creek, or spring of another, or the improvements thereon, by the overflow of water or otherwise, which may be occasioned by any mill-dam already erected or proposed to be erected.

Fourth. To assess the damages which may be occasioned to any person by the waters of any river, creek, or spring becoming stagnant by means of any mill-dam already erected or proposed to be erected.

Fifth. To authorize the removal of obstructions in the race and water-course below any mill, and assess the damages to be occasioned thereby, if any.

Sixth. To determine the height to which any person, about to build or having built a dam, may raise the same at any time, without causing back-water to flow upon any other mill works situated above, on the same water-course.

Seventh. To authorize any person, being the owner of a dam across any water-course, or having a right to build such dam, for the purpose of propelling a mill or other machinery by water, upon his own land situated below the dam, where there is intermediate land of another person, to make a race, excavation, or embankment through such intermediate land.

Eighth. To authorize any person to divert water at his own dam, or upon his own land, from the bed of any water-course in which any other person has an interest, for the purpose of using the water in propelling machinery upon the land of the person diverting it.

Ninth. To authorize any person injured in any manner by a milldam already built to have the damages assessed or the dam declared a nuisance, as the case may require.

896. (884.) Contents of application.-749. The plaintiff shall particularly describe the locality of his mill and dam, also the lands upon which he desires the damages to be assessed, the object contemplated as the case may require, and the full name and residence of any person legally interested, or in whose favor damages may be assessed, and make them defendants.

The petition, writ, and inquest should name all the owners of land above or below the site of the dam who may be or may have been injured by the flow. Honenstine v. Vaughan, 7 Blkf. 520.

The application should specifically describe the lands taken. Railroad Co. v. Newsom, 54 Ind. 121; Railway Co. v. Smith, 109 Ind. 488.

The application should specify the manner in which the damages will be occasioned. Railroad Co. v. Bridges, 6 Ind. 400.

897. (885.) Jury-Number-Qualifications.-750. The jury shall consist of disinterested freeholders, not less than six nor more than twelve, the number to be fixed by the court; but no person owning land adjoining that upon which the damages are to be assessed or upon which the mill may be situated shall serve as juror.

898. (886.) Writ-Notice to parties interested.-751. Upon the application being made, the court may order the clerk to issue a writ, reciting the material part of the application, and directing the sheriff to impanel a jury, to meet upon the land described in the application,

on a day to be fixed by the sheriff, who shall give to the plaintiff and defendant ten days' notice, if they reside within the state; if not, then to their agent or attorney, if any reside in the county; if not, then notice may be given by publication, as in case of non-residents.

The writ should name all the persons whose lands will be affected. Honenstine v. Vaughan, 7 Blkf. 520.

Persons not notified are not bound by the proceedings. Lane v. Miller, 17 Ind. 58.

899. (887.) Sheriff's charge-View and assessment.-752. When the jury are impaneled and sworn, having met at the place designated, they shall be charged by the sheriff as to each duty required of them, and they shall, to the best of their skill and judgment and according to the exigency of the case, when required—

First. View and assess at its true value the land proposed for an abutment, and set off the same, not exceeding one acre, by metes and bounds.

Second. Examine the lands above and below the dam, the property of the defendants described in the writ, and report whether the lands, mansion house, gardens, or any improvements or appurtenances thereto belonging, will be overflowed or otherwise injured, and assess the amount of damages, if any.

Third. They shall inquire whether the navigation of the stream will be obstructed, and the health of the neighborhood annoyed or injured; and, if so, by what means the obstructions, annoyance, and injury can be prevented.

Fourth. Whether such proposed mill or machinery will be of public utility.

Fifth. Assess the damages which may be occasioned by constructing a race, excavation, or embankment through the intermediate lands. of another.

Sixth. Assess the damages which may be occasioned by diverting the water from the bed of a water-course.

Seventh. Assess any other damages that may be sustained by any defendant.

The failure of the sheriff to charge the jury does not affect the proceedings. Indiana, etc., R. W. Co. v. Allen, 100 Ind. 409.

900. (888.) Guardians for infants.-753. When any of the parties to be affected by the application are infants, they shall appear by a guardian appointed by the court.

