such subsequent term as to permit the other debtor or debtors to join in it. A payment made after the issuance of an execution, to prevent a levy upon or a sale of the property of the defendant in execution is not such a voluntary payment as will preclude the party paying from setting aside the judgment for irregularity. If the district court, upon error brought to reverse an order granting a new trial *for such irregularity, made by the court before which the judg- [506 ment was rendered, should dismiss the petition generally and without affirming the order of the court below, the error, if one, is not an error of which the plaintiff below can complain. IN error to the district court of Morrow county. At the September term, 1855, of the Morrow common pleas, the plaintiff in error recovered a judgment upon warrant of attorney against S. Doty, M. B. Doty, David Loyd, and Robert Thompson, for $670.20 and costs. No service of process was made upon any of the defendants. The petition claimed to recover the above sum as a balance due upon a bill of exchange drawn by the defendants therein named upon Atwood & Co., New York, for $2,500, dated |