TITLE XV. PROVISIONS RESPECTING MILLS, FENCES, POUNDS, AND SECTION 1. Whenever any person shall have set up any watermill upon his land, or upon the land of another with his consent, the owner of such mill may continue and improve the pond, and keep up the dam thereof on his land for his advantage, without molestation. SEC. 2. Any person aggrieved or injured by the flowing of the pond raised by such dam, or by the stopping or raising of the water either above or below said dam, or by the backing of water under his land, or by the flowing out of any fall of water in his land by means Owners of mills may improve ponds and keep up dams. Remedy of persons injured by such ponds; of such dam, may commence an action on the case before the court of common pleas in the county in which such dam is, against the owner of the dam, or any precedent owner thereof; a copy of which writ shall be left by the officer serving the same in the office of the town clerk of the town in which such dam is; and the mill and mill-dam complained of, together with all their appurtenances and the land under and adjoining the same, shall thenceforth be pledged and liable for the damages which may be recovered in such action. SEC. 3. Whenever it shall be adjudged by said court that the plaintiff in any such action is entitled to damages, the defendant shall have the right to appeal from said judgment to the supreme court, upon the same terms and conditions as appeals are allowed in other cases; and, in like manner, the plaintiff may appeal whenever said court shall adjudge that he is not entitled to damages: Provided, that such appeal be claimed within five days after the rendition of such judgment, or during the same term of said court, if said term shall not continue five days, by filing an appeal bond as in other cases. SEC. 4. Whenever any plaintiff in any such action shall recover a final judgment for damages against the defendant, whether in the court of common pleas or in the supreme court, the court rendering the same, or any justice of the supreme court, in the vacation of such court rendering said judgment, shall cause to be issued by the clerk of said court a writ of venire to the sheriff of said county or his deputy, to return twelve good and lawful men of the same county to meet at a time and place appointed in such venire, in order to ascertain the amount of such damages. SEC. 5. At the time and place appointed by such writ, some one justice of the court issuing the same shall attend said jurors; shall engage them to a faithful and impartial discharge of their duty; shall swear all witnesses produced by either party before them; shall decide all questions of law that may arise incidentally in the trial, and may charge the jury upon the law, after the parties have submitted their evidence and arguments to them. If all the persons summoned as jurors do not appear, or are excused, such justice may issue a venire to fill up the panel. SEC. 6. Such jury shall appraise the damages which the plaintiff shall have sustained by the matters of complaint set forth in his writ and declaration, from the time of his ownership of the premises injured up to the date of the writ, if the defendant has been so long owner of the mill-dam or pond; if not, then from the time the ownership of the defendant commenced up to the date of the plaintiff's writ, or until the defendant ceased to be owner. SEC. 7. The jury shall also appraise the damages that the plaintiff ought yearly to receive and recover of the defendant, his heirs and assigns, owners of said dam, from the date of the plaintiff's writ until five years after the dam shall be removed by the defendant, his heirs, or assigns. SEC. 8. The jury shall also appraise what sum would be a just and reasonable compensation to said plaintiff, for all damages done to him by the matters of complaint set forth in his writ, from the date of his writ. SEC. 9. Said justice shall return to the court issuing the venire, as soon as may be, the verdict rendered and signed by the jury. SEC. 10. Upon the return and filing of any such verdict, the court to which it is returned shall continue the cause until the next term, before rendering any judgment accepting the same; and the plaintiff shall, on or before the second day of said term, in writing, make his election between the yearly damages and the damages in gross found by the jury. Judgment to be for yearly damages if plaintiff make no election. SEC. 11. The election of the plaintiff shall be entered on the Election to be records of the court in said case, and shall be forever binding on the binding. plaintiff and defendant and all claiming under them; and the judgment of the court shall follow the election of the plaintiff. SEC. 12. If the plaintiff shall neglect to make any election within the time and in the manner herein before prescribed, the court shall enter up judgment in his favor for the yearly damages found by said jury; and the judgment so rendered shall bar all actions for the injuries complained of by the plaintiff, excepting only an action of debt on the judgment, or by writ of scire facias to enforce the same. SEC. 13. Every execution that may issue on any judgment for damages rendered as aforesaid, whether for yearly damages or damages in gross, shall run, not only against the goods and chattels and real estate of the defendant, but, if the defendant was owner of said mill at the date of the writ, also against the mill and mill-dam which was the occasion of said suit, with all the appurtenances thereof; the form of the execution shall be varied accordingly by the court issuing the same; and such execution may be levied thereon, and the same proceedings may be had, as on executions in other cases levied on real estate. SEC. 14. Any sale of said mill or mill-dam and appurtenances thereof made on such execution, shall be valid and effectual against the defendant and against all persons whose titles shall accrue after the service of the writ in said action; but any person entitled to the premises sold may redeem the same at any time within one year after the sale, upon paying to the purchaser or person holding under him the sum paid therefor, with interest thereon at the rate of twelve per cent. per annum. SEC. 15. Whenever any plaintiff shall elect to receive the yearly damages awarded him as aforesaid, and the mill owner shall afterward remove the matter complained of in the writ, for which said damages were awarded, the plaintiff or his assigns shall recover said damages for five years after said matter shall be removed, and no longer. SEC. 16. The justice of the court of common pleas or of the supreme court, who shall attend said jury in assessing damages, shall be entitled to compensation