Guardians can not consent to the appropriation of the lands of their wards. Indiana, etc., R. W. Co. v. Allen, 100 Ind. 409.

901. (889.) May employ surveyor.-754. The sheriff shall, when the court so directs, employ the county surveyor, or some other competent surveyor, to assist the jury in determining any height, distance, or quantity of land, or any other fact necessary to be determined by the jury.

902. (890.) Challenge of jurors-Witnesses.-755. Either party may challenge jurors, and compel the attendance of witnesses to tes

tify as to any matters to be determined by the jury, in like manner as in the trial of civil actions.

903. (891.) Parties may point out, etc.-756. Either party may attend, and point out to the jury the place where the mill and dam are to be situated, the high-water and low-water marks, and the local extent of the supposed injury to the land.

904. (892.) Jury must inspect locality.-757. The jury shall, in all cases, inspect the localities described in the writ.

905. (893.) Adjournments.-758. If, from any cause, the inquest can not be held on the day fixed, the sheriff may adjourn to or fix any subsequent day previous to the return day; and the inquest may be adjourned from day to day or to a future day previous to the return day, when necessary.

906. (894.) Signing and return of inquest.-759. The inquest shall be signed by the jurors, and forthwith returned by the sheriff to the office of the clerk of the court.

907. (895.) Return of sheriff-Who bound.-760. The sheriff shall show in his return the service of the notice required; and no person shall be bound by the proceedings, unless named in the writ and notified.

908. (896.) Pleadings-Issue-Costs.-761. Any defendant may appear and traverse any material fact therein stated in the inquest, or he may plead or show any valid matter in bar of the right of the plaintiff to have the benefit of such writ; and issues of law and of fact. may be made up and tried, and the court may adjudge costs therein, and proceedings had as in other actions.

Appeals to the circuit court, in damage cases, have been uniformly regarded as civil cases under the code, and trial by jury is demandable. Lake Erie, etc., R. R. Co. v. Heath, 9 Ind. 558; Piper v. Tp. Co., 12 Ind. 400; Barrett v. Carthage Tp. Co., 16 Ind. 105.

The application for the writ and the return makes a cause of action to which the defendant may plead. Cincinnati, etc., R. R. Co. v. McFarland, 22 Ind. 459.

This section is construed in connection with the provisions providing for the appropriation of lands by railroad companies. Swinney v. Ft. Wayne, etc., R. R. Co., 59 Ind. 205.

When the rights of parties can be protected under this section, an injunction will not lie. Smith v. Goodknight, 121 Ind. 312.

Where an appeal is affected by the filing of exceptions, amended or additional exceptions may afterwards be filed. Midland R. W. Co. v. Smith, 125 Ind. 509.

909. (897.) Judgment and execution.-762. The court may render judgment and issue execution for any amount of damages assessed by the jury against any such person owning or wishing to build any mill or mill-dam in favor of the party entitled to damages, if desired by the party thus entitled.

910. (898.) When order not granted.-763. If it shall appear on the inquest or other evidence, that any mill, curtilage, or garden of any person will be, or has been overflowed or injured, or the health of the neighborhood annoyed, the court shall not give leave to build the

mill-dam; but if none of those injuries have accrued, nor will likely accrue, the court may allow the application, if otherwise proper.

un

911. (899.) After mill erected, no order-Exception.-764. In case of an application by any person, after having erected his mill-dam, on damages shall be allowed, and the application shall be dismissed, less the case be such that leave would have been given to build a mill, if the application had been filed before the erection of the mill-dam. 912. (900.) When water not to be diverted.-765. Water shall not be diverted from the bed of any water-course, by the authority of this act, to the injury of any mill or machinery already erected or in the process of erection.

913. (901.) Payment of damages-Reversion.-766. The plaintiff shall not be invested with any rights under these proceedings until he pays or tenders the damages assessed; which must be done within one year after the assessment is confirmed, and not afterward. On payment being made, he shall be seized in fee simple of the land appropriated for abutting a dam, or for a race, excavation, or embankment. If he fails to complete the mill and dam, or race, excavation, or embankment, within three years after the inquest is confirmed, or to put the same in repair fit for use within two years after being destroyed or injured, such land shall revert to its original owner, his heirs or assigns. If at the time of destruction or injury the owner be under legal disabilities, he may repair the premises within two years after the disability is removed.

