tion to have been to comprise the lands in question, or, at NOVEMBER, least, two of the Tracts, (called Knight's and Hammersley's,) in this devise. (1) Williams contra. The clear and fixed rule of law is that, 1816. Kendall's Executor and Devisee V. others. the heir, being the person, on whom the law casts the estate Kendall and 'till a plain intent in favour of a certain devisee in a Will, duly executed, be made to appear, he cannot be disinherited by implication, It will not be controverted that, if there be two Wills, and a Codicil is afterwards made confirming either, the Will so confirmed will stand. A Testator may, by the wording of a Codicil, make after purchased lands pass by his Will. (a) This (a) Coppin v. is always a matter depending on intention. But there are no Bro. Ch. cases. Fernyhough, 2 indications, in the Codicil in this case, of any such intention. 292. It is evident that, when he directed the Codicil to be written, he had not those lands in contemplation. To draw such a conclusion from this Will and Codicil would be to disinherit the heirs by a forced implication. November 30th 1816, Judge BROOKE pronounced the Court's opinion, that there is no error in the Decree, which is therefore affirmed. (1) Note. It was proved by depositions, that two of the after purchased tracts of land {Knight's and Hammersley's] were under the same inclosure with the former Mansion House Tract, and cornered at the same point; and the same Negroes, Stock, &c. were worked, and used on them; that a third Tract, called Bronaugh's, adjoined the Mansion House Tract, and had been cultivated by the same hands with it, but was afterwards worked by others, under a separate Overseer, and so continued until the Testator's death. One Witness said, that these three Tracts, together with the Mansion House Tract, were considered as one Tract at the Testator's death: another, that he (the Witness) considered Bronaugh's Tract as a separate plantation. Decided, Dec. 2d, 1816. 1. In an ac tion on the ges, occasioned Skipwith against Young. THIS was an action of Trespass on the case, in behalf of case for conse- Allen Young against Jane Skipwith for consequential injury to quential dama- the health of the plaintiff's family, and to his land adjoining, by the erection Occasioned by the erection of a Mill and Dam, by the defendant, on Cox's Creek in the County of Mecklenburg. The ered be less than damages demanded in the declaration were twenty thousand of a Mill, if the damages recov one hundred dol lars, the defend dollars. ant cannot ap peal to the Court It plainly appeared, from the pleadings in the cause, that the of Appeals, not- right of the defendant to erect the Mill was drawn in question. withstanding it appears from the The Jury found a Verdict in favour of the plaintiff for one penny damages, besides his costs: and Judgment was entered accordingly; from which the defendant appealed to this Court. Record,that the right to erect the Mill was drawn in question. December 2d, 1816, the Judges delivered their opinions, seriatim. Judge COALTER. The first question which arises, and which alone has been argued in this case, is whether the Court has jurisdiction. It is an action on the case, brought by the Appellee against the Appellant, for a nuisance in erecting a Mill Dam on ber own land, whereby, as he alleges, the water is thrown back and overflows a part of his land adjoining, and the health of his family is injured. There is a great number of pleas, setting out the right of the Appellant, by consent of the Appellee and otherwise, to erect the Dam; to all of which, except two, there are Demurrers, and judgments thereon for the Appellee; one or more of which, thus demurred to, states. that Sir Peyton Skipwith, the Testator of the Appellant, and under whom she claims, was seized and possessed of the said Mill in fee, and also of the land stated to be overflowed, and died so seized. The pleas on which issues were taken were the first, which is the plea of not guilty, and the sixth, which alleges that one Lewis Dabney in 1748 was seized of the land, where the Mill and Dam are built, and the land alleged to be overflowed, and had then a Mill and Dam there erected, &c. and that the same has ever since been kept up, and rebuilt, &c., and that the Appellant claims under said 1816. Skipwith V Young. Dabney, &c. There was at first a Demurrer to this plea also; DECEMBER, but that was afterwards withdrawn by consent, and issue taken thereon: after this, by consent, this plea is withdrawn, and not guilty pleaded, with leave on both sides to give in evidence the special matter in support or avoidance of the matter contained in said plea. On this there was a verdict for the plaintiff, and one penny damages, subject to the opinion of the Court on a point reserved; to wit, whether, after the Act of 1748, any person could lawfully build a Mill, although he might be owner of the land on both sides of the stream, and also of the land overflowed, without permission first obtained from the County Court; and whether, if such Mill was built before 1748, and was by accident destroyed, &c. and not rebuilt within three years, the party could rebuild without such leave, he not being within any of the disabilities stated in the statute during such three years, although he should be owner of the land as aforesaid. This question was adjourned by the Judge, who tried the cause to the General Court for novelty and difficulty; which Court directed it to be certified, that Judgment ought to be given for the Appellee. From all this it seems that the great question between the parties was the right and title to the land, alleged to be overflowed, and the right of the Appellant to continue the Mill and Dam. This right, as it regards the Mill, it is contended is neither