LEVEZEY v. GORGAS, 4 U.S. 71 (1799)

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U.S. Supreme Court

LEVEZEY v. GORGAS, 4 U.S. 71 (1799)

4 U.S. 71 (Dall.)

Levezey et al.
Gorgas et al.

High Court of Errors and Appeals of Pennsylvania.

July Session, 1799

IN error from the Supreme Court. A declaration was filed in the Court below by the plaintiffs in error, against the defendants, in which they set forth, 'that on the _____ of _____ 1790, and thence continually, they have been seised in their desmesne as of fee of and in a certain water grist mill with the appurtenances, upon Wissahicon creek in Philadelphia county; that the defendants all the time aforesaid and still are in possession of a certain other water grist mill with the appurtenances upon the same creek, and below the mill of the plaintiffs; and that the defendants, intending to injure the plaintiffs, had raised their dam

Page 4 U.S. 71, 72

higher, to wit _____ feet higher than the same had ever been before raised, and thereby unjustly penned back, pent up, and obstructed the water of the said creek between the said mills, insomuch that the water of the creek during all the time aforesaid overflowed and greatly damaged, spoiled, injured, and broke to pieces the said mill of the plaintiffs, to their great damage in their said hereditary estate, and whereby they were forced to expend a large sum, &c. in repairing, &c.' The defendants pleaded 'not guilty, with leave to alter, and give the special matter in evidence:' and afterwards 'by ageement of attornies in writing filed, all matters in variance between the parties, are referred to William Ward Burrows, Alexander Martin, John Holmes and George Eyre, who shall have full power to award whether any and what sum shall be paid to the plaintiff by the defendant, and vice versa, to settle their respective claims to the waters of the Wissahicon creek, by fixing what shall be the heighth of the defendant's dam, and whether any alteration shall be made therein, and to direct articles to be executed accordingly: the report of any three to be conclusive.' All the referees concurred in filing a report, by which it was found and awarded, '1st. That the defendants their heirs and assigns shall and may erect and complete the mill-dam to their mill now belonging of a heighth corresponding with the bottom of the hole now bored in a certain rock standing and being on the north-east side of Wissahicon creek, near the said mill. And the said dam of the heighth aforesaid shall and may forever hereafter keep and maintain. And if the said defendants, their heirs and assigns, or either, or any of them, shall and do wilfully, or negligently, cause or suffer the said dam to be raised higher than is hereinafter mentioned, then and in such case, it shall be lawful for the plaintiffs their heirs and assigns, to give a written notice to the defendants their heirs and assigns, requiring them to reduce the said dam to its proper level, herein before directed: and if the defendants their heirs and assigns, shall neglect or refuse so to do, for thirty days after such notice, the plaintiffs their heirs and assigns may summon three freeholders, being indifferent men, to view and examine the same; and if the said freeholders shall be of opinion that the plaintiff's, &c. are injured by the said dam being carried up higher than the level herein directed, they shall give a written notice to the defendants, &c. requiring them to reduce the said dam to its proper level; and if within thirty days thereafter, the defendants, &c. shall not reduce the said dam to its level aforesaid, the plaintiffs, &c. may lawfully enter upon the said dam, and abate and prostrate the same. 2d. In consideration of the foregoing privileges the referees order and award, that the defendants, &c. holding the said mill, shall yearly, and every year, pay 10l. to the plaintiffs, &c. the first payment to be made on the 31st [4 U.S. 71, 73]

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