for his services and expenses, to be allowed by the court and taxed in the bill of costs. SEC. 17. If the plaintiff in any such action shall die pending the same, his death shall not abate said action, but his executor or administrator, as in suits which survive, shall come in, and prosecute the same; but the jury assessing damages shall assess damages only up to the date of the plaintiff's writ, which damages shall be assets in the hands of such administrator or executor, and not yearly damages or damages in gross, unless the heirs at law or devisees of such deceased shall, in writing or in person, in open court, consent to such appearance of the administrator or executor. SEC. 18. No marriage of any party plaintiff in any such action shall abate the same, if the new party in interest, upon the marriage being suggested by the defendant on the record, will at the same term, in writing or in person, in open court, amend the process and enter himself as one of the plaintiffs in said action; but the costs in said action shall not be increased by said marriage. SEC. 19. If several joint-tenants, tenants in common, or copar Execution on such judgment, we, and be how to run, levied. Sale on such execution valid; redemption allowed. Yearly damages recoverable five years after removal of subject of complaint. Compensation of justice attending jury. Death of plaintiff not to abate action; damages in such case, how assessed. Marriage of plaintiff, not to if, &c. abate action, Joint-tenants, Death of defendant not to abate action. Owner of dam, how long may detain natural stream. ceners, he plaintiffs in such a suit, and pending the same, one or more of them shall sell his interest in the premises alleged to be injured, to one or more of his co-tenants, such action shall not thereby be abated, but the cause shall proceed to judgment with the same effect as if such conveyance had not been made. SEC. 20. If there be several defendants in such a suit, and one or more of them die pending the same, the suit shall not thereby abate, but the cause shall proceed to judgment with the same effect as if such death had not occurred; and if there be but one defendant, and he die pending the same, his death shall not abate said action, but the devisees or heirs at law may come into court at the term next following the decease, and substitute their names as defendants, instead of the deceased. SEC. 21. No person owning any dam, on any river or stream of water, shall detain the natural stream thereof at any one time, more than twelve hours out of twenty-four hours, except on Sundays, whenever he shall be requested by the owner of any dam, within one mile below on the same stream, to suffer the said natural run of said river or stream to pass his said dam. SECTION 1. No windmill shall be erected, placed, or continued within twenty-five rods of any travelled street or road. SEC. 2. Every owner of a windmill who shall neglect or refuse to remove any windmill, or any person who shall erect, locate, or run any windmill, within twenty-five rods of any travelled street or road, shall be fined for every such offence not exceeding five hundred dollars, nor less than one hundred dollars, one half thereof to the use of the town where the offence shall have been committed, and the other half thereof to the use of the state. SEC. 3. The city council of any city, and the town council of any town, may remove all such windmills, within their cities or towns respectively, as are located, continued, or run contrary to the provisions of this chapter. SEC. 4. The city council of any city, and the town council of any town, may, upon petition in writing to them presented, authorize or continue the location of any mill in their discretion, at any place within the limits of their respective towns. SEC. 5. The provisions of this chapter shall not apply to any mill which shall be located by decree of the town council of the town in which the same is situated, or to any mill situated in the towns of New Shoreham or Jamestown. SECTION 1. Lawful fences defined. CHAPTER 94. OF FENCES. 2. Partition fences, how placed and 3. Partition fences between improved 5. Fence viewers may, upon com- 6. Proceedings in case such order is not complied with. 7. Water fences, when to be maintained. 8. Disputes respecting partition fences to be settled by fence viewer. SECTION 9. Partition fence erected by agree- 10. Party making more than his share, 13. Fees of fence viewer. 14. Marsh lands not included in this 15. Remedy for trespasses by cattle, SECTION 1. The fences hereinafter described are and shall be ad- Lawful fences judged to be lawful fences, to wit: defined. Hedge with A hedge with a ditch shall be three feet high upon the bank of the ditch, well staked, at the distance of two feet and a half, bound to- ditch. gether at the top, and sufficiently filled to prevent small stock from creeping through; and the bank of the ditch shall not be less than one foot above the surface of the ground. A hedge without a ditch shall be four feet high, staked, bound and Hedge without filled, as a hedge with a ditch. ditch. Post and rail fence on the bank of a ditch shall be four rails high, Post and rail each well set in posts, and not less than four feet and a half high. fence, &c. fence. A stonewall fence shall be four feet high, with a flat stone hanging Stonewall over the top thereof, or a good rail or pole thereon, well staked or secured with crotches or posts. A stonewall without such flat stones, rails or posts on the top, shall Stonewall, &c. be four feet and a half high. And all other kinds of fences, not herein particularly described, Other fences. shall be four feet and a half high. SEC. 2. All partition fences shall run on the dividing line; and Partition the owners shall have the right to place one half of the width thereof fences, how on the land of each adjoining proprietor. Such fences shall be kept maintained. placed and up and maintained in good order through the year, unless the parties concerned shall otherwise agree. SEC. 3. Partition fences between lands under improvement shall How, between be made and maintained in equal halves in length and quality, by the lands under improvement. proprietors or possessors of such lands respectively. SEC. 4. In case any proprietor of land shall improve his land, the How, between land adjoining being unimproved, and shall make the whole partition improved and unimproved fence, the proprietor or possessor of the land adjoining and unim- land. proved shall, upon improvement thereof, pay for one half of such partition fence, according to the value thereof at that time; and shall keep up and maintain the same ever afterwards, whether he shall continue to improve such land or not. |