damnum to the Board of County Commissioners of the county SEC. 2. The said house-holders, when empaneled as afore- Duty of jury empaneled by said, shall be charged, on oath, impartially to view said lands so sheriff. proposed for an abutment, and to circumscribe by certain metes and bounds one acre thereof, having due regard to the interest of both parties, and to appraise the same according to its value, and to examine what other lands, above and below, may be overflowed by the erection of said dam or works, and to ascertain the value of the same and to whom they respectively belong, and what other damages may arise, and to whom, from the erection of the same; which inquest, when made as aforesaid, by said householders, shall be delivered to said sheriff, whose duty it shall be to return the same to the board of commissioners ordering said writ; and if the party applying for the same shall pay the value of the lands ascertained and the damages assessed, as aforesaid, to the person entitled to the same, or if the jury so empanelled shall not agree to the said appraisement and make up their inquest as aforesaid, it shall be the duty of the said sheriff, at the expiration of four hours thereafter, to discharge the said jury, and under the same writ proceed to empanel another jury; and so from time to time continue to act until such appraisement is made and such inquisition be found; and it shall be the duty of said board to grant forthwith permission for the erection of said dam and works: Provided, That in no case shall the same be granted if the said house-holders, in the report, shall state that the injury likely to result to the neighborhood from the erection of said works, either by sickness or otherwise, will be greater than the benefits to be derived from the same. (a) SEC. 3. Where any mill or other water works have heretofore In certain been erected in this State, and the owner thereof is legally other cases. possessed of the lands on one side of the stream only, or if the (a) Secs. 1 and 2, Act of Nov. 19, 1829. Forfeiture of right by non user. When writ of num may issue. ad quod dam Notice and writ. Appeal. Duty of the ed by the sheriff land of any other person is overflowed thereby, or if his dam abuts upon the land of any other person, it shall be lawful for such person or persons to whom the same belongs, his, her or their agents or attorneys, to sue out a writ of ad quod damnun as aforesaid, and have the value of the same ascertained and the damages paid in, as is pointed out in the preceding section. (b) SEC. 4. If any person shall get permission as aforesaid to erect a mill or other works, and shall fail to erect the same for the space of two years after the date of said permission, or. having erected the same, shall afterwards suffer them to go down and reu.ain vacant for two years without attempting to re-establish the same, every such person shall lose the right which he, she or they had acquired by said permission, or by the previous erection of said mill or other works. (b) SEC. 5. Whenever any person owning lands in the Western Judicial District of this State, on any water-course the bed whereof belongs to him, may desire to erect a water grist-mill or other machine or engine of public utility thereon, and shall not have the fee simple to the lands on the opposite side thereof against which he would abut his dam, he shall make applica tion for a writ of ad quod damnum to the county commissioners of the county where the lands proposed for abutment are, having previously given ten nays' notice of such application to the owner of such lands, his agent or attorney; and the said board of commissioners shall thereupon order the aforesaid writ to be issued, directed to the sheriff of the county, and commanding him to summon and empanel twelve freeholders of said county to meet upon the lands so proposed for the abutment, on a day to be named in said writ, to examine the same: Provided, That nothing in this section shall be so construed as to interfere with any building or other structures of the person from whom any lands or tenements shall be taken as aforesaid without the consent of such person or owner of such lands; and in all cases where there shall be any lands condemned as aforesaid, and either party shall be thereby ag grieved, such person shall have the right of appeal to the Circuit Court or Supreme Court of this State.* (c) SEC. 6. The said freeholders, when empaneled as aforesaid. jury empanel- shall be charged on oath impartially to view said lands so proposed for an abutment, and to circumscribe by certain metes and bounds one acre thereof, having due regard to the interests of both parties, and to appraise the same according to its value; and to examine what other lands, above and below, may be overflowed by the erection of said dam or works; and to ascertain the value of the same, and to whom they respec tively belong, and what other damages may arise, and to whom, (b) Secs. 3 and 4, Act of Nov. 19, 1829. (c) Sec. 1, Act of Dec. 22, 1827. [* The Western Judicial District, when this law was passed, was all of Florida west of the Apalachicola river.] from the erection of the same; which inquest, when made as aforesaid by said freeholders, shall be delivered to said sheriff, whose duty it shall be to return the same to the board of commissioners ordering said writ; and if the party applying for the same shall pay the value of the lands ascertained, and the damages assessed as aforesaid, to the person entitled to the same, the said board shall forthwith grant permission for the erection of said dam and works: Provided, That in no case shall the same be granted, if the said freeholders, in the report, shall state that the injury likely to result to the neighborhood from the erection of said works, either by sickness or otherwise, will be greater than the benefits derived from the same. (d) which writ may SEC. 7. When any mill or other water works have hereto- Other cases in fore been erected in the Western Judicial District of this State, issue. and the owner thereof is legally possessed of the lands on one side of the stream only, or if the land of any other person is overflowed thereby, or if his dam abuts upon the land of any other person, it shall be his duty to apply for a writ of ad quod damnum, as aforesaid, and have the value of the same ascertained, and the damages assessed and paid in the manner pointed out in the preceding section; and if he shall fail to do so, it shall be lawful for the person or persons whose lands are overdowed as aforesaid, or abutted upon by said dam, to cause the same to be abated as a nuisance. (d) non-user. SEC. 8. If any person shall get permission, as aforesaid, to Forfeiture of erect a mill or other works, and shall fail to erect the same for right from the space of two years after the