914. (902.) Payment within year bars other recovery.-767. Any assessment of damages confirmed by the court, and paid within a year after confirmation, shall bar a recovery for the same in any other action.

The acceptance of the damages prevents the person accepting from controverting the rights of the plaintiff. Test v. Larsh, 76 Ind. 452; Baltimore, etc., R. R. Co. v. Johnson, 84 Ind. 420.

An attorney, under his general employment, can not bind his client by receiving the damages. Test v. Larsh, 98 Ind. 301.

915. (903.) Repairing embankment, etc.-Damages.-768. When the water, backed up by any mill-dam, is about to break the banks of the stream, so as to turn the water thereof out of its ordinary channel, whereby such mill or machinery will be injured, the owner or occupier thereof, if he do not own such banks or the lands lying contiguous, may, if necessary, enter thereon and erect and keep in repair such embankments and other works as shall be requisite to prevent such injury, committing no unnecessary waste or damage; but the owner of the bank may recover the actual damages sustained.

916. (904.) Injury to embankment, etc.-Damages.-769. If any person shall injure, destroy, or remove any such embankment or other works, the owner or occupier of the mill or machinery may recover of such person all damages which he may sustain by reason of such injury, destruction or removal.

917. (905). When railroad, etc., may have writ.-770. When any

person, corporation, or company design to construct a canal, or railroad, or turnpike, graded, macadamized, or plank road, or bridge, or establish a ferry, as a work of public utility, although for private profit, being authorized by law to take real property therefor, such person, corporation, or company may have a writ of assessment of dam

ages.

See the statutes providing for the incorporation of railroad companies.

These sections are not in conflict with the act providing for right of way for railroads, and the two acts may be construed in pari materia. Swinney v. Ft. Wayne, etc., R. R. Co., 59 Ind. 205.

The right to have the writ is not barred within six years after possession of the property is taken. Shortle v. Louisville, etc., Co., 130 Ind. 505.

The proceedings are governed by the fifteen years' statute of limitations. Shortle v. Terre Haute, etc., Co., 131 Ind. 338.

918. (906.) Application, where filed-Contents-Writ.-771. Such person, corporation, or company may file an application for a writ in the circuit court, or, in vacation, in the office of the clerk thereof, setting forth the precise description of the real estate desired to be taken, the names of the persons interested therein, making them defendants, and the purposes to which the same is to be converted, and refer to the law which authorizes the taking of the property. The clerk shall thereupon issue to the sheriff a writ of assessment of damages, reciting therein the material part of the application, and direct the sheriff to assess the damages by a jury.

The application should refer to the law which authorizes the taking of the property. Railroad Co. v. Newsom, 54 Ind. 121; Church v. Railroad Co., 70 Ind. 161; Railway Co. v. Smith, 109 Ind. 488.

And should specifically describe the land taken. Railroad Co. v. Newsom, 54 Ind. 121; Railway Co. v. Smith, 109 Ind. 488.

The description of the lands in the application may be amended. Co. v. Smith, 125 Ind. 509.

Midland Railway

919. (907.) Jurors-Number-Qualification.-772. The court, upon the application, or the clerk in vacation, shall determine the number of jurors at not less than six nor more than twelve, who shall be disinterested freeholders, not owning land within one mile of any part of the public way for which the land is taken.

The jurors must be freeholders. Louisville, etc., R. W. Co. v. Dryden, 39 Ind. 393. 920. (908.) Inquest-Proceedings.-773. The sheriff shall proceed to hold the inquest; and his proceedings thereon, and the rights of the parties and the persons interested, and the duty of the jurors, and their proceedings, shall be in all respects according to the provisions of this article, as far as the same are applicable.

921. (909.) Land-owner may have writ.-774. Any person having an interest in any land which has been or may be taken for any such public work may have the benefit of this writ upon his own application, made as above provided, upon which like proceedings shall be had as in case of applications made by the corporation, company, or person prosecuting the work.