a Freehold nor a Franchise; and if it is either, yet it was not the matter in controversy, within the meaning of the second section of the Act constituting the Court of Appeals, although that right may be decided on in a manner, which, either by way of bar or estoppel, is finally conclusive between the parties and it is farther contended that there are no points of difference between this and the cases of Hutchinson v. Kellam and Lymbric v. Seldon, 3 Munf. 202, of sufficient consequence to take this case out of the influence of those. The right to a Mill, as such, and to take toll thereat, which is descendible, and of which a widow may be endowed, is a Franchise, or a right of Toll, I apprehend, of which an Assize will lie de libero tenemento, according to Jehu Webb's case, 8 Co. 45-6; and if the party has a right to an abutment against, or to overflow the lands of another, it may be considered a Franchise, I presume, even within the definition thereof given DECEMBER, by the Bar. A Mill permitted to be built on these terms, is no 1816. Skipwith v. Young. restraint on the right of a man to use his own land as he pleases, provided he does no injury to his neighbour; on the contrary, the property of another is, as it were, seized on, or subjected to injury, to a certain extent, it being considered in fact for the public use, (for which alone it can be taken without his consent,) such machines being considered useful and necessary to the public: this conversion of property to the public use, and of which the individual gets the benefit, is compensated for to the public by the erection of some useful machine, as a Mill, to which Toll is incident, or some other useful machine to which Toll is not incident. The Appellant therefore claims, in this case, either a freehold right of Toll, or what may perhaps more properly be called a franchise, which, in an Assize or other real action to re cover the same, would have been sufficient to give this Court jurisdiction. But if I am wrong here, the Appellee sets out a case of nuisance to his Land, for which an Assize, or quod permittat prosternere, which is called the Writ of Right in that case, would lie; and if such form of action had been resorted to, there is no question, I believe, but an appeal on either side would have been proper. The action on the case, though, has superseded these real actions; and it then becomes a matter of consideration, whether, if the Appellee, who was the plaintiff in this case, had laid his damages at less than $100, and there had been a verdict against him, which on this declaration I apprehend would finally have concluded his rights as to the nuisance, he could have appealed to this Court; in other words, whether the damages, which may only have been for a few days continuance of the nuisance, or the enjoyment of the real estate clear of this incumbrance was the real and main matter in controversy? the thing really claimed and sought to be recovered? And whether the plea, which put in issue the right to the land, alleged to be overflowed, had that also been decided against him, should finally conclude him on that point without appeal? If the plaintiff, notwithstanding his claim to damages, was less than $100, could appeal in such a case, so I apprehend might the defendant, although less damages were found against him. 1816. Skipwith V. Young. But it is said, the cases of Hutchinson v. Keliam, and Lymbrick DECEMBER, v. Seldon, if adhered to, must govern this case, there being no substantial difference. Those cases I understand were mere possessory cases in trespass quare clausum fregit, in which, from the pleadings, the Verdict and Judgment would not have concluded the party, either by way of bar or estoppel, in a Writ of Right, or any other superior action, but, at most, would have been evidence in such future action. But if, in an action of trespass quare clausum fregit, the de. fendant should justify on the ground that the right to the free. hold and inheritance was in him, and issue should be joined thereon, in which case the Verdict and Judgment would finally conclude and estop the parties as to the mere right, the question is, whether this would not differ so materially from the above cases, as to shew that the matter in controversy was the freehold, within a reasonable interpretation of the words of the Statute? In the case of Outram v. Morewood, 3 East, 346, the question was, whether the Verdict and Judgment, in an action of Trespass quare clausum fregit, in which the pleadings put the freehold in issue, could be pleaded as an Estoppel to another action of Trespass on the same land; and it was decided that it could; and that it was conclusive as to the right. Lord ELLENBOROUGH takes a full view of all the cases. "In "Brooke, Title Estoppel, he observes, it is said to be agreed "that all the records in which the freehold comes in debate "shall be estopped with the land, and run with the land, so "that a man may plead this," &c. "But if it be said, that by "the freehold coming in debate, must be meant a question re66 specting the same, in a suit, in which the freehold is immediately recoverable, I answer, says he, that a recovery in any suit, upon issue joined on matter of title, is equally conclusive upon "the subject matter of such Title." Speaking of this action generally, he says, Damages for an injury to the possession are the only thing demanded by the declaration; the Judgment can only give the ascertained right to these damages, and the means of obtaining them; it concludes nothing upon the ulterior right of possession, much less of property in the land, (unless a question of that kind is raised by the plea and a traverse thereon,) nor does it give possession, &c. He then goes on to cite another case, in which Lord HOLT is stated to |