date of said permission, or having erected the same, shall afterwards suffer them to go down and remain vacant for two years, without attempting to re-establish the same, every such person shall lose the right which he, she, or they had acquired by said permission, or by the previous erection of said mill or other works. (d) SEC. 9. It shall not be lawful for any person or persons to dam any water for the purpose of erecting any mill, or other water works, within three miles of the town of Quincy in this State, except under the following restrictions and regulations, to wit: Previous to the erecting of any such dam or pond, it shall be the duty of the persons intending to construct the same, to apply to the Circuit Court, or Board of County Commissioners, for a writ to be directed to the sheriff of the county, commanding him to summon twelve lawful jurors of said county, who shall be sworn before some Judge or Justice of the Peace, and charged with the duty of inquiring if the said dam or pond, when so constructed, will prove detrimental to the health of said town. (e) when milldams may be built. SEC. 10. The following shall be the manner of summoning a Jury, how jury for the trial or examination of such cause or causes, to selected. (d) Secs. 2, 3 and 4, Act of Dec. 22, 1827. (e) Sec. 1, Act of Feb. 14, 1835. Verdict. Nuisance, to be abated. wit: The sheriff and Clerk of the Circuit Court shall select from the tax list of the county all the names of the duly qualified jurors residing within the Justice's district, in which the said town is situated, and having put the same on slips of paper into a box or hat, shall proceed to draw therefrom twelve names, who shall be summoned by the sheriff, within ten days, and shall constitute the jury contemplated by the above section. (e) SEC. 11. If the said jury, when so summoned, sworn and charged as aforesaid, shall say by their verdict that the erection of such mill-dam, pond or other water works, when so constructed, will prove to be a nuisance, or detrimental to the health of the said town, then it shall not be lawful to erect or construct the same. (e) SEC. 12. If any person or persons shall violate the provisions of Section nine of this chapter, it shall be lawful, and is hereby made the duty of the Judge of the Circuit Court, or Board of County Commissioners, upon application of the magistrate of police, to issue a writ, commanding the sheriff to abate the nuisance; and on refusing to abate the same, the party convicted thereof shall be fined in a sum not less than five hundred dollars, at the discretion of the court. (e) SEC. 13. The sheriff, clerk, jury and justice shall be allowed Fees of officers, such costs as are allowed in cases of forcible entry and detainer, to be paid by the party applying for such mill. (e) &c. Duty of miller as to grinding in turn. Toll. Penalties. SEC. 14. It shall be the duty of all owners of grist-mills throughout this State, or persons employed in keeping the same, who grind for toll, to grind each person's grain, taken to his or her mill, in the order in which the same be received, not giving a preference to any particular person to the exclusion or injury of another; and no owner of a mill, or other person employed in keeping the same, shall be allowed to retain as toll for grinding any corn, or other grain, more than one-eighth part of the same. (†) SEC. 15. If any owner of a mill, or other person keeping the same, shall refuse to grind any corn, or other grain, brought to his mill for that purpose, in its proper turn and time, and in a proper manner, such mill being in order to grind the same, or shall retain more than one-eighth for toll, every such person, guilty of any of said offences, shall be liable to a fine of twenty dollars, to be recovered before any Justice of the Peace, for the use of the person suing for the same: Provided, That nothing herein contained shall be construed to prevent any owner, or person employed in keeping a mill, from grinding his own grain at any time, and to the exclusion of any other person. () (e) Secs. 2, 3, 4 and 5, Act of Feb. 14, (f) Secs. 5 and 6, Act of Nov. 19, 1829. 1835. CHAPTER 153. MORTGAGES. 1. What is to be considered a mortgage in this State. 2. Mortgages how foreclosed. 3. Interest of mortgagor pro tected. 9. Objections to foreclosure of 10. Judgment and execution. 4. Mortgagee may transfer his yond limit of the State, how action interest. 5. What petition for foreclosure of mortgage shall contain. 6. Certified copy of mortgage may be used; petition for foreclosure. 7. Personal service in foreclosure of mortgage, how made. 8. Subpoena when to issue. of foreclosure commenced. 12. How action commenced when mortgagor resides in the State but beyond reach of process. 13. Penalty if certain persons dispose of mortgaged property. 14. Mortgage after satisfied, how cancelled. All conveyances payment of SECTION 1. All deeds of conveyance, bills of sale, or other instruments of writing, conveying or selling property, either securing the real, personal, or mixed, for the purpose, or with the intention money. of securing the payment of money, whether such deed, bill of sale, or other instrument be from the debtor to the creditor, or from the debtor to some third person or persons in trust for 5 Fla., 376. the creditor, shall be deemed and held as mortgages, and shall 10 Fla., 133. be subject to the same rules of foreclosure, to the same regula-16 Fla., 466. tions and restrictions as now are or may hereafter be prescribed 17 Fla., 773-788. by law in relation to mortgages. (a) 6 Fla., 1. Fla., 162. 17 Fla., 289. SEC. 2. All deeds, obligations, conditioned or defeasible, bills Mortgages, of sale, or other instruments of writing, made for the purpose, foreclosure of. or with the intention of securing the payment of money, whether such instrument be from the debtor to the creditor or from the debtor to some third person or persons in trust for the creditor, shall be deemed and held as mortgages, and shall be subject to the same rules of foreclosure, to the same regu- 8 Fla., 232. lations, restrictions, and forms, as are now, or hereafter may 15 Fla., 180. be prescribed by law in relation to mortgages; but in no case 16 Fla., 510. shall the obsolete and antiquated claims in favor of the mort- 5 Fla., 452. gagee to the right of possession of the property specified in said mortgage, or any part thereof, by reason of any alleged failure of payment, or breach of promise, or other default, be recognized or admitted in a court of justice in this State, either by Judge or jury, until all other steps and forms prescribed by law for the foreclosure of mortgages shall be complied with and observed. (b) SEC. 3. A constructive possession or possession in the eye of (a) Sec. 1, Act of Jan. 30, 1838. (b) Sec. 1, Chap. 525, Act of Jan. 8, 1853. |