Virginia Law

A person having upon lands owned by him on a watercourse, or proposing to build on such lands, a water mill, or other machine, manufactory, or engine, useful to the public, and desiring leave to erect a dam across, or in such watercourse (whether he own the lands on either side of the watercourse at the point where such dam is to be erected or not), or to cut or enlarge a canal through lands above or below, or to raise a dam which may have been erected under an order of court, or the owner of any such water mill, machine, manufactory, or engine, located on a watercourse, having the right to the use of such watercourse for the operation of his mill, machine, manufactory, or engine, and desiring leave to construct a work on or through the lands of another for the purpose of confining the watercourse within its customary channel or restoring it thereto where it has been diverted therefrom not more than three years by floods or other natural causes, may apply for such leave to the circuit court of the county wherein such mill, machine, manufactory, or engine stands, or is proposed to be built.

Code 1950, § 62-95; 1968, c. 659.

Of such application ten days' previous notice shall be given in the manner prescribed in Article 2 (§ 25.1-205 et seq.) of Chapter 2 of Title 25.1 to each tenant, or the guardian, conservator or committee of the tenant, of the freehold of any lands not owned by the applicant, upon which it is desired to abut a dam, or through which it is desired to cut or enlarge a canal, or construct the work aforesaid.

Code 1950, § 62-96; 1968, c. 659; 1997, c. 801.

On proof of the notice, the court shall, by its order, appoint five disinterested freeholders of such county, as commissioners (any three of whom may act), whose duty it shall be to meet on a certain day to be specified in the order, at the lands on which the mill, machine, manufactory or engine stands, or is proposed to be built, or the work aforesaid is proposed to be constructed, or if they fail to meet on that day, on such subsequent day as they may designate, notice of which shall be given to the parties interested in the manner prescribed by § 62.1-117; and after they have met, they may adjourn from day to day until their business is completed.

Code 1950, § 62-97; 1968, c. 659.

The commissioners, before entering upon their duties, shall take an oath faithfully to perform the same, and thereupon shall proceed to inquire and ascertain, if the leave be granted, whether the mansion house of any person, or the outhouses, yard, garden, or orchards thereto belonging, will be overflowed or taken; whether and in what degree ordinary navigation and the passage of fish will be obstructed; whether by any, and if any, by what means such obstruction may be prevented; and whether the health of the neighbors will be annoyed by the stagnation of the waters or otherwise. They shall also circumscribe so much of the lands, not owned by the applicant, as may be necessary for the canal, dam, or work to be constructed as aforesaid, not being (beyond what is in the bed of the watercourse) more than one acre for a dam, nor more than 100 feet in width for a canal, and shall ascertain what will be a just compensation therefor. Any lands which will probably be overflowed or deprived of water, or otherwise injured by such canal or dam, or be injured by the construction of the work aforesaid, shall likewise be examined by them, and they shall ascertain what will be a just compensation to the several owners thereof, for the damage to the same respectively. All of which matters the commissioners shall set forth in a report, which they shall make out, sign, and return to the court by which they were appointed.

Code 1950, § 62-98; 1968, c. 659.

If, by such report, or otherwise, it appear that any person to whom notice has not been given, will sustain damage, notice shall be given to him, in the manner prescribed by § 62.1-117 to show cause why the applicant should not have the leave desired.

Code 1950, § 62-99; 1968, c. 659.

If good cause be shown against the report, or the commissioners report their disagreement, or fail to report within a reasonable time, the court may, in any such case as often as seems to it proper, appoint other commissioners and the matter be proceeded in as before prescribed.

Code 1950, § 62-100; 1968, c. 659.

If, on the report, or on other evidence, it appears to the court that by granting such leave the mansion house of any person other than the applicant himself, or the outhouses, yard, garden, or orchards thereto belonging, will be overflowed or taken, or that the health of the neighbor will be annoyed, the leave shall not be granted. But if it shall not so appear, the court shall then grant or refuse the leave, as may seem to it proper. If it be granted, the court shall lay the applicant under such terms and conditions as shall seem to it right. It shall, in particular, provide, that ordinary navigation and the passage of fish shall not be obstructed, nor the convenient crossing of the watercourse impeded; and where, under such leave, an existing mill, manufactory, machine, or engine is to be supplied with water by a canal, the court shall prescribe a time within which the dam, whereby water had before been supplied, shall be abated, which time shall not be more than one year from the completion of the canal. Whenever such leave is granted, the tenant of any land through which any canal may be cut, may cross it with such fencing, and bridges, and erect such water gates as he may from time to time deem necessary, not obstructing the passage of the water to the mill, manufactory, machine, or engine.

Code 1950, § 62-101; 1968, c. 659.

The applicant, to whom any such leave is granted, shall, upon paying to the several parties entitled thereto the compensation so ascertained, become seized in fee simple of the land circumscribed by the commissioners, and be authorized to proceed according to such leave.

Code 1950, § 62-102; 1968, c. 659.

No person shall by means of any such leave, draw the water from any millpond of another, existing at the time of such leave, or do anything in conflict with any vested right in any waterworks erected on such watercourse.

Code 1950, § 62-103; 1968, c. 659.

If the applicant shall not begin his work within one year, and so far finish it within three years after such leave, as then to have his mill, manufactory, machine, or engine in good condition for use; or if such mill, manufactory, machine, or engine, be at any time destroyed or rendered unfit for use, and the rebuilding or repair thereof shall not within two years from the time of such destruction or unfitness, be commenced, and within five years from that time be so far finished as then to be in good condition for use, the title to the land so circumscribed shall revert to the former owner, his heirs, or assigns, and the leave so granted shall then be in force no longer, except as provided in § 62.1-126.

Code 1950, § 62-104; 1968, c. 659.

Where any mill, manufactory, machine, or engine in possession of, but not erected by a tenant for life or years, shall be destroyed or become unfit for use, and such tenant shall not, within the two years begin, or within the five years finish such rebuilding or repair, the person next entitled in remainder or reversion may enter and rebuild or repair the same within three years from the time of the failure of such tenant, and thereafter hold and enjoy the same, with its appurtenances, for his use and benefit.

Code 1950, § 62-105; 1968, c. 659.

No proceedings had under this chapter, nor any judgment thereon, shall bar any prosecution or action which could have been maintained if this chapter had not been enacted, unless the prosecution or action be for an injury actually foreseen and estimated in such proceeding or judgment.

Code 1950, § 62-106; 1968, c. 659.